Helicopter Association International
 Fall 2017

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 NTSB Investigations: Make Your Voice Heard 

News coverage of an aircraft accident usually ends with a reporter standing just outside a ring of police tape saying, “The National Transportation Safety Board has taken control of the crash site and will issue a report within a year.”

The National Transportation Safety Board (NTSB) is presented as a completely independent organization, but behind the scenes, it relies heavily on manufacturers, operators, and maintainers for technical assistance. However, even though access to the investigation is limited to invited participants, people outside of the investigation can also provide valuable information to the NTSB to help it figure out what happened and why.

Reliance on Industry
The NTSB investigates an average of 2,000 aircraft accidents and incidents every year with fewer than 125 aviation field investigators. It would be impossible for the agency to maintain technical expertise on every possible cause of aircraft accidents. Imagine one person juggling 20 investigations — all involving different aircraft, conditions, and possible causes — and you can begin to imagine the workload of an NTSB investigator.

The NTSB relies heavily on manufacturers, operators, and maintainers for technical assistance. When designated as party representatives, personnel from these groups get direct access to wreckage and records during the investigation. They participate in and often perform teardown inspections, and generally participate in every aspect of the investigation.

The NTSB actively solicits input from these party representatives for NTSB probable cause findings. Industry representatives often write major portions of NTSB factual reports and are asked to edit those reports before they are made public. These well-established procedures, detailed in NTSB manuals and guides, are intended to help the agency benefit from industry knowledge, even where participants are investigating their own products.

Industry Responsibility
Everyone who becomes a party representative to an NTSB investigation must sign a statement that he or she will give the NTSB all information pertaining to the accident that is “in any manner relevant to the investigation.” This requirement is to ensure there is no filtering of information before it gets to the NTSB for analysis.

Party representatives must also not participate in the NTSB investigation “for the purpose of preparing for litigation” and are prohibited from “occupying a legal position.” In other words, the rules prohibit party representatives from attempting to steer the investigation in any particular direction in anticipation of litigation — on their own or on the advice of their lawyers. Because information that comes out in the investigation is frequently used in court, the rules sometimes put party representatives in a tough position, requiring them to openly disclose information that may be harmful to their company in a subsequent lawsuit.

The NTSB is one of the few federal agencies that relies almost exclusively on people volunteering information. Although the agency has the legal authority to order people and companies to provide information, it rarely does because it simply does not have the resources to aggressively pursue every investigation.

Anyone Can Contribute Information
If you, your organization, or one of your organization’s products is involved in an accident and you have not been invited to participate, offer your assistance. The NTSB investigator may not know the technical assistance you could provide and may welcome your involvement. For example, if you are an operator, volunteer to participate to ensure the NTSB gets the information it needs and to ensure factual statements about your operations are correct before they become gospel by being published in an NTSB report.

Nothing prohibits people outside of the NTSB investigation from providing information to the agency. In fact, a great deal of the agency’s work involves gathering information and interviewing witnesses who have valuable information but were not solicited for technical assistance during the investigation. So, if you have not been invited to participate as a party representative or you are prohibited from participating, you can still contribute to the investigation.

Here’s an example of how information from outside parties can aid the NTSB in its accident investigations. Recently, a fatal crash of a single-engine airplane occurred after an engine failure at altitude on a visual flight rules flight. No one suspected air traffic control involvement.

However, I learned that the pilot had declared an emergency and had asked the center controller for the nearest airport. The pilot was vectored to an airport 15 miles away instead of an airport 7.5 miles away that was well within glide distance. Then, as the aircraft was descending, the controller told the pilot there was a private strip 1 mile behind him. It was actually 10 miles away. The pilot turned around to reach the private strip, circled the area once, and crashed within a quarter-mile of where the private strip should have been.

It is unlikely that misdirection by air traffic control would have been considered by the NTSB unless someone provided that information. But once the NTSB was alerted to that possibility, its Air Traffic Control Group did an exhaustive investigation into air traffic control performance related to the crash.

People injured in aircraft accidents and those representing them are expressly excluded by federal law from participating in NTSB investigations. But there is no prohibition against them contributing information to the agency and its investigators.

Offer Your Help
Even though NTSB probable cause reports are not admissible in court, NTSB factual reports are. What the NTSB reports as fact can have a big impact on claims arising out of accidents, in part because of the agency’s reputation for thorough investigations.

If you are not invited to participate in an NTSB investigation, volunteer. And if you still do not make the cut, do not hold back on giving the agency information you believe it needs to perform a complete investigation.

The bottom line: anyone can contribute to an NTSB investigation, so make your voice heard. No one can argue against a better-informed NTSB.

Jon Kettles, “Your Aviation Lawyer,” is an ex-military helicopter and fixed-wing airline transport pilot, certificated flight instructor – instrument, and aerospace engineer who for more than 20 years has been representing people injured and family members of those killed in aircraft accidents, as well as operators in product and insurance disputes. Jon can be reached at jon@kettleslaw.com.

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