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NTSB · Safety Recommendation

Safety Recommendation A-10-029

Recommendation

TO THE FEDERAL AVIATION ADMINISTRATION: Require 14 Code of Federal Regulations Part 121, 135, and 91K operators to (1) routinely download and analyze all available sources of safety information, as part of their flight operational quality assurance program, to identify deviations from established norms and procedures; (2) provide appropriate protections to ensure the confidentiality of the deidentified aggregate data; and (3) ensure that this information is used for safety-related and not punitive purposes.

Safety Issue and Context

On February 12, 2009, about 2217 eastern standard time,1 a Colgan Air, Inc., Bombardier DHC-8-400 (Q400),2 N200WQ, operating as Continental Connection flight 3407, was on an instrument approach to Buffalo-Niagara International Airport, Buffalo, New York, when it crashed into a residence in Clarence Center, New York, about 5 nautical miles northeast of the airport. The 2 pilots, 2 flight attendants, and 45 passengers aboard the airplane were killed, one person on the ground was killed, and the airplane was destroyed by impact forces and a postcrash fire.

The flight, which originated from Liberty International Airport (EWR), Newark, New Jersey, was operating under the provisions of 14 Code of Federal Regulations (CFR) Part 121. Night visual meteorological conditions prevailed at the time of the accident.

Response History

January 31, 2024 · NTSB Correspondence · FAA

The National Transportation Safety Board (NTSB) has reviewed the Federal Aviation Administration’s (FAA) notice of proposed rulemaking (NPRM) titled “25 Hour Cockpit Voice Recorder (CVR) Requirement, New Aircraft Production,” published at 88 Federal Register 84090 on December 4, 2023. The NTSB notes the FAA is proposing to require the installation of 25-hour duration CVRs on only newly manufactured aircraft that require a CVR operating under Title 14 Code of Federal Regulations Parts 91, 121, 125, and 135.

For the reasons provided in this response, we do not fully support the NPRM because it does not propose a similar requirement to retrofit existing airplanes required to carry a CVR and a flight data recorder (FDR).

In 2018, the NTSB issued the following two recommendations to the FAA: Require all newly manufactured airplanes that must have a cockpit voice recorder (CVR) be fitted with a CVR capable of recording the last 25 hours of audio. (A-18-30)

By January 1, 2024, require retrofit of all cockpit voice recorders (CVR) on all airplanes required to carry both a CVR and a flight data recorder with a CVR capable of recording the last 25 hours of audio. (A-18-31)

As noted in the NPRM, these recommendations were issued after an incident in 2017 when an Air Canada Airbus A320 lined up to land on a taxiway occupied by several aircraft. The flight crew of the Airbus A320 descended below 100 feet above ground level before starting to climb. The CVR data were overwritten before Air Canada officials learned of the severity of the incident.

Although this incident prompted Safety Recommendations A-18-30 and A-18-31, the NTSB also identified 33 other events where the CVR data were overwritten because there was a delay between an event and the flight crew recognizing that event to be a serious incident or accident or the flight continued to operate for more than 2 hours after the event took place.

Since Safety Recommendations A-18-30 and A-18-31 were issued, at least 14 additional investigations have been hampered by the lack of CVR data that were overwritten, including 7 serious runway incursions that occurred in 2023 and a rapid decompression that occurred on an Alaska Airlines 737-9 MAX flight on January 5, 2024 (see table). In our 2018 report, the NTSB noted that CVRs are among the most valuable tools for accident investigation because they provide contemporaneous information on flight crew intentions and coordination as well other factors, such as procedural compliance, workload, fatigue, and situational awareness.

Read Recommendation

Recommendation Facts

Status
Closed - Unacceptable Action
Issued
February 23, 2010
Priority
CLASS II
Recipient
FAA
Adopted
February 19, 2010
Closed
December 1, 2023
Related Investigation
DCA09MA027
Related Report
AAR-10-01

In the Alaska Airlines accident, CVR data would have been critical in analyzing the environment in the flight deck with respect to the rapid decompression, opening of the flight deck door, flight crew communication difficulties with cabin crew and air traffic control, and the presence of aural alerts.

Table. NTSB investigations hampered by overwritten CVR data since 2018.

