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Proposed Rule2024-01485

Disclosure of Safety Critical Information

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Published

January 25, 2024

Issuing agencies

Transportation DepartmentFederal Aviation Administration

Abstract

This proposed rule would implement certain mandates in the Aircraft Certification, Safety, and Accountability Act of 2020 by requiring applicants for, and holders of, new and amended transport category airplane type certificates to submit, and subsequently continue to disclose, certain safety critical information to the FAA. The proposed rule would also require all applicants for type certificates, including new, amended, and supplemental type certificates, to submit a proposed certification plan to the FAA.

Full Text

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<title>Federal Register, Volume 89 Issue 17 (Thursday, January 25, 2024)</title>
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[Federal Register Volume 89, Number 17 (Thursday, January 25, 2024)]
[Proposed Rules]
[Pages 4841-4856]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-01485]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 21

[Docket No.: FAA-2024-0159; Notice No. 24-10]
RIN 2120-AL87

Disclosure of Safety Critical Information

AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This proposed rule would implement certain mandates in the
Aircraft Certification, Safety, and Accountability Act of 2020 by
requiring applicants for, and holders of, new and amended transport
category airplane type certificates to submit, and subsequently
continue to disclose, certain safety critical information to the FAA.
The proposed rule would also require all applicants for type
certificates, including new, amended, and supplemental type
certificates, to submit a proposed certification plan to the FAA.

DATES: Send comments on or before March 25, 2024.

ADDRESSES: Send comments identified by docket number FAA-2024-0159
using any of the following methods:
<bullet> Federal eRulemaking Portal:
<bullet> Go to <a href="http://www.regulations.gov">www.regulations.gov</a> and follow the online
instructions for sending your comments electronically.
<bullet> Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
<bullet> Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
<bullet> Fax: Fax comments to Docket Operations at (202) 493-2251.
Docket: Background documents or comments received may be read at
<a href="http://www.regulations.gov/">www.regulations.gov/</a> at any time. Follow the online instructions for
accessing the docket or go to the Docket Operations in Room W12-140 of
the West Building Ground Floor at 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Susan McCormick, Systems Standards,
Product Policy Management, Policy and Standards Division, Aircraft
Certification Service, Federal Aviation Administration, 26805 East 68th
Ave., Denver, CO 80249-6339; telephone (206) 231-3242; email
<a href="/cdn-cgi/l/email-protection#f88b8d8b9996d6959b9b978a95919b93b89e9999d69f978e">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Background
A. Congressional Mandate
B. Regulatory Background (FAA Certification and Oversight
Processes)
C. Factual Background (Boeing 737 MAX Accidents and Ensuing
Investigations)
D. Legislation Resulting From Reviews of the 737 MAX
III. Authority for This Rulemaking
IV. Discussion of the Proposal
A. Submittal of Proposed Certification Plans by Applicants
B. Milestone Component of Applicant's Proposed Certification
Plan
C. Updating Transport Category Airplane Certification Plans With
Safety Critical Information
D. Continuing Disclosure Requirement for New and Amended
Transport Category Airplane TC Applications

[[Page 4842]]

E. Submittal Requirement for Holders of Transport Category
Airplane TCs Covered Under Part 25
F. Requirement For Subsequent Continuing Disclosure by TC
Holders of Transport Category Airplanes Covered Under Part 25
G. Interaction of This Proposal With Current Submittal and
Disclosure Requirements
H. Explanations of Five Categories of Safety Critical
Information
V. Regulatory Notices and Analyses
A. Regulatory Impact Analysis
B. Regulatory Flexibility Act
C. International Trade Impact Assessment
D. Unfunded Mandates Assessment
E. Paperwork Reduction Act
F. International Compatibility
G. Environmental Analysis
VI. Executive Order Determinations
A. Executive Order 13132, Federalism
B. Executive Order 13175, Consultation and Coordination With
Indian Tribal Governments
C. Executive Order 13211, Regulations That Significantly Affect
Energy Supply, Distribution, or Use
D. Executive Order 13609, Promoting International Regulatory
Cooperation
VII. Additional Information
A. Comments Invited
B. Confidential Business Information
C. Electronic Access and Filing
D. Small Business Regulatory Enforcement Fairness Act

I. Executive Summary

This proposed rule would implement certain mandates of section 105
of the Aircraft Certification, Safety, and Accountability Act \1\
(ACSAA). It proposes to require applicants for, and holders of, type
certificates (TCs), including new and amended but not including
supplemental type certificates (STCs), for a transport category
airplane covered under part 25 of title 14, Code of Federal Regulations
(14 CFR), to submit, and subsequently continue to disclose, certain
safety critical information to the FAA. Applicants would be required to
submit such information as part of a certification plan.
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\1\ Division V, title 1 of Consolidated Appropriations Act,
2021. Public Law 116-260 (Dec. 27, 2020).
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A certification plan would therefore be required, by regulation,
for all applicants for TCs, including STCs, and would be required to
include proposed milestones. After the FAA agrees to the certification
plan, applicants would be required to keep it updated throughout the
certification process.
This proposal also includes requirements applicable to certain
holders of TCs. Holders of transport category airplane TCs covered
under part 25 would be required, within 90 days of the effective date
of a final rule, to submit certain safety critical information, if
known and not previously submitted. Such holders would thereafter be
required to continue to disclose such information upon discovery. While
TC holders already submit much of this information via requirements
found in Sec. Sec. 21.3 and 183.63, this rule would require specific
delineation of the safety critical information by the holder.
Because the FAA's proposal would largely align the new submittal
and disclosure requirements for TC applicants and holders with existing
certification and oversight practices and require holders only to
submit known and previously-undisclosed information, the incremental
costs of the proposal would be minimal. The FAA has found potential
benefits from the proposal due to the projected enhancement of the
identification, and the agency's receipt of, safety critical
information.

II. Background

A. Congressional Mandate

On December 21, 2020, Congress passed the Consolidated
Appropriations Act of 2021, which included the Aircraft Certification,
Safety, and Accountability Act (Division V, Title 1). Section 105 of
the Act was codified in title 49 U.S.C. 44704(e) (2021). Section 105
instructs the FAA to require the submittal, and subsequent ongoing
disclosure, of certain information related to TCs for transport
category airplanes covered under part 25 of title 14.
Section 105(e)(1), now 49 U.S.C. 44704(e)(1), prompts the FAA to
require an applicant for, or holder of, a TC for a transport category
airplane to submit safety critical information to the FAA. That section
defines five categories of required safety critical information, as
summarized below. It allows the FAA to set the form, manner, and time
of the submittal.
Section 105(e)(1)'s requirements are accompanied by certain
caveats. First, as noted above, it applies to only those TCs for
transport category airplanes that are ``covered under part 25 of title
14.'' Second, the section states that the required submittals are to be
made ``(N)otwithstanding a delegation described in section 44702(d).''
\2\ Third, section 105 defines the transport airplane type
certificatess that are subject to its requirements as those for ``new
or amended'' certificates, but excludes STCs.
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\2\ Section 44702(d) of title 49 allows the Administrator to
delegate certain matters related to type certificates and other
certificates.
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Section 105 also directs certain ``Ongoing Communications.''
Specifically, Section 105(e)(2)(A) instructs the FAA to require that an
applicant for, or holder of, a transport airplane type certificate
disclose to the FAA any newly discovered information, or any design or
analysis change, that would materially alter the applicant or holder's
prior submission of safety critical information to the FAA under
section 105(e)(1). As with the initial disclosure requirement, this
section allows the FAA to set the form, manner, and time of the
communication. Section 105(e)(2)(b) directs the FAA to establish
milestones throughout the certification process at which the systems of
a proposed transport category airplane design will be assessed. These
required assessments must determine whether a change made to a system
during the certification process should prompt the FAA to consider the
system as novel or unusual.
Section 105 sets forth five categories of safety critical
information that applicants or holders must submit and disclose. These
categories generally relate to information about the proposed design's
potential to affect the flightcrew's ability to control the airplane,
and about the analysis of potential hazards that could be posed by the
design. The following paragraphs summarize the five categories of
safety critical information.
(1) Details, functions, and failure modes of any system that,
without being commanded by the flightcrew, could command the operation
of a function or feature that is necessary for control of the airplane,
or could affect its flight path or airspeed.
(2) Details, functions, failure modes, and mode annunciations about
the transport category airplane's autopilot and autothrottle systems.
(3) Failures or operating conditions that the TC applicant or
holder anticipates or has concluded would result in a hazardous or
catastrophic outcome.
(4) Any adverse handling quality that, without adding flight
control augmenting software to the airplane design, would result in a
failure to meet the requirements of FAA regulations.
(5) A system safety assessment with respect to any system described
in one of the first two categories (i.e., flight controls, and
autothrottle/autopilot), or with respect to a system or component whose
failure or erroneous operation could result in a hazardous or
catastrophic outcome.

[[Page 4843]]

