Administrative regulations: Flight Operational Quality Assurance Program information; protection from disclosure,

[Federal Register: September 5, 2002 (Volume 67, Number 172)]

[Proposed Rules]

[Page 56770-56774]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr05se02-12]

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 193

[Docket No. FAA-2002-13237]

Flight Operational Quality Assurance Program

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of Proposed Order Designating Information as Protected from Disclosure.

SUMMARY: The FAA is proposing that information provided to the agency from a voluntary Flight Operational Quality Assurance (FOQA) Program be

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designated by an FAA order as protected from public disclosure in accordance with the provisions of 14 CFR Part 193. Under 49 U.S.C. 40123, the FAA is required to protect the information from disclosure to the public, including disclosure under the Freedom of Information Act (5 U.S.C. 552) or other laws, following issuance of such order. The designation is intended to encourage sharing of FOQA information between the FAA and operators participating in the program.

DATES: Comments must be received on or before October 7, 2002.

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- 2002-13237 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 this proposed designation 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 Ave, SW., Washington, DC 20591, telephone (703) 661-0275.

SUPPLEMENTARY INFORMATION

Comments Invited

Interested persons are invited to comment on the proposed designation 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 proposal in this notice are also invited. Substantive comments should be accompanied by cost estimates, where appropriate. Comments should identify the 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 designation will be filedin 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 designations. Comments filedlate 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 acknowlege 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 the Docket No. FAA-2001-XXXX.'' The postcard will be date stamped and mailed to the commenter.

Availability of This Proposed Designation

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 access the FAA's Web page containing this notice at http://www.faa.gov/avr/afs/asap or may go to the GPO's Web page at http://www.access.gpo.gov/nara for access to recently published notices.

Any person may obtain a copy of this document by submitting a request to the Federal Aviation Administration, Air Transportation Division, AFS-200, 800 Independence Ave, SW., Washington, DC 20591, or by calling (202) 267-8166. Communications must identify the docket number and title of this designation.

Background

Under 49 U.S.C. 40123, certain voluntarily provided safety and security information is protected from disclosure in order to encourage persons to provide the information to the FAA. The FAA must first issue an order specifying why the agency finds that the information should be protected in accordance with that section. The FAA's rules for implementing that section are in 14 CFR part 193. If the Administrator issues an order designating information as protected under section 40123, that information will not be disclosed under the Freedom of Information Act (5 U.S.C. 552) or other laws except as provided in section 40123, part 193, and the order designating the information as protected. This proposed order is issued under 14 CFR 193.11, which sets out the notice procedure for designating information as protected.

Description of the Proposed Information Sharing Program

FOQA is a voluntary program for the routine collection and analysis of digital flight data for the purpose of identifying adverse safety conditions, and, where appropriate, for proactively initiating corrective action before such conditions can lead to accidents. The information provided by FOQA can be used by aircraft operators to improve the effectiveness of operational procedures, maintenance and engineering procedures, safety, and training. FOQA information can be used by aircraft manufacturers to improve system design, efficiency, and safety. FOQA aggregate information, including reports prepared by an individual operator, or by the FAA, based on analysis of the individual operator's FOQA data or aggregate data pursuant to an FAA approved FOQA program, can be used by the FAA to monitor national trends in flight operations, assess the effectiveness of NAS management procedures, improve aircraft certification procedures, and, where appropriate, provide an objective source of supplementary information for national policy and rulemaking purposes. FOQA trend information offers tremendous potential for the enhancement of safety in U.S. airline operations.

In a January 1995 Department of Transportation (DOT) ``Zero Accidents'' Aviation Safety Conference, it was recommended that the FAA sponsor FOQA demonstration studies, in cooperation with industry, to develop guidelines for such programs and to develop information regarding the appropriate use and protection of recorded flight data. In July 1995, the FAA initiated a FOQA Demonstration Project that has been highly successful in facilitating the growth of voluntary FOQA programs for U.S. operators.

