SUMMARY OF the
NATIONAL TRANSPORTATION SAFETY BOARD'S SYMPOSIUM
ON
TRANSPORTATION & THE LAW
APRIL 25 & 26, 2000
HYATT REGENCY CRYSTAL CITY
ARLINGTON, VIRGINIA
DESCRIPTION FOR DAY 1 PANEL 1
NEW INITIATIVES IN SAFETY MANAGEMENT
THROUGH DATA DEVELOPMENT
Tuesday, April 25, 2000 10:00 am - 12:00 p.m. (2 hours)
The National Transportation Safety Board symposium, Transportation Safety and the Law, was based on the premise that the generation of data and information can be a valuable tool for improving safety performance. The first panel of the two-day symposium was composed of speakers representing the aviation, marine, trucking, pipeline and automobile industry who made presentations describing their companies safety initiatives through data collection.
The panel, moderated by Carl Vogt, former Chairman of the Safety Board and partner of the Fulbright & Jaworski Law Firm included presentations as summarized below;
Capt. Roger Whitefield
British Airways
To manage and improve safety there are certain events that have to take place. Information has to be gathered, incidents investigated and facts correlated. An overview of the sequence of events can then be taken and compared against the planned activities. Adjustments should then be made to correct failures in procedures or organizational practices. This process is dependent on the accurate reporting, collection and analysis of data.
If the above activities are constrained by the fear of `discoverability' and litigation, the law is failing in the fundamentals of jurisprudence, to protect the common people. Why does British Airways maintain its' safety program? Because it would be negligent not to. There is a moral obligation to enhance safety if they can and if they risk litigation, so be it.
Christopher A. Hart
Federal Aviation Administration
The Federal Aviation Administration has proposed the Global Aviation Information Network (GAIN) as a voluntary, privately owned and operated network of systems that collect and use aviation safety information about flight operations, air traffic control operations and maintenance to improve international aviation safety. Improved technology has enhanced our capability to obtain information about adverse trends in the system, and experience has demonstrated that the systematic collection and use of this information allows those trends to be corrected before they cause accidents or incidents. This concept of using information proactively to improve safety recently received support from Congress, in legislation, and from the President, and the GAIN Steering Committee enjoys participation from an international list of airlines, manufacturers, labor unions (pilots, air traffic controllers, and mechanics), the military, and general aviation.
The concept is also being implemented in other arenas. Programs are in various states of development in other transportation modes -- maritime, rail, highway, and pipelines. Outside of transportation, the Critical Infrastructure Assurance Office (CIAO) was recently created in response to the President's concern about the vulnerability of our nation's information infrastructures, and CIAO is now developing ways to collect information about near breaches of infrastructure security in an effort to prevent actual breaches. Also, the Institute of Medicine recently issued a report noting that nearly 100,000 people die each year from medical errors, and it proposed the establishment of processes to collect and use information proactively to help prevent such errors.
Corkey Romeo
US Airways
US Airways has implemented a Corporate Safety Program that includes the collection of data from pilots through Air Safety Reports (ASR) as well as the collection of digital data through recorders similar to flight data recorders. The information from both sources is collected and routinely monitored and analyzed to identify essential data and possible trends. The success of the program is based on trust and the belief that the program can enhance safety. To strengthen this program, the airline has demonstrated a non-reprisal policy, which ensures the de-identification of reports. In return, pilots get feedback and positive results.
Craig E. Philip
Ingram Barge Company
This presentation focused on three areas of change that emerged in the marine environment during the 1990's -- industry partnership initiatives with the Coast Guard; exploitation of GPS and electronic charting technologies and initiatives at Ingram and other carriers to establish rigorous programs to guide incident investigations and root cause analysis.
Patrick Quinn
U.S. Xpress Enterprises, Inc.
Many modern motor carriers are using advanced technologies to improve both safety and productivity. Because the trucking industry is such a diverse one, comprised of many different segments with different operational models and goals, the kinds of technologies used, and the manner in which they are used, vary greatly from company to company. Engine control modules, satellite and wireless communications systems, vehicle warning systems, and other advanced electronics are being tested by many carriers to determine how they might improve safety.
Carriers use recorded data from these disparate sources to educate their drivers as well as to develop and implement long-term safety strategies. These technologies provide valuable tools and resources; however, they are only as good as the manner in which human drivers operate them. Used properly, these systems may help carriers improve their drivers' ability to perform safely.
