41528 Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules

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).

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 selfaddressed, 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.

Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules 41529

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 FAAapproved 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-thefact 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.

41530 Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules

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-oftrim 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

Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules 41531

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.

41532 Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules

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 selfidentification 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

Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules 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.

41534 Federal Register / Vol. 65, No. 129 / Wednesday, July 5, 2000 / Proposed Rules

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

§ 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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