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For the first time in 20 years, the regulations governing how the NTSB conducts its investigations have been changed. The new rules are the culmination of a process started by the Board over five years ago.  The new rules make official much of the guidance and informal processes that have developed over that time.  The following is a summary of the more important changes.

831.4   Recommendations and Cost-Benefit Analysis: The NTSB rejected a proposal to include a cost-benefit analysis when making its recommendations.   The Board felt that they did not have the staff or the necessary expertise to conduct this type of analysis.  In addition, the NTSB noted that when the appropriate agency, such as the FAA, conducts a rulemaking to implement the Board’s recommendations, additional facts on the costs and benefits often comes to light, calling into question the merits of the NTSB performing its own analysis outside of the rulemaking process.

831.5   Priority of NTSB Investigations: The original draft regulation was based on the provisions of 49 U.S.C. § 1131(a)(2)(A), which gives the NTSB investigation priority over investigations conducted by other public entities.  It required other agencies to consult with the NTSB Investigator in Charge prior to gathering evidence or questioning witnesses, to give the  NTSB any evidence they collect, and inform the NTSB on any corrective or mitigating measures they are taking while the investigation is ongoing.  The Department of Transportation objected to these changes, claiming that the NTSB cannot require advance approval of actions by other agencies and the draft regulation would potentially interfere with its work.  While the NTSB softened some of the language in crafting the final rule, it did not back down on the core principal that the NTSB has priority over other agencies, and affirmed that the NTSB “has first right to access wreckage, information, and resources, and to interview witnesses . . . .”  The regulation also affirms in several places that no other agency may participate in the probable cause finding.

831.6   Confidential Business Information:  The proposed revision to the rule drew comments from Boeing and Textron that in recent years, the NTSB had not been protecting confidential business information to the same extent that it would under the Freedom of Information Act, and that if this trend continued, it could “inhibit the free flow of information” in an investigation.  The final rule confirms the NTSB’s authority to release a trade secret without consent when it is necessary to support a key finding or safety recommendation.  It does, however, provides a procedure for notifying the owner prior to release and for implementation of a process to negotiate with the owner of the trade secret and limit the disclosure to the minimum necessary to accomplish the NTSB’s goals.  In addition, the NTSB reaffirmed that its decisions on what information should be released in the public docket will follow the guidance in the Freedom of Information Act for withholding confidential information.

831.7   Witness representation:  The final rule makes clear that a witness has the right to be accompanied by a single representative, who may be an attorney.  The rule also makes clear that a representative may be thrown out of an interview if he or she disrupts the interview process.  Some commenters argued that a pilot should have the right to more than one representative, specifically one from the employer and one from the union, because each has a different interest.  The NTSB rejected this concern, noting that the sole interest of a witness’s representative should be supporting and advocating for the witness, and not any third-party.

As a final note, a number of commentators asked that the NTSB include a formal procedure governing the removal of a party from an investigation, including permitting review of the decision by a court. The NTSB rejected this proposal, saying that removal from an investigation is not a deprivation of a significant property interest that requires any type of formal hearing.  The NTSB affirmed that it would only use the process as a last resort, but declined to further define the circumstances under which removal would be appropriate.

For those of you who want to take a closer look at the regulations and the explanatory material, it can be found at this LINK.   If you would like additional information, do not hesitate to contact us.


NTSB – Congratulations Vice-Chairman Sumwalt!!

With the election of President Trump, there was a great deal of speculation over how vacancies on the National Transportation Safety Board would be handled.  Would the new Administration want to shake things up at the NTSB as they have at other agencies or would there be continuity between the new nominees and the existing board?  The answer to that question is, at least for now, “steady as she goes.”

Earlier this morning, the Trump Administration announced that Robert L. Sumwalt III would be re-nominated as a Board member for another 5 year term.  In addition, Mr. Sumwalt is also designated as Vice-Chairman of the NTSB for the next two years.  Mr. Sumwalt has been a member of the NTSB since 2006, and previously served as NTSB vice chairman from 2006 to 2008. Prior to his time at the NTSB, Mr. Sumwalt was a pilot for 32 years, including 24 years with U.S. Airways.

