Wednesday, November 15, 2006

Part III

Department of Transportation Federal Aviation Administration

14 CFR Parts 121, 125, and 135 Filtered Flight Data; Proposed Rule

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DEPARTMENT OF TRANSPORTATION SW., Washington, DC, between 9 a.m. without incurring expense or delay. We and 5 p.m., Monday through Friday, may change this proposal in light of the Federal Aviation Administration except Federal holidays. comments we receive. FOR FURTHER INFORMATION CONTACT: For If you want the FAA to acknowledge 14 CFR Parts 121, 125, and 135 technical questions: Timothy W. Shaver, receipt of your comments on this [Docket No. FAA–2006–26135; Notice No. Avionics Systems Branch, proposal, include with your comments 06–16] Certification Service, AIR–130, Federal a pre-addressed, stamped postcard on Aviation Administration, 800 which the docket number appears. We RIN 2120–AI79 Independence Avenue, SW., will stamp the date on the postcard and mail it to you. Filtered Flight Data Washington, DC 20591; telephone (202) 385–4686; facsimile (202) 385–4651; e- Proprietary or Confidential Business AGENCY: Federal Aviation mail [email protected]. For legal Information Administration (FAA), DOT. questions: Karen L. Petronis, Do not file in the docket information ACTION: Notice of proposed rulemaking Regulations Division, Office of Chief that you consider to be proprietary or (NPRM). Council, AGC–200, Federal Aviation Administration, 800 Independence confidential business information. Send SUMMARY: The FAA proposes to amend Avenue, SW., Washington, DC 20591; or deliver this information directly to the digital flight data recorder (DFDR) telephone (202) 267–3073; facsimile the person identified in the FOR FURTHER regulations by prohibiting the filtering (202) 267–7971; e-mail INFORMATION CONTACT section of this of some original parameter sensor [email protected]. document. You must mark the signals. This proposed rule is based on information that you consider SUPPLEMENTARY INFORMATION: recommendations issued by the proprietary or confidential. If you send National Transportation Safety Board, Comments Invited the information on a disk or CD ROM, mark the outside of the disk or CD ROM and is intended to improve the accuracy The FAA invites interested persons to and quality of the data recorded on and also identify electronically within participate in this rulemaking by the disk or CD ROM the specific DFDRs and used during accident and submitting written comments, data, or incident investigations. information that is proprietary or views. We also invite comments relating confidential. DATES: Send your comments on or to the economic, environmental, energy, before February 13, 2007. Under 14 CFR 11.35(b), when we are or federalism impacts that might result aware of proprietary information filed ADDRESSES: You may send comments from adopting the proposals in this with a comment, we do not place it in [identified by Docket Number FAA– document. The most helpful comments the docket. We hold it in a separate file 2006–26135] using any of the following reference a specific portion of the to which the public does not have methods: proposal, explain the reason for any • access, and place a note in the docket DOT Docket Web site: Go to http:// recommended change, and include that we have received it. If we receive dms.dot.gov and follow the instructions supporting data. We ask that you send a request to examine or copy this for sending your comments us two copies of written comments. information, we treat it as any other electronically. We will file in the docket all • request under the Freedom of Government-wide rulemaking Web comments we receive, as well as a Information Act (5 U.S.C. 552). We site: Go to http://www.regulations.gov report summarizing each substantive process such requests under the DOT and follow the instructions for sending public contact with FAA personnel procedures found in 49 CFR part 7. your comments electronically. concerning this proposed rulemaking. • Mail: Docket Management Facility; The docket is available for public Availability of Rulemaking Documents U.S. Department of Transportation, 400 inspection before and after the comment You can get an electronic copy using Seventh Street, SW., Nassif Building, closing date. If you wish to review the the Internet by: Room PL–401, Washington, DC 20590– docket in person, go to the address in (1) Searching the Department of 001. the ADDRESSES section of this preamble Transportation’s electronic Docket • Fax: 1–202–493–2251. between 9 a.m. and 5 p.m., Monday Management System (DMS) Web page • Hand Delivery: Room PL–401 on through Friday, except Federal holidays. (http://dms.dot.gov/search); the plaza level of the Nassif Building, You may also review the docket using (2) Visiting the Office of Rulemaking’s 400 Seventh Street, SW., Washington, the Internet at the Web address in the Web page at http://www.faa.gov/ DC, between 9 a.m. and 5 p.m., Monday ADDRESSES section. regulations_policies/; or through Friday, except Federal holidays. Privacy Act: Using the search function (3) Accessing the Government For more information on the of our docket Web site, anyone can find Printing Office’s Web page at http:// rulemaking process, see the and read the comments received into www.gpoaccess.gov/fr/index.html. SUPPLEMENTARY INFORMATION section of any of our dockets, including the name You can also get a copy by sending a this document. of the individual sending the comment request to the Federal Aviation Privacy: We will post all comments (or signing the comment on behalf of an Administration, Office of Rulemaking, we receive, without change, to http:// association, business, labor union, etc.). ARM–1, 800 Independence Avenue dms.dot.gov, including any personal You may review DOT’s complete SW., Washington, DC 20591, or by information you provide. For more Privacy Act Statement in the Federal calling (202) 267–9680. Make sure to information, see the Privacy Act Register published on April 11, 2000 identify the docket number, notice discussion in the SUPPLEMENTARY (65 FR 19477–78) or you may visit number, or amendment number of this INFORMATION section of this document. http://dms.dot.gov. rulemaking. Docket: To read background Before acting on this proposal, we documents or comments received, go to will consider all comments we receive Authority for This Rulemaking http://dms.dot.gov at any time or to on or before the closing date for The FAA’s authority to issue rules Room PL–401 on the plaza level of the comments. We will consider comments regarding aviation safety is found in Nassif Building, 400 Seventh Street, filed late if it is possible to do so Title 49 of the United States Code.

