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Flight Operational Quality Assurance Program

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 [Federal Register: October 31, 2001 (Volume 66, Number 211)]
[Rules and Regulations]
[Page 55041-55048]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31oc01-19]

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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 13
[Docket No. FAA-2000-7554; Amendment No. 13-30]
RIN 2120-AF04
 
Flight Operational Quality Assurance Program

AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.

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SUMMARY: This rule codifies enforcement protection for Flight 
Operational Quality Assurance (FOQA) programs. It states that except 
for criminal or deliberate acts, the Administrator will not use an 
operator's FOQA data or aggregate FOQA data in an 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. The rule requires air carriers participating in approved 
FOQA programs to submit aggregate FOQA data to the FAA for use in 
monitoring safety trends.

EFFECTIVE DATE: November 30, 2001.

FOR FURTHER INFORMATION CONTACT: Dr. Thomas Longridge, Flight Standards 
Service, AFS-230, Federal Aviation Administration, 800 Independence 
Avenue, SW, Washington, DC 20591, telephone (703) 661-0275, email: 
thomas.longridge@faa.gov.

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Documents

    You can get an electronic copy using the Internet by taking the 
following steps:
    (1) Go to the search function of the Department of Transportation's 
electronic Docket Management System (DMS) web page (http://dms.dot.gov/
search). Exit E.P.A.
    (2) On the search page type in the last four digits of the Docket 
number shown at the beginning of this notice. Click on ``search.''
    (3) On the next page, which contains the Docket summary information 
for the Docket you selected, click on the document number for the item 
you wish to view.
    You can also get an electronic copy using the Internet through 
FAA's web page at http://www.faa.gov/avr/armhome.htm Exit E.P.A. or the Government 
Printing Office's web page at http://www.access.gpo.gov/su_docs/aces/
aces140.html. Exit E.P.A.
    You can also get a copy by submitting 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 amendment number or docket number of this 
rulemaking.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. Therefore, any small entity that has a question regarding 
this document may contact their local FAA official, or the person 
listed under FOR FURTHER INFORMATION CONTACT. You can find out more 
about SBREFA on the Internet at our site, http://www.faa.gov/avr/arm/
sbrefa.htm. Exit E.P.A. For more information on SBREFA, e-mail us 9-AWA-
SBREFA@faa.gov.

Background

    The primary purpose of a Flight Operational Quality Assurance 
program (FOQA) is to enhance aviation safety. A FOQA program involves 
the analysis of digital flight data generated during routine line 
operations in order to reveal situations that may require corrective 
action, to enable early intervention to correct adverse safety trends 
before they can lead to accidents, and to provide an objective means of 
following-up on corrective action to determine whether it has been 
effective. To institute such a program, an operator would need to 
develop a system that captures digital flight data, transforms the data 
into an appropriate format for analysis, analyzes the data, and 
generates reports and visualizations to assist personnel in 
interpreting the results of analysis.
    In 1995 the FAA initiated a voluntary FOQA demonstration program in 
cooperation with interested operators. The demonstration study 
determined that the information and insights provided by a FOQA program 
can significantly enhance line operational safety, training 
effectiveness, operational procedures, maintenance and engineering 
procedures, ATC procedures, and airport surface issues. The 
demonstration study found that FOQA programs can provide objective 
safety related information from line operations that is not available 
from any other source.
    On April 5, 2000, the President signed the Wendell H. Ford Aviation 
Investment and Reform Act for the 21st Century (known as AIR-21). 
Section 510, entitled Flight Operations Quality Assurance Rules, 
directed the Administrator to issue a Notice of Proposed Rulemaking to 
protect air carriers and their employees from enforcement actions for 
violations of title 14, Code of Federal Regulations, (other than 
criminal or deliberate acts) that are reported or discovered as a 
result of voluntary reporting programs, such as FOQA.
    Airlines and pilot associations have strongly endorsed the 
voluntary establishment of FOQA programs in the interest of safety. 
However, they have also stated that they will not continue to 
voluntarily participate in FOQA programs unless the FAA codifies 
regulatory protection from the use of FOQA information in enforcement 
action against operators or their employees, except for criminal or 
deliberate acts.
    On July 5, 2000 (65 FR 41528), the FAA published a Notice of 
Proposed Rulemaking (NPRM) to provide protection from the use of FOQA 
information for punitive enforcement purposes, subject to certain 
conditions, and to retain FAA discretion to use FOQA data or aggregate 
FOQA data in remedial enforcement action. The FAA carefully considered 
all of the comments that were submitted, along with the duty of the FAA 
to address adverse safety conditions. This final rule codifies a level 
of enforcement protection for FOQA information that is consistent with 
the congressional direction provided in Section 510 of AIR-21. Namely, 
it provides operators and their employees with protection from the use 
of FOQA information for enforcement, except for criminal or deliberate 
acts. The FAA anticipates that this final rule will encourage the 
further growth of voluntary FOQA programs in the United States, and 
will thereby enhance public safety, as well as provide the FAA with 
trend information to better manage its safety oversight and regulatory 
decision making responsibilities.
    This final rule does not require any operator to implement a FOQA 
program, nor does it require any operator who desires to voluntarily 
implement such a program to obtain FAA approval to do so, or to submit 
FOQA information from such an internal program to the FAA. However, in 
order to qualify for the enforcement protection afforded by this rule, 
the rule provides that FAA initial and continuing approval of the 
proposed program would be required, as well as the submission of 
aggregate FOQA information to the FAA.

