Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Proposed Rules 47857 

Appendix A to § 219.3—Reimbursement 

Schedule 

Reproduction: 

Photocopy, per page ................. $0.25 

Paper Copies of Microfiche, 

per frame ............................... 0.25 

Duplicate Microfiche, per 

microfiche ............................. 0.50 

Electronic Productions, per request ...................................... 5.00 

Search and Processing: 

Clerical/Technical, hourly rate 22.00 

Computer Support Specialist, 

hourly rate ............................. 30.00 

Manager/Supervisory, hourly 

rate ......................................... 30.00 

3. Section 219.5 is amended by 

revising paragraph (a) to read as follows: 

§ 219.5 Conditions for payment. 

(a) Direct costs. Payment shall be 

made only for costs that are both 

directly incurred and reasonably 

necessary to provide requested material. 

Search and processing, reproduction, 

and transportation costs shall be 

considered separately when 

determining whether the costs are 

reasonably necessary. Photocopying or 

microfiche charges are reasonably 

necessary only if the institution has 

reproduced financial records that were 

not stored electronically (i.e., where the 

information requested was stored only 

on paper or in microfiche), or where the 

government authority making the 

request has specifically asked for 

printed copies of electronically stored 

records. 

* * * * * 

By order of the Board of Governors of the 

Federal Reserve System, August 12, 2008. 

Robert deV. Frierson, 

Deputy Secretary of the Board. 

[FR Doc. E8–18898 Filed 8–14–08; 8:45 am] 

BILLING CODE 6210–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Parts 121, 125, and 135 

[Docket No. FAA–2006–26135; Notice No. 

08–08] 

RIN 2120–AI79 

Filtered Flight Data 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Supplemental notice of 

proposed rulemaking (SNPRM). 

SUMMARY: The FAA is amending its 

proposal to prohibit the filtering of some 

original flight recorder sensor signals. 

Comments to the NPRM published in 

November 2006 and changes in 

available technology have caused us to 

reexamine our position on data filtering. 

We are now proposing that certain 

critical data parameters may be filtered 

if a certificate holder can show that the 

data can be accurately reconstructed. 

This proposed rule would improve the 

integrity and quality of the data 

recorded on digital flight data recorders 

while giving aircraft designers and 

operators more flexibility in system 

design and operation where allowable, 

including an option to filter data. 

DATES: Send your comments on or 

before November 13, 2008. 

ADDRESSES: You may send comments 

identified by Docket Number FAA–

2006–26135 using any of the following 

methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the online instructions for sending your 

comments electronically. 

• Mail: Send comments to Docket 

Operations, M–30; U.S. Department of 

Transportation, 1200 New Jersey 

Avenue, SE., Room W12–140, West 

Building Ground Floor, Washington, DC 

20590–0001. 

• Hand Delivery or Courier: Bring 

comments to Docket Operations in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue, SE., Washington, DC, between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

• Fax: Fax comments to Docket 

Operations at 202–493–2251. For more 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. 

Privacy: We will post all comments 

we receive, without change, to http:// 

www.regulations.gov, including any 

personal information you provide. 

Using the search function of our docket 

Web site, anyone can find and read the 

electronic form of all comments 

received into any of our dockets. This 

includes the name of the individual 

sending the comment (or signing the 

comment for an association, business, 

labor union, etc.). You may review 

DOT’s complete Privacy Act Statement 

in the Federal Register published on 

April 11, 2000 (65 FR 19477–78). 

Docket: To read background 

documents or comments received, go to 

http://www.regulations.gov and follow 

the online instructions for accessing the 

docket. Or, go to the Docket 

Management Facility in Room W12–140 

of the West Building Ground Floor at 

1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

technical questions concerning this 

proposed rule contact Brian A. Verna, 

Avionics Systems Branch, Aircraft 

Certification Service, AIR–130, Federal 

Aviation Administration, 800 

Independence Avenue, SW., 

Washington, DC 20591; telephone (202) 

385–4643; fax (202) 385–4651; e-mail 

brian.verna@faa.gov. For legal questions 

concerning this proposed rule contact 

Karen L. Petronis, Senior Attorney for 

Regulations, Regulations Division, 

Office of the Chief Counsel, AGC–200, 

Federal Aviation Administration, 800 

Independence Avenue, SW., 

Washington, DC 20591; telephone (202) 

267–3073; fax 202–267–7971; e-mail 

karen.petronis@faa.gov. 

SUPPLEMENTARY INFORMATION: Later in 

this preamble under the Additional 

Information section, we discuss how 

you can comment on this proposal and 

how we will handle your comments. 

This discussion includes related 

information about the docket, privacy, 

and the handling of proprietary or 

confidential business information. We 

also discuss how you can get a copy of 

this proposal and related rulemaking 

documents. 

Authority for This Rulemaking 

The FAA’s authority to issue aviation 

safety rules is found in Title 49 of the 

United States Code. Subtitle I, Section 

106 describes the authority of the FAA 

Administrator. Subtitle VII, Aviation 

Programs, describes in more detail the 

scope of the agency’s authority. 

This rulemaking is promulgated 

under the authority described in 

Subtitle VII, Part A, Subpart III, Section 

44701. Under that section, the FAA is 

charged with prescribing regulations 

providing minimum standards for other 

practices, methods and procedures 

necessary for safety in air commerce. 

This regulation is within the scope of 

that authority since flight data recorders 

are the only means available to account 

for aircraft movement and flight crew 

actions critical to finding the probable 

cause of incidents or accidents, 

including data that could prevent future 

incidents or accidents. 

I. Background 

A. Statement of the Problem 

During several aircraft accident 

investigations, the National 

Transportation Safety Board (NTSB or 

Board) found that some flight data 

recorder systems were filtering flight 

recorder parameter signals before they 

were recorded. As a result, the recorded 

data did not accurately reflect the 

aircraft’s performance or the movements 


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of the flight control systems before and 

during the accident or incident under 

investigation. Such signal filtering both 

hampered and delayed the 

investigations. Throughout the 

investigation of American Airlines 

Flight 587 (Flight 587), the NTSB 

expended significant resources and time 

trying to recreate the performance and 

movements of the flight controls of the 

accident aircraft. 

In November 2003, the NTSB issued 

three recommendations (NTSB 

Recommendations A–03–48/A–03–49/ 

A–03–50, November 6, 2003) on digital 

flight data recorder (DFDR) recording 

requirements. The NTSB recommended 

that the FAA require all aircraft have a 

DFDR system installed ‘‘capable of 

recording values that meet the accuracy 

requirements through the full dynamic 

range of each parameter at a frequency 

sufficient to determine a complete, 

accurate, and unambiguous time history 

of parameter activity, with emphasis on 

capturing each parameter’s dynamic 

motion at the maximum rate possible, 

including reversals of direction at the 

maximum rate possible.’’

B. Action by the FAA 

The FAA agreed with these 

recommendations. In 2006, we issued a 

notice that proposed a prohibition on 

filtering certain original flight data 

sensor signals. The 2006 NPRM contains 

a more complete discussion of the 

proposal and the events leading up to it 

(November 15, 2006, 71 FR 66634). 

The comments we received on the 

proposed rule alerted us to several 

features of the proposed prohibition that 

could have significantly more impact 

than we would have predicted. The first 

was the proposed definition of filtering, 

which described it as a change to any 

original parameter signal for any reason 

other than the three specified in the 

rule. The comments indicated that the 

level of signal processing that is in use 

on newer flight data systems no longer 

coincides with more traditional 

concepts of filtering, and leaves in 

question whether current system 

designs would be considered filtering. A 

more detailed consideration of this issue 

is included in the discussion that 

follows. 

As we considered whether to change 

the proposed definition of filtering, we 

studied what is quickly becoming the 

standard in electronic signal processing. 

Our intent in the 2006 NPRM was to 

prohibit the processing of certain flight 

data sensor signals that would result in 

inaccurate data being preserved, as 

happened with the rudder movement 

data on Flight 587. That airplane 

crashed after takeoff from LaGuardia 

Airport in November 2001. 

The investigation following the crash 

of Flight 587 indicated that the issue 

was not that data were filtered, but that 

the actual rudder movement data could 

not be reconstructed once processed by 

installed filtering devices. While a 

prohibition like our 2006 proposal 

would solve the problem, current 

capabilities suggest that when properly 

processed and documented, data can be 

recovered from a system design that 

incorporates filtering. We are now 

proposing that data filtering be allowed 

if a certificate holder can demonstrate 

that the ‘filtered’ recorded data meet the 

recording requirements of the 

regulations, and that the original sensor 

signal data can be accurately 

reconstructed using a documented, 

repeatable process. 

C. Changes in This Supplemental Notice 

of Proposed Rulemaking 

We have moved the filtering 

regulation from proposed § 121.344(n) 

to its own section, § 121.346 (or 

complementary sections in other parts), 

to avoid any confusion with the other 

flight recorder requirements. While 

today’s document uses part 121 as a 

reference, we are proposing the same 

changes for parts 125, and 135. 

Section 121.346 begins with a 

definition of filtering that differs slightly 

from the one we proposed in 2006. The 

new proposed definition indicates that 

when a signal is formatted in any way 

to be DFDR compatible, it is not 

considered filtered. As discussed below, 

we disagreed with commenters that 

thought the definition was too specific 

to allow certain current practices in 

signal conditioning. 

