[Federal Register Volume 65, Number 129 (Wednesday, July 5, 2000)]
[Proposed Rules]
[Pages 41528-41534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16884]



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Part II





Department of Transportation





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Federal Aviation Administration



14 CFR Part 13



Flight Operational Quality Assurance Program; Proposed Rules

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

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 13

[Docket No. FAA-2000-7554; Notice No. 00-07]
RIN 2120-AF04


Flight Operational Quality Assurance Program

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FAA proposes to codify an FAA policy encouraging the 
voluntary implementation of Flight Operational Quality Assurance (FOQA) 
programs and clarifying the circumstances under which information 
obtained from voluntary FOQA programs could be used in enforcement 
actions against air carriers, commercial operators, or airmen. The rule 
would require air carriers participating in FOQA programs to submit 
aggregate FOQA data to the FAA for use in monitoring safety trends. 
Under the proposed rule, the FAA may use aggregate FOQA data as a basis 
to promulgate safety rulemakings or to address situations calling for 
remedial enforcement action, e.g., a lack of qualification on the part 
of an operator or aircraft.

DATE: Comments on this proposal must be submitted on or before October 
3, 2000.

ADDRESSES: Address your comments to the Docket Management system, U.S. 
Department of Transportation Room Plaza 401, 400 Seventh St., SW., 
Washington, DC 20590-0001. You must identify the docket number FAA-
2000-7554 at the beginning of your comments, and you should submit two 
copies of your comments. If you wish to receive confirmation that FAA 
received your comments, include a self-addressed, stamped postcard.
    You may also submit comments through the Internet to http://dms.dot.gov. You may review the public docket containing comments to 
these proposed regulations in person in the Dockets Office between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
Dockets Office is on the plaza level of the NASSIF Building at the 
Department of Transportation at the above address. Also, you may review 
public dockets on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Dr. Thomas Longridge, Flight Standards 
Service, AFS-230, Federal Aviation Administration, 800 Independence 
Avenue, SW., Washington, DC 20591, telephone (703) 661-0260.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested persons are invited to participate in the making of the 
proposed rule by submitting such written data, views, or arguments as 
they may desire. Comments relating to the environmental, energy, 
federalism, or economic impact that might result from adopting the 
proposals in this notice are also invited. Substantive comments should 
be accompanied by cost estimates. Comments should identify the 
regulatory docket or notice number and should be submitted in duplicate 
to the Rules Docket address specified above.
    All comments received, as well as a report summarizing each 
substantive public contact with FAA personnel concerning this proposed 
rulemaking, will be filed in the docket. The docket is available for 
public inspection before and after the comment closing date.
    All comments received on or before the closing date for comments 
specified will be considered by the Administrator before taking action 
on this proposed rulemaking. Comments filed late will be considered as 
far as possible without incurring expense or delay. The proposal 
contained in this notice may be changed in light of comments received.
    Commenters wishing the FAA to acknowledge receipt of their comments 
submitted in response to this notice must include a preaddressed, 
stamped postcard on which the following statement is made: ``Comments 
to Docket No. FAA-2000-7554.'' The postcard will be date stamped and 
mailed to the commenter.

Availability of NPRMs

    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the FAA regulations section 
of the Fedworld electronic bulletin board service (telephone: 703-321-
3339) or the Government Printing Office (GPO)'s electronic bulletin 
board service (telephone: 202-512-1661).
    Internet users may reach the FAA's web page at http://www.faa.gov/avr/arm/nprm/nprm.htm or the GPO's web page at http://www.access.gpo.gov/nara for access to recently published rulemaking 
documents.
    Any person may obtain a copy of this document by submitting a 
request to the Federal Aviation Administration, Office of Rulemaking, 
ARM-1, 800 Independence Ave, SW., Washington, DC 20591, or by calling 
(202) 267-9677. Communications must identify the docket number of this 
NPRM.
    Persons interested in being placed on the mailing list for future 
rules should request from the above office a copy of Advisory Circular 
No. 11-2A, Notice of Proposed Rulemaking Distribution System, which 
describes the application procedure.

Flight Operational Quality Assurance Program Description

    The primary purpose of a Flight Operational Quality Assurance 
Program (FOQA) is the enhancement of air safety. A FOQA program 
involves the routine analysis of flight data generated during line 
operations in order to reveal situations that require corrective action 
and to enable early corrective action before problems occur. To 
institute such a program, airlines would need to develop a system that 
captures flight data, transforms the data into an appropriate format 
for analysis, and generates reports and visualizations to assist 
personnel in analyzing the data. The information and insights provided 
by FOQA programs significantly enhance line operational safety, 
training effectiveness, operational procedures, maintenance and 
engineering procedures, ATC procedures, and airport surface issues.
    Data is collected and aggregated from numerous operations. The 
value of using the aggregate FOQA data greatly exceeds that of single 
flight assessment when trying to determine the root causes of systemic 
problems that need to be corrected. Individual data records are 
typically aggregated along various dimensions (e.g., event category as 
a function of aircraft type, phase of flight, and geographical 
location) to assist the analyst in looking for trends and patterns. 
Aggregation is defined as a transformation process that groups and 
mathematically combines (e.g., count, total, average, standard 
deviation) individual data elements based on some criterion. Each 
aggregation is based on factors of interest to the analyst at a 
particular point in time. For example, the average approach maximum 
rate of descent below 2000 feet by airport by fleet type (event 
category) may be useful to better understand the data once counts of 
related events indicate that this is an area that might be useful to 
study. This analysis may suggest that all fleets are experiencing high 
descent rates at a certain airport or just a specific aircraft type is 
involved. This type of information can be used to pinpoint the 
potential source of a problem and the nature of the corrective action.

