334 UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD PUBLIC HEARING CONCERNING AVIATION IMAGE RECORDING Board Room and Conference Center National Transportation Safety Board Washington, D.C. Wednesday, July 28, 2004 APPEARANCES: Members of the Board of Inquiry: CAROL CARMODY, Chairman DR. VERNON ELLINGSTAD RON BATTOCCHI ROBERT MacINTOSH JAMES CASH National Transportation Safety Board Technical Panel: DOUG BRAZY DR. DEBORAH BRUCE DR. EVAN BYRNE DENNIS GROSSI CHRISTOPHER JULIUS SARAH McCOMB On behalf of the Federal Aviation Administration: STEVE WALLACE On behalf of the Air Transport Association: BASIL BARIMO On behalf of the Regional Airline Association: DAVID LOTTERER
APPEARANCES:
(Continued)
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335 On behalf of the Air Line Pilots Association: CAPTAIN LINDSAY FENWICK On behalf of the Allied Pilots Association: JOHN DAVID On behalf of the National Air Transport Association: JACQUELINE ROSSER
I N D E X EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
336 AGENDA ITEM: LEGAL AND PRIVACY ISSUES Statement by Christopher Julius, NTSB James Johnson Air Line Pilots Association Michael Demetrio Law Offices of Corboy & Demetrio Mark Dombroff Dombroff & Gilmore James Whitlow Deputy Chief Counsel, Federal Aviation Administration Ken Smart Air Accidents Investigation Branch, U.K. REGULATORY ISSUES David Hempe Aircraft Engineering Division, Federal Aviation Administration Tony Fazio Office of Rulemaking, Federal Aviation Administration CLOSING REMARKS AND ADJOURNMENT PAGE: 338 338 356 393 393 426
438 479 481
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337 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Very good. Mr. Cash, would you begin? Let me just say that we're going to start with the NTSB staff, Christopher Julius. After his CHAIRMAN CARMODY: Good morning. 11:15 a.m. I wonder if
we could take our seats, please. (Pause) CHAIRMAN CARMODY: all the parties. yesterday. Thank you, and welcome to
I think most of you were here
A few new additions. Why don't I ask the party spokesmen to
introduce any new members who are sitting with you today. Starting with the FAA, Mr. Wallace, please. MR. WALLACE: With me today is Mr. James
Whitlow, who will be a witness on the Legal and Privacy Issues Panel. He's the only new addition today. ATA, any -- you have the
CHAIRMAN CARMODY: same, I see. MR. BARIMO:
Yes, no new members. Same, same. All right.
CHAIRMAN CARMODY:
statement, I have agreed, because of the request of some parties, to make him available for some questions if they pertain to his statement and to his issues. if there are no questions of him, we'll just move on EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 So
338 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Julius. Mr. Julius, if you would give us a brief -name for the record and title and place of employment and a brief history of your education and professional experience. MR. JULIUS: MR. CASH: My name is Chris Julius -after that. I'm sorry? Oh, I'm sorry. You do indeed,
Mr. Fenwick -- Captain Fenwick. CAPTAIN FENWICK: Yes, ma'am. We have across
from me at the table today Mr. Jay Wells, a staff attorney with the Air Line Pilots Association. CHAIRMAN CARMODY: Good. Welcome, Mr. Wells.
Please proceed, Mr. Cash. MR. CASH: We'd like to call Christopher
Turn the mike on. My name is Chris Julius. I've
MR. JULIUS:
been with the Safety Board since 1995, and I'm an attorney in the Office of General Counsel. MR. CASH: Thank you.
And I believe he has a statement. LEGAL AND PRIVACY ISSUES Statement by Christopher Julius MR. JULIUS: Good morning, Madam Chairman,
members of the Board of Inquiry, ladies and gentlemen. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
339 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 My statement this morning is intended to provide an overview of cockpit voice recorder and cockpit imaging recorder legislation and a brief description of NTSB policies and procedures regarding these recordings. The witnesses who follow me will cover in more detail the history of the legislation and its application in judicial settings. Other witnesses on
this panel will address FAA enforcement issues and international practices regarding CVRs and cockpit image recorders. An expanded written version of my statement will be part of the public docket. Regulations and legislation. CVRs were first At the
required in 1964 as a result of FAA rulemaking. time, FAA explained, quote: "CVRs would be a valuable tool in the
investigation of accidents by providing firsthand information of the flight crew's observations and analysis of conditions aboard the airplane, and the procedures employed by them to cope with an emergency," end quote. During the rulemaking process, the FAA was urged by some to implement a requirement that CVR material not be utilized for any purpose other than EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
340 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 accident investigation. In its rulemaking, the FAA
stated that it could not bind the courts and, quote, "could not, even if it found it desirable, specify by rule those persons who would be authorized to read out voice recorder tapes." The FAA, however, did announce
that CVR material would not be used by FAA in enforcement proceedings. It should be noted that, aside from the obvious investigative value, the impetus for the CVR mandate was simply the availability of appropriate technology. Since the initial FAA rulemaking in 1964, three major pieces of legislation regarding CVRs and cockpit image recorders have been enacted. First, in
1982, Congress passed legislation expressly codifying NTSB's longstanding policy of releasing only transcripts of the pertinent portions of CVR recordings and not disclosing the actual audio recording. This
legislation was needed to ensure that the Board could continue to protect against disclosure of CVR recordings in light of the broad reach of the Freedom of Information Act. Next, in 1990, Congress passed legislation to address in part the increasingly sensationalistic media attention to aircraft accidents and other perceived EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
341 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 misuses of CVR material. The impetus for the new
legislation was in part -- in large part a Texas state court order that required Delta Airlines to release an accident CVR in Delta's possession, after NTSB had completed its investigation, to a local television station. Even worse, the Delta CVR recording was
broadcast on local and national television. The 1990 legislation requires that discovery of CVR material in judicial proceedings only be permitted if a judge determines it necessary for a party to receive a fair trial. If discovery is
permitted, strict procedures govern the scope of access to CVR material, and a protective order to prevent dissemination of non-public CVR material outside of the judicial proceeding is required. Non-public CVR
material utilized at trial must be placed under seal by the court. Finally, in 2000, Congress expanded the previous legislation to encompass cockpit image recorders. This legislative change was sought by NTSB
to ensure that there was no, quote: "Legislatively defined differences between the treatment of new video technology and existing voice recorders, as the lack of statutory protection for video technology EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
342 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would serve to limit its acceptance," end quote. Exhibits 10-A and 10-B provide more detailed information on the current statutory language as well as the legislative history of the 1982, 1990, and 2000 initiatives. To summarize, under the current statutory scheme, NTSB is bound by a general prescription, to wit, quote: "The Board may not disclose publicly any part of a cockpit voice or video recorder recording related to an accident or incident investigated by the Board." The only exceptions to this general prescription are, 1) The NTSB's obligation to, quote, "make part -- make public any part of a transcript or written depiction of visual information the Board decides is relevant to an accident or incident," end quote; or 2) The NTSB's prerogative to make reference at any time to recorded information in making safety recommendations. Moreover, although it is outside the ambit of any statutory provision, CVR recordings have not, in my experience, been used in the United States for administrative enforcement or criminal proceedings EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
343 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 against flight crews. NTSB policies and procedures. NTSB has never
authorized the release of a CVR recording, nor has NTSB ever authorized anyone else to release a CVR recording. Obviously, the content is very sensitive, and NTSB treats the evidence recorded by CVRs and cockpit image recorders with the utmost respect. In fact, NTSB
currently has procedures and policies in place to ensure that the actual CVR recordings are never heard or seen except by a very small number of qualified participants in the official accident or incident investigation. For example, even among NTSB investigators and officials actively involved in the investigation, access to the recording or draft transcripts is strictly controlled. Indeed, only four persons at --
four persons at NTSB are automatically authorized to hear a CVR recording or review draft transcripts. Those persons are the recorder specialist assigned to the accident, the investigator in charge, the director of the Office of Aviation Safety, and the director of the Office of Research and Engineering. All other NTSB personnel must consult with the investigator in charge and then obtain permission of both the director of the Office of Aviation Safety EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
344 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and the director of the Office of Research and Engineering before they are permitted to review a recording or non-public transcript. Furthermore, anyone who listens to a CVR recording must sign a master log sheet every time they listen to a CVR. For party participants in a CVR group convened by NTSB to transcribe a CVR recording, each participant must be approved by the director of the Office of Aviation Safety and the director of the Office of Research and Engineering before they are permitted to hear a CVR recording. Party representatives participating in the CVR group must also sign a CVR nondisclosure agreement, and they are prohibited from discussing the recording while outside the laboratory. Finally, participants are prohibited from bringing electronic devices into the CVR laboratory, and any notes taken during the meeting are collected and destroyed prior -- before the group is dismissed. NTSB would follow similar procedures for cockpit image recorders. The CVR handbook for NTSB staff is reproduced in Exhibit 10-F. Finally, ICAO. Annex 13 to the Convention on
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345 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 International Civil Aviation contains international standards governing aircraft accident and incident investigations. Many countries of the world, including The relevant
the United States, are signatories.
portions of Annex 13, including differences from requirements of the United States, are set forth in Exhibit 10-I. Madam Chairman, that concludes my statement. CHAIRMAN CARMODY: Thank you, Mr. Julius.
I assume there are no questions from the Technical Panel of our witness. Do any of the parties have questions for Mr. Julius, starting with the FAA. MR. WALLACE: Mr. Wallace?
Well, Mr. Julius, you explained
the -- the powerful protections that the NTSB has in place for cockpit voice recorders. Of course, that's a
matter of major concern as we contemplate image recorders. My first question, what -- how would those protections that you -- you described the statutory change -- apply where a -- a -- an image recorder is the only recorder on the aircraft and essentially becomes the flight data recorder as well? MR. JULIUS: That's certainly a question that
I'm going to ask the FAA witness on my panel, but a -EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
346 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a video recorder that serves in lieu of a flight data recorder on the smaller turbine aircraft would, by its nature, capture information analogous to a CVR. For
those reasons, I would propose that they be treated as a cockpit image -- a cockpit image recorder would be treated as a CVR. There is an issue about parametric data that's also captured and transcribed in written form. That is a question that we'll be asking the FAA, how they would treat that. MR. WALLACE: Well, the FAA's treatment is I assume that would be the
for enforcement purposes. focus. MR. JULIUS:
Well, we're -- the NTSB is
proscribed by statute from releasing any part of a cockpit image recorder. We're only permitted to
release a written depiction of the relevant portions of that cockpit image recorder. MR. WALLACE: We're all familiar with the way
you -- NTSB transcribes a CVR in the course of an accident investigation, but that normally comes down to simply a -- for the most part, it is a description of the words the pilots are saying to each other or ATC transmission or something like sound of trim in motion, things that are fairly specific. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
347 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 How would that work -- how would you envision that working with something as subjective, you know, as -- as subjective as motions or actions or whatever you could see on this image recorder? MR. JULIUS: That would probably be a I
question that I would defer to our technical staff.
can say that I'm confident that our technical staff can provide a written depiction of what they see on a cockpit image recorder. MR. WALLACE: And you heard yesterday Mr.
Smart's discussion of a possible three-key encryption system. Obviously, a major concern is the -- is the
protection of image recorder images in accidents outside the United States. What -- what were your thoughts on that -- on that proposal? MR. JULIUS: I think -- I think all parties
involved need to approach the issue of balancing privacy -(Technical difficulties with sound system) CHAIRMAN CARMODY: taking action. (Pause) CHAIRMAN CARMODY: MR. JULIUS: Sorry. I see our vice chairman is
Mr. Wallace, could you repeat
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348 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your question? CHAIRMAN CARMODY: First, let me thank Mr. --
Vice Chairman Rosenker for dealing with this issue very promptly. We appreciate it. Go ahead. (Pause) CHAIRMAN CARMODY: (Pause) CHAIRMAN CARMODY: MR. WALLACE: We're not all on here. Steve, you're not --
Am I back now?
I did -- I'm not sure if you completed the answer to the question about where it is the only -I'm moving on to the next question. You said that the -- you're not aware of any case where the CVR -- where a CVR has ever been used in an enforcement or administrative action, but I assume you are aware -- I just ask you what the NTSB's position on this is with FD -- would be with image recorders as well as CVRs. I assume you are aware that there are cases where companies have used CVRs for internal disciplinary or some sort of corrective measures? MR. JULIUS: I've heard of a few instances.
I'm not personally aware of the facts involved in those cases. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
349 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WALLACE: Does NTSB consider that further
protections are necessary in that area? MR. JULIUS: I think that's a question I
would refer you to ALPA and the APA for. CHAIRMAN CARMODY: I guess I would jump in
and say we've got the protections we've asked for from the Congress. If there are any additional ones needed,
we've not -- we're not aware of them at this time. MR. WALLACE: And do you see the need for any
further -- this is my last -- any further treaty solutions to -- to these privacy issues, any necessity for -- for further agreements at the ICAO level to ensure there's an appropriate level of protection for image recording? MR. JULIUS: Well, ICAO, I think, still needs And I think -- and
to address Annex 6 video recorders.
you had asked before -- before the technical difficulties about the international aspects, and I think my answer to that would be, first, I would look to what's happened with CVRs and how have CVRs been handled both domestically in the United States and internationally over -- over 40 years, and draw on those and ask everyone involved to approach it in a reasonable manner to see if we can balance the privacy interests and the investigative value and come up with EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
350 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Thank you. CHAIRMAN CARMODY: Association, any questions? MR. DAVID: No, no questions, thank you. Regional Airline Yes, Air Transport a solution. MR. WALLACE: Thank you. I think the
question that didn't get answered was, I had asked about Mr. Smart's proposed three-key encryption, which I couldn't quite in my own mind reconcile that with the ICAO requirement that the country of occurrence basically run the investigation. I was wondering if
you could give me your thoughts on that, and that's my last question. MR. JULIUS: I don't have any -- any formal
thoughts, other than, you know, having thought through some of these issues on my own and -- and I know other people at the Board have. I don't think there's any
easy solution for encryption or any other type of protection on a technical level. an easy answer to that question. MR. WALLACE: All right. Nothing further. I don't think there's
CHAIRMAN CARMODY: Association? MR. LOTTERER:
Just a clarification question.
The NTSB is bound by the general proscription the EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
351 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Board will not disclose publicly any part of a cockpit voice recorder, and so forth, of an accident or incident investigated by the Board. Is the Board statutorily required to investigate every accident? MR. JULIUS: Yes. Every aircraft accident?
MR. LOTTERER: MR. JULIUS:
Every civil aircraft accident in
the United States, and most public aircraft accidents. MR. LOTTERER: Okay. So that this -- this
broad policy will affect those operators in GA that may be required to have this unit in the future? MR. JULIUS: protect them, yes. MR. LOTTERER: Okay. Thank you. Those proscriptions would
CHAIRMAN CARMODY: Mr. David, please. MR. DAVID:
Allied Pilots Association,
Good morning, sir.
You said that
the U.S. limitations on CVR differ from Annex 13. However, the supplement to Annex 13, Chapter 5, says that public access to CVR is significantly different in the U.S. than other countries. Just what power does
ICAO have to enforce Annex 13 in other countries? MR. JULIUS: I don't -- I don't know if I can
speak -- speak for ICAO. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
352 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAIRMAN CARMODY: just jump in here. Why don't I do it? I'll
I spent five years at ICAO as the ICAO does not have any They have authority of moral
U.S. representative.
enforcement authority. suasion.
It's -- it's -- the companies -- the
countries join ICAO by agreement, and they agree to uphold certain standards. Enforcement is not an ICAO prerogative. again, if you can get the community of the world to agree on certain things, that's generally fairly powerful. I was going to jump in earlier, and I'll just take another minute with the mike, after Mr. Wallace's comments. And it occurs to me, the question has come But
up in several contexts, we know what the U.S. requires, we know what the NTSB does, how can we advance this in the international arena. The way to do that is through ICAO, but for us to do that -- "us" being the U.S. -- we would need an FAA regulation first. If there were an FAA rule on
this, believe me, I would make an effort to go up to ICAO and make a pitch to the assembly and to the council that this is something the world should take on. But we need that initial step first. That's my
answer on ICAO. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
353 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 further. this. MR. DAVID: Thank you. Let me go one step
You probably know where I'm heading with
In fact, we've all heard the Cali tape that was
played in an investigation that people did participate in. In fact, the Board supplied the tape to the
Colombian authorities. How can we ensure that the probability that the CVR and the CIR now and in the future won't be disclosed or improperly used under Annex 13? MR. JULIUS: The Board certainly supports
following the rules of ICAO and the provisions of ICAO, as well as the NTSB's rules and statutes in its own investigations. And the NTSB was obviously opposed to
the release of the CVR on "Dateline" from the Cali accident. The only answer I can give is, in -- in the 40 years we've had CVRs, it appears to be more the anomaly than -- than the norm. MR. DAVID: I agree. One anomaly is enough.
We're obviously very sensitive to the release of CVR and CIR, and we applaud what the Board does and its procedures, and we know that they're effective. However, you know, when -- you touched on when the CVR is released domestically, as in the case of the Little Rock accident, it was released to EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 unspecified experts, consultants, and attorneys. Do
you still feel that when it's released in that manner that the CVR is still closely hold and -- held, and more importantly, private? MR. JULIUS: The only answer I can give you
is, I'm aware that they're used in litigation if they follow the -- if they follow the procedures that I discussed in Section 1154. And the only other answer I So I
can give to that is, I've never heard a CVR.
assume that the procedures in 1154 are working. MR. DAVID: Thank you, sir. Captain Fenwick, any
CHAIRMAN CARMODY:
questions from ALPA for the witness? CAPTAIN FENWICK: Yes.
Mr. Julius, which U.S. agency is responsible for representing the positions and the -- the interests of the United States at ICAO? MR. JULIUS: Excuse me. I believe the -- the
NTSB, through an intergovernmental organization. CAPTAIN FENWICK: Thank you.
And just a clarification on the strength and effectiveness of existing United States CVR protections and regulations. Referring again to the Cali accident,
the release and the playing of the Cali tape in the U.S. media, were any United States laws or rules EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
355 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then. broken? MR. JULIUS: Not that I'm aware of. It was
-- it doesn't fall within the ambit of NTSB statutes. CAPTAIN FENWICK: Were any international
standards or protocols violated? MR. JULIUS: The short answer is, I don't
know, and -- and the slightly longer answer is, I don't think so. CHAIRMAN CARMODY: Captain Fenwick, he's not
an expert on international law, so. CAPTAIN FENWICK: CHAIRMAN CARMODY: Thank you. National Air
Transportation Association, Ms. Rosser. MS. ROSSER: Thank you. No questions. We will move,
CHAIRMAN CARMODY:
All right.
Any questions or comments from the Board of
Inquiry? Dr. Ellingstad. DR. ELLINGSTAD: Just one very quick
question, Chris, in relation to the -- the question that Mr. Wallace had raised about parametric data. Relative to -- to our statute and -- and our procedures, would the production of a data table derived from observations of instruments fall under the category of a written description or a transcript that EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
356 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -- that would be able to be released? MR. JULIUS: Yes. Thank you. I believe that's all for
DR. ELLINGSTAD:
CHAIRMAN CARMODY: Mr. Julius, then.
Thank you very much for your
testimony and your responses. And, Mr. Cash? MR. CASH: We'd like to call James Johnson
from the Air Line Pilots Association. Whereupon, JAMES JOHNSON having been first duly sworn, was called as a witness herein and was examined and testified as follows: Testimony of James Johnson MR. CASH: Mr. Johnson, if you would, state
for the record your name and place of employment and any relevant educational description? Push the button. MR. JOHNSON: My name is James Johnson, I'm employed as I've
commonly referred to as Jim Johnson.
an attorney with the Air Line Pilots Association. been there 24 years, at the moment.
Prior to that, I was in the United States Air Force in the Judge Advocate General's Department, and I served a tour in the Litigation Division, where I EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
357 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 represented the Government or the Air Force in crash litigation cases. MR. CASH: Thank you.
And I -- Mr. Julius is the questioner. MR. JULIUS: Good morning, Mr. Johnson.
Thank you for being here. MR. WALLACE: Madam Chairman, may I ask just Are
a clarification, Madam Chairman, on the procedure? we doing all these witnesses individually? understood we were doing them together. CHAIRMAN CARMODY: MR. CASH: Would you respond?
I had -- I
Mr. Johnson's going to be up there
first, and then we're going to add two more attorneys, the next two people. that. MR. WALLACE: So, will Mr. Whitlow be Then there'll be a panel after
testifying as part of a panel or -CHAIRMAN CARMODY: MR. CASH: No.
He'll be separate. All right. Thank you.
MR. WALLACE:
CHAIRMAN CARMODY:
But let's be clear that
the questions for Mr. Johnson will be completed before the next two witnesses come up, is that correct? MR. CASH: Yes. All right. Thank you.
CHAIRMAN CARMODY:
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
358 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Please go ahead. MR. JULIUS: MR. JOHNSON: MR. JULIUS: Good morning, Mr. Johnson. Good morning. Could you describe for us what
your involvement personally, and ALPA's in general, was in the 1982, 1990, and 2000 legislation that I discussed in my statement? MR. JOHNSON: Well, ALPA was heavily involved
with our legislative folks, and I was involved in the drafting of the various statutes and various forms of them for the congressional committees to consider. I came in 1980, and one of my first tasks was to be involved in the 1982 legislation process. And I So
drafted some of the language in that statute. MR. JULIUS: And were you involved in the '90
and the 2000 legislation as well? MR. JOHNSON: I was indeed. The 2000
legislation, not in a drafting role, but in more of -where we acquiesced. MR. JULIUS: And sitting here today, would
you -- would you agree or disagree that the -- that the goals or the intention, at least as stated in the -the language of the statute and the statutory amendments as enacted, have they been -- has -- have those goals been successful? EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
359 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. JOHNSON: Well, the statutes -- they've
been successful to some extent, but from our perspective, they are a waypoint to our destination, and the destination, of course, is the complete protection of the cockpit voice recorder, and we are not there yet. goal. MR. JULIUS: When you speak of complete So those were all steps towards that
protection, is that -- is there a refined definition of what that means? MR. JOHNSON: When I speak of complete
protection, at least from ALPA's perspective, it means that the cockpit voice recorder would be used solely for air safety investigations. litigants. It would not go to
It would not be used in disciplinary
proceedings against pilots or criminal proceedings or anything other than for the Safety Board's analysis and accident prevention. MR. JULIUS: And is ALPA currently planning
on proposing any legislative changes to the current CVR provisions in the statute? MR. JOHNSON: We do -- not at this moment
have a legislative initiative to change the statute. It is, of course, in our mind that we want to march towards our goal, and of course, in any legislation, as EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
360 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 those who have been around Washington know, it is a political climate and timing, and hopefully, someday we will be able to achieve some greater legislative protections. But that is our ultimate goal. Thank you.
MR. JULIUS:
During the 1990 legislative effort, was that a proposed -- a proposal by ALPA to Congress that -that it be proscribed from use outside of accident investigations? MR. JOHNSON: It was indeed. Our initial
approach at that time, and we drafted language, was to totally resolve the problem. In other words, it will It will
not be used for evidence in litigation cases. not be discoverable.
It would be held at the Board and
used only for accident investigation purposes. That was too big of a bite, and we ended up going to a waypoint again in our legislation by setting up a couple things. One, the protective order to
preclude the -- the public news media disclosure of the CVR, and in the domestic United States accidents, I believe that's been successful. We also then went to -- if we can't have the total protection, what do we do to limit the discovery. And our intent there was to make the hurdle so high that judges would not get over those hurdles and would EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
361 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not allow discovery. We were wrong and were perhaps
too optimistic, because I tried to design that statute to protect the CVR much like we used to protect classified information, by making, you know, no other source available for, you know, the hurdles in 1154 and in camera review before it's released. And that was our intent, that that might help us keep it from being discovered. MR. JULIUS: I was wrong.
