If you have participated in the investigation of a major transportation calamity, you are likely familiar with the bold yellow lettering on the blue jackets of National Transportation Safety Board (NTSB) investigators. These are the folks charged with determining the probable cause of many transportation disasters. Their mission is to prevent future accidents. (49 U.S.C. §§ 1131, 1132, 1135)
NTSB investigators rely on the participation of entities involved with the accidents or incidents they are investigating, often including the transportation operators, equipment manufacturers, unions, federal regulators, state agencies and first responders. On August 12, 2014, the NTSB published a Notice of Proposed Rulemaking (NPRM) seeking comments on a number of proposed changes to their investigation procedures (49 CFR Part 831). Most of the proposed changes merely bring the regulations into conformity with the manner in which NTSB investigations have been conducted for many years. There is, however, an interesting mix of more significant changes that will be of interest to a variety of stakeholders. Comments must be submitted on or before October 14, 2014.
Before you can appreciate the impact of these proposed changes, it is useful to have a general understanding of the NTSB and how it investigates accidents. Led by five presidentially appointed “Board Members,” the NTSB is a small, independent federal agency with no regulatory authority. It is comprised of about 400 employees. The NTSB’s independence prevents any conflict of interest when the NTSB’s post-incident recommendations include fellow federal agencies and regulators, as they often do.
The NTSB’s on-site field investigatory efforts are organized by discipline-specific “groups” with participation by “parties to the investigation.” This investigation team spends several months gathering and analyzing facts – a process that could include a public hearing – for the “Factual Reports” that each investigatory group issues. Several months later, NTSB investigators prepare a draft Final Report that includes proposed findings as to the probable cause of the incident as well as safety recommendations for consideration by the members of the NTSB. These investigative procedures are similar regardless of the mode of transportation and location – air, land or sea – surrounding the incident.
“Parties to the investigation” assist the NTSB on-scene and throughout the factual phase of its investigation. Party status is limited to “… those persons, government agencies, companies, and associations whose employees, functions, activities or products were involved in the accident or incident and who can provide suitable qualified technical personnel actively to assist in the investigation.” (49 C.F.R. § 831.11(a)(1)). It is generally agreed that the “party system” is critical to the NTSB’s methodology and success as it would be impossible for such a small agency to investigate so many accidents. Also, the cooperation demanded and almost universally received from the parties provides broad, up-to-date technical assistance that would be difficult to duplicate regardless of agency size or budget. (For more information on NTSB investigations, see The Anatomy of an NTSB Accident Investigation, Tobin & Tochen, April 2013.)
Many of the NPRM’s proposed changes to the NTSB’s investigation regulations are intended to confirm the NTSB’s authority in certain instances; allow it to extend that authority to those assisting it with investigations; continue to control the flow of information during investigations; reduce the likelihood that those assigned by parties to assist will have conflicts of interest with the investigation at issue; and provide some clarity to NTSB participation in investigations of aircraft accidents outside the United States.
Highlights of Proposed Changes
- § 831.5 “Priority of NTSB Investigations”
When the NTSB launches a team of investigators, it is not at all unusual for an accident or incident scene to already be occupied by first responders attending to medical and safety issues; federal, state and local agencies focused on community and environmental recovery issues; and a myriad of other officials interested in regulatory issues and the inevitable questions about what happened and who is responsible. Depending on the mode of transportation and whether a hazmat situation has been created, potential candidates for additional agencies on-scene include the EPA, FBI, FAA, FRA, USCG, FTA, OSHA, PHMSA, DOT and DOD, to name a few.
While the NTSB has entered into operational Memoranda of Understanding (MOUs) with many agencies, some of the proposed NPRM amendments are intended to ensure that all federal agencies are aware of the NTSB’s role as the federal agency with priority over investigations of transportation events, while still balancing the needs of the other agencies to fulfill their statutory mandates. “The NTSB believes the best way to accomplish this is for the employees of other [f]ederal agencies who are involved in an investigation to contact the NTSB investigator-in-charge (IIC) prior to questioning a witness, gathering records or documents, or otherwise obtaining any type of information relevant to the non-NTSB investigation.” The proposed amendments go on to assert a right of first access to witnesses and documentary evidence, noting that the NTSB may request other agencies to delay collecting evidence or information until the NTSB approves of such collection.
If you are party to an NTSB investigation, or somehow otherwise involved with one, it is important to understand this relationship between the NTSB and other federal, state and local agencies involved with an investigation. If not, you may find yourself confused or frustrated by potentially redundant or contradictory requests and demands.
- § 831.7 “Witness Interviews”
The current NTSB regulations allow a witness to be accompanied by a representative during an interview. While these interviews sometimes appear casual, they are typically recorded or transcribed and almost always made available publically during the course of the investigation. Also, even though the interview may not be under oath, it is a crime to lie to a federal investigator. Even still, many witnesses opt to have a union representative accompany them to an NTSB interview rather than an attorney. In the NPRM, the NTSB acknowledges that it has received several requests to amend the existing rule so that a witness could have two representatives – a union representative as well as a lawyer – at an interview instead of the one representative currently allowed. The NPRM announces that the NTSB does not think that any more than one representative is reasonably necessary and that two could distract from the purpose of the interview. The NTSB goes a bit further, proposing to confirm that its investigator has the authority to exclude a representative from an interview if that representative engages in disorderly conduct or is “contumacious” (stubbornly or willfully disobedient to authority).