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    Under the rule, program participations would submit aggregate FOQA 
data to the FAA. The FAA plans to publish an advisory circular, which 
would provide program participants with guidance on submission 
procedures. In general, it is envisioned that aggregate FOQA date would 
be supplied monthly to the FAA through secure electronic means similar 
to the existing process for submitting automated operations 
specifications. The aggregate data would be reviewed by various 
organizational elements within the FAA to identify trends pertinent to 
the areas of safety oversight or NAS management for which they are 
responsible. In particular, the FAA expects the principal operations 
inspector (POI), his aircrew program managers (APMs), the principal 
maintenance inspector (PMI) and the principal avionics inspector (PAI) 
would monitor trends to identify areas in need of corrective action, if 
any; to review planned strategies for taking corrective action where 
warranted; and to verify that such corrective action has been 
effective. In general, the information obtained from aggregate FOQA 
information would be used to provide an improved basis for agency 
decisions based on objective data from line operations. Periodic 
reviews of trends and lessons learned from the FOQA program will help 
both the airline and FAA inspectors decide where to concentrate future 
safety efforts.

Background

    Since the mid-1940s the civil air transport accident rate has 
significantly decreased. This decrease is due in part to the air 
transport industry's practice of discovering, understanding, and 
eliminating factors that lead to accidents and incidents. For many 
years, industry, the FAA, and the National Transportation Safety Board 
(NTSB) have used information from flight data recorders (FDRs) and 
digital flight data recorders (DFDRs) to identify the causes of 
accidents and to attempt to eliminate those causes systematically.
    Airplanes used in operations conducted under 14 CFR part 121 and 
certain types of aircraft used in operations conducted under parts 91, 
125, and 135 are required to have flight data recorders. Any operator 
who has installed approved flight recorders is required to keep the 
recorded information for at least 60 days after an accident or incident 
requiring immediate notification to the NTSB (14 CFR 91.609(g), 
121.343(i), 125.225(g), and 135.152(e)). The flight data recorder 
information can thus be analyzed to determine causes of an accident or 
incident.
    In the past 10 years, technological advances in cockpit equipment 
and in data analysis have increased the potential for obtaining and 
analyzing information on the flight characteristics of an aircraft 
during its operation. This information can be used to determine the 
causes of an accident. More importantly, it can also be used to obtain 
and analyze on a routine basis data that are recorded in line 
operations in order to prevent an accident. In recent years, many 
countries have developed programs to encourage the routine recordation 
and analysis of operational data on a voluntary basis. This NPRM is 
intended to accomplish the same for the for the United States through 
an FAA-approved FOQA program. In this NPRM, the term ``FOQA program'' 
means an FAA-approved program for the routine collection of in-flight 
operational data by means of a DFDR and the analysis of that data to 
discover trends affecting operational safety. It is hoped that by 
gathering and analyzing this data, the FAA and the aviation industry 
will be able to develop corrective actions, to improve flight crew 
performance, air carrier training programs, operating procedures, air 
traffic control procedures, airport maintenance and design, and 
aircraft operations and design. The key potential safety benefit of 
FOQA is that the routine analysis of flight data would enable the FAA 
and aircraft operators to take early action to prevent accidents. This 
benefit contrasts with the current situation, where the agency and 
industry rely on after-the-fact accident- or incident-driven data 
extraction and analysis used to develop safety fixes to prevent later 
accidents. Because of its capacity to provide early identification of 
safety shortcomings, FOQA offers significant potential for accident 
avoidance.
    In 1995, in response to a recommendation of the Flight Safety 
Foundation, the FAA sponsored a FOQA Demonstration Study. The FOQA 
Demonstration Study has been conducted over the past several years in 
cooperation with four major airlines in the U.S. It has provided 
substantial documentation of the benefits of FOQA. For example, 
analysis of FOQA data has indicated that for domestic operations to 
major U.S. cities, the frequency of approaches for which the rate of 
descent exceeds 1000 feet per minute at 500 feet descent height is 
generally much higher than was realized previously. Analysis further 
determined that there is a correlation between the frequency of 
unstable approaches and specific airport locations. Such information 
has important implications for airline procedures, pilot training, and 
FAA Air Traffic Control procedures. Dissemination of FOQA information 
on this problem to pilots has been effective in reducing the frequency 
of such events. The data available from the Demonstration Study also 
provided a basis for the FAA to modify the approved instrument approach 
procedures for one U.S. airport, and to update the instrument approach 
equipment available at one runway.
    FOQA data also have indicated that the manufacturer's recommended 
maximum speed for a given flap setting in a given aircraft type is 
exceeded more frequently than had been realized previously. Although 
pilots have been required to monitor and report the occurrence of flap 
exceedences for many years, flight crewmembers can miss them because 
they can occur for very brief intervals during the busy approach-to-
landing phases of flight.
    FOQA data have indicated that there are particular procedures and 
maneuvers that warrant increased emphasis in training. For example, 
analysis of FOQA data suggests that more emphasis on the safe and 
proper execution of visual approach maneuvers is needed. This result is 
of interest since the emphasis in pilot training programs previously 
has been primarily on the execution of instrument approach procedures. 
FOQA data indicated, however, that few performance problems are 
occurring with instrument approaches. Results from the Demonstration 
Study at one airline have indicated that the modification of recurrent 
training content to better emphasize the visual approach has produced 
quantifiable improvements in individual performance on that maneuver 
during line operations.
    The FOQA program has been employed by one U.S. airline to create a 
database of wake turbulence events, and the information on how to 
conduct analyses of digital flight data for that purpose has been 
shared with other U.S. airlines.
    FOQA data also have been used to pinpoint runway surface anomalies 
at U.S. airports. The documentation of these anomalies has been 
instrumental in correcting a long-standing problem at one such 
location.
    FOQA data have provided a hitherto unavailable means of 
establishing a database of TCAS alerts, and of documenting specific 
aircraft responses to the occurrence of TCAS events. This type of hard 
data is essential to the integration of TCAS technology with air 
traffic control modernization.