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Subtitle I, section 106 describes the ‘‘capable of recording values that meet (2) Review other airplane designs to authority of the FAA Administrator. the accuracy requirements through the ensure that flight control position data Subtitle VII, Aviation Programs, full dynamic range of each parameter at to the DFDR are accurately recorded and describes in more detail the scope of the a frequency sufficient to determine a that flight control position data filtered agency’s authority. complete, accurate, and unambiguous by systems such as EICAS are not This rulemaking is promulgated time history of parameter activity, with substituted for accurate data (NTSB under the authority described in subtitle emphasis on capturing each parameter’s Recommendation A–94–121). VII, part A, subpart III, section 44701. dynamic motion at the maximum rate FAA Action: Recommendation A–94– Under that section, the FAA is charged possible, including reversals of 120 with prescribing regulations providing direction at the maximum rate minimum standards for other practices, possible.’’ The FAA addressed NTSB methods and procedures necessary for The FAA agrees with these NTSB Recommendation A–94–120 in two safety in air commerce. This regulation recommendations and is proposing to ways. First, in 1997, the FAA revised is within the scope of that authority prohibit signal filtering for specified the DFDR regulations to require that since flight data recorders are the only recorded parameters. certain aircraft be equipped to means available to account for aircraft accommodate additional DFDR movement and flight crew actions History parameters (Revisions to Digital Flight critical to finding the probable cause of First Encounter With Filtered Data Data Recorder Rules; Final Rule (62 FR incidents or accidents, including data 38362, July 17, 1997)). The revised that could prevent future incidents or The NTSB’s first encounter with DFDR regulations prescribe that up to accidents. filtered data that impeded an 88 data parameters be recorded on investigation occurred during its DFDRs, with the exact number of Background investigation of three similar 767 parameters determined by the date of Statement of the Problem accidents. Two of these accidents airplane manufacture. The number of occurred in 1992 and one in 1993 when, parameters that must be recorded range During several aircraft accident during landing, the nose gear contacted from 18 for a transport category airplane investigations, the National the runway with excessive force after manufactured on or before October 11, Transportation Safety Board (NTSB or normal touchdown on the main landing 1991, to 88 for airplanes manufactured Board) found that some flight data gear. In each case, the airplane after August 19, 2002. The revised rule recorder (FDR) systems were filtering structure and nose wheel wells were applies to certain turbine-engine- flight recorder parameter signals before damaged, but there were no injuries or powered airplanes and rotorcraft having they were recorded. As a result, the data fatalities. During its investigation, the 10 or more passenger seats. being recorded did not accurately reflect NTSB found that the Engine Instrument The purpose of the 1997 revision was the aircraft’s performance or the Crew Alert System (EICAS) was filtering to provide additional information to movements of the flight control systems flight control position data before it was enable the investigative authority—the prior to and during the accident/ sent to and recorded by the DFDR. A NTSB in the United States—to conduct incident being investigated. This signal low sample rate (once per second) more thorough investigations of filtering both hampered and delayed the rendered the filtered data even less accidents and incidents. Although the investigations. In addition, the NTSB usable, making it impossible for the 1997 rule language did not specifically expended significant resources and time NTSB to determine the pilots’ actions prohibit filtering, we believed that the attempting to recreate the performance with precision. technical accuracy required by the and movements of the flight control At the same time the NTSB was specifications in Appendix M of part systems of the affected aircraft. investigating these three accidents, it 121 would preclude filtering as a design Designers of the information sources was also investigating several alleged option. In addition, the preamble to the that provide input to the DFDR system uncommanded movements on final rule included our reply to an NTSB have their own reasons for filtering data, Boeing 767s. In these cases, the NTSB comment in which we stated that such as making it more aesthetically found that the EICAS was also filtering including the ‘‘dynamic condition’’ appealing for display in the . rudder position data before being language in Appendix M reflected our During the design of DFDR systems, it recorded by the DFDRs. An position that filtered data was not appears that convenience and a desire to investigation disclosed that the acceptable. reduce cost and complexity by discrepancy between the recorded The FAA further addressed NTSB eliminating multiple data paths have led rudder position and the actual rudder Recommendation A–94–120 by issuing to the DFDR recording filtered data position could be greater than 20 Advisory Circular (AC) 20–141, rather than raw data from the sensors. degrees in some dynamic situations. Airworthiness and Operational The FAA understands that, in some Approval of Flight Data Recorder As a result of these findings, in June cases, it may have been an error in the Systems, on August 4, 1998. This AC 1994 the NTSB recommended that the choice of data selection sources that provided detailed guidance on FAA: resulted in filtered data being recorded. recording filtered data. Section 7 of AC We have no reason to believe that (1) Require design modification to the 1 20–141, titled ‘‘Type Certification,’’ filtering is being used to disguise data Boeing 757 and 767 models so that states: flight control position data sent to the that are central to accident/incident ‘‘(1) The applicant must identify any investigations. DFDR is accurate and not filtered by the EICAS (NTSB Recommendation A–94– parameters that are filtered before they are After its most recent experience with recorded. For these parameters, the applicant signal filtering, the NTSB issued three 120); and must show, by test, that there is no recommendations (NTSB significant difference between the recorded Recommendations A–03–48/A–03–49/ 1 The Boeing 757 was included in the parameter data under both static and recommendation because it carried the same EICAS dynamic conditions.’’ A–03–50, November 6, 2003). The NTSB system as the 767. The filtering issue was resolved recommended that the FAA require all by modifications to the EICAS that were mandated Based on the FAA’s actions in aircraft have installed a DFDR system in a rulemaking unrelated to data filtering. response to NTSB Recommendation A–