How often does the CVR get
discovered in litigation, if you know? MR. JOHNSON: In my experience, in all the
major accidents the CVR has been discovered, and if it's not completely discovered, it is virtually completely discovered with some deletions. And I think
that has been true of every major accident case. I've been involved in trying to prevent that, again,unsuccessfully with some of my colleagues that will appear here after me. MR. JULIUS: Do you or does ALPA or do ALPA
counsel routinely get involved in CVR-related issues in accident litigation? MR. JOHNSON: We do. Every time there is a
motion to discover the CVR, and we're usually aware of it in the major cases, we seek to intervene for the limited purpose of opposing the discovery of the CVR, EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
362 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the tape. And of course, following that, we also, if
it is discovered, want to ensure that an adequate protective order is issued. MR. JULIUS: I have a question here that I
noted in 1990, when -- when Captain Duffy testified before Congress in the process of proposing the legislation that was ultimately enacted in 1990, he said, quote: "The crew privacy concerns were recognized to be, quote, outweighed by the need for information from the flight crew in order to determine the cause of the accident so future occurrences are prevented." I guess I would ask, has ALPA changed that position, and I would also ask you that same question with regard to cockpit image recorders. MR. JOHNSON: policy since 1964-65. ALPA has not changed its basic We don't object to the CVR being What we object
used for safety investigation purposes.
to is the other uses of the CVR, which at least in the past have been news media, have been litigants, have been used in disciplinary proceedings against the crews by employers. We have an additional concern nowadays in that there is criminalization going on throughout the EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
363 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 world, particularly in civil law countries. I mean, at
the moment there's -- Japanese pilots are being prosecuted. We've had pilots in Taiwan and various
other pilots prosecuted throughout the world criminally for operational errors or accidents. So we have that concern, also, that the cockpit voice recorder could be used for that purpose, or a cockpit image recorder. So while we have not
changed our policy for the safety, we are very concerned with our experience with the cockpit voice recorder of going to a cockpit image recorder without these protections. MR. JULIUS: Does ALPA approach -- both in
terms of CVRs and cockpit image recorders, do you approach those issues proactively or on a case-by-case basis? MR. JOHNSON: litigation? MR. JULIUS: No, I'm thinking more in terms Are you talking about the
of legislative changes, organizational changes. MR. JOHNSON: Well, legislatively, we've
approached it only on the cockpit voice recorder, because usually, when we go to Congress and ask for a fix, we've got to have something that is broken. They're not too inclined to give us a fix in the EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
364 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 future. Now, we did get some fixes, at least with the FOQA program, in my opinion, which government and ALPA and others went forward on. The program was ready to
go, but we wanted these protections so it wouldn't be released under FOIA and released against various airlines and so forth. So we are proactive in those
things, but so far we've only been proactive in the cockpit voice recorder. MR. JULIUS: earlier about ICAO. There were some questions
Is ICAO the vehicle for
international, for lack of a better word, problems regarding access to CVRs and cockpit image recorders? MR. JOHNSON: ICAO is one avenue. ICAO is --
and with all due respect, Madam Chairman -- a very slow-moving organization. And so we attempted to get a
change to Annex 13 to -- it was a baby step, a baby step to split out the cockpit voice recorder and other recorders of that type information into a separate paragraph in Annex 13, which then the next step would be to get them additional protections. I think we worked with the Board, or tried to work with the Board to get their systems in that, but we weren't very successful in that and we weren't successful in the end in getting that change to Annex EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
365 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13. So we do work in that arena. MR. JULIUS: MR. JOHNSON: What about the European Union? For individual states. ALPA is
not alone in its concern about cockpit voice recorders and cockpit image recorders. Pilots the world over are
also concerned and have the same position, for the most part. We do work through the International Federation of Airline Pilots, and through that we are trying to get individual countries legislation to protect the cockpit voice recorder. The most
significant success we've had is New Zealand, who adopted legislation, but it was only after they used the cockpit voice recorder in a criminal proceeding against a pilot that we were able to accomplish that. So we do try to do that country by country. MR. JULIUS: I guess I want to ask you a Are you aware --
question that was asked about me.
have -- are you aware of a CVR that's been released in the United States since the 1990 provisions? MR. JOHNSON: MR. JULIUS: MR. JOHNSON: United States, I'm not. MR. JULIUS: Do you think that the provisions Well, Cali was one. Outside the United States. Yeah, outside. But within the
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
366 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in -- as far as non-disclosure in terms of the practices of the United States are sufficient as they are for video recorders? MR. JOHNSON: No. The reason is, to me, a
video recorder is much more invasive of one's privacy than the written words, if I see the photographs. so if we don't have the protections we have now And for
the voice recorder-- which are released to courts and others, and hopefully they would not be released to the news media. With the streaming videos you get over the
Internet which we have seen in Iraq and other places, the potential for misuse of that without stringent protections, in my opinion, is great and would be a risk that we would not want to accept without protections. MR. JULIUS: I guess, drawing on that, what
-- what was ALPA's proposal or how did ALPA approach the 2000 amendments? We've seen that the amendments in
2000 basically took the CVR provisions and applied those to recorders. Did you seek and were unsuccessful
for more stringent -- more stringent provisions for cockpit imaging recorders? MR. JOHNSON: We did not seek more stringent You were bringing
provisions at that particular time.
in surface transportation areas into that statute and EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
367 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you. protection, and we felt -- and at least I certainly strongly advised -- that that's one step there, that we should take that now and build on it so we would have something that we could build on to get the total protection. Otherwise, we would start from ground
zero, and at least this gave us a start. MR. JULIUS: Thank you. I just -- I just
have a few more questions, I think. I wanted to have you describe a little bit, if you would, how -- I'm going to start with the premise that there's some value and that ALPA agrees that there's some value in a cockpit -- cockpit imaging recorder. And my question is, how does ALPA balance the concerns over disclosure and privacy concerns with the potential benefit of a cockpit image recorder? Is
there -- can you shed some light on that a little bit? MR. JOHNSON: question, Chris. Let's see if I can answer that
When we balance the cockpit image
recorder, if it's your privacy involved, you put much greater weight on your privacy. I would not want, as a
lawyer, a recorder in my office for all day that I work there. So I understand -CHAIRMAN CARMODY: I'm sorry. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 Mr. Johnson, I can't hear
368 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 closer. you. MR. JOHNSON: I'm sorry. Let me get this MR. JOHNSON: Oh, I'm sorry. Could you speak -- thank
CHAIRMAN CARMODY:
I'm balancing here. As a lawyer, I would not want my office being
recorded with what I did all day long, all right. don't think any of us would. there.
I
So I put the privacy on
It is a heavy balance. Now, when I go to balance it on the other
side to counterweigh it and I put the cockpit image recorder on there, does that balance out. In our view,
it doesn't, because we think there are other things there, as Captain Cox testified to, that are -- will give us better information and help us find the causes of accidents. And I think he talked about enhanced flightdata recorders and the proactive programs which have been very effective: the ASAPs, the FOQA And when you The
programs, and the data recording program.
put those in there, it just doesn't balance. privacy to us overrules. MR. JULIUS: Okay. Thank you.
I guess a follow-up question to that would be, has ALPA formally polled its membership -- or, in EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
369 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 other words, how does ALPA know what line pilots' view is regarding those balancing issues? MR. JOHNSON: on this issue. We have not polled our members
We do get the information -- we have
local councils and local levels filter up to the policy levels of ALPA, and it's a resounding no, we do not want those because of our experience with cockpit voice recorders. And I can tell you that whenever the topic comes up or whenever there's a case and a discovery, or I'm around and they associate me with that, I get an earful, and it is more than just "no." just are opposed to it. MR. JULIUS: Has ALPA met with the FAA or It is -- they
airlines in general to discuss proscriptions on use by airlines or the FAA of cockpit image recorders? MR. JOHNSON: I have not been involved in it,
and to my knowledge, I don't -- I mean, there's always some discussions on these things, but I'm -- I'm not aware of any real discussions on protecting it with airlines. We do some protection for the cockpit voice recorder in our collective bargaining agreements that limit the use, but we have not had discussions on a broad basis. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
370 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anomaly. MR. JULIUS: Do you think -- do you think,
going back to Cali for a second, do you think Cali is -- do you think it's an anomaly or do you think that's something that we should focus on when we're dealing with how to protect cockpit image recorders and CVRs? MR. JOHNSON: I would like to say it's an
To me, I think it's a warning that we don't
have protections outside the United States and we need to look at that. And -- or we will be having -- as we
travel more and more, fly more and more intercontinentally or internationally, we have a greater risk there that needs to be addressed. MR. JULIUS: In your experience, in ALPA's
experience, is industry around the world and people that are affiliated with aviation, are they generally conscientious of those issues and tying that in with -have there been very many instances of CVRs being disclosed? MR. JOHNSON: Whether they're conscientious
of it, I know the pilots are in most countries that have international airlines. Whether the governments And it's --
there or the airlines are, I don't know.
it is an issue, but I just don't know the answer if they have - how they have addressed it in their EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
371 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 airlines. MR. JULIUS: And I just have one more
question, and -- and that is, if -- I guess I need you to confirm this premise, is the first part of the question. But if -- if ALPA crews are generally
protected through employment agreements, surviving crews and what not, as long as CVRs aren't disclosed to the public, why does ALPA care about if they're used in litigation, given that it seems to be the norm? MR. JOHNSON: Well, ALPA crews are
indemnified under the master-servant rule, and so indemnification is not the issue. But they sort of
feel betrayed, I guess, because, in 1964, when this first came into effect, it was their belief -- and probably in 1964 it was a reasonable belief -- that cockpit voice recorders are going to be used only for safety purposes. And that -- they now found that it wasn't, and with the use of the demonstrative evidence that was -- came into effect largely after the '82 legislation that used the cockpit voice recorder, they saw that and the litigation and felt betrayed, so to speak, by the fact that it was now being used for liability and other issues when, from the pilot's perspective, this was for safety only. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
372 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have. I was going to propose that we allow Mr. Johnson to answer questions from the parties before we bring up the other two folks on the panel. CHAIRMAN CARMODY: I think that's reasonable. MR. JULIUS: Thank you, Mr. Johnson.
Madam Chairman, that's all the questions I
I'm going to reverse the order today just because I think sometimes being last is difficult. let's start with Ms. Rosser from NATA. Any questions for the witness, Ms. Rosser? MS. ROSSER: No, actually, I don't have any So
questions for him at this time. CHAIRMAN CARMODY: All right. Air Line
Pilots Association, Captain Fenwick? CAPTAIN FENWICK: Thank you, ma'am.
Mr. Johnson, just an initial clarification. You just referenced, and I think you may have misspoken, that Captain Cox yesterday was advocating enhanced video recorders. MR. JOHNSON: I said that. Would that possibly be --
That was clearly a misspeak, if
Enhance the flight data recorders. Thank you.
CAPTAIN FENWICK:
Also, it was noted yesterday, and you just referenced the fact, that pilots have generally been EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
373 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 step. satisfied with the data protections that we've been able to obtain through the FOQA programs. But could
you differentiate for us the difference between the data protection associated with FOQA and the sorts of protections and rules that are contemplated for image recorders? MR. JOHNSON: Well, the FOQA program, as most
folks know here, is really recording what the airplane is doing, the mechanical things. And once that's
recorded, it is then downloaded from the airplane and deidentified both as to the flight and the crew members and so forth, and put into a large database that is then used for trend information and trend analysis. So you could never pick out of that data that an individual crew had done something one way or another. So it's a totally different program, and
different need for protection than such as a cockpit image recorder or cockpit voice recorder. CAPTAIN FENWICK: Thank you, Mr. Johnson.
In terms of the international rulemaking again, specifically the ICAO venue, you mentioned that in AIG-99 it did propose some enhancements to the data protection. And again, was that a radical change? It was -- I called it a baby
MR. JOHNSON:
It was a very small step, and that was just to EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
374 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 kind of divide out these recorders into a separate provision that would give them some protection. But
then we could go, hopefully, to the next step and get greater protections. And unfortunately, I don't think we got support even from our own government on that issue, so we did not succeed. CAPTAIN FENWICK: In your opinion, why,
perhaps, did the U.S. not support that initiative? MR. JOHNSON: I really don't know why they I would have hoped
didn't support that initiative. they would have.
But I know that we have a -- we've taken an exception because, I think, of our law to the current ICAO rule as I understand it. policy reasons were for that. CAPTAIN FENWICK: Could you give us a sense So I'm not sure what the
of where the image recorder information would be sought more aggressively by your colleagues, the plaintiffs' attorneys, than CVR information is today? MR. JOHNSON: Certainly, no disrespect to
Mike Demetrio here, but they would be after that as a feeding frenzy, because a picture is worth 1000 words. In damages, if I can have some photos of dying moments, pain and suffering, I'm going to go after it EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
375 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 if I'm a plaintiff's attorney. CAPTAIN FENWICK: Thank you.
And we've heard the Board say in other venues that the legal and the privacy issues surrounding image recorders, and that would extend to disclosure and use by plaintiffs' attorneys, is not really their problem. Just, in your opinion, whose problem is it, and in what venues could we expect these concerns to be resolved? MR. JOHNSON: Well, I think that -- that the I think it is our problem
Board has a role in this.
because we want to get safety information and we want to prevent future accidents. And to get that safety
information, you sometimes have to provide certain protections, balancing the public policy or the need for that, for safety information. And in my days in
the Air Force, I spent much time protecting safety information a little more successfully. We were able to, in our safety investigation, to promise confidentiality and maintain things in confidence, such as manufacturers' tear down reports and witness statements. And we got a lot more,
in my opinion, spontaneous information, less guarded information, that was very useful to safety. So, to me, it is a joint effort: EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 the pilots,
376 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the NTSB, the FAA, and the industry, to get these protections to get the information. CAPTAIN FENWICK: CHAIRMAN CARMODY: Thank you. Regional Airline
Association, any questions for the witness? MR. LOTTERER: No questions, thank you. Thank you.
CHAIRMAN CARMODY:
Mr. Barimo, Air Transport? MR. BARIMO: No, no questions, thank you. FAA, Mr. Wallace?
CHAIRMAN CARMODY: MR. WALLACE:
Mr. Johnson, could you just
sort of -- it's clear from your response to Mr. Julius' question you felt that the current protections in place for CVRs were inadequate in anticipation of a possible mandatory installation of image recorders. Could you
describe what you might consider to be adequate protections for image recorders, both sort of domestically and internationally? MR. JOHNSON: lot of ways to do this. idea. I suppose there's a lot of -- a I'm going to throw out an
One idea that at least was in the back of my
mind in 1990 was to keep -- have the cockpit voice recorder, which is what we were addressing then, and this could apply to the image recorder, be encrypted, and the NTSB would have the key, the magic key. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
377 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So that if it happened outside the United States, they would have to transcribe it. They would
transcribe it and make it available under Annex 13, the transcription, or the people could come in and listen to it from the other country that was investigating it. And it would be retained by the NTSB. They would not
turn it over to the airlines, they would not turn it over to the country. It would be in their custody and
they would be prohibited from releasing it by statute. That might work. And I haven't coordinated that with my client, so that's just an idea, something along that idea. MR. WALLACE: And so, play out that idea for
me with a U.S. carrier with a U.S.-registered airplane involved in an accident at Charles de Gaulle Airport. MR. JOHNSON: Charles de Gaulle Airport, the
French authorities -- and hopefully the technology would be such that they could not decode this -- would -- let's assume they got the cockpit voice recorder, the cockpit image recorder, however we want to do it, and they could not read it out. So they would have to come -- since it was an N-registered aircraft, the NTSB would have a representative there in any event. They could not read
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
378 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it out. They'd have to go to the NTSB representative. And they
He'd come back and it would be read out.
would have access to come over here and see it, or get a transcript of it. And then they could use it in
their accident investigation. I think that would comply with Annex 13. I'm
sure I could find some people that may say it wouldn't. And it would also then make sure that it’s not going to see the light of day because it's in the NTSB. The NTSB, as Chris said, and correctly, has What happens, though, is they give
never released it.
it back to the airline, and then we have our discovery problem. MR. WALLACE: I don't -- I assume that the
BEA and the AAIB have similar excellent track records on protecting this. So, would you envision, then, that That if there were a
this would work in the reverse?
French aircraft involved in an accident here, the NTSB would be, then -- under this scheme you've outlined, would be -- wait for the receipt of a transcript from the French folks? MR. JOHNSON: I guess, if you played that
out, that could be possible. MR. WALLACE: Chairman Carmody said earlier
that the procedure to develop ICAO level protections EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
379 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would require that the FAA develop a regulation presumably mandating these recorders first. I see that as presenting somewhat of a chicken-and-egg dilemma. The -- the -- in that -- in
that you -- would you agree that you would want protections in place before we had a rule mandating recorders? MR. JOHNSON: I would say we would want
protections in place before, and I defer to Madam Chairman there, although I respectfully disagree with you that probably we could go to ICAO and you could get some protections there, albeit it's going to be a slow process, before you actually get an FAA regulation. CHAIRMAN CARMODY: just for one more minute? May I invade this space Frankly, if
You could try.
you don't have the support of the United States delegation, you would probably not get very far with it. MR. JOHNSON: I would agree with you on that. That was my issue. I
CHAIRMAN CARMODY:
mean, it would be very hard for any individuals to go up to ICAO and try and persuade other states to sign onto some kind of protections. If the United States
ambassador up there says this is important, we have an FAA regulation, you're in much better shape. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 That was
380 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 my point. You could certainly try without that, but it would be easier to -MR. JOHNSON: You could try. I guess what I
was thinking was that the -- if the United States supported this, the ambassador could go and get that, saying we're thinking of doing this, we want these protections. That was the only point I had. If there's an indication
CHAIRMAN CARMODY:
the FAA's going to act on it and he -- he's acting in accordance with FAA statutes, yeah. Sorry. MR. WALLACE: I have no further questions,
although, Madam Chairman, if you might clarify a question which came up earlier from the ALPA gentleman regarding who represents the United States at ICAO. mean, it's sort of officially a State Department position, is that correct? CHAIRMAN CARMODY: Yes, it is. The I
ambassador is -- reports to the Department of State, but really gets most of the technical guidance from the FAA. So it's an interesting sort of split
responsibility. I know on issues of budget and things like that, I would go to the State Department. On issues
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
381 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 apologize. like this, it would be the FAA. MR. WALLACE: No further questions. And Mr. David, I do
CHAIRMAN CARMODY:
The trouble with reversing order is I lose Do you have any
track, and I went by Allied Pilots. questions? MR. DAVID: wouldn't forget me.
Yes, ma'am, I do.
I knew you
Mr. Johnson, you mentioned protective orders and litigation. Do you feel that the protective orders
for CVR are adequate, when the judges allow release to unauthorized parties versus specific and known individuals in their order? MR. JOHNSON: I guess, in my experience, I've
never known a judge to release it to unspecified parties. The protective orders I've been involved in
have all been released to the lawyers who have a responsibility to release it to their experts, and there's all kinds of controls on that. They have to
log in when they get it and when they don't, and they're responsible. So I have not seen one released to unspecified parties. Now, maybe my colleagues who are
going to be here shortly can tell you differently, but I've never seen that happen. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
382 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 David. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 sorry. MR. DAVID: This was in an APA case and it You
was Judge Howie's release in the Little Rock case. probably didn't see that, since you weren't -MR. JOHNSON: I did not see that one, I'm
Maybe they were involved in it.
I don't know
the facts of it. MR. DAVID: Thank you, sir.
You mentioned CVR use in litigation in New Zealand and how the law was specifically changed in that country. That law was changed in New Zealand to Could it happen again in
protect the CVR there.
another country, where a CVR could be used in litigation today? MR. JOHNSON: MR. DAVID: Yes. It can and has been.
Thank you, sir.
As you know, we like to speak of safety proactively versus reactively. occurrences. We like to prevent
We don't want to see it happen.
With a reference to Cali again, is there a possibility that a similar disclosure could occur to the media again from another country today? MR. JOHNSON: MR. DAVID: Clearly, yes.
Thank you, sir. All right. Thank you, Mr.
CHAIRMAN CARMODY:
383 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wasn't it? MR. JOHNSON: It was almost automatic. Okay. So we have legislation Now we'll move to the Board of Inquiry, and I'll start with our chief counsel, Mr. Battocchi. Do you have any questions of the witness? MR. BATTOCCHI: Thank you.
Mr. Johnson, I want to go back to 1990 and before the legislative change. What was the practice
with the airlines in providing access to the CVR to litigants? MR. JOHNSON: The practice was that they were It was discoverable.
just providing that access. MR. BATTOCCHI:
And it was pretty automatic,
MR. BATTOCCHI:
in 1990 that imposes certain hurdles, as well as specific provisions for protective orders for CVRs that didn't exist before 1990, is that correct? MR. JOHNSON: Correct. Okay. And that's -- you
MR. BATTOCCHI:
would certainly view that as an improvement? MR. JOHNSON: I would. Okay. And in terms of the
MR. BATTOCCHI:
legislation in 1990, my recollection is the biggest impetus for that was the broadcast of a cockpit voice recorder by I don't know if it was a radio station in EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
384 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 questions. In your response to Mr. Wallace, you indicated that -- something to the effect that the problem of discovery basically is occasioned when the Safety Board returns recorders to the carrier. Is okay. MR. JOHNSON: -- 6:00 news. And -- and, the legislation was -MR. BATTOCCHI: It was on the nightly news, Texas, or -MR. JOHNSON: It was on the nightly news. It
MR. BATTOCCHI:
has been successful to date in preventing that from happening, is that not correct? MR. JOHNSON: In domestic cases, yes. Okay. Thank you very much.
MR. BATTOCCHI: That's all I have.
CHAIRMAN CARMODY: DR. ELLINGSTAD:
Dr. Ellingstad? Just a couple of
Thank you.
there some alternate disposition of recorders that ALPA advocates? MR. JOHNSON: Well, we would advocate that Once you get it, you keep
you retain possession of it.
it, and if you had a property issue, you could give a blank tape back, or a new one. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
385 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or seven. But that if you retained it, then -- we had some glimmers of hope in '82, frankly, that maybe that would work out with the way that statute was worded. Again, I was wrong. DR. ELLINGSTAD: Has ALPA ever represented
that position in any of these -- these legislative opportunities? MR. JOHNSON: I have discussed it with
committee folks up there on the Hill, but I -- I don't know that ALPA, other than little discussions I may have had with ideas or brainstorming, has done that. just don't know. I
My guess is it has been done with our
safety folks, but I really can't answer that question. DR. ELLINGSTAD: Were there any formal
comments that ALPA made in relation to the 2000 revision of the NTSB statute? MR. JOHNSON: Not that I know of. Not that I
know of or that I can recall. DR. ELLINGSTAD: Okay. In your response to
Mr. Julius, you'd indicated that the CVRs are discovered in all major accidents. Just to put a
number on that, within the last five years, how many occasions has that been? MR. JOHNSON: I don't know. I would say six
I would have to stop and count -EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
386 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is. DR. ELLINGSTAD: Okay. And are -- are you DR. ELLINGSTAD: MR. JOHNSON: or less there. In five years or so?
I would say -- it might be more
I'm just trying to run through my mind
those accidents. DR. ELLINGSTAD: Okay. Finally, is there
some legal basis for ALPA's expectation of privacy with respect to CVRs and CIRs compared, for example, to people who work in a bank or a convenience store? MR. JOHNSON: Well, I think that there is a I mean, there's some
difference in that expectation.
cases out there that give the right of privacy in the work place. In the banks and in the 7-11 stores I'm
thinking of where they may have video cameras to detect dishonesty and various things like that for the criminal thing, I think that's totally different than a constant recording of your work place, where, you know, there's no criminal -DR. ELLINGSTAD: Isn't it true that that is
in fact the work place of the bank employees and the convenience store employees? MR. JOHNSON: It is -- yes, sir, it is. It
aware of any kind of protections that are provided to people in those kinds of circumstances? EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
387 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. JOHNSON: I am not, no. Thank you. Mr. MacIntosh. Still not on?
DR. ELLINGSTAD:
CHAIRMAN CARMODY: MR. MacINTOSH: One, two, three. MR. JOHNSON:
(Off mike).
I hear you. Oh, okay.
MR. MacINTOSH:
Regarding the participation in the ICAO activities, we've talked about it a little bit. think Mr. Wallace mentioned it. mentioned it. Madam Chairman I
We have this international group on --
excuse me, intergovernmental group on international aviation. And how does ALPA and the -- and the
professional associations interact with that group? MR. JOHNSON: My understanding of how we
interact is, we send letters to whoever the U.S. government representative is, present our views, and -and try to persuade you to our viewpoints. And in
fact, I think in Annex 13 we actually worked with you and Mr. Battocchi, as I recall. So we do our input, at least from the United States' viewpoint, in that way. MR. MacINTOSH: Okay. It's the only way -There is -- there is
indeed, though, a voice for the -- for the industry even though this is an intergovernmental activity. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
388 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. JOHNSON: Well, there's an opportunity
for us to provide input, yes. MR. MacINTOSH: Okay. Thank you.
