Flight Operational Quality Assurance ("FOQA") Programs are an attempt by operators to identify data from flights where deviations from norms take place. The object is to pick out potential problems and correct them before they lead to accidents. A FOQA program typically requires the installation of a Quick Access Recorder ("QAR") onboard an aircraft to record flight parameters. Data is collected to determine whether the aircraft is deviating from standard procedures or operating limitations. A computer analysis is performed to identify deviation trends and take action to prevent accidents.

            FOQA Programs have been successfully used for many years by foreign air carriers. Now, all major U.S. Airlines have implemented FOQA Programs. An effort is being made to encourage Part 135, Supplemental Carriers, and Part 91 Corporate Operators to adopt FOQA programs. FOQA programs can improve safety for all operators and can be particularly effective in operations with increased risk of accidents.

FOQA PROGRAMS ARE PARTICULARLY BENEFICIAL TO OPERATORS WITH HIGH MAINTENANCE AIRCRAFT SUCH AS HELICOPTERS

         As a Marine Pilot I often heard the saying that a helicopter is “1000 moving parts shaking and vibrating until they let go.”  An aviation safety professional would say that a helicopter has a “large number of flight safety critical rotating components.” Bottom line - increased mechanical safety for helicopters can be achieved through FOQA, because FOQA provides an objective means to monitor those thousands of moving parts by:

1. Detecting damage or wear resulting in excess vibration – trend monitoring of computerized flight data monitoring can detect the excess vibration before failure;

2. Identifying “exceedances” with regard to limits – Pilot reports of over speeds and “over temps” are not as effective as computerized recordation of the excesses;

3. Measuring fatigue stress and life limits – computer programs can track fatigue life better than historical methods.

            The state of the art in safety analysis will add to this list and the benefits are undisputable. But the impediments to the implementation of a FOQA program for many operators have been a distrust of the FAA and a fear of legal trouble. This fear is not the result of paranoia but an appreciation of some of the problems I outlined when I first published this article in an earlier form in the late 1990s, when the FAA had no published Rules for dealing with FOQA data. I have now rewritten that article to re-evaluate FOQA under the new FAA rules.

NOW THAT THE FAA HAS PUBLISHED RULES FOR FOQA, IS IT LEGALLY SAFE FOR AN OPERATOR TO IMPLEMENT A FOQA PROGRAM?

            The decision to implement a FOQA program is a decision that must be made by management as part of its overall safety management program. If the biggest impediment to the implementation of a FOQA program is not cost, but a fear of legal trouble, then a company should consult with its aviation lawyer before making the decision. The following sections will raise some questions for each Operator to evaluate.

THE FAA CURRENTLY SPONSORS FIVE VOUNTARY SAFETY DISCLOSURE PROGRAMS    

Voluntary Disclosure Programs (VDP) – protection in return for for disclosures of violations not known to the FAA by Air Carrier Certificate Holders, indirect air carriers, foreign air carriers and Production Approval Holders. FAA Advisory Circular AC -00-58;

Advanced Qualification Programs (AQP) –  voluntary alternatives to the traditional airline training and evaluation programs for  airline pilots, dispatchers and flight attendants. FAA Advisory Circular AC 120-54;

Aviation Safety Action Program (ASAP) – allows partially protected disclosures through a Memorandum of Understanding between a Part 121 carrier or Part 145 Repair Station governing subjective disclosures and corresponding corrective action. FAA Advisory Circular AC 120-66B;

Aviation Safety Reporting System (ASRS) -  All FAA certificate holders  should be familiar with the "Aviation Safety Reporting System"(ASRS) Program. The ASRS Form, which can be filed by pilots, mechanics and others with NASA within 10 days of a violation. The ASRS form involves volunteering a description of an incident in return for obtain limited sanction immunity after a violation. This program will be discussed in more depth in this article in comparison to FOQA;

FAA Approved Flight Operational Quality Assurance Programs (FOQA per FAR 13.401).  – Any operator can apply to the FAA for regulatory oversight of its FOQA Implementation and Operation Plan. The program involves data objectively collected from Quick Access Recorders that is shared with the FAA in return for certain promises of non-enforcement and a qualified offer of protected disclosure. FAR 13.401, FAR Part 193; FAA Advisory Circular AC 120 -82.