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94–120, the NTSB classified NTSB classified it as ‘‘Closed-Acceptable including reversals of direction at the Recommendation A–94–120 ‘‘Closed- Action.’’ 2 maximum rate possible. (NTSB Acceptable Action’’ on May 11, 2000. Recommendation A–03–48). Flight 587 (2) Require that all existing transport FAA Action: Recommendation A–94– On , 2001, American aircraft that are required to carry a flight 121 Airlines Flight 587, an A300– data recorder be retrofitted with a flight 600, crashed shortly after takeoff from In response to NTSB data recorder system capable of John F. Kennedy Airport, Jamaica, New Recommendation A–94–121, the FAA recording values that meet the accuracy York. Flight 587 experienced an in- first reviewed the flight control position requirements through the full dynamic flight separation of the vertical fin and range of each parameter at a frequency data sent to the FDR on the McDonnell rudder assembly. During its sufficient to determine a complete, Douglas MD–80/90 and MD–11 model investigation, the NTSB discovered a accurate, and unambiguous time history airplanes. In an August 29, 1994 letter discrepancy between the recorded of parameter activity, with emphasis on to the NTSB, we indicated that the flight inputs to the rudder pedal position and capturing each parameter’s dynamic control positions were recorded in the recorded rudder surface movement. motion at the maximum rate possible, accordance with the regulations in effect The Board sought Airbus’s input to including reversals of direction at the at the time. explain the apparent discrepancies. maximum rate expected. (NTSB We next reviewed the flight control Following further analysis, Airbus Recommendation A–03–49). position data sent to the FDR for aircraft explained that the system data analog (3) Require that, within 2 years, all manufactured by Aerospatiale, CASA, converter (SDAC), which supplies the Airbus A300–600/A310 and Boeing Cessna, Grumann, Gulfstream, Israel flight control surface position data, 747–400 3 airplanes and any other Aircraft Industries, Lockheed and digitized and then filtered the analog aircraft that may be identified as SAAB. In a November 1996 letter to the signals from the flight control surface recording filtered data be retrofitted NTSB, we indicated that we had position sensors before outputting the with a flight data recorder system concluded that the flight control signals to the FDR system. Subsequent capable of recording values that meet position data being recorded was aircraft performance evaluations the accuracy requirements through the accurate. We also indicated our intent to conducted independently by the NTSB full dynamic range of each parameter at conduct similar reviews for aircraft and Airbus confirmed that the filtered a frequency sufficient to determine a manufactured by several specified data recorded by the FDR did not reflect complete, accurate, and unambiguous manufacturers. an accurate flight control surface time history of parameter activity, with position time history during the critical emphasis on capturing each parameter’s In May 1997, the NTSB indicated that final seconds of Flight 587. dynamic motion at the maximum rate the language of then-proposed As a result of this discovery, NTSB possible, including reversals of Appendix M to part 121 ‘‘appear(s) to investigators had to evaluate and direction at the maximum rate possible. preclude the use of data filters,’’ and validate the filtered flight control (NTSB Recommendation A–03–50). agreed that ‘‘EICAS-filtered data surface position data from the Flight 587 parameters, would not meet this FDR against other A300 FDR and flight Public Meeting proposed requirement * * *. The Board simulator data before they could analyze On July 7, 2004, the FAA hosted a supports the FAA’s proposal to the critical performance parameters public meeting to discuss NTSB Safety eliminate filtered FDR data * * *.’’ central to the investigation of the Flight Recommendation A–03–50 and the In February 1998, following the 587 accident. The lack of unfiltered data issue of filtering flight data before it is issuance of the 1997 regulatory delayed the analysis of the flight recorded. The meeting was intended to revisions and the publication of AC 20– recorder data needed to determine the gather information from industry about 141, we informed the NTSB that we probable cause of the accident and to current practices of processing data believed no further reviews of aircraft quickly identify necessary corrective before they are recorded. We systems were necessary because the rule actions. specifically sought answers to the would ensure that accurate data were following: NTSB Recommendations A–03–48/49/ • What if any data gets filtered before being recorded. The Board left its 50 recommendation classified ‘‘open- they are recorded, and how is the Following its investigation of Flight filtering accomplished? acceptable’’ pending notification from • the FAA on the reviews of other 587, on November 6, 2003, the NTSB How do individual manufacturers airplane designs. recommended that the FAA: comply with the required ‘‘method for (1) Require that all newly readily retrieving’’ the recorded data? In April 2000, we informed the NTSB manufactured transport-category aircraft • What equipment and procedures that our review of Embraer and Dassualt that are required to carry a flight data would need to be changed, and the costs (Falcon) aircraft indicated that the data recorder be fitted with a flight data involved, if the FAA were to adopt the were recorded accurately on these recorder system capable of recording NTSB recommendation (A–03–50) as aircraft and representative of control values that meet the accuracy written? surface positions. We stated that we requirements through the full dynamic Representatives from the NTSB, considered our response to the range of each parameter at a frequency Airbus, Boeing, the Allied Pilots recommendation complete and that no sufficient to determine a complete, Association, and the Air Line Pilots further action was planned. accurate, and unambiguous time history Association each made a presentation at In August 2000, the NTSB expressed of parameter activity, with emphasis on the public meeting. During this meeting, disappointment that the FAA did not capturing each parameter’s dynamic Airbus confirmed that data filtering was complete a review of all aircraft designs, motion at the maximum rate possible, also occurring on the rudder parameter but stated that it was pleased overall 2 3 with the FAA’s response to NTSB In 2002, the FAA did an informal survey of The –400 was included based on several manufacturers regarding data filtering, but early data from Boeing that the airplane was Recommendation A–94–121, and it did not yield any meaningful results. filtering flight data.