And I think -- I think it's chaired by DOT, actually, and -- and the secretariat belongs to FAA. We certainly are members in that group. The other point I wanted to perhaps emphasize, I think all of us sympathize with the -with the Cali event. warning. You characterized it as a
I think it could actually be characterized as
a betrayal of the ICAO convention and the convention that was agreed upon, the provisions therein. If I look at the air claims hull loss instances per year, I see about 25. If we take a 10-
year period, we're talking 250 airplanes that have been destroyed, according to insurance records, in the last 10 years. How many other events other than Cali have we had over this -- this period? MR. JOHNSON: Do you know of any?
Of a U.S. airplane. I'm talking about worldwide.
MR. MacINTOSH: MR. JOHNSON:
Worldwide. Two hundred fifty hull losses
MR. MacINTOSH: in the last 10 years. MR. JOHNSON:
Of where the cockpit voice
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
389 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recorder has been released publicly? MR. MacINTOSH: MR. JOHNSON: Yes, sir.
There have been other
instances, Mr. MacIntosh, and they're in foreign countries where there's no protection for these things. And I can't tell you the number. I'm not sure if
SilkAir was one of them or not, but there were some others out there. MR. MacINTOSH: Okay. I would -- I would be
somewhat careful about saying there's no protection. When a nation state signs a convention, which is a treaty, there's something there. there is no ICAO police. But we all agree
That's very unfortunate, and
we don't want it to happen again, we certainly don't, and the emphasis is on it. But I just -- I recognize the betrayal that occurred in that instance, but to -- to have the whole future depend on that instance is fatal. Thank you for your answer, though. CHAIRMAN CARMODY: Before I go to Mr. Cash,
Mr. Battocchi had an observation he wanted to share, and then we'll move to Mr. Cash. MR. BATTOCCHI: Yeah. I just wanted to ask
Mr. Johnson, in terms of a cockpit environment, secure cockpit, you do see that differently, don't you, than EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
390 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 public thoroughfares such as a 7-11? MR. JOHNSON: than a 7-11, yes. MR. BATTOCCHI: MR. JOHNSON: Okay. Well, it obviously is different
Particularly nowadays. Mr. Cash. In
CHAIRMAN CARMODY: MR. CASH:
I just had one question.
response to Mr. Julius' question, you said that you would propose more stringent protection on video recorders. Could you just kind of elaborate what --
what you envision as -- as being required to get the ball rolling? MR. JOHNSON: Well, what I would say to get
the ball going is, the only idea I've come up with, Mr. Cash, is the one that I proposed throughout here, which was an off-the-top-of-the-head idea. The current -- I
think that was in relation to the current cockpit voice recorder legislation. To me, the image recorder has
much greater appeal for people to get at for uses other than safety, and if we're going to have that, we need to fix the CVR and the CIR at the same time. But with some type of legislation like I mentioned, with the keys to the encryption and you keep the tapes. MR. CASH: Is there a difference between the
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
391 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this? domestic and international? If -- if the CIR was just
a domestic tool, would that be any different? MR. JOHNSON: It may, but we would still want
those same -- we'd want -- first of all, we're not happy with the current state of the CVRs. upgrade that. We want to
So we would want the increased And I'm not
protection even if it was domestic only.
sure we could ever restrict it, because these airplanes cross borders pretty frequently now, even the ones that used to fly domestic, the 737s. CHAIRMAN CARMODY: Yes, Mr. Johnson, I have It may be
one -- one question, or observation, really. a question, depending.
Just today I got a copy of a report put out by the French National Assembly, so it's just been released in July. And it's a series of recommendations
which came as a result of the Flash 737 accident. One of the recommendations is to install a video recorder in the cockpit of large transport category aircraft to film the instrument panel, and they express -- they say it should be used for accident investigation only. My question was, first, were you aware of And if you're not, I'll understand, because this
report is very new. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
392 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. CHAIRMAN CARMODY: Thank you. Thank you very And secondly, do you know, if you were aware of it, if ALPA had any role or any function with this committee at all? MR. JOHNSON: I'm not aware of it, ma'am, so
I do not know the -- the answer to the second question. My guess is that if there were pilot involvement, it would be the French pilots. CHAIRMAN CARMODY: want to take a look at this. Okay. Well, you might
As I say, it was dated
July the 4th, so it's very recent. MR. JOHNSON: Thank you, ma'am. I will do
much for your testimony and for answering our questions. Now, I think the notion is that you should remain where you are and we're going to call some other witnesses. MR. CASH: and Mark Dombroff. Whereupon, MICHAEL DEMETRIO having been first duly sworn, was called as a witness herein and was examined and testified as follows: Whereupon, EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 We'd like to call Michael Demetrio
393 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to be up. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 morning. Demetrio. MARK DOMBROFF having been first duly sworn, was called as a witness herein and was examined and testified as follows: Testimony of Michael Demetrio and Mark Dombroff MR. CASH: you, I guess. Mr. Demetrio, we'll start with
Would you please give your name for the
record and title and affiliation and any academic and work experience? MR. DEMETRIO: Certainly. My name is Mike
I'm a partner at the law firm of Corboy & I'm a practicing attorney
Demetrio, based in Chicago.
for 25 years, initially as a prosecutor in Cook County. And since that time, I have focused my practice on representing victims, both different, unfortunate events, a great deal of them air crash disasters. I've also been just end of the term as president of the Chicago Tribal Bar Association, where I represented over 22,000 lawyers and judges in the civil justice system and criminal justice system. MR. CASH: Thank you.
Mr. Dombroff? MR. DOMBROFF: Thank you, Mr. Cash. Good
My name is Mark Dombroff. MR. CASH: Push the button. The button's got
394 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. DOMBROFF: Not working. Good morning. My name is Mark Dombroff. I'm My name is -- is that better?
an attorney with Dombroff and Gilmore here in Washington, D.C. I started my career 34 years ago with
the Office of General Counsel at that time in the Federal Aviation Administration, the Litigation Division. I moved to the Department of Justice and was successively a trial attorney in the Aviation Unit, the assistant director for aviation litigation, and for the last five years there, I was the director of aviation litigation for the Department of Justice, defending all elements of U.S. government aviation activities. In 1985, I went into private practice and have defended various airlines and other aviation industry activities since that date. MR. CASH: Thank you.
No presentations, and Mr. Julius will be the questioner. MR. JULIUS: Mr. Dombroff. MR. DOMBROFF: MR. JULIUS: Good morning. Good morning, Mr. Demetrio and
For the audience and for members
of the Board of Inquiry, the witnesses seated on this EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
395 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 panel were all involved in the CVR-related litigation in the U.S. Air 427 crash litigation, and the testimony today will be from that perspective, as well as having involvement in CVR-related litigation generally. As a basic overview, the U.S. Air 427 litigation took place in both state and federal court, with two judges overseeing most of the pretrial issues. In motions for access to the CVR filed by plaintiffs, which Mr. Demetrio was one of the lead counsel, both U.S. Air, represented by Mr. Dombroff, and ALPA, among others, opposed plaintiffs' access to the CVR. All
parties filed legal briefs, and the procedures set forth in Section 1154 were followed. Ultimately, the two judges permitted discovery of the CVR, but the federal judge ordered portions of the CVR redacted, while the state court judge ordered discovery of the entire unredacted CVR. In both instances, the judges permitted the ordered discovery only after protective orders were filed to protect against unwarranted access or disclosure of the CVR recording or non-public material. Portions of the legal documents that these gentlemen were involved with are part of this -- this hearing record, and I believe they're Exhibits 10-C through 10-E. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
396 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I guess this is a question for everybody here, but you all are familiar, obviously, with the provisions that I've discussed in my opening statement. MR. DEMETRIO: MR. JULIUS: Yes.
And you all are familiar with I think those
the documents that I just mentioned.
documents speak for themselves, but since each of you filed briefs in that action and were intimately involved in the court's orders and the drafting and protective orders, I guess I would ask each of you if there's anything in particular you'd like to draw the audience's attention to with regard to those briefs. MR. DEMETRIO: Well, since I filed the first In that particular
brief, I probably should go first.
case, on behalf of the members of the families who lost their loved ones, including crew members, we thought it was critical that we obtain a copy of the tape so that we could analyze it with respect to the case itself and the legal issues that arose. At that time, liability in that case was being hotly contested. time. There were no answers at that
The NTSB had not yet come out with its It was one of the most thorough
conclusions.
examinations of an air disaster that I've ever been involved in, including two major public hearings, EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
397 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 which, as you know, Mr. Julius, is rare for the Board. The reason that we thought it was so critical was, if you examine the documents filed before the board of U.S. Air and Boeing, they were intently reliant on analysis of the voice recorder, and not only the voices themselves but many important -- what turned out to be important sounds and interpretations. In addition to that, it came to light when in the course of that case we talked to Captain Cobey Johnson, who was from U.S. Air and on the CVR committee of this board, it became clear that the transcript itself, there was -- while we all know there was a, quote, "consensus," there was not an agreement. First
Officer Johnson made that clear in his testimony by way of deposition. That made it all the more critical, we felt, representing the families, that we have the opportunity to also analyze that tape in order to evaluate and respond to the positions taken by the defendants. I thought the procedure of the dual hearing and dual analysis by two different judges, one in Pittsburgh, Judge Standish, who was in charge of the MDL, and Judge Judith Cohen from the Circuit Court of Cook County, went extremely efficiently. As you noted, there was a slight difference EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
398 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in the orders issued. I did not -- it was slight as But the thing I will
far as the amount of material.
emphasize, and I think Jim knows this and this organization, they were allowed to participate in both courts, and the provisions of 1154.4(a) were strictly adhered to -- applied and adhered to. And has been
stated here today, I have never known of an instance domestically where that has not been the case on behalf of the attorneys who represent victims. MR. JULIUS: Thank you.
Your motion, obviously, prevailed -MR. DEMETRIO: MR. JULIUS: It did.
-- to a greater or lesser degree
in, you know, the federal or the state court, for the most part, to a greater degree. Mr. Johnson and Mr. Dombroff, as far as pointing out anything you'd like to discuss, would you -- what were the positions that you advocated that were not successful, and if you could shed any light on that? MR. DOMBROFF: I think, Mr. Julius, that for
the most part the positions that we advocated on behalf of the airline -- and I should note as a footnote to this that I am not speaking on behalf of any of my clients, past, present, and future today. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
399 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But the position that we advanced on behalf of the airline were consistent with and almost identical to the positions that we heard today having to do with non-disclosure of the cockpit video recorder. We -- as those who review the exhibits will be able to determine, we advanced the statutory arguments regarding nondisclosure. We advanced the We advanced
fact that the transcript was available.
the fact that the witnesses were available to testify with respect to the investigation. The arguments with which we met were ones having to do with the fact that the tone and the inflection and the manner of speaking of the pilots would be relevant. The arguments we met also included And I
the fact that the transcript was not complete.
would note that in fact, if one reads the legend that is on the front page of all NTSB transcripts, it's something of a disclaimer regarding the nature of that transcript, which, in the context of litigation, does not serve the arguments that we advanced well, or the interests of the airline pilots who joined with us with respect to the arguments we advanced. In each instance, the court overruled the objections, and indeed, I should as a footnote point EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
400 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 orders. out that I'm not aware of a case where, as Jim earlier indicated, a cockpit voice recorder tape has been other than ordered to be turned over in some form or fashion. There may have been certain redactions, but the tape has almost always been ordered to be turned over. There was not duplication with the different The fact that we even had to go through the The
proceedings in two different courts made no sense.
fact that we had two different orders, however slight, made even less sense, since the interests would appear to have been the same. Mike is absolutely correct that each judge instituted comprehensive protective orders, and I don't believe that anybody violated those protective orders. And I should also point out that these protective orders are almost always reached by agreement among the parties with respect to the terms. They are virtually never imposed by the court. The
court simply says they will be subject to a protective order to be agreed to or worked out by the parties, and these protective orders are almost always quite comprehensive in terms of who gets access, the terms, conditions, and so forth. And it's certainly been my experience that the courts are extremely sensitive to enforcing those EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
401 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. two? MR. JOHNSON: I have very little to add to protective orders, and the parties are aware of the sensitivity of the courts to that fact. MR. JULIUS: Thank you.
Jim, did you want to add anything to those
I think Mark set it out. One of the issues that -- what we've always
argued and which has been a disappointment to you, if you need to hear the sounds, such as the sounds of flaps or whatever, there are sounds that are just referred to as a grinding sound or a rubbing sound. You can separate out those sounds without hearing the voices, and we've been pretty well unsuccessful in arguments trying to segregate out the sounds and segregate out the voices, and largely plaintiffs' lawyers very well -- and Mike does a great job of this, I must say -- argues that they need to know the inflection and the amount of stress to the extent that can happen and then you can analyze it. MR. DOMBROFF: I'd like to add something,
too, as somebody who represents airlines in the aviation industry. We have argued vigorously and will
continue to argue to protect these tapes, and we'll continue to recognize that perhaps, given history, it's EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
402 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 an uphill battle and we'll seek to get the most comprehensive protective orders that we can. We do that despite the fact that in most, I won't say every case, but in almost every case that I have been involved in, the disclosure of the tape itself in fact benefits the defense of the airline in the actions, or the pilot. It demonstrates the
professionalism, the skill, the dedication of these pilots, and in fact runs counter to the allegations being hurled at the pilots and at the airline. Not withstanding the fact, because of the privacy concerns and the concerns of ALPA and the airline and the relationships and so forth, we argue against disclosure, and I have to say that, from a personal perspective, I frequently deal with misgivings because frequently those tapes are the strongest ally of the pilots in terms of their performance. When
they're not, these cases tend to get resolved very quickly and these issues never come to the forefront. MR. JULIUS: Thank you, Mark. I'd like to
ask you a follow-up question as counsel for -- for airlines. How do you treat the fact that once the NTSB has returned a CVR recording to the airline? As
counsel for the airline, do you have access to that CVR EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
403 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 before the courts that want to do the machinations of 1154? MR. DOMBROFF: No, the answer is we don't.
It's kind of interesting because we have complete access, obviously, to our client and all the records and documents. We never get access to the tape. When
the accident occurs, the -- the airline never gets custody of the cockpit voice recording until it's returned to them at some point pretty far down the road by the NTSB. And frankly, I'm never one to encourage the NTSB to return it, because the longer that my clients don't have custody of it, the longer we don't have to deal with this issue, because it's an issue, frankly, I'd prefer not to have to deal with, because it cuts both ways, as I said. When in fact it's finally returned, it does not come to us. It goes back to the airline, and we do Now, I can't speak for every defense
not listen to it.
counsel representing every airline, but we do not listen to it, and we do not listen to it until after the issue regarding the availability of it in the litigation is resolved. The reason that we don't as a matter of practice is, we do not want to be accused of having the EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
404 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 advantage of having listened to the cockpit voice recorder in the context of the arguments being presented to the court with respect to whether or not it should be produced. We -- we think we should be on
the same footing as everybody else. Now, you know, maybe that's a pipe dream that we tend to pursue on our own behalf and for our clients, but we think it improves the position that we can take in front of the court that it should not be turned over to anybody, and we don't have the advantage of having listened to it, either. our general practice. Unfortunately, as in several instances where Jim has indicated, it's not worked. And indeed, when And that has been
the court listens to it for the first time in camera, which is inevitable -- the judge listens to it privately in his chambers or her chambers to decide whether it should be produced -- we don't attend that and we don't listen to it at that time, either. MR. JULIUS: for all three of you. work? I guess this would be a question How does that -- how does that
There's a motion on the table either in the
context of U.S. Air 427, or in general from your experience. There's a motion on the table for access The judge is aware of the
by the litigants to the CVR.
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
405 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 proscriptions and the procedures in 1154. And so there comes a point under the statute where he has to listen to this and decide if the plaintiffs or the moving party have made a case that they deserve or need access for a fair trial to the CVR recording. So he has to listen to it. How does that work? Who's present? Who assists the judge? If you could just
Is it on the record?
kind of explain for us how that works. MR. DEMETRIO: Well, in 427 -- well, number
one, as you know, the in camera hearing of the tape is required by 1154. I think most judges undertake it I don't know of many judges
solely because of that.
who look forward to listening to the tapes, nor do I. It's a very hard, hard thing to do in a major aircraft disaster case. In 427, a technical expert that Mark's client provided went to the judge's chambers. took Mark's word that it was an expert. I certainly Didn't ask
anything more than that because of my trust for him. And they bring sophisticated listening equipment to the judge's chambers and sit there and answer any technical questions -- wait a minute. the way. I'm presupposing this, by He can't be there,
Mark says he's not there.
nor can I or anybody else. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 present. To my knowledge, court reporters are not It is just the technical expert and the judge
and the equipment. MR. DOMBROFF: I think that's essentially
accurate, Chris, in 427 and in the other cases I've been involved in most recently, Alaska Airlines. Somebody from the airline who is familiar with the -not only the tape and the ability to play it for the court and play it back and forth, but also could answer technical questions with respect to what the judge heard, would be available. from the Safety Department. And they go in, and it's just the judge and that individual. The judge typically is wearing Normally, it's somebody
earphones so that the judge can hear it more clearly, but in none of those instances has the individual who's been there reported back to me with respect to what transpired, other than the fact that it took place. MR. JULIUS: This is probably a question
predominantly for Mike, as someone more likely to be seeking a CVR than others, but given the -- given the restrictions -- and I may be incorrect in that, actually. Given the restrictions that are in place in 1154 and, for lack of a better word, the procedures EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
407 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that people go through in the gates, people go through before they can get access to it -- first, I believe the judge has to determine whether a transcript is -- a more full transcript than the one released by the NTSB is sufficient. If that's demonstrated that it'd be
insufficient for a fair trial, then access to the recording itself, either in whole or in part. Do you feel that that procedure has worked? Can you -- can you work with those procedures and obtain a fair trial? MR. DEMETRIO: Absolutely. When you're
referring to the protective procedures that are something that are of the utmost importance, I go to the extent that when -- given possession of a tape, then whenever I leave the office, if I'm not using that, or if I'm in the office and not using that tape, it's in a safe. I don't keep it in my personal office.
I keep it in a safe, out of respect for that order. The logging procedures, the affidavits from individuals who need -- experts who need to testify are also studiously keep. system. I think it'll work, with all due respect to Jim, work equally for CIRs. I see no distinction. As I do think that's a workable
long as the protection of privacy is taken into EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
408 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 consideration and we do not see it on the nightly news. But yet, it is a valuable tool for the truth-seeking process in the civil justice system. And respectfully to Mark, one of the reasons that his argument with the "I haven't heard it, Judge" doesn't prevail, I think, is if you look at the 427 experience, both judges relied heavily on looking at what the, quote, "parties" -- in this case, Boeing and the U.S. Air -- had submitted to the NTSB. And if you
look through those documents, which are part of the docket in that case, they are heavily reliant on analysis of sounds and voices on that tape. Because of their heavy reliance on it, in fairness and for a fair trial, given the even playing field doctrine, that's why the victim's representatives should have an equal opportunity to listen to them. And I think that's the genesis of the rulings that come out of most courts. MR. JULIUS: This is for -- Jim, you've had
an opportunity to answer this, but for Mark and Mike, do you propose any changes of the current provisions for cockpit voice recorders or, for that matter, the provisions which are identical for cockpit imaging recorders? MR. DOMBROFF: Let me make an observation.
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
409 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 That is that I think Jim is right about the feeding frenzy with respect to video imaging. I think that the
law, whether one likes it or not, is relatively well established, or at least the path that the law is on is relatively well established in terms of how courts are going to deal with cockpit voice recorders. Unless
there's some significant statutory road block thrown in their way, I think it's unlikely that we're going to see dramatic changes in terms of the outcomes of these controversies. I think that to a greater or lesser degree, litigants will be able to get the cockpit video recorders. There may be restrictions, they may be
redacted, they'll all be subject to protective orders. I think that video image recording, cockpit image recording, clearly incites people to a greater extent. I think the reference that was made by Jim to
demonstrative evidence, I think the Board is probably one of the greatest innovators in this area in terms of matching up computer simulations, computer animations, along with transcripts or just silently. But I still remember the animations that the Board created for the 427 Sunshine hearing where the Board created one for the 427 accident, one for the Colorado Springs accident, and one for the Metro Jet EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
410 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 accident, if I'm not mistaken, or the Metro Jet upset, or the East Winds upset, I guess it was. And they were dramatic. The extent to which
litigants have taken these animations is even further beyond what the Board has ever contemplated, and they've matched up the cockpit voice recorder transcript to the -- as well as the tape itself, to the animations. And that has been done both -- by both the
defendants and the plaintiffs. Once we have real-time video or real recorded video, the extent to which these demonstrative exhibits take on life is going to be even greater. I think the
dangers associated with prejudice and -- and the emotional impact and unfairness are going to see limits that we haven't really addressed yet. Will the courts adapt. always decide. The courts will
Whether we like how the courts decide
or not is a different issue. I'm not satisfied that the protections are there yet, because I'm not sure anybody's fully appreciated the full scope of the impact that this is going to have outside the air safety area. I'm a great believer -- and I know I'm going on -- if it can provide any information at all, it ought to be made available in the context of air EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
411 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 safety. But I think once you start to look at these
other areas and recognize and take it as a given that it's going to be used in litigation, one has to start think about -- thinking about the kinds of protection to afford it. I think Jim's suggestion, albeit off the cuff, about the keys and access and so forth, is one worth considering. MR. JULIUS: Mike, I'm sure you'll have a
comment on this as well, so I'll ask both -- all three of you, actually. It's been proposed informally and somewhat formally at the NTSB in the past that why doesn't NTSB just delete cockpit voice recorders or delete cockpit imaging recorders before we return them. any comments about those proposals? I guess we'll start with Mike. MR. DEMETRIO: Well, obviously, I don't think Do you have
that's a good idea because that information provides a route to the ultimate goal of fact-finding and truth finding. Fully recognizing the importance of the Board
and its purposes, as long as we're going to have a guaranteed constitutional right through the Seventh Amendment to trials and/or trial by jury. The parties to those trials are entitled to EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
412 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the facts and the data. I again go back to Cobey
Johnson's testimony that this is not pure science, and when the Board puts together a transcript to the CVR Committee, it -- it is and can be and should be open to analysis and double checking. Facts beget resolutions of disputes. Mark is In
right about a point, and 427 is the poster child.
that case, one of the other parties -- or defendants I should say. I get caught up in the NTSB terminology in
this room -- put forth a theory via an expert that the captain of that plane was reading a newspaper at the time the plane was going on for approach. And he even
went to the point of claiming he could tell it was the "Chicago Sun Times" that he was reading. A CIR would dismiss silly claims like that immediately. claim. In that case, it would have helped Mark's
If he was in fact reading the "Sun Times," you
know, it would have established that fact. It's not a feeding frenzy. providing of facts and data. It's -- it's
What happens to them in a There's all sorts of
courtroom, that's another issue.
protections that could be put in place by a trial judge under the rules of evidence. But the initial
collection of the data for analysis purposes in the lawsuit setting is something that should be kept open. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
413 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. DOMBROFF: I -- I can only imagine the
amount of legal proceedings that would take place if the Board proposed a procedure by which it was going to erase tapes before they return them. I think it would
make the discovery process look like a minor league episode compared to what would transpire with respect to litigants and the bar generally going after the Board. Frankly, I don't think that's a very realistic approach. I do think that if in fact this
comes to pass, one is going to have to examine pretty carefully the manner in which cockpit voice recorders have been used, and I think they've been used responsibly in litigation, Cali aside, or not withstanding Cali. And I think that litigants on all sides have acted responsibly, but I think one should go back and reexamine cockpit voice recorder protections and orders and procedures and do it specifically keeping in mind video and the impact it has on the world today. think we're probably one step away, if not there already, with respect to being able to real-time downstream the video and the cockpit voice recorders and all the flight data recorder without even having the recorders on board, no longer having EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 I
414 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 crashworthiness issues necessary, and the weight and the cost associated with it. And I think if this Board were to come out with recommendations, I think one of the recommendations ought to be that -- that the use of these outside safety be studied quite carefully so that everybody knows what they're getting into and we're not fighting these battles constantly along the way. MR. JULIUS: anything to that? MR. JOHNSON: I guess, as Mike said, on the Jim, did you want to add
fair trial issue, which is one of the issues, Mike, we ran into with that statute. To me, you can have
evidence excluded, like we don't allow the use of the Board's report in evidence, although it's out there and available to the litigants. But like in the Air Force where we restricted certain things which did not go into evidence and did not go to litigants. I think the trials that we had
there were still fair because there's other information out there. So I suppose that's going to be a debate
for another day, but I'm not sure I agree with Mike that you can't get a fair trial without access to a CIR or a CVR. MR. JULIUS: I just have one more question.