The President’s action is clearly a vote of confidence in the way the NTSB has been handling its duties.  Congratulations Mr. Sumwalt, and here’s hoping your confirmation hearing is less contentious than all of the other ones held by the Senate this year.

NTSB – Congratulations Vice-Chairman Sumwalt!!

NTSB: “Sully” A Good Movie, but . . .

It’s too bad that despite having such a good story to tell, Hollywood, perhaps not surprisingly, felt they needed a villain.    Maybe they felt that if they made the birds the villains, they would incur the anger of People for the Ethical Treatment of Animals (PETA).  After all, PETA is pretty litigious.  Maybe the moviemakers didn’t want to incur the wrath of the Canadian moviegoing public by appearing to blame Canada?

Predictably, the film makers picked an always easy target . . . . the Federal Government, specifically the National Transportation Safety Board.  After all, everyone is ready to accept the worst when it comes to how the Feds are acting.  The only problem is that this time, Hollywood was wrong.  No, that’s not true.  They were colossally wrong!

Instead of just going to see the movie, (which, by the way, with the exception of the misguided and wrong portrayal of the NSTB) is pretty good, read the transcript of the NTSB factual hearing of the accident [Link].  It was held on June 9-10, 2009, and Sully’s testimony is found on pages 23 to 51.  Judge for yourself from the verbatim transcript, whether the portrayal of the NTSB process or the investigators in the movie is accurate.

I represented/assisted the airline during the investigation and, at least as I recall, there was never a hint of a “prosecutorial” approach by the NTSB investigators.  Since the issue arose, I have confirmed my recollection with several other people who were involved in the events following the accident.  In fact, like everyone, my perception of the NTSB investigation is that they, like a lot of us, were in awe of the airmanship displayed by both Captain Sullenburger and and First Officer (now Captain) Jeff Skiles.  The crew was, from everything I heard and saw throughout the investigation, treated deferentially.

Did the NTSB investigate everything?  Yes.  Did they question and examine the decision making process in the cockpit?  Absolutely.  In short, did they do their job?  They did.

Hollywood however has chosen to, unjustifiably, portray the NTSB as villains …a government agency determined to blame the pilots.  Investigators out to get their man.

In the name of dramatic license, maybe the moviemakers felt that by creating a villain, they further emphasized the heroic feat of Captain Sullenberger and First Officer Skiles.  Maybe, following a formulaic approach that every movie needs a villain, they felt it necessary to demonize the NTSB.

The simple fact however, is that no matter what the justification, it wasn’t justified.  Captain Sullenberger and First Officer Skiles were, in may respects, doing their job.  It just so happened that in performing their job, they displayed an awesome degree of airmanship, calm and skill.  They were a testament to the quality of their training from US Airways and to the airplane they were flying.  They were and are representative of everything we, as passengers, want to believe is flying our airplane.

The moviemakers really had more than enough heroics to tell a good story.  In doing so, it’s too bad they felt it necessary to denigrate the motives, skill and professionalism of the NTSB.

Go see the movie, but don’t believe everything you see  . . .

NTSB: “Sully” A Good Movie, but . . .

NTSB/TWA 800 Conspiracies Gone Wild!

Over the years, aviation has, not surprisingly, given birth to conspiracy theories.  Everything from the events of 9/11 to the moon landing to the disappearance of MH370, have been the focus of those who choose to believe in the sinister…the “X-Files” of aviation.

Not surprisingly, the events surrounding TWA 800 have, since the day they occurred, attracted the conspiracy theorists.

It’s not easy to find, but there’s a recent article pointing the finger at the NTSB as being a party to a cover-up of what really happened to TWA 800 in 1996.  The author, who also wrote a book about “what really happened”, is both highly critical of, and cynical towards, the current leadership of the Board, including Chairman Chris Hart and General Counsel David Tochen.

As someone who was involved in the events surrounding TWA 800 and its investigation, things are almost always what they seem to be.  In this case, an accident.  Not a conspiracy.  Not a cover-up.  Rather an explosion associated with the fuel system.

Constructing elaborate conspiracy theories is certainly not a difficult exercise.  All it takes is a few facts and a good imagination.  Hollywood does it all the time.