In December 1998, the FAA Administrator issued a FOQA Policy Statement that the FAA will not use de-identified FOQA information obtained from voluntary FOQA programs to undertake enforcement actions against airlines or their employees, except in egregious cases (which are defined as those which would fail to qualify for protection under the NASA Aviation Safety Reporting Program). In order to qualify for the protection afforded by this FOQA policy statement, airlines must obtain FAA approval of their FOQA Implementation and Operations

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(I&O) Plan. The I&O Plan must describe how the airline intends to operate its FOQA program, and its organizational procedures for assuring corrective action is taken to address negative trends revealed by analysis of the data. It must also describe the airline's provisions for allowing the FAA to have access to de-identified FOQA aggregate trend data on the airline's premises. Further information on FAA procedures for approving and monitoring FOQA programs is provided in a Joint Flight Standards Service Handbook Bulletin for Air Transportation (HBAT) and Airworthiness (HBAW), entitled Flight Operations Quality Assurance (FOQA) Program Approval Procedures and Continued Program Monitoring, Bulletin Number HBAT-00-11/HBAW-00-10.

A Notice of Proposed Rulemaking (NPRM) which addressed the extent to which the FAA could use FOQA information obtained from voluntary FOQA programs for enforcement purposes, and which also addressed provisions for sharing aggregate FOQA information from FAA approved FOQA programs with the FAA, was published in the Federal Register on July 5, 2000. Based on analysis of the comments received on that NPRM, the FAA published a final FOQA rule on October 31, 2001 (66 FR 55042) addressing these matters (14 CFR 13.401).

Under 14 CFR 13.401, no operator is required to obtain FAA approval to initiate, conduct, or terminate a FOQA program. However, an operator who seeks the protection offered by the FAA from the use of information obtained from a FOQA program for enforcement purposes must obtain FAA approval of its FOQA I&O Plan, and must adhere to that plan in the operation of its FOQA program. This proposed order to protect FOQA information from disclosure would only apply to operators who have an FAA approved FOQA I&O Plan.

Summary of the FOQA Voluntary Information Sharing Program

1. Who may participate: Aircraft operators who have an FAA approved FOQA Implementation and Operations Plan.

2. What voluntarily provided information would be protected from disclosure under this proposed designation:

   1. FOQA data, which is defined as 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 (Note: Operators are not expected or required to provide the FAA with FOQA data as a condition for approval of a FOQA I&O Plan. However, if an operator elects on its own initiative to voluntarily provide such information to the FAA, it will be protected from disclosure under this proposed order of designation.).

   2. The identities of pilots associated with any FOQA data submitted to the FAA (Note: the FAA does not anticipate that FOQA data containing pilot identity information, or information that could be employed to enable the determination of pilot identity, will be submitted to the agency. However, if such information is submitted to the agency, it will be protected from disclosure under this proposed order of designation.).

   3. Aggregate FOQA data from an individual operator, which is defined as summary statistical indices based on analysis of FOQA data from multiple aircraft operations, when such data is obtained pursuant to an FAA approved FOQA program.

   4. Reports prepared by an individual operator, or by the FAA, based on analysis of the individual operator's FOQA data or aggregate data pursuant to an FAA approved FOQA program.

   5. The identity of an individual operator associated with specific FOQA data, specific aggregate FOQA data, or a specific report derived from analysis of the individual operator's FOQA data, pursuant to an FAA approved FOQA program.

   6. The specific results of any FAA analysis of FOQA aggregate data from an individual operator, or from multiple operators, when such data is obtained pursuant to an FAA approved FOQA program.

   7. The specific corrective actions initiated by the operator of an FAA approved FOQA program to correct an adverse safety trend revealed by analysis of that operator's FOQA data.

   8. A database of aggregate FOQA data over time from an individual operator's approved FOQA program.

   9. A database of reports, events, and outcomes over time from an individual operator's approved FOQA program.

3. How persons would participate: An operator participates by obtaining FAA approval of its FOQA I&O Plan, by adhering to that approved plan, and by voluntarily sharing data and information from their FOQA program with the FAA.