Unfortunately, trucking companies are rightfully concerned about the methods in which this recorded data can be, and more frequently is, misused in civil litigation. Complicated data gathering systems can be easily taken out of context in litigation, especially in light of the fact that there are no reliability or performance standards for these systems and therefore no guarantee as to the accuracy of recorded data. In fact, some carriers are warned away from gathering certain data by their own attorneys. This fear of litigation and concern over reliability is dampening adoption of some advanced systems, and reducing the availability of certain data that may help reduce accidents in the future. The litigation issue must be addressed if advanced data gathering systems are to be deployed more rapidly and voluntarily by motor carriers.
There is a cost v. benefits question. Their company was subjected to a discovery request for a data about a rear-end collision because an attorney saw the system information on their web site. Tools to make things safer can now be used against them. There is also a double standard if recorders are only on trucks when the auto driver causes 80% of truck/car accidents. Companies don't want to be penalized by plaintiff's attorneys and government regulators for improving safety. The government should look at tax incentives for smaller companies so they can add the data collection equipment as well. You can save more lives by trying than by doing nothing. Safety is a competitive advantage.
Bill Scott
Colonial Pipeline
Colonial has collected data regarding the safety and operation of its pipeline since it's construction in the early 1960's. As with all industry and technology, the quality and quantity of data used during Colonial's 38-year history has steadily increased. But lessons have been learned along the way indicate that how data is used to improve safety is dramatically important.
As its databases are enhanced, the information generated is being used to improve technology, processes, and the education of Colonials employees for the future with data from incidents now being used in training simulators. Colonial Pipeline enjoys the position as an industry leader because of their use of internal pipeline inspection tools; application of new data to leak detection programs; innovative data collection and application for prevention programs; and commitment to a Risk Assessment model that uses data to predict their greatest vulnerabilities.
Third party damage and encroachment is the biggest threat (i.e. right of way maintenance). Colonial has instituted a "call Before You Dig" program and has mapped the pipeline for integrity. They also have a system that looks at high populations and sensitive waterways and then plots risk indicators. Colonial looks at a given score and then enhances the margin of safety while trying to lower the scores.
Ernie S. Grush
Ford Motor Company
The introduction of electronic crash recorders into the automotive fleet provides breakthrough opportunities for obtaining research data useful in the evaluation of motor vehicle safety systems.
The availability of real-world crash acceleration-time histories can help refine the technologies driving further improvements in future vehicle safety systems - in particular, improved crash sensor algorithms and deployment threshold designs. Further, these crash histories can assist in the calibration of current crash severity determination techniques.
Ford and NHTSA have joined in an Advance Restraint Crash Study to review advanced restraint system operation in terms of real-world events. A central aspect of this study is to collect crash data recorder information. This program not only will confirm the feasibility and utility of crash recorder data retrieval, but even more important, it will provide a research data resource which can prove instrumental in further improving motor vehicle crash safety.
DESCRIPTION FOR DAY 1 PANEL 2
ACCIDENT INVESTIGATION, PROPRIETARY INFORMATION AND TORT LITIGATION
Tuesday, April 25, 2000 1:30 p.m. - 3:15 p.m. (1 hour 45 minutes)
Moderator: Randal Craft, Jr., Haight, Gardner, Holland & Knight
Panel Members:
Marty Matheson, American Petroleum Institute
Ronald Battocchi, NTSB GC
Michel Baumeister, Baumeister & Samuels, P.C.
Michael Demetrio, Corboy & Demetrio
RANDAL CRAFT: Chiron focuses on the way we conduct an investigation and the way the NTSB investigates. There is a concern about adverse publicity. He asked how we can get the NTSB to release credible information that is accurate, complete, and timely. There is concern regarding the NTSB's ability to properly and fairly process the information while overworked and under-funded. There is a legitimate concern about the resources at the Board. There is also a concern about exposure to liability as a basic philosophical issue - can money compensate for a non-monetary issue such as life? Regarding criminalization of accidents, as the NTSB investigates, it does not preclude a regulatory agency such as the DOT or FAA from investigating.
MARTY MATHESON: Focused on identifying the barriers to collecting and using safety information and suggested some of the methods for overcoming those barriers. She used an example of a data collection effort currently being undertaken by the pipeline industry - the API Pipeline Committee is currently pilot testing a Pipeline Performance Tracking Initiative. It will provide in-depth information about pipeline accidents for analysis and will assist the pipeline industry in reaching the goal of error-free and spill-free operations. She also discussed the motivations for collecting that information, the perceptions and misperceptions that result in resistance to data collection, planning for data analysis, and planning for data and information communication.
RON BATTOCCHI - Discussed history of NTSB and applicable statutes and investigation procedures. The priority of investigation goes to the NTSB but they need to share with other agencies. In our current reauthorization request, the Board has asked for a clarification on parallel investigations.