ARE FAA FOQA PROGRAMS MANDATORY?

             I make a distinction between an FAA approved FOQA program and a FOQA program that any operator may elect to implement. No United States operator is required to have a FOQA program and no operator who has a FOQA program is required to obtain FAA approval of that program.  ICAO’s Amendment 26 to ICAO Annex 6, 3.6.3, adopted an international standard requiring all operators of “aeroplanes” of a maximum certificated take-off weight in excess of 27,000 kg., to have a flight data analysis system. The United States is apparently opting out of compliance with that mandate. FOQA is voluntary in the United States. 

HOW DOES A FOQA PROGRAM WORK?

            The major distinction between a true FOQA Program and other FAA Safety Reporting Programs is the fact that FOQA depends upon the automatic and digitalized collection of objective flight parameters. The Safety Reporting Programs depend upon subjective and voluntary disclosure of errors or non-standard practices. Thus, a FOQA Program objectively determines exactly what happened, whereas a Safety Reporting Program expects people to report how and why something has happened.

            An operator purchases a Quick Access Recorder and obtains the necessary Certification to integrate the recorder with various sensors on the aircraft to measure the flight parameters. A FOQA Quick Access Recorder is not limited to the same data as a Flight Data Recorder ("FDR"). A QAR can  collect more than four times (4x) as much data as an FDR. Moreover, a Flight Data Recorder is normally limited to only 25 hours of flight time, whereas a FOQA Quick Access Recorder can be programmed to record for an extended period of time.

FOQA data is processed through a Quick Access Recorder by a variety of means:

1. Memory Cards or PCMIA Card can be utilized to record data;

2. Recording media can be used to collect data;

3. Data can be transferred by radio via a data link at the time of landing. Encryption software can be used to protect against security breaches.

            Regardless of the technical method employed to collect or transmit the data, the FOQA objective is the same. The recordation of flight parameters to capture deviations from "norms," followed by computerized evaluation of trends, which suggest safety hazards.

            FOQA programs can focus on interesting parameters such as the number of overly hard landings performed in one month, the duration of engine over temperature conditions, or how many times an unusually high descent rate was used on an approach. Let's say, for example, that data collected reveals that one out of five flights involved an unnecessarily high rate of descent or deviations below the prescribed flight path on a particular approach. The collection of such data can lead to improved training resulting in procedures that are less susceptible to deviation. Sounds great? What are the potential traps for the unwary?

WHAT PROTECTION DOES THE FAA PROMISE FOR FOQA DISCLOSURE?

            The FAA’s FOQA Protection Rule, FAR 13.401, promises that the FAA will not use the operator’s FOQA data for enforcement purposes except for criminal and deliberate acts. Under Part 193, the FAA promises to protect voluntarily disclosed information under an FAA approved FOQA program, from FOIA requests. The FAA further promises to release the information in response to a Subpoena only if ordered to do so by a court. This means that government lawyers will try to oppose a subpoena. The FAA promises to convey the need for the same protections to other federal agencies it shares information with.

FEARS THAT FOQA DATA WILL BE USED FOR LEGAL ACTIONS

Pilot Unions, and air carriers, have been afraid to implement FOQA Programs because of fear that data will be used by the FAA, or civil litigants, against the pilots or airlines. Commentators usually cite three law-related concerns associated with the collection of FOQA data:

A. That the FOQA data will be used by the FAA for enforcement actions against pilots and carriers;

B. That the data, once turned over to the FAA, will be made available to the media, litigants and the public, under The Freedom of Information Act ("FOIA");

C. That data will be acquired by subpoena during the discovery process in civil lawsuits and be used to establish liability;

In addition to these three problems commonly voiced by industry representatives, the following additional problems that may not be readily apparent:

D. In those airlines with unions, pilot advocates have been able to negotiate contractual protection against punitive use of FOQA data in return for pilot cooperation in implementing FOQA Programs. But who protects pilots employed with operators that do not have collective bargaining agreements?

