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10 February 2021
The National Transportation Safety Board (NTSB) investigates aviation, railroad, highway, marine and pipeline accidents to determine their probable cause and issues safety recommendations to reduce the risk of future accidents. This article considers the analytic phase of NTSB investigations, which follows the factual phase.(1)
Parties to an NTSB investigation can submit proposed findings and recommendations. The five presidentially-appointed NTSB 'members' review these submissions in conjunction with the draft accident report from the NTSB staff.
NTSB investigations make use of working groups to focus on different aspects of an accident. Each working group comprises a chair from the NTSB, additional NTSB investigators and a representative from each party. These party representatives must have technical expertise in the working group's focus area and cannot be lawyers.
Typically, a party has 30 days from the finalisation of the last working group factual report to submit its proposed findings and recommendations. The level of detail warranted in these documents directly relates to the open and material issues in the investigation. If the probable cause of the accident is hotly contested, the marshalling of the facts in the proposed findings and recommendations can be extensive. Conversely, if a party largely agrees with the content of the group factual reports, the probable cause is largely agreed (even if not formally discussed) and the overall internal belief is that the company has been fairly represented in the safety culture interviews, the proposed findings and recommendations may be less comprehensive.
It is important that a party's proposed findings and recommendations discuss any changes in the company's policies and procedures intended to prevent future similar accidents or improve the company's safety culture.
Once a party is informed of the date of the NTSB meeting at which the incident will be discussed, it should attempt to schedule individual meetings with NTSB members in the preceding weeks in order to discuss its proposed findings and recommendations. This will give the members an opportunity to ask the company questions if there are any discrepancies between the NTSB staff's draft accident report and the party's submission. It also provides the members with an opportunity to personalise the company. The party's coordinator, senior safety management and president, CEO or chair should attend.
Due to the 'Sunshine Act', these member meetings must take place individually with each member. The meetings are typically limited to one hour, with the member, their special assistant and often one of the senior members of the NTSB modal office in attendance.
For further information on this topic please contact Thomas Tobin or Daniel Braude at Wilson Elser by telephone (+1 914 262 2891 or +1 212 564 2522) or email (email@example.com or firstname.lastname@example.org). The Wilson Elser website can be accessed at www.wilsonelser.com.
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