[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]                         

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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.

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

[[Page 56771]]

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 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 designations. 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 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

[[Page 56772]]

(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

    A. Who may participate: Aircraft operators who have an FAA approved 
FOQA Implementation and Operations Plan.
    B. 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.
    C. 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.
    D. 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. 02-22269 Filed 9-4-02; 8:45 am]
BILLING CODE 4910-13-M