If you have participated in the investigation of a major transportation calamity, you are likely familiar with the bold yellow lettering on the blue jackets of National Transportation Safety Board (NTSB) investigators. These are the folks charged with determining the probable cause of many transportation disasters. Their mission is to prevent future accidents.
NTSB investigators rely on the participation of entities involved with the accidents they are investigating, often including the transportation operators, equipment manufacturers, unions, federal regulators, state agencies and first responders. On August 12, 2014, the NTSB published a Notice of Proposed Rulemaking (NPRM) seeking comments on a number of proposed changes to their investigation procedures (49 CFR Part 831). Most of the proposed changes merely bring the regulations into conformity with the manner in which NTSB investigations have been conducted for many years. There is, however, an interesting mix of more significant changes that will be of interest to a variety of stakeholders. Comments must be submitted on or before October 14, 2014.
Here are some highlights.
§831.5 “Priority of NTSB Investigations”
The proposed amendments are intended to ensure that other federal agencies are aware of the NTSB’s role as the federal agency with priority over investigations of transportation events, while still balancing the needs of other agencies to fulfill their statutory mandates. “The NTSB believes the best way to accomplish this is for the employees of other Federal agencies who are involved in an investigation to contact the NTSB investigator-in-charge (IIC) prior to questioning a witness, gathering records or documents, or otherwise obtaining any type of information relevant to the non-NTSB investigation.” The proposed amendments go on to assert a right of first access to witnesses and documentary evidence, noting that the NTSB may request other agencies to delay collecting evidence or information until the NTSB approves of such collection.
§831.7 “Witness Interviews”
The NTSB acknowledges that it has been requested to amend the existing rule so that a witness could have two representatives at an interview instead of the one representative currently allowed. Note is specifically made of witnesses who have wanted a union representative as well as an attorney. The NPRM announces that the NTSB does not think that any more than one representative is reasonably necessary and that two could distract from the purpose of the interview. The NTSB goes a bit further, proposing to confirm that its investigator has the authority to exclude a representative from an interview if that representative engages in disorderly conduct or is “contumacious” (stubbornly or willfully disobedient to authority).
§831.9 “Authority of Board Representatives”
The NTSB proposes amendments to make it clear that if and when they request the assistance of the other federal agencies, local law enforcement, or a party to the investigation, those people or entities are their “authorized representatives.”
The NTSB proposes language to confirm its status as a “Public Health Authority” for purposes of authority and status to obtain medical records and specimens under the Health Insurance Portability & Accountability Act of 1996 (HIPAA).
Further language is proposed to confirm the NTSB’s authority to extract data from devices of all sorts.
§831.11 “Parties to the Investigation”
The NTSB proposes adding the requirement that individuals proposed by party organizations to participate in an investigation should, to the extent practicable, not have had any direct involvement in the event under investigation. Similar language is proposed to prohibit, to the extent practicable, employees from other agencies who are engaged in enforcement rather than investigation activities.
NTSB intends to confirm that parties may conduct reviews or audits into certain aspects of the accident or event at issue simultaneously with the NTSB investigation, but only if they agree to inform the IIC in a timely manner and provide a copy of the results.
§831.13 “Flow & Dissemination of Investigative Information”
The NTSB proposes to allow parties, with the IIC’s permission, to release investigation information within party organizations as needed to implement prevention or remedial action to those in the organization who have decision-making authority or a need to know the information.
§831.14 “Proposed Findings”
The NTSB acknowledges a request that it share at least the intended analytical conclusions from draft final reports with parties so that the parties can comment before the final reports are finalized. The NTSB announces that it has chosen not to do so as part of this NPRM, but will consider this practice in the future in some instances. While technically this may mean that comment on this potential policy change is outside the bounds of this NPRM, the change would be very significant and is expected to generate the most comment.
§831.23 “International Aviation Investigations”
The NTSB proposes adding a new provision so that when an NTSB investigator is designated as an accredited representative in an aviation investigation outside the United States, they may appoint “technical advisers” to provide information and assist with the investigation, similar to ‘‘parties’’ in domestic investigations
The full text of the NPRM can be reviewed at https://federalregister.gov/a/2014-18921.