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for the A320 model airplane. In its that is limited to future-manufactured still operating, including grounding the presentation, Boeing noted that its aircraft is always less costly. It would rest of the fleet while an investigation original assessment was incorrect, as fail, however, to address all of the into its airworthiness took place. subsequent investigation revealed that aircraft in the U.S. airline fleet, and Once the NTSB discovered the no flight control parameter data were would allow filtering to continue on inconsistent data, and learned that the being filtered before being recorded on these airplanes or even increase as a rudder position signal had been filtered Boeing 747–400 aircraft. result of future system modifications. for display in the cockpit, however, Based on information received during Information we have gathered thus far NTSB staff began work to discern the the meeting, the FAA determined that indicates that flight data are being actual motion of the rudder. The Board the language of the existing regulations filtered on two models of Airbus aircraft compared Flight 587 data with the data governing DFDRs needed to specifically currently in use. Filtering, as it is recorded by other A300 airplanes, and address flight data filtering. While we defined here, may be occurring on other data from the A300 simulator. The recognize that some types of filtering are aircraft in the fleet as well, despite the NTSB’s eventual conclusion was that necessary (e.g., dampening noise to 1997 regulatory revisions. Experience Flight 587’s separated obtain a clear signal), data filtering that with the and the Airbus at almost 2 times the prescribed limit may obscure raw data to the extent it A300 has already demonstrated that load. Although several analyses were hampers an NTSB investigation has filtering has occurred in the existing performed, including an ‘‘inverse always been considered unacceptable. fleet, causing problems during filtering’’ exercise with the Accordingly, we are proposing this rule investigations. Failing to address this manufacturer, and the FAA was to amend the DFDR regulations by problem on in-service aircraft is not an satisfied with the underlying defining filtering in the regulation and acceptable alternative. airworthiness of the A300–600 airplane, prohibiting signal filtering for certain (3) Enforce the current regulation on the NTSB has never been able to specified recorded parameters. operators of individual aircraft that we produce conclusive evidence of the know filter data before it is recorded: Alternatives Considered actual motion and failure of the This option places the burden on the airplane’s vertical stabilizer and rudder. Before deciding to promulgate this FAA to identify the specific aircraft This is exactly the kind of information proposed rule, the FAA considered the affected with a problem we presumed we had intended be available under the following alternatives concerning data was resolved by regulation in 1997, and 1997 requirements for digital flight data filtering: take action through enforcement (1) Take no action: In its recorders. channels. It would bring into question When the FAA promulgated the 1997 recommendations following the Boeing each cited operator’s interpretation of 767 and Flight 587 accidents, and again regulatory revision, we had every compliance with the regulation, and do expectation that the upgrades to the at the 2004 public meeting, the NTSB nothing to resolve the issue for all described in great detail how its equipment and the more significant manufacturers and operators. It could requirements for data sampling and investigations were hampered by lead to selective, inconsistent filtered data. When it finds filtered data, accuracy would result in more reliable, enforcement and result in inconsistent usable data. What we have discovered is the NTSB must analyze it in an effort to regulatory compliance. We do not approximate the actual control surface that some flight data systems are consider this an effective solution to a recording data that we know is movement (in essence, unfilter the continuing issue. data), such as in the investigation of inaccurate, and therefore not meeting Flight 587. This processing requires Need for Regulatory Action the intent of the 1997 regulations. For detailed analysis and testing, which are Our experience with Flight 587 and these reasons, we have concluded that time-consuming, costly, and for which the NTSB’s investigation of the accident we must take action to clarify the techniques are not always readily all but demand that a more detailed regulations, specifically that filtering available. Even after processing, the regulatory solution be implemented. must be addressed as a defined term results retain a degree of uncertainty, as Following the loss of Flight 587, the with a specific prohibition for certain evidenced in the findings from Flight FAA was intent on determining, as critical parameters of flight data. 587. As a result, the NTSB may be quickly as possible, whether there was General Discussion of the Proposal unable to determine the performance or anything wrong with the airplane that flight control surface movements of an could be prevented from happening on Proposed Rule Language aircraft precisely enough to determine other aircraft of that type. We expected This section describes the rule the probable cause of an incident or that information needed to make that language that would appear in part 121 accident. decision would be immediately and Appendix M. The same language is If the FAA decided to take no action available from the flight data recorder. being proposed for parts 125 and 135 on this issue, the NTSB would likely The initial analysis of Flight 587 and the associated appendices, though continue to encounter filtered data and DFDR data indicated that the airplane the discussion has been abbreviated to have difficulty analyzing airplane experienced an in-flight separation of reference only part 121 and Appendix incident and accident data. Thus, the vertical stabilizer and rudder M. We note that the language in part 135 questions would remain over the assembly. The first analysis of the has a more limited scope based on the industry’s interpretation of regulatory recorded rudder motion indicated that applicability of portions of § 135.152. requirements, thereby allowing filtering the failure may have occurred at 1.24 We also note that operators of aircraft to continue or even increase as those times the prescribed limit load, well subject to § 91.1045 may be affected by interpretations expand. Our conclusion below the certification requirement that the changes to the other sections that are that the recording of unfiltered data is it be able to withstand 1.50 times the referenced in that operating rule. necessary for aircraft incident and prescribed limit load (§ 25.303). If we Section 121.344(n) accident investigations leads to our had presumed the initial flight recorder rejecting this option. information to be correct, we most likely Proposed new § 121.344(n) has four (2) Address newly manufactured would have taken more dramatic action parts. Paragraph (n) prohibits filtering of aircraft only: A regulatory alternative to ensure the safety of the other A300s all parameters except those listed in