What’s unfortunate about the TWA 800 conspiracy theories and their proponents is the finger pointing they engage in.  The most noteworthy thing about TWA800, other than the investigation itself, was the tug of war which took place between the FBI and the NTSB over which agency was going to take the lead in the investigation.  Ultimately, after it was determined there was no criminal wrongdoing, the FBI ceded the lead to the NTSB.  Subsequently, the two investigative agencies more sharply defined their respective roles, and in the 20 years since TWA 800, the spectacle of who leads an aviation investigation has not been repeated, at least not as between the FBI and NTSB.

If one wants to construct and believe in a conspiracy, in almost any situation there’s no shortage of opportunities to do so, particularly one where you can weave the CIA into the theory.  The opaque nature of the CIA makes it very easy to point the finger at Langley as the “bad guys” who have subverted an investigation by some other government agency, in this case, the NTSB.

But, in most cases, accidents are what they seem to be, namely accidents.  It’s okay not to accept that fact, but it’s unfortunate, when, as here, the conspiracy theorists choose to impugn the integrity of the NTSB.

NTSB/TWA 800 Conspiracies Gone Wild!

FAA/NTSB: Bravo NTSB! Bravo FAA!

Several years ago, at The Airline Symposium, I asked Peggy Gilligan, FAA Associate Administrator for Aviation Safety, who was on one of our panels,  “Why do the FAA and NTSB hate one another?”

After the laughter in the room died down, Peggy said, quite correctly, that the premise of my question wasn’t accurate.  She said something to the effect (and I’m not quoting her) that the FAA was the regulator and the NTSB was the investigator, with no regulatory authority and because the results of  NTSB aviation investigations typically resulted in recommendations to the FAA, with which the FAA doesn’t always agree, there was a certain amount of tension between FAA and NTSB .  An excellent answer. By way of footnote, it didn’t prevent me  from asking Peggy, the following year at the Symposium, whether the NTSB and FAA still hated one another?

Well, here we are in 2016 and the US airline industry has been, and continues to be, at an unprecedented level of safety and a model for the rest of the world. The last US airline accident was in 2009, when Continental/Colgan Flight 3407 crashed in Buffalo, NY.  This level of safety is no accident (excuse the pun).  It’s a function of industry and government, i.e. FAA and NTSB, working together.

The airline industry is so safe that Chris Hart, the Chairman of the NTSB and someone who, in the opinion of Plane-ly Spoken, is, by far, the most qualified and effective Chairman in the history of the NTSB, has broadened the focus of the NTSB to include a more pro-active, advocacy role, namely, spotting air-safety hazards before they result in an accident.  In doing so, Chairman Hart cited the increasingly growing levels of cooperation and sharing of information between the FAA and NTSB.

Make no mistake about it however, the FAA and NTSB won’t always see eye to eye in the future.  But that’s okay, so long as future disagreements continue to be the exception and not the rule.

We have the safest aviation industry in the world.  So long as industry and government continue to work together, the biggest winners will be the traveling public.

Thank you Associate Administrator Gilligan!  Thank you Chairman Hart!

P.S.  Maybe at The 2017 Airline Symposium, February 7-9, 2017, I’ll ask one of them “Why do the FAA and NTSB love another?”

FAA/NTSB: Bravo NTSB! Bravo FAA!

NTSB: Accident Reports Not Reviewable . . . Not Admissible . . .???

The NTSB has broad authority to investigate aircraft accidents and issue both factual reports and make findings of the probable cause of the accident.  But what happens if you are involved in an accident and you think the NTSB got it wrong?  Can you go to Court to get changes made or stop the release of the report?  The Seventh Circuit has answered “no” to these questions.

In dismissing the appeal of Helicopters, Inc. [Link], the United States Court of Appeals for the Seventh Circuit has concluded that accident reports from the NTSB are not reviewable since:

  • the reports do not create any legal repercussions or consequences for, in this case, Helicopters, Inc. the owner/operator of a helicopter which crashed.
  • the reports may not be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report.

In making these findings, the Seventh Circuit indicated it agreed with two other Courts of Appeals which have addressed a similar question.

It’s clear (if it wasn’t clear before) that using the courts to seek review of NTSB reports is not a worthwhile expenditure of time or money.  Quite clearly, NTSB reports are not susceptible of review.

