[Federal Register Volume 65, Number 129 (Wednesday, July 5, 2000)]
[Proposed Rules]
[Pages 41528-41534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16884]
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Part II
Department of Transportation
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Federal Aviation Administration
14 CFR Part 13
Flight Operational Quality Assurance Program; Proposed Rules
Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 /
Proposed Rules
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 13
[Docket No. FAA-2000-7554; Notice No. 00-07]
RIN 2120-AF04
Flight Operational Quality Assurance Program
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The FAA proposes to codify an FAA policy encouraging the
voluntary implementation of Flight Operational Quality Assurance (FOQA)
programs and clarifying the circumstances under which information
obtained from voluntary FOQA programs could be used in enforcement
actions against air carriers, commercial operators, or airmen. The rule
would require air carriers participating in FOQA programs to submit
aggregate FOQA data to the FAA for use in monitoring safety trends.
Under the proposed rule, the FAA may use aggregate FOQA data as a basis
to promulgate safety rulemakings or to address situations calling for
remedial enforcement action, e.g., a lack of qualification on the part
of an operator or aircraft.
DATE: Comments on this proposal must be submitted on or before October
3, 2000.
ADDRESSES: Address your comments to the Docket Management system, U.S.
Department of Transportation Room Plaza 401, 400 Seventh St., SW.,
Washington, DC 20590-0001. You must identify the docket number FAA-
2000-7554 at the beginning of your comments, and you should submit two
copies of your comments. If you wish to receive confirmation that FAA
received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to http://dms.dot.gov. You may review the public docket containing comments to
these proposed regulations in person in the Dockets Office between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The
Dockets Office is on the plaza level of the NASSIF Building at the
Department of Transportation at the above address. Also, you may review
public dockets on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Dr. Thomas Longridge, Flight Standards
Service, AFS-230, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591, telephone (703) 661-0260.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Comments relating to the environmental, energy,
federalism, or economic impact that might result from adopting the
proposals in this notice are also invited. Substantive comments should
be accompanied by cost estimates. Comments should identify the
regulatory docket or notice number and should be submitted in duplicate
to the Rules Docket address specified above.
All comments received, as well as a report summarizing each
substantive public contact with FAA personnel concerning this proposed
rulemaking, will be filed in the docket. The docket is available for
public inspection before and after the comment closing date.
All comments received on or before the closing date for comments
specified will be considered by the Administrator before taking action
on this proposed rulemaking. Comments filed late will be considered as
far as possible without incurring expense or delay. The proposal
contained in this notice may be changed in light of comments received.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must include a preaddressed,
stamped postcard on which the following statement is made: ``Comments
to Docket No. FAA-2000-7554.'' The postcard will be date stamped and
mailed to the commenter.
Availability of NPRMs
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the FAA regulations section
of the Fedworld electronic bulletin board service (telephone: 703-321-
3339) or the Government Printing Office (GPO)'s electronic bulletin
board service (telephone: 202-512-1661).
Internet users may reach the FAA's web page at http://www.faa.gov/avr/arm/nprm/nprm.htm or the GPO's web page at http://www.access.gpo.gov/nara for access to recently published rulemaking
documents.
Any person may obtain a copy of this document by submitting a
request to the Federal Aviation Administration, Office of Rulemaking,
ARM-1, 800 Independence Ave, SW., Washington, DC 20591, or by calling
(202) 267-9677. Communications must identify the docket number of this
NPRM.
Persons interested in being placed on the mailing list for future
rules should request from the above office a copy of Advisory Circular
No. 11-2A, Notice of Proposed Rulemaking Distribution System, which
describes the application procedure.
Flight Operational Quality Assurance Program Description
The primary purpose of a Flight Operational Quality Assurance
Program (FOQA) is the enhancement of air safety. A FOQA program
involves the routine analysis of flight data generated during line
operations in order to reveal situations that require corrective action
and to enable early corrective action before problems occur. To
institute such a program, airlines would need to develop a system that
captures flight data, transforms the data into an appropriate format
for analysis, and generates reports and visualizations to assist
personnel in analyzing the data. The information and insights provided
by FOQA programs significantly enhance line operational safety,
training effectiveness, operational procedures, maintenance and
engineering procedures, ATC procedures, and airport surface issues.
Data is collected and aggregated from numerous operations. The
value of using the aggregate FOQA data greatly exceeds that of single
flight assessment when trying to determine the root causes of systemic
problems that need to be corrected. Individual data records are
typically aggregated along various dimensions (e.g., event category as
a function of aircraft type, phase of flight, and geographical
location) to assist the analyst in looking for trends and patterns.