B. Regulatory Background (FAA Certification and Oversight Processes)

The FAA reviews applicants' proposed designs of products such as
airplanes and engines, and, if it finds that the design meets
regulatory standards, issues a design approval known as a ``type
certificate.'' For transport category airplanes, which are used by air
carriers to transport the public in scheduled service, the FAA reviews
proposed designs primarily using the standards in 14 CFR part 25. Part
25 replaced part 4b of the Civil Air Regulations in 1965.\3\ The FAA
provides applicants with suggested, but optional, means of compliance
with many design standards via the publication of guidance documents
such as advisory circulars (AC).
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\3\ 29 FR 18289.
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After obtaining a TC for a transport category airplane from the
FAA, most TC holders obtain (or seek to amend) a production
certificate, which the FAA issues after the manufacturer proves that it
is capable of repeatedly building the product according to its approved
design. After an individual aircraft is built, the FAA issues an
airworthiness certificate after finding that the aircraft conforms to
its design and is in a condition for safe operation.
1. Relevant Part 25 Design Standards
Several part 25 design standards for transport category airplanes
are relevant to the safety critical information that Congress has
defined, and directed the FAA to require from, TC applicants and
holders.
a. System Safety Assessment
To ensure the reliability of proposed designs for transport
category airplanes, the FAA requires applicants to analyze the
potential effects that failures and malfunctions could have on the
airplane and its flightcrew. Among the FAA's reliability regulations
for transport category airplanes is Sec. 25.1309, which generally
requires the likelihood of a failure to be inversely proportional to
its potential effect. Specifically, it requires that any failure
condition which could cause the loss of the airplane (a
``catastrophic'' failure condition) to be so unlikely as to never occur
during the expected lifetime of all airplanes of that model (i.e.,
``extremely improbable'' with an associated per hour failure rate of
10-9, or less likely than one event per 10\9\ (billion)
flight hours).\4\ Section 25.1309 also requires that failure conditions
which are not catastrophic, but which nevertheless could reduce the
capability of the airplane or the ability of its flightcrew to cope
with adverse operating conditions (a ``major'' failure condition), to
be no more likely than improbable (an associated per-hour failure rate
between every 10-9 and 10-5 flight hours).\5\ The
requirement to analyze these catastrophic and major failure conditions,
and thus submit that information to the FAA, has been in place since
1970.\6\
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\4\ AC 25.1309-1A, System Design and Analysis (June 21, 1988),
page 15, paragraph 10.b.(3), available in the docket and at
<a href="http://drs.faa.gov">drs.faa.gov</a>.
\5\ AC 25.1309-1A, page 15, paragraph 10.b.(2), available in the
docket and at <a href="http://drs.faa.gov">drs.faa.gov</a>.
\6\ Amendment 25-23, 35 FR 5665.
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An FAA-approved means of compliance with 14 CFR 25.1309 is AC
25.1309-1A, System Design and Analysis (June 21, 1988).\7\ This AC
divides the foregoing failure conditions into three categories,
aligning their severity with their likelihood: (1) Catastrophic (which
may be no more likely than 10-9, or extremely improbable);
(2) Major (between 10-9 and 10-5, or improbable);
and (3) Minor, which are unregulated for transport category airplanes
and may be probable (more likely than 10-5). An additional
Aviation Rulemaking Advisory Committee (ARAC) \8\-recommended version
\9\ of this guidance, known as the ``Arsenal'' version, divides the
``major'' category into two categories of failures: those that are
``hazardous'' (from 10-9 to 10-7) and those that
are ``major'' (from 10-7 to 10-5).\10\ Some
applicants use the guidance in this version when developing their
system safety assessments (SSA), and the FAA commonly accepts such
assessments as a means of showing that the proposed design complies
with Sec. 25.1309.
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\7\ Available in the docket.
\8\ The ARAC was created under the Federal Advisory Committee
Act (FACA), in accordance with title 5 of the United States Code (5
U.S.C. App. 2) to provide advice and recommendations to the FAA
concerning rulemaking activities, such as aircraft operations,
airman and air agency certification, airworthiness standards and
certification, airports, maintenance, noise, and training.
\9\ The Arsenal version is a draft revision of AC 25.1309-1A. It
was developed by the ARAC Systems Design and Analysis Harmonization
Working Group (SDAHWG). It is in the docket for this rulemaking as
part of the SDAHWG recommendation, Task 2-System and Analysis
Harmonization and Technology Update, pp. 61-99.
\10\ The FAA has proposed to update 14 CFR 25.1309, including
changes seeking to ensure that applicants protect the airplane from
the effects of the combination of two failures, the first of which
is undetected until a second failure occurs. Docket No. FAA-2022-
1544, available at <a href="http://regulations.gov">regulations.gov</a>.
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In some cases, the applicant submits the SSA to a designee of the
FAA. Designees of the FAA can be individual or organizational.
Organizational designees are known as ODAs because the FAA has granted
them ``organization designation authorization.'' \11\ Thus, an
applicant may be submitting its SSA and other compliance information to
an entity other than the FAA itself, if the FAA has authorized that
entity to make a finding of compliance on the FAA's behalf.
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\11\ See subpart D of 14 CFR part 183.
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b. Function and Installation of Equipment
The FAA's reliability standards for transport category airplanes
certified under part 25 also include Sec. 25.1301(a)(4), which
requires that each item of installed equipment on the airplane function
properly when installed. Implementing policy for Sec. 25.1301 is
included in several ACs, such as AC 20-174, Development of Civil
Aircraft and Systems, and AC 25.1329-1, Approval of Flight Guidance
Systems.
c. Other Relevant Part 25 Design Standards
Additional part 25 standards of potential relevance to safety
critical information as defined by Congress, are Sec. 25.143, general
flight maneuvers; Sec. 25.672, which governs stability augmentation
and automatic and power-operated systems; Sec. 25.1322, for flightcrew
alerting; and Sec. 25.1329, which governs flight guidance systems. The
foregoing part 25 regulations, which current applicants for transport
category airplane TCs must show that their proposed design complies
with,\12\ are pertinent to the ACSAA section 105 requirements for
applicants and holders of TCs for transport category airplanes to
submit, and continue to disclose, certain safety critical information.
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\12\ Per 14 CFR 21.20 and 21.21.
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2. Applicant Certification Plans
An applicant has 5 years, from the date of application, to obtain
FAA approval of the applicant's proposed transport category airplane
TC, or change to such certificate.\13\ To ensure that necessary
information about an applicant's project is submitted in time for the
FAA to adequately review, to establish an agreed-upon schedule
including milestones, and to identify potential issues, applicants
submit a proposed certification plan for their project,\14\ at the time
of application, to

[[Page 4844]]

the FAA.\15\ A certification plan includes several categories of
information.\16\ Such information includes general information about
the proposed design, but also specific information such as a
description of how compliance will be shown, a list of the
documentation that the applicant plans to use to show compliance, and
the applicant's expected certification date. Applicants also generally
keep this information updated throughout the development of their
project, so that they can show compliance with FAA design standards,
and so that the FAA has correct information to make the findings of
compliance that are necessary to issue the requested TC.
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\13\ 14 CFR 21.17(c) and 21.101(e).
\14\ Certification plans are submitted by nearly all project
applicants, because the plans are a useful tool for both the FAA and
industry. FAA Order 8110.4C provides information on their use. Also,
the FAA and industry jointly developed both the The FAA and Industry
Guide to Product Certification (i.e., Certification Process Guide
(CPG)) and the Enhanced Project Specific Certification Plan (ePSCP)
Guide (i.e., ePSCP Guide) as a means to communicate project
information via certification plans.
\15\ Section 2-3 of FAA Order 8110.4C.
\16\ Id. at para. 2-3(d).
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3. Disclosure of Novel or Unusual Design Features
Since each proposal for an original or amended TC is different, and
the designs of modern transport category airplanes are complex,
proposed designs will inevitably present multiple issues, whether
technical, regulatory, or administrative, that require a heightened
degree of analysis by the FAA and engagement with the applicant. The
FAA analyzes such issues via the development of issue papers.\17\
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\17\ See FAA Order 8110.4C, at para 2-4(g); FAA Order 8110.112;
and AC 20-166B.
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If a proposed design feature is novel or unusual (i.e., it was not
envisaged by FAA design standards) and therefore, the FAA's design
standards are inadequate or inappropriate for that feature, the FAA
addresses that feature with a rule of particular applicability known as
a ``special condition.'' \18\ Though the goal is to identify and
address novel or unusual design features early in the certification
process, regular discussions (e.g., familiarization briefings,
compliance planning meetings, etc.) between the applicant and the FAA
are necessary to plan and execute certification activities.
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\18\ 14 CFR 21.16.
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4. Existing 14 CFR 21.3 Reporting of Failures, Malfunctions, and
Defects
In 1969, the FAA noted that while air carriers were required to
notify the FAA of certain safety issues occurring on their airplanes
and engines, it is the manufacturers of those products who have the

``expertise . . . to evaluate the seriousness of the failure,
defect, or malfunction, and to determine the extent to which (it)
may present a hazard to flight.'' \19\
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\19\ 34 FR 5441.

The FAA thus proposed, and subsequently issued, a rule--14 CFR
21.3--requiring manufacturers to promptly \20\ inform the FAA of the
occurrence of a host of listed failures, defects, and malfunctions. The
specific items to be disclosed have not substantively changed in the
half-century since the rule was issued.
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\20\ Within 24 hours, or by the end of the next business day. 14
CFR 21.3(e)(1).
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Thus, after the FAA approves a proposed design via the issuance of
a TC, and the manufacturer builds its product according to that
approved design, and the individual aircraft receives a certificate of
airworthiness and enters service, the manufacturer's obligation to
ensure the airworthiness of its product continues. The manufacturer
must report certain information to the FAA in accordance with Sec.
21.3. If the FAA determines a design change is required to correct an
unsafe condition in a product, the manufacturer is required by Sec.
21.99 to submit a proposed change to its design, and the FAA may
mandate this change via part 39 of 14 CFR by the issuance of an
airworthiness directive (AD).
5. Other Ongoing Disclosure Requirements Applicable to TC Holders
Nearly every domestic holder of an original or amended TC for a
part 25 transport category airplane in the U.S. is also the holder of
an ODA.\21\ ODA holders are required by current regulations to submit
and disclose several categories of safety information to the FAA. Two
categories are of particular pertinence to the requirements that this
NPRM proposes to establish. Section 183.63(b)(1) requires ODA holders,
without prompting by the FAA, to notify the agency of any ``condition
in a product, part or appliance that could result in a finding of
unsafe condition by the Administrator.'' Section 183.63(b)(2) requires
ODA holders to notify the agency of products not meeting airworthiness
requirements.
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\21\ The exception is Lockheed Martin Corporation. The Boeing
Company, Gulfstream Aerospace Corp., Textron Aviation Inc., Piper
Aircraft, Inc., and LearJet, Inc. are all currently ODA holders.
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FAA policy provides guidance on the details of the provision of
such information.\22\ The ODA holder must provide continued support for
approvals or certificates issued under ODA procedures in accordance
with Sec. 183.63. Procedures for monitoring service information,
investigation, and FAA notification must be included in the ODA
holder's FAA-approved procedures manual, in accordance with Sec.
183.53(c)(13).
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\22\ FAA Order 8100.15B at section 3-18.
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C. Factual Background (Boeing 737 MAX 23 Accidents and
Ensuing Investigations)
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\23\ When the term ``737 MAX'' is used in this NPRM, it is
referring to the Boeing Model 737-8 and -9 airplanes.
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The following information, due to its inclusion or reference in
investigations by Congressional committees, was pertinent to the
development of the Congressional requirements that this NPRM proposes
to implement.\24\
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\24\ See, e.g., House Report H.R. 8408, H. Rept. 116-579--
AIRCRAFT CERTIFICATION REFORM AND ACCOUNTABILITY ACT [verbar]
<a href="http://Congress.gov">Congress.gov</a> [verbar] Library of Congress. Available in the docket.
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The FAA approved the amended TC for the Boeing Model 737-8 in 2017.
On October 29, 2018, a Boeing Model 737-8 airplane operated by Lion Air
(Lion Air Flight 610) was involved in an accident after takeoff in
Indonesia, resulting in 189 fatalities. The accident was investigated
by the Indonesian authorities (Komite Nasional Keselamatan Transportasi
(KNKT)) \25\ with assistance from the National Transportation Safety
Board (NTSB), the FAA, the manufacturer, and the operator.
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\25\ Preliminary KNKT.18.10.35.04 Aircraft Accident
Investigation Report, dated November 2018, and Final
KNKT.18.10.35.04 Aircraft Accident Investigation Report, dated
October 2019, can be found in the docket.
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On March 10, 2019, a Boeing Model 737-8 airplane operated by
Ethiopian Airlines (Ethiopian Airlines Flight 302) was involved in an
accident after takeoff in Ethiopia, resulting in 157 fatalities. The
accident was investigated by the Ethiopian Accident Investigation
Bureau \26\ with assistance from the NTSB, the FAA, the French Bureau
of Enquiry and Analysis for Civil Aviation Safety, the European Union
Aviation Safety Agency, the manufacturer, the operator, and the
Ethiopian Civil Aviation Authority.
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\26\ Report No. AI 01/19, Interim Investigation Report on
Accident to the B737-8 (MAX) Registered ET-AVJ operated by Ethiopian
Airlines on 10 March 2019, dated March 9, 2020, of the Federal
Democratic Republic of Ethiopia Ministry of Transport Aircraft
Accident Investigation Bureau, can be found in the docket.
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The investigations of these accidents generally found that
erroneous data from one of the airplane's two angle-of-attack sensors
could cause the maneuvering characteristics augmentation system (MCAS),
a function of the airplane's flight control software, to command
repeated airplane nose-down trim of the horizontal stabilizer, and
could result in flightdeck

