Aviation Recommendation A99-02

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Reassessment of the responses from Transport Canada to aviation safety recommendation A99-02

Flight recorder duration and power supply: duration of cockpit voice recorder information

Background

On 02 September 1998, Swissair Flight 111, a McDonnell Douglas MD-11 aircraft, departed John F. Kennedy Airport in New York, New York, en route to Geneva, Switzerland. Approximately one hour after take-off, the crew diverted the flight to Halifax, Nova Scotia, because of smoke in the cockpit. While the aircraft was manoeuvring in preparation for landing in Halifax, it struck the water near Peggy's Cove, Nova Scotia, fatally injuring all 229 occupants on board. The investigation revealed that the flight crew had lost control of the aircraft as a result of a fire in the aircraft's ceiling area, forward and aft of the cockpit bulkhead.

One of the shortcomings identified during the investigation was the limited recording capacity of the aircraft's cockpit voice recorder (CVR). The CVR was able to record only 30 minutes, and therefore did not capture the timeframe when the fire started.

On 09 March 1999, the Board released interim safety recommendations as part of its investigation (A98H0003) into this occurrence.

Board Recommendation A99-02 (09 March 1999)

A lack of recorded voice and other aural information can inhibit safety investigations and delay or prevent the identification of safety deficiencies. Given the need for longer periods of recorded sound to capture the initiating events of aviation accidents, and the availability of two-hour CVRs, the Board believed that such recorders should be mandated by regulatory authorities worldwide. However, it also recognized that a period of several years may be reasonably required for manufacturers and operators to implement this change. The Board believed that, with appropriate lead time, a retrofit program was warranted for aircraft already in service. Therefore, the Board recommended to both Transport Canada (TC) and the European Joint Aviation Authorities that:

As of 01 January 2005, all aircraft that require both an FDR and a CVR be required to be fitted with a CVR having a recording capacity of at least two hours.

A99-02

Response to A99-02 (07 June 1999)

In TC's response received by the TSB on 07 June 1999, TC indicated support for this recommendation with the provision that the United States Federal Aviation Administration (FAA) and Canadian requirements remain harmonized. TC's stated intention was to introduce an appropriate Notice of Proposed Amendment (NPA) into its Canadian Aviation Regulation Advisory Council (CARAC) process.

Board Assessment of the Response to A99-02 (17 March 2000)

TC's intent to initiate a process towards the promulgation of regulations, when fully implemented, will substantially reduce or eliminate the safety deficiency on which the Board's recommendation was based.

Therefore, the response is assessed as Satisfactory Intent.

Next TSB Action (17 March 2000)

TSB staff will monitor TC's activity with respect to the risks associated with Recommendation A99-02.

Response to A99-02 (14 December 2005)

In its update to the TSB, dated 14 December 2005, TC stated that the FDR/CVR regulations are being reviewed with the intent of harmonizing with the FAA rulemaking wherever possible. NPAs have been drafted to address this issue and others related to the update and harmonization of the FDR/CVR regulations. The NPAs will be presented at an upcoming CARAC technical committee meeting.

Board Reassessment of the Response to A99-02 (12 July 2006)

In its response dated 14 December 2005, TC states that a draft NPA harmonized with the FAA rulemaking (FAA-2005-20245 refers) will be tabled at an upcoming CARAC technical committee meeting.

On 03 March 2006, as part of the ongoing investigation (A05F0047) into a loss-of-rudder occurrence, the TSB sent an Aviation Safety Advisory (A060008-1) to TC suggesting that it expedite its efforts to mitigate the risks associated with Recommendation A99-02. As of June 2006, the FAA has yet to release its final rule that would require that all CVRs be able to retain the last two hours of cockpit audio.

This proposed regulatory change, if fully implemented, will substantially reduce or eliminate the safety deficiency as described in Recommendation A99-02.

Therefore, the assessment is Satisfactory Intent.

Next TSB Action (12 July 2006)

TSB staff will continue to monitor TC's activities with respect to the risks associated with Recommendation A99-02.