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    FOQA data from two airlines, related to the impact of wind gusts, 
turbulence, and landing on airframe lifespan integrity, has proven to 
be invaluable for use by the FAA for the purpose of updating airframe 
certification standards.
    Results from the Demonstration Study have indicated that, in 
addition to the utility of FOQA for safety monitoring and corrective 
action follow-up, there are numerous direct cost-savings benefits to an 
airline from FOQA. For example, FOQA data acquired by one airline have 
documented that autothrottle performance in one aircraft type was not 
in accordance with the manufacturer's specification, and that this 
circumstance was responsible for chronic engine temperature exceedences 
in that aircraft type. This information, which had not been available 
until the implementation of FOQA in that aircraft type, was 
successfully employed by the airline to modify takeoff power setting 
procedures in order to compensate for the autothrottle deficiency, as 
well as to initiate communications with the manufacturer targeted at 
correcting the problem. As a result, the airline was able to achieve 
savings from fewer engine removals, as well as increased aircraft 
availability, for that aircraft type.
    Besides reducing engine removals, the Demonstration Study has 
documented many other examples of savings that are achievable through 
FOQA. Prominent examples include engine on-wing extension programs, 
detection of out-of-trim conditions, improved fuel management, reduced 
hard landing inspections, brake wear reduction, and insurance premium 
reductions.
    The Demonstration Study's findings on the benefits of FOQA for U.S. 
operators are very similar to the results obtained by European air 
carriers, many of who have long experience in the use of this 
technology. A lengthy listing of FOQA benefits that have been observed 
by the Safety Regulation Group of the United Kingdom Civil Aviation 
Authority, for example, includes documenting unusual autopilot 
disconnects, GPWS warnings, hard landings, and rushed approaches. They 
include use of FOQA data for monitoring fuel efficiency, engine 
condition, crew procedures, noise violations, in-flight ATC delays, and 
aircraft structural fatigue. They also include the use of FOQA data for 
Category III landing certification. These results clearly validate the 
value of FOQA for both safety enhancement and cost management purposes.
    In December 1995, the FAA sponsored a Safety Conference to review 
progress and to refine the originally proposed safety initiatives. At 
that conference, industry requested that the FAA codify in the 
regulations the enforcement protection policy letter on FOQA that had 
been issued by former Administrator Hinson. The FAA agreed to initiate 
rulemaking to address this issue. Subject to FAA action on this item, 
industry representatives committed themselves not only to continue 
support for voluntary implementation of FOQA at U.S. airlines, but to 
initiate a process that could ultimately lead to the wide scale sharing 
of FOQA information among airlines and the FAA to enhance safety. In 
this way the FAA will see not only the specific trends and corrective 
actions at an individual carrier, but can look for and correct trends 
across the industry.
    Both air carrier operators and pilot groups have expressed concern 
about data confidentiality and use. There are significant concerns 
about increased tort liability as a potential result of the existence 
of FOQA data, as well as concerns from pilot groups about possible 
punitive actions by airline management based on FOQA information. 
Neither of these concerns are within the purview of the FAA to resolve. 
Both airlines and pilots groups have expressed concern about possible 
punitive enforcement actions by the FAA for regulatory violations 
revealed by FOQA data. This issue is addressed later in the preamble. 
Both airlines and pilots have also expressed concern that FOQA data 
made available to the government could be subject to public disclosure 
through the Freedom of Information Act (FOIA). However, Congress 
included specific provisions pertinent to the latter concern in the 
Federal Aviation Reauthorization Act of 1996. Specifically, the 
Reauthorization Act added a new section, 49 U.S.C. 40123, to the FAA's 
governing statute to protect voluntarily submitted information under 
certain circumstances. New section 40123 provides:
    (a) In General.--Notwithstanding any other provision of the law, 
neither the Administrator of the Federal Aviation Administration, nor 
any agency receiving information from the Administrator, shall disclose 
voluntarily-provided safety or security related information if the 
Administrator finds that--
    (1) the disclosure of the information would inhibit the voluntary 
provision of that type of information and that the receipt of that type 
of information aids in fulfilling the Administrator's safety and 
security responsibilities; and
    (2) withholding such information from disclosure would be 
consistent with the Administrator's safety and security 
responsibilities.
    (b) Regulations.--The Administrator shall issue regulations to 
carry out this section.
    In a separate NPRM entitled, Protection of Voluntarily Submitted 
Information; Proposed Rule, published July 26, 1999 in the Federal 
Register (Volume 24, Number 142, pp 40472-40482), the FAA proposes to 
add a new part to provide that certain information submitted to the FAA 
on a voluntary basis would not be disclosed to the public. Under 
proposed 14 CFR part 193, a regulatory procedure would be established 
for designating certain voluntarily submitted safety related 
information, such as FOQA aggregate data and trend analyses, as 
protected from such disclosure. Other types of voluntarily submitted 
safety related information could also be designated as protected from 
disclosure to the public.