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paragraph (2). Paragraph (n)(1) defines filtered, are those from which a loss of rulemaking to further clarify what has filtering, including what does not raw information would not be critical. been required. constitute filtering. Paragraph (n)(2) lists We do not, however, encourage the ‘‘Static condition’’ is generally those parameters that may be filtered. filtering of any original sensor signal, understood to mean the part being Paragraph (n)(3) presents the and the recorded signals for the tested is at rest or in a balanced, steady compliance times. parameters listed in proposed paragraph state. The term ‘‘dynamic condition’’ Proposed paragraph (n) states that no (n)(2) must continue to meet the range, causes more debate, however, flight data sensor signal that is required resolution, rate, and accuracy concerning the rate of change that is to be recorded may be filtered, except requirements of the applicable required for the test. In the case of for those parameters listed in proposed appendices under all conditions. If a control surfaces, for example, we mean paragraph (n)(2). This regulation is parameter proposed for inclusion in the limits of motion and at what rate the designed to be prohibitive for all proposed paragraph (n)(2) is later found surface must be traveling while meeting parameters unless specifically excepted to be inappropriate for filtering because the operational performance in the regulation. it impedes an investigation, it will be requirements and accuracy required by Proposed paragraph (n)(1) defines a removed from that paragraph. Appendix M. filtered signal as one that is changed in We request specific comment on the While most operators have interpreted any way, except that filtering does not the dynamic condition phrase as we do, propriety of the items included in include analog to digital conversion, Flight 587 served as notice that the proposed paragraph (n)(2). As reformatting for compatibility with a understanding is not universal. While it previously stated, the FAA DFDR format, or elimination of a high appeared that the rudder surface acknowledges that some conditioning of frequency component that is outside the parameter on Flight 587 was recorded data is necessary (e.g., dampening noise) bandwidth of the sensor. All signals correctly and reflected the airplane’s and that recognized signal conditioning may, as necessary, receive any of these movements within operational does not alter, change or manipulate the treatments and not be considered performance requirements, the final data in such a way as to affect the filtered. NTSB accident report revealed that the accuracy of the data recorded. We Proposed paragraph (n)(2) contains estimated actual surface movement was request specific comment on any the list of parameters that may be greater than the recorded movement parameter for which commenters have filtered beyond the limits of paragraph (from filtered SDAC data) by more than reason to include or exclude from the (n), as long as the recorded signal still 5 degrees. This margin of difference filtering prohibition. complies with the specifications of the between actual and recorded rudder applicable appendix. Additional Language on Dynamic movement does not meet the Proposed paragraph (n)(3) presents Condition requirement in Appendix M. the proposed compliance times. Aircraft To further clarify the regulation that are manufactured up to 18 months At the beginning of current Appendix regarding test conditions, we are after the effective date of the rule have M, the following language appears: proposing to add a phrase to the 4 years from the date of the rule to ‘‘The recorded values must meet the Appendix M language to include comply. For aircraft manufactured on or designated range, resolution, and accuracy maximum rate of change. We are also after 18 months after the effective date requirements during dynamic and static expanding the discussion of dynamic of the rule, compliance is required at conditions. All data recorded must be testing in the next version of the manufacture. correlated in time to one second.’’ advisory circular. This compliance period is designed to When we proposed this language in Effect of the Proposed Regulation permit operators to accomplish any 1996, the NTSB commented that it required modifications during a thought the FAA needed to include There are currently only two known regularly scheduled heavy maintenance more explanation of what the testing aircraft models in the U.S. fleet that visit, reducing potential impact on language entailed. We responded that have flight data systems that filter data scheduled operations or additional out- further explanation would appear in the before they are recorded—the Airbus of-service time. The four year Advisory Circular that was being A300 and A310 series airplanes, and the compliance time is consistent with FAA developed in conjunction with the rule. Airbus A320 ‘‘family’’ of airplanes that includes the A318, A319, A320, and actions in previous flight recorder More notably, we also included the regulations and has been supported by A321. following in the final rule preamble, in We asked Airbus for proposed the industry as an adequate time for response to the NTSB: retrofit and for introducing new system solutions for each series of airplanes design into aircraft being manufactured. ‘‘The FAA added the requirement for a that would eliminate the filtering of Our review of the 88 parameters listed dynamic test condition to ensure accurate flight data before the data are recorded. in § 121.344(a) resulted in a dynamic recording of aircraft performance. The modification proposed by Airbus This requirement was necessary to preclude determination that some parameters are for the A300 and A310 airplanes the presumption that information * * * may includes a modification of the System too critical to allow any filtering beyond be obtained from filtered or modified the allowable stated signal conditioning. signals.’’ Digital Analog Converter (SDAC) and the Symbol Generator Unit (SGU). Those parameters include flight control (62 FR 38371, July 17, 1997, emphasis added) surface position, control column Simply stated, the modification would position, control forces, and others that We maintain that this language change what the digitized signals would reflect sensitive system information. should have been sufficient to stop the be named by the SGU, allowing one set We are also including discretes in the recording of filtered flight data, even of signals to reach the recorder in an list of parameters that are not to be before the advisory circular material unfiltered state. The modification can be filtered. By definition, discretes show was published. Since we are aware of at made regardless of how many other something is on or off; we know of no least one instance in which the meaning changes may have been made to the need for these data to be filtered. of ‘‘dynamic and static conditions’’ was DFDR systems on these airplanes The parameters listed in proposed not recognized, we are proposing an because it does not include modification § 121.344(n)(2), the ones that may be addition to that language in this of the flight data acquisition unit or the

