Skip Ribbon Commands
Skip to main content
Safety Recommendation Details

Safety Recommendation A-10-029
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: Require 14 Code of Federal Regulations Part 121, 135, and 91K operators to (1) routinely download and analyze all available sources of safety information, as part of their flight operational quality assurance program, to identify deviations from established norms and procedures; (2) provide appropriate protections to ensure the confidentiality of the deidentified aggregate data; and (3) ensure that this information is used for safety-related and not punitive purposes.
Original recommendation transmittal letter: PDF
Overall Status: Open Acceptable Alternate Response
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:
Addressee(s) and Addressee Status: FAA (Open Acceptable Alternate Response)
Keyword(s): Oversight

Safety Recommendation History
From: NTSB
To: FAA
Date: 8/11/2016
Response: We requested clarification as to whether Public Law (PL) 112-95 establishes similar protections for all data collected as part of a FOQA program, such as those captured by cockpit voice recorders (CVRs). You responded that PL 112-95 does not apply to CVR data, but that such data is protected by the FOQA rule. Further, you stated that, regardless of its electronic format, digital flight data—including that from a CVR—collected from an aircraft pursuant to an FAA-approved FOQA program are considered to be FOQA data, and are therefore protected under 14 CFR 13.401, “Flight Operational Quality Assurance Program: Prohibition Against Use of Data for Enforcement Purposes.” We note that you intend to update Advisory Circular 120-82, “Flight Operational Quality Assurance,” to include information about additional data sources for FOQA programs. We also acknowledge that you plan to update relevant guidance to inspectors in FAA Order 8900.1, “Flight Standards Information Management System,” volume 11, chapter 2, section 2, “Safety Assurance System: Flight Operational Quality Assurance.” Pending our acceptance of the updated guidance, Safety Recommendation A-10-29 remains classified OPEN--ACCEPTABLE ALTERNATE RESPONSE.

From: FAA
To: NTSB
Date: 5/23/2016
Response: -From Michael P. Huerta, Administrator: As stated in our October 15. 20 12, letter. the Federal A vi at ion Administration (FAA) recognizes the benefits of Flight Operational Quality Assurance (FOQA) programs and plans to fully adopt these recommendations through alternative action for part 121 operators. The FAA will continue to encourage parts 135 and 91 subpart K operators to adopt FOQA programs. Given that virtually all major passenger-carrying U.S. airlines and a significant number of larger regional airlines already comply on a voluntary basis with the provisions of these recommendations the FAA believes that mandating FOQA would not only fail to result in an enhanced benefit to public safety. it could actually diminish the effectiveness of FOQA programs presently in place. In the Board's letter dated February 4, 2013 it stated its belief that Public Law (PL) 112-95 establishes protections for all data collected as part of a FOQA program including all types of available sources of safety improvement specified in this recommendation such as those captured by cockpit voice recorder (CVR) recordings. The Board asked the FAA to confirm their understanding or the applicability of the protection in PL 11 2-95 to such data. In response to the Board's question the FAA clarifies PL 112-95 provides protection for digital flight data outside of the flight data recorder (FOR) and quick access recorder (QAR) data as the FOQA rule already incorporates such protections. However. 14 CFR § 13.401. Flight Operational Quality Assurance Program: Prohibition against use of data for enforcement purposes does not limit protections to only FOR and QAR data. Section 13.40 I (a)(2) defines FOQA data as·· ... any digital flight data that has been collected from an individual aircraft pursuant to an FAA-approved FOQA program regardless of the electronic format or that data." Therefore. digitized CVR data is already protected which addresses the concern tor protection to ensure confidentiality identified in the Board's recommendation. On January 8, 2015 the FAA published the Safety Management Systems for Domestic Flag and Supplemental Operations Certificate Holders Final Rule. The rule requires operators under part 121 to develop and implement a Safety Management System (SMS). The rule adds a new part 5 to 14 CFR. creating the general framework for an SMS that a part 121 air carrier may adapt to fit the needs of its operation. It also modifies that part 119 specify applicability and implementation or the new SMS framework in part 5 for aircraft operators certificated under part 12 1. Guidance to FAA Flight Standards offices has been provided for implementation plan approval system validation acceptance and oversight for part 121 cet1ificate holders developing and implementing SMS. Furthermore, the Board stated in its last letter that an acceptable alternative response to address this recommendation would involve revisions to FAA guidance such as advisory circular (AC) 120-82 Flight Operational Quality Assurance. Per the Board's request, the FAA will provide an update for operators in AC 120-82. In addition, we will update relevant guidance to inspectors in FAA Order 8900.1. Flight Standards information Management System volume 11. chapter 2 section 2. Safety Assurance system: Flight Operational Quality Assurance. I will keep the Board informed of the FAA's progress on this recommendation and update the Board by August 31, 2017.