Aggregation is defined as a transformation process that groups and
mathematically combines (e.g., count, total, average, standard
deviation) individual data elements based on some criterion. Each
aggregation is based on factors of interest to the analyst at a
particular point in time. For example, the average approach maximum
rate of descent below 2000 feet by airport by fleet type (event
category) may be useful to better understand the data once counts of
related events indicate that this is an area that might be useful to
study. This analysis may suggest that all fleets are experiencing high
descent rates at a certain airport or just a specific aircraft type is
involved. This type of information can be used to pinpoint the
potential source of a problem and the nature of the corrective action.
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Under the rule, program participations would submit aggregate FOQA
data to the FAA. The FAA plans to publish an advisory circular, which
would provide program participants with guidance on submission
procedures. In general, it is envisioned that aggregate FOQA date would
be supplied monthly to the FAA through secure electronic means similar
to the existing process for submitting automated operations
specifications. The aggregate data would be reviewed by various
organizational elements within the FAA to identify trends pertinent to
the areas of safety oversight or NAS management for which they are
responsible. In particular, the FAA expects the principal operations
inspector (POI), his aircrew program managers (APMs), the principal
maintenance inspector (PMI) and the principal avionics inspector (PAI)
would monitor trends to identify areas in need of corrective action, if
any; to review planned strategies for taking corrective action where
warranted; and to verify that such corrective action has been
effective. In general, the information obtained from aggregate FOQA
information would be used to provide an improved basis for agency
decisions based on objective data from line operations. Periodic
reviews of trends and lessons learned from the FOQA program will help
both the airline and FAA inspectors decide where to concentrate future
safety efforts.
Background
Since the mid-1940s the civil air transport accident rate has
significantly decreased. This decrease is due in part to the air
transport industry's practice of discovering, understanding, and
eliminating factors that lead to accidents and incidents. For many
years, industry, the FAA, and the National Transportation Safety Board
(NTSB) have used information from flight data recorders (FDRs) and
digital flight data recorders (DFDRs) to identify the causes of
accidents and to attempt to eliminate those causes systematically.
Airplanes used in operations conducted under 14 CFR part 121 and
certain types of aircraft used in operations conducted under parts 91,
125, and 135 are required to have flight data recorders. Any operator
who has installed approved flight recorders is required to keep the
recorded information for at least 60 days after an accident or incident
requiring immediate notification to the NTSB (14 CFR 91.609(g),
121.343(i), 125.225(g), and 135.152(e)). The flight data recorder
information can thus be analyzed to determine causes of an accident or
incident.
In the past 10 years, technological advances in cockpit equipment
and in data analysis have increased the potential for obtaining and
analyzing information on the flight characteristics of an aircraft
during its operation. This information can be used to determine the
causes of an accident. More importantly, it can also be used to obtain
and analyze on a routine basis data that are recorded in line
operations in order to prevent an accident. In recent years, many
countries have developed programs to encourage the routine recordation
and analysis of operational data on a voluntary basis. This NPRM is
intended to accomplish the same for the for the United States through
an FAA-approved FOQA program. In this NPRM, the term ``FOQA program''
means an FAA-approved program for the routine collection of in-flight
operational data by means of a DFDR and the analysis of that data to
discover trends affecting operational safety. It is hoped that by
gathering and analyzing this data, the FAA and the aviation industry
will be able to develop corrective actions, to improve flight crew
performance, air carrier training programs, operating procedures, air
traffic control procedures, airport maintenance and design, and
aircraft operations and design. The key potential safety benefit of
FOQA is that the routine analysis of flight data would enable the FAA
and aircraft operators to take early action to prevent accidents. This
benefit contrasts with the current situation, where the agency and
industry rely on after-the-fact accident- or incident-driven data
extraction and analysis used to develop safety fixes to prevent later
accidents. Because of its capacity to provide early identification of
safety shortcomings, FOQA offers significant potential for accident
avoidance.
In 1995, in response to a recommendation of the Flight Safety
Foundation, the FAA sponsored a FOQA Demonstration Study. The FOQA
Demonstration Study has been conducted over the past several years in
cooperation with four major airlines in the U.S. It has provided
substantial documentation of the benefits of FOQA. For example,
analysis of FOQA data has indicated that for domestic operations to
major U.S. cities, the frequency of approaches for which the rate of
descent exceeds 1000 feet per minute at 500 feet descent height is
generally much higher than was realized previously. Analysis further
determined that there is a correlation between the frequency of
unstable approaches and specific airport locations. Such information
has important implications for airline procedures, pilot training, and
FAA Air Traffic Control procedures. Dissemination of FOQA information
on this problem to pilots has been effective in reducing the frequency
of such events. The data available from the Demonstration Study also
provided a basis for the FAA to modify the approved instrument approach
procedures for one U.S. airport, and to update the instrument approach
equipment available at one runway.
