USA: Overview and advice re National Transportation Safety Board (NTSB) investigations

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(www.MaritimeCyprus.com) It is critical that companies carefully navigate their activities with the National Transportation Safety Board (NTSB) during the first 24 to 48 hours after an incident. That is not the time to learn about how the NTSB conducts accident investigations. This article provides companies with an overview of NTSB investigations.

The NTSB investigates aviation, railroad, highway, marine and pipeline accidents to determine their probable cause and issues safety recommendations to reduce the risk of future accidents. The NTSB also studies transport safety issues and evaluates the safety effectiveness of related government agencies, including the United States Coast Guard (USCG) and those within the Department of Transportation (the Federal Aviation Administration (FAA), the Federal Motor Vehicle Safety Standards (FMVSS), the Federal Motor Carrier Safety Administration (FMCSA), the Federal Railroad Administration (FRA), the Federal Transit Administration (FTA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA)).

The NTSB has five members who are each appointed by the president and confirmed by the Senate for five-year terms. It has approximately 420 employees and annually investigates approximately 2,000 aviation accidents and approximately 500 major accidents or incidents involving other modes of transport, including pipelines transporting hazardous materials. The NTSB notes that more than 80% of its accident-related safety recommendations are acted on favorably.

The NTSB has priority over other federal investigative agencies in accident investigations, but that does not preclude other federal and state agencies, or members of Congress, from mounting their own investigations.

Which accidents does the NTSB investigate?

The NTSB is mandated to investigate all aviation accidents and significant marine, rail, highway and pipeline accidents. The NTSB considers the scope of the incident (ie, the number of fatalities and injuries and the amount of property damage) and whether an NTSB investigation is likely to generate meaningful recommendations.

NTSB investigative team

When a decision is made to launch a major investigation, the investigative 'go team' strives to launch within two hours of the decision to investigate. This team is led by an investigator-in-charge (IIC). Other participants include:

  • investigators assigned to each NTSB working group;
  • one of the five presidentially appointed members;
  • a press or media staff member, an attorney from the NTSB Office of the General Counsel; and
  • occasionally, a family-assistance staff member.

Preventing similar accidents

While the NTSB conducts vigorous investigations and issues factual findings and opinions as to probable cause, their focus is less on the specific incident that triggered the accident than how to prevent future accidents from occurring. Attention is frequently placed on how to reduce the likelihood of future accidents by assessing organisational issues, risk management and changes in overall safety culture. With that in mind, the scope of an NTSB investigation is typically much broader than any litigation concerning a specific accident.

'Party' system: selfless cooperation or fox in the henhouse?

The NTSB invites entities involved in the calamities it is investigating that appear to be able to provide first-hand technical assistance to be 'parties' to the investigation. The same investigative process is used by the NTSB for aviation, rail, marine, highway and pipeline accidents. It allows the NTSB to leverage its small staff while obtaining unfettered cooperation and resources of those most closely involved in the calamity. This is a routine part of the NTSB investigation process and has served the NTSB well for over 50 years. There is no other way such a small agency could investigate so many accidents. Further, the cooperation demanded, and almost universally received, from parties provides the NTSB with broad, up-to-date technical assistance that would be difficult to duplicate regardless of agency size or budget.

However, the process is not without controversy. Those injured and the families of those killed may perceive the parties (ie, future defendants) as being in a position to influence NTSB findings. This can become a cause of frustration because the NTSB will not allow the involved individuals to participate as parties either directly or via their own paid outside experts.

For this and other reasons, NTSB investigators are trained to trust but verify. They work hard to ensure that any information provided by a party is substantiated through documentation or multi-source testimony. If this cannot be done to their satisfaction, references to such information is often predicated in any reports by "According to [Party]" caveats.

Burdens and advantages of being a party to the investigation

Historically, transport providers, manufacturers and pipeline operators have almost always decided that the advantages of becoming a party outweigh the burdens. However, each matter should be individually evaluated, even if only to provide solace when the burdens present themselves.

Active party-to-the-investigation participation will provide an opportunity to keep the factual foundation, on which the NTSB will predicate its findings, purely factual. This is important. No one knows as much about a company's system and operations than the company itself. Active participation is also the quickest way to enact corrective measures.

Additional benefits include the ability to:

  • announce to the public that "[w]e are assisting the NTSB with its investigation and for that reason cannot comment further";
  • make a party submission of proposed findings and recommendations to the NTSB investigation staff and the five presidentially appointed members; and
  • meet with individual NTSB members to discuss the proposed findings and recommendations while they are in the process of considering the draft staff report regarding an accident.

However, there are significant disadvantages. Parties:

  • must supply technical staff to assist;
  • must assist with the preservation of perishable evidence;
  • must limit their accident-related public statements (particularly as to cause);
  • have an affirmative duty to advise of relevant information;
  • must maintain strict confidentiality of investigative information;
  • have limitations on internal investigations and communications; and
  • have limitations in connection with litigation pleadings, discovery responses, access to evidence and expert opinions during the investigation.