From: NTSB
To: FAA
Date: 12/8/2015
Response: CC# 201501092: The National Transportation Safety Board (NTSB) has reviewed the Federal Aviation Administration’s (FAA) draft Advisory Circular (AC) 20-CVR, “Airworthiness and Operational Approval of Cockpit Voice Recorder Systems,” which was posted for comment on the FAA’s website on November 10, 2015. The draft AC provides guidance to airframe manufacturers, cockpit voice recorder (CVR) systems manufacturers, aircraft operators, and Supplemental Type Certificate applicants to comply with regulations for the airworthiness and operational approval of CVR systems. During the investigation of the loss of control of Colgan Air, Inc. Flight 3407 in Clarence Center, New York, on February 12, 2009, the NTSB issued the following recommendation to the FAA: Require 14 Code of Federal Regulations Part 121, 135, and 91K operators to (1) routinely download and analyze all available sources of safety information, as part of their flight operational quality assurance program, to identify deviations from established norms and procedures; (2) provide appropriate protections to ensure the confidentiality of the deidentified aggregate data; and (3) ensure that this information is used for safety-related and not punitive purposes. (A-10-29) On October 15, 2012, the FAA replied to the recommendation stating in part, “The operator should develop and implement processes and procedures suitable to the complexity and needs of its organization to identify hazards and assess risks to its operation.” On February 4, 2013, the NTSB replied to the FAA and suggested modifying AC 120-82, “Flight Operations Quality Assurance” to include CVR recordings if appropriate protections in Public Law 112-95, section 310, (adding section 44735, “Limitation on disclosure of safety information,” to Title 49 United States Code) are applicable. This recommendation is currently classified “Open?Acceptable Alternate Response.” The NTSB believes adding a foreword in the draft AC paralleling the foreword in AC 20 141B, “Airworthiness and Operational Approval of Digital Flight Data Recorder Systems,” is consistent with the FAA’s October 15, 2012, response and will help address Safety Recommendation A-10-29.

From: NTSB
To: FAA
Date: 2/4/2013
Response: The FAA’s October 15, 2012, letter groups the agency’s response to this recommendation with its response to Safety Recommendation A-10-27. Although both concern FOQA programs, we believe it is important to discuss the particular actions specified in Safety Recommendation A 10-29. The letter issuing this recommendation stated that Colgan Air had proposed including, as part of its FOQA program, a sample of cockpit voice recorder (CVR) recordings from routine line operations that could be used, with other information, to determine how well pilots adhered to sterile cockpit and standard operating procedures. FOQA programs typically utilize only flight data from either the flight data recorder (FDR) or from a quick access recorder (QAR); such data do not usually include additional sources of information (such as those captured by a CVR). Safety Recommendation A 10 29 sought to include additional appropriate sources of information in FOQA programs, to ensure that appropriate protection of confidentiality would be provided and that these data would be used solely for safety-related, and not punitive, purposes. PL 112-95 establishes specific statutory FOQA data protection authority, but only for safety-related data that have been voluntarily submitted, which prevents the FAA from requiring the collection and use of such data. We believe that PL 112-95 establishes similar protections for all data collected as part of a FOQA program, including the types of additional data (such as those captured by CVR recordings) specified in Safety Recommendation A-10-29. We ask the FAA to confirm our understanding of the applicability of the protection in PL 112-95 to such data. We believe that, if the FAA agrees that PL 112-95 provides the necessary protections, an acceptable alternate response to this recommendation may involve revisions to FAA guidance, such as advisory circular 120-82, ”Flight Operational Quality Assurance,” to include information about sources of data for FOQA programs in addition to FDR and QAR data. We ask the FAA to consider such a response. Pending such action, Safety Recommendation A-10-29 is classified OPEN—ACCEPTABLE ALTERNATE RESPONSE.

