Gary Halbert is a partner in the New York Litigation Practice Group.
Mangled metal, smoldering debris, first responders – most of us can vividly recall images of some major transportation accident seen on television, in the print media or on the Internet. Some have experienced the scenes firsthand, perhaps surveying such an accident site on behalf of an employer or client. There are a number of governmental entities that have an interest in what, and/or who, caused an accident. Not all of these entities, however, are looking solely to identify a cause or causes as a means to improve transportation safety.
Recurring fixtures at the site of a transportation accident are the dark blue jackets with bold yellow lettering of the investigators from the National Transportation Safety Board (NTSB). What may escape our attention, though, are the jackets with lettering or insignia signifying organizations other than the NTSB or emergency first responders. These include law enforcement agencies such as the Federal Bureau of Investigation (FBI), Department of Transportation (DOT) modal administrations, Coast Guard Investigative Service (CGIS), Environmental Protection Agency (EPA), and state and local law enforcement entities. In this context, "law enforcement" is used to refer to both criminal and regulatory enforcement activities.
About the NTSB
For safety investigations, the NTSB is the federal agency charged by Congress with investigating "each accident involving civil aircraft[,] and ... each accident involving both military and civil aircraft."1 The NTSB also has the responsibility of investigating certain public use aircraft accidents and serious accidents in other transportation modes.2 Notable surface mode investigations include ones for the 2007 I-35 West bridge collapse in Minneapolis; the 2008 Metrolink railroad accident near Chatsworth, California; and the 2010 San Bruno, California, high pressure natural gas pipeline explosion. The NTSB's congressional charter is to "... establish the facts, circumstances, and cause or probable cause ..." of these transportation accidents.3
Congress established the NTSB in 1967 as an independent investigative agency of the United States with the authority to investigate state and federal regulatory oversight of the transportation industries and to identify the causes of accidents to prevent similar accidents in the future. The NTSB has issued numerous safety recommendations following its investigations identifying specific improvements that private and public entities should take to improve transportation safety.4 Not surprisingly, the NTSB takes pride in these recommendations, and in many respects, considers them to be the most important promulgations of the NTSB.5
To achieve its objectives, Congress granted the NTSB "priority over any investigation by another department, agency, or instrumentality of the United States Government."6 But the grant of priority, and thus initial authority over the accident site and investigative activities, did not mean exclusive authority. More precisely, Congress added the requirement that the NTSB "provide for appropriate participation by other departments, agencies, or instrumentalities in the investigation." Congress, however, specifically excluded these other entities from participating in the probable cause determination; that was reserved to the NTSB.7 As a result, regulatory agencies such as the Federal Aviation Administration (FAA) are routinely added as a "party," or participating entity, in an NTSB accident investigation.8
Multi-Entity Coordination for Investigations
Importantly, Congress permits investigations by other governmental entities to run simultaneously or parallel with the NTSB safety investigation. Specifically, Congress expressly instructed that the statutory powers of the NTSB "do not affect the authority of another department, agency, or instrumentality of the Government to investigate an accident under applicable law or to obtain information directly from the parties involved in, and witnesses to, the accident."9 Consequently, these other investigative entities may, and frequently do, run parallel criminal investigations, and even prosecute underlying misconduct related to major accidents being investigated by the NTSB.10
In light of this statutory and regulatory framework, an organization that has experienced a serious aviation accident (or in one of the other transportation modes) should expect to interact with a number of local, state, and federal regulatory and criminal investigative entities. An aviation accident resulting in few to no fatalities could still involve a local or state investigation related to the condition of a pilot, a federal regulatory inquiry into a repair station's compliance with FAA regulations, or a federal criminal investigation into the integrity of licensing and certification paperwork related to the pilot, aircraft, operator, or individual flight.
For instance, following the 2005 accident of a Platinum Jet aircraft at Teterboro Airport (in New Jersey), federal prosecutors charged managers with providing false statements to NTSB investigators during the course of the NTSB accident investigation in an effort to hide violations of certain FAA regulations.11 The charges included those for submitting false information about the weight and balance computations and documentation for the flight.
The Platinum Jet prosecutions highlight that owners, operators and manufacturers must be cognizant of potential criminal ramifications related to their involvement in an NTSB post-accident investigation. The importance of being both accurate and truthful in any response to investigating agencies, whether the FAA, NTSB or others, is obvious. Regardless of a company's policies on corporate integrity, and its commitment to forthrightness with regulators, it remains essential that the company provide proper training to its officials and employees who are interacting with investigative agencies, such as the NTSB, and appropriate legal counsel to its employees being interviewed by investigators.