E. If the FAA cannot use FOQA data to prosecute pilots, then pilots will not be able to use FOQA data to defend themselves against FAA enforcement actions. If pilots are accused of violations of company procedures, and if management is denied the data for employment sanctions, then pilots will not have access to FOQA data to exonerate themselves

The following sections will explain each of these problems under the FAA’s newest rules and policy pronouncements.

A.    FAA ENFORCEMENT ACTIONS USING FOQA DATA AS EVIDENCE?

Before a FOQA rule was ever issued, an Administrator of the FAA publicly announced that the agency would not use FOQA data for pilot license punitive enforcement actions. FAA attorneys, however, have raised serious legal questions regarding the FAA's statutory obligation to use evidence of flight violations to bring remedial enforcement actions for public safety. Due to an outcry from the industry the FAA backed off on the Remedial – Punitive distinction. Under the current FOQA program Rule, the operator should not suffer an “enforcement” action. The promise extends to both the individual pilots and the operator who may be a company or an air carrier.

What Kind of “Actions” can the FAA take against pilots under FOQA?

While the FAA may agree not to bring "legal" enforcement actions against pilots, what about administrative actions? The FAA often issues a Letter of Warning or Letter of Caution for less serious violations and it is kept on the airman’s FAA records for two (2) years and then expunged. An administrative Action is not punitive enforcement in the legal sense. But, the Rule does not address whether administrative actions can be issued notwithstanding the FOQA Rule.

In a post 9/11, highly competitive profession, professional pilots may need protection against "administrative" actions by the agency that might impact on their careers. An application for FOQA accreditation by the FAA should raise this question and get an FAA commitment in writing to protect the certificate holders.

 How Does the FAA interpret “Deliberative Acts” not covered by FOQA Immunity Under Rule 13.401?

The FAA rule promises no enforcement except for criminal or “deliberate acts.” What does the FAA mean by “except for” “deliberate acts”? Notice, the FAA did not define the exception as enforcement for intentional misconduct or willful misconduct or reckless misconduct. If they had, then the airman would know that if the airman intentionally or recklessly engages in misconduct, which he knows is wrong, that there is no protection under the rule.

FAA enforcement defense lawyers know that the type of “deliberative act” which can deprive an airman of immunity does not require that the airman intended to do wrong; he only had to do something purposefully, that turned out to be wrong. The term “deliberate act,” has been interpreted by the FAA as a decision to purposely do something, which is deemed a violation.  If the pilot honestly thought it was safe when he did it, but the FAA says with “20-20” hindsight that he should have known it was wrong, they can deem it a “deliberate act.”

 I am not aware of any case law interpreting “deliberate act” under the FOQA rule. But, there is case law in an analogous situation – the FAA’s interpretation of whether a pilots error was a deliberate act for purposes of the use of the ASRS form filed with NASA to obtain sanction immunity. Consider the case of Administrator v. Halbert, Order EA-3628, (NTSB decisions, 1992).

            Commercial pilot Halbert was embarked on a Part 91 flight. He was accused of failing to discontinue a flight when his right engine oil pressure began behaving erratically. He shut down the affected engine and proceeded to his destination rather than a closer airport. He chose the destination airport because he felt the runway was too short at the closer airport and had more margin for error, than the longer and wider destination airport. Also he knew more about the availability of emergency equipment at the destination airport. The FAA accused him of violating FAR 91.29, operating an unairworthy aircraft.  He was also charged for engaging in careless and reckless operation in violation of FAR 91.13(a).

            The FAA also argued that he should not get sanction protection for his cooperation when he filed a voluntary disclosure by means of an ASRS form. The FAA claimed that he  allegedly committed a “deliberate act,” and denied him safety-reporting immunity. His “deliberate act” was choosing to proceed to the destination airport - a purposeful decision made based on his safety analysis. The Administrative law judge agreed with the FAA interpretation of its own regulation, as to what is a “deliberate act,” and denied the pilot’s ASRS protection.

            Fortunately for pilot Halbert, he had a good aviation defense lawyer and he was able to appeal to the full NTSB in 1992. The Board overruled the judge and the FAA. The Board held that the pilot’s act was not a “deliberate act;” thereafter, he was granted the immunity.