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
415 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And that is, in all three of your experiences, when the court addresses the provisions of 1154 and tries to balance necessity for a fair trial and privacy interests of the crew, does it do that on a -- is that a binary decision? Does it -- does it -- is it all the
tape or none of the tape, or does it do it with respect to portions of the tape, or is it in your experience always the whole tape or nothing? tape. MR. DEMETRIO: Briefly, my experience is, Or -- the whole
it's a case-by-case determination, as well it should be, based upon the specifics of the particular matter before the court. MR. JOHNSON: I would agree with that. I
think that judges in general are in favor of liberal discovery. So we walk in the door where this is new to
them that someone's -- opposing discovery of something like of this nature. So what they do once they become aware of the statute, they do it, I think, on a case-by-case basis. And for the most part, I think the great bulk of the tape is released, Mike, with some deletions, if it's not all released. But they do exclude some things, and
like Judge Standish, he excluded some of the personal last comments of the flight crew, along with some other EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
416 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 comments of the flight crew. So it's an ad hoc, case-by-case -MR. DOMBROFF: Again, at the risk of
repeating him, I think that not only is it ad hoc, but if you look at one of the orders, for example, the court noted several sounds were heard by the judge listening in camera that are neither noted nor identified in the transcript. In addition, the judge also in that case found that the tone of voice, pitch, and inflection of statements made by crew members, all of which may be relevant to their state of mind, emotional condition, and situational awareness, are completely absent on the printed page. So I think the judges have pretty well demonstrated through their orders, and I don't think this order is unique. By the way, this is a Little
Rock -- the Little Rock accident and the judge there ordering the disclosure of the tape. I think the judges have been very, very careful and -- and looked at them very carefully for the purpose of determining what should or what shouldn't be turned over. And as has been pointed out,
Judge Standish ordered that certain portions of the tape be redacted. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
417 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Our experience is that certainly most judges will redact the last few seconds of the tape when in fact it might be the most emotional. MR. JULIUS: further question. Thank you. Actually, I have one I apologize.
False advertising.
I'd like all of you to address -- you've talked in some detail, so you could just elaborate a little bit. We've discussed the fact that -- that
litigants in general have respected the privacy of the crew and -- and they respect the treatment of the CVR. Given that, could you elaborate a little bit on -- on what transpired in the 427 litigation, given that a federal judge ordered a redacted version of the CVR with certain exclamations and other portions removed from the CVR. And then, some or all of you were involved in the state court litigation wherein the parties had access to all of that. So if there's, for instance,
experts or lawyers who were involved in the federal case but not the state case, how did that play out, and how did the -- how did the litigants generally treat those -- treat access to CVR issues? MR. DOMBROFF: I was going to say that I'd
like to hear that explanation from Mike first, because I'm not sure to this day I understand why the judges EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
418 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 came out differently. I think neither one of the cases in which the two judges issued their order went to trial, as a result of which we were never confronted with the use of two different versions of the tape at trial. In terms of the -- the manner in which they were used in discovery, I don't think that any of the discovery issues that -- the discovery proceedings that we had in the cases -- because the discovery was consolidated, taking place at the same time, with the witness only appearing once -- I don't think it really created a problem because, one, the differences were slight, and two, the differences were never focused on in the context of the discovery, since the differences tended to have to do with Judge Standish redacting perhaps more emotional parts of the tape that weren't relevant to what the flight crew was or wasn't doing. MR. JULIUS: Mike, if you could just
elaborate on that by explaining, if you could, given that there are protected -- protection orders in place, people that were involved in the state court proceeding that were not -- people that were involved in the federal but not the state, were attorneys respectful of the fact, and experts working for those attorneys, respectful of the fact that actually if the state court EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
419 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it worked. CVR, which was unredacted, was discussed and they weren't part of that proceeding, that they would have to respect the nondisclosure provisions and exit the room, or how did that work? MR. DEMETRIO: That's -- that's exactly how
While not being presumptuous with respect
to why any judge ruled in a given way, the explanation certainly could be that Mark argued in Pittsburgh and I argued in Chicago when -- maybe that's the reason that the positions came out the way they did. But two different tapes were kept. There was
a lead counsel for the MDL in Pittsburgh, whereas we were lead counsel in Chicago. If someone was not authorized to hear that tape that was kept in Chicago, they weren't allowed to hear it. issue. It was that simple. And it never became an
As Mark pointed out, the cases on behalf of the
victims' families all resolved themselves in that manner, and we never had a trial. But as far as the discovery went, there was never a violation, there was never a problem. MR. JULIUS: Thank you for your answers.
That's all the questions I have. I should point out, though, that all three of you have submitted written statements, and those are EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
420 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the FAA? MR. WALLACE: No questions. Mr. Barimo? Thank you. part of the record. CHAIRMAN CARMODY: Thank you.
Moving now to the parties, Mr. Wallace with
CHAIRMAN CARMODY: MR. BARIMO:
No, no questions.
CHAIRMAN CARMODY: MR. LOTTERER:
Mr. Lotterer? Thank you. Mr. David, Air
No questions. All right.
CHAIRMAN CARMODY: Line -- Allied Pilots? MR. LOTTERER:
I have no questions. And Captain Fenwick? No questions, ma'am. My goodness.
CHAIRMAN CARMODY: CAPTAIN FENWICK: CHAIRMAN CARMODY: Ms. Rosser? MS. ROSSER: do have one question. CHAIRMAN CARMODY: MS. ROSSER:
I'm going to break the trend. I
All right.
And I believe this is more But
directed at Mr. Dombroff than the other panelists. we heard testimony yesterday about concerns, particularly when an image recorder is the only
recording device on an aircraft, that there could be misleading or incorrect interpretations of actions or EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
421 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 inactions on the part of the crew. And one of the examples that was given was, flight crew members often will point to or touch a switch on a check -- when they're going through a checklist, but may not actually press that switch or activate that item, and that in a video, that might not be clear whether that switch was actually pushed. And while you can say a picture may be worth or an image may be worth 1000 words, would you also agree that it could be worth 1000 interpretations? from the perspective of the operator and the crew members, how will that be -- can you elaborate on the impact that would have in court proceedings? MR. DOMBROFF: Yes, I -- I think so. I think And
in fact those sorts of things now occur with the cockpit voice recorders, where we see statements on cockpit voice recorders of pilots or copilots saying, "What is that?" or "That's not right" or "What does that mean?" And not only does the Board find itself
enmeshed in experts examining not -- what's taking place at that time in the flight data recorder in terms of various parameters and whether they can match up a change with respect to that particular statement. In the context of litigation, we frequently see that -- the 427 case actually did go to trial. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
422 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 After all of the families' and the passengers' cases were resolved, a case did go to trial in Pittsburgh for five weeks in which U.S. Airways brought an action against Parker Hannifin to recover certain monies it paid. And at issue during that trial were these very things: what did a particular thing mean; what And each side put on expert
were the interpretations.
witnesses, and the expert witnesses, just as the Board does, came up with their best interpretations. And at
the end of the day -- and I'm not saying this is a perfect answer -- but at the end of the day, it was up to the jury to decide who they believed. Now, ordinarily, the judge is not going to step in and preempt that, so long as it's a proper area of expert testimony. Using the hypothesis or the hypothetical that you've given me in terms of a cockpit image recorder, if that is the only thing that's available and assuming it gets discovered, the argument is going to be that it should be permitted to be played for the jury because, one, it's the only thing available, and two, the experts can testify as to what they believe it to be. And I would think, whether I agree with it or not, that that is going to be a relatively appealing EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
423 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 questions. CHAIRMAN CARMODY: Thank you, Ms. Rosser. argument to most judges. So I think we're going to
find ourselves back to pretty much where we are as it relates to cockpit voice recorders and various types of statements. MS. ROSSER: Thank you. I have no other
Mr. Battocchi said he had no questions, is that correct? All right.
Mr. MacIntosh, any questions? MR. MacINTOSH: We heard from Mr. Demetrio
and Mr. Dombroff regarding that either permanent custody by the government of the tape or the destruction of the tape. Mr. Johnson, did you opine on that subject at all for your organization? MR. JOHNSON: I -- I was -- can you hear me?
What I opined was that the tape would be retained in the custody of the NTSB. I did not suggest
that it should be erased or eliminated, but it would be in your custody and it would not be discoverable and not admitted into evidence. I think that's a possible
solution here, not one that all people would like and, certainly, my organization would like. And like I said, I was talking off the top of EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
424 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 my head. I have not run this by the people that I But it is one thought. Thank you. Dr. Ellingstad.
work for here.
MR. MacINTOSH:
CHAIRMAN CARMODY: DR. ELLINGSTAD:
If I could just quickly
follow up on -- on Mr. Johnson's suggestion with Mr. Demetrio and Mr. Dombroff, what I thought that I heard Mr. Dombroff say was that basically there would be a great deal of difficulty if the tapes were destroyed. But would either of you comment on the -- on the proposition that Mr. Johnson made about essentially permanent retention by the Board? MR. DEMETRIO: Well, if the idea and the --
when I listened to that, I thought it was in the international arena, where there are not protections. That's the context I took that in. If the suggestion
is that it be retained by the Board and never available to anybody within a case in which you're seeking to determine individuals' rights, then I think that's a very bad idea. I think it goes against the entire
fabric and context of our civil justice system. MR. DOMBROFF: Well, Dr. Ellingstad, as I
said, I think -- I've always viewed cockpit voice recorder tapes and transcripts as a two-edged sword. I
think more often than not they benefit the flight crew EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
425 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in accidents than they hurt the flight crew. There are
some exceptions, but certainly in virtually all the cases I've been involved in, they benefit the flight crew. We never encourage the Board to give them back to our clients. We never encourage our clients to We've had court orders
push the Board to get it.
requiring us to ask our client to ask the Board to return it to us. We've had the Board refuse and say we
could get a copy of it, which has even disappointed me that we got a copy. In the context of air safety, there's no reason for us to have it. the litigation process. It's simply a function of
The litigation process is I would be perfectly
essentially dealing with money.
happy if the Board would hold onto it and not disclose it to anybody and used it simply for air safety purposes. I think the purposes would be served. If we
had to go forward and litigate, we could all litigate using the transcript, however imperfect that may be. DR. ELLINGSTAD: Thank you. Thank you. No questions.
CHAIRMAN CARMODY:
Mr. Cash, any questions?
Well, let me thank the panel for your excellent testimony. It was very informative and very
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
426 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Whereupon, JAMES WHITLOW having been first duly sworn, was called as a witness herein and was examined and testified as follows: Testimony of James Whitlow MR. CASH: Mr. Whitlow, if you would state interesting, and you're excused. (Whereupon, the witnesses were excused.) CHAIRMAN CARMODY: I suggest we take a quick
10-minute break and stretch our legs before Mr. Whitlow takes the stand. We'll be back about -- well, 1:15. (Brief recess) CHAIRMAN CARMODY: I believe the next witness
is Mr. Whitlow from the Federal Aviation Administration. counsel. Mr. Cash? Mr. Whitlow is the deputy chief
for the record your name, title, affiliation, and employer, and any academic or work experiences? MR. WHITLOW: Yes, James Whitlow. I'm
currently the deputy chief counsel of the Federal Aviation Administration. I started with the FAA back Worked various positions
in 1976 as a staff attorney.
as the branch manager, assistant chief counsel, and EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
427 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 purpose. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 became the deputy in 1998. A graduate of Columbia College and Columbia University School of Law. MR. CASH: Thank you.
And Mr. Julius is the questioner. MR. JULIUS: Good afternoon, Mr. Whitlow.
Thank you for being here. I have just a few questions for you today with regard to how FAA treats for enforcement purposes CVRs and perhaps would treat cockpit image recorders for enforcement purposes. With that kind of scope in mind, the first question for you is, what is the FAA's enforcement policy with regard to CVR recordings? MR. WHITLOW: regulation. Well, our policy's actually in
For 121 operations, it's 121.359(h), and And there's the same
for Part 135, it's 135.151(c). language in both.
The administrator does not use the So
record in any civil penalty or certificate action. as I said, it's regulatory, not just a statement of policy. MR. JULIUS: for any purpose? MR. WHITLOW: Does not use it for any
And that's -- does not use it
428 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. JULIUS: Either evidentiary or as a lead,
perhaps, for enforcement cases? MR. WHITLOW: MR. JULIUS: MR. WHITLOW: Right. How about FDR recordings? Well, the -- the problem that I
had in answering that is that it really involves the FOQA program as well. Traditionally, there wasn't any
question about our use of -- of flight data recorders for enforcement purposes, really, from my experience, until FOQA came up. And I think it is kind of an
analogy to what we've been talking about with the video recorders, because the FAA really wanted to encourage participation in the FOQA programs. program. It's a voluntary
But we did have to address the issue of how
that information would be used in enforcement. So if you're talking about flight -- flight data recorders in general, there's no provision, but flight data recorders that are covered by an FAAapproved FOQA program, by statute, we don't use that information unless it relates to a criminal or intentional conduct. that was developed. And there's a long history on how I'm not sure if you have time and
you want me to go into that today. But it was the result of statutes that that limitation was established that we don't use it for EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
429 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 enforcement purposes if you are in an approved FOQA program, unless it relates to criminal conduct or intentional conduct. MR. JULIUS: sufficient. Okay. I think that's
I mean, sufficient in the sense that I
don't need you to go into the record on FOQA. Let's turn to cockpit image recorders. Does
the FAA currently have a policy with regard to image recorders? MR. WHITLOW: MR. JULIUS: Not currently. Can you speak as deputy general
counsel or deputy chief counsel to what that policy might be? MR. WHITLOW: What I was hoping I could do
was use my testimony to highlight the issues that I think are going to have to be considered and what I believe the process would be. I think we've all agreed
that however this turns out, FAA regulations will be involved. And I believe that as part of those
regulations, that's where the issue of enforcement will be addressed. But the problem for me is that I, number one, see the enforcement program as part of assuring aviation safety and that because of my involvement in the FOQA program, I do believe that the balancing is EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
430 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 going to require some issues and discussions that, really, we haven't had today. When you look at the public record for FOQA and you look at what FAA had to do to address the enforcement issue back then, I think it gives an indication to what we would have to do to address the enforcement issue for -- for recorders, for visual recorders. So I think the -- when you look at the benefit of being able to get, for example, an unqualified pilot out of the sky or to deal with intentional conduct, to deal with criminal conduct, when you look at the kind of conduct that even Congress acknowledged should be the subject of enforcement using FOQA data, you get an idea of the kind of balancing the FAA will have to do. I think this has to be done and will have to be done as part of regulations, and whether there is legislation or not and whether Congress wants to weigh in or not, this is going to have to be a government decision, and that's the other point I wanted to make. This is not going to be just an FAA decision. be a government decision. But I do believe the FOQA situation does give an indication of the kind of balancing FAA will have to EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 It will
431 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 do. And while I could give you hypotheticals, I could
give you an idea as how I think it's going to work out, I just don't right now -- right now know how that ultimately will -- will work out. MR. JULIUS: If you do have a hypothetical in
mind, that might be a useful illustration. MR. WHITLOW: Well, again, if you look at
what Congress concluded and the predicate that we all wanted to encourage, participation in a voluntary program, and everyone recognized the benefits of voluntary participation in FOQA in addressing future accidents by preventing them through the use of information that otherwise wouldn't be available, even with that predicate, Congress still felt that it was necessary that FAA be able to take enforcement action if you were talking criminal activity or intentional conduct. If you also look at what FAA publicly said in our notice of proposed rulemaking for the FOQA program and the legitimate concern we all would have about unqualified pilots being up in the air, pilots who lack qualifications being up in the air, I think there has to be consideration given to whether that recorder would be used if it's the evidence that you need to get an unqualified pilot out of the sky or to deal with EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
432 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 no. MR. JULIUS: The only other question I have intentional or criminal conduct. So I think those two public processes give a good indication of how I think the hypothetical would work out. MR. JULIUS: Does the FAA have any intention
of modifying its policy for CVRs with regard to enforcement for intentional conduct or criminal conduct? MR. WHITLOW: To my knowledge at this point,
for you today, Mr. Whitlow, is actually going to be the same question that Mr. Wallace asked of me. And that
is, does the FAA have any thoughts or do you have any thoughts on how the FAA would treat parametric data obtained from cockpit image recorders that capture such, especially in smaller turbine aircraft that might not have cockpit imaging recorders -- excuse me, cockpit voice recorders? MR. WHITLOW: Yes. To my knowledge, the FAA And for me And I
hasn't reached a conclusion on that yet.
personally, it's in a difficult balancing again.
think when you talk about a specific hypothetical -and this is a hypothetical. Again, it relates to some
things that happened maybe 25 years ago, with a EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
433 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hypothetical involved, a situation where the flight data recorder could not identify who the individual was on board that aircraft who engaged in certain maneuvers that would have to be considered intentional misconduct. If the only evidence that I have to prove who that individual was that will allow me to remove that kind of a pilot from the sky, should I be allowed to use it if it's the digital video recorder, or should I consider other consequences of doing that being more important than getting that individual pilot out of the sky. Well, I sat over there for a while trying to figure out how I would answer your question, and to be honest with you, I don't know how it would come out. But I think that's the kind of analysis that's going to have to be addressed. And it will be addressed in the rulemaking. Again, I'm confident that those issues will be worked out in the rulemaking and it'll provide the advantage of notice, comment, and a full discussion. MR. JULIUS: Have there been internal
discussions at FAA about these types of issues yet? MR. WHITLOW: MR. JULIUS: Not to my knowledge. No further questions, Madam
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
434 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Whitlow? MS. ROSSER: Thank you. No questions. Air Line Chairman. CHAIRMAN CARMODY: Thank you, Mr. Julius.
I'm going to start again at the end and move across, making FAA the last questioner. So, Ms. Rosser, any questions for Mr.
CHAIRMAN CARMODY:
All right.
Pilots Association, Captain Fenwick? CAPTAIN FENWICK: question for Mr. Whitlow. Your hypothetical, sir, where you suggested that a creative or prospective use of the image recorder might be to get an unqualified pilot out of the sky, were you implying that that would be post accident or post event, or are you thinking proactively? MR. WHITLOW: What I was thinking about was a Yes, ma'am. Just one
situation where there was no accident, but the hypothetical is based on the fact that the mechanic observed cracks and other damage in an aircraft that, to that mechanic, indicated it had been barrel rolled. There was no accident involved, but because it was an FAA aircraft, FAA was made aware and the inspector was also made aware. So there was the consideration of
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 enforcement action against a pilot that would intentionally barrel roll an aircraft for absolutely no operational reason. Now, if you take the hypothetical where you may know the aircraft was barrel rolled from the flight data recorder, that's not going to tell you who actually did it. And if you have a video recording
that would absolutely establish who barrel rolled that aircraft, should you be allowed to use that information to address an intentionally reckless conduct by a pilot. So for the enforcement side, this is something -- and this is what happened with the FOQA analysis, also. This is something we would have to And the
address absent and independent of an accident.
immunity that we were asked to give didn't presume an accident, just the reverse. The immunity we were asked
to give presumed that extraordinary circumstance where there was no other evidence and no other indication that something had occurred. CHAIRMAN CARMODY: MR. DAVID: Mr. David?
Yes, ma'am.
Mr. Whitlow, FOQA data is parametric, objective data. There is no subjectivity involved. We
know what happened.
Doesn't subjective CIR data equate
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
436 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Lotterer? MR. LOTTERER: Thank you. more to the CVR and not to the DFDR data? Shouldn't
the cockpit image recorder be afforded the same enforcement protections as the CVR because of its subjectivity? MR. WHITLOW: At this point, I don't really
know how I would answer that, but I do think that, as part of the rulemaking and the balancing, we will have to address it. that right now. MR. DAVID: Thank you, sir. Regional Airlines, Mr. I just don't know how I would answer
CHAIRMAN CARMODY:
Mr. Whitlow, one of the issues when the FAA decides on rulemaking, of course, is the adequacy of the cost benefit analysis, a reasoned determination that there is benefit to the rule. How active is the FAA legal with respect to reviewing this type activity, and what are the difficulties that you would see with this particular subject should it go forward as rulemaking? MR. WHITLOW: Well, I think I could answer
the first part of your question that we are active, but at this point, there's no way I could answer the second part. That in part is also going to depend upon how EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
437 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you. CHAIRMAN CARMODY: Mr. Wallace? MR. WALLACE: No questions. All right. Moving then to Thank you. broad the requirement is. I just don't think I can
answer the second part now. MR. LOTTERER: Thank you. No more questions.
CHAIRMAN CARMODY: Transport Association? MR. BARIMO:
Mr. Barimo with the Air
No, we have no questions.
Thank
CHAIRMAN CARMODY:
the Board of Inquiry, I'll start with our general counsel, Mr. Battocchi. MR. BATTOCCHI: No questions, thank you. Mr. MacIntosh?
CHAIRMAN CARMODY: MR. MacINTOSH:
No questions. Dr. Ellingstad?
CHAIRMAN CARMODY: DR. ELLINGSTAD:
No questions. Mr. Cash?
CHAIRMAN CARMODY: MR. CASH:
I just have one.
You made reference to the 121/135 protection against the CVR use. Does that extend to 91, too?
Because we do have CVRs installed in 91 aircraft. MR. WHITLOW: Yes. I'm sorry. I didn't
bring that regulation with me.
The answer is yes.
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
438 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CASH: All right. Is that it? All right.
CHAIRMAN CARMODY:
And I have no questions, but I do want to thank you, Mr. Whitlow, for coming to testify and to answer our questions. You're excused.
(Whereupon, the witness was excused.) CHAIRMAN CARMODY: the next witness, please? MR. CASH: We would like to recall Mr. Mr. Cash, would you call
Kenneth Smart from the Air -- Air Accidents Investigation Branch of the U.K. Whereupon, KEN SMART having previously been duly sworn, was recalled as a witness herein and was examined and testified as follows: MR. CASH: Mr. Smart was previously
identified yesterday and is still under oath, so we don't need to do that. Testimony of Ken Smart MR. JULIUS: MR. SMART: MR. JULIUS: Good afternoon, Mr. Smart. Good afternoon. I was wondering if you could --
I was hoping that you could discuss for us briefly the -- how cockpit voice recorders, for starters, and EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
439 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cockpit image recorders are treated in the United Kingdom. MR. SMART: Yes. Good afternoon. I'll do my
best as the nominal non-lawyer in this particular part of the hearing. U.K. practice embeds ICAO's international standards and recommends practices into our legal system as a matter of course. And so for an indication
of how we -- our law reads, if you like, you only have to look at the -- the requirements of Annex 13 of the Chicago Convention. Our legislation which comes from the Civil Aviation Act provides us with the powers to have immediate access to all the evidence associated with an aircraft accident, and that includes the flight recorders. We have the power to hold back evidence for the period of the investigation, and in some cases, in the terms of the recorder's recorded data, beyond the end of the investigation. It is an offense to -- for anyone to disclose cockpit voice recorder information without the, in our terms, high court balancing procedure, which is our interpretation of the provisions of Annex 13, i.e. the -- the balance of public interest for disclosure EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
440 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 against the case for non-disclosure based on the impact -- the adverse impact that would have on international and domestic -- what it would cost to future investigations. So our legal processes have been in place since the early '80s. They were amended the last time And although we -- we
the annex was amended, in 1996.
did have calls for disclosure in the early years, I have to say that we have not had any significant challenge to disclosure for about eight or nine years now. There is no distinction in our law between disclosure for criminal regulatory or civil litigation. It's the same. The law provides for protection for
the recordings in all cases. We have, on the 5th of January next year, a new piece of legislation for us. I know it's not new
for you, but we have a Freedom of Information Act coming. And the subject recorders and other
documentation that we -- we have custody of during investigation is an absolute exemption from the Freedom of Information Act. Our practice -- we've heard this morning about the practices here in the United States. Our
practice of recordings is somewhat different than the EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
441 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 one you have here in that cockpit voice recordings are retained and archived by the AAIB. returned to the operator. The operator -- if the recorder is in reasonable shape, then the operator will get the recorder back and -- and a tape. not get the -- the record itself. MR. JULIUS: MR. SMART: But he -- they will It's erased. They are not
You said erased? Erased, yes. We keep --
depending on the situation, all significant accidents, we retain the -- the original recording. They will
often get -- if it's a tape-based recording or -- they will get a tape with their recorder. If it's in Any accident
reasonable shape, they'll get it back.
recorder that is not in -- not capable of returning to service, then that -- the recorder itself is retained by the AAIB. Were there other aspects of our legal system that you wanted to explore? MR. JULIUS: Are there any provisions
pertaining to, or analogous provisions pertaining to, cockpit imaging recorders? MR. SMART: Not at this time, but the -- our
legislation -- the accident investigation legislation is relatively easily amended. And I -- I'm able to
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
442 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 amend that at any time. As soon as image recordings
look to be introduced into aircraft either coming into the U.K. or already in the U.K., then we will amend the legislation. And I would anticipate that our
protection will be exactly the same as that afforded for cockpit voice recorders. MR. JULIUS: That provides an opportunity for
me to ask you, I think, about -- and I believe you mentioned it yesterday, during your testimony yesterday. But the Kegworth recommendations, what -what has -- what has occurred since those recommendations either with you or the CAA or the pilot community? MR. SMART: Well, we explored that pretty
thoroughly yesterday insofar as the research program that flowed from the Kegworth recommendations comes to fruition later this year, in September, the report, and the report will be published at that stage. It's -- it will be the basis of the legislative amendments, if any, that will take place in the U.K.. If we're going to recorders to be -- image
recorders to be fitted, it'll be based on that research. MR. JULIUS: Thanks. I actually meant to
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
443 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 focus your answer, if you could, on any discussions you have had with IFALPA or other -- other folks that are - have concerns about privacy and disclosure. If you
could kind of compare those disclosures, if any, for the positions taken in Europe with -- or elsewhere that you're aware of, with, you know, discussions and the testimony you've heard today about U.S. ALPA's concerns and other folks' concerns about disclosure and use of CVR material. MR. SMART: Okay. From a domestic point of
view, one of the things that I'm responsible for is to ensure that we're prepared for any approach to disclose cockpit voice recordings, and in that respect, I have established a position in the U.K. where -- whereby the Department for Transportation -- of Transports, as it is, the Civil Aviation Authority, the operators in the U.K. as a group -- and there is an Operators Group in the U.K. -- and the British Air Line Pilots Association automatically provide evidence of the adverse impact of disclosure at any time that we are subjected to a disclosure order. So we have done our best, if you like, or done -- I think we have done as much as we can to ensure that the case against disclosure is fully heard by the judge when -- in those circumstances, when he EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
444 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 has to make that -- he/she makes that balancing judgment against public interest. MR. JULIUS: MR. SMART: How often does that happen? I said -- I said earlier it's
only occurred three times since we've had this legislation, and it has not occurred for many years now. It appears that -- that the early judgments were non-disclosure, and it seems that that set a precedent which is -- is almost accepted now, that lawyers have not come looking for cockpit voice recorders. MR. JULIUS: In your experience with other
countries around the world, to the extent you know, is that -- is that fairly similar to what happens in other parts of the world, or is the -- in other words, is the U.S. the exception? MR. SMART: No, it's not. You certainly have
a more litigious society here than we have in the U.K., and as far as I'm aware, in the rest of Europe and many other parts of the world. I think what you do here
today is probably what we're looking at in 10, 15 years' time. So this is a good indication of our need I know here in the United
to be prepared, if you like.