Date NTSB Case Number Location Event Description January 5, 2024 DCA24MA063 Portland, Oregon Rapid decompression August 11, 2023 OPS23FA010 San Diego, California Runway incursion (delayed notification) February 27, 2023 DCA23LA192 Boston, Massachusetts Runway incursion (delayed notification) February 22, 2023 DCA23LA185 Burbank, California Runway incursion February 16, 2023 DCA23LA179 Sarasota, Florida Runway incursion (delayed notification) February 4, 2023 DCA23FA149 Austin, Texas Runway incursion January 23, 2023 DCA23LA133 Honolulu, Hawaii Runway incursion January 13, 2023 DCA23LA125 New York, New York Runway incursion August 6, 2022 DCA22LA178 Atlanta, Georgia Hard landing

July 7, 2022 WPR22LA284 San Francisco, California Loss of control in flight February 15, 2020 ENG20LA016 Sacramento, California Electrical system malfunction December 18, 2019 DCA20CA043 Disputanta, Virginia Turbulence encounter November 6, 2019 DCA20IA014 Atlanta, Georgia Loss of control in flight June 15, 2019 DCA19CA167 Newark, New Jersey Hard landing

In addition to being used for accident investigations, CVR data may provide critical operational data to operators. The NTSB has recognized that an operator’s nonpunitive review of all available safety data could provide objective information about how their flights are conducted and enhance safety. The resulting safety enhancements could include improvements to training, policies, and procedures.

The NTSB is pleased the FAA is proposing to implement the action called for in Safety Recommendation A-18-30 by requiring newly manufactured aircraft required to carry a CVR be equipped with a CVR that records the last 25 hours of aircraft operation. This action will help identify safety issues as well as harmonize US regulations with the intent of rules and standards already in place in Europe and at the International Civil Aviation Organization. If a final rule is issued based on this NPRM, it will likely satisfy Safety Recommendation A-18-30.

However, the NTSB is disappointed that the NPRM does not propose a similar requirement to retrofit existing airplanes, as recommended in Safety Recommendation A-18-31. The service life of airplanes can exceed 40 years, thus, if not retrofitted, existing airplanes will fly for decades with the risk of having a CVR be overwritten after an incident or accident, resulting in potentially critical lost data. The NPRM cites excessive costs as justification not to include the existing fleet in the proposed regulations.

The NPRM indicates that a retrofit requirement would apply to 29,561 aircraft in the existing fleet but does not provide information about the makeup of aircraft included in that number. The NTSB limited the applicability of Safety Recommendation A-18-31 to airplanes required to carry both a CVR and an FDR recognizing there would a cost burden on the existing fleet. We estimate that Safety Recommendation A-18-31 would apply to about 13,500 airplanes in the current fleet. This estimate includes non-military, turbine-powered multiengine in-service airplanes on the US registry with 10 or more passenger seats, which is generally the cutoff where an FDR would be required.

This is a conservative estimate as this population includes many airplanes capable of single-pilot operations that would not require a CVR.

The FAA’s cost benefit analysis also does not address the number of airplanes that would be retired, scrapped, or otherwise removed from the US registry during the 5-year retrofit period envisioned in Safety Recommendation A-18-31. The NPRM cites additional costs, such as aircraft down time and labor hours to replace a CVR unit but acknowledges in the “Summary of the Regulatory Impact Analysis” section that “25-hour [CVRs] tend to match the older 2-hour variants in a manner that allows them to be swapped without much difficulty.”

The 5-year retrofit period would also allow operators the flexibility to schedule replacement of 2-hour CVRs during regular CVR maintenance, which would further reduce compliance costs. The NTSB urges the FAA to reassess its cost/benefit analysis taking these factors into account and reconsider its decision not to include existing airplanes required to carry both a CVR and an FDR in the NPRM.

In summary, the NTSB cannot fully support the proposed rule in its current form because we believe the FAA should include a requirement to retrofit existing airplanes, as recommended in Safety Recommendation A-18-31. The NTSB contends the retrofit requirement would apply to less than half the number of airplanes the FAA estimates. Further, the 5-year retrofit period would allow operators to update the CVRs during regular CVR maintenance.

Therefore, we believe the FAA has inappropriately estimated the cost of retrofitting the existing fleet and urge the FAA to reconsider its position and issue a final rule applicable to both newly manufactured airplanes that must have a CVR as well as existing airplanes required to ca

December 1, 2023 · NTSB Correspondence · FAA

You reported that cockpit voice recorder (CVR) data are excluded from FOQA because the data do not qualify as digital flight data. We point out, however, that this contradicts the information in your May 23, 2016, letter, which stated that:

14 CFR Section 13.401, (a)(2) defines FOQA data 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.

That letter goes on to say that “digitized CVR data is already protected which addresses the concern for protection to ensure confidentiality identified in the Board's recommendation.”