Communication with stakeholders

Parties are prohibited from disclosing NTSB investigative information without the NTSB's permission until the NTSB opens its public docket for the investigation. However, unfortunately, NTSB investigations never take place in a vacuum. There are always stakeholders clamouring for information. These may include:

  • the press;
  • federal and state politicians;
  • those injured, and the families of those killed, in the accident (and their attorneys);
  • judges presiding over related litigation;
  • the FAA, FMVSS, FMCSA, FRA, FTA, PHMSA or USCG;
  • State regulatory agencies;
  • the Department of Justice and state attorneys general;
  • federal and state law enforcement agencies; and
  • federal and state legislative committees.

The longer an investigation takes, the more likely these stakeholders will find themselves wrestling with the NTSB or parties to NTSB investigations regarding the scope and duration of the prohibition on the release of investigative information.

It is important to remember that because the focus of the investigation is not so much on what happened, but why, the scope of the prohibition depends on what is being investigated. It is also important to understand that, from the NTSB's point of view, confidential investigative information is typically not limited to information and documents from the time of the accident or explosion forward. If the NTSB is examining a number of complex safety issues as potential causes of the accident, investigative information could include documents and data leading up to the accident. Employee training records and maintenance records may be critical, even though they pre-date the accident or incident. Determining the probable cause of an accident, in lieu of simply describing what happened, expands what the NTSB considers investigative information.

As investigations approach completion of the factual phase, the need for a prohibition on disclosures of 100% of the investigative information is frequently diminished. Also, many months into an investigation, information often finds its way into the public domain through channels other than party disclosures, arguably making the confidentiality of that information moot.

Sharing information internally on a safety-need-to-know basis

Often there is an urgent need for a party to understand how and why an accident happened so that it can take corrective measures without waiting 12 or more months for the NTSB to issue its accident report. This urgent need gives rise to a safety-need-to-know exception that allows a party coordinator to share some information internally (but carefully). Those with whom NTSB accident information is shared must understand the party obligations and should not disclose the information further, except on a safety-need-to know basis, with the understanding of the party coordinator and a further pledge to maintain party confidentiality.

In the event that a transport provider, manufacturer or pipeline operator decides to change a policy or procedure as a result of the accident, NTSB regulations require that the NTSB IIC be advised.

What is the general timeline?

The NTSB strives to complete its major investigations within 12 months. Historically, it has done well adhering to this goal for aviation, rail, marine and highway accidents. Investigations of pipeline accidents have averaged 24 months or more.

What to expect and when to expect it – substantively and procedurally

The NTSB will be on scene for five to 10 days, during which time it will focus its investigation efforts on preserving perishable evidence. This will involve examining the site, harvesting pictures, documents and information and interviewing those directly involved along with other possible witnesses. This activity culminates with the parties vetting and signing off on the NTSB field notes.

Factual efforts over the following six to 18 months will include requests for more documents and information, laboratory testing in Washington DC and interviews concerning training, professional development, risk management, safety management systems and safety culture in general.

The factual phase of the investigation concludes with the vetting of draft factual reports of the several NTSB working groups and the ultimate sign-off of the reports by the parties.

The analytic phase of the investigation then commences and may last between six and 12 months.

While there are often sporadic requests for more documents and information, party participation with the investigative team radically diminishes during this phase.

Parties are typically given a window of 30 days or so after the last factual report has been finalised to submit proposed findings and recommendations. This is a party's opportunity to marshal and characterise the facts and propose factual findings, a probable cause and recommendations. Parties then have the opportunity to individually meet separately with each of the five NTSB members to discuss their proposed findings and recommendations.

The conclusion of the NTSB investigation is a public 'sunshine meeting' (webcast live) in an auditorium at NTSB headquarters in Washington DC at which the NTSB staff presents to the members their findings, probable cause and recommendations. The members question the staff and vote on the findings, probable cause and recommendations. An executive summary of the findings, probable cause and recommendations is typically published on the same day. The accident report is typically published within two weeks.

A party may file a petition for reconsideration if or when new material evidence is found or if a showing can be made that a finding, probable cause or recommendation is based on clear error. There is no deadline to file such a petition.

Most critical events – when can companies make a difference?

The most critical events at which a transport provider, manufacturer or pipeline operator can make a difference as a party are:

  • factually vetting field notes;
  • factually vetting working group factual reports;
  • submitting detailed, well-constructed proposed findings and recommendations; and
  • making maximum use of their meetings with the NTSB members.

At the same time, it is critically important to be an active party participant throughout the process by:

  • providing accurate and timely responses to NTSB enquiries;
  • offering ideas to the NTSB – team members may have more experience and equally good ideas;
  • being diplomatic, but not sitting back and watching;
  • responding affirmatively if a sensitive issue develops;
  • striving for a thorough investigation and a thorough analysis; and
  • insisting on balanced and fair statements and characterisations.

 

Source: Thomas Tobin and Daniel Braude at Wilson Elser LLP

 

For NTSB marine investigation reports, click HERE

 

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