States you say the same about the West Coast, things EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
445 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 happening there earlier than they do here on the East Coast. (Laughter) MR. SMART: But, yes, we're probably heading You are
in the same direction as you are heading.
experiencing it earlier than we would do, but that's no excuse for us not being well prepared. The situation in Europe, if I widen it, is -is slightly different. We have now, within the
European Union, we have, since -- since the first of May, we have 25 countries. We have 25 legal systems.
They very broadly break down into two distinct types of legal process. There are those which can be
characterized by the states in northern Europe, which have the common law processes, and those in southern Europe, which includes France in the context there, which have a legal system based on the Napoleonic Code. In general terms -- and I qualify my answers here -- in general terms, the states which have legal systems based on the common law system apply -- the processes that I've -- I've described apply to the U.K. They have the balancing provision for public interest in their legislation. The Napoleonic Code countries have a slightly different provision in that the recordings following an EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
446 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 accident will automatically go to the accident investigation authority in parallel with the judicial authorities. So they -- each party -- both sides there In the common law states, that's
have the recordings.
not the case, and certainly in the U.K., the recordings are only available to the AAIB for safety purposes. The police and judicial authorities do not have access to them. MR. JULIUS: We were talking yesterday
outside the context of the hearing, but you were telling me some stories about Australia, and before we get into Australian legislation, do you know of other countries that have enacted legislation or regulatory policy regarding treatment of cockpit image recorders? MR. SMART: Yes. The situation in Southeast
Asia, particularly in New Zealand and Australia, has changed recently quite significantly, and it came about as a result of one of the accidents that's been referred to this morning, and that was an accident that happened in a Dash-8 that occurred on approach to Palmston North Airport in New Zealand in 1995. The general circumstances of that accident were that during -- during the approach to Palmston North, the crew were distracted by a landing gear problem. The -- the result was a -- accident, during EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
447 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 which four people died. But the crew, who were
seriously injured, survived the accident. During the investigation, the police -- New Zealand police made it clear that they were interested in obtaining the cockpit voice recorder and the flight data recorder, and when the Transportation Accident Investigation Commission in New Zealand had completed their investigation in 1997, the New Zealand police presented them with a warrant for -- for them to search and obtain the cockpit voice recordings and the flight data recorder. The New Zealand Commission appealed against that provision, and that appeal opened up a real can of worms in New Zealand, because it wasn't generally appreciated that -- although New Zealand is a signatory to the Chicago Convention, they had not embedded that provision into New Zealand law. Therefore, the appeal -- the appeal court judgment was that Annex 13 was not something they had to take any notice of in that context, and the police warrant was exercised. The recordings were obtained
and prosecutions followed. Now, that had enormous impact, as you might expect, not only in New Zealand, but around the world, and we've heard some of the impacts that that has had EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
448 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here today. There's another issue in New Zealand, and that was rather surprising. They also discovered there
was no provision for the carriage cockpit voice recorders at that time, in 1995, and subsequently, obviously, there were major changes to the law. The Transport Accident Investigation Commission, the Department for Transport in New Zealand, the airlines in New Zealand, and the New Zealand ALPA combined to lobby government to change the law, and that was achieved in 1999. And they now have
a similar provision to that which we have in the U.K. They have a protection for recordings insofar as they can't be used in criminal investigations without the public interest balance that I referred to earlier. It also had an impact across the straits in -- in Australia, and Australia has perhaps the most recent legislative change in that Australia's legislation was changed in 2003. In Australia, they
have, on the face of it, some of the strongest protection for recordings now, and I'll explain how this goes. There were two acts in Australia. The Civil
Aviation Act is an umbrella act that gives overall protection for cockpit voice recorders from replay EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
449 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 analysis -- from replay analysis and any access at all in any event other than an accident or serious incident that the Australian Transportation Safety Board is investigating. So it's an umbrella act that deals with
all other circumstances except an accident or incident. And it -- the protection is such that the penalties for abuse of that are two years in prison maximum. The other act is the Transport Safety Investigations Act, which defines a new concept, and that's “On-Board Recorders”, and -- or “OBRs”, as it's stated in their act. And the -- the Australian
Transportation Safety Board are able to declare recorders as OBRs, on-board recorders, and in those circumstances, it gives them the power to replay those recordings and to decide what elements should be released. In most circumstances, that would be
pertinent extracts, in the same way as you have here in the U.K. -- in the U.S.A. and we have in the U.K. There is -- OBRs only deal with cockpit voice recorders and image recorders, and they've already got that into their legislation, so they're prepared, if you like, for the introduction of image recorders. I think the Australians discovered, though, that their protection was somewhat stronger than they had envisioned in that they currently have a problem, EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
450 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and that is that their protection is so strong that the airlines themselves can't determine whether the recorders are actually working, because it's an offense to see if they are -- to actually replay them to see if they're working. So there are -- there are amendments in process to try and resolve this particular problem, and it's often the case when you get very strong legislation that that has some unexpected outcomes, and this is one for the Australians. That's a long answer, but I hope I've provided some information. MR. JULIUS: That was great.
It came up this morning about ICAO, and there was some discussion about ICAO and the efficacy of using ICAO to address some of the concerns about disclosure of both CVRs and cockpit image recorders. Could you address, if you could, EU and how EU works as far as proposing legislative changes, and if that's a useful way to address things on a larger scale? MR. SMART: Okay. The -- we had some --
we've had some significant change in the legal frameworks in Europe since the early days of the European Commission and the EU, when it was just 11 members. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
451 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The European Commission established what they call competence over the aviation sector in the early '90s, and they did that by -- in the accident investigation field by establishing a directive which provided for the fundamental principles of accident investigation to be established across the then 12 states of Europe. When that - when that happened, it opened the door insofar as having established competence, there is no limit to the competence -- the areas into which the European Commission can decide to -- to move. And
since that time, they have moved progressively towards a more -- those of you who know the U.K. will know I have to be careful about using the word "federal," but it's sometimes referred to as a more federal system, if you like, of legislation for aviation. The most recent manifestation of that has been that we now have a European regulator, a European aviation safety agency, that was established in September last year, and will gradually take over the functions of the individual states' regulators. Mindful of that fact and the impact that that is likely to have on accident investigation, the European Commission has very recently -- I'm talking about two weeks ago -- had the first meeting of a group EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
452 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of experts that is there to advise them on changes to the legislation in Europe to deal with transport accident investigation, and that is -- the definition of transport in these terms is something you will recognize. pipelines. So we are -- a group has been formed, and I'm a part of that group. It's just 12 people. And that It is roads, rail, air, marine, and
group of experts is asked to, within the next two years, to advise the commission on changes to the legislation to deal with the changes that have taken place as a result of having the European regulator. I chair the Aviation Subgroup of that group, and we will be drawing together experts from across Europe and perhaps wider than Europe to -- to discuss what changes are likely to be needed. Now, this is very early in this subgroup and I don't want to prejudge anything that's going to come out of it, but I -- I think you will understand if I say to you that there'll be -- I'd be very surprised if the subjects that have been discussed here today are not on the agenda for legislative changes in Europe, protection for recorders, particularly. It's one of
the things we'll be looking at in the near future. While I have the microphone, could I make one EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
453 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 predicted. point about something that was said this morning in the ICAO context? I think in -- in the evidence from Jim
Johnson, he suggested that ALPA had tried to get an incremental change in the recorder protections at AIG99. And -- and certainly, that was the -- the way it
happened. Unfortunately, the outcome was not as we had I -- I can speak from some experience I was elected to do that.
because I chaired AIG-99.
The recommendations from AIG-99 were that cockpit voice recording should be separated from the other documents listed in Chapter 5-12 of Annex 13 and given special status. And that was the recommendation
that went forward to the Air Navigation Commission for review and subsequently to the council. Unfortunately, when it got to the Air Navigation Commission discussions, IFALPA, the International Federation of Air Line Pilots Associations, made representations which confused the issue. That's the best way I can put it, I think most IFALPA were naturally arguing
people will recognize.
for very much stronger legislative changes across all the states that were signatories to the Chicago Convention, 188 states. And that is something that I
think is unlikely to be achieved by ICAO, as has been EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
454 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recognized here today. But the result was that the -- the commission decided that the recommendation was not, as I say, mature enough to go forward, and we reverted to the pre-1999 version of Annex 13, and that's where we sit today. It's unfortunate that that occurred, because that intervention took us backwards, not forwards. I
think IFALPA now recognizes that that was a mistake. I've had this discussion with IFALPA representatives. They recognize that it was not a clever thing to do and what they were seeking of ICAO was not achievable in the terms that they wanted. So I think we're busy now trying to recover that situation. The (ICAO) General Assembly, in
September this year, there will be a paper -- papers will be presented which try to recover that situation back to the AIG-99 situation where we have cockpit voice recorders separated from the other documentation. MR. JULIUS: Thank you.
Also this morning, there was some discussion about instances of CVRs being disclosed outside of purpose of accident investigation or to the public. We've discussed Cali and whether that's an anomaly or something everyone in the industry should be concerned EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
455 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about, it being a sign of the future. And I was wondering if you could comment from your experience in the international realm how often CVRs are disclosed outside of an accident investigation, or at least disclosed publicly, or used in criminal proceedings. MR. SMART: I've seen the instances that were
referred to this morning and others which occur around the world in jurisdictions where the protections for recordings are not as we would wish to see them. Apart from continual pressure to get a consensus across the States of the -- States of the ICAO, signatories, I find it difficult to -- to see that we're going to make a very quick change in that. We're going to continue to see cockpit voice recordings, I'm sure, disclosed inappropriately. I hope that the initiatives in Europe will deal with a bloc of 25 states. protection there. We can get further
I think that's a realistic prospect.
And I'm sure from what I've heard at this public hearing that there is the -- I think the prospect of your protection here in the United States seems to be reasonable so far. I -- I'm sure that you'll address
anything that happens here. But most of the problems are going to occur EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
456 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in -- in States outside the -- the more developed states, if you like, the South America or Africa, the Oriental states. I suspect that's where the problems
have occurred and will continue to occur. MR. JULIUS: With what frequency does it
occur, and does that frequency cause you to have reservations about whether or not we should install cockpit image recorders? MR. SMART: It doesn't cause me to think I think to some
again about cockpit image recorders.
extent these -- these issues go with the territory, and I know they have a big impact. But I think the New Zealand and Australian experience suggests that although they have a big impact at the time and cause us difficulties, there are some good to come out of some of these unfortunate incidents insofar as certainly in Australia and New Zealand the laws have changed. We have better And I suspect
protection there than we had before.
that that's the pattern of progress, if you like, in many other fields apart from this. You need bad
examples to get a better legal framework, and that's -that's likely to be the case here, I suspect. MR. JULIUS: This is my last question. I'm
certainly, as an employee of the Safety Board, in favor EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
457 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you. of investigative use of CVRs and cockpit image recorders. But we've also heard testimony that it's
become frequent in the United States that they're used in other provisions subject to protective order -other forms subject to protective orders and they're not disclosed to the public. Given that, I just want a clarification from I think I heard you say that the United Kingdom
and other countries also have circumstances in which their CVRs are used outside of accident investigation purposes? MR. SMART: No, that's not what I said. We
don't -- they're only used when there's -- a high court judge has determined that the public interest outweighs the adverse domestic and international impact. MR. JULIUS: Okay. But there are
circumstances, or the law recognizes in the U.K., that -- that sometimes circumstances warrant that CVRs are used outside of accident investigation purposes? MR. SMART: The only -- the only
circumstances I can imagine that are likely to get a public interest judgment that would outweigh the adverse domestic and international effects would be obvious or deliberate criminal acts of one sort or another. And that's obviously the exception. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
458 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NATA? MS. ROSSER: Thank you. No questions. think of. As I said, we've stacked the balances as well as we can against disclosure, but in those circumstances, it -- the public interest would be served by perhaps releasing the cockpit voice recorder in those circumstances, and the image recorders, I suspect, if there was a hijacking or something of that sort. So those are the only circumstances I can All others we would defend, as you know, to
the best of our ability. MR. JULIUS: Okay. And I think I also heard
-- to make sure I -- it's clear, I think I also heard you say that in Australia, under their provisions, there is absolutely no provision for any use or disclosure outside of -MR. SMART: MR. JULIUS: Thank you very much. CHAIRMAN CARMODY: Thank you, Mr. Julius. Ms. Rosser from It is an offense. No provision.
That's all the questions I have.
I'll start again at the end.
CHAIRMAN CARMODY: Air Line Pilots Association? CAPTAIN FENWICK:
Captain Fenwick from the
Yes, ma'am.
I have a few
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
459 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for Mr. Smart. Sir, if the -- regarding the strength of the U.K. laws and the protocols that your agency employs, if the Cali accident, hypothetically, had occurred to a British Airways airplane, I'm assuming that your group would have had the opportunity or the obligation to read out the CVR. And I understand that you would not
return a copy of that tape to British Airways, but would you turn over the tape or a copy of it to the Colombian authorities? MR. SMART: We would normally provide a copy
of the tape to the investigating authority, because it's their responsibility to investigate the accident, and to do that you need the evidence. yes, we would in those circumstances. CAPTAIN FENWICK: MR. SMART: Right. And -So the answer is
We would -- we would counsel and
discuss with them how that recording was likely to be used, but ultimately, they are the investigating authority and they have absolute right to that evidence. CAPTAIN FENWICK: But inasmuch as we know
that they ultimately released that to a U.S. television station, if perchance the BBC TV, if that's what it's called, had made a similar acquisition and got that EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
460 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that case? tape and played it in the U.K. on the 6:00 news, what would be the response of your agency? MR. SMART: We would make the strongest
possible representations to the -- to our broadcasting standards organization, and there are a number of avenues open to us. But how successful we would be at
ensuring it didn't happen again, I have some doubts. The freedom of the press and the media is something which is also jealously guarded. CAPTAIN FENWICK: in your background. Another hypothetical, more
Let's just say a British Under
registered airplane has an accident in Italy. Annex 13,
you've got some right of participation. What would be the likely uses of the CVR in Who would get it, and how might it be
disclosed, released, or applied? MR. SMART: As I said earlier in the program
-- the examining magistrate would have a copy of the -the recordings. The use that they made of the
recordings would -- would vary from magistrate to magistrate and situation to situation. I -- I couldn't
prejudge that, but I -- I would not be happy that it would not be disclosed at some stage. The Italian accident investigation body, I would have confidence in their ability to -- not to EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
461 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 release it now. I mean, you may or may not be aware
that the Italians have only just or only in recent years formed their accident investigation body as a separate, independent organization. But they still
have considerable difficulties with their judicial authorities. CAPTAIN FENWICK: So in this case, would you
expect that the Italians could criminally prosecute the British pilots, using the CVR as evidence? MR. SMART: Quite likely, if that -- if the
circumstances were such that that was appropriate. CAPTAIN FENWICK: And in terms of enhancing
the European Commission laws, the proposed laws you alluded to, as regards image recorders and the cockpit voice recorders, could you give us an estimated -- a guess at a time frame? Are we talking two years or
five or 10 years for resolution? MR. SMART: Well, if -- if the -- I have some They
experience of European Commission time scales.
are a little bit shorter than ICAO, but not a lot. We're charged with producing our recommendations for legislative changes within two years. It may be
because the aviation sector is perhaps more advanced than many of the others, particularly roads. it's a difficult subject to address. In Europe
It may be that we
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
462 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can preempt -- submit our recommendations somewhat earlier than the total group of recommendations, but we will see. It's very early days yet. Following that, if there is going to be legislative changes, we are probably looking at three or four years before they -- they go into force. And
then, when it's been through the Council of Europe and all the processes there, the practice is usually for a two-year lead time to allow states to adjust their domestic legislation. The one good thing about
European law is it trumps domestic law in that sense. So I see this as a very, very good opportunity to make some changes will be significant across the 25 states of Europe. CAPTAIN FENWICK: In terms of a regulatory
authority mandating the installation of image recorders, would -- from your experience or estimation, do you think that it's going to be the FAA that first mandates these devices or could a European government take the lead here? MR. SMART: I suspect it will be very
difficult for a European government to take the lead at this particular time. If you'd asked me that question
five years ago, I'd have said yes, we in the U.K. could have perhaps addressed it ourselves. Not anymore, I'm
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
463 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Smart. CHAIRMAN CARMODY: MR. DAVID: Allied Pilots, Mr. David? one. afraid, because the regulator is now a European regulator and it is EASA who will make that decision. They are a very new organization, and I don't think this is high -- at the moment, it's not high on their agenda. They are, at the moment, just
establishing their credentials to certificate the Air Bus A-380, and they have a very small staff as we speak today. It's going to build over the next few years
into an equivalent of the FAA. CAPTAIN FENWICK: Thank you, Mr. Smart.
My final question is actually quite a simple Under the current protocols or practices of your
agency to date, does the AAIB produce and publicly release a CVR transcript, and if so, is it redacted at all? MR. SMART: The answer to that is no, we --
we stick strictly to the Annex 13 provisions, and that is that we publish pertinent extracts of the transcript of the recording in our reports. transcript in that sense. CAPTAIN FENWICK: Thank you very much, Mr. We don't release a
Thank you.
Mr. Smart, expanding on Mr. Julius' question, EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
464 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 speaking strictly on your laws and not on any opinion, may a high court judge see due cause and disclose recorder information to the public? MR. SMART: Not to -- it could be released in
court, if it was -- if the balancing procedure that I explained before came down on the side of the public interest. MR. DAVID: Certainly. And it could only be
released in court, it could not be released in any manner to the public? MR. SMART: I would -- in -- I would hope in
circumstances where that applied where it was appropriate that -- that -- it was inappropriate for a recording to be heard in public, I would hope we would be able to establish a situation where that could be heard in camera. Now, I -- I haven't gone through that process because we haven't had a disclosure, so I can't -- I can't say how that would go. As I said before, the
only -- the only circumstances in which I can envisage the balancing act coming down on the side of public interest would strictly be where there was a criminal act of some sort. MR. DAVID: same thing. Certainly, and I would hope the
But in my research into law, I believe, EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
465 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 same. seen. from what I've read, that it is possible that it could be disclosed in public should sufficient cause be seen. MR. SMART: It's should sufficient cause be
As I said, I've hopefully stacked the scales
pretty well on the other side, because adverse domestic and international impact is -- is a fairly powerful tool if you present the right arguments in court, and we will spare no expense to present the right arguments in court. That's all I can say to you. MR. DAVID: Could the cockpit voice recorder
or the cockpit image recorder if installed in a U.S. aircraft involved in an accident in the U.K. be disclosed by this means? MR. SMART: I suspect not, unless there was a I -- the same
deliberate criminal act involved.
provisions would apply, and we would use exactly the same arguments to protect the recording in those circumstances. MR. DAVID: But it would be treated the same
as a recorder from a U.K. aircraft? MR. SMART: Absolutely. It's absolutely the
In fact, our law requires us to treat all our There's no
investigations in the same way.
discrimination against colleagues from overseas, shall we say. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
466 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. DAVID: In the past, you said there have
been cases where there were disclosure years ago, is that true? MR. SMART: MR. DAVID: MR. SMART: No, no. I said we've had --
Challenges? -- challenges, three challenges,
which were unsuccessful. MR. DAVID: Thank you. There's never been a disclosure.
I wanted to clarify that.
And lastly, has any part of the JAA, which is now going away, taken over by EASA, recommended a cockpit image recorder? MR. SMART: There is a group that looks at
recorders within the JAA -- that looked at recorders within the JAA context, and they were considering image recorders, but a lot of that work was awaiting the -the ICAO FLIREC Panel's consideration, after the technical specifications that we've heard about at this hearing were completed, and they are completed now. And the FLIREC Panel, I know, are anxious to meet to consider the specifications and come up with a -- a way forward. MR. DAVID: The FLIREC Panel -- for instance,
I made a quick note of a couple of things that they said in their last paper. They said they are strongly
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
467 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 committed to the introduction of cockpit image recorders and -- providing that the specifications were satisfactory and the protections were in order. So the next FLIREC Panel -MR. SMART: I don't see anything coming from
the JAA now that the EASA isn't close, because most of the JAA functions are going to be transferred to EASA. MR. DAVID: I don't believe Mr. Goudou is
going to be considering it in the near future. MR. SMART: MR. DAVID: No. Thank you. Thank you.