With the foregoing having been said, there are, to those of us who litigate cases arising out of aviation accidents, a number of issues/concerns raised by the Seventh Circuit decision.

  • The Court’s statement that NTSB reports do not create any legal “repercussions or consequences” for the operator is, in the real world, inaccurate. While Plane-ly Spoken understands that the courts are focusing on a narrow meaning for “repercussions or consequences,” the practical reality is that such reports have profound repercussions and consequences.  They result in companies being sued, provide “free” discovery to plaintiffs and, at least, the factual reports, are frequently admitted into evidence.
  • NTSB factual reports are, unfortunately, oftentimes a combination of facts, analysis and opinions, that are difficult, if not impossible, to segregate into admissible and inadmissible parts.
  • While an attempt is made to differentiate between NTSB factual reports and the final report, § 831.4 doesn’t really make any such distinction.
  • The broad statutory language relied on by the courts which prohibits the use of NTSB reports is, more often than not, ignored or only partially followed.

Notwithstanding the foregoing, it is unlikely the Seventh, Ninth or DC Circuits will change their position on the review of NTSB reports or their mistaken beliefs regarding the use of such reports.

Plane-ly Spoken agrees with the fact that the judiciary should not be second-guessing NTSB investigations.  However, at the same time, some, if not most, of the grounds relied upon by the decisions are misplaced.

NTSB: Accident Reports Not Reviewable . . . Not Admissible . . .???

NTSB: Rock and Roll Redux . . . The Civil Aeronautics Board Got It Right The First Time

On February 3, 1959, 56 years ago, three rock and roll legends, Buddy Holly, Ritchie Valens and J.P. “The Big Bopper” Richardson, died in the crash of a Bonanza aircraft near Mason City Municipal Airport, Iowa.  The pilot also died.

Seven months later, the Civil Aeronautics Board, the agency which, at the time, had the responsibility for investigating aviation accidents, found that the probable cause of the crash was pilot error, with weather being a contributing cause.

Recently, the NTSB, which, in 1967, succeeded the CAB in the area of accident investigation, was petitioned to re-consider the probable cause, overrule the CAB, and find that the crash was not caused by pilot error [Link].

On April 21, 2015, after considering the request for reconsideration, the NTSB, citing the fact that no new evidence had been presented warranting reconsideration, declined to proceed.  And so, 56 years later, the death of these rock and roll legends remains the result of pilot error.

The takeaway from what happened here is that while the NTSB does have a process by which probable causes can be reconsidered – even 56 years after the accident – the road to reconsideration, separate and distinct from the amount of time which has elapsed since the original accident investigation, is an uphill battle.

The procedures to obtain reconsideration by the NTSB are found in 49 CFR § 845.41 [Link]. The rules concerning reconsideration or modification are, understandably, quite restrictive in their scope.  Specifically, they require a showing that the petition be based on new evidence or a showing that the Board’s original findings are erroneous. Part and parcel of this requirement is a showing of why the evidence/information was not available prior to the Board adopting the probable cause, or, in the event error is claimed, the detailed grounds for the assertion of error.

Plane-ly Spoken has not done a detailed analysis of the percentage of requests for reconsideration which are denied versus those which are granted, but we suspect the former percentage heavily outweighs the latter.

In the area of criminal law, particularly related to scientific evidence, e.g. DNA, we have all read about convictions being overturned based upon proof that the convicted defendant was, in fact, innocent.  Applying this same approach to aviation accident investigations, it strikes us that one approach to seeking reconsideration of a probable cause which may not receive enough attention is the application of scientific techniques which weren’t available in years past.  Whether it’s analysis of avionics, voice tape analysis, developments in metallurgy or any of the many scientific disciplines now routinely used by the engineers and scientists, including those at the NTSB, we have a hard time believing that applying one or more of those techniques in an “old” investigation would not yield some surpising results.  Unfortunately, however, like DNA which may not have been preserved, aircraft wreckage, which has long ago been disposed of, prevents any sort of analysis, irrespective of how sophisticated or cutting edge new techniques may be.

And so, 56 years later, three rock and roll legends continue to be a victims of pilot error, despite, as put by The Big Bopper, being given “one more chance” [Link] by the NTSB.