We previously told you that we would consider PL 112-95 an acceptable alternate response to A-10-29 if you determined that the confidentiality of additional information that would be collected and analyzed, such as CVR data, were similarly protected by PL 112-95; and revised your guidance to include other types of data, such as CVR recordings. We believe you have addressed the first requirement; however, you have not revised your guidance to indicate that CVR data can be used as part of an operator’s FOQA program.

We continue to believe that the systematic monitoring of all available safety data, including CVR recordings, as part of a FOQA program could provide operators with objective information regarding the manner in which flights are conducted, and that a periodic review of this information would enhance flight safety by helping operators detect and correct deviations from standard operating procedures. Based on the FAA’s interpretation of the FOQA data protections, described above, we believe the FAA can take the actions recommended in Safety Recommendation A-10-29.

However, because your actions do not fully satisfy this recommendation, Safety Recommendation A-10-29 is classified CLOSED-- UNACCEPTABLE ACTION.

February 13, 2023 · Recipient Response · FAA

-From Billy Nolen, Acting Administrator: In the Board’s November 2, 2020, letter, it stated:

We do not believe your revisions to Order 8900.1 are responsive to this recommendation. We remain concerned that neither Order 8900.1 nor Advisory Circular (AC) 120-82 contain information about other sources of Flight Operational Quality Assurance (FOQA) data that are in addition to flight data recorders and quick access recorders— such as Cockpit Voice Recorder (CVR)—data.

As a result, on May 11, 2021, the Federal Aviation Administration (FAA) met with National Transportation Safety Board (NTSB) staff to discuss this recommendation. NTSB staff described that the data provision provided by Public Law 112-95, Sec. 310, § 44735, Limitation on Disclosure of Safety Information, which states that “…a report, data, or other information described in subsection (b) shall not be disclosed to the public by the Administrator of the Federal Aviation Administration,” does not apply if the information has been de-identified (Sec. 310, subsection (c)).

NTSB staff also noted that they did not want the FAA to require FOQA programs but instead were looking to include additional guidance in AC 120-82, FOQA, concerning FOQA that would be specific to CVR data. NTSB staff concluded the meeting by stating the intent of the recommendation is not that operators would need to submit the data to the FAA but for operators to use the information for their own purposes.

The FAA met internally and discussed the new information provided by NTSB staff. The following points resulted from this subsequent meeting:

• FOQA is a voluntary safety program designed to improve aviation safety through the proactive use of flight data recorder data. The use of CVR data is not used in this way and not included in the aggregate data;

• The FOQA program utilizes routine collection and analysis of digital flight data generated during aircraft operations. This excludes all CVR data, as it does not meet the qualifications to be considered digital flight data;

• FOQA focuses on aggregate trends rather than individual flights; and

• FOQA collects data through a quick-access recorder or directly from a flight data recorder. The collection of this data does not include CVR data.

In addition, the FAA notes that the Implementation and Operations Plan, which is a detailed plan specifying all aspects of an operator’s FOQA program, should include a copy of the letter of agreement on FOQA with the pilots’ collective barging unit (CBU), if applicable; a list of events, parameters, and threshold values to be used in the program for each FOQA-equipped aircraft fleet; and a list of documents referenced or cited. The pilots’ CBU is an integral part of the FOQA program, which does not support the collection of CVR data.

The FAA has met the intent of all three parts of this safety recommendation with this and our previous responses.

I believe that the FAA has effectively addressed Safety Recommendation A-10-29 and consider our actions complete with no further action planned.

November 2, 2020 · NTSB Correspondence · FAA

You previously told us that Public Law (PL) 112-95, “FAA Modernization and Reform Act of 2012,”1 established specific statutory FOQA data protection authority, but also explicitly said that the protections should only be established for safety-related data that has been voluntarily submitted to the FAA. It was our understanding that the provisions of PL 112-95 prevented you from taking the actions recommended in Safety Recommendations A-10-27 and -28, which were classified “Closed—No Longer Applicable.” However, after further consideration, we believe your interpretation of the statutory FOQA data protections is incomplete.

We point out that Title 49 US Code section 44735 “Limitation on Disclosure of Safety Information,” subsection (a) states:

Except as provided by subsection (c), a report, data, or other information described in subsection (b) shall not be disclosed to the public by the Administrator of the FAA pursuant to section 552(b)(3)(B) of title 5 if the report, data, or other information is submitted to the FAA voluntarily and is not required to be submitted to the Administrator under any other provision of law.