CHAIRMAN CARMODY:
Regional Airline Association, Mr. Lotterer. MR. LOTTERER: Yes. Mr. Smart, in 1997, the
FAA adopted a rule that enhanced the number of parameters of flight data recorders to -- it basically enhanced capability of that particular product. CHAIRMAN CARMODY: microphone on? hear you. MR. LOTTERER: Okay. In 1997, the FAA Excuse me. Is your
Because I'm not sure the recorder can
adopted a rule that increased the number of parameters required on it, and it was also part of a retrofit program. Did Europe, U.K. and the rest of Europe,
adopt a similar program after they did? EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
468 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SMART: I think it's fair to say we were The number
a long way in advance of you at that stage.
of parameters that we required was far in excess of that that was required here in the United States at that time. So to some extent, you were catching up,
and this process has very much been one of leapfrogging. I think you're now -- you're now in a
better position than we are in some circumstances. But it's a process of continual development, and we've -- some of the recorders that we see these days -- I mean, we're looking at thousands of parameters. I think 5000 parameters on a recorder is
not unheard of, and I would not be at all surprised within a very short time to see it somewhere nearer to 10,000 on the latest recorder systems. MR. LOTTERER: There are clearly benefits in
advancing the technology for newly manufactured aircraft, but in terms of retrofit, was there any retrofit programs within Europe? MR. SMART: I -- I'm not -- the retrofit
programs that took place were with recorder changes, certainly, to solid-state recorders from some of the older generation recorders, but I -- I don't think we actually introduced a retrofit program in that sense. I think that was -- I was referring to some catching EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
469 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 questions. CHAIRMAN CARMODY: Mr. Barimo? MR. BARIMO: No, no questions. All right. Thank you. And Mr. Air Transport Association, up. Perhaps that is one area where we do need to catch
up, but we were -- we were somewhat better placed, in any event, before that -- your legislation -legislative change took place. MR. LOTTERER: Thank you. No further
CHAIRMAN CARMODY: Wallace with the FAA? MR. WALLACE:
In -- Mr. Smart, as part of the
EASA organization, is it contemplated that there will be a single accident investigation authority for your -MR. SMART: It's one of the considerations
that we have to look at, and I think in -- again, I can't prejudge what's going to come out of our -- our expert group, but it will certainly be one of the things that we look at. There is a general feeling that no one state certainly in Europe, and perhaps no one state in most of the world -- I hesitate because I'm here in the United States, but the expertise and resources that you require for -- for accident investigation these days EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
470 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are truly international, and the sharing of resources is something that we have to consider. Across the 25
states of Europe, we've got France, Germany, and the U.K. who are -- have reasonable size accident investigation organizations. The other states, the --
the other 22 states, have very small organizations and probably are not equipped to conduct a major organization. Now, we've got the A-380 coming into service in just a few years, and an accident to an A-380, for instance, would be something that we are currently preparing for in the U.K. but is probably something we have to gear up for across Europe, not just -- not just individual states. MR. WALLACE: So -- but it's not the notion
of there being -- now we have a single European Aviation Safety Agency which really has regulatory authority to a degree, which JAA could maybe be described as sort of a club which was still dependent on the individual member states. So it's not off the table, this -- this -the notion that there would be a single accident investigation agency for Europe? MR. SMART: No, it's not. And then this would --
MR. WALLACE:
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
471 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 space. MR. WALLACE: Based on your -- you know, your presumably, this would require some ICAO adjustments or whatever. MR. SMART: It would do, and as you're
probably aware, the European Commission is lobbying hard for representation within ICAO and having some difficulty with that. The -- the changes that would
have to take place if we were to have a single accident investigation body across 25 states would be something else that would have to require some adjustments. The exact form of that would be -- would be interesting. You could establish a hub and satellite
sort of system allowing individual states to maintain their lead, if you like, in the investigation although being part of a larger organization. one model that could be envisioned. I'm very anxious not to go down this route because, as I've said, we've only just started our work. We have a long way to go, and there's no That was
guarantee that having made our recommendations to the commission for legislative change that the -- the commission will adopt them. So all I can ask you to do is to watch this
extensive knowledge of regulatory and accident EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
472 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 investigation agencies worldwide, are you aware of some countries where -- which do not have the same distinction that your country and our country have? That is, we have the regulatory agency and we have the investigation agency separate. And so I'm sure you are aware of countries where it's essentially the same agency, and I'm wondering whether that -- you know, we have -- we have here an issue where the -- the investigative agencies of the United States and of the U.K. clearly support the image recorders and are probably disappointed that our regulatory agencies haven't been quicker to respond to that. Has that worked any differently in any
countries where they are essentially the same authority? MR. SMART: Well, if you look back just a few
years, all the new member states -- the new 10 member states of the European Union had organizations that were just -- accident investigation was a part of the regulatory authority. If you want to see a model of
how European legislation can change organizations, all those 10 states are now -- have now established independent accident investigation bodies. So that's just within Europe. world, yes, you're absolutely right. Across the
There are very
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
473 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in Europe. many organizations that we have contact with through accident investigations that we assist them with or we are a party to where the investigator -- investigation body is a part of the regulatory authority. And that's
-- that's -- I think if you took the 188 states that are signatories to the Chicago Convention, you'd probably find the majority fall into that category, rather than -- and organizations such as ours are the -- probably the minority. MR. WALLACE: in horsepower. The minority in number but not
I mean, as a practical -Absolutely. -- as a practical matter, as is
MR. SMART:
MR. WALLACE:
the case, for example, with regulation of design standards for transport aircraft, these are really dictated by the countries that build them, essentially. So -- but it seems to me that Europe might present an opportunity where you essentially end up with a major player, one of the absolute two major players in the world scene in aviation having the regulatory agency and the investigative agency being part of the same organization. MR. SMART: No, that -- that will not happen
One of the fundamental principles
established in the directive that was adopted in 1994 EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
474 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and came into force in 1996 was to establish the fundamental principle of independence for the accident investigation bodies across Europe. If -- and it's a
big if -- if the Commission decides to go for a single accident investigation agency alongside the regulator, it will be an independent agency. of the regulator, absolutely not. MR. WALLACE: All right. Then, do you -- let It will not be part
me ask, could you envision a scheme in which the regulations related strictly to accident investigation tools, if we can call these recorders accident investigation tools, if those regulations were -- if the authority for that were given to the accident investigation agency rather than the agency that basically regulates safety of the airlines in the industry? MR. SMART: Yes, I can envisage that. In
fact, that is the model that is there in the individual States today. I mean, in the -- across all the States.
The legislation for the independent accident investigation bodies and the way that they treat the recorders and the tools, as you put it, of our trade, you -- are established by the accident investigation bodies through the government as independent agencies of the government. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
475 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WALLACE: Right. Maybe I wasn't clear.
I'm thinking about the regulatory authority to mandate recorders. MR. SMART: mandating recorders. Oh, you're talking about Yes, I mean, they -- if the -- if
EASA was to mandate image recorders, for instance, I suspect that that will be done on a -- on a basis of following a U.S. lead rather than something that is likely to happen first in Europe. MR. WALLACE: another way. Let me ask the question just
What would you -- the NTSB, and I assume
also the AAIB, are not regulatory agencies in that sense, but -- but what would you think about the notion, if they were given the regulatory authority, that the NTSB for example was not asking -recommending that the FAA issue such a rule, but rather that the NTSB could just issue it itself, or the AAIB? MR. SMART: I doubt if that would be -It's not What
that's not the pattern of the way things go.
the pattern, I know, here in the United States. happens is we -- we make recommendations for legislative change, regulatory change, and the
regulator will make a decision, along with -- usually alongside governments. U.K., certainly. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 That's the way it works in the
476 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Often, when I make a recommendation -- if I was making a recommendation now that the U.K. should mandate image recorders, I would make that case to our Secretary of State for Transportation. That's it. If
my influence is what I would wish it was at that stage, then the regulator would be asked for their opinion. But there will be some -- it's part of the influencing process, if you like. work. It would not be for me to just deal with -directly with the regulator and -- and try and influence them there. I would use more than that in That's the way that this would
terms of my powers of influence in the U.K. That's not -- other jurisdictions that don't have that, if you like, degree of independence as I have in the U.K. where I can influence politicians in a more direct way, perhaps, than perhaps other jurisdictions. MR. WALLACE: Thank you very much, Mr. Smart. All right. Going to the
CHAIRMAN CARMODY:
Board of Inquiry, Mr. Battocchi, do you have any questions? MR. BATTOCCHI: No, thank you. All right. Mr. MacIntosh?
CHAIRMAN CARMODY: MR. MacINTOSH:
No questions.
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
477 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAIRMAN CARMODY: DR. ELLINGSTAD: could, Mr. Smart. With respect to your -- your practice of returning recorders with blank tapes, if you had a solid-state recorder, have you erased the recorders? MR. SMART: Yes -- recording. I know those No? Dr. Ellingstad?
Just one clarification, if I
of you who were listening yesterday will appreciate that erasing does not guarantee that the data is absolutely erased. But on the basis that we can't
reconstitute the data, we would think that was good enough in the circumstances. DR. ELLINGSTAD: Thanks. Mr. Cash.
CHAIRMAN CARMODY: MR. CASH:
I just have one.
What would you propose our direction be with ICAO to try to get -- affect some change? you envision as -MR. SMART: The FLIREC -- I would -- and we What would
are encouraging the FLIREC Panel to meet and pick up their responsibilities from the AIG, which handed the business of image recording to them to make their recommendations. As it stands today, the FLIREC panel, we're waiting for the technical specifications to be EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
478 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 again. completed. They are now completed, and I think the
FLIREC Panel should be in a position to make recommendations about taking the subject of image recording further. So that's the first step.
I am lobbying to get the FLIREC Panel to meet There is always with these panels a financial
issue with ICAO, and that has been pointed out to me, but that won't stop us lobbying to get the panel together. Beyond that, the -- the General Assembly meets in September this year, and there are papers that can be submitted -- are being submitted to reinforce some of the things we've been talking about here. As I
said earlier, the -- separating cockpit voice recorders and treating them as a separate subject can give them, if you like, more importance in that way. The
incremental change that Jim Johnson referred to, getting that back on the table, is important, I think. And the general -- the general push to get this subject discussed, understood, and achieve the consensus that is not always easy to achieve in the ICAO forum, but if it's not discussed, if papers aren't presented, then it doesn't stand any chance at all of achieving that sort of consensus. in sitting on our hands here. So there's no point
We have to get up and
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
479 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3:00. actually present our thoughts, our ideas within the ICAO forum. MR. CASH: Thank you. Thank you.
CHAIRMAN CARMODY:
And I have no questions, but I want to thank Mr. Smart for your testimony once again. It was very
informative, and thank you for taking our questions. So you're excused. MR. SMART: Thank you very much.
(Whereupon, the witness was excused.) CHAIRMAN CARMODY: Why don't we come back at Thank you.
We'll take a half-an-hour break. (Brief recess) REGULATORY ISSUES CHAIRMAN CARMODY: MR. CASH:
Please take your seats.
Yes, we'd like to call David Hempe
from FAA and Tony Fazio from the Federal Aviation Administration. Whereupon, DAVID HEMPE having been first duly sworn, was called as a witness herein and was examined and testified as follows: Whereupon, TONY FAZIO having been first duly sworn, was called as a witness EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
480 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FAA. CHAIRMAN CARMODY: MR. FAZIO: Still not working. -MR. CASH: MR. FAZIO: The button needs to be out. Director of rulemaking for the guess. herein and was examined and testified as follows: MR. CASH: Mr. Hempe, we'll start with you, I
Just state your name for the record and your
place of employment and title and any work experience or educational experience. MR. HEMPE: My name is David Hempe. I work
for the FAA. I'm currently the manager of the Aircraft Engineering Division here at the FAA Headquarters. I've been with the FAA for about 13 years. The last
four, my responsibilities include oversight and approval of certification procedures, as well as technical specifications associated with avionics as well as other areas. So I have a bachelor's of science of Aerospace Engineering. Previous to that, I worked
about six years in industry. MR. CASH: Mr. Fazio? MR. FAZIO: Yes. I'm Tony Fazio, director of Thank you.
Tony Fazio, director of
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
481 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rulemaking. I've been with the FAA 22 years, where
I've held various staff and managerial positions both domestically and abroad. My position currently is director of rulemaking. I've been there five years. My
responsibilities are basically to oversee the general rulemaking process at the FAA. I hold a master's in Public Policy from the University of Maryland and undergraduate degrees in Economics and European Studies from the University of Maryland. MR. CASH: Thank you.
Mr. Hempe is going to be questioned by Ms. McCOMB, and Mr. Fazio by Ms. Bruce. Testimony of David Hempe MS. McCOMB: Thank you.
Mr. Hempe, what is a technical standard order, or a TSO, and how are TSOs developed? MR. HEMPE: Basically, a technical standard
order is the ability for the FAA to come up with a specific standard for materials, processes, parts, where we can promulgate a standard by which an applicant can come in and apply for certification. Once that standard is -- is approved, an applicant, if they get approval or authorization, they can produce EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
482 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that, which becomes an eligibility for being put on an aircraft. MS. McCOMB: And then, how are the TSOs for
cockpit voice recorder and flight data recorder systems developed? MR. HEMPE: I think it's similar to the
discussion we've had the last two days, is traditionally we have entertained and been part of an industry-government process where consensus is built through, say, EUROCAE. And then what we do is we would
take those standards and evaluate them specifically for their capability to be promulgated into a specification. MS. McCOMB: And during that process, how
long did it take to develop the TSOs after the referenced EUROCAE documents were completed? MR. HEMPE: Historically, for ED-55 and ED-
56, which were the CVR and FDR current TSOs, it -- my understanding is it took about three and three and a half years between the time that the final EUROCAE document came out to the time that there was a specification available for industry to pick up and use. MS. McCOMB: In March of this year, the FAA
responded in a letter to the Safety Board regarding the EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
483 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 image recorder recommendations from the Wellstone accident. And in the response, the FAA stated that the
FAA is developing a technical standard order for the image recording portion of ED-112. What is the status of that TSO development? MR. HEMPE: All right. Currently, we're --
we have an internal group that is looking at ED-112, and our goal is to try to promulgate a TSO standard, possibly two TSO standards. I think we're looking for
possibly to revise TSO C-123 to incorporate image recording and other things as stand-alone recorders. It wouldn't necessarily supersede C-123, but it would be a -- an additional aspect of C-123 that somebody could pick up for image recording. We are also possibly looking at taking ED-112 and coming up with a combi recorder that could do data, com, CNS, as well as imaging. MS. McCOMB: 123 applies for CVRs. In that process, you would -You would not see any need to do
anything to 124-A for FDRs? MR. HEMPE: MS. McCOMB: That's correct. Okay. Would an image recorder
TSO resemble the same format as a CVR or FDR TSO? MR. HEMPE: Yes. I mean, traditionally that There may be
is picking up a lot of the standard.
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
484 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 deviations. For example, I think in the current C-123
we had burn rates that were greater than what was called out in the ED-56, I believe. So there --
sometimes there are deviations or there are clarifications where we may get more specific, more prescriptive in the TSO. But generally, we probably
follow the same principle, especially with ED-112, and it was probably good to hear these last two days consensus that a lot of people feel that that would be a smooth transition in moving that into a TSO. MS. McCOMB: Okay. ED-112 defines five Will the TSO
classes of image recorder systems.
address each class of recorder separately, or will there be separate TSOs developed for each class of recorder? MR. HEMPE: I think our goal is to, you know, My
basically stick to ED-112 as much as possible.
understanding is that we will have all five classes called out in that single TSO or those two TSOs. MS. McCOMB: Okay. How many -- in your -- in
this entire process, how many TSOs are currently in development? MR. HEMPE: MS. McCOMB: MR. HEMPE: Oh, including non-recording TSOs? Yes. I'd say at least we have 20, and
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
485 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a lot of the priority has been in the CNS area, especially in performance, nav, and com area, where we're trying to do a lot of work with ICAO, some of the data link stuff where we're trying to make boxes available, some of the TCAS work as well. We have RVSM
activity with TSOs as well, as well as flight information service. So trying to bring weather and
other activities into general aviation and streamline certification approval to help general aviation pilots with weather maps and those kinds of information. MS. McCOMB: And given the work load and the
prioritization, how many TSOs generally do you get out in a given year, say? MR. HEMPE: I want to say two to three. I
think with this one, you know, we are promulgating it as quickly as we can based on the response we gave to the NTSB. I think our goal is to try to get both TSOs
out for public comment by the end of '05, and that's part of the process. It's not necessarily a legal
requirement, but we do almost in all cases put these out for public comment and then disposition those comments. That includes legal review both for the
dispositioning of comments as well as before we put it out to the "Federal Register." MS. McCOMB: Is there anything in the process
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
486 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 that -- in your prioritization system that necessarily expedites the TSO process? MR. HEMPE: I think the thing that mainly
expedites it is the idea that if our internal review -we feel like there's enough prescriptive information in the spec to move forward, that really helps. I think I
the other thing is just hearing about consensus. think the more consensus we get in terms of, for
example, comments that we get after we put out the NPRM, that can have a make-or-break effect on how fast you get the TSO out. So for example, if we put it out in September and comments are very light in terms of understanding the requirements and additional stuff that we put in the specification, you're talking about maybe a two- or three-month turnaround. So by early spring we could
have something actually put out as a final document. If comments were severe, as we have had in previous TSOs, it could delay it for up to a year, and sometimes that might even mean going back to the drawing board with industry to understand their comments. MS. McCOMB: MR. HEMPE: Okay. So there is some variability
487 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 down. MS. McCOMB: That concludes my questions. Go ahead, Mr. Grossi.
CHAIRMAN CARMODY: MR. GROSSI:
I just have one question.
Would the introduction of a new type aircraft, say the 7E7, would that have an impact on expediting the TSO process so that it would be available for that particular aircraft? MR. HEMPE: Not necessarily. I -- you know,
I'm not totally familiar with what the 7E7 is doing right now. I know they're looking, obviously, at state
of art and they probably have CVRs and FDRs that can capture thousands of parameters, so. But -- but it doesn't necessarily slow it TSO is a way, especially for the manufacturers,
to streamline certification and get their products out the door. But if you don't have that, we -- we still
have processes internally where we can work through issue papers. We can basically have an issue paper
that says if you meet these aspects of ED-112, then we can streamline that through new certification without necessarily having the TSO in front of us. That manufacturer would then be a supplier to the type certificate holder, versus a stand-alone TSO supplier. MR. GROSSI: Okay. Thank you. That's all I
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
488 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1997. have. CHAIRMAN CARMODY: I understand there may be
some questions from the Technical Panel for Mr. Fazio, and I would ask that you -MR. GROSSI: Oh, I'm sorry. That's fine. I think it's
CHAIRMAN CARMODY:
easier to finish with the FAA witnesses, and then we'll go around. MR. GROSSI: All right. Go ahead, please.
CHAIRMAN CARMODY:
Testimony of Tony Fazio MR. GROSSI: All right. Mr. Fazio, we'll now
turn to the rulemaking process. When was the last flight recorder rules -when were they issued? MR. FAZIO: The last recorder rules were in
There have been amendments -- some technical
amendments, that sort of thing. MR. GROSSI: Right. What are the -- what are I
the major milestones for the rulemaking process? believe we have a slide that -MR. FAZIO: Sure.
If you'll put up Exhibit
20, I'll walk you through the various steps that we use. The primary step is, first, is there a need EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
489 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for the rulemaking and where does it come from. When
we look at the rulemaking process, clearly the number one driver of FAA rules are legislatively mandated. estimate about 30 percent of our rules come directly from Congress, either to issue an NPRM or a final rule. To go to the pecking order, NTSB recommendations are a high driver of our rules. Also, We
harmonization, new technologies, that sort of thing, they would be the drivers. Once we decide -- clearly, with legislative requirements we have no decision. law. We do it. It's by
NTSB recommendation or new technology; the They will put
program office will drive that decision.
together a statement as to the need for the rule and why we need to proceed with that rule. We have -- because there are so many demands on a limited number of resources that we have in the FAA, we have a rulemaking council which then makes a determination as to whether we should proceed and provide resources to that particular rule or proposal. Then the rule -- once we make that decision, the rule is drafted in-house. And I should probably
also say that there are numerous substeps to each of these. As you can imagine, the rulemaking process is
very laborious, as you might say. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
490 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Drafting the rule occurs within the FAA. We
bring a team together of economists, program technical experts, legal staff, and technical writers. draft the rule. Once that rule is essentially finished within the FAA or receives administrator approval, then if it is a significant rule, that rule has to be coordinated through the department, the office of the Secretary of the Department of Transportation, and then ultimately OMB. The rule goes out for comment. The comment They'll
period can last as short as 30 days, as long as, in some cases, six months. days, three months. Once that comment period closes, then we have to make a decision, do we go to a final rule. And a Our average is roughly 90
lot of deliberation occurs within the FAA to decide whether indeed we will go. A lot of that will be based
on the comments received from the public. And then, essentially at that point, the process repeats itself again. MR. GROSSI: Okay. As -- one of the
possibilities in the rulemaking process is an ARAC committee. Do you -- what are the possibilities of, as
you understand the rulemaking, or the issues today on EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
491 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about. underway. MR. GROSSI: Going back to the first step image recorders that there may be an ARAC formed? MR. FAZIO: I am unaware of any advisory
committee that's been contemplated for recorders or video enhancements. We have two -- just for the We
record, we have two possibilities within the FAA.
have the ARAC, as you mentioned, which is under the Federal Advisory Committee, but we also have special legislative authority to assemble a group of experts outside the Federal Aviation -- Federal Advisory Committee Act, which gives us a lot more flexibility. But right now, we have no -- no committee
there in the initial FAA decision made for rulemaking, who -- what individuals or what bodies within the FAA actually inform that decision or make that decision? MR. FAZIO: It depends what we're talking
In the case of recorders, that would be within
the associate administrator for regulation and certification. Decisions would be made using input
from the Aircraft Certification and the Flight Standards Organization, and I imagine in the case of the recorders, that would go all the way up to the administrator. MR. GROSSI: How does the -- how would the
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
492 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prioritization of the rulemaking -- could you amplify on that a little bit? there? MR. FAZIO: Well, basically, it's on the What factors come into play
driver, what's the requirement to get the rule out. Number one priority would be, clearly, the legislative mandates. Those rules would get first priority. But we, on average, are working on 45 to 50 high-priority rules at any one given time. A priority
for us is those that have received resources, legal, technical, economic, and writing. made to go, we go with it. MR. GROSSI: I guess, then, the follow-on So once a decision's
question to that, who decides on the allocation of those resources? Where is that decision made? As I said, the decision will be
MR. FAZIO:
made -- each program office has to develop what's called a rulemaking project record, which delineates why they need the rule they need. If it's an NTSB The decision will We'll
recommendation, that will be stated.
be made, yes, we're ready to go with rulemaking. assign the resources at that point. MR. GROSSI:
In this -- in the image recorder
area, what specific rules do you anticipate would be affected? The 121 -EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
493 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FAZIO: MR. GROSSI: MR. FAZIO: Oh, I see. What parts -Sorry. Yeah.
What parts. Okay.
I think historically we
have -- clearly, Part 23, 21, 121, the operating rules, and 135, most likely. That's traditionally been the
way we've implemented recorder rules. MR. GROSSI: This is a new recorder type, an
image recorder, which is new and never been around before. Would you anticipate Part 23 and Part 25 would
be affected also? MR. FAZIO: I think that's -- a lot depends.
There's various -- if you're going to apply it simply to new designs, then it would apply to the certification rules. If it's going to be a retrofit So I
rule, it would apply to the operating rules.
can't tell you, you know, which direction we would take at this point. MR. GROSSI: As you understand it, there are
NTSB recommendations on state of the art in image recorders. Do you -- can you anticipate any -- any
road blocks in the rulemaking effort? MR. FAZIO: Road blocks per se, I mean, every
rule that we promulgate has to go through a rigorous analysis, regulatory analysis, both economics and other requirements that are imposed on us by OMB and the EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
494 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Department of Transportation. So clearly, we would have to be concerned about cost and what kind of benefits we would receive by implementing that rule. MR. GROSSI: Okay. Are there any flight
recorder rulemaking efforts currently underway? MR. FAZIO: We have two underway currently, First are
both as a result of NTSB recommendations.
enhancements to our 737 recorder rules, specifically addressing 737 aircraft, and then we also have another -- an NPRM. That would be a final rule that has We received comments and
already gone out for comment. revised that.