Response to A99-02 (07 February 2007)

TC's letter to TSB dated 07 February 2007, restates their 14 December 2005 position.

Board Reassessment of the Response to A99-02 (24 July 2007)

TC's response dated 07 February 2007 is a repeat of its position as stated 14 December 2005. The response provides no new information about the details of the referenced NPAs or when these NPAs will be tabled at the CARAC technical committee meeting.

On 03 March 2006, as part of the ongoing investigation (A05F0047) into a loss-of-rudder occurrence, the TSB sent an Aviation Safety Advisory (A060008-1) to TC suggesting that it expedite its efforts to mitigate the risks associated with Recommendation A99-02. As of June 2007, the FAA has yet to release its final rule that would require that all CVRs be able to retain the last two hours of cockpit audio.

TSB's assessment remains the same in that the proposed regulatory change, if fully implemented, will substantially reduce or eliminate the safety deficiency as described in Recommendation A99-02.

Therefore, the assessment is Satisfactory Intent.

Next TSB Action (24 July 2007)

The TSB staff will continue to monitor TC's activities with respect to the risks associated with Recommendation A99-02.

Response to A99-02 (06 March 2008)

In its response of 06 March 2008, TC states that it will introduce an appropriate NPA into the CARAC process. The Department supports this recommendation with the provision that United States and Canadian requirements are harmonized. TC's work is ongoing with respect to this issue. Harmonizing with the FAA regulations is taking longer than expected due to differing priorities. Internal revisions to the drafted NPAs continue.

Board Reassessment of the Response to A99-02 (13 August 2008)

TC's response provides no new information regarding the details of the referenced NPAs or when they are to be tabled at the CARAC technical committee meeting.

On 07 March 2008, the FAA issued its Final Rule entitled Revisions to Cockpit Voice Recorder and Digital Flight Data Recorder Regulations stating that by 07 April 2012 CVRs on all turbine engine-powered airplanes have a two hour recording capacity. Because TC's harmonization efforts are ongoing, it is unknown at this time whether or not the Canadian Aviation Regulations (CARs) will require a CVR having a recording capacity of at least two hours as stated in Recommendation A99-02.

TSB's assessment remains the same in that the proposed regulatory change, if fully implemented, will substantially reduce or eliminate the safety deficiency as described in Recommendation A99-02.

Therefore, the assessment is Satisfactory Intent.

Next TSB Action (13 August 2008)

TSB staff will continue to monitor TC's activities with respect to the risks associated with Recommendation A99-02.

Response to A99-02 (15 February 2010)

TC's latest response states simply that NPAs are currently being developed.

Board Reassessment of the Response to A99-02 (16 September 2010)

This reassessment is hindered by the lack of detailed information with respect to the nature of what will be proposed in the NPAs. It is assumed that the referenced NPAs are the same initiatives mentioned in TC's 06 March 2008 response.

As per the preamble to Recommendation A99-02, the Board is anticipating that any proposed regulatory change would include a retrofit requirement for aeroplanes already in service. TC has previously (06 March 2008) stated that it intended to harmonize with the FAA's Final Rule dated 07 March 2008 which amends Federal Aviation Regulations (FARs) to require that turbine engine-powered airplanes have a two hour recording capacity by 07 April 2012. At no time has TC provided the TSB with sufficient details about the content of its developing NPAs to allow the TSB to accurately assess whether or not the NPA contains a retrofit component.

Given the protracted activities required to prepare an NPA, receive approval through the CARAC process, and implement regulatory change, it would appear unlikely that TC can promulgate an amendment to the CARs that would match the FAA's implementation date of 07 April 2012.

The Board is concerned that, notwithstanding TC assurances that it intends to harmonize its rulemaking efforts with those of the FAA, TC's proposed rulemaking will fail to match the FAA's in both scope and schedule.

TSB's assessment remains the same in that TC's proposed regulatory change, if fully implemented, will substantially reduce or eliminate the safety deficiency as described in Recommendation A99-02.