4. Duration of this information sharing program: This information sharing program would continue in effect for a given operator until its FOQA I&O Plan is terminated by the operator or until approval of the operator's FOQA I&O Plan is withdrawn by the FAA.

   Proposed Findings

   The FAA proposes to designate information received from an approved FOQA program as protected under 49 U.S.C. 40123 and 14 CFR 193.7 based on the following findings:

   (1) Summary of why the FAA finds that the information will be provided voluntarily.

   The FAA finds that the information will be provided voluntarily. No operator is required to have a FOQA program. No operator who has a FOQA program is required to obtain FAA approval of that program. Any operator who has an FAA approved FOQA program may terminate that program at the operator's discretion. The FAA anticipates that information from an operator's approved FOQA program will be shared with the FAA, because the voluntary establishment of an approved FOQA program constitutes a partnership between the FAA and the operator in the interest of achieving joint goals for the improvement of safety and efficiency.

   (2) Description of the type of information that may be voluntarily provided under the program and a summary of why the FAA finds that the information is safety or security related.

   The FAA anticipates that the types of information that may be voluntarily provided under the program would be: (a) Summary statistical indices based on analysis of an individual operator's FOQA data, (b) graphical depictions of trend information obtained from analysis of an individual operator's FOQA data, (c) written findings that describe the results of FOQA data analysis, and that identify any adverse safety trends revealed by that data, (d) corrective actions planned, in process, or completed to correct adverse safety trends revealed by FOQA data, and (e) the results of FOQA analysis conducted to determine the effectiveness over time of corrective action accomplished by the operator.

   The FAA finds that this information is safety related because FOQA data and FOQA aggregate data provide objective information on the extent to which aircraft are operated in accordance with established procedures and acceptable margins of safety.

   (3) Summary of why the FAA finds that the disclosure of the information would inhibit persons from voluntarily providing that type of information.

   The FAA finds that disclosure of the information would inhibit the voluntary provision of that type of information. Operators are reluctant to share information from FOQA programs with the FAA, if such information might be

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   subject to public disclosure. A significant impediment to the sharing of FOQA information with the FAA is the aviation industry's concern over public disclosure of the information, and, if disclosed, the potential for it to be used for other than the safety enhancement purposes which constitute the primary reason for the establishment of such programs. As a result, U.S. airlines participating in FAA approved FOQA programs to date have not permitted aggregate FOQA data, and any written information derived from analysis of such programs, to leave the airline's premises. At present, no FOQA aggregate data is being submitted to the FAA. This information is considered to be confidential by the participating operators and their pilots. Withholding such information from disclosure is consistent with the FAA's safety and security responsibilities because, unless the FAA can provide assurance that it will not be disclosed, the FAA will not receive the information. If the FAA does not receive the information, the FAA and the public will be deprived of the opportunity to make the safety improvements that receipt of the information otherwise enables. The FAA finds that reports prepared by an individual operator, or by the FAA, based on analysis of the individual operator's FOQA data or aggregate data, should be protected from public disclosure because, when such reports are based on an individual operator's FOQA data, the identity of the operator may be derived from that information. Unless the FAA can assure protection of identity information, either such reports will not be submitted by the operator, or specific information which could enhance the safety value of the report will not be included in the submission.

   (4) Summary of why the receipt of that type of information aids in fulfilling the FAA's safety and security responsibilities.

   The FAA finds that receipt of FOQA information aids in fulfilling the FAA's safety and security responsibilities. Because of its capacity to provide early objective information on emerging adverse safety trends, thereby enabling remedial intervention, FOQA offers significant potential for incident and accident avoidance. FAA experience to date has clearly established that a FOQA program can produce objective safety-related data that is not available from any other source. For example, FOQA data concerning the frequency of unstable approaches on landing as a function of specific airport and runway environment could identify areas where improvements are needed in airline approach and landing checklists, airline training, air traffic control procedures, and in published airport approach and landing procedures. Receipt of this hitherto unavailable objective information would provide the FAA with an improved basis for modifying procedures, policies, and regulations in order to improve safety and efficiency. To the extent that operators would voluntarily supporting providing the FAA with aggregate FOQA data, the FAA could also better serve as a national safety information resource for aircraft operators.