            Unfortunately, there is new precedent on the issue of whether the NTSB can overrule the FAA in an interpretation of one of its own rules. In 1999, The United States Circuit Court for the D.C. Circuit, ruled that the NTSB must defer to the FAA’s interpretations of its own regulations, even if the NTSB, , concludes that the FAA is wrong. Garvey, FAA v. NTSB and Richard Lee Merrell (FAA v. Merrell), 190 F. 3d 571,577 (D.C. Cir. 1999).

             In FAA v. Merrell, the FAA insisted that an airline pilot’s mistake in reading back an altitude clearance resulting in an altitude violation, was not an inadvertent error or misunderstanding. The FAA won their case against pilot in front of NTSB judge who agreed with the FAA interpretation of its own regulation. The Pilot appealed to the full NTSB and the NTSB overruled its judge. The FAA then appealed to the U.S. Circuit Court and that federal court overruled the NTSB – ordering the NTSB to approve FAA interpretations of its own regulations -- even if not previously published.

See my year 2000 article explaining why the NTSB has been emasculated from protecting pilots against unfair FAA interpretations: 

            The FOQA Rule was published in 2001. We will need to see whether the FAA lawyers will start to use more restraint in characterizing errors of judgment as deliberate acts. They should be encouraged to do so in conformity with the Administrator’s goal of encouraging the voluntary submission of deviations under FOQA.

            One concern is that the FAA enforcement lawyers are still prone to piling on charges of “careless and reckless” with any operational violation in which safety is implicated. The charging of careless and reckless under FAR 91.13(a), is an abuse, long criticized by the private aviation bar. It is particularly troublesome in the context of any case involving the question of whether a “deliberate act,” is involved. There is a leading federal case, often cited by FAA lawyers, on the question of whether a pilot’s error is a “deliberate act.” Ferguson v. NTSB, 678 F.2d 821 (9^th Circuit 1982). The characterization of recklessness resulted in a denial of the  ASRS immunity to  airman Ferguson.  This case specifically discusses whether a pilot can use the ASRS sanction immunity form. T federal court equated reckless conduct under 91.13(a), to the same level of culpability as a deliberate act.

            “Recklessness” sounds like really bad behavior but the Ferguson court considered a “disregard for the foreseeable consequences” as recklessness. The judge enjoys “20-10” hindsight - when a pilot exercises judgment he uses foresight. If the pilot’s good faith judgment turns out to be wrong, it is easy to call the mistake a disregard for the foreseeable consequences. Most operational pilot judgments, are made in good faith with concern for safety, and thus are made with regard for the consequences.  It is far too easy to characterize pilot errors as reckless because pilots are in the business of defying gravity; thus, the foreseeable consequence of what they do always includes the possibility of a crash. Thus, there is risk that errors of judgment resulting in a purposeful act may result in that act being characterized as a “deliberate act,” outside the protection of Rule 13.401.

B.     ACCESS TO FOQA DATA THROUGH THE        FREEDOM OF INFORMATION ACT

            The Federal Freedom of Information Act is designed to allow members of the public to gain easy access to government documents, as one benefit of living in a democratic society. However, there are a number of "exemptions" to this broad disclosure law, whereby a government agency can properly withhold disclosure of documents and information it has received from a private entity. The classic example involves "exemptions 3 & 4" to the FOIA, which protect special statutes protecting information and trade secrets as well as commercial and financial information which is obtained from a private entity on a confidential basis.

            Recently, Congress enacted the Federal Aviation Reorganization Act of 1996 (49 U.S. Code Section 40123) which gives the administrator of the FAA the right to withhold "voluntary" submitted information from disclosure where it effects flight safety or security, and disclosure would inhibit the free flow of such information to the agency. The FAA is issued regulations 13.401 and Part 193 under the Federal Aviation Reorganization Act, so the FAA’s promises in their regulations are probably supportable to prevent disclosure under FOIA. There will always be some risk that a Court will overturn an agency's decision to withhold disclosure of safety data.