Congressional Direction

    On April 5, 2000, the President signed the Wendell H. Ford Aviation 
Investment and Reform act for the 21st Century. Section 510 of the Act 
requires the Administrator to issue a notice of proposed rulemaking 
proposing ``Flight Operations Quality Assurance Rules.'' The proposed 
rules in this notice respond to section 510 and provide safeguards that 
will ensure that aviation safety is not compromised.
    Section 510 provides that the protection should be proposed for 
each voluntary reporting program, such as FOQA and the Aviation Safety 
Action Program (ASAP). These proposed rules apply only to FOQA. 
However, as directed by Congress, the FAA invites comments on how the 
principles presented in this notice might be applied to other voluntary 
reporting programs, including ASAP. The FAA seeks comments on what 
would be a reasonable framework for protection of air carriers and 
their employees who submit information under voluntary programs.

Discussion of the Proposed Rule

    The language of the proposed rule is consistent with the intent of 
the FOQA program, which is to provide air carriers and the FAA with (a) 
data from line operations that can be analyzed to identify trends for 
safety assessment; and (b) a basis for initiating corrective action 
when needed to improve pilot performance, aircraft maintenance 
practices, standard operating procedures, and aircraft system designs. 
The proposed rule would require that an

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air carrier's FOQA program receive initial and continuing approval from 
the Administrator. To receive such approval, the rule would require a 
certificate holder to submit a FOQA Implementation and Operations Plan 
acceptable to the Administrator. The minimum requirements for a FOQA 
Implementation and Operations Plan would include (1) a description of 
the operator's plan for collecting and analyzing flight recorder data 
from line operations on a routine basis, (2) internal procedures for 
taking corrective action that analysis of the data indicates is 
necessary in the interest of safety, (3) procedures for providing the 
FAA with aggregate FOQA data, and (4) procedures for informing the FAA 
of corrective actions, including providing aggregate trend analyses to 
the FAA.
    In general, the proposed rule would provide that certificate 
holders will provide the FAA with their aggregate FOQA data (summary 
statistical indices associated with FOQA event categories) without 
providing the underlying FOQA data (DFDR data obtained from individual 
aircraft). Thus, the FAA would be able to (1) monitor the effectiveness 
of the certificate holder's approved FOQA program, (2) monitor the 
certificate holder's compliance with its approved FOQA program, and (3) 
determine whether the certificate holder's aggregate trend analysis 
indicates a need for rulemaking.
    In addition to its use as a self-auditing tool for the certificate 
holder, the FAA foresees a possible need for underlying FOQA data in 
two circumstances (although other uses may become apparent as the 
program develops). The first foreseeable circumstance would arise if 
the FAA concludes that the aggregate FOQA data obtained from one or 
more certificate holders indicate that safety rulemaking should be 
undertaken.
    The second circumstance would arise if an aggregate FOQA data 
indicates a possible need for remedial action. Whenever possible and 
appropriate, if the certificate holder takes corrective action, this 
will be taken into consideration by the FAA in determining what, if 
any, investigation and enforcement action is warranted. With respect to 
punitive enforcement action, the proposed rule would prohibit the FAA 
from using FOQA data collected for punitive enforcement action. This 
prohibition would extend to DFDR data from required parameters that 
have been downloaded into a FOQA analysis program in accordance with an 
operator's approved FOQA Implementation and Operations Plan. The FAA 
would be permitted to use the data in the DFDR itself (i.e., the black 
box) in any enforcement action if an apparent violation is discovered 
by means other than a review of the aggregate FOQA data.