Statements to NTSB Not Privileged
Those involved in the transportation industry who might be involved in, or are facing an NTSB investigation, may wish to carefully consider the character of any testimonial evidence, whether oral or written, that may be provided to the NTSB. The NTSB does not have independent authority to offer immunity to witnesses providing information in any phase of its investigation.12 To do so would require the approval of the United States Attorney General, and the Department of Justice is exceedingly reluctant to grant such requests. Not surprisingly, the NTSB rarely submits such a request. As a general rule, statements made to the NTSB are not privileged in any subsequent criminal prosecution and may be used against the witness, the company and others, as the rules of evidence may allow.
NTSB Investigative Records Never Sealed
The same principles apply to documentary and physical evidence provided to the NTSB. Many company officials and even in-house counsel are unaware that not only did Congress elect not to "seal" NTSB investigative records, it went a step further. Congress essentially balanced NTSB's "priority" in any given transportation accident investigation by giving other federal government agencies broad access to any evidence collected in the course of the NTSB investigation. The operative provision reads, "The Board [NTSB] and other departments, agencies, and instrumentalities shall ensure that appropriate information developed about the accident is exchanged in a timely manner."13 (emphasis added) The provision may be interpreted not only to "permit" the NTSB to share investigative information with another law enforcement agency, but to "require" such production if the NTSB is aware or made aware of a parallel law enforcement investigation.
The NTSB and FBI: A Cooperative Relationship
The relationship between the NTSB and the FBI has developed into a mutually supportive one.14 Consistent with directions from Congress, the two agencies have formalized their relationship in a memorandum of understanding (MOU) to define their respective roles and responsibilities in their bilateral relationship.15 The FBI routinely supplies personnel to a major accident site and, even if there is no indication a criminal act caused the event, will usually provide an evidence response team (ERT) to assist the NTSB in documenting evidence recovered at the site. If there is evidence that a criminal act caused the accident, NTSB investigators will shift their role and support the FBI's on-scene efforts as circumstances require. And regardless of which agency has the on-site lead, both will share with the other evidence they collect in their respective investigations. The NTSB approaches the needs of other investigative agencies, such as the EPA and the DOT, in similar fashion.
Respond Accurately to the NTSB
Company employees and legal counsel responding to investigative requests in an ongoing NTSB investigation need to be acutely aware that there may be a wider and sometimes less friendly audience for their testimony and documentary evidence. That awareness should prompt a deliberate, thoughtful, and thorough effort in responding to NTSB requests for information.
1 49 U.S.C. § 1132(a).
2 49 U.S.C. § 1131(a)(1).
4 NTSB website at http://www.ntsb.gov/safety/safety_recs.html, "Safety recommendations are issued by the NTSB following the investigation of transportation accidents and the completion of safety studies. Recommendations usually address a specific issue uncovered during an investigation or study and specify how to correct the situation. Letters containing the recommendations are sent to the organization best able to address the safety issue, whether it is public or private."
5 NTSB 2010 Annual Report to Congress, page ii, at http://www.ntsb.gov/doclib/agency_reports/2010AnnualReport.pdf, "Our recommendations are the focal point of the NTSB's efforts to improve the safety of the nation's transportation system."
6 49 U.S.C. § 1131(a)(2)(A); see also 49 C.F.R. § 831.5.
7 49 U.S.C. § 1131(a)(2)(A).
8 49 C.F.R. § 831.11(a)(4).
9 49 U.S.C. § 1131(a)(3).
10 Examples include the marine allision in San Francisco Bay involving the containership Cosco Busan in November 2007; the charter jet accident at Teterboro Airport, New Jersey, in February 2005, and the collision involving a sludge barge and tug with a "Ride the Ducks" tour boat in Philadelphia in July 2010.
11 See http://www.avweb.com/avwebflash/news/PilotWhoFalsifiedFlightLogsGetsPrisonTime_205257-1.html; http://www.ntsb.gov/doclib/reports/2006/AAR0604.pdf; and http://www.northjersey.com/news/Former_charter_company_exec_sentenced_in_Teterboro_jet_crash.html.
12 18 U.S.C. § 6004.
13 49 U.S.C. § 1131(a) (3).
14 See NTSB Aviation Investigation Manual – Major Team Investigations, page 50, paragraph 5.2, at http://www.ntsb.gov/doclib/manuals/MajorInvestigationsManual.pdf.
15 See Public Law 106-424, § 6(b), November 1, 2000, and Public Law 108-168, § 3(b), December 6, 2003.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.