Subsection (c)(1), states:

The limitation established by subsection (a) shall not apply to a report, data, or other information if the information contained in the report, data, or other information has been de-identified.

Based on our interpretation of subsections (a) and (c), above, the statutory protections of voluntarily submitted data explicitly do not apply to de-identified information. Because “de identification” is a fundamental tenant of FOQA, we believe the FAA is able to take the actions recommended in Safety Recommendations A-10-27 and -28, and we request that you reconsider your position.

With regard to Safety Recommendation A-10-29, you previously told us that 14 CFR 401, “Flight Operational Quality Assurance Program: Prohibition Against Use of Data for Enforcement Purposes,” prohibits collected FOQA data from being used for punitive purposes and considers digitized cockpit voice recorder (CVR) data to be a part of the collected FOQA data that is protected. Based on this information, we believe you have addressed subparts (2) and (3) of this recommendation.

With regard to subpart (1) of the recommendation, we previously told you that an acceptable alternate response would include updating AC 120-82 and Order 8900.1 to include information about additional data sources for FOQA programs, such as CVR data. We note that you have revised Order 8900.1, Volume 11, Chapter 2, section 2, “Safety Assurance System: Flight Operational Quality Assurance,” to include additional FOQA topics; however, you no longer intend to update AC 120-82, “Flight Operational Quality Assurance.” We do not believe your revisions to Order 8900.1 are responsive to this recommendation.

We remain concerned that neither Order 8900.1 nor AC 120-82 contain information about other sources of FOQA data that are in addition to flight data recorders and quick access recorders—such as CVR—data. We continue to believe that the systematic monitoring of all available safety data, including CVR recordings, as part of a FOQA program could provide operators with objective information regarding the manner in which flights are conducted, and that a periodic review of this information would enhance flight safety by helping operators detect and correct deviations from standard operating procedures.

Based on our interpretation of the FOQA data protections, described above, we believe the FAA is able to take the actions recommended in Safety Recommendation A-10-29, and we request that you reconsider your position. In the meantime, pending completion of the recommended action, Safety Recommendation A-10-29 is classified OPEN--UNACCEPTABLE RESPONSE.

March 25, 2020 · NTSB Correspondence · FAA

-From Steve Dickson, Administrator: As stated in our October 15, 2012, letter, the Federal Aviation Administration (FAA) recognized the benefits of Flight Operational Quality Assurance (FOQA) programs and planned to fully adopt this recommendation through an alternative action for part 121 operators.

On June 29, 2018, the FAA published a revision to FAA Order 8900.1, Flight Standards Information Management System, volume 11, chapter 2, section 2, Safety Assurance System: Flight Operational Quality Assurance (fsims.faa.gov). The FAA believes section 11-67 of this order, FOQA CONCEPTS, addresses the intent of this recommendation.

In this section you will find the following topics: A. FOQA Is a Proactive Safety Program; B. FOQA Is Focused on Aggregate Trends Rather Than Individual Flights; C. FOQA Analysis Is a Continuous Process; D. FOQA Is a Nonpunitive Program; and E. The Sum of FOQA Is Greater Than Its Parts

The FAA no longer plans to update AC 120-82, Flight Operational Quality Assurance, as we believe FAA Order 8900.1 meets the intent of this safety recommendation.

I believe that the FAA has effectively addressed this safety recommendation and consider our actions complete.

August 11, 2016 · NTSB Correspondence · FAA

We requested clarification as to whether Public Law (PL) 112-95 establishes similar protections for all data collected as part of a FOQA program, such as those captured by cockpit voice recorders (CVRs). You responded that PL 112-95 does not apply to CVR data, but that such data is protected by the FOQA rule. Further, you stated that, regardless of its electronic format, digital flight data—including that from a CVR—collected from an aircraft pursuant to an FAA-approved FOQA program are considered to be FOQA data, and are therefore protected under 14 CFR 13.401, “Flight Operational Quality Assurance Program: Prohibition Against Use of Data for Enforcement Purposes.”

We note that you intend to update Advisory Circular 120-82, “Flight Operational Quality Assurance,” to include information about additional data sources for FOQA programs. We also acknowledge that you plan to update relevant guidance to inspectors in FAA Order 8900.1, “Flight Standards Information Management System,” volume 11, chapter 2, section 2, “Safety Assurance System: Flight Operational Quality Assurance.” Pending our acceptance of the updated guidance, Safety Recommendation A-10-29 remains classified OPEN--ACCEPTABLE ALTERNATE RESPONSE.