[[Page 4845]]

effects that collectively could affect the ability of the flightcrew to
accomplish continued safe flight and landing.\27\
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\27\ See, e.g., p. 7 of NTSB ASR-19-01, Assumptions Used in the
Safety Assessment Process and the Effects of Multiple Alerts and
Indications on Pilot Performance, dated September 19, 2019, (``ASR-
19-01''), available in the docket.
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Flightdeck effects common to both accidents were differences in the
altitude and airspeed displayed for each pilot and persistent stall
warning. In the Ethiopian accident, the significant difference in
airspeeds resulted in the autothrottle becoming inoperative, thus
leaving the thrust levers at the current takeoff thrust setting. The
throttles remained at takeoff power throughout the flight, resulting in
high airspeed, which made it more difficult for the flightcrew to
control the airplane.
The Boeing Models 737-8 and 737-9 were certified via amendment of
the existing Boeing Model 737 TC and were the first of a set of
derivative models collectively marketed by Boeing as the 737 MAX. To
certify the 737 MAX airplanes with larger and relocated engines, Boeing
added MCAS to the airplane's flight control software so that the
airplane handling qualities would comply with FAA design standards.\28\
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\28\ See, e.g., pp. 23-24 of Summary of the FAA's Review of the
Boeing 737 MAX (November 20, 2020), available in the docket.
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Following the accidents, the FAA mandated corrective actions to
address the unsafe condition related to MCAS on the 737 MAX. The
actions included requiring changes to the airplane's flight control
software related to MCAS and related flightcrew procedures. These
changes were developed by Boeing and its ODA unit pursuant to
Sec. Sec. 21.3, 21.99 and 183.63, and, after a public comment process,
were required by the FAA via the issuance of an AD.\29\
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\29\ 85 FR 74560.
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1. Investigations of Certification of 737 MAX and FAA Certification
Processes
The two accidents also led to investigations of how the Boeing 737
MAX airplane had been certified by the FAA; of the FAA's delegation of
certain certification functions to the Boeing ODA; and of how the FAA
certifies transport category airplanes in general. These investigations
included reviews by the NTSB \30\ and the U.S. Department of
Transportation's Office of Inspector General (in June 2020 \31\ and
February 2021 \32\); a Joint Aviation Technical Review conducted by a
panel of foreign civil aviation authorities; \33\ and reviews by the
Aviation Subcommittee of the U.S. House Committee on Transportation and
Infrastructure \34\ and the U.S. Senate Committee on Commerce, Science,
and Transportation.\35\ The FAA also performed and published its own
technical summary when addressing the unsafe condition.\36\
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\30\ System Safety and Certification Specialist's Report,
DCA19RA017, dated August 21, 2019, and the aforementioned ASR-19-01,
available in the docket.
\31\ Timeline of Activities Leading to the Certification of the
Boeing 737 MAX 8 Aircraft and Actions Taken After the October 2018
Lion Air Accident, June 2020, (``OIG I''), available in the docket.
\32\ Weaknesses in FAA's Certification and Delegation Processes
Hindered Its Oversight of the 737 MAX 8, U.S. Department of
Transportation Office of Inspector General, February 2021, (``OIG
II'') available in the docket.
\33\ Boeing 737 MAX Flight Control System Joint Authorities
Technical Review, October 2019, (``JATR''), available in the docket.
\34\ The Design, Development, & Certification of the Boeing 737
MAX, Majority Staff of the U.S. House Committee on Transportation
and Infrastructure, (``House Committee Report''), available in the
docket.
\35\ Aviation Safety Oversight, U.S. Senate Committee on
Commerce, Science, & Transportation, December 2020, (``Senate
Committee Report''), available in the docket.
\36\ As referenced at footnote 28.
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2. Disclosure of Information During Certification of 737 MAX
The investigations of the certification of the 737 MAX generally
found that Boeing, as the applicant for an amended TC, inadequately
disclosed certain information about its proposed design, and its
potential safety risks, to the FAA during the certification
process.\37\ This information included the manufacturer's increase of
the authority (from 0.55 to 2.5 degrees of stabilizer movement) and
circumstances (from high-altitude only, to relatively low altitude and
airspeed) of the flight-control software's automatic (without pilot
input) activation of MCAS to move the horizontal stabilizer of the
airplane.\38\
---------------------------------------------------------------------------

\37\ See, e.g., JATR at pp. VII, 13, and 24-25; House Report at
p. 57.
\38\ See, e.g., House Report at p. 103; OIG I at p. 20; OIG II
at p. 16.
---------------------------------------------------------------------------

The investigations also generally found that Boeing's hazard and
safety assessments of these systems on the 737 MAX did not adequately
account for the severity of hazard that MCAS posed.\39\ According to
the investigations, the hazard classifications for MCAS failures, given
that system's potential reliance on a single angle-of-attack indicator,
should have been catastrophic with an SSA that included commensurate
rigor.\40\
---------------------------------------------------------------------------

\39\ See, e.g., JATR at p. 30-31; OIG I at p. 25.
\40\ See, e.g., House Report at pp. 13 and 29; JATR at pp. 31
and 33-34.
---------------------------------------------------------------------------

The investigations found that the company's SSAs that addressed
MCAS considered the hazard from a single activation, but did not
address the hazard that could be presented by repeated activations of
MCAS.\41\
---------------------------------------------------------------------------

\41\ See, e.g., House Report at pp. 21, 109, and 116; JATR at
pp. 33-34.
---------------------------------------------------------------------------

D. Legislation Resulting From Reviews of the 737 MAX

After the foregoing reviews of the FAA's certification of the 737
MAX, in December of 2020 Congress passed the Aircraft Certification,
Safety, and Accountability Act (ACSAA).\42\ ACSAA imposed many new
requirements on the FAA, including those of section 105.
---------------------------------------------------------------------------

\42\ Public Law 116-260 (ACSAA).
---------------------------------------------------------------------------

Section 105's provisions generally seek to ensure that information
about the potential hazards of a transport category airplane's systems
is adequately disclosed by applicants for design approval, so that such
information can be adequately evaluated by the applicant and the FAA.
Section 105 does not apply these requirements only to
``applicants,'' as it does certain other provisions. Rather, it also
applies the initial submittal, and ongoing disclosure requirement, to
the ``holder of'' a type certificate for a transport category airplane
covered under part 25.

III. Authority for This Rulemaking

The FAA's authority to issue rules on aviation safety is found in
title 49 of the United States Code. Subtitle I, section 106 describes
the authority of the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the FAA's authority.
This proposed rulemaking is issued under the authority described in
subtitle VII, part A, subpart III, section 44701, General Requirements.
Under that section, the FAA is charged with prescribing regulations and
minimum standards for the design and performance of aircraft that the
Administrator finds necessary for safety in air commerce. This proposed
regulation is within the scope of that authority.
Authority for this particular rulemaking is derived from section
105(a) of ACSAA. Section 105, ``Disclosure of Safety Critical
Information,'' of ACSAA directs the Administrator of the FAA to require
an applicant for, or holder of, a TC for a transport category airplane
covered under 14 CFR part 25 to submit and disclose certain safety
critical information to the FAA.

IV. Discussion of the Proposal

In this rulemaking, the FAA proposes to impose, as required by
section 105(a),

[[Page 4846]]

the initial submittal and continuing disclosure requirements of that
section on applicants and holders of TCs, including amended TCs, for
transport category airplanes covered by 14 CFR part 25.

A. Submittal of Proposed Certification Plans by Applicants

In this NPRM, the FAA proposes a new Sec. 21.15(d) that would
require applicants for new or amended TCs to submit proposed
certification plans to the FAA, and that a new Sec. 21.113(c) would
require the same for applicants for new or amended STCs. Consistent
with current practice, such plans would be required to be submitted
with the application. The proposed certification plans would be
required to include planning information; proposed milestones; and, for
transport category airplane applications, subsequent updates to include
the safety critical information that ACSAA requires the FAA to obtain
from such applicants.
Under current practices, applicants typically submit a variety of
information with their proposed certification plans, as described in
FAA Order 8110.4C, Type Certification (for applicants) and 8100.15B,
Organization Designation Authorization Procedures (for ODA holders) and
associated materials such as The FAA and Industry Guide to Product
Certification (i.e., Certification Process Guide \43\ (CPG)) and
Enhanced Project Specific Certification Plan (ePSCP) Guide (i.e., ePSCP
Guide).\44\ However, to provide transport category airplane applicants
with a familiar vehicle for the initial submittal of safety critical
information, the FAA proposes to establish a performance-based
regulatory requirement for certification plans.
---------------------------------------------------------------------------

\43\ Available in the docket and at <a href="http://www.faa.gov/sites/faa.gov/files/aircraft/air_cert/design_approvals/transport/CPI_guide.pdf">www.faa.gov/sites/faa.gov/files/aircraft/air_cert/design_approvals/transport/CPI_guide.pdf</a>.
\44\ Available in the docket and at <a href="http://www.faa.gov/sites/faa.gov/files/aircraft/air_cert/design_approvals/dah/ePSCP_guide.pdf">www.faa.gov/sites/faa.gov/files/aircraft/air_cert/design_approvals/dah/ePSCP_guide.pdf</a>.
---------------------------------------------------------------------------

Thus, proposed certification plans would be required, via a
regulatory performance standard, to contain sufficient information for
the applicant's showings of compliance, and the FAA's findings, to be
timely and accurately made. The provided information would be
substantially the same as described in the aforementioned FAA guidance
documents. The information provided in the certification plan would
need to be sufficiently developed, and detailed, to enable the FAA to
determine its level of involvement for each compliance showing and
finding, ensure prompt submittal of all necessary compliance data, and
allow all showings and findings to be timely and accurately made for
each project.
The FAA proposes that applicants would be required to submit these
proposed certification plans in a manner consistent with current
practices. Thus, applicants would be required to submit certain
preliminary key project information, specifically the applicant's
proposed certification basis; \45\ a compliance checklist that
identifies the means by which the applicant plans to show that it
complies with FAA regulations, and that identifies all deliverables
\46\ that the applicant anticipates will be necessary to show
compliance; and a proposed project schedule with milestones. Applicants
for transport category airplane new or amended, but not supplemental,
type certificates would be required to include their expected
certification date as part of this proposed schedule. The certification
plan would also be required to identify any other information that the
applicant anticipates will be necessary to enable the applicant's
showings and certifying statement (per Sec. 21.20) and the FAA's
findings of compliance (per Sec. 21.21(b)) to be timely and accurately
made.
---------------------------------------------------------------------------

\45\ A proposed certification basis includes applicable
regulation paragraphs with amendment levels, and the potential need
for the FAA to issue exemptions, equivalent level of safety findings
(ELOSs), and special conditions. See FAA Order 8110.4C at section 2-
3(d).
\46\ Per current practices, these would include items such as
test plans, reports, analyses (often called ``deliverables'',
``documents'', or ``document deliverables''), and inspections that
are necessary to show compliance with the applicable requirements.
---------------------------------------------------------------------------

Under current practices, it is common for applicants to describe
safety critical information as deliverables within the compliance
checklist, and include preliminary system safety assessment sections
and referenced documentation. The FAA anticipates that this practice
would continue, under the new standard for the contents of proposed
certification plans. FAA Order 8110.4C and the ePSCP Guide would still
provide applicants with additional information and best practices for
submittals to meet the new regulatory requirements.