[[Page 55043]]

Discussion of Comments and Section-by-Section Analysis

    The FAA received six written comments on the proposed rule, one of 
which was a consolidated comment from multiple airline and pilot 
association groups (Air Transport Association of America, the Air Line 
Pilots Association, the Aerospace Industries Association, the Coalition 
of Airline Pilots Association, the Independent Association of 
Continental Pilots, and the Regional Airline Association). Additional 
organizational commenters were the Transportation Trades Department, 
the Advocates for Legitimate and Fair Aviation Regulations, and an 
additional comment from the Regional Airline Association. Two 
individuals submitted comments. The FAA also participated in two 
meetings with industry representatives to hear their comments about the 
NPRM. The contents of those meetings as well as a list of the 
participants appear in the docket. The comments are discussed below, 
along with the provisions of the final rule.

The Rule in General

    The proposed rule was intended to codify certain protection from 
the use of FOQA information for punitive enforcement purposes for 
operators of voluntary FOQA programs that have been approved by the 
FAA. The proposal would require operators of approved FOQA programs to 
submit aggregate FOQA data to the FAA. Operators who do not seek such 
enforcement protection would not be required to obtain FAA approval of 
their voluntary programs, nor would they be required to submit FOQA 
data to the FAA. The proposed rule would not require any operator to 
establish a FOQA program.
    Comment: One commenter asserted that under 49 U.S.C. 44701 the FAA 
is only empowered to issue regulations that establish minimum standards 
required in the interest of safety, and there is therefore no legal 
basis for this proposed rule.
    FAA Response: As noted by the commenter, 49 U.S.C. Section 44701(a) 
also authorizes the FAA to issue regulations and minimum standards for 
other practices, methods, and procedures that the Administrator finds 
necessary for safety in air commerce. Under this section the FAA is 
clearly authorized to issue regulations for programs that the 
Administrator has determined will enhance safety, and to establish 
minimum standards for such programs, including voluntary programs. The 
Administrator has determined that voluntary FOQA programs enhance 
safety, and further, that this final rule is necessary in order to 
establish the necessary conditions for voluntary participation by 
airlines and pilot associations in FOQA programs. There are already 
examples of other voluntary safety enhancement programs that have been 
codified in 14 CFR, such as the Aviation Safety Reporting Program 
(ASRP).
    Comment: One commenter noted that an operator who elects to 
establish a FOQA program without complying with the proposed rule would 
not be in violation of the regulations.
    FAA Response: The FAA concurs. Nothing in the proposed regulation 
or in the final rule would compel an operator who does not seek the 
enforcement protection afforded by the rule to comply with the 
provisions of the rule.

Sec. 13.401(a)  Applicability (Proposed Sec. 13.401(a)). Who Is 
Eligible for the Enforcement Protection Afforded by This Rule?