May 23, 2016 · Recipient Response · FAA

-From Michael P. Huerta, Administrator: As stated in our October 15. 20 12, letter. the Federal A vi at ion Administration (FAA) recognizes the benefits of Flight Operational Quality Assurance (FOQA) programs and plans to fully adopt these recommendations through alternative action for part 121 operators. The FAA will continue to encourage parts 135 and 91 subpart K operators to adopt FOQA programs.

Given that virtually all major passenger-carrying U.S. airlines and a significant number of larger regional airlines already comply on a voluntary basis with the provisions of these recommendations the FAA believes that mandating FOQA would not only fail to result in an enhanced benefit to public safety. it could actually diminish the effectiveness of FOQA programs presently in place.

In the Board's letter dated February 4, 2013 it stated its belief that Public Law (PL) 112-95 establishes protections for all data collected as part of a FOQA program including all types of available sources of safety improvement specified in this recommendation such as those captured by cockpit voice recorder (CVR) recordings. The Board asked the FAA to confirm their understanding or the applicability of the protection in PL 11 2-95 to such data. In response to the Board's question the FAA clarifies PL 112-95 provides protection for digital flight data outside of the flight data recorder (FOR) and quick access recorder (QAR) data as the FOQA rule already incorporates such protections.

However. 14 CFR § 13.401. Flight Operational Quality Assurance Program: Prohibition against use of data for enforcement purposes does not limit protections to only FOR and QAR data. Section 13.40 I (a)(2) defines FOQA data 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 or that data." Therefore. digitized CVR data is already protected which addresses the concern tor protection to ensure confidentiality identified in the Board's recommendation.

On January 8, 2015 the FAA published the Safety Management Systems for Domestic Flag and Supplemental Operations Certificate Holders Final Rule. The rule requires operators under part 121 to develop and implement a Safety Management System (SMS). The rule adds a new part 5 to 14 CFR. creating the general framework for an SMS that a part 121 air carrier may adapt to fit the needs of its operation. It also modifies that part 119 specify applicability and implementation or the new SMS framework in part 5 for aircraft operators certificated under part 12 1.

Guidance to FAA Flight Standards offices has been provided for implementation plan approval system validation acceptance and oversight for part 121 cet1ificate holders developing and implementing SMS.

Furthermore, the Board stated in its last letter that an acceptable alternative response to address this recommendation would involve revisions to FAA guidance such as advisory circular (AC) 120-82 Flight Operational Quality Assurance. Per the Board's request, the FAA will provide an update for operators in AC 120-82. In addition, we will update relevant guidance to inspectors in FAA Order 8900.1. Flight Standards information Management System volume 11. chapter 2 section 2. Safety Assurance system: Flight Operational Quality Assurance.

I will keep the Board informed of the FAA's progress on this recommendation and update the Board by August 31, 2017.

December 8, 2015 · NTSB Correspondence · FAA

CC# 201501092: The National Transportation Safety Board (NTSB) has reviewed the Federal Aviation Administration’s (FAA) draft Advisory Circular (AC) 20-CVR, “Airworthiness and Operational Approval of Cockpit Voice Recorder Systems,” which was posted for comment on the FAA’s website on November 10, 2015. The draft AC provides guidance to airframe manufacturers, cockpit voice recorder (CVR) systems manufacturers, aircraft operators, and Supplemental Type Certificate applicants to comply with regulations for the airworthiness and operational approval of CVR systems. During the investigation of the loss of control of Colgan Air, Inc.

Flight 3407 in Clarence Center, New York, on February 12, 2009, the NTSB issued the following recommendation to the FAA: Require 14 Code of Federal Regulations Part 121, 135, and 91K operators to (1) routinely download and analyze all available sources of safety information, as part of their flight operational quality assurance program, to identify deviations from established norms and procedures; (2) provide appropriate protections to ensure the confidentiality of the deidentified aggregate data; and (3) ensure that this information is used for safety-related and not punitive purposes. (A-10-29)

On October 15, 2012, the FAA replied to the recommendation stating in part, “The operator should develop and implement processes and procedures suitable to the complexity and needs of its organization to identify hazards and assess risks to its operation.” On February 4, 2013, the NTSB replied to the FAA and suggested modifying AC 120-82, “Flight Operations Quality Assurance” to include CVR recordings if appropriate protections in Public Law 112-95, section 310, (adding section 44735, “Limitation on disclosure of safety information,” to Title 49 United States Code) are applicable. This recommendation is currently classified “Open?Acceptable Alternate Response.”