We have changed our position from a 

strict filtering prohibition to one of 

conditional allowance that distinguishes 

between two groups of flight recorder 

parameters. The first contains those that 

are prohibited from being filtered unless 

a certificate holder can demonstrate that 

it has done the tests, analyses, and 

maintains the procedures necessary to 

reconstruct the original sensor signal 

values from the filtered recorded data. 

The FAA understands that such 

technology is available, and where it 

can be shown to be reliable, it will be 

allowed. The second includes those 

parameters whose signals may be 

filtered without further action. 

We have split the 88 parameters listed 

in § 121.344(a) into two groups. 

The first group includes those 

parameters that may be filtered only if 

a certificate holder can demonstrate that 

the original sensor signal data (values) 

can be reconstructed using a valid, 

repeatable procedure. This group 

includes parameters such as flight 

control positions, flight control input 

forces and flight control surface 

positions that are sampled at higher 

rates. Filtering can and has been shown 

to result in incorrect information being 

recorded. This group also includes those 

parameters that are considered critical 

to accident investigation, including 

altitude, airspeed, heading, vertical and 

lateral acceleration, pitch attitude, roll 

attitude and engine thrust. Parameters 

that may not be filtered unless valid 

reconstruction is demonstrated are 

numbers 1–7, 9, 11–18, 26, 32, 42, 43, 

68, 70, 77, and 88. 

The second group includes all 

parameters that may be filtered without 

further showing by the certificate 

holder. We have found that filtering 

these parameters still results in 

acceptable recorded data as long as the 

accuracy and all other requirements of 

the applicable appendix are met. A 

significant number of parameters in this 

group are those that have only two 

states, on or off. These are known as 

discretes. We received several 

comments indicating that the 

information from these parameters is 

not affected by filtering. There are also 

discretes that may have three or four 

preprogrammed fixed values as their 

output, and are recorded as a binary 

numerical representation (BNR). 

Examples are traffic alert and collision 

avoidance system (TCAS), electronic 

flight instrument system (EFIS) display, 

and primary navigation system 

reference. Filtering these parameters 

would not result in any nonprogrammed value being recorded, nor 

would it affect the determination of the 

value at a given time. Other parameters 

included in the ‘may be filtered’ group 

are secondary flight control surfaces and 

input positions, such as trailing and 

leading edge flaps and pitch trim 

surface position. Filtering does not 

appear to affect an investigator’s ability 

to determine the position of this 

equipment. Parameters that may be 

filtered without further action are 

numbers 8, 10, 19–25, 27–31, 33–41, 

44–67, 69, 71–76, and 78–87. 

The option not to filter any or all 

parameters remains an acceptable 

means of compliance with the 

regulations. In all cases, the accuracy 

and all other requirements of Appendix 

M (or Appendix E or Appendix F) must 

continue to be met. The ability to 

reconstruct data does not forgive any 

appendix requirement for any 

parameter. For purposes of this SNPRM, 

when we refer to Appendix M in our 

response to a comment, this response 

also applies to operations covered by 


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Appendix E to part 125 or Appendix F 

to part 135 unless otherwise noted. 

The proposed time for compliance 

with this rule is four years after the 

effective date of the final rule. Within 

that four-year period, one of two things 

must happen. 

If a certificate holder elects not to 

filter any of the restricted parameters, it 

has four years to test its DFDR systems, 

verify that none of the restricted 

parameters are being filtered, or, if any 

restricted parameter is being filtered, 

modify that parameter. 

If a certificate holder chooses to filter 

a restricted parameter and show by test 

and analyses that the originating signal 

can be reconstructed, the procedures for 

reconstruction would have to be 

submitted to the FAA after the next 

heavy maintenance check of an airplane 

(beginning six months after the effective 

date of the final rule), but not later than 

two years after the effective date of the 

final rule. If a certificate holder has 

several of the same make, model and 

series airplane (group) with the same 

certificated DFDR system installed, the 

procedures need only be submitted once 

for the entire group of airplanes with 

identically installed systems. The 

compliance date for a group would be 

tied to the first airplane going in for a 

heavy maintenance check six months 

after the rule is final. Submission of the 

data to the FAA would be required no 

later than the time the first airplane of 

a group completes that heavy 

maintenance check. This compliance 

schedule is intended to allow the FAA 

to determine that the submitted 

reconstruction procedures are 

repeatable, but still allow time for other 

compliance action (within the four 

years) if repeatability is not 

accomplished. A certificate holder that 

is unable to show repeatability for any 

restricted parameter would be required 

to modify the parameter to eliminate 

filtering before the four-year compliance 

period ends. 

We have not included in the rule text 

a time limit for submission of the 

reconstruction procedures to the NTSB 

following an accident or occurrence that 

requires the NTSB be notified. We 

presume that the reconstruction data are 

included as part of the recorder and its 

data that are subject to § 121.344(i) and 

the NTSB’s authority under 49 CFR 830. 

We invite comment on whether a 

specific, brief time for submission needs 

to be included separately in the rule for 

the reconstruction procedure data. 

II. Discussion of Comments to the 

NPRM 

A. Summary of Comments 

The FAA received 16 comments in 

response to the 2006 NPRM. AirTran 

Airways, L3 Communications, the 

National Transportation Safety Board 

and two individuals supported the 

intent of the 2006 NPRM, but offered 

detailed changes. 

The Air Transport Association (ATA), 

Airbus, Boeing, FedEx, Dassault 

Aviation, Northwest Airlines and the 

Regional Airline Association (RAA) 

opposed the proposed rule. They also 

recommended that any final rule should 

only apply to newly manufactured 

airplanes. 

The remaining commenters did not 

specifically state support or opposition, 

but suggested changes to the proposed 

rule. 

B. Definition of a Filtered Flight Data 

Signal 

We proposed to define when a flight 

data recorder signal is filtered as 

occurring when an original sensor signal 

is changed in any way, other than 

changes necessary to: 

(1) Accomplish analog to digital 

conversion of the signal; 

(2) Reformat a digital signal into a 

DFDR-compatible format; or 

(3) Eliminate a high-frequency 

component of a signal that is outside the 

bandwidth of the sensor. 

Boeing stated that it uses methods 

other than those in the proposed 

definition to enhance the quality of 

original sensor signals by protecting 

them against aliasing and noise. These 

methods go beyond the three specific 

kinds of processing allowed under the 

proposed definition and would be 

prohibited. Boeing suggested that the 

proposed list of acceptable signal 

conditioning is incomplete and does not 

allow for technological advances. 

Boeing indicated its preference for a 

more general definition, and suggested 

the following: 

‘‘Filtered data is that for which the 

actual sensor signal is amended, altered, 

modified, or changed in any manner 

such that it cannot be readily retrieved 

using existing, easily understood 

instructions and commonly available 

tools and techniques.’’

Boeing’s concern that its signal 

conditioning methods would be 

prohibited is unfounded. Anti-aliasing 

techniques and noise removal are each 

different methods of eliminating highfrequency components of a signal. Highfrequency components are not 

necessarily outside the bandwidth of the 

sensor. The eliminated high-frequency 

component of a signal can be within the 

operational bandwidth of a sensor, but 

outside the operational bandwidth of a 

parameter. In this case, anti-aliasing and 

noise reduction techniques, by our 

definition, would be an acceptable form 

of filtering. 

Accordingly, we do not agree that a 

more general definition than that 

proposed would be appropriate. While 

Boeing noted that we used the more 

general definition in a June 2002 survey 

on filtering, that definition was not 

subject to the extensive analysis and 

review that we use when developing a 

definition for a regulation. When 

subjected to such analysis and review, 

the failings of the general definition 

become apparent. The general definition 

fails to address two common and 

acceptable changes—converting a signal 

from analog to digital and formatting a 

digital signal for DFDR compatibility. 

It was unclear from the comments 

whether there was some 

misunderstanding of the phrase 

‘‘operational bandwidth of the sensor’’

in paragraph (3) of the definition. 

Comments are invited regarding the 

application of this phrase in the context 

of the filtering definition. 

C. Appendix M Introductory Text 

When we amended the DFDR 

regulations in 1997 to increase the 

number of parameters required to be 

recorded, we created Appendix M to 

part 121 (and comparable appendices in 

other parts). These appendices establish 

the upgraded technical requirements for 

each of the 88 parameters. The 

introductory text to Appendix M 

currently states: 

‘‘The recorded values must meet the 

designated range, resolution, and 

accuracy requirements during dynamic 

and static conditions. All data recorded 

must be correlated in time to one 

second.’’

In the 2006 NPRM, we proposed 

language that would present a more 

detailed explanation of what we meant 

by the term ‘‘dynamic condition.’’ We 

proposed an additional sentence 

indicating that dynamic condition 

meant the parameter is experiencing 

change at the maximum rate available, 

including the maximum rate of reversal. 

In its comment, the NTSB asked that 

we change the term ‘‘maximum rate 

available’’ to ‘‘maximum rate possible.’’

