The NTSB: Small Agency, Outsize Influence

The United States National Transportation Safety Board (NTSB) regularly reminds those within the transportation community that it is not a regulator of the transportation sector or any individual transportation mode.  The NTSB investigates transportation accidents in the United States (U.S.), and indeed, NTSB investigations routinely probe into whether the framework of regulations or inadequate oversight by a regulatory body somehow contributed to a particular accident.  The agency can thus legitimately profess total independence from the modal administrators and the U.S. Department of Transportation, with the exception, perhaps, of being a thorn in their side.  Still, no transportation executive whose organization, operation, personnel, or product is somehow associated with a major U.S. transportation accident should underestimate the potential impact an NTSB investigation can have. Two examples readily come to mind.

On February 12, 2009, a U.S. regional commuter flight, Colgan Air Flight 3407, crashed near Buffalo, New York.  While setting up for final approach, the Bombardier Q400 stalled and departed controlled flight, meaning it entered an uncontrolled maneuver.  It crashed into a private residence killing all 49 people on board and one occupant of the house.

The subsequent NTSB investigation had access to the flight data recorder (FDR) recovered from the accident wreckage.  The NTSB's analysis of the data on the FDR indicated that as the aircraft slowed, the stall warning "stick shaker" activated.  Instead of recovering from the slow speed situation, the pilot, from the NTSB's perspective, inexplicably pulled back on the control yoke, causing the aircraft to stall and execute an uncontrolled roll into the ground.  There were numerous other attributes of the aircraft, crew, and operator that would eventually receive attention in the final NTSB accident report, but it was the NTSB's concerns about pilot performance that captured the public's attention early in the investigation.

At a public investigative hearing for the accident, the NTSB not surprisingly probed the two pilots' qualifications, their fitness for duty, and their training.  In short order, pilot qualifications for commercial flight duties, crew rest, fatigue, and pilots' commuting practices became public issues.  Distinctly separate from the NTSB investigation, but bolstered by the information the NTSB was making available in its public docket for the accident, the family members of the deceased passengers organized, using social networking and Internet-based tools, and began lobbying the U.S. Congress for legislation to address regulatory shortcomings the family members perceived the NTSB was uncovering.

The Federal Aviation Administration (FAA) almost immediately began reexamining existing regulations and policies.  Congress, under intense pressure from family members, also began wrestling with the minimum qualifications that should be required of commercial airline pilots. In August 2010, Congress passed the Airline Safety and Pilot Training Improvement Act, which among other things, required a minimum of 1,500 flight hours before a pilot could fly commercial airliners.  Prior to the change, airlines could hire pilots with much less total time.  The FAA was given three years to implement the Act's provisions.

Consequently, as a direct result of a single accident, and largely as a result of NTSB findings during its investigation, the hiring environment for key airline employees materially changed.  The supply-demand equation for pilot personnel will shift materially.  This in turn will undoubtedly have a long-term effect on the cost structure for commercial airlines, particularly the regional air carriers that traditionally hire less experienced pilots.

A second example, this one from the maritime industry, was the November 2007 allision (collision with a fixed object) in which not a single person was killed or injured.  This was the accident in San Francisco Bay that occurred when the container ship COSCO Busan struck the protective fendering of a tower that was supporting the San Francisco-Oakland Bay Bridge, spilling over 50,000 gallons of heavy fuel oil.

The NTSB investigation identified a number of contributing factors in its final report, including the maritime pilot's diminished cognitive ability due to prescription drug use, the failure of the ship's captain and pilot to clearly coordinate their departure plan, the failure of the ship's captain to properly supervise the pilot, the operator's failure to properly train the crew, and the U.S. Coast Guard's inadequate medical review and oversight program for mariners.

The environmental and economic impact of the spill were significant, and the television coverage dramatic. Early loss estimates were over $2 million for the ship, $1.5 million for the bridge's fender, and as much as $100 million for environmental cleanup.  These figures do not include the economic losses that resulted from the spill, such as in fishing, tourism, and recreation.  The combined litigation costs and civil damages are likely many times higher. While NTSB final reports are generally inadmissible in U.S. legal proceedings, the factual reports are often admitted into evidence.  The distinction is important in litigation before U.S. courts.

The operator of the vessel also eventually faced criminal charges, including six felony charges for providing U.S. investigators false documents.  In February of 2010, the operator was fined over $10 million after pleading guilty to offenses related to the accident.  The maritime pilot who was supposed to guide the ship from port was criminally prosecuted and sentenced to 10 months in prison for environmental crimes; charges for falsifying his annual medical certificate applications to the U.S. Coast Guard were dropped in the plea bargain. It is worth remembering that federal law enforcement agencies have access to testimony and evidence obtained by the NTSB.

At least in part as a result of the investigation, the U.S. Coast Guard significantly modified its medical certification process for mariners.  It is still resisting the NTSB recommendation to develop a process requiring mariners to promptly notify the Coast Guard of changes to their medical status or their use of certain medications. In addition, crew resource management training programs that fail to consider the NTSB findings in their investigation likely do so at their students' peril.

These examples demonstrate the long-term consequences for the entities involved in major U.S. transportation accidents and resulting investigations, as well as the potential for far-reaching effects to the transportation sector involved.  The prudent transportation enterprise will have a plan in place to deal with not just immediate accident response, but in addition, the investigative activity that is likely to follow.  Plans should include: 1) policies and procedures for addressing the concerns and queries of state and local officials, the media, victims and victims' families; 2) a method to expeditiously designate the proper technical personnel to serve as representatives of the party to any NTSB investigation; 3) procedures for timely responses, and documentation of what is produced in response, to NTSB requests for company records; and 4) procedures to promptly provide appropriate representation, where requested, to company employees being interviewed by NTSB investigators. Of course, there are many other areas that deserve sound advance planning, but those items will have to wait an expanded discussion sometime in the future.

Gary Halbert is a partner in the New York Litigation Practice Group, practicing out of Holland & Knight’s Washington, D.C. office. Mr. Halbert is a former U.S. Air Force instructor pilot, military attorney, and crisis communications director; and more recently, the General Counsel to the U.S. National Transportation Safety Board.

Mr. Halbert assists transportation-related enterprises through the legal and management challenges following significant transportation accidents. His practice areas include NTSB major accident investigations, regulatory matters for aviation and other transportation modes, transportation accident claims and litigation, aviation law, transportation mass-disaster law, claims under the Federal Tort Claims Act, and related product liability matters.

Mr. Halbert can be contacted on +1.202.469.5150 or by e-mail at gary.halbert@hklaw.com.