NTSB Challenges and Expectations for 2021

Holland & Knight LLP

Holland & Knight LLP

The National Transportation Safety Board (NTSB) investigates, reports on and determines the probable causes of transportation accidents in all modes of transportation, from planes, trains and automobiles, to pipelines, ships and other accidents of a catastrophic or recurring nature, such as commercial space transportation accidents and accidents involving hazardous materials.1 When the NTSB identifies safety issues, it can make safety recommendations aimed at furthering its ultimate mission of preventing future accidents and reducing injuries from accidents that do occur.

Every two years, the NTSB publishes a Most Wanted List of safety improvements that the agency determines are important to preventing accidents, minimizing injuries and saving lives across all modes of transportation. On the eve of the Biden-Harris inauguration, Holland & Knight spoke with NTSB Chairman Robert Sumwalt about current agency safety priorities and the impact of the COVID-19 pandemic on the agency's important mission.

Automated Driving Systems

The NTSB has historically focused its highway accident investigations on commercial operations such as passenger buses and trucking, school bus accidents, collisions involving large numbers of vehicles and rail-grade crossing accidents. Recently, however, the NTSB has also focused on accidents involving automated driving systems (ADS), with an eye toward the safety implications raised by this nascent technology. The automotive industry is rapidly developing ADS technologies. The technologies are so new that there are no Federal Motor Vehicle Safety Standards (FMVSS) that explicitly govern ADS. The National Highway Traffic Safety Administration (NHTSA) is still gathering public comment on ADS and how these technologies should be incorporated into the FMVSS.2

Since 2016, the NTSB has investigated five crashes involving vehicles equipped with ADS-related technologies.3 These accidents illustrate the NTSB's focus on current system limitations, lack of driver knowledge, misuse of vehicle capabilities and adequacy of oversight during vehicle testing on public roads. The NTSB's February 2020 report of its investigation of the crash of an SAE Level 2 automated vehicle on U.S. Highway 101 in Mountain View, California, noted that the vehicle's steering functions failed to maintain the vehicle in its lane because of an inability to discern lane markings for the gore area separating an exit lane from the travel lane. This resulted in a fatal collision with a concrete median barrier.4 The NTSB noted that the vehicle's ADS was not designed to detect certain common roadway hazards, such as fire trucks, crash attenuators and the side of a semitrailer, "when vehicles equipped with the technology are traveling at high speed or are faced with vehicle shapes or objects that the system has not been designed to detect."5 The NTSB also critiqued the systems for not limiting their use to the Operational Design Domain.6

As a result of its investigation, among several safety recommendations applicable to testing of automated vehicles, the NTSB issued a safety recommendation to NHTSA "to determine if the system's operating limitations, the foreseeability of driver misuse, and the ability to operate the vehicles outside the intended operational design domain pose an unreasonable risk to safety" and to "use applicable enforcement authority to ensure that [manufacturers] take[] corrective action (H-20-2)."7

NHTSA had previously conducted a defects investigation of such ADSs and concluded that it had not identified "any incidents in which the … systems did not perform as designed."8 To date, NHTSA has neither taken the action recommended by the NTSB, nor determined that another defect investigation is warranted.9

Holland & Knight discussed the recent NTSB investigations of ADS-equipped or developmental vehicles with NTSB Chairman Sumwalt. Chairman Sumwalt agreed that ADS is certainly a hot topic in the automotive industry, and commented that ADS-equipped vehicles hold great promise for improving highway safety. The NTSB will continue to monitor these developments and make safety recommendations as a result of agency investigations. It is up to NHTSA, though, to develop regulations and FMVSS applicable to ADS and ADS-equipped vehicles. Chairman Sumwalt highlighted the fact that systems currently on the market are not fully autonomous. They all require active monitoring by the driver, and do not permit drivers to nap or read in the car. The NTSB has found in its investigations that drivers have been inclined to deliberately operate vehicles in ways that exceed the vehicle's Operational Design Domain (ODD). The NTSB has called on manufacturers to build in safeguards that prevent drivers from operating vehicles in ways that exceed the automation capability intended by the manufacturer.

