The NTSB Investigates, It Doesn’t Enforce
The National Transportation Safety Board is unique within the massive federal organization chart. One might expect to find it next to the FAA among the “subsidiaries” of the Department of Transportation. The NTSB was originally established in 1967, but in 1974, Congress reestablished the NTSB as a completely separate entity, noting that: “ …No federal agency can properly perform such (investigatory) functions unless it is totally separate and independent from any other … agency of the United States.” Because the DOT has broad operational and regulatory responsibilities that affect the safety, adequacy, and efficiency of the transportation system, and transportation accidents may suggest deficiencies in that regulatory system, Congress determined that the NTSB’s independence was necessary for proper oversight. The NTSB, which has no authority to regulate, fund, or be directly involved in the operation of any mode of transportation, conducts investigations and makes recommendations from an objective viewpoint.
What does the NTSB Investigate?
The NTSB investigates accidents in the aviation, highway, marine, pipeline, and railroad modes, as well as accidents related to the transportation of hazardous materials. Although the NTSB cannot regulate, it publishes the NTSB’s Most Wanted List of Transportation Safety Improvements, which highlights safety-critical actions that DOT agencies, the USCG, and others need to take to help prevent accidents.
In 1996, Congress assigned the NTSB the additional responsibility of coordinating Federal assistance to families of aviation accident victims. While originally designed to provide assistance following major aviation accidents, the program has expanded to help in all modes of transportation on a case-by-case basis.
Although the NTSB has no power to promulgate regulations, the Board acts as the initial judicial branch for pilots and sailors. The NTSB Administrative Law Judges conduct formal hearings and issue initial decisions on appeals by airmen filed with the Safety Board. The NTSB serves as the “court of appeals” for any airman, mechanic or mariner whenever certificate action is taken by the FAA or the U.S. Coast Guard Commandant, or when the FAA assesses civil penalties. Board decisions are precedent for future decisions of the NTSB ALJs, and therefore the Board creates case law that interprets the regulations of the FAA.
Who’s First to Investigate?
By statute, the NTSB investigation of an aviation accident or incident takes priority over other agencies’ investigations. The FAA has acknowledged the intent of Congress to prevent duplication between the respective investigations and to require that the NTSB take the lead role in investigations. Accordingly, the FAA participates as a party in NTSB aviation accident and incident investigations, enabling the FAA to obtain safety-critical information in a timely manner from the NTSB’s comprehensive fact-gathering activities. This FAA role in NTSB investigations can lead to prompt issuance of emergency airworthiness directives.
The NTSB designates other organizations or corporations as parties to the investigation. Other than the FAA, which by law is automatically designated a party, the NTSB has complete discretion over which organizations it designates as parties to the investigation. Only those organizations or corporations that can provide expertise to the investigation are granted party status. Lawyers are typically excluded from the investigation. All party members report to the NTSB.
When do other Agencies get Involved?
The NTSB may delegate accident investigation to the FAA and frequently does so. This complicates matters for pilots and operators, because the FAA is performing a dual function: accident investigation for the NTSB and separately, determining whether enforcement action is warranted.
In cases of suspected criminal activity, other agencies may participate in the investigation. The Safety Board does not investigate criminal activity; in the past, once it has been established that a transportation tragedy is, in fact, a criminal act, the FBI becomes the lead federal investigative body, with the NTSB providing any requested support.
The September 11, 2001, crashes of all four airliners were obviously the result of criminal actions and the Justice Department assumed control of the investigations. The NTSB provided requested technical support. As the result of recent legislation, the NTSB will surrender lead status on a transportation accident only if the Attorney General, in consultation with the Chairman of the Safety Board, notifies the Board that circumstances reasonably indicate that the accident may have been caused by an intentional criminal act.
Incident & Accident Reporting
49 C.F.R. Part 830 prescribes regulations for “Notification and Reporting of Aircraft Accidents or Incidents and Overdue Aircraft, and Preservation of Aircraft Wreckage, Mail Cargo, and Records.” Definitions matter, because you don’t want an aircraft accident to follow you for the rest of your career: Aircraft accident means “an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight and all such persons have disembarked, and in which any person suffers death or serious injury, or in which the aircraft receives substantial damage. For purposes of this part, the definition of “aircraft accident” includes “unmanned aircraft accident,” as defined herein.” Aircraft operators are subject to a variety of notification requirements, and these requirements do not necessarily involve a crash. If you have had a mayday, or bend anything, you will want to review these requirements.
This article appeared in the January, 2020 issue of Business & Commercial Aviation as a Point of Law article.