AF 447 Thread No. 11

[PJ2]

could you kindly provide a citation to a section of the FARs which establishes this

WillowRun 6-3;

United States:

Advisory Circular AC No: 120-82
b. A cornerstone of this new program is the understanding that aggregate data that is provided to the FAA will be kept confidential and the identity of reporting pilots or airlines will remain anonymous as allowed by law. Information submitted to the FAA pursuant to this program will be protected as “voluntarily submitted safety related data” under Title 14 of the Code of Federal Regulations (14 CFR) part 193.

(1) In general, aggregate FOQA data provided to the FAA under 14 CFR part 13, section 13.401 should be stripped of information that could identify the submitting airline prior to leaving the airline premises and, regardless of submission venue, should include the following statement:

WARNING: This FOQA information is protected from disclosure under
49 U.S.C. 40123 and part 193. It may be released only with the written permission of the Federal Aviation Administration Associate Administrator for Regulation and Certification.

8000.81 - Designation of Foqa Info as Protected From Public Disclosure Under 14 CFR Part 193

FARS 13.401 Flight Operation al Quality assurance program: Prohibition against use of data for enforcement purposes

"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 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.

(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.

[Doc. No. FAA–2000–7554, 66 FR 55048, Oct. 31, 2001; Amdt. 13–30, 67 FR 31401, May 9, 2002"

14 CFR Part 193 - Protection of Voluntarily Submitted Information - Cornell University Law School - Legal Information Institute

Canada:

Canadian TSB and Transportation Safety Act:

(3) Where a cockpit voice recording, as defined in section 32 of the Canadian Aviation Safety Board Act, was released to the Canadian Aviation Safety Board or to an investigator before the coming into force of section 41 of this Act, sections 32 to 35 of the Canadian Aviation Safety Board Act, except subsection 33(2), continue to apply in respect of that recording after and notwithstanding the coming into force of section 41 of this Act, and, for that purpose, in the Canadian Aviation Safety Board Act,

(a) “Board” in subsections 33(3) and 34(1) shall be read as “Canadian Transportation Accident Investigation and Safety Board”; (b) subsection 33(4) shall be deemed to read as follows:

Idem
"(4) The Canadian Transportation Accident Investigation and Safety Board shall make available any cockpit voice recording obtained under this Act to

(a) a peace officer authorized by law to gain access thereto;

(b) a coroner who requests access thereto for the purpose of an investigation that the coroner is conducting; or

(c) any person carrying out a co-ordinated investigation under section 18 of the Canadian Transportation Accident Investigation and Safety Board Act or designated as an observer by the Minister of Transport under subsection 23(2) of that Act.";

Europe:

Section 1, JAR-OPS 1.160:

(a) Preservation of recordings (etc)

(b) Production of recordings. The operator of an aeroplane on which a flight recorder is carried shall, within a reasonable time after being requested to do so by the Authority, produce any recording made by a flight recorder which is available or has been preserved.

(c) Use of recordings

(1) The cockpit voice recorder recordings may not be used for purposes other than for the investigation of an accident or incident subject to mandatory reporting except with the consent of all crew members concerned.

(2) The flight data recorder recordings may not be used for purposes other than for the investigation of an accident or incident subject to mandatory reporting except when such records are:

(i) Used by the operator for airworthiness or maintenance purposes only; or

(ii) De-identified; or

(iii) Disclosed under secure
procedures.
[Amdt. 7, 01.09.04]

It is worth noting within the present context that data gathering and analysis by experts is a relatively new approach to flight safety and human factors for North America - the Brits have been doing this since the 50's and share data quite differently.

I know that you will very likely appreciate the complexities inherent in these and any such statutes and policies.

Notwithstanding these complexities, the intent is, as far as is practical and reasonable, to prevent safety information which in many cases, (ie., United States, and for example, ICAO and IOSA "best practises), is collected under one set of goals, intentions, requirements or recommendations, from being formally employed by processes which contemplate precisely the opposite in terms of goals and intentions and requirements.

Now I know that that statement and what is occurring in some jurisdictions is arguable both philosophically and by example, (notably most of Asia and some European countries), but I am a safety person and (retired) pilot not a prosecutor and as far as I am concerned the long view in terms of the viability of safety programs as presently constituted outweigh short-term, specific demands for specific data particularly when it is largely though by some observations not exclusively demonstrated that overall, the safety process works quite well.

This does not under-appreciate the long history which tort law and the notions of "recompense" have developed, to greater or lesser extents, within western societies. I would only argue that the history of data collection for the purposes described has not nearly as long a history and so litigation's accomodation of new information and processes, while painstakingly glacial in adapting to such accomodation still needs to recognize the successful implementation of such relatively-new "protections" in terms of the accident rates within our industry. The medical / healthcare industry and the auto industry to name just two, are envious of such a record and both have made significant progress in adopting aviation's strategies, won and defended at great human and economic sacrifice.

The is not to deny the "benefits" of tort law which, over many, many years may have exercised similar changes in safety processes mainly through the strategic avoidance of punishment, lawsuits etc. But with present approaches to flight safety, the "knowing about the nasty aspects" that is possible through the implementation of safety programs such as ASAP, FOQA, LOSA etc., it cannot be denied that the institutionalized protection of flight safety information is far more effective than the rare examples of "the public interest" which exist.

In fact I would argue, successfully, I think, that "the public interest" is already vastly better served through the present processes than through any narrow prosecutions or discovery actions. A "chill" on the flow of such information would not begin to describe the outcomes of any broad attempts or shifts in policy to make such information available to all who, for multifarious reasons of their own and a vague distrust of those who do this work for a profession, demand it.

I'm not clear regarding the meaning of "statutorily", but accepted (best) practise for the implementation of flight safety programs which collect data for the sole purpose of enhancing flight safety is the strongest possible protection of that data in terms of legal proceedings and lower matters such as pilot discipline, dismissal etc.