    The NPRM stated that the rule applies to any operator of an 
aircraft who operates that aircraft under an FAA approved FOQA program. 
It is not necessary for an operator to be a certificated air carrier in 
order to be eligible for the enforcement protection afforded by the 
rule, so long as they are operating in compliance with an FAA approved 
FOQA program. An operator who elects to operate a FOQA program that is 
not approved by the FAA in accordance with this rule may do so, but 
will not be afforded the enforcement protections of this rule. No 
comments specific to the applicability of this rule to operators were 
received and the subparagraph is adopted as proposed.

Sec. 13.401(b)  Definitions (Proposed Sec. 13.401(b)). What Is the 
Meaning of the Key Terminology Employed in This Rule?

    No comments specific to the definitions in the proposed rule were 
received, although one commenter asserted that there is general 
ambiguity in the proposed rule language, and several of the other 
commenters' comments appear to indicate a misunderstanding of the 
proposed language. The FAA has therefore clarified the definitions of 
each such term. In addition, the definitions for remedial and punitive 
enforcement have been deleted, as they are no longer applicable to the 
final rule.

Sec. 13.401(b)(1)  Flight Operational Quality Assurance (FOQA) Program 
(Proposed Sec. 13.401(b)(1)) What Constitutes a FOQA Program?

    The NPRM stated that a 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 under existing regulations. The final rule definition inserts 
the words ``digital flight'' before data, to clarify that the data to 
be collected is digital flight data. The reference to ``DFDR'' is 
deleted in the definition of a FOQA program in the final rule. This is 
because the technology used to acquire FOQA data is expected to evolve 
over time, and it is not necessary to define a FOQA program on the 
basis of the technology that is used to record the data. The final 
definition was also modified to clarify that data that operators 
currently collect under the regulations will not be included in FOQA 
data unless it is identified for inclusion in an approved FOQA program. 
An operator may elect, for example, to establish a FOQA program using 
only the data recorded by the mandatory DFDR, rather than by using the 
supplementary recorder commonly employed in current airline FOQA 
programs. Indeed, as the technological capabilities of the mandatory 
flight data recorder continue to evolve, operators may find that there 
is no longer a need for a supplementary recorder to collect all of the 
parameters an operator desires to include in a FOQA program, since a 
single recorder may be sufficient to meet both regulatory and FOQA 
program requirements. The final definition adds the words ``when such 
data is included in an approved FOQA program'' to the proposed 
language. This change was made to clarify that data currently collected 
under the regulations will be considered by the FAA to be included in a 
FOQA program only when it has been identified for inclusion in an 
approved program.

Sec. 13.401(2)   FOQA Data (Proposed Sec. 13.401(2)). What Is FOQA 
Data?

    The NPRM stated that FOQA data means any raw data that has been 
collected by means of a DFDR pursuant to an FAA-approved FOQA program. 
The final rule definition replaces the reference to ``raw data'' with 
``digital flight data'', inserts additional language indicating that 
for the purposes of this rule, FOQA data is collected ``from an 
individual aircraft'', inserts additional language ``regardless of the 
electronic format of that data'', and deletes the

[[Page 55044]]

proposed definition language ``by means of a DFDR''. The term ``raw 
data'' was deleted because it is subject to varying interpretations 
(e.g. binary data or engineering units). The reference to DFDR was 
deleted for the reasons cited above. Reference to individual aircraft 
was added to clarify that for the purposes of this rule, FOQA data 
refers to digital flight data gathered from an individual aircraft. The 
languagee ``regardless of electronic format'' was added to clarify that 
for the purposes of this rule any digital data collected from an 
individual aircraft in an FAA approved FOQA program shall be considered 
to be FOQA data, regardless of whether it is in binary format, 
engineering unit format, FOQA exceedence event format, or another 
electronic format.

Sec. 13.401(b)(3), Aggregate FOQA Data. What Is Aggregate FOQA Data?