FOQA data also have indicated that the manufacturer's recommended
maximum speed for a given flap setting in a given aircraft type is
exceeded more frequently than had been realized previously. Although
pilots have been required to monitor and report the occurrence of flap
exceedences for many years, flight crewmembers can miss them because
they can occur for very brief intervals during the busy approach-to-
landing phases of flight.
FOQA data have indicated that there are particular procedures and
maneuvers that warrant increased emphasis in training. For example,
analysis of FOQA data suggests that more emphasis on the safe and
proper execution of visual approach maneuvers is needed. This result is
of interest since the emphasis in pilot training programs previously
has been primarily on the execution of instrument approach procedures.
FOQA data indicated, however, that few performance problems are
occurring with instrument approaches. Results from the Demonstration
Study at one airline have indicated that the modification of recurrent
training content to better emphasize the visual approach has produced
quantifiable improvements in individual performance on that maneuver
during line operations.
The FOQA program has been employed by one U.S. airline to create a
database of wake turbulence events, and the information on how to
conduct analyses of digital flight data for that purpose has been
shared with other U.S. airlines.
FOQA data also have been used to pinpoint runway surface anomalies
at U.S. airports. The documentation of these anomalies has been
instrumental in correcting a long-standing problem at one such
location.
FOQA data have provided a hitherto unavailable means of
establishing a database of TCAS alerts, and of documenting specific
aircraft responses to the occurrence of TCAS events. This type of hard
data is essential to the integration of TCAS technology with air
traffic control modernization.
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FOQA data from two airlines, related to the impact of wind gusts,
turbulence, and landing on airframe lifespan integrity, has proven to
be invaluable for use by the FAA for the purpose of updating airframe
certification standards.
Results from the Demonstration Study have indicated that, in
addition to the utility of FOQA for safety monitoring and corrective
action follow-up, there are numerous direct cost-savings benefits to an
airline from FOQA. For example, FOQA data acquired by one airline have
documented that autothrottle performance in one aircraft type was not
in accordance with the manufacturer's specification, and that this
circumstance was responsible for chronic engine temperature exceedences
in that aircraft type. This information, which had not been available
until the implementation of FOQA in that aircraft type, was
successfully employed by the airline to modify takeoff power setting
procedures in order to compensate for the autothrottle deficiency, as
well as to initiate communications with the manufacturer targeted at
correcting the problem. As a result, the airline was able to achieve
savings from fewer engine removals, as well as increased aircraft
availability, for that aircraft type.
Besides reducing engine removals, the Demonstration Study has
documented many other examples of savings that are achievable through
FOQA. Prominent examples include engine on-wing extension programs,
detection of out-of-trim conditions, improved fuel management, reduced
hard landing inspections, brake wear reduction, and insurance premium
reductions.
The Demonstration Study's findings on the benefits of FOQA for U.S.
operators are very similar to the results obtained by European air
carriers, many of who have long experience in the use of this
technology. A lengthy listing of FOQA benefits that have been observed
by the Safety Regulation Group of the United Kingdom Civil Aviation
Authority, for example, includes documenting unusual autopilot
disconnects, GPWS warnings, hard landings, and rushed approaches. They
include use of FOQA data for monitoring fuel efficiency, engine
condition, crew procedures, noise violations, in-flight ATC delays, and
aircraft structural fatigue. They also include the use of FOQA data for
Category III landing certification. These results clearly validate the
value of FOQA for both safety enhancement and cost management purposes.
In December 1995, the FAA sponsored a Safety Conference to review
progress and to refine the originally proposed safety initiatives. At
that conference, industry requested that the FAA codify in the
regulations the enforcement protection policy letter on FOQA that had
been issued by former Administrator Hinson. The FAA agreed to initiate
rulemaking to address this issue. Subject to FAA action on this item,
industry representatives committed themselves not only to continue
support for voluntary implementation of FOQA at U.S. airlines, but to
initiate a process that could ultimately lead to the wide scale sharing
of FOQA information among airlines and the FAA to enhance safety. In
this way the FAA will see not only the specific trends and corrective
actions at an individual carrier, but can look for and correct trends
across the industry.
Both air carrier operators and pilot groups have expressed concern
about data confidentiality and use. There are significant concerns
about increased tort liability as a potential result of the existence
of FOQA data, as well as concerns from pilot groups about possible
punitive actions by airline management based on FOQA information.
Neither of these concerns are within the purview of the FAA to resolve.
Both airlines and pilots groups have expressed concern about possible
punitive enforcement actions by the FAA for regulatory violations
revealed by FOQA data. This issue is addressed later in the preamble.