B. Milestone Component of Applicant's Proposed Certification Plan

TC applicants generally propose a project schedule as part of their
certification plan. This proposed project schedule includes key events,
called milestones. Typical milestones include familiarization meetings,
submittal of issue papers (to develop the resolution of issues that may
necessitate determinations such as special conditions, ELOSs, and
exemptions), type board meetings, first airplane flight, data submittal
requirements, inspection/conformity dates, and associated test dates.
In addition to the typical milestones that the applicant and the
FAA use to plan the development and review of the project, the proposed
schedule would, for applications for new or amended TCs for transport
category airplanes, need to include sufficient milestones to enable
compliance with requirements of the proposed rule. Such milestones
would be consistent with current practices, and would include dates for
submitting certain compliance documents such as safety assessments
(including functional hazard assessments, fault tree analyses, the
requirements validation plan, software development documents, and
minimum training requirements \47\ and other data to support the flight
standardization board report and revisions (as needed).
---------------------------------------------------------------------------

\47\ 14 CFR 121, subpart N defines operator training programs.
---------------------------------------------------------------------------

Under current practices, an applicant's initial proposed
certification plan also necessitates subsequent updates. These planned
updates are, and under this proposal would continue to be, included as
milestones within the proposed certification plan. This would establish
``gates'' throughout the certification process at which a proposed
airplane system will be assessed for changes and impacts to the overall
certification approach (e.g., certification basis, traceability,
compliance dependencies, means of compliance, etc.) for the project.
In summary, the foregoing milestones would be used to monitor,
review, and assess the progress of the proposed airplane design and
systems toward compliance, jointly by the FAA and the applicant.

C. Updating Transport Category Airplane Certification Plans With Safety
Critical Information

This proposal would require applicants for new and amended TCs for
transport category airplanes to submit safety critical information as
an update to the certification plan that proposed Sec. 21.15(d) would
require. Proposed Sec. 21.15(e) would require that this update to the
applicant's certification plan include or describe all of the safety
critical information set forth in proposed Sec. 21.1(c). An
explanation of each of these five categories of safety critical
information is set forth later in this proposal.
Regarding the level of detail to be provided with the submittal of
safety critical information with the

[[Page 4847]]

certification plan update under Sec. 21.15(e), the FAA recognizes that
the type design for a transport category airplane project may not be
sufficiently developed at the time of initial submittal to include a
thorough discussion of all safety critical information.
Applicants would be required to describe safety critical
information in the update required by proposed Sec. 21.15(e). This
safety critical information would be as described elsewhere in this
NPRM. The certification plan update would also include the anticipated
relevant deliverables that are necessary to accomplish the requirements
of the certification plan. This initial submittal of safety critical
information with the certification plan update would be one step in the
iterative process that builds toward the applicant's eventual
compliance showings with certain regulations.
For example, the safety assessment process is often used by
applicants to show compliance with certain regulatory design standards
that are relevant to the section 105 categories of safety critical
information, such as Sec. 25.1309. Common and FAA -accepted means of
compliance with that regulation are SAE Aerospace Recommended Practice
(ARP)4761, ``Guidelines and Methods for Conducting the Safety
Assessment Process on Civil Airborne Systems and Equipment,'' AC
25.1309-1A, and the ``Arsenal'' version of AC 25.1309-1A,\48\ which
include safety assessment techniques. As previously noted in this NPRM,
the ``Arsenal'' version of AC 25.1309-1A, has been accepted since 2001
when used in conjunction with an equivalent level of safety finding.
That AC documents an established means for an applicant to show
compliance to regulations, such as Sec. 25.1309, related to safety
critical information. Thus, the deliverables provided by these means of
compliance are, and under this proposal would continue to be, regularly
reviewed at proposed milestones.
---------------------------------------------------------------------------

\48\ See footnote 9.
---------------------------------------------------------------------------

The FAA proposes that requiring the submittal of safety critical
information, even in preliminary form, at the time of application could
be unreasonably early, given the likely state of the proposed design,
especially for complex projects or new TCs. Thus, to implement this
requirement to submit safety critical information, applicants for new
or amended transport category airplane TCs would be required to
identify, as part of their initial proposed certification plan, their
expected (requested) certification date. This would align with current
practice. Then, to ensure that the FAA has adequate time to review the
safety critical information, the transport category airplane applicant
would be required to submit that safety critical information no later
than 6 months prior to the applicant's requested certification date, or
within one year of submittal of the application, whichever is earlier.
The FAA requests comment on these proposed timeframes.
Section 105 begins with ``Notwithstanding a delegation described in
section 44702(d). . .'' Section 44702(d) authorizes the Administrator
to delegate, to qualified private persons, certain matters related to
the issuance of certificates, including type certificates. Therefore,
the FAA proposes in this NPRM that all new submittals, and all ongoing
disclosures, of safety critical information, by applicants be made to
the FAA itself, not to any individual or organizational designee.
This initial submittal would not end the applicant's obligation to
provide safety critical information to the FAA. Section 105
distinguishes between two required obligations: of the initial
submittal, and then the ongoing disclosure, of safety critical
information.

D. Continuing Disclosure Requirement for New and Amended Transport
Category Airplane TC Applications

Proposed Sec. 21.15(f) would require transport category airplane
applicants, for the remainder of the certification process, to inform
the FAA, within 3 business days of discovery, of any information or
proposed design or analysis change that would materially alter \49\
their previously-submitted safety critical information.
---------------------------------------------------------------------------

\49\ ``Materially alter'' would mean potentially affecting or
negating a compliance showing, a certification assumption (e.g.,
design, human factors, operational training, etc.), or the FAA's
level of involvement (e.g., delegation decisions).
---------------------------------------------------------------------------

An example of such a proposed ``design or analysis change'' would
be the discovery that a system safety analysis that the applicant
previously submitted pursuant to this proposal, or was planned to be
used as part of the applicant's showing of compliance with Sec.
25.1309, erroneously misstated the likelihood of a hazard. This
disclosure could be the applicant's identification of an error in a
fault tree analysis.
The FAA proposes that such design or analysis change would be
required to be submitted within 3 days of discovery, rather than later,
due to the potential importance of this information to safety and
compliance, and to minimize the likelihood that the change delays the
project.

E. Submittal Requirement for Holders of Transport Category Airplane TCs
Covered Under Part 25

Proposed Sec. 21.3(g) would require each holder (except STC
holders) of a transport category airplane TC covered under part 25,
within 90 days of the effective date of the final rule, to submit
categories of safety critical information, if known and if not
previously submitted, to the FAA for each model. The categories of
required safety critical information for holders would be the same as
for applicants, and would be defined in proposed Sec. 21.1(c).\50\
---------------------------------------------------------------------------

\50\ As with the requirement for applicants, athough a
supplemental type certificate is a form of type certificate (14 CFR
21.20), per section 105 there would be no requirement for submittal
of safety critical information that would be triggered by the
holding of STCs covered under part 25, only by the holding of
original and amended type certificates.
---------------------------------------------------------------------------

The FAA does not expect this submittal to be voluminous, or its
preparation burdensome or overly time-consuming. First, much of the
required safety critical information will have already been submitted
to the FAA, through the TC application and certification process.
Safety critical information is included in the type design, operating
limitations, substantiation documents, and other required information
as a part of the TC.
Also, the FAA proposes that holders would be required to submit
such information if ``known'' The purpose of this proposed limitation
is to clarify that the new submittal requirement would not be intended
to prompt all holders of transport category airplane TCs covered under
part 25 to reevaluate all of their safety critical information for
previously-approved designs, or interview past employees. Rather,
safety critical information is ``known'' to the holder if any FAA
designee including ODA staff (including administrators and unit
members), any current manager \51\ or responsible agent of the TC
holder, or any employee of the TC holder with authority over or
involvement in certification activities has knowledge of the
information.
---------------------------------------------------------------------------

\51\ The FAA intends that ``manager'' would not be limited to
persons who supervise other persons, and would also include other
persons with managerial duties, including program managers, project
managers, risk managers, safety managers, etc.
---------------------------------------------------------------------------

The FAA also proposes that previously-submitted information would
not need to be resubmitted by TC holders or ODA holders to the FAA. As
noted above, much of this information will have been previously
submitted by

[[Page 4848]]

the holder, as part of the type certification process. While section
105(a) begins with ``[n]otwithstanding a delegation,'' the FAA does not
consider that limitation to be retrospective. Thus, the previous
submittal to a representative of the FAA \52\ that was authorized to
make a compliance finding on the agency's behalf, would qualify as
having been previously submitted.
---------------------------------------------------------------------------

\52\ The FAA proposes that this allowance would only apply to
organizational, not individual, designees. Only submittals that were
previously made to Representatives of the Administrator authorized
in accordance with 14 CFR part 183, subpart D would qualify.
---------------------------------------------------------------------------

The FAA further proposes to limit the scope of this submittal
requirement, and the ongoing disclosure requirement described in the
next section, to just those transport category airplane TC holders
whose airplanes are ``covered under part 25 [of title 14].'' This would
make the proposal consistent with the text of section 105. It would
thus exclude transport category airplanes that do not have 14 CFR part
25 in their certification basis.

F. Requirement for Subsequent Continuing Disclosure by TC Holders of
Transport Category Airplanes Covered Under Part 25

Proposed Sec. 21.3(g), beginning 90 days after the effective date
of the proposed rule, would require TC holders, should they become
aware of any newly discovered safety critical information, or a design
or analysis change that would materially alter \53\ any submission to
the FAA of the information defined under Sec. 21.1(c), to disclose
such information to the FAA within 3 business days of the discovery.
Like the mandated submittal of safety critical information by holders,
this ongoing disclosure would be required to be made to the FAA itself,
not to a designee such as an ODA.
---------------------------------------------------------------------------

\53\ ``Materially alter'' would mean potentially affecting or
negating a compliance showing, impacting a certification assumption
(e.g., design, human factors, operational training, etc.), or that
would affect, or would have affected, the FAA's level of involvement
(e.g., delegation decisions).
---------------------------------------------------------------------------

The FAA proposes that the 90-day start date for this ongoing
disclosure would logically follow the proposed deadline (within 90
days) for the initial submittal of safety critical information by TC
holders. The FAA also considers that 90 days would be sufficient time
for transport category airplane TC holders to review their internal
procedures and make any necessary revisions in order to facilitate the
proposed ongoing disclosure requirements.