    The NPRM stated that aggregate FOQA data means the summary 
statistical indices that are associated with FOQA event categories, 
based on an analysis of FOQA data recorded by digital flight data 
recorders (DFDRs) during aircraft operations. The proposed definition 
was modified to delete ``recorded by digital flight data recorders 
(DFDRs)'' for the reasons cited above. The proposed language ``during 
aircraft operations'' was replaced with ``from multiple aircraft 
operations.''. The latter change was made to clarify that for the 
purposes of this rule the term aggregate data only applies to multiple 
aircraft operations. The definition of aggregate FOQA data in the final 
rule retains the basic meaning provided in the proposed rule, namely 
that aggregate FOQA data means the summary statistical indices that are 
associated with FOQA event categories, based on analysis of FOQA data. 
Individual data records (FOQA data) may be aggregated along various 
dimensions (e.g., event category as a function of aircraft type, phase 
of flight, and geographical location) to identify trends and patterns. 
Aggregation is simply a statistical process that groups and 
mathematically combines (e.g., count, total, average, standard 
deviation) individual FOQA data elements based on some criterion (e.g. 
the average approach maximum rate of descent below 2000 feet by fleet 
type by airport).
    Proposed definitions Sec. 13.401(b)(4), Remedial Enforcement 
Action, and Sec. 13.401(b)(5), Punitive Enforcement Action, have been 
deleted from the definitions section of the final rule, as these terms 
are no longer applicable to the final rule for the reasons discussed 
below.

Sec. 13.401(c)  Requirements (Proposed Sec. 13.401(c)). What Is an 
Operator Required To Do To Be Eligible for the Enforcement Protection 
Provisions of This Rule?

    The NPRM proposed that, to be eligible for the enforcement 
protection provisions of the rule, an operator would have to submit and 
adhere to a FOQA Implementation and Operations (I & O Plan) approved by 
the Administrator that would include the following:
    (1) The operator's plan for collecting and analyzing flight data,
    (2) Procedures for taking corrective action,
    (3) Procedures for providing the FAA with aggregate data, and
    (4) Procedures for informing the FAA of each corrective action.
    Comment: One commenter objected to the requirement to obtain FAA 
approval of a voluntary program, and asserted that the FAA has no 
authority to require such approval.
    FAA Response: The rule only requires that operators who seek the 
enforcement protection afforded by the rule must submit a FOQA 
Implementation and Operations Plan for FAA approval. Operators who do 
not seek such protection are not required to submit or adhere to an 
approved plan. The FAA cannot extend enforcement protection to an 
undefined program. The requirement for operators to submit and adhere 
to an FAA approved plan is intended to assure that in return for 
certain enforcement protection, the FAA's goals for the enhancement of 
public safety will be achieved. Just as the FAA has the authority and 
responsibility to enforce the aviation regulations, it clearly has the 
authority to define the conditions on which basis any enforcement 
protection from those regulations will be afforded. The Aviation Safety 
Reporting Program is an existing example of the exercise of that 
authority to extend enforcement protection in the overall interest of 
safety enhancement, subject to certain conditions.
    Comment: One commenter questioned the language of Sec. 13.401(c)2 
that requires a FOQA I & O Plan to identify procedures for taking 
corrective action that analysis of the data indicates is necessary in 
the interest of safety. The commenter questioned whether the operator 
or the FAA makes the determination of whether corrective action is 
needed and raised the question of the consequences of a disagreement 
between the FAA and the operator on that issue.
    FAA Response: The rule clearly places the primary responsibility 
with the operator for determining whether analysis of FOQA data 
indicates that corrective action is necessary in the interest of 
safety. This is why the I & O Plan requires the operator to identify 
the procedures it will follow if corrective action becomes necessary. 
Further, since only the operator has access to FOQA data from 
individual flights, only the operator is in a position to determine 
whether analysis of such data warrants corrective action in that 
circumstance. The rule does, however, require the operator to inform 
the FAA of each corrective action it undertakes based on FOQA data. It 
also requires the operator to submit aggregate FOQA data that the FAA 
could employ to identify adverse safety trends, which the agency might 
determine warrant corrective action. Since FOQA is a voluntary program 
that represents a shared commitment to safety enhancement, the FAA 
believes that differences of opinion on the necessity and 
appropriateness of corrective action will be relatively few, and that 
any such differences will normally be resolved through mutual 
discussion. The rule clearly provides the operator of an approved 
program with protection from enforcement action in the unlikely event 
that differences of opinion on such issues cannot be resolved.
    However, Sec. 13.401(g) of the rule also provides that the FAA may 
withdraw program approval if the agency determines that the operator 
has failed to implement corrective action that analysis of available 
FOQA data indicates is necessary in the interest of safety or the 
operator has failed to correct a continuing pattern of violations 
following notice by the agency. Thus while the operator has the primary 
responsibility for determining when corrective action is warranted, and 
for determining the nature of that action, the operator and the FAA 
must ultimately agree on these matters. This approach helps to assure 
that FOQA programs do in fact enhance public safety. In the event that 
the FAA and the operator cannot agree, the only potential consequence 
to the operator is the withdrawal of program approval. In the event 
that program approval is withdrawn, the operator will not have 
enforcement protection under this rule for FOQA data obtained 
subsequent to the withdrawal. However, the operator may continue to 
conduct its FOQA program if it determines that it is appropriate for it 
to do so.