- § 831.9 “Authority of Board Representatives”
The statutory authority of the NTSB is surprisingly broad. NTSB investigators have authority to enter any property where an event subject to the NTSB’s jurisdiction has occurred; to inspect, photograph, or copy any relevant records or information (including medical records and specimens); to question any person having knowledge relevant to an investigation and to issue subpoenas enforceable in federal district court. The list goes on….
In this NPRM, the NTSB proposes amendments to make it clear that if and when they request the assistance of other federal agencies, local law enforcement or parties to the investigation, those people or entities are their “authorized representatives,” and in essence have the same authority as that given to the NTSB.
Although one does not typically think of the NTSB as a “public health authority,” the NPRM proposes language to confirm that status for purposes of authority to obtain medical records and specimens under the Health Insurance Portability & Accountability Act of 1996 (HIPAA).
With the rapid introduction of transportation data recorders of all sorts, not to mention the treasure trove of information within smartphones, the NPRM proposes language to confirm the NTSB’s authority to extract data from all electronic devices.
- § 831.11 “Parties to the Investigation”
As earlier noted, the NTSB employs a “party” investigation process that depends on the cooperation and assistance of the entities involved in an accident or incident. The process works well and provides rapid access to information, documents and expertise that may not otherwise be available to such a small federal agency. To better preserve the integrity of that process, the NPRM suggests adding the requirement that individuals proposed by party organizations to participate in an investigation should, to the extent practicable, not have had any direct involvement in the event under investigation. Similar language is proposed to prohibit, to the extent practicable, employees from other agencies participating in an investigation who are engaged in enforcement rather than investigation activities.
Historically, the NTSB has prohibited parties from conducting parallel investigations. The NPRM intends to confirm that parties may conduct reviews or audits into certain aspects of the accident or event at issue simultaneously with the NTSB investigation, but only if they agree to inform the IIC in a timely manner and provide a copy of the results.
- § 831.13 “Flow & Dissemination of Investigative Information”
Employees assigned by parties to assist on NTSB investigation groups are typically privy to information developed during the investigation and not in the public domain. When such an employee agrees to become a party to an NTSB investigation, they agree that they will not disclose such information, even to their employer. The NPRM proposes to allow parties, with the IIC’s permission, to release investigation information within party organizations as needed to implement prevention or remedial action to those in the organization who have decision-making authority or need to know the information.
However, NTSB rules barring parties from publicly analyzing causes of accidents are and will continue to be strictly enforced. Just last month, the NTSB expelled representatives of United Parcel Service and its pilots’ union from the investigation of a UPS cargo plane crash in Birmingham in August of 2013. Each party had publicly commented on possible pilot fatigue issues. A similar expulsion was prompted by public comments made by the union representing the Metro North railroad engineer involved in the December 2013 over-speed derailment in New York. Other notable parties that have been removed for inappropriate public comments made by their employees include American Airlines, related to an incident in 2011 when its jet ran off the end of a runway in Wyoming, and a union that represented air-traffic controllers involved in the 2009 fatal midair collision between a sightseeing helicopter and a private plane over the Hudson River.
- § 831.14 “Proposed Findings”
While parties to an investigation are expected to review and sign off on the accuracy of NTSB Field Notes and Group Factual Reports, they do not participate in the NTSB’s factual analysis, proximate cause findings or recommendations. In this NPRM, the NTSB acknowledges requests that it share at least the intended analytical conclusions from draft Final Reports with parties so that the parties can comment before the Final Reports are completed. The NTSB announces that it has chosen not to allow such reviews as part of this NPRM, but adds that it will consider this practice in the future in some instances. While technically this may mean that comment on this potential policy change is outside the bounds of this NPRM, the change would be significant and is expected to generate many comments. This may well be the most significant aspect of the NPRM. Proponents of such a process will argue that the NTSB’s analytical process would benefit from the same collaborative process that is employed in the early portions of the investigation and that it is in everyone’s best interest that the NTSB “gets it right.” Opponents will likely point to the parties’ already-existing opportunity, once the factual phase of the investigation is over, to submit proposed findings and recommendations.
- § 831.23 “International Aviation Investigations”
The NTSB often participates in investigations of aviation accidents outside the United States. Such participation is much less structured than in a domestic investigation. The NTSB proposes several new regulations to add clarity and depth to that participation. One proposal is to add a new provision so that when an NTSB investigator is designated as an accredited representative in an aviation investigation outside the United States, he/she may appoint “technical advisers” to provide information and assist with the investigation, similar to “parties” in domestic investigations.
As stakeholders and potential stakeholders evaluate these proposed changes to NTSB investigation procedures, they should be keenly aware that while NTSB Final Reports containing probable cause findings and recommendations are not admissible at trial (49 U.S.C. § 1554(b)), NTSB Group Factual Reports are admissible at trial (49 C.F.R. § 835.2). See alsoChiron Corp. v NTSB, 98 F.3d 935 (D.C. Cir. 1999). Party participation plays an important role in making these Group Factual Reports comprehensive, accurate and neutral as to any characterization of the facts. This requires active participation of party participants who fully understand the manner in which NTSB investigations unfold.
If you or your clients have participated in an NTSB investigation, or envision that you may do so in the future, the NPRM is well worth reading and possibly commenting upon. The full text of the NPRM can be reviewed at https://federalregister.gov/a/2014-18921.