On August 12, 2014, the Federal Register proposed to amend its regulations addressing NTSB accident investigation procedures. A copy of the Notice of Proposed Rulemaking is available on the government-wide website at www.regulations.gov [Docket ID Number NTSB-GC-2012-02].
This notice follows the NTSB’s publication, on June 25, 2012, of a notice of intent to undertake a review of all NTSB regulations to ensure they were updated pursuant to the mandate contained in two Executive Orders, dated January 18, 2011 and July 11, 2011, directed at all “Regulation and Independent Regulatory Bodies,” and focused on “Improving Regulation and Regulatory Review.”
In response to its June 25, 2012, notice of intent, the NTSB received five comments, only one from a company (GE Aviation), one from an association (A4A) and the others all from unions, including ALPA. Each of the comments received suggested one or more changes to the NTSB party process and procedures utilized by the NTSB in aviation accident investigation and found in 49 CFR part 831.
The NPRM provides the public, including all members of the aviation industry, until October 14, 2014, to submit their comments regarding the proposed rule changes.
Highlights of Proposed Rule Changes
Section 831.5 Nature of Investigation
Addresses NTSB fact finding investigations in the context of an investigation meant for determining liability, i.e. civil litigation.
Section 831.6 Request to Withhold Information
Addresses the NTSB withholding safety related information, e.g. ASAP, FOQA, LOSA, etc. provided to them during an investigation, from release pursuant to a FOIA request.
Section 831.7 Witness Interviews
Proposes to limit a witness being interviewed to being represented by a single representative as opposed to two, i.e. a company representative and a union representative.
Also, clarifies the release of transcripts or summaries of such interviews in the public docket.
Section 831.9 Authority of NTSB Representatives
Addresses/clarifies the power of the NTSB, or it authorized representatives during an investigation, including entering property, collecting evidence, CVRs and FDRs.
Section 831.11 Parties to the Investigation
Addresses who shall be a party to an investigation. This section is likely to draw comment from family/victim groups who, for many years, have sought to attain party status.
Changes also seek to preclude/discourage parties from designating personnel who may have been involved in the “event,” from working on the investigation.
Allows personnel directly involved in enforcement duties, e.g. airline PMI or POI, to be involved in the investigation.
Exempts representatives of other federal agencies from the obligation to sign the Certification of Party Representatives
Recognizes that parties may be conducting simultaneous internal investigations, but requires party to notify IIC of that fact and seek approval
Section 831.13 Flow and Dissemination of Investigative Information
Proposed change to allow a party to release accident investigative information to permit parties to “implement prevention, remedial action, or as otherwise noted by the NTSB…in accordance with certain criteria.” The proposed criteria includes permitting the NTSB IIC to see, review and, presumably, approve, whatever the company intends to internally generate, as well as any “findings and planned actions” by the company.
Section 831.14 Proposed Findings
While the proposed changes do not currently include providing parties to the investigation a copy of the draft NTSB final report before it is issued (something which is not done now), the notice does indicate “the NTSB plans to address this issue outside the purview of this NPRM.”
In addition to the foregoing highlights, there are a number of other proposed changes addressed in the 19 page NPRM.
All comments directed at these proposed amendments are due no later than October 14, 2014. Several of the proposals are very significant in the context of the accident investigation process going forward and will directly affect a company’s involvement in that process.
This is your opportunity to comment. Use it or lose it.
(Originally posted August 15, 2014)