The NTSB did not provide any 

rationale for this suggested change, and 

we are unable to agree that the term 

‘‘maximum rate possible’’ is an 

improvement. Since we consider the 

word ‘‘possible’’ to include states that 

are well beyond the normal operational 

range of equipment, the suggested 


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change appears inappropriate as a 

regulatory standard. The proposed 

introductory text for Appendix M is 

unchanged from the 2006 NPRM. 

D. Parameters Covered by the Filtering 

Prohibition 

In drafting the 2006 NPRM, we 

reviewed each of the 88 parameters to 

determine which are too critical to 

allow any filtering beyond the proposed 

allowable signal conditioning. The 

parameters that met this critical 

performance requirement included 

flight control surface positions, flight 

control input positions and flight 

control input forces. We also 

determined that discrete signals should 

not be filtered since they, by definition, 

show that something is either on or off, 

and we knew of no need to filter these 

data. We sought comment on these 

choices. 

While the 2006 NPRM proposed a 

general prohibition on filtering any 

flight data signal other than those 

specifically excepted, some commenters 

referred to those signals for parameters 

covered by the general prohibition as 

being on a ‘‘no filter’’ list. While this is 

not technically correct, we are using the 

term ‘‘no filter list’’ when discussing 

these comments to prevent further 

confusion. 

Boeing asked that we remove discrete 

signals from the ‘‘no filter’’ list and 

provided several examples of how 

discrete signals are filtered. For 

example, Boeing noted that discrete 

signals may be filtered to eliminate false 

transitions that are typically 

encountered with mechanical devices. 

Boeing argued that the amount of signal 

conditioning that may be applied to a 

discrete signal should be determined by 

what is needed for the equipment to 

function as part of the overall aircraft 

design, not what is required for a DFDR 

recording. Boeing concluded that the 

DFDR should only be monitoring the 

status of functions interfaced with 

discrete signal inputs, and not dictating 

conditions that may prevent an 

improvement in signal integrity. 

Airbus recommended that we add 33 

parameters to the list of those that may 

be filtered. Airbus stated that the 33 

parameters are not related to flight 

controls or flight control inputs, and 

that there would be ‘‘no critical loss of 

information’’ even if the raw data were 

not recorded. 

The ATA questioned why we 

included the majority of the 46 

parameters covered by the filtering 

prohibition when they do not relate to 

primary flight controls. The ATA noted 

that only 6 of the 88 recorded 

parameters (7 in airplanes manufactured 

after August 18, 2002) record inputs to, 

or surface positions of, primary flight 

controls. The ATA also argued that we 

should not include discrete signals 

because their inclusion could expose 

certificate holders to technical 

noncompliance when the prohibition 

serves no purpose. The ATA 

recommended that the prohibition on 

filtering be limited to parameters 

numbers 12 through 17, and 88. 

We note first that, in our review of the 

parameters for this SNPRM, we 

reanalyzed each parameter (as suggested 

by Airbus) in light of the information 

provided by several commenters. We 

based our original proposal on two 

presumptions. First, we believed that 

currently operating airplanes did not 

record discretes in a manner that would 

be considered filtering under the 

proposed definition. Second, we 

thought that by prohibiting filtering of 

discrete signals, future system and data 

bus/network designs would not change 

these signals in a way that might 

prevent recording information 

accurately. However, based on the 

comments, we are now allowing 

discrete signals to be filtered under the 

language proposed in this SNPRM. 

In contrast to the other commenters, 

the NTSB recommended we increase the 

number of parameters for which 

filtering is prohibited. The NTSB asked 

that we include time, pressure altitude, 

indicated airspeed, normal, lateral and 

longitudinal accelerations, heading, 

pitch, roll, radio altitude, angle of 

attack, brake pressure, yaw or sideslip 

angle, and hydraulic pressure. The 

NTSB characterized these parameters as 

critical, and noted that their signals 

could be distorted by filtering, and that 

filtering could introduce random timing 

biases that can change the timing of one 

parameter relative to another. 

We agree with the NTSB’s 

characterization of these parameters as 

critical for the work of accident 

investigators. Accordingly, we have 

included them in the list of parameters 

that are restricted in this SNPRM. 

An individual who is an accident 

investigator also recommended that we 

include parameter numbers 9 (thrust/ 

power on each engine) and 43 

(additional engine parameters) in the 

list of those parameters for which 

signals may not be filtered. After our 

review, we agree that these two 

parameters are critical to accident 

investigators and they are included in 

the ‘‘no filter’’ list. 

E. Applicability 

1. Existing and/or Newly Manufactured 

Aircraft 

In the 2006 NPRM, we proposed that 

the prohibition against filtering apply to 

both existing and newly manufactured 

aircraft. While Airbus, Dassault 

Aviation, Northwest Airlines and the 

RAA opposed the proposed rule, they 

also suggested that any final rule should 

only apply to newly manufactured 

airplanes. 

Airbus noted that covering only 

newly manufactured airplanes is less 

costly for all parties, since 

manufacturers would be able to 

combine new designs into other flight 

recorder system improvements. Airbus 

also noted that the filter conversion 

algorithms have been solved for inservice airplanes, concluding that the 

problem will not occur again, and thus 

there are no further benefits to be 

achieved by the proposed rule. 

The RAA viewed the safety concerns 

expressed in the 2006 NPRM as 

applicable to the design and 

certification process, and thus better 

suited to newly manufactured airplanes. 

As we stated in the 2006 NPRM, we 

considered the regulatory alternative of 

limiting the filtering prohibition to 

newly manufactured aircraft. While this 

approach is always less costly than a 

rule that affects the in-service fleet, it 

would also fail to address the large 

number of aircraft currently operating 

on which filtering is occurring. We are 

also concerned that failing to cover inservice aircraft could lead to future 

system modifications that result in more 

filtering. 

Experience with the Boeing 767 and 

the Airbus A300 has shown that 

filtering has caused problems during 

accident investigations. We disagree 

that the efforts expended during the 

Flight 587 accident investigation to 

reverse-filter the critical rudder data 

account for all the benefits that might 

accrue from a stricter limit on filtering. 

We also disagree that there was an 

acceptable outcome following the 

investigation. The NTSB has not 

released any formal opinion that the 

results for the Flight 587 data 

reconstruction were satisfactory, or that 

the processes involved in that data 

reconstruction were acceptable. We 

recognize that data reconstruction, 

when satisfactory from an accuracy 

standpoint and shown to be repeatable, 

is an acceptable alternative. That is why 

we are issuing this SNPRM. We do not 

believe the problems uncovered by the 

Flight 587 investigation have been 

solved. Allowing airplanes to remain in 


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the fleet while filtering critical data is 

not an acceptable alternative. 

2. Airplanes Omitted in the NPRM 

In the 2006 NPRM, we inadvertently 

failed to include airplanes covered 

under § 121.344(b)(1) and Appendix B 

to part 121, and § 125.226(b)(1) and 

Appendix D to part 125. We had no 

reason for excluding these airplanes. 

While we realize that they are older 

airplanes, many of the parameters 

included in the proposed filtering 

restriction are among the 18 required to 

be recorded by these airplanes. These 

airplanes are now included in this 

SNPRM. We anticipate that some of the 

equipment installed on these airplanes 

may not be sophisticated enough to 

allow filtering. However, we do not 

know the exact composition of this fleet, 

and have determined that it is 

appropriate for airplanes covered by 

§ 121.344(b)(1) or § 125.226(b)(1) to be 

subject to the proposed analysis to 

ensure that they are not filtering 

restricted parameters. 

We are not including the older 

airplanes operating under § 135.152(a) 

or (b) because of the complex nature of 

the applicability in those paragraphs. 

The applicability of the filtering 

regulations for newer part 135 airplanes 

remains as proposed in the 2006 NPRM. 

3. Part 129 Airplanes 

Airbus stated that aircraft operating 

under part 129 (Foreign Air Carriers and 

Foreign Operators operating 

N-registered aircraft engaged in 

Common Carriage) may also be affected 

because § 129.20 references § 121.344 

for applicability. Airbus concluded that 

omitting these airplanes from the cost/ 

benefit analysis will result in more 

significant costs. 

While the proposed rule would affect 

certain airplanes operating under part 

129, the applicability of § 129.20 is 

limited to those airplanes registered in 

the United States. We included these 

airplanes in the cost/benefit analysis for 

the 2006 NPRM and in the cost/benefit 

analysis for this SNPRM. 

4. Part 91 Airplanes 

Both the NATA and the GAMA noted 

that the proposed regulation would have 

a significant cost and burden impact on 

the owners and operators of aircraft that 

are equipped with DFDRs as required 

under § 91.609. They each estimated 

that more than 5,500 aircraft would be 

affected, resulting in a $9,000,000 

impact on the general aviation 

community for no measurable benefit. 

We did not propose any change to 

part 91 in the 2006 NPRM. The 

proposed regulations apply only to 

airplanes operated under parts 121, 125 

or 135. Part 91 certificate holders would 

not be affected by these regulations. 

F. Compliance Time 

The proposed rule included a 

compliance time of four years for 

airplanes manufactured up to 18 months 

after the effective date of a final rule. 

Airbus, FedEx and Frontier Airlines 

asked for additional time to develop 

design solutions, manufacture parts, and 

perform modifications during scheduled 

heavy maintenance checks. 