[[Page 55045]]

    Comment: One commenter asserted that the references in the NPRM to 
the required content of a FOQA I & O Plan did not contain sufficient 
information. The commenter observes that no doubt the FAA intends to 
require more in the I & O Plan than the NPRM states. The commenter 
asserts that the NPRM's reference to a future advisory circular that 
provides further detail is an ``extra-legal mechanism to create a 
stealth regulation''.
    FAA Response: The FAA does not concur. The FAA believes that the 
rule contains all of the essential elements that the FAA will require 
for approval purposes. The intent of the planned advisory circular 
referenced in the NPRM is to provide applicants with one way, but not 
the only way, of complying with the provisions of the proposed rule 
with regard to developing the content of a FOQA I & O Plan. The FOQA 
Advisory Circular, which is being published concurrently with this 
final rule, does not add any additional requirements beyond those 
specified in the rule. Although the issuance of a FOQA Advisory 
Circular has necessarily been linked to the issuance of a final FOQA 
rule, the FAA already has made advisory materials, including a detailed 
I & O Plan template, available to any interested operator for the past 
5 years. With regard to the content of a FOQA I & O Plan, the existing 
advisory materials closely match the requirements of this rule, as well 
as the FOQA Advisory Circular.
    The FAA adopts Sec. 13.401(c) as proposed, with two minor working 
additions for clarification purposes that do not change the meaning of 
the section as originally proposed. The word ``maintain'' was inserted 
into proposed paragraph Sec. 13.401(c), as in ``the operator must 
submit, maintain, and adhere to a FOQA Implementation and Operations 
Plan * * *.'' This word was inserted to clarify that under this final 
rule an operator will be expected to maintain the currency of its FOQA 
I & O Plan. The phrase ``including identification of the data to be 
collected'' was added to proposed Sec. 13.401(c)(1), as in ``a 
description of the operator's plan for collecting and analyzing flight 
recorded data from line operations on a routine basis, including 
identification of the data to be collected.'' The language was added to 
clarify that the operator's plan must identify the data to be 
collected. The FAA does not intend to prescribe what data an operator 
will collect in its FOQA program as a condition for approval of FOQA I 
& O Plans. However, in order to allow the FAA to accomplish meaningful 
interpretation and additional processing of the aggregate data received 
from operators, it must be provided with information in advance that 
identifies the data to be collected. FOQA I & O plans that have been 
approved under existing FAA policy already contain that information.

Sec. 13.401(d)  Submission of Aggregate Data (Proposed Sec. 13.401(d), 
Access to Data). What Data Must Be Submitted to the FAA?