Both airlines and pilots have also expressed concern that FOQA data
made available to the government could be subject to public disclosure
through the Freedom of Information Act (FOIA). However, Congress
included specific provisions pertinent to the latter concern in the
Federal Aviation Reauthorization Act of 1996. Specifically, the
Reauthorization Act added a new section, 49 U.S.C. 40123, to the FAA's
governing statute to protect voluntarily submitted information under
certain circumstances. New section 40123 provides:
(a) In General.--Notwithstanding any other provision of the law,
neither the Administrator of the Federal Aviation Administration, nor
any agency receiving information from the Administrator, shall disclose
voluntarily-provided safety or security related information if the
Administrator finds that--
(1) the disclosure of the information would inhibit the voluntary
provision of that type of information and that the receipt of that type
of information aids in fulfilling the Administrator's safety and
security responsibilities; and
(2) withholding such information from disclosure would be
consistent with the Administrator's safety and security
responsibilities.
(b) Regulations.--The Administrator shall issue regulations to
carry out this section.
In a separate NPRM entitled, Protection of Voluntarily Submitted
Information; Proposed Rule, published July 26, 1999 in the Federal
Register (Volume 24, Number 142, pp 40472-40482), the FAA proposes to
add a new part to provide that certain information submitted to the FAA
on a voluntary basis would not be disclosed to the public. Under
proposed 14 CFR part 193, a regulatory procedure would be established
for designating certain voluntarily submitted safety related
information, such as FOQA aggregate data and trend analyses, as
protected from such disclosure. Other types of voluntarily submitted
safety related information could also be designated as protected from
disclosure to the public.
Congressional Direction
On April 5, 2000, the President signed the Wendell H. Ford Aviation
Investment and Reform act for the 21st Century. Section 510 of the Act
requires the Administrator to issue a notice of proposed rulemaking
proposing ``Flight Operations Quality Assurance Rules.'' The proposed
rules in this notice respond to section 510 and provide safeguards that
will ensure that aviation safety is not compromised.
Section 510 provides that the protection should be proposed for
each voluntary reporting program, such as FOQA and the Aviation Safety
Action Program (ASAP). These proposed rules apply only to FOQA.
However, as directed by Congress, the FAA invites comments on how the
principles presented in this notice might be applied to other voluntary
reporting programs, including ASAP. The FAA seeks comments on what
would be a reasonable framework for protection of air carriers and
their employees who submit information under voluntary programs.
Discussion of the Proposed Rule
The language of the proposed rule is consistent with the intent of
the FOQA program, which is to provide air carriers and the FAA with (a)
data from line operations that can be analyzed to identify trends for
safety assessment; and (b) a basis for initiating corrective action
when needed to improve pilot performance, aircraft maintenance
practices, standard operating procedures, and aircraft system designs.
The proposed rule would require that an
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air carrier's FOQA program receive initial and continuing approval from
the Administrator. To receive such approval, the rule would require a
certificate holder to submit a FOQA Implementation and Operations Plan
acceptable to the Administrator. The minimum requirements for a FOQA
Implementation and Operations Plan would include (1) a description of
the operator's plan for collecting and analyzing flight recorder data
from line operations on a routine basis, (2) internal procedures for
taking corrective action that analysis of the data indicates is
necessary in the interest of safety, (3) procedures for providing the
FAA with aggregate FOQA data, and (4) procedures for informing the FAA
of corrective actions, including providing aggregate trend analyses to
the FAA.
In general, the proposed rule would provide that certificate
holders will provide the FAA with their aggregate FOQA data (summary
statistical indices associated with FOQA event categories) without
providing the underlying FOQA data (DFDR data obtained from individual
aircraft). Thus, the FAA would be able to (1) monitor the effectiveness
of the certificate holder's approved FOQA program, (2) monitor the
certificate holder's compliance with its approved FOQA program, and (3)
determine whether the certificate holder's aggregate trend analysis
indicates a need for rulemaking.
In addition to its use as a self-auditing tool for the certificate
holder, the FAA foresees a possible need for underlying FOQA data in
two circumstances (although other uses may become apparent as the
program develops). The first foreseeable circumstance would arise if
the FAA concludes that the aggregate FOQA data obtained from one or
more certificate holders indicate that safety rulemaking should be
undertaken.
The second circumstance would arise if an aggregate FOQA data
indicates a possible need for remedial action. Whenever possible and
appropriate, if the certificate holder takes corrective action, this
will be taken into consideration by the FAA in determining what, if
any, investigation and enforcement action is warranted. With respect to
punitive enforcement action, the proposed rule would prohibit the FAA
from using FOQA data collected for punitive enforcement action. This
prohibition would extend to DFDR data from required parameters that
have been downloaded into a FOQA analysis program in accordance with an
operator's approved FOQA Implementation and Operations Plan. The FAA
would be permitted to use the data in the DFDR itself (i.e., the black
box) in any enforcement action if an apparent violation is discovered
by means other than a review of the aggregate FOQA data.