G. Interaction of This Proposal With Current Submittal and Disclosure
Requirements

As discussed in section B of this NPRM, TC and ODA holders
currently submit certain information to the FAA, under the auspices of
regulations such as Sec. Sec. 21.3 and 183.63. Some safety critical
information is likely to also prompt reporting under those two
regulations. However, under this proposal, a TC holder of an airplane
covered under part 25 would not be relieved of any other reporting
obligation such as those under Sec. 21.3, and an ODA holder similarly
not relieved of any reporting obligation under part 183, as a result of
the new obligation, which Congress required the FAA to mandate, to
disclose safety critical information. Section 21.3 reports are, as
reflected by their precise topics and accelerated timelines, urgent
safety matters. Existing part 183 reporting may not characterize the
safety critical information as clearly as is needed to implement this
statutory mandate. However, the FAA requests comment on how these
reporting processes might dovetail with this proposal, for greater
efficiency in implementing the Congressional mandate.
Existing Sec. 21.3(e) establishes timeframes for the required
submittal of information under Sec. 21.3. Those timeframes are
relatively short, due to the likely urgent safety implications of the
information. Proposed Sec. 21.3(g) includes timelines appropriate to
the submittal of safety critical information. Therefore, as part of the
implementation of proposed Sec. 21.3(g), this NPRM proposes a minor
revision of Sec. 21.3(e), to exclude the information that would be
submitted as part of Sec. 21.3(g) from the requirements of paragraph
(e), and to change the title of that section.

H. Explanations of Five Categories of Safety Critical Information

Proposed Sec. 21.1(c) would contain the definitions of the five
categories of safety critical information for the purposes of proposed
Sec. Sec. 21.15(e) and (f), and 21.3(g). Each category of safety
critical information that the FAA proposes, as required by Congress, to
require to be submitted and subsequently disclosed by applicants in
proposed Sec. 21.15(e) and (f), and by holders in proposed Sec.
21.3(g), is explained as follows.
1. Uncommanded Operation of Safety Critical Functions and Features
The first category of safety critical information that the FAA,
pursuant to Congress' direction, would require applicants and holders
to submit and disclose would be all design and operational details,
intended functions, and failure modes of any system that, without being
commanded by the flightcrew, commands the operation of any safety
critical function or feature required for control of the airplane
during flight or that otherwise changes the flight path or airspeed of
an airplane.
The FAA proposes that the regulatory definition of this category of
information would be the same as the statutory definition, except for
changing the opening ``Any'' to ``All'' to ensure that all, not just
selected, information is provided, and making ``flight crew'' one word
for consistency with other parts of 14 CFR.\54\ The FAA provides the
following explanation of some of the terms in this category of safety
critical information.
---------------------------------------------------------------------------

\54\ The FAA's proposed definitions of safety critical
information also include minor, nonsubstantive changes to facilitate
regulatory implementation, such as replacing ``14 CFR'' with ``this
chapter,'' etc.
---------------------------------------------------------------------------

First, the ``system(s)'' which the FAA proposes would be covered by
this requirement include, but are not limited to, flight control
systems and other computer (software) controlled systems (e.g.,
autopilot, stability augmentation, automatic trim, autothrottle
(autothrust), envelope protection), whose failure or erroneous
activation would present a risk rated hazardous or catastrophic.
A ``safety critical function or feature'' would be one whose
failure could be hazardous or catastrophic. This would align with how
the FAA has defined safety critical in other contexts, including
transport category airplane SSA.\55\
---------------------------------------------------------------------------

\55\ Per the ``Arsenal'' version of AC 25.1309-1A, Safety
critical for transport category airplanes, means a function,
component or system whose failure could be hazardous or
catastrophic.
---------------------------------------------------------------------------

Regarding ``all design and operational details,'' the FAA proposes
that such details would be those with relevance to a referenced
system's function, failure, or operational suitability. Under current
practice, in order to show compliance with Sec. Sec. 25.1301(a) and
25.1309(a), the submitted information would include sufficient design
and operational detail, and description of the intended function, to
enable the FAA to assess whether the equipment is of a kind and design
appropriate to its intended function and performs its intended function
under any operating condition. Section 25.1309(d) requires the
applicant to submit an analysis of the possible modes of failure,
probability of failures, resulting effects, etc., (i.e., a system
safety assessment) to show

[[Page 4849]]

compliance to Sec. 25.1309(b).\56\ Thus, applicants for transport
category airplane TCs covered under part 25 are already required to
submit this information through the certification process.\57\
---------------------------------------------------------------------------

\56\ 14 CFR 25.1309(b) establishes certain reliability
requirements for airplane systems, equipment, and installations.
\57\ Section 21.20 requires the applicant to show compliance
with all applicable requirements, provide the FAA the means by which
such compliance has been shown, and to certify such compliance.
---------------------------------------------------------------------------

The FAA notes some overlap between this proposed category of
information and the information that Sec. 21.3(c)(11) requires
manufacturers to submit to the FAA: ``any . . . flight control
malfunction, defect, or failure which causes an interference with
normal control of the aircraft for which derogates the flying
qualities.'' However, as previously discussed, any such overlap would
not obviate the initial submittal and subsequent disclosure
requirements that Congress directed the FAA to mandate, not only upon
applicants, but also upon holders of transport category airplane TCs.
The FAA anticipates that this category of safety critical
information should not be overly difficult or time-consuming for
holders to submit or continue to disclose. As previously noted, part 25
transport category airplane TC holders will have disclosed much, if not
all, of this information when seeking their original or amended TC. For
example, much ``safety critical'' information would have been disclosed
as part of showing of compliance with Sec. 25.1309, as described
above.
2. Aspects of Autopilot and Autothrottle (Autothrust) Systems
The next category of mandatory safety critical information that the
FAA would require applicants and holders to submit and disclose would
be all design and operational details, intended functions, failure
modes, and mode annunciations of autopilot and autothrottle systems, if
applicable.
For purposes of this requirement, the term ``autopilot'' means a
function that would provide automatic control of the airplane,
typically in pitch, roll, and yaw. The term includes the sensors,
computers, power supplies, servo-motors/actuators and associated
wiring, necessary for its function. It includes any indications and
controllers necessary for the pilot to manage and supervise the system.
Any part of the autopilot system that remains connected to the primary
flight controls when the autopilot is not in use is regarded as a part
of the primary flight controls.\58\
---------------------------------------------------------------------------

\58\ Reference AC 25.1329-1C, appendix B.
---------------------------------------------------------------------------

For purposes of this requirement, the term ``autothrottle
(autothrust)'' means a function that provides automatic control of the
thrust of the airplane. The term includes the sensors, computers, power
supplies, servo-motors/actuators and associated wiring, necessary for
its function. It includes any indications and controllers necessary for
the pilot to manage and supervise the system. Any part of the
autothrust that remains connected to the engine controls when the
autothrust is not in use is regarded as a part of the engine control
system.
For the purposes of this requirement, a ``mode annunciation'' is a
function that provides the flightcrew with awareness of the current
automation mode, alerts them of any mode changes or failures that could
degrade the handling or operational characteristics of the airplane,
and may require the flightcrew to alter their primary control strategy.
The mode annunciation is included because it is imperative that the
flightcrew understand the state of the airplane systems so they can
interact with those systems appropriately as they fly the airplane. The
FAA posits that Congress included mode annunciation in this category
because it is imperative that the flightcrew understand the state of
the airplane systems to minimize flightcrew errors and confusion
concerning the behavior and operation of the flight guidance system as
they fly the airplane.
Although paragraph (B) of section 105(a) did not begin with the
term ``any'' or ``all,'' the FAA is proposing that ``all'' such
details, failure modes, etc., known to the applicant or holder would be
required to be submitted and subsequently disclosed. This is to ensure
that all, not just selected, applicable information is provided.
Again, while there may be overlap with Sec. 21.3(c)(11), as
discussed in section B of this NPRM, the FAA proposes that this would
be an independent requirement.
The FAA again anticipates that this information would not be overly
difficult or time-consuming for applicants or holders to submit or
disclose, because the compliance document(s) would have been submitted
by the applicant as part of its showings of compliance and the company
would be highlighting how the discovered information affects that prior
showing of compliance with substantive regulations (for example,
Sec. Sec. 25.1301(a) and 25.1309(a), (c), and (d) for certain
equipment, systems, and installations; Sec. 25.1322 for flightcrew
alerting; and certain paragraphs of Sec. 25.1329 for flight guidance
systems).
3. Failures That Could Result in Hazardous or Catastrophic Outcomes
The next category of safety critical information that the FAA
proposes that applicants and holders be required to submit and continue
to disclose, is all failure or operating conditions that the TC
applicant or holder anticipates or has concluded would result in an
outcome with a severity level of hazardous or catastrophic.
As previously noted, current FAA guidance for applicants addresses
catastrophic failure and operating conditions, but does not explicitly
address ``hazardous'' conditions.\59\ However, as previously discussed,
the ``Arsenal'' version of AC 25.1309-1A does so, and therefore
applicants typically address hazardous failure and operating conditions
in their SSAs.
---------------------------------------------------------------------------

\59\ AC 25.1309-1A.
---------------------------------------------------------------------------

``Hazardous'' for purposes of this proposed rule would be the
following:
A failure condition that would reduce the capability of the
airplane or the ability of the flightcrew to cope with adverse
operating conditions to the extent that there would be--
<bullet> A large reduction in safety margins or functional
capabilities,
<bullet> Physical distress or excessive workload such that the
flightcrew cannot be relied upon to perform their tasks accurately or
completely, or
<bullet> Serious or fatal injuries to a relatively small number of
persons other than the flightcrew.\60\
---------------------------------------------------------------------------

\60\ For the purpose of performing a safety assessment, a
``small number'' of fatal injuries means one such injury.
---------------------------------------------------------------------------

``Catastrophic'' for purposes of this rule would be a failure
condition that would result in multiple fatalities, usually with the
loss of the airplane.\61\
---------------------------------------------------------------------------

\61\ A catastrophic failure condition was defined in previous
versions of 14 CFR 25.1309, and is currently defined in AC 25.1309-
1A as a failure condition that would prevent continued safe flight
and landing. Continued safe flight and landing was defined in AC
25.1309-1A as: ``The capability for continued controlled flight and
landing at a suitable airport, possibly using emergency procedures,
but without requiring exceptional pilot skill or strength.'' Some
airplane damage may be associated with a failure condition, during
flight or upon landing.'' For the purpose of performing a safety
assessment, ``multiple fatalities'' means two or more fatalities.
---------------------------------------------------------------------------

The FAA anticipates that this category of safety critical
information would not be overly difficult or time-consuming for
applicants or holders to submit or disclose, for several reasons.
First, applicants will submit, and all current TC holders would
have submitted, during certification of

[[Page 4850]]

transport category airplanes with a certification basis after Amendment
25-23,\62\ information about failure conditions that would result in
outcomes with a severity level of major and catastrophic. New TC
applicants include a functional hazard assessment as part of their
compliance showings. The FAA anticipates that most if not all of the TC
holders whose designs were approved using the ``Arsenal'' version of AC
25.1309-1A as a means of compliance would not have to submit any new
information here, unless a compliance assumption or determination has
changed which materially alters that assessment. The ``major'' hazard
category \63\ defined by AC 25.1309-1A is divided into two categories
in the ``Arsenal'' version: ``hazardous'' and ``major,'' with
corresponding probability requirements of ``extremely remote'' (on the
order of 10-\9\ -\7\) and ``remote'' (on
the order of 10-\7\ -\5\), respectively.
The granular assessment of failure conditions in the ``Arsenal''
version allows for more accurate analysis of highly integrated systems,
which perform complex and interrelated functions, particularly through
the use of electronic technology and software-based techniques. This
more granular categorization also allows for better differentiation of
failure effects on flightcrew than the current requirements of Sec.
25.1309(b). The ``hazardous'' category in the ``Arsenal'' version
corresponds to the more severe end of the ``major'' category in current
Sec. 25.1309(b)(2), which is referred to as ``severe major'' in AC
25.1309-1A. Thus, the FAA is applying the ``Arsenal'' version of
hazardous for this proposed rule.
---------------------------------------------------------------------------