The NTSB believes adding a foreword in the draft AC paralleling the foreword in AC 20 141B, “Airworthiness and Operational Approval of Digital Flight Data Recorder Systems,” is consistent with the FAA’s October 15, 2012, response and will help address Safety Recommendation A-10-29.

February 4, 2013 · NTSB Correspondence · FAA

The FAA’s October 15, 2012, letter groups the agency’s response to this recommendation with its response to Safety Recommendation A-10-27. Although both concern FOQA programs, we believe it is important to discuss the particular actions specified in Safety Recommendation A 10-29. The letter issuing this recommendation stated that Colgan Air had proposed including, as part of its FOQA program, a sample of cockpit voice recorder (CVR) recordings from routine line operations that could be used, with other information, to determine how well pilots adhered to sterile cockpit and standard operating procedures.

FOQA programs typically utilize only flight data from either the flight data recorder (FDR) or from a quick access recorder (QAR); such data do not usually include additional sources of information (such as those captured by a CVR). Safety Recommendation A 10 29 sought to include additional appropriate sources of information in FOQA programs, to ensure that appropriate protection of confidentiality would be provided and that these data would be used solely for safety-related, and not punitive, purposes.

PL 112-95 establishes specific statutory FOQA data protection authority, but only for safety-related data that have been voluntarily submitted, which prevents the FAA from requiring the collection and use of such data. We believe that PL 112-95 establishes similar protections for all data collected as part of a FOQA program, including the types of additional data (such as those captured by CVR recordings) specified in Safety Recommendation A-10-29. We ask the FAA to confirm our understanding of the applicability of the protection in PL 112-95 to such data.

We believe that, if the FAA agrees that PL 112-95 provides the necessary protections, an acceptable alternate response to this recommendation may involve revisions to FAA guidance, such as advisory circular 120-82, ”Flight Operational Quality Assurance,” to include information about sources of data for FOQA programs in addition to FDR and QAR data. We ask the FAA to consider such a response. Pending such action, Safety Recommendation A-10-29 is classified OPEN—ACCEPTABLE ALTERNATE RESPONSE.

October 15, 2012 · Recipient Response · FAA

-From Michael P. Huerta, Acting Administrator: The Federal Aviation Administration (FAA) recognizes the benefits of Flight Operational Quality Assurance (FOQA) programs and plans to fully adopt these recommendations through alternative action for part 121 operators. The FAA will continue to encourage parts 135 and 91 subpart K operators to adopt FOQA programs.

Given that virtually all major passenger-carrying U.S. airlines, and a significant number of larger regional airlines, already comply on a voluntary basis with the provisions of these recommendations, the FAA believes that mandating FOQA would not only fail to result in an enhanced benefit to public safety, it could actually diminish the effectiveness of FOQA programs presently in place. Currently, 39 part 121,4 parts 1211135, and 3 part 135 operators have FOQA programs; these operators collectively transport more than 90 percent of the flying public.

Public Law 111-216, Airline Safety and Federal Aviation Administration Extension Act of2010, included two sections that require FAA action applicable to these recommendations. Section 214 required the FAA to develop and implement a plan to facilitate the establishment of the Aviation Safety Action Program (ASAP) and FOQA program for all part 121 operators. The FAA provided its plan in a report to Congress on April 14, 2011, which is available at: http://www.faa.gov/about/office_org/headquarters_offices/agi/reports/media/Report%20to%20Congress%20on%20ASAP%20and%20FOQA.pdf.

Section 215 required the FAA to conduct rulemaking to require all part 121 operators to implement a Safety Management System (SMS). The rulemaking must consider, at a minimum, an ASAP, FOQA program, a Line Operations Safety Audit, and an Advanced Qualification Program as part of the SMS. The Safety Management Systems for Part 121 Certificate Holders Notice of Proposed Rulemaking was published for comment on November 5, 2010. The comment period has since closed and the FAA anticipates a final rule sometime in 2013.

Although FOQA is an excellent tool for some operators and may be used as a process or procedure in an operator's SMS, the FAA does not intend to require it for all certificate holders conducting operations under part 121. There are a number of ways to collect this information, and the FAA does not believe it is appropriate to prescribe the exact method for collection and analysis of this type of data. The operator should develop and implement the processes and procedures suitable to the complexity and needs of its organization to identify hazards and assess risk to its operation.