Why the FAA Cannot Provide Regulatory Protection From Remedial 
Enforcement

    Remedial enforcement action is most often taken to stop the 
continued operation of equipment that is not in a condition for safe 
operation, or to revoke or suspend indefinitely the certificate of an 
unqualified operator or person. This limited potential use of FOQA data 
is necessary because the FAA cannot anticipatorily foreclose its 
ability to take remedial enforcement action. Remedial enforcement 
action is taken to prevent entities or individuals that the FAA has 
determined are no longer qualified from operating in air transportation 
and to halt continuing noncompliance. The availability of remedial 
enforcement action would also apply to equipment that the FAA has 
determined is not in a condition for safe operation in air 
transportation. The agency is required to act in the best way to 
prevent accidents in air transportation. Often the best way to prevent 
an accident is to take remedial enforcement action against those who 
lack qualifications. Likewise, the FAA is statutorily obligated to, at 
a minimum, issue an order of compliance, which is a remedial action, 
when the FAA finds continuous violations of the safety rules.

FAA Policy on FOQA

    The FAA believes that the likelihood that FOQA data will lead to 
remedial enforcement action is remote. For example, during the FOQA 
Demonstration Study there were no occurrences that would have resulted 
in remedial enforcement action under the provisions of this proposed 
rule. Nevertheless, if aggregate FOQA data or underlying FOQA data are 
necessary to resolve an issue involving possible lack of 
qualifications, the Administrator will seek to obtain that information 
in an effort to reduce or eliminate the possibility, or recurrence, of 
accidents in air transportation.
    The proposed rule would provide protection from punitive 
enforcement based policy solely on FOQA data itself. It would not 
provide protection from punitive enforcement based on information 
obtained from other sources. For example, it would not provide 
protection from punitive enforcement where information comes from FAA-
initiated activities undertaken when recurring trends in aggregate FOQA 
data indicate the possibility of a continuing unsafe condition. Such 
recurring negative safety trends could occur because a participant had 
failed to take corrective action or because the corrective action taken 
was not sufficient to resolve the problem. When appropriate, the 
detection of a recurring negative safety trend in the aggregate FOQA 
data would lead the FAA to focus its oversight resources on the problem 
identified to determine the cause of the recurrence and the corrective 
action necessary to correct it. Initially, this might mean closer 
scrutiny of a particular program participant's operation, particularly 
if the negative trend was evident only in a given participant's data. 
If the trend appeared in more than one program participant's data, 
however, FAA surveillance activity would be adjusted accordingly. In 
some circumstances this increased FAA surveillance could lead to an 
investigation and enforcement for regulatory violations. This rule 
would provide no protection from punitive enforcement based on 
information obtained from such FAA investigate or surveillance 
activities. Based on its experience with the FOQA demonstration 
program, the FAA anticipates that situations requiring investigation 
and enforcement would be extremely rare. Experience indicates that 
certificate holders willing to expend the resources needed to develop a 
FOQA program are predisposed to taking appropriate corrective action 
when a problem is identified. Such certificate holders would also be 
predisposed to working with the FAA to ensure that the corrective 
action is effective.
    As the implementation and continuance of FOQA programs by airlines 
would be voluntary, the FAA anticipates that the growth of FOQA in the 
United States will depend upon the development of mutual trust and a 
shared commitment to preserving the safety enhancement potential of 
such programs. This proposed rule, together with the FAA's proposed 
regulations to implement 49 U.S.C. 40123's protections for voluntarily 
submitted information, would resolve some of industry's concerns 
regarding enforcement. Other industry concerns about the use of the 
DFDR data maintained and analyzed in FOQA programs may be resolved 
through union and management agreements.
    Although the FAA-sponsored FOQA Demonstration Study focused on the 
use of FOQA for airlines operating under part 121, the study determined 
that operators operating under the regulatory parts could also realize 
safety benefits from establishing FOQA programs.