Therefore, the assessment remains as Satisfactory Intent.

Next TSB Action (16 September 2010)

TSB staff will liaise with TC to obtain details of its NPA's content and schedule.

Transport Canada Response to A99-02 (21 January 2011)

TC's latest response states that Civil Aviation plans to present NPAs on the subject at the scheduled September 2011 CARAC Technical Committee Meeting.

Board Reassessment of the Response to A99-02 (09 March 2011)

Since its first response dated 07 June 1999, Transport Canada has stated its intention to initiate NPA action in order to address the deficiency identified in Recommendation A99-02. With each subsequent update it has repeated its original intention. Almost twelve years after its initial response, the oft-promised NPA has yet to be tabled at a CARAC Technical Committee Meeting which means the actual changes, if adopted, are many years away. This is despite the fact that the U.S. has issued its final rule effective 07 April 2012.

At no time during the past decade has TC provided TSB with sufficient detail regarding its mitigation strategy. Without such details TSB is unable to conduct an accurate assessment beyond stating that TC remains intent on proposing change to its regulations to align with those of the FAA. Consequently, TSB has continued to reassess TC's responses as Satisfactory Intent in the expectation that TC was working towards a satisfactory mitigation of the risks associated with Recommendation A99-02.

The benefits of longer CVR recordings are well known. The lack of longer periods of recorded voice and other aural information continues to inhibit occurrence investigations and delay or prevent the identification of safety deficiencies. The Board is not satisfied that TC's intentions have been supported with the necessary degree of action. This means there is no assurance that aircraft requiring both an FDR and a CVR will be fitted with a CVR having a recording capacity of at least two hours.

While TC has promised action, the inordinate time taken to implement changes to the CARs has maintained the status quo and allowed the safety deficiency to potentially put persons and property at risk. Therefore, the assessment is changed to Unsatisfactory.

Next TSB Action (09 March 2011)

TSB staff will liaise with TC to obtain details of its NPA's content and schedule. Additionally, occurrences reflecting similar deficiencies will continue to be monitored and concerns regarding the deficiency identified in Recommendation A99-02 communicated to TC.

Transport Canada Response to A99-02 (30 September 2011)

May 2011 Input:
An Issue Paper will be presented at the September 2011 Technical Committee to discuss the Transport Canada proposal with regards to amending requirements for CVR/FDR.

September 2011 update:
NPA 2011-010 addressing A99-02 (CVR 2-Hour Recording Capacity) to be tabled at the September 2011 CARAC Technical Committee meeting. NPA 2011-010 to require that as of 01 January 2005, all aircraft that require both an FDR and a CVR will be required to be fitted with a CVR having a recording capacity of at least two hours.

Expected to be pre published in Gazette 1, Spring 2012.

European Aviation Safety Agency Response to A99-02 (30 January 2012)

EASA acknowledges receipt of this Safety Recommendation. Please be advised that it is under consideration and that the outcome will be communicated to you in due course.

Board Assessment of Transport Canada and the European Aviation Safety Agency’s Responses to A99-02 (07 March 2012)

The European Aviation Safety Agency (EASA) has taken over the responsibility of recommendations issued to the Joint Aviation Authorities (JAA). The TSB requested that EASA provide an update as to the progress of activities taken to mitigate the residual risks associated with Recommendation A99-02. While the EASA has responded, it only acknowledges receipt of Recommendation A99-02 and does not offer any details of action taken over the past 13 years or of any planned actions. This lack of details prevents a meaningful assessment of EASA's response.

As for TC, its latest update states that NPA 2011-010 addresses the two hour CVR recording capacity as called for in Recommendation A99-02. This NPA was on the published agenda for the September 2011 CARAC Technical Committee meeting and TC indicated that it is expected to be pre-published in Canada Gazette, Part I in the spring of 2012.