Why the FAA Cannot Provide Regulatory Protection From Remedial
Enforcement
Remedial enforcement action is most often taken to stop the
continued operation of equipment that is not in a condition for safe
operation, or to revoke or suspend indefinitely the certificate of an
unqualified operator or person. This limited potential use of FOQA data
is necessary because the FAA cannot anticipatorily foreclose its
ability to take remedial enforcement action. Remedial enforcement
action is taken to prevent entities or individuals that the FAA has
determined are no longer qualified from operating in air transportation
and to halt continuing noncompliance. The availability of remedial
enforcement action would also apply to equipment that the FAA has
determined is not in a condition for safe operation in air
transportation. The agency is required to act in the best way to
prevent accidents in air transportation. Often the best way to prevent
an accident is to take remedial enforcement action against those who
lack qualifications. Likewise, the FAA is statutorily obligated to, at
a minimum, issue an order of compliance, which is a remedial action,
when the FAA finds continuous violations of the safety rules.
FAA Policy on FOQA
The FAA believes that the likelihood that FOQA data will lead to
remedial enforcement action is remote. For example, during the FOQA
Demonstration Study there were no occurrences that would have resulted
in remedial enforcement action under the provisions of this proposed
rule. Nevertheless, if aggregate FOQA data or underlying FOQA data are
necessary to resolve an issue involving possible lack of
qualifications, the Administrator will seek to obtain that information
in an effort to reduce or eliminate the possibility, or recurrence, of
accidents in air transportation.
The proposed rule would provide protection from punitive
enforcement based policy solely on FOQA data itself. It would not
provide protection from punitive enforcement based on information
obtained from other sources. For example, it would not provide
protection from punitive enforcement where information comes from FAA-
initiated activities undertaken when recurring trends in aggregate FOQA
data indicate the possibility of a continuing unsafe condition. Such
recurring negative safety trends could occur because a participant had
failed to take corrective action or because the corrective action taken
was not sufficient to resolve the problem. When appropriate, the
detection of a recurring negative safety trend in the aggregate FOQA
data would lead the FAA to focus its oversight resources on the problem
identified to determine the cause of the recurrence and the corrective
action necessary to correct it. Initially, this might mean closer
scrutiny of a particular program participant's operation, particularly
if the negative trend was evident only in a given participant's data.
If the trend appeared in more than one program participant's data,
however, FAA surveillance activity would be adjusted accordingly. In
some circumstances this increased FAA surveillance could lead to an
investigation and enforcement for regulatory violations. This rule
would provide no protection from punitive enforcement based on
information obtained from such FAA investigate or surveillance
activities. Based on its experience with the FOQA demonstration
program, the FAA anticipates that situations requiring investigation
and enforcement would be extremely rare. Experience indicates that
certificate holders willing to expend the resources needed to develop a
FOQA program are predisposed to taking appropriate corrective action
when a problem is identified. Such certificate holders would also be
predisposed to working with the FAA to ensure that the corrective
action is effective.
As the implementation and continuance of FOQA programs by airlines
would be voluntary, the FAA anticipates that the growth of FOQA in the
United States will depend upon the development of mutual trust and a
shared commitment to preserving the safety enhancement potential of
such programs. This proposed rule, together with the FAA's proposed
regulations to implement 49 U.S.C. 40123's protections for voluntarily
submitted information, would resolve some of industry's concerns
regarding enforcement. Other industry concerns about the use of the
DFDR data maintained and analyzed in FOQA programs may be resolved
through union and management agreements.
Although the FAA-sponsored FOQA Demonstration Study focused on the
use of FOQA for airlines operating under part 121, the study determined
that operators operating under the regulatory parts could also realize
safety benefits from establishing FOQA programs.
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Extending the availability of FOQA to any operator of an aircraft
equipped with DFDRs would appear to be in the public interest. The FAA
therefore proposes to extend FOQA to allow any operator of aircraft
equipped with DFDRs to seek approval of a FOQA program.
If FOQA information reveals that a violation of the FAA's statute
or regulations is ongoing and that the operator has not taken or will
not take appropriate corrective action, the FAA is required to take
appropriate steps to stop the violations and to restore the integrity
of the aviation system. In such circumstances, the FAA not only could
take whatever remedial enforcement action is appropriate to correct the
continuing unsafe situation, but also withdraw approval of the
certificate holder's FOQA program. The latter action is appropriate
because the regulation would require a certificate holder to initiate
corrective action in order to maintain continuing approval of its FOQA
Implementation and Operations Plan.