\62\ 35 FR 5665 (April 8, 1970), effective May 8, 1970.
\63\ Reference AC 25.1309-1A, dated June 21, 1988.
---------------------------------------------------------------------------

The FAA also notes that the requirement in section 105(a), and thus
this NPRM, is intended to prompt the submittal, disclosure, and
assessment of potential failure conditions that could have an outcome
of hazardous or catastrophic. The FAA invites comment on this issue.
4. Software-Dependent Handling Qualities
The fourth category of safety critical information that the FAA
would require applicants and holders to submit and disclose would be
any adverse handling quality that fails to meet the requirements of
part 25 of this chapter without the addition of a software system to
augment the flight controls of the airplane to produce compliant
handling qualities.
For purposes of this rulemaking, and consistent with FAA policy, an
``adverse'' handling quality would be one that does not meet the
applicable regulations on handling qualities in part 25. Some of the
``applicable regulations'' for purposes of this requirement would be
the Controllability and Maneuverability regulations in subpart B of
part 25; Sec. 25.672, Stability augmentation \64\ and automatic and
power-operated systems; and Sec. 25.1309(d), Equipment, systems, and
installations. These sections include requirements to ensure the
airplane is aerodynamically stable, and predictable in its handling.
``Handling qualities'' as applied here is intended to address pilot in
the loop control of the aircraft trajectory and thus includes
assessment of those systems which rely, primarily, on pilot input to
effect changes in that trajectory.
---------------------------------------------------------------------------

\64\ Per AC 25.1329-1C, a ``Stability Augmentation System''
consists of automatic systems that provide or enhance stability for
specific aerodynamic characteristics of an airplane (for example,
yaw damper, longitudinal stability augmentation system, Mach trim).
---------------------------------------------------------------------------

Examples of such ``software system(s)'' include MCAS on the Boeing
737 MAX, pitch augmentation for the Boeing Model 777, and a flight
control system that controls the yaw damper system of an airplane.
The FAA notes the similarity of this provision of the proposed
fourth category with the requirement of Sec. 21.3(c)(11), but again
posits that it is sufficiently different that a separate requirement is
necessary for holders, in order to comply with the statute.
The FAA anticipates that this information would not be overly
difficult or time-consuming for applicants or holders to submit or
disclose, because by definition the system was required for the
airplane to be compliant with FAA stability standards, and therefore
would have been on the airplane's compliance documentation.
5. SSA for Components and Systems With Potentially Hazardous or
Catastrophic Outcomes
The fifth and final category of mandatory safety critical
information that the FAA would require applicants and holders to submit
and disclose would be a system safety assessment with respect to a
system described in paragraph (1) or (2) of proposed Sec. 21.1(c), or
with respect to any component or other system for which failure or
erroneous operation of such component or system could result in an
outcome with a severity level of hazardous or catastrophic.
The FAA anticipates that previously-approved transport category
airplane designs covered under part 25 will likely have this
information in their SSAs, and that everything from a ``hazardous'' to
a ``catastrophic'' failure condition would be included, and therefore
not required to be resubmitted by a holder. Section 25.1309(d) requires
all applicants for transport category airplane TCs to submit an
analysis of the possible modes of failure, probability of failures,
resulting effects (including effects of erroneous operation), etc.,
(i.e., an SSA) to show that proposed design's compliance to Sec.
25.1309(b).
The definitions of catastrophic and hazardous would be as
previously noted. For purposes of proposed Sec. 21.3(g), applicants
and holders could use the definitions in the ``Arsenal'' version of AC
25.1309-1A, or in relevant FAA regulation or policy issued after the
effective date of this proposed rule.

V. Regulatory Notices and Analyses

Federal agencies consider impacts of regulatory actions under a
variety of executive orders and other requirements. First, Executive
Order 12866 and Executive Order 13563, as amended by Executive Order
14094 (``Modernizing Regulatory Review''), direct that each Federal
agency shall propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify the
costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354)
requires agencies to analyze the economic impact of regulatory changes
on small entities. Third, the Trade Agreements Act (Pub. L. 96-39)
prohibits agencies from setting standards that create unnecessary
obstacles to the foreign commerce of the United States. Fourth, the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies
to prepare a written assessment of the costs, benefits, and other
effects of proposed or final rules that include a Federal mandate that
may result in the expenditure by State, local, and Tribal governments,
in the aggregate, or by the private sector, of $100,000,000 or more
(adjusted annually for inflation) in any one year. The current
threshold after adjustment for inflation is $177,000,000, using the
most current (2022) Implicit Price Deflator for the Gross Domestic
Product. This portion of the preamble summarizes the FAA's analysis of
the economic impacts of this rule.

[[Page 4851]]

In conducting these analyses, the FAA has determined that this
rule: would result in minimal costs; is not a `significant regulatory
action' as defined in section 3(f) of Executive Order 12866; will not
have a significant economic impact on a substantial number of small
entities; will not create unnecessary obstacles to the foreign commerce
of the United States; and will not impose an unfunded mandate on State,
local, or Tribal governments, or on the private sector.

A. Regulatory Impact Analysis

This rule would implement a Congressional mandate by imposing new
regulatory requirements (proposed Sec. 21.15(d), (e), and (f) for
applicants for new and amended TCs and proposed Sec. 21.113(c)(1)
through (c)(4) for applicants for new and amended STCs, and new
regulatory requirements (proposed Sec. 21.3(g)(1) and (2)) for TC
holders. This proposal would add definitions for safety critical
information, in proposed Sec. 21.1(c).
The following paragraphs describe the proposal, the baseline
(current rule or current practice or current policy), and the costs/
benefits. The FAA expects the costs to be minimal as described below.
Benefits are addressed qualitatively.
1. Applicants and Holders (Section 21.1(c)(1) Through (5))
Proposal: As part of its implementation of the Congressional
mandate related to safety critical information, the FAA would define
five categories of safety critical information in proposed Sec.
21.1(c)(1) through (5).
Baseline: These five specific categories of safety critical
information are not currently defined in FAA regulations.
Costs/Benefits: This provision would impose no costs. These
definitions of safety-critical information would facilitate the
regulatory implementation of five categories of safety critical
information in the Congressional mandate, and would inform applicants
for, and holders of, TCs for transport airplanes covered under part 25
regarding what must be submitted and disclosed under proposed
Sec. Sec. 21.15(e), (f), and 21.3(g).
2. Applicants
a. Section 21.15(d)
Proposal: An application for a TC, including a new or amended TC,
would be required to be accompanied by a proposed certification plan.
Baseline: Currently, applicants for TCs submit a proposed
certification plan to the FAA at the time of application as indicated
in FAA Order 8110.4C.
Costs/Benefits: The FAA, as part of its implementation of the
Congressional mandate, would establish a specific regulatory
requirement for applicants to submit a certification plan. This would
continue longstanding existing practices and thus involve minimal cost.
b. Section 21.15(d)(1)
Proposal: The certification plan must include a proposed
certification basis.
Baseline: The proposed certification plan submitted by applicants
under current practices includes a proposed certification basis, as
described in FAA Order 8110.4C.\65\
---------------------------------------------------------------------------

\65\ See footnote 15.
---------------------------------------------------------------------------

Costs/Benefits: The proposal would implement part of the
Congressional mandate and would incur minimal costs as the applicant
already includes a proposed certification basis under the guidance in
FAA Order 8110.4C.
c. Section 21.15(d)(2)
Proposal: The applicant's proposed certification plan would be
required to include a proposed compliance checklist that contains the
means of compliance, and that identifies all deliverables that the
applicant anticipates will be necessary to show compliance.
Baseline: The proposed certification plan is submitted by
applicants under current practices as described in FAA Order 8110.4C.
Applicants submit a list of deliverables to show compliance with the
applicable certification basis and how the applicant will ensure all
showing have been made. This can be accomplished using a compliance
checklist addressing each regulation applicable to the product. A
description of how compliance will be shown (e.g., ground test, flight
test, analysis, similarity, or other acceptable means of compliance) is
also included in FAA Order 8110.4C as part of a certification plan.
Costs/Benefits: The proposal would implement part of the
Congressional mandate and would incur minimal costs as the applicant is
already including a proposed compliance checklist with means of
compliance identifying all known compliance deliverables that the
applicant anticipates will be necessary to show compliance.
d. Section 21.15(d)(3)
Proposal: The proposed certification plan would be required to
include a proposed project schedule with proposed milestones.
Baseline: Applicants for TCs include a proposed project schedule
with proposed milestones in their certification plans as described in
FAA Order 8110.4C.
Costs/Benefits: The proposal would implement part of the
Congressional mandate and incur minimal costs as the applicant is
already including a proposed schedule with proposed milestones.
e. Section 21.15(d)(4)
Proposal: The applicant's proposed certification plan would be
required to include any other information necessary to allow the
applicant's showings and certifying statement, and the FAA's findings,
of compliance to be timely and accurately made.
Baseline: Applicants for TCs and amended TCs submit proposed
certification plans under the guidance in FAA Order 8110.4C \66\ that
include any information necessary to allow the applicant's showings and
certifying statement, and the FAA's findings, of compliance to be
timely and accurately made.
---------------------------------------------------------------------------

\66\ Paragraphs 2-3d.(1) through (11), as applicable to the
certification project.
---------------------------------------------------------------------------

Costs/Benefits: This rule would establish specific regulatory
requirements for the information to be submitted in certification
plans. These specific regulatory standards would be consistent with the
informational and planning purposes of the categories of information
typically submitted by applicants. Applicants could, and the FAA
expects most applicants still would, use those existing categories as a
means of compliance.
f. Section 21.15(d)(5)
Proposal: An application for a new or amended, but not
supplemental, TC for a transport category airplane would be required to
include a proposed milestone that identifies the applicant's requested
date for TC issuance.
Baseline: Applicants for TCs include milestones in their
certification plans that include the applicant's expected certification
date as indicated in FAA Order 8110.4C.
Costs/Benefits: Due to the alignment of the proposal with current
practices, the FAA expects minimal costs.
g. Section 21.15(e)
Proposal: For applicants for a new or amended, but not
supplemental, type certificate for a transport category airplane, the
proposed certification plan would be required to be updated to include
or describe all of the safety critical information set forth in Sec.
21.1(c).