From: FAA
To: NTSB
Date: 10/15/2012
Response: -From Michael P. Huerta, Acting Administrator: The Federal Aviation Administration (FAA) recognizes the benefits of Flight Operational Quality Assurance (FOQA) programs and plans to fully adopt these recommendations through alternative action for part 121 operators. The FAA will continue to encourage parts 135 and 91 subpart K operators to adopt FOQA programs. Given that virtually all major passenger-carrying U.S. airlines, and a significant number of larger regional airlines, already comply on a voluntary basis with the provisions of these recommendations, the FAA believes that mandating FOQA would not only fail to result in an enhanced benefit to public safety, it could actually diminish the effectiveness of FOQA programs presently in place. Currently, 39 part 121,4 parts 1211135, and 3 part 135 operators have FOQA programs; these operators collectively transport more than 90 percent of the flying public. Public Law 111-216, Airline Safety and Federal Aviation Administration Extension Act of2010, included two sections that require FAA action applicable to these recommendations. Section 214 required the FAA to develop and implement a plan to facilitate the establishment of the Aviation Safety Action Program (ASAP) and FOQA program for all part 121 operators. The FAA provided its plan in a report to Congress on April 14, 2011, which is available at: http://www.faa.gov/about/office_org/headquarters_offices/agi/reports/media/Report%20to%20Congress%20on%20ASAP%20and%20FOQA.pdf. Section 215 required the FAA to conduct rulemaking to require all part 121 operators to implement a Safety Management System (SMS). The rulemaking must consider, at a minimum, an ASAP, FOQA program, a Line Operations Safety Audit, and an Advanced Qualification Program as part of the SMS. The Safety Management Systems for Part 121 Certificate Holders Notice of Proposed Rulemaking was published for comment on November 5, 2010. The comment period has since closed and the FAA anticipates a final rule sometime in 2013. Although FOQA is an excellent tool for some operators and may be used as a process or procedure in an operator's SMS, the FAA does not intend to require it for all certificate holders conducting operations under part 121. There are a number of ways to collect this information, and the FAA does not believe it is appropriate to prescribe the exact method for collection and analysis of this type of data. The operator should develop and implement the processes and procedures suitable to the complexity and needs of its organization to identify hazards and assess risk to its operation. In addition, the FAA determined that it is appropriate to protect certain information collected under FOQA from disclosure. If the FAA were to require FOQA, this protection would be lost. Public Law 112-95, FAA Modernization and Reform Act of2012, section 310, section 44735, Limitation on disclosure of safety information, establishes specific statutory 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 FAA, including FOQA information. I will keep the Board informed of the FAA's progress on these recommendations and provide an update by August 31, 2013.

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: 1/25/2011
Response: Although the FAA agrees that the collection and analysis of objective flight data to identify deviations from established norms and procedures is critical to flight safety, it currently has no plans to require operators to implement a FOQA program; however, the FAA will continue to encourage operators to voluntarily adopt and implement FOQA programs. The NTSB understands 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 the NTSB issued Safety Recommendation A-10-28, discussed below. Until there has been a satisfactory resolution of Safety Recommendation A-10-28, the FAA will not be in a position to take the actions requested in Safety Recommendations A-10-27 and -29. The FAA's plan to encourage operators to voluntarily adopt these programs constitutes an acceptable interim step until the action in Safety Recommendation A-10-28 has been satisfactorily completed. The NTSB would appreciate receiving from the FAA, on an annual basis, information about the number of air carriers and fractional operators who have voluntarily adopted FOQA programs so that we may judge how well these programs are being adopted. Pending our receipt of a completed, satisfactory response to Safety Recommendation A-10-28 and annual updates on the number of carriers and fractional owners who have voluntarily adopted FOQA programs, demonstrating that increasing numbers are doing so, Safety Recommendations A-10-27 and -29 are classified OPEN – ACCEPTABLE RESPONSE.

From: FAA
To: NTSB
Date: 6/22/2010
Response: MC# 2100243 - From J. Randolph Babbitt, Administrator: The FAA agrees with the Board that the collection and analysis of objective flight data to identify deviations from established norms and procedures is critical to flight safety. The FAA currently has no plans to require operators to have a flight operation quality assurance (FOQA) program but will continue to encourage parts 121, 135, and 91K operators to adopt and implement one. By their voluntary nature, FOQA programs embody the appropriate tenets of non-punitive retribution and protections of confidentiality. The FAA plans to update the Board regarding the number of FOQA participating air carriers and fractional operators on a biannual basis.