And the -- the second rule is -- again, addresses comments or recommendations that we received from NTSB requiring improvements to the recorder rules. I should just say, both are at the Department of Transportation for executive review. MR. GROSSI: Okay. What would be the -- the
impact, say, on the -- on the movement of those rules if -- if the decision were made to incorporate the image recorder into that rulemaking process? MR. FAZIO: putting these -MR. GROSSI: Yes. Are you saying would we consider
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495 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FAZIO: these rules? MR. GROSSI: MR. FAZIO: Right. I would highly recommend against -- your recommendations into
doing that because that would just slow down the process and wouldn't permit us to get the value of the rules that we currently have underway. MR. GROSSI: follow-up questions. All right. Just a couple more
How will the proceedings of this
hearing be used in -- in defining the -- making the initial decision for rulemaking or defining the prioritization of any subsequent rulemaking? MR. FAZIO: I would see it as another data I'm sure the technical experts
point for the decision.
would look at some of the testimony and possibly use that. MR. GROSSI: I'll offer the same question Would
that I gave to Mr. Hempe in relation to the 7E7.
you anticipate that the rulemaking could be expedited to accommodate a new aircraft type certification like the 7E7? Is that possible? MR. FAZIO: the certification. I don't know where they are in But I
I don't follow that closely.
can tell you, on average, it takes us anywhere from three to five years to get a final rule out. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 So I
496 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 other. don't know where we are with the certification, so I think I would be hard-pressed. MR. GROSSI: Okay. You mentioned earlier the
harmonization with ICAO and JAA and the new organization, EASA. How -- how much importance is Does that
actually placed on that harmonization? outweigh, say, an NTSB recommendation? MR. FAZIO:
I don't think one outweighs the
I think a lot of it depends on available The harmonization rules tend to
resources at the time.
be not significant for the most part, so they're easier to get done, because there tends to be a consensus involved there. Most of the changes have been
discussed in the ARAC process, so we have both government and industry participating collaboratively. So it makes getting those rules out much easier for us. MR. GROSSI: I have on that. Okay. That's my final question
I'll turn it over to Deborah Bruce,
who will follow up with some cost benefit questions. MR. FAZIO: DR. BRUCE: Okay. I realize that the benefit cost Do you
study work is one component of rulemaking. always have to do it? MR. FAZIO:
We have to do it for any
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497 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have. significant rule, yes. DR. BRUCE: And it's fair to say that an
image recorder would fall into that category? MR. FAZIO: DR. BRUCE: Yes, it would. Some of this I realize I'm
wanting to know some particulars about the benefit cost process for an image recorder, a process that you're not in yet, so I don't want you to feel like I'm -MR. FAZIO: DR. BRUCE: Okay. -- picking at details you don't
But just to sort of put some framework around
how that might go is my goal. We do have five classes of -- of image recorders in ED-112. Would you see that the benefit
cost structure might evaluate those differently? MR. FAZIO: I think as part of the rulemaking
process, assuming we're going to go to a rulemaking, we would look at various alternatives. So if it were
possible to adopt two of the three or two of the five or that sort of thing, we would cost out various elements of those recommendations. DR. BRUCE: MR. FAZIO: So -- I'm sorry. Because we are required to look
at alternatives, so that would be one possibility. DR. BRUCE: And that requirement is from the
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498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 executive order that sort of guides you through the benefit cost process? MR. FAZIO: That's correct. OMB has very,
very specific requirements that we have to follow, the primary one being that there has to be a reasoned determination that the benefits outweigh the costs. DR. BRUCE: What other internal documents --
we've just been referring to EO 12866 and I think there's another more recent one that tweaked it a little bit. But what other internal FAA documents
provide you guidance on benefit cost work? MR. FAZIO: Our Office of Policy and Planning
has specific guidelines for the economist to follow. Also, the department has some requirements that we have to follow administratively, legally. My office -- my We
office tends to have all the technical writers.
have very specific processes that we have to follow for getting the rule out. DR. BRUCE: Given this sort of three- to
five-year process of rulemaking, can you map out to me where the benefit cost work fits in along that timeline? MR. FAZIO: Is your question where -- when
would we receive the benefits -DR. BRUCE: When do you start and when do you
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499 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work. finish, yeah. MR. FAZIO: Okay. When we initiate drafting
of the NPRM, in most cases the team will come up with the best scenario and they'll determine when the implementation date would be. And then the cost would
then -- and the benefits would then be associated with that -- that time frame. So, for example, if the rule were to be published in 2005 but not go into effect until 2008, the analysis would then start from 2005 onward, usually for about a 10-year, 12-year period. DR. BRUCE: And the work that your office and
APO is putting into developing the benefit cost analysis, when does that start? MR. FAZIO: from conception. They are part of the team right We find that
We use a team concept.
that tends to work a little better, by having everyone involved, including legal resource. can deliberate. That way, everyone
That creates other issues for us, of
course, team dynamics, but we find that that works, especially for a very difficult rule. DR. BRUCE: I want to go back into APO's
There is an Aviation Rulemaking Cost Committee
associated with that office, and they've developed a fairly recent report. It's a March '04 report called
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500 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Economic Values for FAA Investment and Regulatory Decisions. And in that, there's a whole chapter devoted to aviation accident investigation costs. Those are --
not to put you on the spot to characterize that chapter, but they're fairly specific -- they're fairly narrow cost parameters: lives saved from accidents and
some attempt to estimate the broader investigative costs for government and public agencies and public industries that are involved in the investigations. Would you see that the benefit cost work on image recorders could be captured -- the benefit side of that could be captured with those two aspects of benefits? MR. FAZIO: They would be -- I don't know how
far that advisory committee actually went into discussing benefits. I think their primary mission was
to look at the costs and come up with specific values and that sort of thing. that would affect that. DR. BRUCE: Do you think it's harder to So I really don't know how
capture the costs or the benefits? MR. FAZIO: up with the benefits. DR. BRUCE: I agree. It's clearly much harder to come
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501 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Historically, the benefits for flight recorders have not been limited to valuation of lives saved, which is one of the two elements of that chapter. For example, the preamble to the '97 rule for
digital flight data recorders discusses, and I'm quoting, "Inherent nonmeasurable benefits that evolved from increasing the volume of detailed accident and incident information from which the aviation industry as a whole can draw upon." It also states that the FAA is not able to quantify precisely the likely benefits that ultimately -- a more global valuation of benefits would be used for image recorders? MR. FAZIO: Well, I don't know about image
recorders, but I think in general we are moving towards attempting to assess the benefits of our actions. One
of the -- you mentioned 12866, the executive order. The executive order that was published earlier this year, A4, talks about looking at various alternatives and then doing a rank order. So we're now given a
little bit more flexibility as to, if adopting a particular rule would eliminate a specific accident in the future, we could take a broad range of estimates of EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
502 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 statement. benefits. what that would be. So I think we have a little bit more flexibility in doing that. DR. BRUCE: One other point along the line of
We spoke yesterday about completing I
accidents by developing probable cause statements. think, from the Board's point of view, there's a
recognition that those can be sometimes more precise than others. And the more information that we have
from an accident investigation, the more we have a likelihood of making precise probable cause statements that lead into precise recommendations that lead into more directly affecting the safety benefits we want both for our purposes and yours. I'm sort of headed toward a question of asking, is there any way to value that capability of making more precise probable causes? MR. FAZIO: What we do now is we'll make a
If the information received by adopting a
recorder rule, for example, would prevent a future accident, then we'll quantify that future accident. It's a big if statement. I think that one of the problems we have with recorders is it doesn't solve the first accident, it solves the second accident. But we can make that
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
503 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 statement, and we have made that statement for the two rules that I referred to earlier. The other thing we can do is precisely what was done with the '97 rule. We can discuss in non-
quantitative ways the benefits of these rules both to the government and to the public. DR. BRUCE: And my last sort of benefits
question, it's typical that you do add in some benefit measure of the value of shorter investigations. I
think those are actually contained in the -- the guide developed by APO. Do you agree? I'm not familiar with that, but
MR. FAZIO:
clearly, yes, we could -- after the events we've gone through the last several years with accidents, we know that the sooner we get out the word of the probable cause, the better for all of us. DR. BRUCE: I, like you, focused my questions
on the benefit side, but I'll try a couple of cost questions. You had expected the -- you have to develop alternatives, but within alternatives you would develop some sort of recognition of the different levels of image recorders or the different levels of operators? MR. FAZIO: I'm not sure what you mean by
different levels of recorders, but different levels of EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
504 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 operators, yes. We'd have to assess -- under the
executive order and, actually, the Regulatory Flexibility Act, we'd have to assess the impacts to small business. So if we were to apply this rule to,
say, 135 operators, there's a number of small business operators there, and we would have to clearly look at many different alternatives for those operators. DR. BRUCE: Under the Regulatory Flexibility
Act, there's a term called significant economic impact. Is that defined? How do you determine that? It is defined. Unfortunately, I I can get
MR. FAZIO:
can't tell you that off the top of my head. back to you.
But there is -- it has to be a certain
percentage of the number of businesses in that category. DR. BRUCE: I see. So there is a specific
definition applied to that? MR. FAZIO: DR. BRUCE: Yes, there is. In the '97 rule, the small
business entity that was addressed by that rule, which would be the air taxi operators, the final rule used a cost of $4,900 in '95 then year dollars as what the cost would be to air taxi operators. Is a number like
that of any use to you as you head into a new rulemaking process? EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
505 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FAZIO: Probably not. I mean, it's a I
different technology that we're talking about here. don't know. I wasn't here yesterday when the costs
were discussed. So what our economists would do is, they would look at the cost of the actual equipment, down time associated with installing that aircraft, loss of revenues. Those are some of the values that this
advisory committee referred to earlier are coming up for us. DR. BRUCE: The details of both the benefit
measures and the cost measures, are any of that contained in the rulemaking project record? I mean,
how does that get from the technical staff to the rulemaking council for policy decisions, timing decisions, and then into the rulemaking products? MR. FAZIO: In an ideal situation, the
program office would be working with the economists as part of what we call the rulemaking project record, and defining probably as specifically as they can without physically actually putting the document together, the regulatory impact analysis, coming up with a fairly good estimate as to cost. That way, the -- the policymaker can see that and say, okay, do we want to go forward with these EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
506 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 costs or these benefits associated with those costs. So that helps make the decision-makers' decision much easier. DR. BRUCE: concludes me. CHAIRMAN CARMODY: Thank you. Madam Chairman, thank you. That
Any more questions from the Technical Panel? (No response) CHAIRMAN CARMODY: We'll move to the parties,
then, and we'll start here and end up with the FAA last, since they're your witnesses. Ms. Rosser, any questions for the panel? MS. ROSSER: Yes, thank you.
Starting with Mr. Hempe, one of the issues that's come up particularly with regard to the 135 and Part 91 fleet of aircraft and historical installations of recording devices where they are required today, when the FDR requirements came out, there was a great deal of difficulty in some aircraft finding room to install the device. Are you looking at issues such as that as you move forward, especially in light of the fact that we are dealing with smaller and smaller aircraft and size is a major issue? MR. HEMPE: I think that's a good point. We
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
507 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 haven't to date necessarily specifically focused on different models and how to attack that. One of the things we have done, though, is -and we kind of learned this lessons with hardened doors -- was, you know, if we know there's like a handful of STCers that are mainly in this business, is to try to help streamline them in terms of a certification procedure so that they can come up with, say, a model working list. So that they can just work with us in
terms of what would be the differences, for example, in a Piper versus a Cessna versus a De Havilland. And
then we try to streamline instruction -- installation instructions, working with those three different groups of airplanes. So we have tried to do internal things, but externally, with imaging recording and even some of the rules that Tony talked about that are in deliberation today, we have not necessarily focused in that area. MS. ROSSER: Would you say that -- you
mentioned how a Piper would be different from a Cessna -- that in the general aviation, 91, 135 fleet, there is such a high degree of customization and some of the aircraft are getting so much older, that there could even be difficulties not between Piper and Cessna but between Cessna and Cessna? EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
508 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HEMPE: Absolutely. It's aircraft to
aircraft, especially in general aviation, and you know, that -- that does affect the cost, at least from an aspect of some of the other areas that we've looked at, not necessarily recorders but TCAS, GPS, and other areas. So sometimes, for example in the GPS area, we try to work with manufacturers to try to create templates of how they can approach installation and try to streamline and standardize on, you know, with avionics bay racks and where acceptable installations would be achievable without going through the full STC program. But we haven't necessarily focused that with
recorders today. MS. ROSSER: We've had some comparisons drawn
between the installations of CVRs, installations of FDRs, and how long those processes may have taken. And
our information shows that a lot of those installations in 135 aircraft were completed with the field approval process, 337s. And that is a process that for various
reasons is being utilized less and less and going more toward the STC process. Would you say that the STC process -- if you had to do a customized installation, the templates didn't work for you -- is a more expensive or lengthy EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
509 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 process than having in the past been able to do something with 337? MR. HEMPE: That has always been a very
blurry point in terms of what can you do under that process versus STC. But really, what you're talking
about is, are you actually doing a major change in type design. And I think for the initial installations we
would probably leverage the idea that you would have to go through the supplemental type certification program. Part of that has to do with, you know, it's not just about the TSO box but about installation as well, interference, structural mounting, EMI, setting up a maintenance program. Part of, I think, the effort
would have to be in terms of actually modifying the maintenance AC around how do you maintain these recorders based on some of the ED-112 instructions. So it -- there needs to be a very comprehensive approach to, actually, the approval from a rulemaking point of view, not just the TSO box. And
I think that's kind of the holistic stuff that we're still talking about internally. MS. ROSSER: We've heard quite a bit on
costs, and there was some concern expressed yesterday in the questioning that the cost that we were hearing, 3- to 5- in one case, 10,000 in another, was the -EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
510 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here's a box. Not even necessarily a box with a
camera, but here's the box and here's -- this is how much you have to pay to get it off the table. Is it your experience that those costs can rise dramatically when installation kits are required, the wiring harnesses, and then also factoring in the aircraft down time that is necessary and the installation cost itself? MR. HEMPE: I personally believe so, and I -But I think
you know, I'll defer that to Tony, maybe.
in -- in the -- in some of the rules that we have now with the 737 and the flight data improvements rule -you know, what we basically do in our team environment that Tony talked about was, the APO person, the economist, works very closely with industry. So, you
know, they have repair station contacts, STC contact people, industry contact people. And so they try to
itemize the costs from all those vantage points. So I think, you know, from that vantage point, our experience says that it certainly is more than just the box itself. MS. ROSSER: And just one final question. If
an STC were to be necessary and it was something that was not a repair station, say, getting an STC for an installation over a broad range of a particular EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
511 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 aircraft, and the operator themselves or the owner of the aircraft had to get their own STC, can you give any kind of an estimate on the length of time for that type of a process, and also just an average or a range of costs to obtain an STC? MR. HEMPE: Yeah, I really don't have any My personal
numbers on -- on that either way.
experience has been with the field offices that most of the time issues have been driven by, really, the applicant. We have a very good internal working in
terms of certification program plans that we lay out with applicants in terms of timelines. Usually, the
timelines are driven by the applicant and we can support those. We've looked at that, for example, with
the reduced vertical separation minimums that we're dealing with, which is going to be installed in quite a bit of airplanes. So we don't have specific timelines or guidelines. You know, it could be two months or it
could be a year, depending on what kind of technical capability they have, whether they're working under an organizational delegation or they're hiring DERs off the street that, you know, may have to come up to speed on the issue. So it could vary across the board, and I EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
512 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think that's one of the things our economists do do. They talk to some of the people from an organizational point of view that do this business, get their cost, but then average that or normalize that to, you know, an individual comes in and applies and doesn't necessarily have the same capability. MS. ROSSER: Thank you, Mr. Hempe.
Mr. Fazio, one of the issues we have, and I know you have faced this as an agency, is a substantial lack of data specifically related to Part 135 and Part 91 aircraft. And, is it among the benefits when your
analysis comes to the point of examining alternatives -- does the FAA consider the benefit of pursuing rulemaking separately in the type of an instance. For
example, in 121 rulemaking, you had some clear benefits and alternatives and it supported installation of recorders in 121. Part 135 could impede the progress
there, and Part 91, as you mentioned, you had some ongoing rulemakings, and adding image recording to that would delay those rules and delay the benefits of those rules. Would that be something the FAA would consider, either a change in the type of equipment required or a different compliance schedule or different standards for retrofits versus new EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
513 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 installations, that type of thing? MR. FAZIO: Yes, we have experience in both
directions, where we have not applied certain provisions of rules to smaller operators, for example, or we've discussed it, we've seen them, and we've gone ahead and done it anyway. So, yes, we -- that's part
of our alternative analysis that we do. MS. ROSSER: In the case of '99 operations
and 135 operations with -- not specific to turbine aircraft, necessarily, but there are roughly 2800 135 certificate holders out there currently. We're looking
at a population of 18,000 aircraft, and the FAA is aware that the majority of those aircraft operations are by small businesses. Does the FAA -- while it's easy to identify 135 small businesses, how does the FAA, or does the FAA, attempt to identify small businesses that are not aviation businesses but are aircraft owners and operators under Part 91 who use the aircraft in the furtherance of their business, and does the FAA include those types of businesses in their small business analysis? MR. FAZIO: We try to. Whether the analysis
is going to be as accurate we like remains to be seen. That's where we'll go out and specifically request EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
514 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 comments on those particular operators and hope that we get the information that we need. MS. ROSSER: Can you give us a little more
information on what some of the obstacles are for the FAA in identifying costs in the 135 industry and in 91 as well? MR. FAZIO: MS. ROSSER: Costs associated with just 135? In doing a rulemaking such as
identifying what the actual cost to the operators would be. MR. FAZIO: Well, I think some of the issues Can you
you raised with Dave earlier, you know.
physically place the equipment in the aircraft, for example; what kind of down time would you have associated with doing that. There are a number of
things we look at, and we like to think we do a very thorough job. That remains to be seen, once we issue
the rule and we get a number of comments. But then, the beauty of the U.S. system in particular is that you do afford the public the opportunity to comment, and if we've gotten it wrong, we will then reassess our decision and make any changes necessary for a final rule if we go to a final rule. MS. ROSSER: When you're analyzing benefits,
is there emphasis placed on certain benefits over EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
515 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 questions. others? More specifically, if there is a direct
benefit to the operator versus an indirect benefit, is more weight given to one versus the other? And just to give you an example, in the case of the image recorders, an operator could see a direct benefit of those recorders if they were permitted to use that to observe their crews and evaluate them and ensure they're complying with standard operating procedures. However, it would be a likely result of
any such rulemaking that the pilot representative groups would oppose such use, leaving it hard to identify a direct benefit to the aircraft owner or operator. Are those types of issues considered? they weighted, or all benefits equal merit? MR. FAZIO: They're all equal in the On the quantitative Are
deliberation side of the house.
side, clearly, the number of accidents you can save or avoid clearly provides you the greatest benefit. I don't know if I answered your question. MS. ROSSER: That's fine. No further
Thank you both. CHAIRMAN CARMODY: Air Transport Association.
Mr. Barimo, any questions for the witnesses? MR. BARIMO: Yes, actually, one.
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
516 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 First of all, accidents are -- are very few and far between with specifically large aircraft. That's a testament to a lot of you here today. Tony, specifically for you, you mentioned that imaging recorders would not prevent the next accident but the following one. And then, just a few
minutes ago, we -- we heard you say that that is really the biggest benefit in your analysis. So, for imaging, is -- is it really the next accident or is it the next accident where we couldn't have solved it using FDR or CVR technology? And that
it's really not the next one, it may be the tenth one or the twentieth one, and how do you -- how do you make that determination? MR. FAZIO: that determination. I don't think we actually make We just say if an accident can be
saved or avoided by the use of this equipment, whatever it is, whether it's recorder or something else, then the benefit of that would be. It becomes, as you know, very -- when you don't have the number of accidents, we don't have statistical analysis to tell you what the risk is going to be. We try to use risk analysis wherever we can.
That becomes a little bit more difficult with recorders. But when we have a specific safety EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
517 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 analysis, we can use risk analysis to help us in that. MR. BARIMO: Thank you. That's all.
MR. LOTTERER:
Thank you.
I think I'll start with Mr. Fazio first on cost benefit analysis. We had some comments from --
from Dr. Bruce on trying to quantify in terms of the benefit, and there were -- there were comments in various rulemaking activities, in particular the latest flight data recorder rule, in terms of you cannot quantify. But don't you -- for significant rulemaking, don't you have to quantify at least some of the benefits in dollars and cents under the -- under the Administrative Procedures Act? MR. FAZIO: 12866, yes, we do. Well, under the Executive Order
We try wherever we can to quantify
benefits of any of our actions, but I think the point I was suggesting is that, in those cases, we can also refer to non-quantifiable benefits, and we have done that in a number of our rules. MR. LOTTERER: Okay. So that, the non-
quantifiable benefits would certainly be applicable in terms of describing additional benefits that cannot be -- but that you do have to at least quantify one of the benefits in the benefits analysis. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
518 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We within the, let's say, industry has often criticized the FAA in what we call double count. That
is, creating rules that refer to the same accidents and in effect counting them twice or more times. The particular rules that have been cited in our discussions here in the last two days, they would, for the benefit of this -- when you develop the benefit analysis portion of a rule that would -- that would accomplish the NTSB recommendations, particularly for aircraft that have flight data recorders, we have a situation where we do have this so-called double count. That is, in the earliest flight data recorder -- the latest one, which really was implemented about the year 2000, the analysis was based upon avoiding an accident within the next 20 years, a 1.4 accident within the next 20 years. And also, as I said in examples, particularly like in the Swissair case, where we -- we had -- well, of course, the insulation blankets. There are just, of
course, numerous ADs on that, as well as a 121 rulemaking activity on that -- that particular thing. So we have examples of where -- where we use in terms of I say criticize the FAA analysis on cost benefit analysis. frequently. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 We use this double count issue
519 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 criticism. Do you think that we are justified in using that criticism of your process? MR. FAZIO: I'll just say we're aware of your
It's been brought to our attention from the But I think we've been successful -So I
reviewers at OMB.
we're very conscious of not double counting.
think we've been fairly successful with not doing that. I know we have differences of opinion with the industry at times, but it's something we're aware of and we pay particular attention to. MR. LOTTERER: Well, you know, in -- we --
for two days, we've been discussing the value of video recorders. I mean, I am to admit that there is
certainly value of adding additional information, but I see the real difficulty in what it is we're trying to do here in terms of, can it be cost justified. And this particular rule that was in '97 and implemented about 2000, it referred to the flight data recorder having additional benefits to the operator in terms of FOQA. latest rule. But in this particular activity, I mean, we've heard a lot of testimony with respect to the airlines' use of visual recorders. And while -- while That clearly was a benefit with the
we've had testimony describing the benefits of EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
520 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. training, clearly there is -- there is not going to be any airline use of the video recorders for, quote, "training purposes" or analysis of behavior of pilots and so forth within the airline industry. And I -- I
don't think that any airline would care to go that route. So in terms of the benefits, what -- if -what benefits do you see can be quantified if -- if you're going to pay observance to this double count issue with respect to video recorders? MR. FAZIO: I don't know how I can answer
It's hard for me to speculate without looking at So I'd rather not
what proposal we're looking at. comment on that. MR. LOTTERER: then, just to Mr. Hempe. Okay.
Let me address some,
We've -- we've had discussion yesterday with respect to video recorders, and the particular document that has been worked up by this group clearly makes the statement that they should not be used as a substitute for flight data recorders and video and audio recorders. If -- do you agree with that assessment? MR. HEMPE: I mean, I think from an FAA point
of view, that's still a deliberative thing that we're EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
521 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 having discussions internally with based on NTSB recommendations. So, you know, to me, that's more of a
statement in ED-112 than it is a performance requirement, and it's a judgmental thing. So I don't
think, really, there's an agency position or I have a position on that. MR. LOTTERER: Okay. In terms of -- we've
also had a lot of discussion on human performance versus the replication of the instrument panel. I
think the reference to the video recorder acting as a substitute for the instrument panel was -- clearly would have more subjective data in the view of an instrument panel versus the actual data taken from an instrument panel, as the flight data recorders now provide. Has -- has there been any assessment in your analysis thus far in terms of, should the value of these particular video recorders, should they be -should they be directed toward trying to improve safety in human performance or should they be used as a, let's say, another alternative to providing information that the flight data recorder now provides? MR. HEMPE: Again, I think that's a I So
deliberative discussion that has to take place.
think we've heard several different views on that. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
522 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 questions. CHAIRMAN CARMODY: Thank you. it's interesting because ED-112 talks about the performance of what's required to be recorded, but you know, it is -- it is an interesting discussion to say how far do you go. Are you focusing on the human
aspects of -- of -- for imaging, or are you focusing on the parametrics, where you don't have an FDR. And to me, that all gets into the more specifics of what do -- what are we really looking for, especially for those 18,000 airplanes out there that don't have anything today. to focus on. Quite frankly, that might drive the number of cameras, which might drive the size of the recorder, the cost of the recorder, and I think that kind of gets into what Tony was talking about in terms of alternatives, looking at alternatives based on what is really needed for those aircraft that don't have anything today if there is a given direction to go mandate something. MR. LOTTERER: Okay. Thank you. No further What part of it do you want
Allied Pilots Association, Mr. David? MR. DAVID: Thank you, ma'am. In developing
Mr. Hempe, I have a question.
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
523 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the cockpit image recording TSO, would that TSO specify the field of view, specifically stipulations including -- excluding the crew's head and shoulders? MR. HEMPE: I don't think so. I don't think
it would necessarily get into that.
I think it -- it
-- I think if we had a rule, I think the rule might get into those specifics, but I'm not sure whether the TSO itself would. I think the TSO would drive whatever The
your camera requirements are based on the classes.
recorder would have to be built -- be able to be built to them. But whether that's actually focusing on the
pilot or not focusing on the pilot and where those requirements come from, I think, is a separate issue. MR. DAVID: Thank you, sir.
Mr. Fazio, do you envision that being in the rule specifically? Can you say? I've not heard anything to that But I agree with Dave.
MR. FAZIO:
regard, so it'd be hard to say.