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recorder itself, the equipment most option, since filtered data would not filtering the rudder movement data. As often affected by changes to regulatory meet the considerable technical stated, we do not consider those to be requirements or general system specifications of the Appendix nor the a cost of this rule, but of ultimate upgrades. The FAA’s initial reaction to requirement for dynamic testing. We compliance with the 1997 regulations. the proposed modification is that it is replied to the NTSB’s comment Paperwork Reduction Act simple and effective. Our analysis indicating that the inclusion of the indicates that the modification would dynamic testing requirement was meant The Paperwork Reduction Act of 1995 cost approximately $16,025 per to preclude the use of filtered data. (44 U.S.C. 3507(d)) requires that the airplane. To argue that filtered data is somehow FAA consider the impact of paperwork The modification proposed by Airbus acceptable under Appendix M is to and other information collection for the A320 family of airplanes, argue that the FAA spent three years burdens imposed on the public. We however, is neither straightforward nor and imposed high costs in order to have determined that there are no new inexpensive. Instead of a simple change allow inaccurate (and unusable) data to information collection requirements to the SDAC and the SGU, Airbus is be recorded. While we understand that associated with this proposed rule. incorporating the change for filtering in the language of the 1997 regulation does the Electronic Instrument System not specifically define and prohibit International Compatibility (known as EIS2) master change filtering, we also know that the In keeping with U.S. obligations modification. The EIS2 modification is regulation had that intent, as was under the Convention on International an extensive system modification that expressed in the preamble, and was Civil Aviation, it is FAA policy to includes new software in the SDAC and written to be as performance-based as comply with International Civil a complete replacement of the flight possible. We stated the data Aviation Organization (ICAO) Standards deck indication systems, including an requirements in Appendix M but did and Recommended Practices to the upgrade from cathode ray tubes to not specify any exact equipment maximum extent practicable. The FAA liquid crystal displays and associated requirements as long as the qualitative has determined that there are no ICAO rewiring. This modification is designed data goals were met. We will not now Standards and Recommended Practices to correct a variety of other issues with accept an argument that we intended that correspond to these proposed the existing flight deck instrumentation the regulation to permit the recordation regulations. system on the A320 family of airplanes. of inaccurate or incomplete data, as Airbus’s addition to the existing EIS2 Flight 587 demonstrated, when the sole Regulatory Evaluation, Regulatory modification will eliminate rudder data purpose of flight recorder data is to Flexibility Determination, International filtering by leaving the output data the collect accurate data to assist Trade Impact Assessment, and same and changing the indication investigations of accidents and Unfunded Mandates Assessment system that recognizes it. This differs incidents. The experience of the NTSB from the A300/A310 solution, which and FAA during the investigation of Changes to Federal regulations must captures the data before it is filtered and Flight 587 has shown that the regulation undergo several economic analyses. creates a new name for it when it is needs clarification. But the regulatory First, Executive Order 12866 directs that recorded. goal of the 1997 revision remains each Federal agency shall propose or In response to our inquiries why the unchanged—the recordation of accurate, adopt a regulation only upon a reasoned rudder data filtering issue cannot be usable flight data, described in determination that the benefits of the addressed alone in a manner similar to Appendix M, and accounted for in the intended regulation justify its costs. the A300/A310, Airbus indicated it economic evaluation of the 1997 final Second, the Regulatory Flexibility Act would not provide another solution. In rule. Data that do not accurately reflect of 1980 (Pub. L. 96–354) requires addition, Airbus did not break out the the movement of an aircraft cannot be agencies to analyze the economic cost of the filtering solution from the said to meet Appendix M or the goal of impact of regulatory changes on small rest of the EIS2 modification. the flight recorder regulations overall. entities. Third, the Trade Agreements The proposed comprehensive EIS2 To the extent work is required to modify Act (Pub. L. 96–39) prohibits agencies solution for the A320 family is far more aircraft DFDR systems to provide from setting standards that create expensive—$800,000 per airplane accurate data, the costs of modifications unnecessary obstacles to the foreign according to the Airbus service or design changes were already commerce of the United States. In bulletin—than the A300/A310 solution. accounted for in the 1997 final rule, developing U.S. standards, this Trade The FAA does not accept the even though they may have yet to be Act requires agencies to consider implication that the only means of accomplished. international standards and, where correcting the rudder filtering problem There are costs associated with this appropriate, that they be the basis of on the A320 family is the costly EIS2 rule, but they are limited to operators U.S. standards. Fourth, the Unfunded modification, and we do not accept the confirming that the DFDR systems on Mandates Reform Act of 1995 (Pub. L. EIS2 modification cost estimate in their aircraft do not filter any parameter 104–4) requires agencies to prepare a estimating costs to correct the problem. on the prohibited list. We are not aware written assessment of the costs, benefits, In fact, we believe that this rule does of any aircraft that filters the prohibited and other effects of proposed or final not propose any known modification parameters other than the Airbus rules that include a Federal mandate costs for which we have not accounted airplanes already discussed. The likely to result in the expenditure by previously. When we wrote and estimated costs for confirming State, local, or tribal governments, in the analyzed the 1997 regulatory changes compliance are related to engineering aggregate, or by the private sector, of for flight recorders, we included the cost evaluation of the systems installed on $128.1 million or more annually of equipment needed to meet the various models of airplanes, and are (adjusted for inflation with base year of requirements of Appendix M (and its discussed in the regulatory evaluation 1995). This portion of the preamble equivalent in other operating parts). As for this rulemaking. The regulatory summarizes the FAA’s analysis of the stated previously, we understood that evaluation also includes a detailed economic impacts of this proposed rule. compliance with Appendix M estimate of the costs to retrofit the We suggest readers seeking greater essentially eliminated filtering as an Airbus airplanes that we know are detail read the full regulatory

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evaluation, a copy of which we have Who Is Potentially Affected by This Rule Digital Flight Data Recorder Regulations placed in the docket for this rulemaking. This proposed rule would affect all was published. Based on these FAA In conducting these analyses, FAA part 121 and part 125 aircraft, and actions, NTSB classified that has determined this proposed rule has would also affect those part 135 aircraft recommendation as ‘‘Closed— benefits that justify its costs, and is not having 10–30 passenger seats that are Acceptable Action.’’ Although the 1997 a ‘‘significant regulatory action’’ as manufactured after August 2000 (in revision did not specifically define and defined in section 3(f) of Executive accordance with 14 CFR 135.152 (i) and prohibit filtering, the regulation had that Order 12866. The rulemaking is also not (j)). Operators subject to § 91.1045 may intent as was expressed in the final rule ‘‘significant’’ as defined in DOT’s be affected if their aircraft are subject to preamble. The American Airlines Flight Regulatory Policies and Procedures. The one of the listed requirements. 587 accident involving an Airbus A300– proposed rule, if adopted, will not have a significant economic impact on a Assumptions 600 demonstrated that this problem of substantial number of small entities, • filtered data still existed, and hampered Discount rate—7%. Sensitivity the investigation. Filtered data has will not create unnecessary obstacles to analysis was performed on 3% and 7%. international trade and will not impose • Period of Analysis—2007 through slowed and reduced the certainty of the an unfunded mandate on state, local, or 2010. Airbus A300–600 accident tribal governments, or on the private • Burdened labor rate for engineers investigation. Unfortunately, some data sector. These analyses, available in the and quality professionals—$75/hour. filtering continues and has obscured key draft regulatory evaluation supporting • Final rule will become effective 4 causal factors of an accident. (The FAA this NPRM, are summarized below. years after publication. intends with this rule to specifically define and prohibit filtered data for Total Costs and Benefits of This Rule Benefits of This Rule NTSB accident investigations.) The estimated cost of this proposed In 1994, the National Transportation rule would be $675,000 ($571,592 in Safety Board (NTSB) recommended a Costs of This Rule present value terms). This proposed rule review of airplane designs to ensure would clarify the regulations to define flight control data to the DFDR are The costs of the proposed rule from and prohibit data filtering, which would accurate and that filtered data are not 2007 through 2010 would be $571,592 ensure more accurate data for accident substituted for accurate data. Beginning in present value terms. Refer to the investigations. More detailed benefits in 1994, the FAA conducted a review of tables below for a more detailed and cost information will be provided several different aircraft and did not breakdown of the costs. The FAA below. The FAA seeks comments on discover any filtered data being sent to requests comments on the costs. these estimates. the DFDR. In 1997, the Revisions to

