By Stephen P. Prentice
Author’s Note: In AMT July 2001, we talked about the Whistleblower protection statute that insulates employees from reprisal when reporting air carrier or repair station safety violations. This month we address an additional protection item that became effective on July 25, 2001.
A new regulation (14 CFR 193), recently enacted, is designed to protect sensitive safety information from general publication; however, with certain reservations. The FAA has been actively seeking to develop a process whereby participating air carriers can share routinely collected sensitive operations data with the FAA so that it may be analyzed for safety concerns. What has prevented this program from going forward was, and still is, the carriers’ fear that the information may be released to the public. This typically could be done through the Freedom of Information Act or through Court process and used against them or their flight crews and technicians. This is a very legitimate concern, especially in view of the litigation and certificate enforcement frenzy in the industry today and in the recent past. The new rule, it is claimed, will allow FAA to collect the hard data they need to develop a much broader view of airline safety and still protect it from prying eyes. Many will find it difficult to discern just how this will work. The claim is that the information collected potentially could prevent accidents. Just about any effort can potentially prevent accidents. Still, many in the industry fear that it will be used for enforcement or other threatening action.
History – voluntary reporting programs
The FAA offers a number of voluntary disclosure programs. The Aviation Safety Reporting System (ASRS) is well-known and routinely used by certificate holders and provides immunity from sanction for pilots, technicians, air carriers and others if the violation is reported within 10 days. (AC 00-46C and FAR Part 91.25). Regulation prevents the public use or publication of any information provided under this program.
Air carriers commonly use the AC 00-58 Self-Disclosure program to confess violations before the FAA finds them. It only applies to air carriers and provides a certain level of immunity from sanction when corrective action is prompt and effective. Yet, there is no guarantee of immunity.
FOQA – Flight Operations Quality Assurance
A third area that includes self-disclosure of otherwise proprietary information is the Flight Operations Quality Assurance program. (FOQA). The FAA drafted FAR 193 to address air carrier concerns about disclosure of flight operations data.
FOQA is a system of data collection by air carriers that supplies information from otherwise uneventful airline flights to the FAA. The idea is, that by analysis, potential safety problems can be identified and corrected before they lead to accidents. It has been popular in Europe and the JAA has encouraged its use.
To participate, an air carrier must install what is called a Quick Access Data Recorder. This recorder is capable of gathering much more information than the Flight Data Recorder. For example, the Quick Access Data Recorder can keep track of hard landings and other flight deviations or engine overspeeds and overtemps, etc. The kicker here is that information would be provided automatically to the FAA and presumably to other participants in the program.
The primary threat is the use of this data in lawsuits or other legal proceedings and in FAA enforcement actions. Enforcement actions, as we all know, can lead to criminal indictments. Pursuit of criminal actions is one of the exceptions to the rule of protection of the data. Flight crewmembers, technicians and their companies have a very legitimate concern about the dissemination and use of this data against them.
Who is covered by the voluntary disclosure program?
FSF endorses the creation of a "qualified exception" from discovery of voluntary self-disclosure reporting programs.
ValuJet Postscript Give a statement...go to jail By Stephen P. Prentice October 1999 Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an...