[[Page 4852]]

The applicant would be required to submit this update to the FAA within
1 year of submitting the application, but no later than 6 months prior
to the requested date of issuance of the type certificate.
Baseline: Applicants for transport category airplane TCs currently
submit information describing their proposed design and operational
details, means of showings of compliance and proposals for findings of
compliance, in order to show that their proposed designs comply with
several relevant regulations. Currently, applicants submit this
compliance information throughout the certification process.
Costs/Benefits: Safety critical information about its proposed
design and operational suitability should already be available to the
transport airplane applicant, even in preliminary form, at the time of
submittal of the required update to the certification plan, so there
should be no additional costs of identifying this information for
submission. Submission costs should be negligible.
The FAA would be more likely to receive safety critical information
in a timely manner. The agency would also be more likely to receive
safety critical information as the applicant would be aware of what
information is considered safety critical due to the definitions in
proposed Sec. 21.1(c).
This could have a safety benefit because the agency would be aware
of this important information relatively early in the certification
process and would be more likely to receive specific safety critical
information at that point. The FAA could then identify and provide
feedback to the applicant about their proposed design and compliance
information specific to safety critical information early.
h. Section 21.15(f)
Proposal: Each applicant for a new or amended TC for a transport
category airplane would, within 3 business days of discovery, be
required to disclose to the FAA any information or design or analysis
change that would materially alter any prior submission of the safety
critical information defined in Sec. 21.1(c). The proposed rule would
clearly define the FAA, not a designee, who would receive the safety
critical information for transport category airplanes from applicants.
Baseline: The transport category airplane applicant currently keeps
its proposed design, operational, and compliance information updated
throughout the project, but there is no specific timeframe for them to
disclose new safety critical information to the FAA or for the types of
changes that require disclosure. Under the current practice it can
sometimes be a designee, or person within an ODA unit, who receives the
updated information.
Costs/Benefits: The FAA expects that the cost would be minimal
because the applicant is currently expected to keep their information
current. However, the rule would require the information or design or
analysis change to be disclosed to the FAA within 3 business days of
discovery. The FAA does not expect this prompt submission of the
information to the FAA to be costly.
This could have a safety benefit because the agency would be aware
of changes to safety critical information earlier (within 3 business
days of discovery). The FAA could then identify and share potential
concerns about the changes with the applicant earlier, and resolve
these concerns earlier.
Also, there might be a benefit of submitting directly to the FAA,
as it would be more likely that the appropriate information would get
to the FAA. When investigating the FAA's certification of the Boeing
737 MAX, a Congressional committee found that Boeing did not clearly
relay important safety related information to the FAA because there was
no requirement to do so.\67\ According to the committee report,\68\
this
---------------------------------------------------------------------------

\67\ House Report at pg. 57.
\68\ By quoting this report, the FAA is not taking a position on
the causes or avoidance of the accidents, but simply noting what
appears to have led to the legislation.

``. . . hinder[ed] a more comprehensive FAA review of the 737
---------------------------------------------------------------------------
MAX which may have improved the safety of the airplane . . .''

i. Section 21.113(c)
Proposal: Applications for new and amended STCs would, like
applications for new and amended TCs, be required to be accompanied by
a proposed certification plan.
Baseline: Currently, applicants for STCs submit a proposed
certification plan to the FAA at the time of application.
Costs/Benefits: The proposal would incur minimal costs as STC
applicants already submit proposed certification plans. The proposal
would establish consistency in the requirements for TC and STC
applicants by also adding the requirement for STC applicants and
aligning the process for both certificate types.
j. Section 21.113(c)(1)
Proposal: The certification plan must include a proposed
certification basis.
Baseline: The proposed certification plan submitted by applicants
under current practices includes a proposed certification basis as
described in FAA Order 8110.4C.
Costs/Benefits: The proposal would establish consistency in the
requirements for TC and STC applicants by aligning the process for both
certificates and would incur minimal costs as the applicant is already
including a proposed certification basis.
k. Section 21.113(c)(2)
Proposal: The applicant's proposed certification plan would be
required to include a proposed compliance checklist that contains means
of compliance, and that identifies all deliverables that the applicant
anticipates will be necessary to show compliance.
Baseline: The proposed certification plan is submitted by
applicants under current practices as described in FAA Order 8110.4C.
Applicants submit a list of deliverables to show compliance with the
applicable certification basis and to show how the applicant will
ensure all showings have been made. This can be accomplished by using a
compliance checklist that addresses each regulation applicable to the
product. A description of how compliance will be shown (e.g., ground
test, flight test, analysis, similarity, or other acceptable means of
compliance) is also included in FAA Order 8110.4C as part of a
certification plan.
Costs/Benefits: The proposal would incur minimal costs as the
applicant already includes a proposed compliance checklist that
contains means of compliance, and that identifies all deliverables that
the applicant anticipates will be necessary to show compliance. The
proposal would establish consistency in the requirements for TC and STC
applicants by also adding the requirement for STC applicants.
l. Section 21.113(c)(3)
Proposal: The proposed certification plan would be required to
include a proposed project schedule with proposed milestones.
Baseline: Applicants for STCs include a proposed project schedule
with proposed milestones in their certification plans as described in
FAA Order 8110.4C.
Costs/Benefits: The proposal would incur minimal costs as STC
applicants are already submitting proposed milestones with their
certification plans. The proposal would establish consistency in the
requirements for TC and STC applicants by aligning the process for both
certificate types.

[[Page 4853]]

m. Section 21.113(c)(4)
Proposal: The certification plan for an STC would be required to
include any other information necessary to allow the applicant's
showings and certifying statement, and the FAA's findings, of
compliance to be timely and accurately made.
Baseline: Applicants for STCs submit proposed certification plans,
that include under the guidance in FAA Order 8110.4C any information
necessary to allow the applicant's showings, and the FAA's findings, of
compliance to be timely and accurately made.
Costs/Benefits: The proposal would incur minimal costs as STC
applicants are already submitting proposed certification plans with
information necessary to allow the applicant's showings, and the FAA's
findings, of compliance to be timely and accurately made. The proposal
would also establish consistency in the requirements for TC and STC
applicants by also adding the requirement for STC applicants and
aligning the process for both certificate types.
3. Holders
a. Section 21.3(g)(1)
Proposal: The holder of a TC, including an amended TC but not
including an STC, for a transport category airplane covered under part
25 would, within 90 days of (effective date of final rule), be required
to submit to the FAA, for each model, all safety critical information,
as defined by Sec. 21.1(c), which is known and which has not
previously been submitted to the FAA.
Baseline: Holders of transport category airplane TCs are currently
required to submit much of the safety critical information defined by
Sec. 21.1(c) to the FAA. TC holders currently submit, or have already
submitted, much of this information via a variety of regulatory and
policy mechanisms. As an applicant, prior to receiving the transport
category airplane TC, the holder would have had to have shown
compliance with regulations such as Sec. 25.1309. Such compliance
would have included compliance data which correlates with the five
categories of safety critical information. Also, holders of such
certificates have an ongoing regulatory obligation to inform the FAA of
certain failures, malfunctions, and defects, including those that would
affect the flight control system pursuant to Sec. 21.3(c)(11). The
majority of current domestic holders of part 25 transport category
airplane TCs are also ODA holders. Such ODA holders have an ongoing
obligation to inform the FAA of potential safety and compliance issues
with their approved designs, pursuant to Sec. 183.63.
Cost/Benefits: The FAA expects minimal cost. First, the scope of
the covered information is relatively narrow. Second, as described in
the preceding paragraph, FAA expects that much if not all of such
information will have already been submitted by the holder.
The benefits of this requirement would be ensuring that the FAA
would be aware of safety critical information, if any, that it had not
previously been made aware of. This would be a potential safety benefit
as the FAA would be able to identify and address any potential issues.
b. Section 21.3(g)(2)
Proposal: The holder of a transport category airplane TC covered
under part 25 would be required to disclose to the FAA, within 3
business days of discovery, any newly discovered information or design
or analysis change that would materially alter any safety critical
information as defined by Sec. 21.1(c).
Baseline: As described above, TC holders and ODA holders are
required to submit certain information to the FAA on an ongoing basis.
Some of this information, such as that required by Sec. 21.3, must
generally be submitted within 24 hours. The timeline for submittal of
other information is dependent on the nature of the information and the
provisions of the ODA holder's FAA-approved ODA procedures manual.
However, there is not a specific requirement to disclose safety
critical information, as would be defined in proposed Sec. 21.1,
within 3 business days.
Costs/Benefits: Because, as described above, most of this
information is already being updated (disclosed to the FAA) pursuant to
existing processes, the FAA expects that this requirement, of
disclosing information to the FAA within 3 days, will carry a minimal
cost. The FAA expects that the provision would ensure that the safety
critical information as specifically defined by Congress would be
provided to the FAA in a timely manner.
The FAA calls for comment on all the preceding determinations.
4. Conclusion
Based on the preceding discussion, the FAA concludes that the
proposed rule would impose minimal costs on industry, as discussed in
the regulatory notices and analyses section. The FAA has found
potential benefits from the proposal. The FAA may receive, and
therefore be aware of, safety critical information that it had not
previously been made aware of, not only from transport category
airplane TC applicants but also from holders. It would receive the
safety critical information earlier in, and more definitively
throughout, the certification process. This could result in a safety
benefit, as the FAA would be able to identify and share concerns with
the applicant and address any potential issues. The proposed rule would
codify the current practice of submitting a proposed certification plan
with milestones, and thus provide a planning benefit, and increased
certainty and predictability, for applicants. As it would follow
current practice, this requirement would impose minimal cost. The
regulatory implementation of the Congressional requirement that
applicants and holders submit and disclose five categories of safety
critical information would be another safety benefit. The submittal of
previously undisclosed, and continued disclosure of newly discovered,
safety critical information by transport category airplane TC holders
may also provide a safety benefit.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) of 1980, Public Law 96-354, 94
Stat. 1164 (5 U.S.C. 601-612), as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat.
857, Mar. 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L.
111-240, 124 Stat. 2504 Sept. 27, 2010), requires Federal agencies to
consider the effects of the regulatory action on small business and
other small entities and to minimize any significant economic impact.
The term ``small entities'' comprises small businesses and not-for-
profit organizations that are independently owned and operated and are
not dominant in their fields, and governmental jurisdictions with
populations of less than 50,000.
The FAA has determined that, based on the Small Business
Administration (SBA) size standard for aircraft manufacturing, (Table
1), none of the entities that would be subject to the proposed
rulemaking are small entities. Also, as described in the RIA, the
proposed rule would impose minimal costs. Therefore, the FAA proposes
to certify that the rule would not have a significant economic impact
on a substantial number of small entities. The FAA welcomes comments on
the basis for this certification.

[[Page 4854]]

Table 1--Small Business Size Standard
------------------------------------------------------------------------
NAICS code Description Size standard
------------------------------------------------------------------------
336411...................... Aircraft 1,500 employees.
manufacturing.
------------------------------------------------------------------------
Source: SBA (2019) \69\.
NAICS = North American Industrial Classification System.

C. International Trade Impact Assessment
---------------------------------------------------------------------------

\69\ Small Business Administration (SBA). 2019. Table of Size
Standards. Effective August 12, 2019. <a href="http://www.sba.gov/document/support-table-size-standards">www.sba.gov/document/support-table-size-standards</a>.
---------------------------------------------------------------------------

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such as the protection of safety and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards.
The FAA has assessed the potential effect of this rule and
determined that as it results in a minimal cost to U.S. manufacturers,
it would not create an unnecessary obstacle to foreign commerce. As a
result, the FAA does not consider this rule as creating an unnecessary
obstacle to foreign commerce.