Something like that would have to be in the rule. MR. DAVID: MR. FAZIO: don't know. MR. DAVID: We obviously wouldn't want it. I see. Whether you'd want it or not, I
If a rule does come out, Mr. Fazio, do you think that, if U.S. aircraft are required to have a EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
524 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cockpit image recorder, would that require foreign aircraft flying onto U.S. soil to have an image recorder also? MR. FAZIO: If it -- only -- it would
probably only apply to 129 U.S. registered aircraft. That's -- that's probably the only way. We would -- in
this case I'm sure, because of the costs associated with it, we would work with our European allies and EASA to see if they would want to harmonize or not. MR. DAVID: MR. FAZIO: all of our rules. MR. DAVID: Sure. Are you familiar, sir, Yes, sir. We try to do that with virtually
with the FOQA rule on cost benefit analysis? MR. FAZIO: I don't believe there was a full-
scale cost benefit analysis with that, if I recall. That was legislatively mandated and it's a voluntary program, so I don't believe there was what we would consider a full-scale cost benefit analysis. MR. DAVID: Okay. Thank you. Captain Fenwick with ALPA. Mr. Hempe, with respect to
CHAIRMAN CARMODY: CAPTAIN FENWICK:
the TSO on image recorders which the FAA is currently developing, is it typical that a TSO is initiated prior to any actual rulemaking requiring the installation of EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
525 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Fazio. When the administration considers the Board's image recorder recommendations, will you be viewing these proposals in isolation or will they be evaluated with respect to other safety equipment or programs which the FAA could feasibly mandate? And I think of a given device? MR. HEMPE: Many times we have done that, and So that's --
it's put out there for voluntary use. that's typical. That can happen, yes. Thank you.
CAPTAIN FENWICK:
And a couple of rulemaking questions for Mr.
TCAS, ground prox devices, FOQA programs, and so on. MR. FAZIO: There would be that element, yes,
but probably more importantly, we would evaluate that proposal with other rulemakings that we have in place, because we would want to be, you know, concerned about the total impacts to the industry and the public. CAPTAIN FENWICK: Thank you.
And in terms of quantification of potential benefits, is it your understanding that the CAST process has already quantified the number of accidents that some of these other safety devices could prevent? MR. FAZIO: I'm not personally involved in
the CAST, but I understand that's something that they EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
526 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recorder. Inquiry. are looking at, yes. CAPTAIN FENWICK: CHAIRMAN CARMODY: the FAA, Mr. Wallace? MR. WALLACE: No questions. No questions. Thank you. All right. And finally,
CHAIRMAN CARMODY: All right.
We'll move to the Board of
I'll start with Dr. Ellingstad. DR. ELLINGSTAD: Thank you. I have a number
of questions here, first for Mr. Hempe. Let me, first of all, try to understand the two TSOs that are in works now that you intend to get out for comment by the end of 2005. Am I correct in
recalling from my notes here, one was a revision of C123A, the CVR -MR. HEMPE: Yes, that's correct. -- rule?
DR. ELLINGSTAD: Okay.
And the other was combi recorders? It would be a combination So it would have a
MR. HEMPE:
That would be a new TSO.
new TSO number. DR. ELLINGSTAD: Okay. Is -- does that
particular TSO development also involve the recorder independent power supply, or RIPS, or is that a separate thing? I had --
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
527 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HEMPE: Yeah, I --- heard the other day that
DR. ELLINGSTAD:
there was action with respect to a RIPS TSO. MR. HEMPE: I believe there is. I -- I'd
have to take that, but I believe there is a RIPS TSO activity, and I think that's probably one of the deviations from ED-112, is that we would -- instead of that being part of the recorder itself, that would be a separate TSO and a separate approval. DR. ELLINGSTAD: Okay. And then, in each of
these cases, am I correct in assuming that there is -essentially, the construct of the TSO would in large part be a reference to ED-112, or the appropriate sections of ED-112? MR. HEMPE: That's correct. Okay. And the -- the
DR. ELLINGSTAD:
typical process for development of a TSO you had indicated was three years? MR. HEMPE: Not necessarily. We've gotten I think the
TSOs out much sooner than three years.
typical construct is one of, obviously, getting a technical spec, whether it's RTCA, EUROCAE, or whatever, evaluating that technical spec internally, running it through legal, putting it out for the "Federal Register," getting comments from industry and EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
528 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the public and other governmental agencies, and then publishing it with the disposition. Typically, I've seen three years historically for recorders. This one I think we're shooting for a
little quicker for three years, maybe a year and a half to two years. DR. ELLINGSTAD: Okay. With respect to that
process, how much of -- of what you would expect in terms of these particular TSOs or -- or harking back to the last ones that you did with 123 and 124, how much of that involves an FAA-conducted technical review of the specifications as opposed to the more legalistic review, if we can refer to it that way? MR. HEMPE: I think most of the emphasis is
around the technical part of it and not the legal part. I would say three to six months internally. DR. ELLINGSTAD: Okay. We have as Exhibits
9-A and 9-B, for example, the -- the CVR and FDR rules or TSOs that currently exist. And granted that I'm not
-- I'm a non-technical reviewer of those, but it seems to me that they consist in large measure of reference to ED-55 and an RTCA document and then a prescription of what kind of user manual that the -- that the manufacturer would supply. Is the technical effort that you have EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
529 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 expended basically focused on -- on reviewing the goodness of the -- the reference documents, the ED-55 in that case, or the ED-112 now? MR. HEMPE: I think -- I think the technical
aspect of it, although it seems simple, there are deviations. I think a big issue back then was actually
burn requirements. DR. ELLINGSTAD: MR. HEMPE: Okay.
You know, and I think that was That
part of -- part of the discussion at the time.
one won't be so much of an issue this time, because I think ED-112 has adopted the same. But there are There are some
things around like three-second delay.
words about faithfully using the -- viewing the overall cockpit area and -DR. ELLINGSTAD: What sort of a staff
commitment to -- to developing that TSO do you have? What does it take with respect to FAA resources to turn ED-112 into, you know, one or more TSOs? MR. HEMPE: To me, it's probably a team of
two people that, if you can imagine at headquarters, that that's probably 25 percent of their time. And
their main thing, obviously, is that we have four directorates, regional offices, that they do have to coordinate with because they have to do the EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
530 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 implementation of these standards. And sometimes, that
even means developing some aspect of training through an interactive video training aspect of it. So they look at all pieces of that; do we need this piece of it in terms of getting this TSO out. If we get the TSO out too far ahead of time, where we don't have the training, we don't have the advisory material that we talked about -- that I talked about in terms of maintenance, how -- how would you maintain this, then the TSO doesn't necessarily do us any good. So the team kind of not only looks at the technical standard but it also looks at from a project plan, a program plan, what else has to happen. So many
of the people that I have working on this as well are working on the other 20 TSOs. So that's kind of the --
the balance that we try to do in terms of laying out a schedule by trying to get these two TSOs out by the end of '05. DR. ELLINGSTAD: Okay. Did you or any of
your staff participate in EUROCAE Working Group 50? MR. HEMPE: Yes, they did. You were personally -I had at least one or two --
DR. ELLINGSTAD: MR. HEMPE: No.
I know for sure one, possibly two members -DR. ELLINGSTAD: Throughout the entire --
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
531 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HEMPE: -- off and on. -- process over the six or
DR. ELLINGSTAD: seven years? MR. HEMPE: Yes.
DR. ELLINGSTAD:
Okay.
Mr. Fazio, with
respect to the whole process of rulemaking and the business of determining how to get on your list, you have -- you've indicated in the slide a number of steps. It seemed to me that the surest way was to find
a congressional sponsor, is that correct? MR. FAZIO: Well, we do follow the law, sir. Okay. The Board has
DR. ELLINGSTAD:
obviously made a number of recommendations about recorders, and specifically about image recorders, over the last few years, which is why we're here. And what
I'd like to try to get at relative to this whole business of your rulemaking process is how that factors into the process, how -- how the recommendations themselves are considered. Do you, for example, have a role in developing the FAA responses to the Safety Board's recommendations? MR. FAZIO: Do I personally? Do you personally; does your
DR. ELLINGSTAD: office have --
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
532 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FAZIO: No, my office does not. It does not.
DR. ELLINGSTAD: MR. FAZIO:
The responses are formulated
through the program office, the office in charge of that particular item, and then through the office of Mr. Wallace. DR. ELLINGSTAD: Okay. But -- so that there
isn't a consultation of -- if we're asking the FAA to make rules, it seems strange that they wouldn't ask their rulemaking experts about the feasibility. MR. FAZIO: Well, we would weigh in. They'll
ask us, especially for a rule that's underway, you know, where -- the status of that particular rule, that sort of thing. DR. ELLINGSTAD: Okay. But -- but when we
launch off a new set of recommendations for rulemaking, you would not tend to get involved in that -MR. FAZIO: Not normally. I would probably
get involved more at the management team level, because I am a director within the regulation certification associate line of business. that -- indirectly that way. DR. ELLINGSTAD: Okay. And in -- in -So I would get involved in
participating in that kind of analysis and evaluation, I might point out that in virtually every EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
533 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recommendation that the Safety Board has made to the FAA regarding recorders of all types -- we're talking about the -- the image recorders and we're talking about 737s and all of these kinds of things -- we've almost universally sent over two recommendations relative to any of these particular fixes that we believed were important. One of those sets of recommendations has been addressed to newly manufactured aircraft. The other
recommendation will typically be addressed to retrofit, recognizing that there are different cost factors that are involved. When you see these, is there any kind of a process that the recommendations will be separately considered with respect to these two kinds of categories? I might just add to that, typically the letters that we get back don't differentiate between the newly manufactured and the retrofit recommendations that we've made. MR. FAZIO: Well, I think it would be
considered as part of the alternatives when we're looking at the decision whether to proceed to rulemaking. Obviously, the cost would be much less if
it was just applied to newly produced aircraft or newly EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
534 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 designed aircraft versus a retrofit. respect, yes. DR. ELLINGSTAD: Is there ever a So in that
consideration to come back to the Safety Board and say, well, we think it might not be a bad idea for newly manufactured but we think it might be too expensive for retrofits? MR. FAZIO: I personally don't get involved
in that, but I know we've been doing more of that over the last several years, and I would encourage that, in fact. DR. ELLINGSTAD: Okay. You had mentioned
that you have two flight recorder rulemakings that are somewhere well along the way; one, the 737 rule that you said is at the -- at OST right now? MR. FAZIO: Both are at OST, yes. Okay. Has that -- we had Is --
DR. ELLINGSTAD:
heard that it had gone to OMB and back. MR. FAZIO:
I didn't bring the history with
me, but yes, I do believe -- I'm taxing my memory here because it's been several years. forth. It's gone back and
I can get you that information, but I believe It was right around the shift in
737 had gone to OMB. administrations.
DR. ELLINGSTAD:
Okay.
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
535 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to? guess. MR. FAZIO: were taken back. DR. ELLINGSTAD: I was just trying to get a So we were asked to look -- they
sense of what -- of the likelihood that that will turn into a rule. MR. FAZIO: It's hard for me to venture a
We're making every attempt to get it out. DR. ELLINGSTAD: Okay. Finally, you had
mentioned the other one that is somewhere along the same way, were improvements to recorder rules. that -MR. FAZIO: tentative backup -DR. ELLINGSTAD: Which set does that refer Right. The backup -- the Now, is
Is that the -- the so-called Swissair
recommendations for the -MR. FAZIO: Yes. -- battery backup?
DR. ELLINGSTAD: MR. FAZIO: Yes.
DR. ELLINGSTAD: MR. FAZIO:
And the two-hour --
That's correct. Thank you. Thank you.
DR. ELLINGSTAD:
CHAIRMAN CARMODY:
I'm going to recognize someone else, but I want to follow on with what Vern -- excuse me, what Dr. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
536 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ellingstad was asking about. So, Mr. Fazio, with your eight-step rulemaking process, it'd be safe to say we're not -haven't gotten to step one on this issue yet, is that correct? MR. FAZIO: For video -For the cockpit voice --
CHAIRMAN CARMODY: video recorders. MR. FAZIO:
No, we haven't. No, okay. And the
CHAIRMAN CARMODY:
decisions right now are perking around the program offices that are affected by this, is that fair to say? MR. FAZIO: I believe so. I don't know.
Dave, are you aware? MR. HEMPE: I mean, I think it's part of the I know
deliberative stage right now within the office.
there was a meeting recently between the FAA and NTSB on kind of an idea of the roll-up of all of the recommendations and how to proceed from a prioritization point of view. And I know that our --
our office has an action to get back to our director to have another meeting on that. So I think that's where
we are with that -- that part of it. CHAIRMAN CARMODY: deadline on any of this? EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 Is there a time frame or a
537 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HEMPE: I believe that, you know, we're
rushing through that and we're trying to get an answer very soon. So I would say within the month, by August,
we're going to have a roll-up of some follow-on discussions that I think we owe the NTSB on that. CHAIRMAN CARMODY: All right. Thank you.
Mr. Battocchi, any questions? MR. BATTOCCHI: No questions. Mr. MacIntosh?
CHAIRMAN CARMODY: MR. MacINTOSH:
Yes, I had a couple of
questions, and they're fairly short, I think. Regarding the small turbine airplanes, the issue of cost benefit for the CIS versus perhaps the installation of DFDRs, will that be part of a cost benefit analysis? image recorder. The suggestion is toward a CIS, an
Do you reach out and look at the other
-- the other methods in the cost benefit analysis? MR. HEMPE: Personally, from a program
office, I would say that, yes, we do, and if we can show that that's a benefit, that you will gain, you know, the needs of the investigator, and we can show that there is a cost reduction relative to going to a full FDR, what the gentleman discussed yesterday about the Cadillac version versus the lower version which just gives you imaging. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
538 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I think those need to be alternatives that we would look at for any rulemaking. MR. MacINTOSH: Very good. Okay.
Regarding some testimony we heard yesterday, we were informed by the GAMA representative -- I believe I could characterize it as he considered that he thought no buyer would pay for an image recorder without a regulation. I know you weren't here
yesterday for some of that testimony, but it kind of led up to that, and we were talking about some costs at the time. That reminds me of the situation where we had manufacturers delivering airplanes with ELTs and -- a transport airplane with an ELT, kind of an extra thing, and especially for when they're not required for airplanes in the United States. And I'm referring to
the large transport airplanes in that case. But I'd like you to think outside the box for a minute about the issue of the Cessna 208. What are
the positive and negative aspects of an airframe manufacturer getting in front of the TSO process or getting in front of the rulemaking process? Example. The manufacturer goes out with pre-
wiring or actually pre-installing a cockpit image recorder not yet covered by a TSO or definitely not EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
539 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 covered by the regulation. Can the customer or the Might he
manufacturer receive special considerations?
expect some special considerations when the TSO and the regulatory process, either/or, come into being? Could you comment on that, the issue of the vulnerabilities and the benefits of -- of leading the fleet, so to speak? MR. HEMPE: I think, personally, from my
vantage point, you know, especially from an industry point of view, when there are so many unknowns in terms of they don't know from an ex parte point of view what we're going to, you know, ask from an NPRM and what we don't. I'm encouraged that I do see new manufactured airplanes where they do try to get ahead of it. I
believe there are several projects going on right now where they are seriously looking at ED-112 not only for its capability with RIPS and other things but also the idea of pre-wiring for cameras. So I see that because
they don't know what's going to happen internationally, whether there might be a mandate by ICAO. So I think, from a business sense -- and I think you've heard this several times -- that from a production versus a retrofit, it really, truly is a different point of view in terms of ability to build EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that into your design and streamline the cost. So, you know, I -- my personal view is that I have seen them pick up on the latest technologies with new airplane designs very easily, and we can facilitate that. We can easily, as I said before, adopt ED-112 to
a specific certification program without having a TSO, and working both with the supplier and the OEM on a very specific project. The vulnerability of that, in my only mind, is -- is that if they really are going beyond cost that, you know, that they're spending extra money and then nothing's mandated, and maybe even the end user doesn't want to put the cameras in there. The
vulnerability really, in my mind, is just the extra cost from a return on investment, whether that's worth it or not. MR. MacINTOSH: Okay. Very good answer.
Mr. Fazio, would you like to comment on the same proposition from the drop-dead point of a regulation? MR. FAZIO: Well, it -- you're proposing I don't know how we could
something very interesting.
do that, whether we'd give them some incentive of some sort. I think that would be something, as you said, Not being familiar enough
thinking out of the box.
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
541 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with the topic, I mean, I think it's something we could consider. I don't know what kind of incentive we could
give them from a regulatory aspect. Normally, our -- our regulations are compliance state-driven. So, you know, off the top of
my head, I can't think of how we could provide an incentive for manufacturers to do this voluntarily. I -- personally, I think it's a decision between the customer and the manufacturer. If the
customer wants it, then the manufacturers will provide it. If we can help facilitate that on the
certification side, all the better. MR. HEMPE: I think, just to add to Tony's
comment, the one benefit obviously, though, is that if we do mandate something, they're ahead of the curve. So obviously, from a mandate point of view -- and if they can really work it into their cost, they're ahead of the curve. We've actually seen that in some of the initiatives with flammability and aging aircraft, where they have stepped up to incorporate maintenance programs and seen that as a benefit in terms of things that eventually came down the pike as requirements. MR. MacINTOSH: But I can envision the
situation where something is installed that isn't quite EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
542 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 enough and doesn't quite meet the standard that we're looking for in the -- in the final act. question -- then it's a vulnerability. And my Is the FAA a
flexible enough organization to recognize this in special considerations or that kind of possible consideration? MR. HEMPE: Absolutely. In fact, there was a
case with a TSO manufacturer who ultimately got a TSO where -- you know, we don't work in a vacuum. We
actually work with the manufacturers to say, what is the technology, what are their specifications. And we
can easily adjust the specifications to match where it's appropriate and where it makes sense. The TSO, unlike rulemaking, is not as rigid, and the other aspect of the TSO is the ability to ask for deviations to a specification, where they can show that they have an equivalent level of safety. That
might help facilitate, in case somebody's design is a little bit different and there's a vulnerability there. MR. MacINTOSH: Okay. Mr. Fazio, do you have
any comment about that same flexibility in the regulatory area? Is that in your line of business? Absolutely, yeah. I think we'd
MR. FAZIO:
have a number of opportunities.
I mean, we could do it
by exemption, for example, if it was something that, EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
543 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you know, we could provide an alternative means of compliance. We could write a rule that was That might be a way to
performance-based, for example. do it, also.
So, yeah, I think we have a lot of flexibility available to us. MR. MacINTOSH: Thank you very much. Thank you, Mr. MacIntosh.
CHAIRMAN CARMODY: Mr. Cash. MR. CASH:
I just have a couple questions.
To follow on Bob -- Bob's question to Mr. Hempe about the alternative requirements, you know, if you -- if you have -- do you look at a DFDR system in lieu of a video recorder, and more from the cost benefit side. So, Mr. Fazio, if you could -- is that being considered? Would that be considered? I think that would be one of the What
MR. FAZIO:
alternatives we would have to look at, clearly.
we want to do is obtain the greatest maximum benefit at the lowest possible cost. MR. CASH: technology? MR. FAZIO: absolutely. MR. CASH: Do you have any idea where that Even if it's alternative, Even if it's alternative
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544 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would fall out? I know -Personally, I don't. I -- you
MR. FAZIO:
know, we'd have to look at the -- you know, get the economists involved, price these things out, talk to the engineers, see what's out there that we could use. I mean, some of the issues that were raised earlier, you know, just -- can the -- can the equipment fit in the aircraft, especially some of the smaller aircraft, things of that nature. But I would defer to the
engineers for their analysis. MR. CASH: Okay. Mr. Hempe, the recorder TSO
that you talked about earlier, the ED-112, do you consider -- or, will you consider the cameras as part of the TSO and the camera control units and whatever ancillary equipment was required? MR. HEMPE: Right. I think at this point we
are not considering that.
I think -- you know, I kind
of put it in three buckets, and I know there was an exhibit -- I think it was like Exhibit 18. But it's
kind of like the TSO, I think, will cover -- will cover the recorder. I think in terms of the cameras
themselves, I think that's a separate approval. Whether or not we deal with that as part of a TSO, I think right now the specifications vary so widely, as we've heard over the past two days in terms EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
545 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of, you know, what are you viewing, what's the clarity, what's the resolution, that right now that may be have to handled by specific project installation requirements. Same with the processor. If you have
multiple cameras and they need to be collated or aggregated together in a processor, I think that processor, too, would probably be handled separately, and that's where the complication comes in with the cost from an STC package. If you look at all three of
those together as a single bubble, the TSO only gets you a certain way there. MR. CASH: Is that -- it adds to the cost.
It adds, certainly, to the complexity of the -MR. HEMPE: Certainly, especially if we heard
today that off-the-shelf cameras aren't necessarily -meet certain classes and that there needs to be additional standards. And if you actually want
certification such that you have an integrity and reliability, I think we may have to look at additional standards. I think if we get more specific, I think if EUROCAE or ARINC gets more specific in terms of some of their activity, it may ultimately turn into a TSO, and I think that's still a debate we can have EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
546 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 itself? MR. CASH: No, to actually get the boxes Fazio. You're saying three to five years is your average for rulemaking, which puts it out to 2008, 2010, if we started today. What do you envision would I mean, how internally in terms of whether that makes sense from a streamlined point of view. MR. CASH: Is that going to delay the
implementation, or could it conceivably delay it? MR. HEMPE: In my opinion, even the TSO, as I
said earlier, does not delay anything from implementation. I think if -- if a large or small
manufacturer wanted to install the requirements of a recorder, camera, and processor today through ED-112 and other things, that we could work directly with them today. So I don't think the TSO will delay anything.
I think whoever those first parties are that want to do that, I think we'll learn a lot from them as -- as kind of a prototype. MR. CASH: Okay. Just two questions, Mr.
be a realistic implementation time frame? -- how far out are we talking? MR. FAZIO:
The effective date of the rule
installed in airplanes. EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
547 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cost -MR. FAZIO: MR. HEMPE: MR. CASH: Right. -- estimates. Okay. MR. FAZIO: Well, assuming the rule went out
in 2010, you'd have to give industry sufficient time, and that would all play into the cost benefit analysis, obviously. MR. CASH: MR. FAZIO: Historically -Historically, I believe it's been
three to five years, something like that, for new -for retrofit and then new design. MR. CASH: So, 2015. I don't recall.
The other thing is, does the rulemaking have to wait for the TSO development? I mean, could you
start -- costart your clocks together and run together, or do you have to wait until the TSOs -MR. FAZIO: No, we don't have to wait. I
mean, if we decide we're going to go forward, we can go forward. Obviously, we would want -MR. CASH: MR. FAZIO: And the TSO would run with --- to get -- have the TSO out for
industry so that there is a product out there available. MR. HEMPE: That would help with some of the
EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
548 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Fazio. CHAIRMAN CARMODY: Well, thank you. I
believe those are our last two witnesses. Thank you, Mr. Hempe, and thank you, Mr. You provided excellent testimony and answered a
lot of questions. (Whereupon, the witnesses were excused.) CLOSING REMARKS AND ADJOURNMENT CHAIRMAN CARMODY: conclusion of this hearing. We're now reaching the I would like to remind
everyone that the docket will remain open for new and pertinent information for the next 30 days. If you
have any submissions, they should be sent to Dr. Ellingstad, the director of Office of Research and Engineering at the National Transportation Safety Board. The Safety Board will produce a report summarizing these two days of hearing. We do not However, I
anticipate any additional recommendations.
do want to note that we plan to produce an information paper for the ICAO General Assembly, which is this September, and submit it. Let me say to Mr. Wallace, with respect to your point yesterday on the scope of our recorder recommendation, we're in the process now of preparing a letter to the FAA, which we'd already started on in EXECUTIVE COURT REPORTERS, INC. (301) 565-0064
549 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXECUTIVE COURT REPORTERS, INC. (301) 565-0064 you. (Whereupon, at 4:30 p.m., on Wednesday, July 28, 2004, the proceedings were concluded.) response to the FAA's letter of March. We're going to
clarify the issue in the letter back to you, so you should be getting that soon, and we can be straight on this. So on behalf of the Board and -- the Board of Inquiry and all of the Technical Panel, I'd like to thank all the parties for your help and participation and your patience; all the witnesses, those who are here and those who have already left, for their cooperation and their testimony. I want to remind you, a transcript of the hearing will be on the Safety Board's website, probably in a week to 10 days. If anyone wants a copy of their
own of the transcript, they should get in touch with the court reporter. I now declare the hearing concluded. Thank
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