Willful misconduct uncovered in a FOQA program would also be
unacceptable. In appropriate cases, the FAA would take remedial
enforcement or other appropriate action against a certificate holder
for one or more violations resulting from a determination of willful
misconduct based on information obtained directly from FOQA aggregate
data. If the willful misconduct did not lead the FAA to conclude that
remedial enforcement action was necessary, it could nonetheless result
in the FAA withdrawing approval of that participant's FOQA program.
Nothing in the proposed rule would preclude the FAA from exercising
its subpoena authority, and the proposed rule would not preclude a
court of law from ordering the release of FOQA data or information
where appropriate. To the extent that FOQA data constitutes evidence of
a crime and to the extent that the Department of Justice prosecutes a
person or entity, this rule would not bar the use of FOQA data in a
criminal prosecution.
The FAA believes that the FOQA program will advance public safety
by providing an additional means of identifying and correcting
potential problems. FAA believes that air carriers are more likely to
participate in this voluntary program if the air carriers and pilots
believe that FAA will exercise suitable discretion in limiting
enforcement actions, based on the voluntarily submitted information.
The proposed rule would allow FOQA data to be used in remedial
enforcement actions but not in punitive enforcement actions.
It is widely accepted that enforcement actions, among other things,
have a deterrent value in encouraging the self-identification and self-
correction of violations, thus advancing public safety. During
interagency discussion of the proposed rule, concern was raised that
limiting FAA discretion to take enforcement action could reduce this
deterrent effect. To fully address these concerns FAA solicits comments
on the utility and application of FAA's current and proposed
enforcement policies concerning self-reporting, in the context of this
proposed rule. In particular, comment is solicited on experiences
involving (a) Air Carrier Voluntary Disclosure Reporting Procedures,
FAA Advisory Circular #120-56 (January 23, 1992); and (b) Policy on the
Use for Enforcement Purposes of Information Obtained from an Air
Carrier Flight Operational Quality Assurance (FOQA) Program (63 FR
67505--December 7, 1998). Further, FAA solicits comments on whether FAA
should retain its discretion to use FOQA aggregated data (and/or to
obtain disaggregated data from air carriers participating in the FOQA
program) in order to bring punitive or other enforcement actions, and
whether there are any factors which should govern the exercise of such
discretion. FAA also invites comment on whether, in the exercise of
FAA's enforcement discretion, certain uses of FOQA data (or requests
for disaggregated data) should require the approval of particular FAA
officials.
Paperwork Reduction Act
The proposed amendment to 14 CFR Part 13 contains information
collection requirements. In accordance with the Paperwork Reduction Act
of 1995, 44 U.S.C. 3501 et seq., the information collection
requirements associated with this rule are being submitted to the
Office of Management and Budget (OMB) for review. Following is a
summary of the information requirement that was sent to OMB.
Title: Flight Operational Quality Assurance (FOQA) Rule.
Summary/Need/Uses: Flight Operational Quality Assurance (FOQA) is a
program for the routine collection and analysis of digital flight data
from airline operations, including but not limited to digital flight
data currently collected pursuant to existing regulatory provisions. By
this proposed amendment, the FAA would require certificate holders who
voluntarily establish approved FOQA programs to periodically provide
aggregate trend analysis information from such program to the FAA.
The purpose of collecting, analyzing, aggregating, and reporting
this information is to identify potential threats to safety, and to
enable early corrective action before such treats lead to accidents.
The submitted aggregate trend information will be reviewed by the FAA
principal operations inspector (POI) responsible for oversight of the
certificate holding respondent. The POI and his staff make use of this
information to monitor operational trends, to identify areas in need of
corrective action, and to verify that corrective action is effective.
Respondents and Frequency of Response: The FAA has identified 30
certificate holders who are candidates to take the necessary steps to
comply with the rule and gain the benefits of so doing. However, only
nine certificate holders have established FOQA programs. Because of the
benefits of FOQA participation to both safety and cost containment, it
is anticipated that FOQA will be implemented on an industry wide basis
in the U.S. within the next twenty years.
Burden Hours: It is estimated that it will take each respondent 1.0
hour to prepare aggregate trend information to be submitted to the FAA.
The annual burden per respondent is 12.0 hours for an annual industry
burden of 360 hours.
The estimated 1.0 hour burden is the additional time required to
send to the FAA the aggregate data already produced monthly by the
certificate holder as part of an approved FOQA program.