    The NPRM proposed that the operator would provide the FAA with 
aggregate FOQA data in a form and manner acceptable to the 
Administrator.
    Comment: One commenter asserted that the FAA has no authority to 
require submission of data for a voluntary program.
    FAA Response: The submission of aggregate FOQA data to the FAA is a 
condition for the enforcement protection afforded by this rule. Just as 
the FAA has the authority and responsibility for enforcing the aviation 
regulations, it clearly has the authority to define the conditions on 
which basis any enforcement protection from those regulations will be 
afforded. The Aviation Safety Reporting Program is an existing 
regulatory example of the exercise of that authority to extend 
enforcement protection in the overall interest of safety enhancement, 
subject to certain conditions.
    Comment: A number of commenters expressed concern that by virtue of 
this requirement, the FAA intends to force airlines to comply with FAA 
prescribed data collection requirements. These commenters stated that 
any such attempt by the FAA would adversely impact the effectiveness of 
such programs, and inhibit initiative to explore new areas for data 
collection.
    FAA Response: The FAA does not intend to require operators to 
comply with FAA specified data collection protocols. The FAA 
acknowledges that were it to do so, it could adversely effect the 
continued growth and effectiveness of voluntary FOQA programs. The FAA 
notes that if the agency intended to prescribe data collection 
requirements, then it would have proposed specific requirements in the 
NPRM.
    Comment: A number of commenters observed that various operators 
employ different definitions for FOQA events. These commenters stated 
that it would therefore not be possible for the FAA to accomplish 
meaningful aggregation of data, and they recommended that this 
requirement therefore be deleted.
    FAA Response: The FAA is aware of the commonalities and differences 
in how operators define FOQA events. First, any differences among 
operators would not impact FAA aggregation specific to a particular 
operator. Second, with regard to aggregation across multiple operators, 
the FAA has established a statistical approach which will allow it to 
accomplish meaningful trend analysis that fully takes into account 
whatever differences may exist in event definitions between operators. 
One of the functions of a FOQA I & O Plan is to provide the FAA with 
the information it needs in order to appropriately accomplish 
aggregation across multiple operators. Proposed Sec. 13.401(d) is 
adopted without modification, except for the title of the paragraph. 
The title has been changed from proposed ``Access to data'' to 
``Submission of Aggregate Data'' in the final rule in order to more 
accurately describe the content of the paragraph.

Sec. 13.401(e)  Enforcement (Proposed Sec. 13.401(e)) What Protections 
Does This Rule Provide Against the Use of FOQA Data by the FAA for 
Enforcement Purposes?

    As proposed in the NPRM, Sec. 13.401(e)(1) would have provided that 
the Administrator could 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. Proposed 
Sec. 13.401(e)(2) provided that the Administrator could use any 
operator's FOQA data and/or aggregate FOQA data in a remedial 
enforcement action.
    Comment: The majority of commenters took strong exception to the 
provisions of proposed Sec. 13.401(e)(1) and Sec. 13.401(e)(2). They 
stated that there is one critical paragraph of the proposed rule that 
must be corrected to ensure industry participation and support 
regarding FOQA. They stated that Sec. 13.401(e)(1) must be rewritten to 
read ``The Administrator will not use an operator's FOQA data or 
aggregate FOQA data in enforcement actions against that operator or its 
employees except for criminal or deliberate acts''. They noted that 
this revised language would be consistent with the language of Section 
510 of the Wendell H. Ford Aviation Investment and Reform Act of the 
21st Century (AIR-21) concerning FOQA. These commenters also took 
strong exception to proposed Sec. 13.401(e)(2), which would have 
allowed the use of FOQA data and/or aggregate FOQA data for remedial 
enforcement purposes. These commenters stated that this paragraph must 
be removed from the rule in order to assure industry participation and

[[Page 55046]]