TC has previously adopted Airworthiness Manual amendments which establish a requirement for new aircraft types and new design approvals of CVRs and FDRs to have a recording capacity of at least two hours. As equipment gets replaced, this requirement will improve the quantity of recorded information and increase the potential for retaining important information needed for occurrence investigations. However, these changes were not applicable to the in-service fleet and did nothing to mitigate the risk identified in Recommendation A99-02.

However, NPA 2011-010 requires the in-service fleet be retrofitted with a CVR having a recording capacity of at least two hours. The aircraft retrofits apply to all aircraft currently operating or that are manufactured before the compliance date (effective date plus 4 years) of this new requirement. In addition, aircraft that are manufactured on or after the compliance date of this new requirement would have to comply at the time of manufacture.

At the time that NPA 2011-010 was drafted, it was estimated that the effective date of the new requirement would be 01 January 2012 with a compliance date four years later (01 January 2016).

Presently, the proposed action has not been sufficiently advanced to reduce the risks to transportation safety. However, the planned action, when fully implemented, will substantially reduce or eliminate the safety deficiency identified in Recommendation A99-02.

Therefore, the responses in aggregate are considered as Satisfactory Intent.

Next TSB Action (07 March 2012)

The TSB will monitor the progress of the implementation of the planned actions as contained in NPA 2011-010 and will reassess the deficiency on an annual basis or when otherwise warranted.

The deficiency file is assigned an Active status.

European Aviation Safety Agency response to A99-02 (18 December 2012)

"The Agency was made aware of this Safety Recommendation in 2011. The Agency's interim response [Ref. 22/03/2012 - Reply doc Ref, 51418 (2012)] referred to rulemaking tasks RMT.0404 and 0405 [former OPS.092 (a} and (b)]. These tasks have been merged with RMT.0400 and 0401, which were launched on 26 September 2012 with the publication of the associated Terms of Reference. This Safety Recommendation is being considered within the framework of these tasks. Status: Closed - Partial agreement."

Transport Canada's response to A99-02 (04 December 2012)

"Since the March 2012 update, the amendments are progressing well. Although it had been anticipated that the rules would be published in 2012, our commitment to respond to this recommendation remains a priority."

Transport Canada's response to A99-02 (01 February 2013)

"NPA 2011-010 was submitted to the CARAC Technical Committee on June 28, 2012 for revision as a result of amendments to ICAO Annex 6 Standards that occurred after September 2011. These revisions have not materially altered the intent of NPA 2011-010 as presented to the Committee in September 2011."

Board assessment of Transport Canada and the European Aviation Safety Agency's responses to A99-02 (06 March 2013)

EASA's response indicates that activities to mitigate the residual risks associated with Recommendation A99-02 include the creation of two rulemaking tasks (RMT.0400 and RMT.0401). These latest rulemaking tasks were launched on 26 September 2012 and form part of EASA's 2013-2016 version of its 4-year Rulemaking Programme (RMP). The RMP predicts that both tasks will be completed by end of calendar year 2016. The successful accomplishment of these rulemaking efforts will amend CVR recorder requirements to extend recording duration to 2 hours as specified in Recommendation A99-02.

In its September 2011 update TC predicted that NPA 2011-010 was "Expected to be pre published in Gazette 1, Spring 2012". While the regulator (TC) did not meet this schedule, NPA 2011-10 was tabled at the 28 June 2012 Civil Aviation Regulatory Committee and was approved as revised. The intent of NPA 2011-10 has not been materially altered.

TC's proposed action has not been sufficiently advanced to reduce the risks to transportation safety. However, the planned action, when fully implemented, will substantially reduce or eliminate the safety deficiency identified in Recommendation A99-02.

Therefore, the responses in aggregate are considered as Satisfactory Intent.

Next TSB action (06 March 2013)

The TSB will continue to monitor the progress of the implementation of the planned actions as contained in TC's NPA 2011-010 and EASA's RMT.0400 and RMT.0401. TSB will assess the deficiency on an annual basis or when otherwise warranted.

The deficiency file is assigned an Active status.