Discussed Chiron Corporation and PerSeptive Biosystems, Inc v. National Transportation Safety Board, et.al. (198 F.3d 1998, C.A.D.C.). A Cargo owner and manufacturer brought suit against National Transportation Safety Board (NTSB), challenging agency's decision not to share information obtained during its investigation of fire that destroyed an aircraft which contained the cargo. Chiron has all three factors of this panel:.Accident investigation, proprietary information and civil litigation. The Court found:
- National Transportation Safety Board's (NTSB) report relating to its investigation of airplane accident would not be admissible in civil lawsuit.
- Even though owner and manufacturer of cargo which carrier alleged started fire on airplane had been made parties to National Transportation Safety Board's (NTSB) investigation, they had no right to have NTSB produce copy of cargo list. National Transportation Safety Board's (NTSB) Guidance that was given to all parties to investigation and provided that "[a]ll factual information and developments of the investigation that are made known to the [Investigator in Charge] will be passed to each party spokesman" did not establish binding legal norm, and gave parties to investigation no right to information; NTSB had never indicated intention to be bound by the Guidance, and NTSB investigation did not determine parties' rights.
- The "Statement of Party Representatives to NTSB Investigation," gave no informational rights to parties to National Transportation Safety Board (NTSB) investigation; document discussed parties' duties and required them to waive their right to assert privilege in litigation with respect to information or documents obtained during course of investigation, and did not discuss their rights as parties, let alone promise to share in all pertinent factual developments.
The United States District Court for the District of Columbia, 27 F.Supp.2d 257, Urbina, J., transferred action. The Court of Appeals, Edwards, Chief Judge, held that petitioners lacked standing. Petition dismissed.
MICHAEL DEMETRIO: If you want a free and open society, you have to work to protect it. The court system must be free and open. Is self-critical analysis appropriate from the operator's point of view, from the plaintiff's? It should fall under the subsequent remedial measures rule of law. We have courts to decide and appellate courts to overrule. You have to put safety ahead of competitive instincts when you are in the transportation industry - an industry that touches lives throughout the public.
MICHEL BAUMEISTER: The ability of the NTSB to fairly process and manufacture information needs funding and personnel to ferret out the information. Prosecutorial discretion is very open across the country and at DOJ Headquarters. Families need someone to participate as an ombudsman and at least at the hearing stage, families need someone like liaison counsel.
DESCRIPTION FOR DAY 1 PANEL 3
Privacy: Recorders, Records, and Employee Rights
Tuesday, April 25, 200 3:30 p.m. - 5:00 p.m. (1 hour 30 minutes)
Moderator: Captain Bruce Brandon
Panel Members:
Lindsay Fenwick (ALPA)
Byron Boyd (UTU)
Scott Griffith (American Airlines)
Charles Murdock (Hvide Marine)
LaMont Byrd (Teamsters)
The focus of this panel was the issue of gathering information in the interest of transportation safety versus the legal right to protect information. The Freedom of Information Act (FOIA) and the related governmental policies created the foundation for Federal agencies to release information to the general public. The rationale for the disclosure of information is that the public will have direct insight into the functioning of the Federal government and by this action, government will be improved. However, other "competing" laws such as the Privacy Act and judicial decisions seek to protect personal information from disclosure to the public.
The panel discussed the policy and legal issues surrounding gathering and disclosing transportation safety information, which included FOIA, privacy issues, employee rights, and needs and rights of government agencies to gather information. The panel also discussed certain administrative law initiatives such as Flight Operations Quality Assurance (FOQA) programs that attempt to balance the issue of gathering safety information while protecting that information from complete disclosure.
Capt. Brandon began the session with a few remarks illustrating how personal privacy is under attack and discussed the reasonable expectation of privacy. Technology has made surveillance of individuals routine, i.e., credit card profiles, identity theft, and DNA analysis that could be used for risk assessment purposes. The transportation industry is highly regulated. Employees are scrutinized more than in any other industry. Is further invasion necessary or justified? What is a legitimate expectation of privacy of someone in this industry? Is it different from others? What type of person will be attracted to a career in transportation if he knows the great extent to which his privacy will be invaded?
The competition between privacy and the gathering of personal data for accident investigations evokes strong emotions from both transportation workers and safety investigators. Generally speaking one's perspective is directly related to which side of the investigative event one is involved.
Employees whose privacy is being invaded (and very few would say that it is not being invaded) argue some personal data, such as that which may be obtained by having a video camera placed within feet of their work location where they must be physically present for eight or more hours per day, is overly intrusive. They believe that necessary accident information can be obtained in a less offensive manner through other technology such as digital data recorders. These employees' arguments are valid. Safety investigators contend that they need collect all possible data to accurately determine the cause of an accident and to provide effective remedies to its causation. This argument, too, is valid.