Airbus stated that it would need 18–

24 months to develop new system 

analog to digital converter (SDAC) or 

electronic instrument system (EIS) 

software, plus an additional 2–3 years to 

complete the retrofit of over 800 

airplanes. Frontier Airlines, which 

operates 34 Airbus airplanes, asked for 

at least eight years because Airbus has 

not designed or communicated a 

proposed solution for EIS–1 equipped 

airplanes. 

FedEx proposed a compliance date of 

five years from the release of the new 

rule to coincide with the heavy 

maintenance check cycle for its A300/ 

A310s (about 30 months). 

The 2006 NPRM proposed that 

aircraft manufactured 18 months after 

the effective date of the rule be 

compliant at manufacture. Boeing asked 

that we provide a compliance date 

rather than a compliance period 

associated with a date of manufacture 

because Boeing does not normally 

provide a date of manufacture. Boeing 

also suggested that 18 months is 

insufficient to assess airplane designs, 

coordinate with parts suppliers if 

changes are needed, and incorporate 

any changes into production. 

The compliance time proposed in this 

SNPRM is no longer tied to an airplane’s 

date of manufacture. For those 

parameters that are restricted from 

filtering, a certificate holder has the 

choice of removing the filtering, or 

demonstrating by test and analysis that 

an original sensor signal value can be 

reconstructed from the filtered, recorded 

signal data. Verifying that there is no 

filtering occurring on the restricted 

parameters, or finding filtering and 

modifying the affected parameters is 

required within 4 years. 

If a certificate holder discovers signal 

filtering and chooses to show that the 

data can be reconstructed by test and 

analysis, the compliance period begins 

six months after the rule’s effective date, 

when an aircraft goes in for its next 

scheduled heavy maintenance check. If 

an airplane in for a heavy maintenance 

check has a DFDR system identical to 

other airplanes in a certificate holder’s 

fleet, compliance by test and analysis 

need only be submitted once for the 

entire group. This compliance schedule 

is intended to allow the FAA to 

determine that the submitted 

procedures are repeatable, but still 

allow time for other compliance action 

(within the four years) if repeatability 

cannot be accomplished. 

A certificate holder that is unable to 

show repeatability for any restricted 

parameter would be required to modify 

the parameter to eliminate signal 

filtering before the four year compliance 

period ends. 

We believe these compliance times 

provide ample opportunity for 

certificate holders to make choices 

about their equipment and conduct the 

necessary analyses during a regularly 

scheduled heavy maintenance visit, 

reducing potential impact on scheduled 

operations or additional out-of-service 

time. In addition, a four-year 

compliance time is consistent with FAA 

actions in previous flight recorder 

regulations and has been supported by 

the industry as an adequate time for 

retrofit and for introducing new system 

designs into aircraft being 

manufactured. 

G. Cost/Benefit Analysis 

1. Inspection Cost 

Boeing disagreed with the estimated 

cost of $75 per airplane to assess an FDR 

system for filtering. While the 2006 

NPRM suggests that this assessment is 

the responsibility of the operators, 

Boeing stated that it expects the 

operators to request Boeing to research 

individual FDR systems installed on its 

airplanes. Boeing stated that it will take 

a significant number of work hours to 

assess each airplane because of the 

complexity of unique configurations 

with interfacing systems. Out-ofproduction airplanes will also require 

more than one hour per airplane 

because of the research involved in 

determining the data frame and the 

service bulletins that have been 

incorporated over the years. 

Airbus agreed with Boeing that our 

estimated cost of $75 is too low. 

The commenters misunderstood the 

underlying factor in our estimate of this 

cost. In the 2006 NPRM, we averaged 

the cost of these assessments over the 

entire fleet of approximately 14,000 

affected airplanes. We did not mean to 

imply that each individual airplane 

would require a unique evaluation or 

that such an evaluation would cost $75. 

Rather, a manufacturer would assess its 

airplane models and apply the analysis 

of each model to as many of its 

airplanes as have the same DFDR 


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system. We assumed that there was a 

high-level of similarity of DFDR systems 

within individual airplane models and 

a few analyses per model would suffice 

for most of the fleet. On that basis, our 

estimated total cost was about $1 

million to determine whether filtering 

was occurring. 

2. A300/A310 Retrofit Cost 

In the Initial Regulatory Evaluation 

for the 2006 NPRM, we stated that 

Airbus reported that it had already 

completed the engineering analyses to 

modify the A300/A310 series airplane. 

Consequently, there would be no 

incremental engineering costs for these 

models because those costs have already 

been expended. 

In its comment, Airbus stated that the 

engineering analysis to modify the 

A300/310 has not been completed. 

Therefore, we need to add these costs 

(about $750,000) to our cost analysis. 

Airbus also stated that it has not yet 

calculated the cost to modify the A320 

family of airplanes. Frontier Airlines 

added that this lack of analysis is the 

reason it is unable to comment on the 

costs estimated for the proposed 

rulemaking. 

As we stated in the proposed rule, we 

do not consider the cost of compliance 

with Appendix M for Airbus 300/310 

and the A320 family to be a cost of this 

rule. Even though the 1997 regulations 

do not specifically prohibit filtering, the 

Flight 587 investigation revealed that 

the airplanes’ recorded data did not 

meet the accuracy performance 

requirements of Appendix M. The cost 

of compliance for Airbus airplanes is 

the cost of complying with Appendix M, 

which has been in effect since 1997. 

This would be true whether we had ever 

proposed a change regarding filtering. 

The added compliance option of this 

SNPRM does not change these 

circumstances. The recorded data for 

each parameter must meet all of the 

requirements of Appendix M, whether 

the data are recorded unfiltered or are 

filtered and can be reconstructed. 

3. Risk Assessment 

The RAA considers the FAA’s Safety 

Management System (SMS) to be 

applicable to all rulemaking activities. 

Given the low accident rate of 

commercial air carriers over the last 10 

years, the RAA does not consider this 

rulemaking to be justified under the 

SMS. The RAA considered the 

likelihood that an accident in which the 

elimination of signal filtering will make 

a difference in the accident’s 

investigation to be extremely remote. 

The RAA concluded that the FAA 

should conduct a risk assessment before 

issuing a final rule. 

The SMS initiative is still under 

development at the FAA, and it will 

cover much more than proposed 

regulatory changes. There is nothing to 

suggest that it will require every 

rulemaking be subject to a full risk 

analysis, and those that are will most 

likely be chosen on a case-by-case basis. 

Regarding this rule, we already know 

that signal filtering has complicated 

accident investigations, and allowing 

filtering to continue is unacceptable. 

Further, until we get more information 

on the estimated costs of this rule and 

the option added in this SNPRM, we 

would not have sufficient data to 

support a risk analysis. 

4. Benefits Not Demonstrated 

The ATA questioned the basis for the 

proposed rulemaking. The ATA stated 

that this rulemaking is not based on a 

demonstrated inability of existing FDRs 

to realize their intended function, which 

is to aid in the determination of the 

probable cause of an accident. 

The NTSB has repeatedly stated that 

filtered flight data have hampered its 

investigations. This issue is of such a 

concern to the NTSB that it has issued 

several recommendations to address it 

specifically. The NTSB has found that 

existing FDRs are unable to fulfill their 

intended function when filtered flight 

data are recorded. We agree with the 

NTSB’s findings. 

The ATA also indicated that prior 

experience with filtered flight data does 

not represent a pressing aviation safety 

need. Other than the loss of Flight 587, 

prior filtering events occurred 14 to 15 

years ago with no resulting injuries. 

We cannot discount the loss of Flight 

587 (and its 260 passengers and crew) 

and the lessons we learned from 

investigation of that accident. Whenever 

an accident occurs, it is critical that the 

NTSB has accurate flight data to 

determine the probable cause of the 

accident. In addition, we need accurate 

data to determine whether we need to 

take action to prevent future accidents. 

We know that there are hundreds of 

airplanes operating with DFDR systems 

that filter critical flight data before it is 

recorded. We will not allow that 

situation to continue when the known 

result is data that cannot be accurately 

replicated when needed for accident 

investigation. The risk continues to 

exist. More importantly, such signal 

filtering has hidden the underlying 

problem that the recorded data are not 

in compliance with the accuracy 

requirements of Appendix M, which 

went into effect in 1997. 

The ATA also noted that Airbus has 

developed algorithm-based methods for 

reconstructing the filtered signals in its 

airplanes to establish actual system 

performance histories. These methods 

should be sufficient to prevent the 

potential for filtered data to impede any 

future investigation, minimizing the 

value of the proposed rule. 

The NTSB has never been satisfied 

with the results of the ‘reverse filtered’

data from the Flight 587 accident 

investigation, nor the time it took to get 

it. The method used has never been 

subject to FAA review or approval, and 

without this proposed rule, the use of 

reconstructed data is not authorized. 

There is also no regulatory requirement 

to develop or maintain proper 

methodologies for data reconstruction. 

The Flight 587 accident demonstrated a 

deficiency in our own flight recorder 

rules that cannot be satisfactorily 

addressed by after-the-fact efforts. 