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Extending the availability of FOQA to any operator of an aircraft 
equipped with DFDRs would appear to be in the public interest. The FAA 
therefore proposes to extend FOQA to allow any operator of aircraft 
equipped with DFDRs to seek approval of a FOQA program.
    If FOQA information reveals that a violation of the FAA's statute 
or regulations is ongoing and that the operator has not taken or will 
not take appropriate corrective action, the FAA is required to take 
appropriate steps to stop the violations and to restore the integrity 
of the aviation system. In such circumstances, the FAA not only could 
take whatever remedial enforcement action is appropriate to correct the 
continuing unsafe situation, but also withdraw approval of the 
certificate holder's FOQA program. The latter action is appropriate 
because the regulation would require a certificate holder to initiate 
corrective action in order to maintain continuing approval of its FOQA 
Implementation and Operations Plan.
    Willful misconduct uncovered in a FOQA program would also be 
unacceptable. In appropriate cases, the FAA would take remedial 
enforcement or other appropriate action against a certificate holder 
for one or more violations resulting from a determination of willful 
misconduct based on information obtained directly from FOQA aggregate 
data. If the willful misconduct did not lead the FAA to conclude that 
remedial enforcement action was necessary, it could nonetheless result 
in the FAA withdrawing approval of that participant's FOQA program.
    Nothing in the proposed rule would preclude the FAA from exercising 
its subpoena authority, and the proposed rule would not preclude a 
court of law from ordering the release of FOQA data or information 
where appropriate. To the extent that FOQA data constitutes evidence of 
a crime and to the extent that the Department of Justice prosecutes a 
person or entity, this rule would not bar the use of FOQA data in a 
criminal prosecution.
    The FAA believes that the FOQA program will advance public safety 
by providing an additional means of identifying and correcting 
potential problems. FAA believes that air carriers are more likely to 
participate in this voluntary program if the air carriers and pilots 
believe that FAA will exercise suitable discretion in limiting 
enforcement actions, based on the voluntarily submitted information. 
The proposed rule would allow FOQA data to be used in remedial 
enforcement actions but not in punitive enforcement actions.
    It is widely accepted that enforcement actions, among other things, 
have a deterrent value in encouraging the self-identification and self-
correction of violations, thus advancing public safety. During 
interagency discussion of the proposed rule, concern was raised that 
limiting FAA discretion to take enforcement action could reduce this 
deterrent effect. To fully address these concerns FAA solicits comments 
on the utility and application of FAA's current and proposed 
enforcement policies concerning self-reporting, in the context of this 
proposed rule. In particular, comment is solicited on experiences 
involving (a) Air Carrier Voluntary Disclosure Reporting Procedures, 
FAA Advisory Circular #120-56 (January 23, 1992); and (b) Policy on the 
Use for Enforcement Purposes of Information Obtained from an Air 
Carrier Flight Operational Quality Assurance (FOQA) Program (63 FR 
67505--December 7, 1998). Further, FAA solicits comments on whether FAA 
should retain its discretion to use FOQA aggregated data (and/or to 
obtain disaggregated data from air carriers participating in the FOQA 
program) in order to bring punitive or other enforcement actions, and 
whether there are any factors which should govern the exercise of such 
discretion. FAA also invites comment on whether, in the exercise of 
FAA's enforcement discretion, certain uses of FOQA data (or requests 
for disaggregated data) should require the approval of particular FAA 
officials.

Paperwork Reduction Act

    The proposed amendment to 14 CFR Part 13 contains information 
collection requirements. In accordance with the Paperwork Reduction Act 
of 1995, 44 U.S.C. 3501 et seq., the information collection 
requirements associated with this rule are being submitted to the 
Office of Management and Budget (OMB) for review. Following is a 
summary of the information requirement that was sent to OMB.
    Title: Flight Operational Quality Assurance (FOQA) Rule.
    Summary/Need/Uses: Flight Operational Quality Assurance (FOQA) is a 
program for the routine collection and analysis of digital flight data 
from airline operations, including but not limited to digital flight 
data currently collected pursuant to existing regulatory provisions. By 
this proposed amendment, the FAA would require certificate holders who 
voluntarily establish approved FOQA programs to periodically provide 
aggregate trend analysis information from such program to the FAA.
    The purpose of collecting, analyzing, aggregating, and reporting 
this information is to identify potential threats to safety, and to 
enable early corrective action before such treats lead to accidents. 
The submitted aggregate trend information will be reviewed by the FAA 
principal operations inspector (POI) responsible for oversight of the 
certificate holding respondent. The POI and his staff make use of this 
information to monitor operational trends, to identify areas in need of 
corrective action, and to verify that corrective action is effective.
    Respondents and Frequency of Response: The FAA has identified 30 
certificate holders who are candidates to take the necessary steps to 
comply with the rule and gain the benefits of so doing. However, only 
nine certificate holders have established FOQA programs. Because of the 
benefits of FOQA participation to both safety and cost containment, it 
is anticipated that FOQA will be implemented on an industry wide basis 
in the U.S. within the next twenty years.
    Burden Hours: It is estimated that it will take each respondent 1.0 
hour to prepare aggregate trend information to be submitted to the FAA. 
The annual burden per respondent is 12.0 hours for an annual industry 
burden of 360 hours.
    The estimated 1.0 hour burden is the additional time required to 
send to the FAA the aggregate data already produced monthly by the 
certificate holder as part of an approved FOQA program.
    The FAA considers comments by the public on the proposed collection 
of information in order to:
    a. Evaluate whether the proposed collection of information is 
necessary for the proper performance of functions of the agency, 
including whether the information will have practical utility;
    b. Evaluate the accuracy of the agency's estimate of the burden of 
the proposed collection of information including the validity of the 
methodology and assumptions used;
    c. Enhance the quality, utility, and clarity of the information to 
be collected; and
    d. Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    The agency is soliciting comments to (1) evaluate whether the 
proposed