Ultimately, the discussion should focus on whether a way can be found to accommodate both of these compelling viewpoints. This would make transportation even safer without destroying the privacy of those who have literally been entrusted with the lives of their passengers. These competing concerns can, if approached rationally and with an open mind, result in a synergistic solution rather than a zero sum conclusion.
Remarks by Byron Boyd: Railroad employees understand that due to the nature of their work, their privacy rights must be sacrificed to some extent. While technological advancements such as positive train separation can contribute significantly to the cause of safety, others, such as event recorders, which could be used for other purposes, should be used only for the advancement of safety. Service vehicle voice transcripts should also be protected within the bounds of reasonableness. Our goal must be safety without infringement of employees' rights. There should be a balancing test for using the data from recorders after an accident and use reasonableness as a guide. Use the recorders for safety only, and then use only relevant portions at the public hearing to protect employees. As a society, we balance competing interests against other important interests. Safety is legitimate but so is employee privacy. The goal should be cooperating, not competing.
Remarks by Scott Griffith: The ASAP Program is about accountability or uncovering events that would not be known otherwise. There have been 22,000 events in the life of the program, only 1% of those would have been found by the FAA without ASAP. The focus is on the public safety improvements that can be gained. There is a proposal by industry to provide FOQA/ASAP data to NTSB and FAA. It's absolutely imperative for safety to provide this information. The word "protection" of the data is not correct. We need to establish a means of "appropriate use." Protection insinuates a need to hide. If you don't ensure regulation of appropriate use, the information won't be gathered. We need to protect the ability to collect, not protect the ability to hide it.
Remarks by LaMont Byrd: Teamsters represent 1.4 million workers. Mr. Byrd spoke to the consequences of invading the privacy of truck drivers by various forms of electronic monitoring. He is concerned that, while the collection/use of accident data can be useful to train drivers, track equipment, and reduce paperwork, adverse consequences could result from heavy-handed or punitive use of the information gathered from electronic monitoring. Truck drivers work well with minimal supervision and, if the monitoring becomes routine, it could affect morale, increase job stress, encourage employers to second guess drivers' decisions, and possibly have a negative effect on safety. A distinction must be drawn between information used for safety purposes and disciplinary purposes. It is a challenge to use advanced technologies to enhance safety while protecting employee privacy.
Remarks by Charles Murdock: Truth, honesty, and trust are important in the marine industry. Criminal prosecution of mariners for conduct undertaken in the line of duty is having a negative effect on the industry. The highly skilled and educated merchant mariners are being forced to choose different careers. When conscientious people are honest in their efforts to improve safety and efficiency, the records they keep should Not be admissible as evidence for prosecution. Criminal liability throws cold water on the efforts of companies to benchmark and collect data to find their mistakes. The highly educated, highly trained, highly disciplined professionals who are the stuff of the U.S. Merchant Marine, are being forced by the immutable laws of economics to direct their talents toward any thousands of opportunities which do not carry the threat of criminal prosecution in the line of duty. There are very few jobs which, when faithfully executed, carry the risk of prosecution.
Remarks by Lindsay Fenwick: While pilots have an interest in safety enhancements, they remain apprehensive that information will be misused. More money, time, and attention should be put into enhanced recorder technology - better mikes, improved data recorders - and technological advancements that aid in the actual flying of the aircraft, rather than video cameras in the cockpit. The public gravitates towards the cockpit video because it is an easy technology that everyone can understand, but it will be prone to misuse - sensationalism, litigation, discipline, rather than pure safety motives. How many times has an unauthorized release occurred? Who knows but one time is too many!! To sensationalize the last few moments of a pilot's life is to use it (recorder) for something it was not intended.
Video recorders in a 7-11 or a bank are focused on the customers to protect the company's assets and it's a deterrent effect to prevent illegal or unauthorized behavior, this is not applicable in the cockpit. If video is used, there must be restrictions: 1) protective laws with global reach; 2) protective technology - encryption; 3) destruction after authorized use; 4) limit the field of view - focus on instruments, not pilots; 5) the airline should own only the camera, not the tape.