H. Harmonization 

Three commenters (Airbus, Boeing, 

Embraer) expressed the need for 

harmonization of FAA requirements 

with those of other civil aviation 

authorities. The commenters raised 

concerns that industry will be faced 

with conflicting requirements, high 

costs of compliance, and potentially 

complex system designs in an attempt to 

satisfy two different sets of regulations. 

They view harmonization as an 

opportunity to standardize flight 

recorder requirements. 

The FAA is working with the 

European Aviation Safety Agency 

(EASA), ICAO and other non-U.S. 

regulatory authorities to harmonize our 

regulations whenever possible. While 

we support harmonization, our efforts 

regarding filtered flight data are 

considerably ahead of other aviation 

authorities worldwide. Since the NTSB 

has already encountered problems, we 

are moving forward with our efforts to 

correct known deficiencies and forestall 

future problems that might be corrected 

by new designs. We remain open to 

assisting other aviation authorities that 

seek to benefit from our discoveries and 

experience with these regulatory efforts. 

I. Propriety of Change to Part 121 

While AirTran supported the intent of 

the 2006 NPRM, it opposed using the 

operating rules of part 121 to impose 

technical requirements unique to a 

specific model of aircraft or unique to 

the design of an aircraft system. AirTran 

believes the proposed requirement to be 

outside the scope of part 121. AirTran 

noted that operators do not typically 

install or alter components that affect 

filtering of DFDR data, and data filtering 


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is a function of the DFDR system design 

and not the responsibility of the 

operators. 

While we understand AirTran’s 

position, DFDR requirements are a part 

of the operating rules. The only effective 

way to implement changes to currently 

operating aircraft are through the 

operating rules. For the most part, our 

certification rules are not retroactive. 

Since the parameters that we are 

specifying as restricted exist only in 

parts 121, 125 and 135, a change to part 

25 would be confusing while not 

changing the impact on certificate 

holders. 

AirTran also stated that it would like 

to see the flight recorder rules of part 

121, 125, and 135 reviewed to redefine 

responsibility based on capability. 

AirTran suggested that information such 

as correlation of parameters at 

certification, filtering of parameters, and 

other data that are beyond the 

capabilities of most operators be placed 

in a special federal aviation regulation 

(SFAR). This could be accomplished by 

the manufacturers who have the 

expertise and data to provide the 

analysis. The results of this analysis 

should come to the operators in the 

form of FAA approved instructions for 

continued airworthiness to ensure 

continued compliance, similar to 

§ 121.370(b) regarding fuel tanks. 

We appreciate AirTran’s input. Such 

an approach would, as suggested, 

require considerable rulemaking and an 

assessment of the impact on 

manufacturers for equipment that may 

vary considerably between certificate 

holders. While we will keep AirTran’s 

comments under advisement, we have 

determined that there is an immediate 

need to correct the current problems 

and prevent future ones. The comments 

to the proposed rule also indicate that 

aircraft manufacturers know their roles 

in compliance. 

J. Conflicts With Other Proposed DFDR 

Regulations 

The ATA stated that the changes 

proposed in the 2006 NPRM are not 

coordinated with other flight recorder 

changes proposed separately. The ATA 

stated that the proposed filtering 

changes are redundant of the changes 

proposed in our NPRM entitled 

‘‘Revisions to Cockpit Voice Recorder 

and Digital Flight Data Recorder 

Regulations’’ (70 FR 9752; February 28, 

2005). The ATA noted that seven of the 

parameters that we proposed to have 

increased recording rates in the 2005 

NPRM are also proposed to be restricted 

from filtering. The ATA stated that both 

changes are not ‘‘needed to derive flight 

control histories or accomplish the 

intended purpose of FDRs.’’

The ATA also stated that the filtering 

proposal is not fully coordinated with 

the SNPRM entitled ‘‘Revisions to 

Digital Flight Data Recorder Regulations 

for Boeing 737 Airplanes and for Part 

125 Operators’’ (71 FR 52382; 

September 5, 2006). The ATA reiterated 

its disagreement with the proposed rule 

for 737s, and stated that if the FAA goes 

forward with both rules, the compliance 

times must be coordinated for 737s. The 

ATA is also concerned with the impact 

of filtering changes on older 737s that 

only record 18 parameters, and were 

specifically not required to upgrade 

equipment in the 1997 rule changes. 

We disagree in both instances. The 

proposed rule for Boeing 737 airplanes 

would add three additional parameters 

that are not part of this rule, and that 

proposed rule does not speak to 

filtering. As to their coordination, both 

rules are proposals, with one addressing 

the addition of three parameters on one 

specific model of airplane, and this rule 

addressing the propriety of filtering 

certain parameters on all airplane 

models. The FAA will consider the 

filtering status of the proposed 737 

parameters when a final rule is 

promulgated. 

Similarly, the 2005 NPRM addressed 

many topics, but filtering was not one 

of them. Both data sampling rates and 

filtering affect what gets recorded and 

can play major roles in data integrity 

and unrecoverable loss of data. But the 

two factors are separate and the 

proposed solutions are not inconsistent. 

The ATA states that both modifications 

are not necessary to achieve the 

‘‘intended purposes of FDRs’’ but does 

not state what it sees as this purpose. 

History has already shown that filtered 

signals can raise serious questions in an 

accident investigation. It is also 

accepted that lower sampling rates 

provide much less reliable data. While 

the two characteristics of recorded data 

are related, they are not as inextricably 

intertwined as the comment suggests. 

The two proposals result from different 

problems and analyses, and reflect 

upgrades in technology that were not 

anticipated when the previous 

regulations were written. 

K. Exemption Request 

The RAA asked that we add a 

provision that allows for deviations for 

the current fleet ‘‘upon approval by the 

Administrator.’’ The RAA was 

unconvinced that, given what the NTSB 

now knows about the characteristics of 

the Airbus FDR parameters, the Board 

would be unable to successfully and 

timely complete an investigation of a 

future accident on an Airbus airplane 

that filters data. The RAA does not 

support a retrofit program for any 

aircraft type until the characteristics of 

the filtered data are known to be 

sufficiently nonresponsive. The RAA’s 

proposal would allow a certificate 

holder that has a deviation to avoid a 

costly retrofit if the deviation is 

considered minor and would not hinder 

a future NTSB accident investigation. 

We disagree with the RAA’s premise 

that the NTSB would be able today to 

complete a timely and comprehensive 

accident investigation of an Airbus 

airplane that filters data. While 

significant work was put into data 

reconstruction during the Flight 587 

investigation, the Board has never stated 

its satisfaction with the reconstruction. 

In addition, Airbus has never been 

required to formalize the analysis or 

results or maintain any data 

reconstruction technique. Nor can we 

support the inclusion of some 

unspecified deviation that would allow 

for an incalculable number of different 

flight recorder system changes that 

would only worsen the problem of data 

reconstruction from individual 

airplanes. 

L. Relationship to the 1997 Regulations 

The ATA submitted a lengthy 

comment on what it considers the effect 

of the 1997 rule. While the ATA 

correctly concluded that the 1997 rule 

does not specifically prohibit filtering, it 

is not clear how the ATA connected this 

rule to the amount of data being 

recorded, or how it could provide ‘‘more 

valuable raw data.’’

We are unable to respond to this 

because we do not understand the 

connection the ATA is trying to make 

between filtering and recording greater 

amounts of data. The FAA has never 

made any correlation between filtering 

and the amount of data being recorded, 

nor was it addressed in the 1997 rule. 

Airbus noted that the preamble 

language to the 1997 rule says ‘‘the 

standards proposed are harmonized 

with the current JAR–OPS, which will 

be based on ED–55 standards.’’ Airbus 

commented that the ED–55 

recommendation to correlate recorded 

data to flight deck display led it to 

record filtered rudder data. 

We believe this is Airbus’s 

interpretation of its compliance with 

ED–55. Airbus appears to have 

concluded that the recorded rudder data 

must be the same ‘‘smoothed’’ data that 

are displayed in the cockpit, and that to 

be correlated, the data must be filtered. 

However, correlation does not require 

that identical data be recorded and 

displayed in the cockpit. Correlation 


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requires a mathematical relationship 

between the displayed and recorded 

data, not that recorded data be filtered. 

Although the 1997 rule language does 

not specifically prohibit filtering, in the 

case of Flight 587, the data recorded 

were not in compliance with the 

accuracy requirements of part 121 

Appendix M. This failure to meet 

Appendix M, and not the fact that the 

data were filtered, has always been the 

compliance issue following the Flight 

587 investigation. 

III. Regulatory Notice and Analysis 

Paperwork Reduction Act 

This proposal contains the following 

new information collection 

requirements. As required by the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3507(d)), the FAA has submitted 

the information requirements associated 

with this proposal to the Office of 

Management and Budget for its review. 

Title: Filtered Flight Data. 

Summary: The FAA is amending its 

proposal to prohibit the filtering of some 

original flight recorder sensor signals. 

Comments to the notice of proposed 

rulemaking published on November 15, 

2006, and changes in available 

technology have caused us to reexamine our position on data filtering. 

We are now proposing that certain 

critical data parameters may be filtered 

if a certificate holder can show that the 

data can be accurately reconstructed. 

This proposed rule would improve the 

accuracy and quality of the data 

recorded on digital flight data recorders 

while giving aircraft designers and 

operators more flexibility in system 

design and operation where allowable, 

including an option to filter data. 

