Experts explain: UAS and the NTSB

By Dane Jaques, Rebecca Lipe | May 07, 2018

Unmanned aircraft systems are the next phase of innovation in the aviation industry and present tremendous opportunities to a wide variety of companies and industries, from budding entrepreneurs bringing innovative technology to market to established companies seeking to take advantage of the efficiencies and safety offered by UAS. As of January 2018, the total number of UAS registered with the Federal Aviation Administration surpassed one million, as announced by U.S. Transportation Secretary Elaine Chao. But with the dramatic increase of both commercial and hobby UAS activities, the likelihood of an accident resulting in a National Transportation Safety Board investigation increases, as evidenced by the more than 100 reports each month to the FAA of UAS sightings in and around airplanes, helicopters, and airports by pilots of manned aircraft, and the September 2017 collision between a UAS and a U.S. Army helicopter. With the NTSB’s confirmation that it will investigate significant UAS accidents, it is imperative that commercial operators and others who use UAS have at least a basic understanding of the NTSB process and a plan to prepare for and respond to an NTSB investigation. This article outlines the basics of NTSB accident investigations and makes recommendations on how companies can prepare for an investigation.

The NTSB Investigation System 

The NTSB is an independent federal agency responsible for investigating transportation accidents to include aviation, highway, railroad, pipeline, and marine accidents. When a UAS accident occurs, a company must immediately and by the most expeditious means possible notify the NTSB of an accident if any person suffers death or serious injury, or if the UAS has a maximum gross takeoff weight of 300 pounds or greater and sustains substantial damage. If the NTSB elects to investigate, the investigation is led by an NTSB investigator known as the Investigator-in-Charge (IIC) who may form several specialty working groups based on the size and scope of the investigation. These working groups focus on accident areas to include operations, structures, systems, air traffic control, weather, and human performance, among others and will work independently to collect documents, interview witnesses, examine physical evidence and summarize the collected information in field notes and Group Chairman Factual Reports. The working groups are comprised of parties to the investigation and one or more NTSB investigators.  

The NTSB party system allows persons, government agencies, companies, and associations whose employees, functions, activities, or products were involved in the accident to participate as parties in order to provide qualified technical guidance to which the NTSB would not otherwise have access. Once a reportable accident occurs, an affected company should request permission to participate in the NTSB investigation as a party. Potential parties to a UAS accident typically include the UAS manufacturer and the operator. The NTSB has absolute discretion on naming parties to the investigation and there is no right to participate, except the FAA, which is entitled by law to participate in any NTSB investigation involving aviation accidents. For all other party requests, the NTSB has complete discretion in granting party status. No persons in legal or litigation positions are allowed to participate in an NTSB investigation.            

Following the initial investigation, the NTSB may elect to hold a public hearing in order to gather sworn testimony and further develop the factual record. During the hearing, the IIC will provide a summary of the progress of the investigation. Outside witnesses will be called and questioned by NTSB Board Members, NTSB technical staff and representatives of the parties to the investigation. Following the public hearing (if one is held) and at the end of the factual inquiry, the NTSB will conduct a Technical Review which provides the parties an opportunity to perform a final review of all factual material obtained during the investigation and raise any concerns regarding the completeness and accuracy of the information collected. The parties will also have an opportunity to submit their proposed conclusions, recommendations, and probable cause(s) in a “party submission” to the NTSB.  

The NTSB technical staff will then prepare a draft accident report which is submitted to the Board for deliberation and approval in a public Board meeting known as a “Sunshine Meeting.” Current rules do not allow the parties to participate in the preparation of the draft report or even review the draft report. The parties are also not allowed to participate in the Sunshine Meeting. Once the final report is adopted by the Board, an abstract is promptly published on the NTSB’s website followed by the final accident report several weeks later.

Pre-Accident Preparation

The post-accident environment is hectic and quite hostile to learning. It is therefore critical that UAS operators and manufacturers plan and prepare for possible participation in a NTSB investigation in advance of an incident or accident.    

First and foremost, a company should ensure their emergency response procedures include provisions regarding the notification and dissemination of information to the NTSB following an accident. The NTSB will make multiple, extensive data and witness requests almost immediately and participants must be prepared to comply. It is difficult for a company to effectively respond without the procedures and checklists in place prior to the accident to guide that response. 

However, the accident response procedures and checklists are meaningless unless a company implements a training program to teach potential participants about NTSB regulations, the investigative process and the participant’s role and responsibilities during the investigation.  The time and expense of training the potential participants need not be extensive, but should be included in a company’s periodic emergency response drills. Failure to do so could result in mistakes during the investigation which may have significant consequences for the company and its employees.

A company should also identify and preselect individuals (and alternates) who are not in a legal or claims-handling position to represent them in the NTSB investigation. These are critical roles because the people selected will work directly with the NTSB on behalf of the company without close supervision by the company. These individuals should be employees with the necessary technical qualifications sufficient to allow them to assist the NTSB, and must also be capable of overseeing the other company participants, marshaling the necessary resources to support the investigation, and ensuring that other investigation participants do not unfairly prejudice the company’s interests.      

Communication Restrictions 

Perhaps the most vexing and unexpected aspect of the NTSB investigation is the restriction on sharing information related to the accident.  It is a violation of NTSB regulations to release information that the Board has not already released by way of the docket, press releases/statements, or a published report.  This restriction applies to anyone outside the Board with the exception of the small number of the company’s employees assigned to work with the NTSB. Failure to comply with these disclosure requirements is the most common violation of NTSB regulations and may result in the NTSB revoking a party’s status in the investigation.  This disclosure limitation may also disrupt a company’s normal communications protocol and could frustrate company management who may not have access to accident information beyond the limited safety information authorized for release in order to mitigate or eliminate a dangerous process or condition.   

Conclusion 

Every UAS manufacturer and operator should be prepared for an NTSB investigation.  The rules and procedures governing an investigation are not intuitive and are difficult to learn in the post-accident environment.  Even a modest amount of advance preparation will pay big dividends in the event of an NTSB accident investigation.  At a minimum, accident investigation procedures should be developed and training should be provided to key management and those employees who are preselected to assist in a NTSB investigation. 

 

 

About the Authors:  Dane Jaques and Rebecca Lipe, both of Steptoe and Johnson LLP, are members of the Transportation Practice group with specific focus on aviation, accident response, unmanned aircraft systems, and autonomous vehicles.  As a partner in the Washington D.C. office, Dane has more than three decades of transportation law experience representing clients in high-profile matters involving the National Transportation Safety Board (“NTSB”) accident response, pipeline safety, transportation regulation, aviation law, litigation, appeals, and administrative proceedings.  Throughout his experience, he has represented transportation clients in more than 30 transportation safety investigations.  As an associate in the Washington D.C. office, Rebecca has unique experience as an on-scene military accident investigator, public and private claims adjudicator, and litigation advocate.  During her time in the US Air Force, Rebecca provided worldwide support, on-scene investigation, regulatory review, and training to over 40 Aerospace and Ground Accident Investigation Boards for mishaps involving aircraft, UAS, missiles, military ground training, and space crashes.