The FAA considers comments by the public on the proposed collection
of information in order to:
a. Evaluate whether the proposed collection of information is
necessary for the proper performance of functions of the agency,
including whether the information will have practical utility;
b. Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information including the validity of the
methodology and assumptions used;
c. Enhance the quality, utility, and clarity of the information to
be collected; and
d. Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
The agency is soliciting comments to (1) evaluate whether the
proposed
[[Page 41533]]
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information will
have practical utility; (2) evaluate the accuracy of the agency's
estimate of the burden; (3) enhance the quality, utility, and clarity
of the information to be collected; and (4) minimize the burden of the
collection of information on those who are to respond, including
through the use of appropriate automated, electronic, mechanical, or
other technological collection techniques or other forms of information
technology (for example, permitting electronic submission of
responses).
Comments on the proposed information collection requirements should
be submitted to the rulemaking docket at the address indicated in the
ADDRESSES section of this notice.
According to the regulations implementing the Paperwork Reduction
Act of 1995, (5 CFR 1320.8(b)(2)(vi)), an agency may not conduct or
sponsor and a person is not required to respond to a collection of
information unless it displays a currently valid OMB control number.
The OMB control number for this information collection will be
published in the Federal Register after it is approved by the Office of
Management and Budget.
Regulatory Evaluation Summary
Proposed changes to Federal regulations must undergo several
economic analyses. First, Executive Order 12866 directs that each
Federal agency shall propose or adopt a regulation only upon a reasoned
determination that the benefit of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies
to analyze the economic effect of regulatory changes on small entities.
Third, the trade Agreements Act (19 U.S.C. 2531-2533) prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. In developing U.S.
standards, this Trade Act also requires agencies to consider
international standards and, where appropriate, use them as the basis
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995
requires agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
tribal governments, in the aggregate, or by private sectors, of $100
million or more annually (adjusted for inflation).
In conducting these analyses, the FAA has determined that:
(1) The proposed rule has benefits that justify its costs and is
significant under Executive Order 12866. It is also ``significant'' as
defined in DOT's Regulatory Policies and Procedures.
(2) The proposed rule will not have a significant impact on a
substantial number of small entities.
(3) The proposed rule reduces barriers to international trade.
(4) The proposed rule does not impose an unfunded mandate on state,
local, or tribal governments, or on the private sector.
These analyses are available in the docket and are summarized
below. The FAA invites the public to provide comments and supporting
data on the assumptions made in this evaluation. All comments received
will be considered in the final regulatory evaluation.
Any costs associated with providing the FAA with access to FOQA
information is expected to be minimal. The FAA does not propose to
require submission of underlying FOQA data to the government. However,
this proposed rule would require the participant to provide the FAA
with aggregate trend analyses of the data available. The FAA welcomes
comments on this issue.
The FAA anticipates that information obtained by airline FOQA
programs will be voluntarily submitted to the FAA in the interest of
joint goals to promote safety, and that because of the objective nature
of FOQA data, this information will be valuable for formulating future
policy, NAS procedures, and rulemaking development. This information
will enable the FAA to more accurately compute the estimated cost and
benefits of agency decisions. This proposed rule is an enabling
initiative intended to promote the voluntary establishment of FOQA
programs. The FAA has determined that because the establishment of FOQA
programs is voluntary and the proposed rule only requires certificate
holders who voluntarily establish approved FOQA programs to provide
periodically the aggregate trend information from such programs to the
FAA, the costs from this proposal are minimal. Therefore, an economic
evaluation is not warranted.
International Trade Impact
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis of U.S.
standards. In addition, consistent with the Administration's belief in
the general superiority and desirability of free trade, it is the
policy of the Administration to remove or diminish to the extent
feasible, barriers to international trade, including both barriers
affecting the export of American goods and services to foreign
countries and barriers affecting the import of foreign goods and
services into the United States. In accordance with the above statute
and policy, the FAA has assessed the potential effect of this proposed
rule and has determined that it would have little or no impact on trade
for U.S. firms doing business in foreign countries and foreign firms
doing business in the United States.
Initial Regulatory Flexibility Determination
The Regulatory Flexibility Act (RFA) of 1980, 5 U.S.C. 601-612,
directs the FAA to fit regulatory requirements to the scale of the
business, organizations, and governmental jurisdictions subject to the
regulation. We are required to determine whether a proposed or final
action will have a significant impact on a substantial number of
``small entities'' as defined by the Act. If we find that the action
will have a significant impact, we must do a ``regulatory flexibility
analysis.''
In accordance with the RFA, the FAA certifies that this proposal
would not have a significant economic impact, positive or negative, on
a substantial number of small entities.
Executive Order 13132, Federalism
The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. We determined that this
action would not have a substantial direct effect on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, we determined that this notice of proposed
rulemaking would not have federalism implications.