Chairman Sumwalt also pointed out that there remains room to improve highway safety in other areas. About a third of motor vehicle accidents involve pedestrians, bicycles and motorcycles, resulting in almost 13,000 fatalities per year. It is important that the industry continues to improve pedestrian, bicycle and motorcycle safety, even though those topics do not receive the same media attention as ADS-equipped vehicles.

Positive Train Control

Positive Train Control (PTC) for the railroad industry has been a decades-long focus of the NTSB and as of Dec. 29, 2020, the Federal Railroad Administration (FRA) indicates PTC has finally been fully implemented.10 PTC is a system of technologies designed to prevent train-to-train collisions, over-speed derailments, incursions into established work zones and movements of trains through switches left in the wrong position. The NTSB first issued a safety recommendation calling for implementation of PTC in the agency's report on a rail accident in Darien, Connecticut, in 1969. Since then, the agency has categorized 154 accidents as PTC-preventable. Those accidents have resulted in 305 deaths and 6,883 injuries. The most recent PTC-preventable accident occurred near Cary, Ohio, in 2019.

NTSB investigations and safety recommendations are consequential for companies involved in accidents, and may prompt congressional action. That is the case for PTC. Following a head-on collision in Chatsworth, California, that killed 25 people and injured 102 others, the NTSB concluded that a train engineer's use of a cellphone to send text messages distracted him from his duties, and that PTC would have prevented the tragic accident. In the aftermath of the Chatsworth accident, Congress enacted the Rail Safety Improvement Act of 2008,11 which mandated the full implementation of PTC systems by Dec. 15, 2015, on Class I railroads' main lines over which 5 million or more gross tons of annual traffic and certain hazardous materials are transported, and on any main lines over which intercity or commuter rail passenger transportation is regularly provided. In October 2015, Congress extended the deadline for full implementation to Dec. 31, 2018, with additional extensions available to Dec. 31, 2020, if approved by the FRA.12

Chairman Sumwalt addressed the recent full implementation of PTC and new challenges for rail safety. Just last week, the NTSB announced that it was closing three of its PTC-related safety recommendations following the full implementation by railroad companies of the congressional PTC mandates. Chairman Sumwalt commented that it is a historic achievement for independent railroad companies to design and deploy an interoperable PTC system that protects the highest risk railroad miles, those carrying passengers and hazardous materials. He also noted, however, that the PTC-covered high risk track is only approximately 40 percent of rail miles nationwide.

Chairman Sumwalt also noted that the NTSB has not closed all of its PTC-related safety recommendations. For example, a collision between two trains in Graniteville, Ohio, in 2005 caused the release of chlorine gas and at least partial evacuation of several square miles around the accident. The NTSB determined that the train engineer survived the collision, but succumbed to the chlorine gas. The NTSB recommended that FRA "determine the most effective methods of providing emergency escape breathing apparatus for all crewmembers on freight trains carrying hazardous materials … [and] require railroads to provide these breathing apparatus to their crewmembers  …."13 Chairman Sumwalt commented on the incongruity of airline flight crews, and even members of Congress, having ready access to breathing apparatus in an emergency, while FRA has not required such safety devices for railroad crewmembers transporting hazardous materials.

Investigating Transportation Accidents During the COVID-19 Pandemic

Conducting accident investigations during the COVID-19 pandemic has, to say the least, presented a challenge to the NTSB. The NTSB is a small agency, with about approximately 415 employees total, almost two-thirds of which work from the agency's headquarters in Washington, D.C. Almost all of the agency's headquarters staff are now working from home. And, while most of the agency's regional investigators are spread around the country and already worked from home, limitations on travel and concern for the safety of agency employees has severely limited the ability to travel to accidents. Chairman Sumwalt discussed these effects, his thoughts on the issues and how the country's transportation industry will rebound after the pandemic.