D. Unfunded Mandates Assessment

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
governs the issuance of Federal regulations that require unfunded
mandates. An unfunded mandate is a regulation that requires a State,
local, or Tribal government or the private sector to incur direct costs
without the Federal government having first provided the funds to pay
those costs. The FAA determined that the proposed rule would not result
in the expenditure of $177,000,000 or more by State, local, or Tribal
governments, in the aggregate, or the private sector, in any one year.

E. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. The FAA has determined that
there would be no new requirement for information collection associated
with the proposed requirement for transport category airplane TC
applicants and holders to submit and disclose safety critical
information because this information is already submitted under
existing processes, as described elsewhere in this NPRM. Approval to
collect such information under those processes was previously approved
by the Office of Management and Budget (OMB) under the provisions of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) and was
assigned OMB Control Number 2120-0018.

F. International Compatibility

In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these proposed regulations.

G. Environmental Analysis

FAA Order 1050.1F identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act (NEPA) in the absence of extraordinary circumstances. The FAA has
determined this rulemaking action qualifies for the categorical
exclusion identified in paragraph 5-6.6f for regulations and involves
no extraordinary circumstances.

VI. Executive Order Determinations

A. Executive Order 13132, Federalism

The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order (E.O.) 13132, Federalism. The FAA has
determined that this action would not have a substantial direct effect
on the States, or the relationship between the Federal Government and
the States, or on the distribution of power and responsibilities among
the various levels of government, and, therefore, would not have
federalism implications.

B. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments

Consistent with Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments,\70\ and FAA Order 1210.20,
American Indian and Alaska Native Tribal Consultation Policy and
Procedures,\71\ the FAA ensures that Federally Recognized Tribes
(Tribes) are given the opportunity to provide meaningful and timely
input regarding proposed Federal actions that have the potential to
affect uniquely or significantly their respective Tribes. At this
point, the FAA has not identified any unique or significant effects,
environmental or otherwise, on Tribes resulting from this proposed
rule.
---------------------------------------------------------------------------

\70\ 65 FR 67249 (Nov. 6, 2000).
\71\ FAA Order No. 1210.20 (Jan. 28, 2004), available at
<a href="http://www.faa.gov/documentLibrary/media/1210.pdf">www.faa.gov/documentLibrary/media/1210.pdf</a>.
---------------------------------------------------------------------------

C. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use

The FAA analyzed this proposed rule under E.O. 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The FAA has determined that it
would not be a ``significant energy action'' under the executive order
and would not be likely to have a significant adverse effect on the
supply, distribution, or use of energy.

D. Executive Order 13609, Promoting International Regulatory
Cooperation

Executive Order 13609, Promoting International Regulatory
Cooperation, promotes international regulatory cooperation to meet
shared challenges involving health, safety, labor, security,
environmental, and other issues and to reduce, eliminate, or prevent
unnecessary differences in regulatory requirements. The FAA has
analyzed this action under the policies and agency responsibilities of
E.O. 13609 and has determined that this action would have no effect on
international regulatory cooperation.

[[Page 4855]]

VII. Additional Information

A. Comments Invited

The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. The FAA also
invites comments relating to the economic, environmental, energy, or
federalism impacts that might result from adopting the proposals in
this document. The most helpful comments reference a specific portion
of the proposal, explain the reason for any recommended change, and
include supporting data. To ensure the docket does not contain
duplicate comments, commenters should submit only one time if comments
are filed electronically, or commenters should send only one copy of
written comments if comments are filed in writing.
The FAA will file in the docket all comments it receives, as well
as a report summarizing each substantive public contact with FAA
personnel concerning this proposed rulemaking. Before acting on this
proposal, the FAA will consider all comments it receives on or before
the closing date for comments. The FAA will consider comments filed
after the comment period has closed if it is possible to do so without
incurring expense or delay. The FAA may change this proposal in light
of the comments it receives.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to <a href="http://www.regulations.gov">www.regulations.gov</a>, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
<a href="http://www.dot.gov/privacy">www.dot.gov/privacy</a>.

B. Confidential Business Information

Confidential Business Information (CBI) is commercial or financial
information that is both customarily and actually treated as private by
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552),
CBI is exempt from public disclosure. If your comments responsive to
this NPRM contain commercial or financial information that is
customarily treated as private, that you actually treat as private, and
that is relevant or responsive to this NPRM, it is important that you
clearly designate the submitted comments as CBI. Please mark each page
of your submission containing CBI as ``PROPIN.'' The FAA will treat
such marked submissions as confidential under the FOIA, and they will
not be placed in the public docket of this NPRM. Submissions containing
CBI should be sent to the person in the FOR FURTHER INFORMATION CONTACT
section of this document. Any commentary that the FAA receives which is
not specifically designated as CBI will be placed in the public docket
for this rulemaking.

C. Electronic Access and Filing

A copy of this NPRM, all comments received, any final rule, and all
background material may be viewed online at <a href="http://www.regulations.gov">www.regulations.gov</a> using
the docket number listed above. A copy of this proposed rule will be
placed in the docket. Electronic retrieval help and guidelines are
available on the website. It is available 24 hours each day, 365 days
each year. An electronic copy of this document may also be downloaded
from the Office of the Federal Register's website at
<a href="http://www.federalregister.gov">www.federalregister.gov</a> and the Government Publishing Office's website
at <a href="http://www.govinfo.gov">www.govinfo.gov</a>. A copy may also be found at the FAA's Regulations
and Policies website at <a href="http://www.faa.gov/regulations_policies">www.faa.gov/regulations_policies</a>.
Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.
Commenters must identify the docket or notice number of this
rulemaking.
All documents the FAA considered in developing this proposed rule,
including economic analyses and technical reports, may be accessed in
the electronic docket for this rulemaking.

D. Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires the FAA to comply with small entity requests for
information or advice about compliance with statutes and regulations
within its jurisdiction. A small entity with questions regarding this
document may contact its local FAA official, or the person listed under
the FOR FURTHER INFORMATION CONTACT heading at the beginning of the
preamble. To find out more about SBREFA on the internet, visit
<a href="http://www.faa.gov/regulations_policies/rulemaking/sbre_act/">www.faa.gov/regulations_policies/rulemaking/sbre_act/</a>.

List of Subjects in 14 CFR Part 21

Aircraft, Aviation safety, Exports, Imports, Reporting and
recordkeeping requirements.

The Proposed Amendment

In consideration of the foregoing, the Federal Aviation
Administration proposes to amend chapter I of title 14, Code of Federal
Regulations as follows:

PART 21--CERTIFICATION PROCEDURES FOR PRODUCTS AND ARTICLES

0
1. The authority citation for part 21 continues to read as follows:

Authority: 42 U.S.C. 7572; 49 U.S.C. 106(f), 106(g), 40105,
40113, 44701-44702, 44704, 44707, 44709, 44711, 44713, 44715, 45303.

0
2. Amend Sec. 21.1 by adding paragraph (c) to read as follows:

Sec. 21.1 Applicability and definitions.

* * * * *
(c) For purposes of Sec. Sec. 21.3 and 21.15, safety critical
information is:
(1) All design and operational details, intended functions, and
failure modes of any system that, without being commanded by the
flightcrew, commands the operation of any safety critical function or
feature required for control of the airplane during flight or that
otherwise changes the flight path or airspeed of an airplane;
(2) all design and operational details, intended functions, failure
modes, and mode annunciations of autopilot and autothrottle systems, if
applicable;
(3) all failure or operating conditions that the type certificate
applicant or holder anticipates or has concluded would result in an
outcome with a severity level of hazardous or catastrophic;
(4) any adverse handling quality that fails to meet the
requirements of part 25 of this chapter without the addition of a
software system to augment the flight controls of the airplane to
produce compliant handling qualities; and
(5) a system safety assessment with respect to a system described
in paragraph (1) or (2) of this paragraph, or with respect to any
component or other system for which failure or erroneous operation of
such component or system could result in an outcome with a severity
level of hazardous or catastrophic.
0
3. Amend Sec. 21.3 by revising the section heading and the
introductory text of paragraph (e), and adding paragraph (g) to read as
follows:

Sec. 21.3 Reporting of failures, malfunctions, defects, and safety
critical information.

* * * * *
(e) Each report required by this section, except as provided in
Sec. 21.3(g)--
* * * * *
(g) The holder of a type certificate, including an amended type
certificate but not including a supplemental type

[[Page 4856]]

certificate, for a transport category airplane covered under part 25 of
this chapter must:
(1) Within 90 days of [date 60 days after publication of final rule
in the Federal Register], submit to the FAA, for each model, all safety
critical information, as defined by Sec. 21.1(c), which is known and
which has not previously been submitted to the FAA, and;
(2) After 90 days of [date 60 days after publication of final rule
in the Federal Register], disclose to the FAA, within 3 business days
of discovery, any newly discovered safety critical information as
defined by Sec. 21.1(c), or design or analysis change that would
materially alter such information.
0
4. Amend Sec. 21.15 by adding paragraphs (d), (e), and (f) to read as
follows:

Sec. 21.15 Application for type certificate.

* * * * *
(d) An application for a type certificate, including a new or
amended type certificate, must be accompanied by a proposed
certification plan. The certification plan must include:
(1) A proposed certification basis;
(2) A proposed compliance checklist that contains means of
compliance, and that identifies all deliverables that the applicant
anticipates will be necessary to show compliance;
(3) A proposed project schedule, with milestones;
(4) Any other information necessary to allow the applicant's
showings and certifying statement, and the FAA's findings, of
compliance to be timely and accurately made; and
(5) For applications for a new or amended, but not supplemental,
type certificate for a transport category airplane, a proposed
milestone that identifies the applicant's requested date for type
certificate issuance.
(e) Within 1 year of submitting the application for a new or
amended, but not supplemental, type certificate for a transport
category airplane, but no later than 6 months prior to the requested
date of issuance of the type certificate, the applicant must update the
proposed certification plan required by Sec. 21.15(d) to include or
describe all of the safety critical information set forth in Sec.
21.1(c).
(f) Each applicant for a new or amended, but not supplemental, type
certificate for a transport category airplane must, within 3 business
days of discovery, disclose to the FAA any information or design or
analysis change that would materially alter any prior submission of the
safety critical information set forth in Sec. 21.1(c).
0
5. Amend Sec. 21.113 by revising paragraph (c) and adding paragraphs
(c)(1) through (c)(4) to read as follows:

Sec. 21.113 Requirement for supplemental type certificate.

* * * * *
(c) The application for an STC must be made in the form and manner
prescribed by the FAA and must be accompanied by a proposed
certification plan. The certification plan must include:
(1) A proposed certification basis;
(2) A proposed compliance checklist that contains means of
compliance, and that identifies all deliverables that the applicant
anticipates will be necessary to show compliance;
(3) A proposed project schedule, with milestones; and
(4) Any other information necessary to allow the applicant's
showings and certifying statement, and the FAA's findings, of
compliance to be timely and accurately made.

Issued under authority provided by 49 U.S.C. 106(f), 44701, and
44704 in Washington, DC, on January 22, 2024.
Lirio Liu,
Executive Director of Aircraft Certification.
[FR Doc. 2024-01485 Filed 1-24-24; 8:45 am]
BILLING CODE 4910-13-P

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