Use of: This information collection 

supports the Department of 

Transportation’s strategic goals on safety 

and security. If a certificate holder 

chooses to show that filtered data from 

certain critical data parameters can be 

accurately reconstructed, the certificate 

holder must maintain documentation of 

the procedure required to perform the 

reconstruction. This will allow the FAA 

and accident investigators to access 

accurate data promptly. 

Respondents (including number of): 

The likely respondents to this proposed 

information requirement are those 

certificate holders that use a flight data 

recorder system that filters the data from 

any of the critical data parameters. 

Frequency: The proposal would 

require operators to have a one-time 

engineering analysis performed (spread 

over two years) to evaluate whether the 

DFDR systems on their airplanes record 

certain flight data parameter signals 

after they have been filtered. 

Annual Burden Estimate: Since the 

one-time engineering analysis will be 

performed on individual type certified 

DFDR systems, we estimate that there 

would be 16 of these engineering 

analyses that would be completed and 

that each would require an average of 16 

hours of engineering time to complete 

and submit to the FAA. 

The total burden is estimated as 

follows: 

Documents required to show compliance with the Final Rule One-time hours 

Present value 

discounted cost 

(in $2008) 

Report to FAA of an Engineering Analysis of whether Certain Flight Data Parameters Are Being Filtered before Being Recorded ................................................................................................................... 256 $28,160 

Total ...................................................................................................................................................... 256 28,160 

This rule will result in a minimal 

annual recordkeeping and reporting 

burden. 

The agency is soliciting comments 

to—

(1) Evaluate whether the proposed 

information requirement 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 collecting 

information on those who are to 

respond, including by use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology. 

Individuals and organizations may 

send comments on the information 

collection requirement by November 13, 

2008, and should direct them to the 

address listed in the Addresses section 

at the beginning of this preamble. 

Comments also should be submitted to 

the Office of Information and Regulatory 

Affairs via facsimile at (202) 395–6974. 

According to the 1995 amendments to 

the Paperwork Reduction Act (5 CFR 

1320.8(b)(2)(vi)), an agency may not 

collect or sponsor the collection of 

information, nor may it impose an 

information collection requirement 

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 the Office of Management 

and Budget approves it. 

International Compatibility 

In keeping with U.S. obligations 

under the Convention on International 

Civil Aviation, it is FAA policy to 

comply with International Civil 

Aviation Organization (ICAO) Standards 

and Recommended Practices to the 

maximum extent practicable. The FAA 

has determined that there are no ICAO 

Standards and Recommended Practices 

that correspond to these proposed 

regulations. 

Regulatory Evaluation, Regulatory 

Flexibility Determination, International 

Trade Impact Assessment, and 

Unfunded Mandates Assessment 

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 benefits of the 

intended regulation justify its costs. 

Second, the Regulatory Flexibility Act 

of 1980 (Pub. L. 96–354) requires 

agencies to analyze the economic 

impact of regulatory changes on small 

entities. Third, the Trade Agreements 

Act (Pub. L. 96–39) prohibits agencies 

from setting standards that create 

unnecessary obstacles to the foreign 

commerce of the United States. In 

developing U.S. standards, the Trade 

Act requires agencies to consider 

international standards and, where 

appropriate, that they be the basis of 

U.S. standards. Fourth, the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4) 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 


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State, local, or tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more annually (adjusted 

for inflation with base year of 1995). 

This portion of the preamble 

summarizes the FAA’s analysis of the 

economic impacts of this proposed rule. 

Department of Transportation Order 

DOT 2100.5 prescribes policies and 

procedures for simplification, analysis, 

and review of regulations. If the 

expected cost impact is so minimal that 

a proposed or final rule does not 

warrant a full evaluation, this order 

permits that a statement to that effect 

and the basis for it to be included in the 

preamble if a full regulatory evaluation 

of the cost and benefits is not prepared. 

Such a determination has been made for 

this proposed rule. The reasoning for 

this determination follows: 

This SNPRM proposes to allow 

certain parameters to be filtered if the 

certificate holder can show that the data 

can be reconstructed. The expected 

economic impact would be a minimal 

cost with positive net benefits and, 

therefore, a regulatory evaluation was 

not prepared. To estimate the costs for 

any final rule, we request specific 

economic data in response to the 

questions in this section. 

The FAA has, therefore, determined 

that this proposed rule would not be a 

‘‘significant regulatory action’’ as 

defined in section 3(f) of Executive 

Order 12866, and would not be 

‘‘significant’’ as defined in DOT’s 

Regulatory Policies and Procedures. 

Aviation Industry Affected 

The proposed rule would apply to all 

aircraft operated under parts 121, 125, 

and 135 and required to have a DFDR 

system. Aircraft operated under other 

FAR parts would not be affected. 

Benefit and Cost Methodology 

The baseline for determining the 

proposed rule’s benefits and costs is that 

each affected aircraft must be in 

compliance with appendix B or M of 

part 121, appendix D or E of part 125, 

or appendix F of part 135. 

The first step in assessing costs of this 

SNPRM is for each certificate holder to 

determine whether any of its aircraft are 

filtering DFDR data before it is recorded. 

For purposes of filtering, we have 

divided the 88 required parameters into 

two groups: 

• Those parameters that may not be 

filtered unless the certificate holder can 

demonstrate that the original sensor 

signal data (values) can be reconstructed 

using a valid, repeatable procedure (1–

7, 9, 11–18, 26, 32, 42, 43, 68, 70, 77, 

and 88); and 

• Those parameters that may be 

filtered without this demonstration as 

long as the accuracy requirements are 

met (8, 10, 19–25, 27–31, 33–41, 44–67, 

69, 71–76, and 78–87). 

A certificate holder must first 

determine whether any of the original 

sensor signal data from any of the 

parameters in the first group are filtered 

before being recorded. The cost of this 

determination is a cost of this proposed 

rule. 

If no parameters in the first group are 

being filtered, no further action is 

required, and the only cost is reporting 

this status to the FAA. 

If any of the parameters in the first 

group are being filtered, the certificate 

holder must determine whether the 

recorded data meet the accuracy 

requirements of the applicable 

appendix. If the requirements are met, 

no further action is necessary, and the 

only cost attributable to this rule is to 

report the status to the FAA. 

If the requirements of the applicable 

appendix are not being met, the 

allocation of costs will depend on the 

option chosen by the certificate holder 

to address the non-compliance. If a 

certificate holder chooses to remove the 

filtering in order to comply with 

Appendix M, the cost is attributable to 

compliance with the 1997 rule. If a 

certificate holder chooses to show by 

test and analysis that the data can be 

acceptably reconstructed, the cost is 

attributable to this proposed rule 

because it is a new option in this 

SNPRM. We are requesting estimates of 

the costs of these two options and their 

expected use. 

Benefits 

The benefit of this proposed rule 

would be to make accurate flight data 

more quickly and unambiguously 

available to accident investigators. 

Inaccurate data have been shown to 

delay accident analysis, and could 

suggest unnecessary corrective action. 

These were experienced during the 

Flight 587 accident investigation. 

Benefit Cost Analysis 

We believe that the SNPRM would 

provide a less costly means than the 

2006 NPRM for certificate holders to 

address compliance with the applicable 

appendix. It will also provide accident 

investigators with the more accurate and 

less ambiguous data necessary to 

determine the causes of airplane 

accidents. 

To estimate the costs of a final rule, 

we need data on the costs of complying 

with this SNPRM. We are requesting the 

following information, including any 

supporting documentation: 

1. The aircraft makes, models and 

series in your fleet. 

2. The number of each aircraft make, 

model and series in your fleet. 

3. By aircraft make, model and series, 

how many type certificated DFDR 

systems are installed in your aircraft. 

4. For each installed DFDR system, by 

characteristics, determine the parameter 

numbers in the first group that are 

filtered before being recorded. For any 

filtered parameter, which do not meet 

the accuracy requirements of Appendix 

B or M (or Appendix D or E or 

Appendix F)? 

5. For the information requested in 

#4, do you have the technical capability 

to determine the characteristics yourself 

or is outside technical expertise 

required? How many engineering hours 

would be needed to determine whether 

the DFDR system is recording filtered 

flight data for the first group of 

parameters? What other costs would be 

required for this analysis? 

6. For each installed DFDR system 

that records filtered data for the first 

group of parameters (the data for which 

do not meet either Appendix B or M, 

Appendix D or E or Appendix F), how 

much would it cost to remove the 

filtering? 

7. For each installed DFDR system 

that records filtered data for the first 

group of parameters (the data for which 

do not meet either Appendix B or M, 

Appendix D or E or Appendix F), how 

much would it cost to develop and 

accomplish the tests and analyses 

required to comply with the 

reconstruction option proposed in this 

SNPRM? 

Regulatory Flexibility Analysis 

The Regulatory Flexibility Act of 1980 

(Pub. L. 96–354) (RFA) establishes ‘‘as a 

principle of regulatory issuance that 

agencies shall endeavor, consistent with 

the objectives of the rule and of 

applicable statutes, to fit regulatory and 

informational requirements to the scale 

of the businesses, organizations, and 

governmental jurisdictions subject to 

regulation. To achieve this principle, 

agencies are required to solicit and 

consider flexible regulatory proposals 

and to explain the rationale for their 

actions to assure that such proposals are 

given serious consideration.’’ The RFA 

covers a wide range of small entities, 

including small businesses, not-forprofit organizations, and small 

governmental jurisdictions. 