            A related concern is that The Federal Aviation Reorganization Act grants the FAA the right to withhold "voluntarily" submitted data from disclosure. What if the agency has acquired data that was not "voluntarily" submitted? FOIA's liberal disclosure policy may force the FAA to reveal the data. What if the FAA, while conducting an inspection or investigation of a carrier, "requests" FOQA data from an operator’s non FAA-approved FOQA program? The act of turning over the data by the carrier in response to an official "request" may not be considered voluntary and could leave the data vulnerable to public disclosure when the investigation is completed.

C.     DISCOVERY OF FOQA DATA IN CIVIL LITIGATION – the Biggest Risk

            All operators are particularly vulnerable to civil litigation discovery demands, which might focus on FOQA data that has been routinely collected for safety purposes.  With common carriers who have the highest duty of care, the slightest deviation from norms, if is causes an accident, may be viewed as negligence. If a carrier is on notice of a series of deviations which go uncorrected, and a bad accident results, a plaintiff’s lawyer will be alleging punitive damages.

            Generally speaking, the Rules of Civil Procedure in most jurisdictions allow liberal discovery of any matter which is not covered by special privilege, as long as the information sought is relevant or likely to lead to the discovery of relevant evidence.

            Many lawyers are familiar with the story of a defendant who protested to the Court about the discovery demands of the Plaintiff on the basis that the plaintiff was obviously engaged in a "fishing expedition." The Court permitted the plaintiff to go on a "fishing expedition" as long as it logically could lead to the discovery of relevant and admissible evidence. The justification for such "fishing" is that the plaintiff, who has the burden of proof, has a right to conduct discovery to acquire evidence in support of their claims. Most jurisdictions recognize the rights of a defendant to apply for a protective order to prevent discovery demands, which are unduly burdensome or expensive.

            The use of a subpoena with a private operator or carrier may prove unsuccessful if the FOQA data has already been de-identified and discarded under a Routine Document and Information Retention and Destruction program. (Get advice from your aviation attorney before destroying information, particularly if an incident or accident has occurred) Note, regardless of what has happened to the data in the custody of the Operator, the subpoena will probably find that the shared data still exists at the FAA.

            The risk of discovery in civil litigation is not limited to discovery demands served on the operator. The parties may also send subpoenas to the federal agencies involved, such as the FAA to access voluntarily submitted FOQA data. Without federal legislation specifically exempting such data from discovery in civil litigation, the FAA will either have to turn over the data or ask the Justice Department to go to Court to seek a protective order to prevent disclosure in each case which arises. Recognize that the operator will be dependant on a government lawyer, rather than its lawyer, to protect against disclosure of potential liability producing evidence. All factors considered, it is likely that in some cases, the plaintiffs will prevail and gain access to the data.

            In this author’s opinion, that the public policy in support of the discovery rules in civil litigation is strong and the precedent allowing liberal discovery is so pervasive. Thus, unless legislation or the Supreme Court recognizes a privilege designed to protect FOQA type data, it is unlikely that carriers or the FAA will ever be able to collect such data with immunity from subpoenas in air crash litigation.

            Airlines have tried to convince Federal Courts that safety data collected under FAA sponsored voluntary disclosure programs should be protected from discovery under a special privilege called the "Self- Critical Analysis" Privilege. The Self-Critical Analysis Privilege has been recognized by a few lower Federal Courts as a shield to protect internal safety reviews from discovery. The rationale in protecting such information from discovery, is that requiring production of the data, would hamper candid self evaluation geared towards the prevention of future accidents. The Courts are reluctant to recognize the privilege unless there is proof that if discovery were allowed, the flow of such information would be curtailed. Many of the cases which have recognized this privilege, protect only subjective impressions and opinions of the organization, not the objective facts it collects. This could be a real problem for FOQA data because the true value of a FOQA Program is that it collects objective factual data to be distinguished from the subjective reports submitted through Safety Reporting Programs.