support regarding FOQA programs. They stated that this paragraph 
utterly destroys the spirit, intent, and operational effectiveness of 
any FOQA program, and inpugns the credibility of the rule itself. They 
stated that removing this paragraph from the rule would make the rule 
workable, acceptable, and supportable from an industry standpoint. They 
stated that in order to elicit industry support, all references to 
remedial and punitive actions should be removed from the preamble. One 
commenter noted that the rationale in the NPRM for retaining remedial 
enforcement authority as stated in the preamble does not appear to be 
consistent with the fact that the existing regulations extend 
protection from both civil penalty and certificate action for the 
cockpit voice recorder record.
    FAA Response: With one minor exception, the FAA concurs with these 
commenters. The FAA agrees that it is in the best overall interest of 
encouraging voluntary participation in FOQA, thereby enhancing public 
safety, to modify the language of the proposed rule regarding the use 
of FOQA data or aggregate data for enforcement purposes. The FAA 
further agrees that it is consistent with the intent of Congress as 
embodied in Section 510 of AIR-21, as well as with existing regulatory 
precedent, to make this change. However, the FAA believes that it is 
only appropriate to extend such enforcement protection to a FOQA 
program that has been approved by the Administrator. Accordingly, the 
language of the final rule has been modified to delete proposed 
paragraphs Sec. 13.401(e)(1) and Sec. 13.401(e)(2), and to replace them 
with a single paragraph Sec. 13.401(e) which states that except for 
criminal or deliberate acts, the Administrator will not use an 
operator's FOQA data or aggregate FOQA data in an enforcement action 
against that operator or its employees when such data or aggregate data 
is obtained from a FOQA program that is approved by the Administrator.
    Although the language of the final rule clearly provides 
protection, except for criminal or deliberate acts, from the use of 
information obtained from a FOQA program for enforcement purposes, this 
rule will have no impact on FAA enforcement action based on information 
obtained from other sources. For example, while the operator has a 
responsibility to initiate corrective action for adverse safety trends 
revealed by FOQA data, the FAA has the responsibility to verity that 
such corrective action is effective. This rule provides no protection 
from action based on information obtained from surveillance activities, 
including physical surveillance undertaken by the FAA to verify the 
effectiveness of corrective actions. One of the principal benefits to 
the FAA and to public safety of aggregate FOQA data submission will be 
the opportunity it affords to target the limited resources available 
for FAA surveillance to those areas where it is most needed. The FAA 
fully anticipates that it will conduct physical surveillance for that 
purpose in areas identified by FOQA aggregate trend data. FAA 
discretion to take action, including enforcement action where 
appropriate, based on such surveillance activities will not be affected 
by this final rule.

Sec. 13.401(f)  Disclosure (Proposed Sec. 13.401(f)) What Protections 
From the Disclosure of FOQA Information Will the FAA Provide?

    The NRPM proposed that FOQA data and aggregate FOQA data, if 
submitted in accordance with the provisions of Part 193, would be 
afforded the nondisclosure protections of that part.
    Comment: One commenter observed that this provision of the NPRM 
makes reference to a non-existent part.
    FAA Response: Part 193 had not yet been issued as a final rule when 
the NPRM was issued. Part 193 was published on June 25, 2001 (66 FR 
33791) as a final rule. Part 193 provides in part that the FAA may 
issue an order designating certain voluntarily provided safety 
information as protected from disclosure. The FAA intends to publish in 
the Federal Register a proposed order to protect FOQA data and 
aggregate FOQA data under part 193. If adopted, the order under part 
193 will cover all approved FOQA programs entered into by all 
operators.
    Section 13.401(f) provides that FOQA data and aggregate FOQA data, 
if submitted in accordance with an order designating the information as 
protected under part 193 of this chapter, will be afforded the 
nondisclosure protections of that part.

Sec. 13.401(g)  Withdrawal of Program Approval (Proposed 
Sec. 13.401(g)) On What Grounds May the Administrator Withdraw Approval 
of a Previously Approved FOQA Program?

    This paragraph states that the Administrator may withdraw program 
approval for failure to comply with the requirements of the chapter. It 
further identifies some, but not necessarily all, of the potential 
grounds for withdrawal, including:
    (1) Failure to implement corrective action that analysis of 
available FOQA data indicates is necessary in the interest of safety,
    (2) Failure to correct a continuing pattern of violations following 
notice by the agency, and
    (3) Willful misconduct or willful violation of the regulations.
    No comments on this paragraph were received, and it is adopted 
without modification.

Paperwork Reduction Act

    The amendment to 14 CFR Part 13 contains information collection 
requirements. As required by the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), the FAA submitted a copy of these sections to the 
Office of Management and Budget for its review. The collection of 
information was approved and assigned OMB Control Number 2120-0660. The 
FAA received no comments pertaining to the Paperwork Reduction Act.
    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 under the regulations. By this amendment, the 
FAA will require certificate holders who voluntarily establish approved 
FOQA programs to periodically provide aggregate trend analysis 
information from such programs 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 threats 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 uses this information to 
monitor operation trends, to identify areas in need of corrective 
action, and to verify that corrective action is effective. The 
aggregate FOQA information would also be employed by the FAA to monitor 
national trends and as a source of objective information for agency 
decision making regarding policy and regulatory issues.
    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. They would 
respond monthly. However, currently twelve certificate

[[Page 55047]]

holders, nearly all of which are major airlines, 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 144 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.

