Skip Ribbon Commands
Skip to main content
Safety Recommendation Details

Safety Recommendation A-10-028
Details
Synopsis: 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.
Recommendation: TO THE FEDERAL AVIATION ADMINISTRATION: Seek specific statutory and/or regulatory authority to protect data that operators share with the Federal Aviation Administration as part of any flight operational quality assurance program.
Original recommendation transmittal letter: PDF
Overall Status: Closed--No Longer Applicable
Mode: Aviation
Location: Clarence Center, NY, United States
Is Reiterated: No
Is Hazmat: No
Is NPRM: No
Accident #: DCA09MA027
Accident Reports: Loss of Control on Approach, Colgan Air, Inc., Operating as Continental Connection Flight 3407, Bombardier DHC 8 400, N200WQ
Report #: AAR-10-01
Accident Date: 2/12/2009
Issue Date: 2/23/2010
Date Closed: 2/4/2013
Addressee(s) and Addressee Status: FAA (Closed--No Longer Applicable)
Keyword(s): Reporting,

Safety Recommendation History
From: NTSB
To: FAA
Date: 2/4/2013
Response: The FAA recognizes the benefits of FOQA programs, but does not plan to require these programs; instead it plans to continue with current programs to encourage Parts 121, 135, and 91K operators to adopt FOQA programs. The FAA indicated that virtually all major passenger carrying US airlines, and a significant number of larger regional airlines, already have established FOQA programs on a voluntary basis. As a result, the FAA believes that mandating FOQA would not only fail to achieve a safety benefit, it could actually diminish the effectiveness of current FOQA programs. We have previously informed the FAA of our understanding 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 we issued Safety Recommendation A-10-28. We regarded the FAA’s plan to encourage operators to voluntarily adopt these programs to be an acceptable interim step until the action in Safety Recommendation A-10-28 had been satisfactorily completed. To assist us in evaluating how effective the FAA’s efforts in response to Safety Recommendation A-10-27 were, we asked for information about the number of air carriers and fractional operators who had voluntarily adopted FOQA programs. In its current letter, the FAA reported that 39 Part 121, 4 Parts 121/135, and 3 Part 135 operators now have FOQA programs and that these operators collectively transport more than 90 percent of the flying public. We note that this represents approximately half of all Part 121 operators, and that virtually none of the hundreds of Part 135 operators have FOQA programs. We believe this information demonstrates that the need remains for the requirement in Safety Recommendation A-10-27, and therefore, the need for Safety Recommendation A-10-28 also remains. Congress recently passed Public Law (PL) 112-95, “FAA Modernization and Reform Act of 2012.” Section 310, paragraph 44735, of PL 112-95, “Limitation on disclosure of safety information,” established specific statutory FOQA data protection authority; however, it also explicitly designated that the protections should only be established for safety related data that has been voluntarily submitted to the FAA. We believe that the provisions of PL 112-95 prevent the FAA from taking the recommended actions; consequently, Safety Recommendations A-10-27 and -28 are classified CLOSED—NO LONGER APPLICABLE.

From: NTSB
To: FAA
Date: 9/19/2012
Response:

From: FAA
To: NTSB
Date: 9/12/2012
Response: -From Michael P. Huerta, Acting Administrator: As stated in our last letter, Public Law 112-95, FAA Modernization and Reform Act of 2012, section 310, section 44735, Limitation on disclosure of safety information, establishes specific statutory Flight Operational Quality Assurance (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 Federal Aviation Administration (FAA), which includes FOQA information. In addition, ul1der Tit le 49 of the United States Code (USC), section 40123, the FAA was provided with the statutory authority to protect FOQA information from disclosure to the public, including disclosure under the Freedom of Information Act (FOIA) (5 USC section 552). The FAA codified this protection under part 193. Protection of FOQA in format ion from public release under FOIA is specified in FAA Order 8000.81, Designation of Flight Operational Quality Assurance (FOQA) Information as Protected from Public Disclosure under Title 14 Code of Federal Regulations (14 CFR) Part 193, issued on April 14, 2003. Protection from use of FOQA information, as evidence in an FAA enforcement action, is specified in 14 CFR § 13.401. This protection only applies to voluntarily submitted safety-related data, such as the FOQA information that is presently being submitted by airlines to the FAA's Aviation Safety Information Analysis and Sharing System. This recommendation is specific to FOQA information. By definition, FOQA includes only the voluntary disclosure of information, which the FAA protects. However, the FAA understands from the Board's last letter that this recommendation was meant to include both voluntary and required data submissions. The FAA shares all required data submissions and has not been given the authority by Congress to protect it in any circumstance. I believe that the FAA has effectively addressed this recommendation, and I consider our actions complete.

From: NTSB
To: FAA
Date: 7/3/2012
Response: 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.

From: NTSB
To: FAA
Date: 2/3/2011
Response: 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.

From: NTSB
To: FAA
Date: 1/25/2011
Response: The FAA replied that statutory and regulatory protections have been established for safety-related data that is voluntarily submitted to the FAA, but these protections would not apply if the FAA required submission of the same data. The intent of this recommendation is for the FAA to seek the authority to provide these protections to all data submitted to the FAA from FOQA programs, regardless of the conditions under which it is submitted; the FAA's response does not, therefore, address the recommended action. Consequently, pending the FAA's seeking specific statutory and/or regulatory authority to protect data that operators share as part of a required FOQA program, Safety Recommendation A-10-28 is classified OPEN – UNACCEPTABLE RESPONSE.

From: FAA
To: NTSB
Date: 6/22/2010
Response: MC# 2100243 - From J. Randolph Babbitt, Administrator: Statutory and regulatory protections have been established for safety related data that is voluntarily submitted to the FAA, which includes FOQA information. Under Title 49 of the United States Code (49 USC) section 40123, the FAA was provided with the statutory authority to protect such information from disclosure to the public, including disclosure under the Freedom of Information Act (FOIA) (5 USC section 552). The FAA has codified this protection under Part 193. Protection from public release of such FOQA information under FOIA is specified in FAA Order 8000.81, Designation of FOQA Info as Protected From Public Disclosure Under 14 CFR Part 193. Protection from use of such FOQA information as evidence in an FAA enforcement action is specified in 14 CFR section 13.401. This protection only applies to voluntarily submitted safety-related data, such as the FOQA information that is presently being submitted by airlines to the FAA's aviation safety analysis and sharing program.