Relevant US fleet category # Aircraft Cost

Part 121 ...... 6,573 $492,975 Part 125 ...... 628 47,100 Part 135 (overestimate) ...... 1,799 134,925 Total affected aircraft (overestimate) ...... 9,000 675,000 Sources: ACAS database by Flight, Federal Aviation Administration.

TOTAL COSTS (Undiscounted and Discounted)

2007 2008 2009 2010 Total

Number of Planes ...... 2,250 2,250 2,250 2,250 9,000 Undiscounted Costs ...... 168,750 168,750 168,750 168,750 675,000 Costs Discounted at 7% ...... 157,710 147,393 137,750 128,739 571,592 Costs Discounted at 3% ...... 163,835 159,063 154,430 149,932 627,260

Regulatory Flexibility Determination small businesses, not-for-profit and a regulatory flexibility analysis is organizations and small governmental not required. The certification must The Regulatory Flexibility Act of 1980 jurisdictions. include a statement providing the (Pub. L. 96–354) (RFA) establishes ‘‘as a Agencies must perform a review to factual basis for this determination, and principle of regulatory issuance that determine whether a rule will have a the reasoning should be clear. agencies shall endeavor, consistent with significant economic impact on a The FAA believes that this proposal the objective of the rule and of substantial number of small entities. If would not have a significant impact on applicable statutes, to fit regulatory and the agency determines that it will, the a substantial number of entities for the informational requirements to the scale agency must prepare a regulatory following reason: the individual of the business, organizations, and flexibility analysis as described in the airplane cost of $75 would not represent governmental jurisdictions subject to RFA. a significant economic burden on regulation.’’ To achieve that principle, However, if an agency determines that airplane operators. Therefore, the FAA the RFA requires agencies to consider a proposed rule is not expected to have certifies that this proposal would not flexible regulatory proposals, to explain a significant economic impact on a have a significant economic impact on the rationale for their actions, and to substantial number of small entities, a substantial number of small entities. solicit comments. The RFA covers a section 605(b) of the RFA provides that The FAA solicits comments regarding wide-range of small entities, including the head of the agency may so certify this finding.

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International Trade Impact Assessment Regulations that Significantly Affect (3) Compliance with this paragraph is Energy Supply, Distribution, or Use required as follows: The Trade Agreements Act of 1979 The FAA has analyzed this NPRM (i) For aircraft manufactured before (Pub. L. 96–39) prohibits Federal [date 18 months from effective date of agencies from establishing any under Executive Order 13211, Actions Concerning Regulations that the final rule], compliance is required standards or engaging in related by [date 4 years from effective date of activities that create unnecessary Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We the final rule]. obstacles to the foreign commerce of the (ii) For aircraft manufactured on and have determined that it is not a United States. Legitimate domestic after [date 18 months from effective date ‘‘significant energy action’’ under the objectives, such as safety, are not of the final rule], compliance is required executive order because it is not a considered unnecessary obstacles. The at manufacture. ‘‘significant regulatory action’’ under statute also requires consideration of 3. Amend § 121.344a by adding a new Executive Order 12866, and it is not international standards and, where paragraph (g) to read as follows: appropriate, that they be the basis for likely to have a significant adverse effect on the supply, distribution, or use of § 121.344a Digital flight data recorders for U.S. standards. The FAA has assessed energy. 10–19 seat airplanes. the potential effect of this proposed rule and determined that it would respond to List of Subjects in 14 CFR Parts 121, * * * * * a domestic safety objective and would 125, and 135 (g) Compliance with the requirements of § 121.344(n) of this part is required not be considered an unnecessary Air carriers, Aircraft, Aviation safety, barrier to trade. for all airplanes covered by this section. Safety, Transportation. 4. Amend appendix M to part 121 by Unfunded Mandates Assessment The Proposed Amendment revising the introductory text immediately following the appendix Title II of the Unfunded Mandates In consideration of the foregoing, the title to read as follows: Reform Act of 1995 (Pub. L. 104–4) Federal Aviation Administration requires each Federal agency to prepare proposes to amend part 121 of Chapter Appendix M to Part 121—Airplane a written statement assessing the effects I of Title 14, Code of Federal Flight Recorder Specifications of any Federal mandate in a proposed or Regulations as follows: The recorded values must meet the final agency rule that may result in an designated range, resolution and accuracy expenditure of $100 million or more PART 121—OPERATING requirements during static and dynamic (adjusted annually for inflation with the REQUIREMENTS: DOMESTIC, FLAG, conditions. Dynamic condition means the base year 1995) in any one year by State, AND SUPPLEMENTAL OPERATIONS parameter is experiencing change at the local, and tribal governments, in the maximum rate available, including the 1. The authority citation for part 121 maximum rate of reversal. All data recorded aggregate, or by the private sector; such continues to read as follows: must be correlated in time to within one a mandate is deemed to be a ‘‘significant second. regulatory action.’’ The FAA currently Authority: 49 U.S.C. 106(g), 40113, 40119, 44101, 44701–44702, 44705, 44709–44711, * * * * * uses an inflation-adjusted value of 44713, 44716–44717, 44722, 44901, 44903– $128.1 million in lieu of $100 million. 44904, 44912, 46105. PART 125—CERTIFICATION AND This proposed rule does not contain 2. Amend § 121.344 by adding a new OPERATIONS: AIRPLANES HAVING A such a mandate. The requirements of paragraph (n) to read as follows: SEATING CAPACITY OF 20 OR MORE Title II do not apply. PASSENGERS OR A MAXIMUM § 121.344 Digital flight data recorders for PAYLOAD CAPACITY OF 6,000 transport category airplanes. Executive Order 13132, Federalism POUNDS OR MORE; AND RULES * * * * * The FAA has analyzed this proposed GOVERNING PERSONS ON BOARD (n) For any parameter required by this SUCH AIRCRAFT rule under the principles and criteria of section to be recorded, no flight data Executive Order 13132, Federalism. We sensor signal may be filtered, except as 5. The authority citation for part 125 determined that this action would not provided in paragraph (n)(2) of this continues to read as follows: have a substantial direct effect on the section. Authority: 49 U.S.C. 106(g), 40113, 44701– States, on the relationship between the (1) A signal is filtered when an 44702, 44705, 44710–44711, 44713, 44716– national Government and the States, or original sensor signal has been changed 44717, 44722. on the distribution of power and in any way, other than changes responsibilities among the various 6. Amend § 125.226 to add a new necessary to: paragraph (m) to read as follows: levels of government, and therefore (i) Accomplish analog to digital would not have federalism implications. conversion of the signal; § 125.226 Digital flight data recorders. Environmental Analysis (ii) reformat a digital signal into a * * * * * DFDR-compatible format; or (m) For any parameter required by FAA Order 1050.1E identifies FAA (iii) eliminate a high frequency this section to be recorded, no flight actions that are categorically excluded component of a signal that is outside the data sensor signal may be filtered, from preparation of an environmental operational bandwidth of the sensor. except as provided in paragraph (m)(2) assessment or environmental impact (2) The original sensor signals for the of this section. statement under the National following parameters described in (1) A signal is filtered when an Environmental Policy Act in the paragraph (a) of this section may be original sensor signal has been changed absence of extraordinary circumstances. filtered, provided that each recorded in any way, other than changes The FAA has determined this proposed signal continues to meet the necessary to: rulemaking action qualifies for the requirements of Appendix M of this (i) Accomplish analog to digital categorical exclusion identified in part: 1–7, 9, 11, 18, 20, 21, 24, 26–28, conversion of the signal; Chapter 3, paragraph 312f, and involves 32, 34, 37–39, 43, 45–54, 58, 59, 68, 70, (ii) reformat a digital signal into a no extraordinary circumstances. 73, 77, and 82–85. DFDR-compatible format; or