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 benefits 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. section 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 sector, of $100 
million or more annually (adjusted for inflation).
    In conducting these analyses, the FAA has determined this rule (1) 
has benefits which do justify its costs, is ``a significant regulatory 
action'' as defined in the Executive Order and is ``significant'' as 
defined in DOT's Regulatory Policies and Procedures; (2) will not have 
a significant impact on a substantial number of small entities; and (3) 
does not impose an unfunded mandate on state, local, or tribal 
governments, or on the private sector. These analyses are summarized 
below.
    Any costs associated with providing the FAA with aggregate FOQA 
data is expected to be nominal. The FAA does not propose to require 
submission of FOQA data from individual flights to the government. 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 final 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 final 
rule only requires certificate holders who voluntarily establish 
approved FOQA programs to provide periodically the aggregate trend data 
from such programs to the FAA, the costs from this rule are nominal. 
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 for U.S. 
standards.
    In accordance with the above statute and policy, the FAA has 
assessed the potential effect of this final rule to be minimal and 
therefore has determined that this rule will not result in an impact on 
international trade by companies doing business in or with the United 
States.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) establishes (as a 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the rule and of applicable statutes, 
to fit regulatory and informational requirements to the scale of the 
business, organizations, and governmental jurisdictions subject to 
regulation.) To achieve that principle, the Act requires agencies to 
solicit and consider flexible regulatory proposals and to explain the 
rationale for their actions. The Act covers a wide-range of small 
entities, including small businesses, not-for-profit organizations and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the determination is that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the Act.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the 1980 act 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.
    This action establishes a voluntary program and therefore the FAA 
expects this rule to impose only nominal cost on small entities. 
Consequently, the FAA certifies that the rule will not have a 
significant economic impact on a substantial number of small entities.

Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of 
Executive Order 13132, Federalism. The FAA has 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, the FAA has determined that this rulemaking does 
not have federalism implications.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995, enacted as Public Law 
104-4 on March 22, 1995, is intended, among other things, to curb the 
practice of imposing unfunded Federal mandates on State, local, and 
tribal governments. Title II of the Unfunded Mandates Reform Act 
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 a $100 million or more expenditure (adjusted 
annually for inflation) 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.''
    This final rule does not contain such a mandate. Therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply.

[[Page 55048]]

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 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) Public Law 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, Aviation 
safety, Investigations, Law enforcement.

The Admendment

    In consideration of the foregoing, the Federal Aviation 
Administration amends part 13 of the Federal Aviation Regulations (14 
CFR part 13) 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, consisting of Sec. 13.401 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 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 digital 
flight data gathered during aircraft operations, including data 
currently collected pursuant to existing regulatory provisions, when 
such data is included in an approved FOQA program.
    (2) FOQA data means any digital flight data that has been collected 
from an individual aircraft pursuant to an FAA-approved FOQA program, 
regardless of the electronic format of that data.
    (3) Aggregate FOQA data means the summary statistical indices that 
are associated with FOQA event categories, based on an analysis of FOQA 
data from multiple aircraft operations.
    (c) Requirements. In order for paragraph (e) of this section to 
apply, the operator must submit, maintain, and adhere to a FOQA 
Implementation and Operation 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, 
including identification of the data to be collected;
    (2) 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;
    (4) Procedures for informing the FAA as to any corrective action 
being undertaken pursuant to paragraph (c)(2) of this section.
    (d) Submission of aggregate data. The operator will provide the FAA 
with aggregate FOQA data in a form and manner acceptable to the 
Administrator.
    (e) Enforcement. Except for criminal or deliberate acts, the 
Administrator will not use an operator's FOQA data for aggregate FOQA 
data in an 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.
    (f) Disclosure. FOQA data and aggregate FOQA data, if submitted in 
accordance with an order designating the information as protected under 
part 193 of this chapter, will be afforded the nondisclosure 
protections of part 193 of this chapter.
    (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; or also
    (3) Willful misconduct or willful violation of the FAA regulations 
in this chapter.

    Issued in Washington, DC, on October 25, 2001.
Jane F. Garvey,
Administrator.
[FR Doc. 01-27273 Filed 10-30-01; 8:45 am]
BILLING CODE 4910-13-M

 
 

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