Unfunded Mandates Reform Act
The Unfunded Mandates reform Act of 1995 (2 U.S.C. 1532-1538)
requires the FAA to assess the effects of Federal Regulatory actions on
state, local, and tribal governments, and on the private sector of
proposed rule that contain a Federal intergovernmental or private
sector mandate that exceeds $100 million in any one year. This action
does not contain such a mandate.
[[Page 41534]]
Significance
This rule is significant under Executive Order 12866 and is
considered significant under DOT Order 2100.5, Policies and Procedures
for Simplification, Analysis, and Review of Regulations.
Environmental Analysis
FAA Order 1050.1D defines FAA actions that may be categorically
excluded from preparation of a National Environmental Policy Act (NEPA)
environmental impact statement. In accordance with FAA Order 1050.1D,
appendix 4, paragraph 4(j), this proposed rulemaking action qualifies
for a categorical exclusion.
Energy Impact
The energy impact of the notice has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA) Pub. L. 94-163, as
amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined
that the notice is not a major regulatory action under the provisions
of the EPCA.
List of Subjects in 14 CFR Part 13
Administrative practice and procedure, Air transportation, Flight
operational quality assurance program, Investigations, Law enforcement,
Penalties.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend part 13 of the Federal Aviation
Regulations (14 CFR part 13) by adding a new subpart I to read as
follows:
PART 13--INVESTIGATIVE AND ENFORCEMENT PROCEDURES
1. The authority citation for part 13 continues to read as follows:
Authority: 18 U.S.C. 6002; 28 U.S.C. 2461; 49 U.S.C. 106(g);
5121-5124, 40113-40114, 44103-44106, 44702-44703, 44709-44710,
44713, 46101-46110, 46301-46316, 46501-46502, 46504-46507, 47106,
47111, 47122, 47306, 47531-47532.
2. Subpart I is added to read as follows:
Subpart I--Flight Operational Quality Assurance Programs
Sec. 13.401 Flight Operational Quality Assurance Program: Prohibition
against use of data for punitive enforcement purposes.
(a) Applicability. This section applies to any operator of an
aircraft who operates such aircraft under an approved Flight
Operational Quality Assurance (FOQA) program.
(b) Definitions. For the purpose of this section, the terms--
(1) Flight Operational Quality Assurance (FOQA) program means an
FAA-approved program for the routine collection and analysis of data
gathered during aircraft operations by means of a DFDR, including data
currently collected pursuant to existing regulatory provisions.
(2) FOQA data means any raw data that has been collected by means
of a DFDR pursuant to an FAA-approved FOQA program.
(3) Aggregate FOQA data means the summary statistical indices that
are associated with FQFA event categories, based on an analysis of FOQA
data recorded by digital flight data recorders (DFDRs) during aircraft
operations.
(4) Remedial enforcement action means an enforcement action other
than a civil penalty or a certificate action involving a suspension for
a specific period of time.
(5) Punitive enforcement action means a civil penalty or
certificate action involving a suspension for a specific period of
time.
(c) Requirements. In order for paragraph (e)(1) of this section to
apply, the operator must submit and adhere to a FOQA Implementation and
Operations Plan that is approved by the Administrator and which
contains the following elements:
(1) A description of the operator's plan for collecting and
analyzing flight recorded data from line operations on a routine basis;
(2) Procedures for taking corrective action that analysis of the
data indicates if necessary in the interest of safety;
(3) Procedures for informing the FAA with aggregate FOQA data;
(4) Procedures for informing the FAA as to any corrective action
being undertaken pursuant to subparagraph (c)(2) of this section.
(d) Access to data. The operator will provide the FAA with
aggregate FOQA data in a form and manner acceptable to the
Administrator.
(e) Enforcement.--(1) The Administrator will not use an operator's
FOQA data or aggregate FOQA data in a punitive enforcement action
against that operator or its employees when such FOQA data or aggregate
FOQA data is obtained from a FOQA program that is approved by the
Administrator.
(2) The Administrator may use any operator's FOQA data and/or
aggregate FOQA data is a remedial enforcement action.
(f) Disclosure. FOQA data and aggregate FOQA data, if submitted in
accordance with the provisions of part 193 of this chapter, will be
afforded the nondisclosure protections of that part.
(g) Withdrawal of program approval. The Administrator may withdraw
approval of a previously approved FOQA program for failure to comply
with the requirements of this Chapter. Grounds for withdrawal of
approval may include, but are not limited to--
(1) Failure to implement corrective action that analysis of
available FOQA data indicates is necessary in the interest of safety;
or
(2) Failure to correct a continuing pattern of violations following
notice by the agency.
(3) Willful misconduct or willful violation of the regulations.
Issued in Washington, DC, on June 29, 2000.
L. Nicholas Lacey,
Director, Flight Standards Service.
[FR Doc. 00-16884 Filed 6-30-00; 8:45 am]
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