Chairman Sumwalt commented that the No. 1 priority of the NTSB is the safety of its employees, which the agency is taking very seriously during the pandemic. This has resulted in the agency sending accident investigators to far fewer accidents in the past year compared to pre-pandemic levels. One way the NTSB is incorporating information about COVID-19 into its launch decisions is through a smartphone app that provides a dashboard view of the current COVID-19 status of every county in the United States. When accidents happen, the agency makes an assessment of the danger of launching investigators, taking into account such factors as the COVID-19 status of the location from which an investigator would be traveling, the status of the accident location, and the adequacy of safe means of travel and lodging. Just last week, the NTSB sent a team of investigators to Indonesia to assist the Indonesian government with its investigation of the crash of an Indonesian airline.

Chairman Sumwalt said that he has not noticed a significant reduction in transportation accident rates, even though there has been some reduction in travel during the pandemic. It remains to be seen whether the economic effects of the pandemic will lead to reduced investments in safety or decreases in proficiency for transportation operators. He hopes that the industry will not let its guard down.

Chairman Sumwalt also noted one positive side effect of having the NTSB workforce working remotely from home – increased productivity. NTSB staff have achieved a 20 percent increase in report production; the backlog of vehicle recorders needing readout in the NTSB Recorders Lab is down 60 percent; and the Materials Lab backlog is at a 12-year low. COVID-19 will continue to challenge the NTSB in fulfilling its mission of investigating accidents. The agency will continue to prioritize the safety of its employees, while doing its best to improve transportation safety for the public.

20 Posts in 20 Days Leading to Inauguration Day on Jan. 20

Holland & Knight's Transportation & Infrastructure Industry Sector Group is prepared to assist industry clients in adapting to the anticipated changes by the new administration. Our team is writing new blog posts each day leading up to President-Elect Joe Biden's inauguration, with insights as to likely impacts on the various segments of the industry, including Aviation, Construction, Maritime, Freight Rail, Motor Carriers, Transit and Autonomous Transportation. 


1 See 49 U.S.C. §§ 1111(g), 1131(a)(1)(A)–(F).

2 See, e.g.,NHTSA Advanced Notice of Proposed Rulemaking, Framework for Automated Driving System Safety, 85 FR 78058, 78058–75 (Dec. 3, 2020), requesting comment on the development of a framework for Automated Driving System (ADS) safety.

3 NTSB HAR 20/01, Collision Between a Sport Utility Vehicle Operating With Partial Driving Automation and a Crash Attenuator (Feb. 25, 2020) (also summarizing three other NTSB investigations of similarly-equipped vehicles with ADSs); NTSB HAR 19/03, Collision Between Vehicle Controlled by Developmental Automated Driving System and Pedestrian (March 18, 2018).

4 See NTSB HAR 20/01 at 9, 12–20, 26–28, 43–50 & 55–57.

5 NTSB HAR 20/01 at 49.

6 NTSB HAR 20/01 at 48.

7 NTSB HAR 20/01 at 58.

8 NHTSA Office of Defect Investigations, Investigation No. PE 16-007 (closed Jan. 19, 2017).

9 NHTSA Response to NTSB Safety Recommendation H-20-002 (June 22, 2020). See NTSB Case Analysis and Reporting Online (CAROL) tool.

10 See Federal Railroad Administration, Steps Toward Full PTC System Implementation of Mandated Positive Train Control (PTC) Systems, (last visited Jan. 15, 2021).

11 Rail Safety Improvement Act of 2008, Pub. L. No. 110-432, § 104 (2008).

12 Positive Train Control Enforcement and Implementation Act of 2015, Pub. L. 114-73, § 1302 (2015).

13 See NTSB RAR-05/04 at 57 (Jan. 6, 2005; last visited Jan. 19, 2020).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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