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collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; (2) evaluate the accuracy of the agency's 
estimate of the burden; (3) enhance the quality, utility, and clarity 
of the information to be collected; and (4) minimize the burden of the 
collection of information on those who are to respond, including 
through the use of appropriate automated, electronic, mechanical, or 
other technological collection techniques or other forms of information 
technology (for example, permitting electronic submission of 
responses).
    Comments on the proposed information collection requirements should 
be submitted to the rulemaking docket at the address indicated in the 
ADDRESSES section of this notice.
    According to the regulations implementing the Paperwork Reduction 
Act of 1995, (5 CFR 1320.8(b)(2)(vi)), an agency may not conduct or 
sponsor and a person is not required to respond to a collection of 
information unless it displays a currently valid OMB control number. 
The OMB control number for this information collection will be 
published in the Federal Register after it is approved by the Office of 
Management and Budget.

Regulatory Evaluation Summary

    Proposed changes to Federal regulations must undergo several 
economic analyses. First, Executive Order 12866 directs that each 
Federal agency shall propose or adopt a regulation only upon a reasoned 
determination that the benefit of the intended regulation justify its 
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies 
to analyze the economic effect of regulatory changes on small entities. 
Third, the trade Agreements Act (19 U.S.C. 2531-2533) prohibits 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. In developing U.S. 
standards, this Trade Act also requires agencies to consider 
international standards and, where appropriate, use them as the basis 
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 
requires agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by private sectors, of $100 
million or more annually (adjusted for inflation).
    In conducting these analyses, the FAA has determined that:
    (1) The proposed rule has benefits that justify its costs and is 
significant under Executive Order 12866. It is also ``significant'' as 
defined in DOT's Regulatory Policies and Procedures.
    (2) The proposed rule will not have a significant impact on a 
substantial number of small entities.
    (3) The proposed rule reduces barriers to international trade.
    (4) The proposed rule does not impose an unfunded mandate on state, 
local, or tribal governments, or on the private sector.
    These analyses are available in the docket and are summarized 
below. The FAA invites the public to provide comments and supporting 
data on the assumptions made in this evaluation. All comments received 
will be considered in the final regulatory evaluation.
    Any costs associated with providing the FAA with access to FOQA 
information is expected to be minimal. The FAA does not propose to 
require submission of underlying FOQA data to the government. However, 
this proposed rule would require the participant to provide the FAA 
with aggregate trend analyses of the data available. The FAA welcomes 
comments on this issue.
    The FAA anticipates that information obtained by airline FOQA 
programs will be voluntarily submitted to the FAA in the interest of 
joint goals to promote safety, and that because of the objective nature 
of FOQA data, this information will be valuable for formulating future 
policy, NAS procedures, and rulemaking development. This information 
will enable the FAA to more accurately compute the estimated cost and 
benefits of agency decisions. This proposed rule is an enabling 
initiative intended to promote the voluntary establishment of FOQA 
programs. The FAA has determined that because the establishment of FOQA 
programs is voluntary and the proposed rule only requires certificate 
holders who voluntarily establish approved FOQA programs to provide 
periodically the aggregate trend information from such programs to the 
FAA, the costs from this proposal are minimal. Therefore, an economic 
evaluation is not warranted.

International Trade Impact

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis of U.S. 
standards. In addition, consistent with the Administration's belief in 
the general superiority and desirability of free trade, it is the 
policy of the Administration to remove or diminish to the extent 
feasible, barriers to international trade, including both barriers 
affecting the export of American goods and services to foreign 
countries and barriers affecting the import of foreign goods and 
services into the United States. In accordance with the above statute 
and policy, the FAA has assessed the potential effect of this proposed 
rule and has determined that it would have little or no impact on trade 
for U.S. firms doing business in foreign countries and foreign firms 
doing business in the United States.

Initial Regulatory Flexibility Determination

    The Regulatory Flexibility Act (RFA) of 1980, 5 U.S.C. 601-612, 
directs the FAA to fit regulatory requirements to the scale of the 
business, organizations, and governmental jurisdictions subject to the 
regulation. We are required to determine whether a proposed or final 
action will have a significant impact on a substantial number of 
``small entities'' as defined by the Act. If we find that the action 
will have a significant impact, we must do a ``regulatory flexibility 
analysis.''
    In accordance with the RFA, the FAA certifies that this proposal 
would not have a significant economic impact, positive or negative, on 
a substantial number of small entities.

Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, Federalism. We determined that this 
action would not have a substantial direct effect on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. Therefore, we determined that this notice of proposed 
rulemaking would not have federalism implications.