Agencies must perform a review to 

determine whether a rule will have a 

significant economic impact on a 

substantial number of small entities. If 

the agency determines that it will, the 

agency must prepare a regulatory 


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47866 Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Proposed Rules 

flexibility analysis as described in the 

RFA. 

However, if an agency determines that 

a rule is not expected to have a 

significant economic impact on a 

substantial number of small entities, 

section 605(b) of the RFA provides that 

the head of the agency may so certify 

and a regulatory flexibility analysis is 

not required. The certification must 

include a statement providing the 

factual basis for this determination, and 

the reasoning should be clear. 

While we have only limited 

information on the costs of this 

proposed rule, that information suggests 

that the rule would be unlikely to have 

a significant impact on a substantial 

number of small entities. We are 

specifically requesting information 

regarding the effect on small entities to 

assist in our final analysis. 

Therefore, the Acting Administrator 

certifies that this proposed rule would 

not have a significant economic impact 

on a substantial number of small 

entities. 

International Trade Analysis 

The Trade Agreements Act of 1979 

(Pub. L. 96–39) prohibits Federal 

agencies from establishing any 

standards or engaging in 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 for 

U.S. standards. The FAA has assessed 

the effects of this SNPRM and notes that 

its purpose is to ensure the safety of the 

American public and thus the proposed 

rule is not considered as creating an 

unnecessary obstacle. 

Unfunded Mandates Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4) 

requires each Federal agency to prepare 

a written statement assessing the effects 

of any Federal mandate in a proposed or 

final agency rule that may result in an 

expenditure of $100 million or more 

(adjusted annually for inflation with the 

base year 1995) in any one year by State, 

local, and tribal governments, in the 

aggregate, or by the private sector; such 

a mandate is deemed to be a ‘‘significant 

regulatory action.’’ The FAA currently 

uses an inflation-adjusted value of 

$136.1 million in lieu of $100 million. 

The proposed rule does not contain 

such a mandate; therefore, the 

requirements of Title II of the Act do not 

apply. 

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, and, therefore, 

would not have federalism implications. 

Environmental Analysis 

FAA Order 1050.1E identifies FAA 

actions that are categorically excluded 

from preparation of an environmental 

assessment or environmental impact 

statement under the National 

Environmental Policy Act in the 

absence of extraordinary circumstances. 

The FAA has determined this proposed 

rulemaking action qualifies for the 

categorical exclusion identified in 

Chapter 3, paragraph 312f and involves 

no extraordinary circumstances. 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use 

The FAA has analyzed this SNPRM 

under Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use (May 18, 2001). We 

have determined that it is not a 

‘‘significant energy action’’ under the 

executive order because it is not a 

‘‘significant regulatory action’’ under 

Executive Order 12866, and it is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. 

Additional Information 

Comments Invited 

The FAA invites interested persons to 

participate in this rulemaking by 

submitting written comments, data, or 

views. We also invite comments relating 

to the economic, environmental, energy, 

or federalism impacts that might result 

from adopting the proposals in this 

document. The most helpful comments 

reference a specific portion of the 

proposal, explain the reason for any 

recommended change, and include 

supporting data. To ensure the docket 

does not contain duplicate comments, 

please send only one copy of written 

comments, or if you are filing comments 

electronically, please submit your 

comments only one time. 

We will file in the docket all 

comments we receive, as well as a 

report summarizing each substantive 

public contact with FAA personnel 

concerning this proposed rulemaking. 

Before acting on this proposal, we will 

consider all comments we receive on or 

before the closing date for comments. 

We will consider comments filed after 

the comment period has closed if it is 

possible to do so without incurring 

expense or delay. We may change this 

proposal in light of the comments we 

receive. 

Proprietary or Confidential Business 

Information 

Do not file in the docket information 

that you consider to be proprietary or 

confidential business information. Send 

or deliver this information directly to 

the person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

document. You must mark the 

information that you consider 

proprietary or confidential. If you send 

the information on a disk or CD ROM, 

mark the outside of the disk or CD ROM 

and also identify electronically within 

the disk or CD ROM the specific 

information that is proprietary or 

confidential. 

Under 14 CFR 11.35(b), when we are 

aware of proprietary information filed 

with a comment, we do not place it in 

the docket. We hold it in a separate file 

to which the public does not have 

access, and we place a note in the 

docket that we have received it. If we 

receive a request to examine or copy 

this information, we treat it as any other 

request under the Freedom of 

Information Act (5 U.S.C. 552). We 

process such a request under the DOT 

procedures found in 49 CFR part 7. 

Regulations Affecting Intrastate 

Aviation in Alaska 

Section 1205 of the FAA 

Reauthorization Act of 1996 (110 Stat. 

3213) requires the Administrator, when 

modifying regulations in title 14 of the 

CFR in a manner affecting intrastate 

aviation in Alaska, to consider the 

extent to which Alaska is not served by 

transportation modes other than 

aviation, and to establish appropriate 

regulatory distinctions. Because this 

proposed rule would apply to the 

certification of future designs of 

transport category airplanes and their 

subsequent operation, it could, if 

adopted, affect intrastate aviation in 

Alaska. The FAA, therefore, specifically 

requests comments on whether there is 

justification for applying the proposed 

rule differently in intrastate operations 

in Alaska. 

Availability of Rulemaking Documents 

You can get an electronic copy of 

rulemaking documents using the 

Internet by—

1. Searching the Federal eRulemaking 

Portal (http://www.regulations.gov); 


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Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Proposed Rules 47867 

2. Visiting the FAA’s Regulations and 

Policies Web page at http:// 

www.faa.gov/regulations_policies/; or 

3. Accessing the Government Printing 

Office’s Web page at http:// 

www.gpoaccess.gov/fr/index.html. 

You can also get a copy by sending a 

request to the Federal Aviation 

Administration, Office of Rulemaking, 

ARM–1, 800 Independence Avenue, 

SW., Washington, DC 20591, or by 

calling (202) 267–9680. Make sure to 

identify the docket number, notice 

number, or amendment number of this 

rulemaking. 

List of Subjects in 14 CFR Part 121, 125, 

and 135 

Air carriers, Aircraft, Aviation safety, 

Safety, Transportation. 

The Proposed Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend Chapter I of Title 14, 

Code of Federal Regulations, as follows: 

PART 121—OPERATING 

REQUIREMENTS: DOMESTIC, FLAG, 

AND SUPPLEMENTAL OPERATIONS 

1. The authority citation for part 121 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 1153, 40101, 

40102, 40103, 40113, 41721, 44105, 44106, 

44111, 44701–44717, 44722, 44901, 44903, 

44904, 44906, 44912, 44914, 44936, 44938, 

46103, 46105. 

2. Amend part 121 by adding a new 

§ 121.346 to read as follows: 

§ 121.346 Flight recorders—filtered data. 

(a) A flight data signal is filtered when 

an original sensor signal has been 

changed in any way, other than changes 

necessary to: 

(1) Accomplish analog to digital 

conversion of the signal; 

(2) Format a digital signal to be DFDR 

compatible; or 

(3) Eliminate a high frequency 

component of a signal that is outside the 

operational bandwidth of the sensor. 

(b) An original sensor signal for any 

flight recorder parameter required to be 

recorded under § 121.344 may be 

filtered only if the signal continues to 

meet the requirements of appendix B or 

M of this part, as applicable and—

(1) It represents a parameter described 

in § 121.344 (a)(1) through (7), (9), (11) 

through (18), (26), (32), (42), (43), (68), 

(70), (77), or (88) or the corresponding 

parameter in Appendix B of this part, 

and: 

(i) The certificate holder is able to 

demonstrate by test and analysis that 

the original sensor signal value can be 

reconstructed from the recorded data; 

(ii) The FAA determines that the 

procedure submitted by the certificate 

holder as its compliance with paragraph 

(b)(1)(i) of this section is repeatable; and 

(iii) The certificate holder maintains 

documentation of the procedure 

required to reconstruct the original 

sensor signal value; or 

(2) It represents a parameter described 

in § 121.344(a) (8), (10), (19) through 

(25), (27) through (31), (33) through (41), 

(44) through (67), (69), (71) through (76), 

or (78) through (87). 

(c) Compliance. After [four years from 

effective date], no aircraft flight data 

recording system may filter any 

parameter listed in paragraph (b)(1) of 

this section unless the certificate holder 

possesses test and analysis procedures 

that have been approved by the FAA. 

The procedures must be submitted to 

the FAA no later than the completion of 

the next heavy maintenance check after 

[six months after effective date] but not 

later than [two years after the effective 

date]. 

3. Amend appendix M to part 121 by 

revising the introductory text 

immediately following the appendix 

title to read as follows: 

Appendix M to Part 121—Airplane 

Flight Recorder Specifications 

The recorded values must meet the 

designated range, resolution and accuracy 

requirements during static and dynamic 

conditions. Dynamic condition means the 

parameter is experiencing change at the 

maximum rate available, including the 

maximum rate of reversal. All data recorded 

must be correlated in time to within one 

second. 