   (5) Summary of why withholding such information from disclosure would be consistent with the FAA's safety and security responsibilities, including a statement as to the circumstances under which, and a summary of why, withholding such information from disclosure would not be consistent with the FAA's safety and security responsibilities. as described in 14 CFR 193.9.

   The FAA finds that withholding FOQA data or aggregate FOQA data provide to the FAA from an approved FOQA program is consistent with the FAA's safety responsibilities. An approved FOQA I&O Plan specifically provides that correction action for adverse safety trends will be initiated by the operator, and that the operator will inform the FAA concerning that action. Correction action under FOQA can be accomplished without disclosure of protected information. For example, an operator could modify its pilot training program to place greater emphasis on approach and landing procedures, and inform the FAA of that training program modification.

   The FAA will release FOQA information submitted to the agency as specified in part 193 and this proposed order. In order to explain the need for changes in FAA policies, procedures, and regulations, the FAA may disclouse de-identified (no operator or pilot identity), summarized information that has been derived from FOQA aggregate data or extracted from the protected information listed above under What voluntarily provided information would be protected from disclosure under this proposed designation. The FAA may disclose de-identified, summarized FOQA information that identifies a systemic problem in the aviation system, when other persons need to be advised of the problem so that they can take corrective action. The FAA may release the names of operators who have approved FOQA I&O Plans.

   (6) Summary of how the FAA will distinguish information protected under Part 193 from information the FAA receives from other sources.

   An operator's approved FOQA I&O Plan must specifically identify what digital flight data will be included in the program, how that data is defined, and provisions for FAA access to aggregate FOQA data. Any FOQA data or aggregate FOQA data that is shared with the FAA will be distinguished from information received from other sources, by virtue of that information having been clearly pre-defined as FOQA information in the FAA approved FOQA I&O Plan. Moreover, there do not exist any provisions other than those provided under an approved FOQA I&O Plan for sharing aggregate FOQA data with the FAA. Therefore, with regard to aggregate FOQA data, it is not anticipated that there will be other sources of that information.

   The FAA acknowledges that operators are highly reluctant to share sensitive FOQA information with the FAA, in part because of concerns that even if the information is designated as protected under part 193, it may still be inappropriately released by someone in the agency. Therefore, the FAA anticipates that to be successful, any program for FOQA information sharing will have to proceed on an incremental basis. It will be incumbent on the FAA to demonstrate on a stepwise basis that the measures it puts in place to protect FOQA information from disclosure are in fact fully effective for that purpose. Initial submissions under part 193 will be accomplished in the form of paper reports consisting of aggregate FOQA information from one or more airlines, with airline identity redacted. All such reports must be clearly labeled as follows in order to be protected under this designation ``WARNING: The Information in this Document Is Protected from Disclosure under 49 U.S.C. 40123 and 14 CFR part 193. This information May Be Released Only With Written Permission of the Associate Administrator for Regulation and Certification.''

   However, ultimately the FAA hopes to establish a secure internet based methodology for the electronic acquisition of aggregate FOQA data. Progress toward that goal will be contingent on successful collaboration with industry to test, validate, and participate in the use of such a system. If implemented, the system would employ digital certificates to control access by all industry and FAA participants. Only government personnel who acknowledge in writing their understanding and acceptance of the restrictions on disclosure would be issued digital certificates. The FAA would distinguish FOQA information from other information, by virtue of the

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   fact that the planned electronic system would be dedicated to the acquisition of aggregate FOQA data. It would automatically include part 193 disclosure warning notices on all opening screen pages, and on each page of any paper printouts.

   Proposed Designation

   Accordingly, the Federal Aviation Administration hereby proposes to designate the above-described information submitted under an approved FOQA program to be protected under 49 U.S.C. 40123 and 14 CFR part 193.

   Issued in Washington, DC, on August 27, 2002. Nicholas A. Sabatini, Associate Administrator for Regulation and Certification.

   [FR Doc. 02-22269Filed9-4-02; 8:45 am]

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