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(iii) eliminate a high frequency PART 135—OPERATING requirements of Appendix F of this part: component of a signal that is outside the REQUIREMENTS: COMMUTER AND 1–7, 9, 11, 18, 20, 21, 24, 26–28, 32, 34, operational bandwidth of the sensor. ON DEMAND OPERATIONS AND 37–39, 43, 45–54, 58, 59, 68, 70, 73, 77, (2) The original sensor signals for the RULES GOVERNING PERSONS ON and 82–85. following parameters described in BOARD SUCH AIRCRAFT (4) Compliance with this section is paragraph (a) of this section may be required as follows: filtered, provided that each recorded 8. The authority citation for part 135 signal continues to meet the continues to read as follows: (i) For aircraft manufactured before requirements of Appendix E of this part: Authority: 49 U.S.C. 106(g), 41706, 44113, [date 18 months from effective date of 1–7, 9, 11, 18, 20, 21, 24, 26–28, 32, 34, 44701–44702, 44705, 44709, 44711–44713, the final rule], compliance is required 37–39, 43, 45–54, 58, 59, 68, 70, 73, 77, 44715–44717, 44722. by [date 4 years from effective date of the final rule]. and 82–85. 9. Amend § 135.152 by adding a new (3) Compliance with this paragraph is paragraph (l) to read as follows: (ii) For aircraft manufactured on and required as follows: after [date 18 months from effective], (i) For aircraft manufactured before § 135.152 Flight recorders. compliance is required at manufacture. [date 18 months from effective date of * * * * * 10. Amend appendix F to part 135 by the final rule], compliance is required (l) For aircraft subject to paragraph (i) revising the introductory text by [date 4 years from effective date of or (j) of this section: immediately following the appendix the final rule]. (1) For any parameter required by this title to read as follows: (ii) For aircraft manufactured on and section to be recorded, no flight data after [date 18 months from effective date sensor signal may be filtered, except as Appendix F to Part 135—Airplane of the final rule], compliance is required provided by paragraph (l)(3) of this Flight Recorder Specifications at manufacture. section. The recorded values must meet the 7. Amend appendix E to part 125 by (2) A signal is filtered when an revising the introductory text designated range, resolution and accuracy original sensor signal has been changed requirements during static and dynamic immediately following the appendix in any way, other than changes conditions. Dynamic condition means the title to read as follows: necessary to: parameter is experiencing change at the Appendix E to Part 125—Airplane (i) Accomplish analog to digital maximum rate available, including the Flight Recorder Specifications conversion of the signal; maximum rate of reversal. All data recorded (ii) reformat a digital signal into a must be correlated in time to within one The recorded values must meet the DFDR-compatible format; or second. designated range, resolution and accuracy (iii) eliminate a high frequency requirements during static and dynamic * * * * * conditions. Dynamic condition means the component of a signal that is outside the operational bandwidth of the sensor. Issued in Washington, DC, on November 1, parameter is experiencing change at the 2006. maximum rate available, including the (3) The following original sensor Dorenda D. Baker, maximum rate of reversal. All data recorded signals for the parameters described in must be correlated in time to within one paragraph (h) of this section may be Acting Director, Aircraft Certification Service. second. filtered, provided that each recorded [FR Doc. E6–19205 Filed 11–14–06; 8:45 am] * * * * * signal continues to meet the BILLING CODE 4910–13–P

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