Unfunded Mandates Reform Act

    The Unfunded Mandates reform Act of 1995 (2 U.S.C. 1532-1538) 
requires the FAA to assess the effects of Federal Regulatory actions on 
state, local, and tribal governments, and on the private sector of 
proposed rule that contain a Federal intergovernmental or private 
sector mandate that exceeds $100 million in any one year. This action 
does not contain such a mandate.

[[Page 41534]]

Significance

    This rule is significant under Executive Order 12866 and is 
considered significant under DOT Order 2100.5, Policies and Procedures 
for Simplification, Analysis, and Review of Regulations.

Environmental Analysis

    FAA Order 1050.1D defines FAA actions that may be categorically 
excluded from preparation of a National Environmental Policy Act (NEPA) 
environmental impact statement. In accordance with FAA Order 1050.1D, 
appendix 4, paragraph 4(j), this proposed rulemaking action qualifies 
for a categorical exclusion.

Energy Impact

    The energy impact of the notice has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA) Pub. L. 94-163, as 
amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined 
that the notice is not a major regulatory action under the provisions 
of the EPCA.

List of Subjects in 14 CFR Part 13

    Administrative practice and procedure, Air transportation, Flight 
operational quality assurance program, Investigations, Law enforcement, 
Penalties.

The Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend part 13 of the Federal Aviation 
Regulations (14 CFR part 13) by adding a new subpart I to read as 
follows:

PART 13--INVESTIGATIVE AND ENFORCEMENT PROCEDURES

    1. The authority citation for part 13 continues to read as follows:

    Authority: 18 U.S.C. 6002; 28 U.S.C. 2461; 49 U.S.C. 106(g); 
5121-5124, 40113-40114, 44103-44106, 44702-44703, 44709-44710, 
44713, 46101-46110, 46301-46316, 46501-46502, 46504-46507, 47106, 
47111, 47122, 47306, 47531-47532.

    2. Subpart I is added to read as follows:

Subpart I--Flight Operational Quality Assurance Programs


Sec. 13.401  Flight Operational Quality Assurance Program: Prohibition 
against use of data for punitive enforcement purposes.

    (a) Applicability. This section applies to any operator of an 
aircraft who operates such aircraft under an approved Flight 
Operational Quality Assurance (FOQA) program.
    (b) Definitions. For the purpose of this section, the terms--
    (1) Flight Operational Quality Assurance (FOQA) program means an 
FAA-approved program for the routine collection and analysis of data 
gathered during aircraft operations by means of a DFDR, including data 
currently collected pursuant to existing regulatory provisions.
    (2) FOQA data means any raw data that has been collected by means 
of a DFDR pursuant to an FAA-approved FOQA program.
    (3) Aggregate FOQA data means the summary statistical indices that 
are associated with FQFA event categories, based on an analysis of FOQA 
data recorded by digital flight data recorders (DFDRs) during aircraft 
operations.
    (4) Remedial enforcement action means an enforcement action other 
than a civil penalty or a certificate action involving a suspension for 
a specific period of time.
    (5) Punitive enforcement action means a civil penalty or 
certificate action involving a suspension for a specific period of 
time.
    (c) Requirements. In order for paragraph (e)(1) of this section to 
apply, the operator must submit and adhere to a FOQA Implementation and 
Operations Plan that is approved by the Administrator and which 
contains the following elements:
    (1) A description of the operator's plan for collecting and 
analyzing flight recorded data from line operations on a routine basis;
    (2) Procedures for taking corrective action that analysis of the 
data indicates if necessary in the interest of safety;
    (3) Procedures for informing the FAA with aggregate FOQA data;
    (4) Procedures for informing the FAA as to any corrective action 
being undertaken pursuant to subparagraph (c)(2) of this section.
    (d) Access to data. The operator will provide the FAA with 
aggregate FOQA data in a form and manner acceptable to the 
Administrator.
    (e) Enforcement.--(1) The Administrator will not use an operator's 
FOQA data or aggregate FOQA data in a punitive enforcement action 
against that operator or its employees when such FOQA data or aggregate 
FOQA data is obtained from a FOQA program that is approved by the 
Administrator.
    (2) The Administrator may use any operator's FOQA data and/or 
aggregate FOQA data is a remedial enforcement action.
    (f) Disclosure. FOQA data and aggregate FOQA data, if submitted in 
accordance with the provisions of part 193 of this chapter, will be 
afforded the nondisclosure protections of that part.
    (g) Withdrawal of program approval. The Administrator may withdraw 
approval of a previously approved FOQA program for failure to comply 
with the requirements of this Chapter. Grounds for withdrawal of 
approval may include, but are not limited to--
    (1) Failure to implement corrective action that analysis of 
available FOQA data indicates is necessary in the interest of safety; 
or
    (2) Failure to correct a continuing pattern of violations following 
notice by the agency.
    (3) Willful misconduct or willful violation of the regulations.

    Issued in Washington, DC, on June 29, 2000.
L. Nicholas Lacey,
Director, Flight Standards Service.
[FR Doc. 00-16884 Filed 6-30-00; 8:45 am]
BILLING CODE 4910-13-M