* * * * * 

PART 125—CERTIFICATION AND 

OPERATIONS: AIRPLANES HAVING A 

SEATING CAPACITY OF 20 OR MORE 

PASSENGERS OR A MAXIMUM 

PAYLOAD CAPACITY OF 6,000 

POUNDS OR MORE; AND RULES 

GOVERNING PERSONS ON BOARD 

SUCH AIRCRAFT 

4. The authority citation for part 125 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40113, 44701–

44702, 44705, 44710–44711, 44713, 44716–

44717, 44722. 

5. Amend part 125 by adding a new 

§ 125.228 to subpart F to read as 

follows: 

§ 125.228 Flight recorders—filtered data. 

(a) A flight data signal is filtered when 

an original sensor signal has been 

changed in any way, other than changes 

necessary to: 

(1) Accomplish analog to digital 

conversion of the signal; 

(2) Format a digital signal to be DFDR 

compatible; or 

(3) Eliminate a high frequency 

component of a signal that is outside the 

operational bandwidth of the sensor. 

(b) An original sensor signal for any 

flight recorder parameter required to be 

recorded under § 125.226 may be 

filtered only if the signal continues to 

meet the requirements of appendix D or 

E of this part and—

(1) It represents a parameter described 

in § 125.226(a)(1) through (7), (9), (11) 

through (18), (26), (32), (42), (43), (68), 

(70), (77), or (88) or the corresponding 

parameter in Appendix D of this part, 

and: 

(i) The certificate holder is able to 

demonstrate by test and analysis that 

the original sensor signal value can be 

reconstructed from the recorded data; 

(ii) The FAA determines that the 

procedure submitted by the certificate 

holder as its compliance with paragraph 

(b)(1)(i) of this section is repeatable; and 

(iii) The certificate holder maintains 

documentation of the procedure 

required to reconstruct the original 

sensor signal value; or 

(2) It represents a parameter described 

in § 125.226(a)(8), (10), (19) through 

(25), (27) through (31), (33) through (41), 

(44) through (67), (69), (71) through (76), 

or (78) through (87). 

(c) Compliance. After [four years from 

effective date], no aircraft flight data 

recording system may filter any 

parameter listed in paragraph (b)(1) of 

this section unless the certificate holder 

possesses test and analysis procedures 

that have been approved by the FAA. 

The procedures must be submitted to 

the FAA no later than the completion of 

the next heavy maintenance check after 

[six months after effective date] but not 

later than [two years after the effective 

date]. 

6. Amend appendix E to part 125 by 

revising the introductory text 

immediately following the appendix 

title to read as follows: 

Appendix E to Part 125—Airplane 

Flight Recorder Specifications 

The recorded values must meet the 

designated range, resolution and accuracy 

requirements during static and dynamic 

conditions. Dynamic condition means the 

parameter is experiencing change at the 

maximum rate available, including the 

maximum rate of reversal. All data recorded 

must be correlated in time to within one 

second. 

* * * * * 


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47868 Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Proposed Rules 

PART 135—OPERATING 

REQUIREMENTS: COMMUTER AND 

ON DEMAND OPERATIONS AND 

RULES GOVERNING PERSONS ON 

BOARD SUCH AIRCRAFT 

7. The authority citation for part 135 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 41706, 44113, 

44701–44702, 44705, 44709, 44711–44713, 

44715–44717, 44722. 

8. Amend part 135 by adding a new 

§ 135.156 to read as follows: 

§ 135.156 Flight recorders—filtered data. 

(a) A flight data signal is filtered when 

an original sensor signal has been 

changed in any way, other than changes 

necessary to: 

(1) Accomplish analog to digital 

conversion of the signal; 

(2) Format a digital signal to be DFDR 

compatible; or 

(3) Eliminate a high frequency 

component of a signal that is outside the 

operational bandwidth of the sensor. 

(b) An original sensor signal for any 

flight recorder parameter required to be 

recorded under § 135.152 may be 

filtered only if the signal continues to 

meet the requirements of Appendix F of 

this part and—

(1) It represents a parameter described 

in § 135.152(h)(1) through (7), (9), (11) 

through (18), (26), (32), (42), (43), (68), 

(70), (77), or (88), and: 

(i) The certificate holder is able to 

demonstrate by test and analysis that 

the original sensor signal value can be 

reconstructed from the recorded data; 

(ii) The FAA determines that the 

procedure submitted by the certificate 

holder as its compliance with paragraph 

(b)(1)(i) of this section is repeatable; and 

(iii) The certificate holder maintains 

documentation of the procedure 

required to reconstruct the original 

sensor signal value; or 

(2) It represents a parameter described 

in § 135.152(h)(8), (10), (19) through 

(25), (27) through (31), (33) through (41), 

(44) through (67), (69), (71) through (76), 

or (78) through (87). 

(c) Compliance. After [four years from 

effective date], no aircraft flight data 

recording system may filter any 

parameter listed in paragraph (b)(1) of 

this section unless the certificate holder 

possesses test and analysis procedures 

that have been approved by the FAA. 

The procedures must be submitted to 

the FAA no later than the completion of 

the next heavy maintenance check after 

[six months after effective date] but not 

later than [two years after the effective 

date]. 

9. Amend appendix F to part 135 by 

revising the introductory text 

immediately following the appendix 

title to read as follows: 

Appendix F to Part 135—Airplane 

Flight Recorder Specifications 

The recorded values must meet the 

designated range, resolution and accuracy 

requirements during static and dynamic 

conditions. Dynamic condition means the 

parameter is experiencing change at the 

maximum rate available, including the 

maximum rate of reversal. All data recorded 

must be correlated in time to within one 

second. 

* * * * * 

Issued in Washington, DC, on July 24, 

2008. 

Dorenda D. Baker, 

Acting Director, Aircraft Certification Service. 

[FR Doc. E8–18933 Filed 8–14–08; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 402 

[FWS–R9–ES–2008–0093] 

RIN 1018–AT50 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 402 

[0808011023–81048–01] 

RIN 0618–AX15 

Interagency Cooperation Under the 

Endangered Species Act 

AGENCIES: U.S. Fish and Wildlife 

Service, Interior; National Marine 

Fisheries Service, Commerce. 

ACTION: Proposed rule. 

SUMMARY: The United States Fish and 

Wildlife Service (FWS) and the National 

Marine Fisheries Service (NMFS) 

(collectively, ‘‘Services’’ or ‘‘we’’) 

propose to amend regulations governing 

interagency cooperation under the 

Endangered Species Act of 1973, as 

amended (Act). The Services are 

proposing these changes to clarify 

several definitions, to clarify when the 

section 7 regulations are applicable and 

the correct standards for effects analysis, 

and to establish time frames for the 

informal consultation process. 

DATES: We must receive your comments 

by September 15, 2008 to ensure their 

full consideration in the final decision 

on this proposal. 

ADDRESSES: Submit your comments or 

materials concerning this proposed rule 

in one of the following ways: 

(1) Through the Federal eRulemaking 

Portal at www.regulations.gov. Follow 

the instructions on the Web site for 

submitting comments. 

(2) By U.S. mail or hand-delivery to 

Public Comment Processing, Attention: 

1018–AT50, Division of Policy and 

Directives Management, U.S. Fish and 

Wildlife Service, 4401 North Fairfax 

Drive, Suite 222, Arlington, VA 22203. 

We will not accept e-mail or faxes. We 

will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: 

Office of the Assistant Secretary for Fish 

and Wildlife and Parks, 1849 C Street, 

NW., Washington, DC 20240; telephone: 

202–208–4416; or James H. Lecky, 

Director, Office of Protected Resources, 

National Marine Fisheries Service, 1315 

East-West Highway, Silver Spring, MD 

20910; telephone: 301–713–2332. 

SUPPLEMENTARY INFORMATION: 

Background 

The Endangered Species Act of 1973, 

as amended (‘‘Act’’; 16 U.S.C. 1531 et 

seq.) provides that the Secretaries of the 

Interior and Commerce (the 

‘‘Secretaries’’) share responsibilities for 

implementing most of the provisions of 

the Act. Generally, marine species are 

under the jurisdiction of the Secretary of 

Commerce and all other species are 

under the jurisdiction of the Secretary of 

the Interior. Authority to administer the 

Act has been delegated by the Secretary 

of the Interior to the Director of the FWS 

and by the Secretary of Commerce 

through the Administrator of the 

National Oceanic and Atmospheric 

Administration to the Assistant 

Administrator for NMFS. 

There have been no comprehensive 

amendments to the Act since 1988. With 

the exception of two section 7 

counterpart regulations for specific 

types of consultations, there have been 

no comprehensive revisions to the 

implementing section 7 regulations 

since 1986. Since those regulations were 

issued, much has happened: The 

Services have gained considerable 

experience in implementing the Act, as 

have other Federal agencies, States, and 

property owners; there have been many 

judicial decisions regarding almost 

every aspect of section 7 of the Act and 

its implementing regulations; and the 

Government Accountability Office has 

completed reviews of section 7 

implementation. 


rwilkins on PROD1PC63 with PROPOSALS