In addition, the FAA determined that it is appropriate to protect certain information collected under FOQA from disclosure. If the FAA were to require FOQA, this protection would be lost. Public Law 112-95, FAA Modernization and Reform Act of2012, section 310, section 44735, Limitation on disclosure of safety information, establishes specific statutory FOQA data protection authority. However, Congress explicitly designated that the statutory and regulatory protections should only be established for safety related data that is voluntarily submitted to the FAA, including FOQA information.

I will keep the Board informed of the FAA's progress on these recommendations and provide an update by August 31, 2013.

July 3, 2012 · NTSB Correspondence · FAA

We point out that the intent of Safety Recommendation A-10-28 is for the FAA to seek the authority to protect all data submitted to the FAA from such programs as FOQA, regardless of the conditions under which the data is submitted. The FAA will not be in a position to take the actions requested in Safety Recommendations A-10-27 or -29 until it has first completed the action specified in Safety Recommendation A-10-28. As a result, Safety Recommendation A-10-28 was classified “Open—Unacceptable Response” in our January 2011 letter.

The same letter also addressed Safety Recommendations A-10-27 and -29. We asked the FAA to provide annually information about the number of air carriers and fractional operators that have voluntarily adopted FOQA programs so that we might judge how well these programs are being adopted. Pending our receipt and review of this information, both recommendations were classified “Open—Acceptable Response.” We have received no further information regarding these recommendations and, to maintain their acceptable classification, we would appreciate the FAA’s providing an update on its efforts to address them.

February 3, 2011 · NTSB Correspondence · FAA

Notation 8278: The National Transportation Safety Board (NTSB) has reviewed the Federal Aviation Administration’s (FAA) notice of proposed rulemaking (NPRM) titled “Safety Management Systems for Part 121 Certificate Holders,” which was published at 75 Federal Register 68224 (November 5, 2010). The notice proposes to require 14 Code of Federal Regulations (CFR) Part 121 certificate holders to develop a safety management system (SMS). According to the NPRM, an SMS is a comprehensive, process-oriented approach to managing safety throughout an organization.

An SMS includes an organization-wide safety policy, formal methods of identifying hazards, control and continual assessment of risk, and promotion of a safety culture. SMS stresses not only compliance with technical standards but also increased emphasis on the overall safety performance of the organization.

The NPRM cited four reasons for the proposed SMS rulemaking: (1) the FAA’s desire to improve safety through proactive hazard identification and improved safety management practices among Part 121 operators; (2) existing International Civil Aviation Organization (ICAO) standards for SMS; (3) NTSB Safety Recommendation A-07-10, which asked the FAA to require all 14 CFR Part 121 operators to implement an SMS; and (4) a statutory requirement under Public Law 111-216 for issuance of a final rule on SMS by July 30, 2012. The NTSB recognizes the benefits of an SMS and supports the proposed rule, which, if adopted, would likely meet the intent of Safety Recommendation A-07-10.

The proposed rule would require 14 CFR Part 121 operators to provide SMS implementation plans to the administrator for approval within 6 months of the effective date of the rule and to have a fully operational SMS within 3 years. The NTSB believes that this graduated implementation plan is justified because of (1) the complexity and breadth of SMS processes and (2) the criticality for operators and their FAA principal inspectors to ensure that the SMS components (safety policy, safety risk management, safety assurance, and safety promotion) both function together as a system and are incorporated into the operating practices of the airlines.

Although the NPRM only addresses SMS for 14 CFR Part 121 operators, it states that the general requirements for SMS defined in the NPRM could be applied to other FAA-regulated entities in subsequent rulemaking. Following the 2007 issuance of Safety Recommendation A 07-10 concerning SMS in Part 121 operations, the NTSB has since issued safety recommendations addressing SMS for some operations conducted under Parts 91 and 135. For example, Safety Recommendation A-09-16 asks the FAA to develop a safety alert for operators encouraging all 14 CFR Part 91 business operators to adopt SMS programs that include sound risk management practices.

In addition, Safety Recommendation A-09-89 asks the FAA to require helicopter emergency medical services operators to implement an SMS program that includes sound risk management practices. The NTSB firmly believes that aviation safety can be improved through the adoption of SMS by these operators and is encouraged that the FAA and the aviation rulemaking committee supporting the subject NPRM are also broadly considering the benefits of SMS for a variety of operations affecting the safety of the National Airspace System.