D.     EMPLOYER DISCIPLINARY ACTION BASED ON FOQA?

            Pilots should expect than operators can use information collected in the normal course of their business to insure that employees are complying with all company policies, rules and regulations? Thus, digital data might be used internally for employee sanctions. In some circumstances, where pilots are members of unions or benefit from representation, negotiated agreements can be reached to prohibit the use of such data for internal disciplinary procedures. However, where there is no such guaranteed protection, pilots would need to rely on voluntarily adopted employment policies, whereby an operator would agree not to use such data for disciplinary purposes. Informal policies may not be enforceable. If agreements cannot be reached, then the de - identification of data may be one solution; that is assuming that the company is willing to entrust the de - identification process to pilot representatives.

E.     FOQA DATA COULD VINDICATE A PILOT

            Recognize that if the FAA is prohibited from using FOQA data to prosecute airmen, then the airmen will not be able to use the FOQA data to defend themselves against FAA enforcement actions. A lawyer defending an airman who has been unfairly accused of a flight violation, might try to gain access to FOQA data to prove that the airman did not commit the flight violation. If the FAA issues a rule prohibiting such use in enforcement actions, then the Administrative Law Judges of the NTSB will not be permitted to accept such evidence from the airman because of due process restrictions.

            Similarly, if an employer cannot use FOQA data to issue employment sanctions against employees, then the employees will not be able to use it in their defense. Likewise, the de-identification of the digital data for the protection of the airman will deny the airman the existence of objective digital data that could protect him.

ADDITIONAL ISSUES WITH VOLUNTARY DISCLOSURES TO THE FAA

1.         The FAA disclosed in Rule 193.7 (c), that information it receives of flight deviations, exceedances, malfunctions, procedural errors and other alleged violations, from sources outside of a FAA approved FOQA program, can be used for enforcement purposes. Most operations recorded by a Quick Access Recorder may detectable by others. Thus, air traffic controllers and their radar, POIs and their surveillance and concerned parties’ observations, may be reported as suspected violations to the FAA. A legal enforcement investigation could be launched against the Operator for the same deviations that were covered by the FOQA program. How is the Operator going to defend itself if the most relevant objective proof that a violation did not occur, or was inadvertent versus deliberate, has been deleted by the de-identification process?

2.         The FAA makes clear that it can share the FOQA data with other agencies subject to the same purported protections that the agency will protect the information under 49 USC 40123. However, the FAA reveals in Part 193, that the information may be relevant not only for safety but also security. Given the broad emergency powers bestowed on the TSA and Homeland Security Agency after 9/11, one cannot predict how much protection 49 USC 40123, will provide when balanced against security concerns of other agencies.

3.         A non FAA-approved FOQA program in the hands of a safety conscious operator, who employs prudent document retention and destruction procedures, within the bounds of the law, and de-identifies data under a fair agreement with its pilots, may be able to benefit greatly in terms of safety without taking on the exposure that might exist with disclosure to the FAA. The disadvantage in terms of safety, is that the data would not be available to help other operators. The legal advantage is that the operator and its own attorney can control access to its digital recordings of its deviations. Because the FAA allows privately run FOQA programs, each operator should evaluate, in consultation with its attorney as to legal issues, whether they will benefit from an FAA approved voluntary disclosure program

CONCLUSION

            FOQA Programs present a new approach to aviation safety. The collection of objective data, without human intervention can allow dangerous trends to be identified and intervention steps taken to prevent accidents. The law, lawyers and the litigation process, may appear to be interfering with the worthy safety goals of FOQA; however, the freedoms of a democratic society can only be protected when the competing legal rights of all parties involved are protected.
 Many FAA enforcement actions are necessary and not all air crash litigation is frivolous. The FAA has an obligation to protect the flying public when there is evidence of a deviation from safe flying procedures. Air crash litigation has resulted in safety improvements and greater caution by operators who must reckon with the consequences of unsafe practices. Prudence dictates a thorough evaluation of safety gains against legal risks, when making decisions about a FOQA program.

Disclaimer: This article is written for aviation industry professionals in the United States. The issues and recommendations discussed in this article are based on hypothetical situations and do not constitute legal advice. You cannot use this article as an opinion to handle your case or make legal decisions. It was not written for your company. My objective is to alert you to some common issues so that you can avoid or minimize legal trouble. Anyone with an aviation law problem should be guided by the advice of his or her lawyer, under applicable federal and state laws, after a full and confidential disclosure of all relevant facts.