NTSB: Rock and Roll Redux . . . The Civil Aeronautics Board Got It Right The First Time

NTSB: Just Because You Don’t Like the Probable Cause, Don’t Expect the Courts to Help

A few days ago, the United States Court of Appeals for the District of Columbia made it clear the courts have no substantive role in the accident investigation process. Joshi v. NTSB

The father of the pilot killed took issue with a probable cause finding of pilot error. After undertaking his own investigation, a petition to re-open the investigation was filed with the NTSB. After it was denied, he sued the Board. The Court found it did not have authority to review the probable cause finding because it was not a “final order” under the Administrative Procedure Act.

There is both good news and bad news from this result. The good news is that the consequences of permitting judicial review of NTSB accident reports would be to venture down a path which would essentially destroy the NTSB investigation process. Think about it. Any party to any investigation which was unhappy with the outcome of an investigation – aviation, rail, marine, motor vehicle, pipeline—could simply sue the NTSB.

Unless the NTSB fails to follow its own procedures, something which was not the case here, the courts are simply not equipped to engage in second guessing professional accident investigations. The simple reality is that not every party to an investigation is going to like the outcome. Some may passionately disagree, but that does not justify judicial review of the investigation.

Now, the bad news. The Court in Joshi indicated that NTSB accident reports are not used in litigation, and that is pretty much wrong.

The reality is that, more often than not, almost everything written by the NTSB, with the exception of probable cause, contributing causes and recommendations, is frequently received into evidence, either as direct evidence or through an expert. Moreover, there is clearly a split in authority among those courts which have addressed the issue.

As someone who has litigated aviation cases for 35 years, the majority of all NTSB reports find their way into litigation. While arguments are still made to keep them out, there is ample judicial authority out there for judges to rule in favor of their admissibility, minus the probable and contributing causes.

The Board recognizes the uses to which its investigations are put, and has drawn reasonably sensible lines around what it believes should be used in litigation. Nonetheless, it’s still up to an individual judge to decide whether and to what extent those lines will be observed.

As frequently as lawyers may be frustrated with the outcome of an NTSB investigation, the thought of a judge reviewing the substance of an investigation and assuming the mantle of expert to decide between competing investigations – one from the NTSB and one from an expert hired to challenge the NTSB —– is, even to me, somewhat unsettling.

The fact is, and history tells us, the NTSB usually gets it right!

NTSB: Just Because You Don’t Like the Probable Cause, Don’t Expect the Courts to Help

NTSB: Chairman Chris Hart!

The United States Senate, by a vote of 97-0, has, finally, voted to confirm Chris Hart as Chairman of the NTSB.  Welcome, Chairman Hart.  It’s about time the Senate did something which all of us can applaud!

In addition, believe it or not, they also voted to confirm, as the latest Member of the NTSB, Dr. Bella Dinh-Zarr, a highly regarded expert in the area of motor vehicle and traffic safety.

Now it’s the turn of the White House to nominate a fifth Board Member so, after way too long, the NTSB can, once again, be at full strength.

NTSB: Chairman Chris Hart!

NTSB -Everything You Want to Know About the NTSB … From the NTSB

Since Plane-ly Spoken started publication in the blogoshere, we have not endorsed or recommended any seminars, programs or presentations except for those with which Plane-ly Spoken is associated, the most recent being The 2015 Airline Symposium [LINK]. This marks a break from that policy.

On March 5-6, the National Transportation Safety Board is sponsoring a two-day program for lawyers who find themselves in the position of assisting clients after an incident/accident or otherwise dealing with the Board [LINK].  The program is entitled “NTSB Investigations:  What Legal Professionals Need to Know” and will be held at the NTSB Training Center in Ashburn, VA.

In the interest of full disclosure, I am on one of the panels.  However, even if this was not the case, Plane-ly Spoken would still be recommending that any lawyer who has dealt with the NTSB, thinks they may have to deal with the NTSB in the future or just wants to know about this unique federal agency, register for and attend the program.

One thing to note is that the NTSB, in addition to investigating aviation, maritime, pipeline, rail and other transportation accidents, investigates accidents involving UAS and, given what’s going on “up” there, could find themselves very busy.  So if you represent a manufacturer, operator or user of UAS, the NTSB could be in your future.

NTSB -Everything You Want to Know About the NTSB … From the NTSB