Specifically, such operations include commuter and on-demand operations under 14 CFR Part 135, fractional ownership operations under 14 CFR Part 91 subpart K, training providers under 14 CFR Parts 141 and 142, maintenance repair stations under 14 CFR Part 145, and product manufacturers under 14 CFR Part 21. The NTSB looks forward to commenting on subsequent rulemaking efforts that support a phased implementation of SMS beyond Part 121 operations.

The NPRM discusses the challenges associated with mandating voluntary programs—such as aviation safety action programs (ASAP), flight operational quality assurance (FOQA), line operations safety audits (LOSA), and advanced qualification programs (AQP)—as part of an SMS. Although the NPRM states that operators can use these programs to comply with the proposed rule’s provisions, the rule, if adopted, would not require operators to implement these programs as part of their SMS. The NPRM cites concerns regarding protection of voluntarily submitted safety data if such programs were FAA-mandated.

Although the NTSB understands these concerns, it also recognizes that the effectiveness of the safety assurance component of SMS is predicated on operators having robust tools in place to conduct safety performance monitoring and measurement and that existing voluntary programs have proven invaluable in this area. In a January 22, 2008, letter to the administrator regarding Safety Recommendation A-07-9, the NTSB stated that a required LOSA program should be part of an SMS. The NTSB encourages the FAA to reconsider its position regarding the need to require programs such as FOQA, LOSA, ASAP, and AQP in the final rule.

The NPRM also describes the SMS record-keeping requirements as a necessity “for certificate holders to conduct a meaningful analysis under safety risk management, to review safety assurance activities, and for the FAA to review for compliance during inspections.” The NTSB is encouraged that these data are being retained for a 5-year period and made available for FAA review. However, the NPRM does not make clear how data collected as part of an SMS will be protected from disclosure so that employees are not discouraged from providing important safety information.

If these SMS data are not anticipated to be protected under current statutory/regulatory structures, the FAA should seek the appropriate authority to do so, as proposed in Safety Recommendation A-10-28. As noted in the NPRM, an SMS at the operator level does not replace active oversight efforts by the FAA, and the FAA is still responsible for setting safety standards, conducting inspections, and maintaining oversight.

However, standardizing the SMS concept, through advisory and guidance information produced by the FAA, and specifying the requirements for a mature SMS will provide operators with the tools and framework to potentially manage safety proactively; these actions can also provide the FAA with a systematic approach for evaluating the effectiveness of operators’ management of safety. This approach will help raise the bar on safety in this industry. The NTSB appreciates the opportunity to comment on this NPRM.

January 25, 2011 · NTSB Correspondence · FAA

Although the FAA agrees that the collection and analysis of objective flight data to identify deviations from established norms and procedures is critical to flight safety, it currently has no plans to require operators to implement a FOQA program; however, the FAA will continue to encourage operators to voluntarily adopt and implement FOQA programs. The NTSB understands that, for the recommended reporting of the data to be used for safety-related and not punitive purposes, the data must be collected and analyzed on a voluntary, rather than a required, basis. It was to address this issue that the NTSB issued Safety Recommendation A-10-28, discussed below.

Until there has been a satisfactory resolution of Safety Recommendation A-10-28, the FAA will not be in a position to take the actions requested in Safety Recommendations A-10-27 and -29. The FAA's plan to encourage operators to voluntarily adopt these programs constitutes an acceptable interim step until the action in Safety Recommendation A-10-28 has been satisfactorily completed. The NTSB would appreciate receiving from the FAA, on an annual basis, information about the number of air carriers and fractional operators who have voluntarily adopted FOQA programs so that we may judge how well these programs are being adopted.

Pending our receipt of a completed, satisfactory response to Safety Recommendation A-10-28 and annual updates on the number of carriers and fractional owners who have voluntarily adopted FOQA programs, demonstrating that increasing numbers are doing so, Safety Recommendations A-10-27 and -29 are classified OPEN – ACCEPTABLE RESPONSE.

June 22, 2010 · Recipient Response · FAA

MC# 2100243 - From J. Randolph Babbitt, Administrator: The FAA agrees with the Board that the collection and analysis of objective flight data to identify deviations from established norms and procedures is critical to flight safety. The FAA currently has no plans to require operators to have a flight operation quality assurance (FOQA) program but will continue to encourage parts 121, 135, and 91K operators to adopt and implement one. By their voluntary nature, FOQA programs embody the appropriate tenets of non-punitive retribution and protections of confidentiality.

The FAA plans to update the Board regarding the number of FOQA participating air carriers and fractional operators on a biannual basis.