DESCRIPTION FOR DAY 2 PANEL 1
CRIMINALIZATION OF TRANSPORTATION ACCIDENTS:
CASE STUDIES FROM THE FIELD
Wednesday, April 26, 2000
8:30-10:00 a.m. (1 hour 30 minutes)
Moderator: Dan Campbell, Managing Director, National Transportation Safety Board
Panel Members:
Ira Belkin, United States Attorney's Office, Rhode Island
Martin Raskin, Raskin & Raskin
H. Merritt Lane - Canal Barge Company, Inc.
The panel presented case studies of transportation accidents that have or could have resulted in criminal prosecution. The case studies focused on aviation and maritime accidents. The panel discussion included an overview of the growing trend and legal basis to assign criminal responsibility after accidents. In the case of maritime accidents, the discussion focus was on environmental laws. In the case of aviation accidents, the discussion focus was on laws governing the transport of hazardous materials and maintenance of aircraft.
Among the legal issues discussed were: 1. criminal "intent," 2. the government's right to obtain information, 2. individual rights versus full cooperation, 3. the scope of false statement statues, and 4. the potential liability of business entities for acts of its employees; as well as the affect of potential criminal prosecution on the safety aspects of accident investigation.
IRA BELKIN: Discussed difference between use immunity and transactional immunity. In response to Merritt Lane, if we were going to rely on strict liability statutes, all we would have to do was prove there was an oil spill and we wouldn't have a further investigation. Note that how a company or person deals with the U.S. Attorney's Office strongly influences the way the investigation flows. If a master or engineer of a vessel has been truthful and came forward, would office response be different? Yes, but there would still be criminal prosecutions of at least the company. Discussed why NTSB statements are not immunized - NTSB can request from DOJ and that's why it's not immunized by NTSB itself. Plea agreements are also important for safety and setting standards of care.
H. MERRITT LANE III: One marine transportation company executive shares his company's concerns about the "extreme dilemma" they face and the criminal liability action plan that they have developed as part of their emergency response plan:
Responsible marine transportation companies are concerned that the potential for criminal prosecution for vessel source pollution accidents has increased drastically in recent years. Because of the Department of Justice's increased focus on environmental crimes and the availability of strict criminal liability laws that were enacted in the early 1900's to serve other purposes, every oil spill can now be turned into a crime scene without regard to fault or intent of the spiller. This unfortunate reality places marine operators in an extreme dilemma - should they provide less than full cooperation and response in the aftermath of an oil spill to protect themselves from potential criminal liability, or should they cooperate fully despite the risk that their statements and actions could be used against them in a subsequent criminal prosecution?
Clearly, the public is not well served by laws that impair effective emergency response operations by creating disincentives to cooperate and that deter qualified mariners from transporting hazardous cargoes because of excessive criminal liability concerns. Until legislative change is enacted, responsible marine companies are advised to prepare to manage the increasing prospect of criminal liability despite all of its best efforts to prevent the spill.
MARTIN RASKIN: Represents SabreTech on state murder/manslaughter charges. Initially
SabreTech cooperated without hesitation until a criminal investigation started and then
cooperation was chilled. There is a clear conflict between individual rights and the public good.
This was dangerous to the traveling public because the NTSB's hands were tied. In this case,
counsel made concessions. Information was furnished through the attorneys proper so information could come forward but protect individual's 5th Amendment rights to not incriminate themselves.We will see more & more of these conflicting investigations.
Employees in SabreTech asserted their 5th Amendment privilege. Only a grant of some type of
immunity will help these investigations move forward. One possible legislative fix could be
implemented to prevent the use of factual statements to accident investigations to be used in
further criminal prosecutions. Prosecutors could still prosecute but simply couldn't use those
truthful statements given to investigators, not to be used in subsequent criminal proceeding
(called "Use Immunity").
DESCRIPTIONS FOR DAY 2 PANEL 2
ENFORCERS AS SAFETY REGULATORS: Pros and Cons
Wednesday, April 26 2000
10:15 a.m.- 12:15 p.m. (2 hours)
Moderator: Kenneth Mead, Inspector General (IG), Department of Transportation (DOT)
Panel Members:
· Kelley Coyner, Administrator - Research and Special Programs Administration (RSPA)
· Kalin Jones, Vice President and General Counsel, Colonial Pipeline
· Thomas Scott, United States Attorney - Southern District of Florida
· Captain Ed Soliday, Vice President for Corporate Safety, Quality Assurance and Security. United Airlines
· Steven Solow, Chief of Environmental Crimes Section, Department of Justice
Mr. Mead introduced the issues before the panel, stating them in terms of two broad central questions:
1. What is the effect of a criminal investigation on a transportation / safety investigation and vice versa?
2. What is the effect of criminalizing gross negligence in transportation accidents?
From his perspective as DOT/IG, Mr. Mead raised three additional concerns, beginning with his feeling that a "First Come, First Served" rule would not be feasible as the basis for determining how an accident investigation might proceed. Specifically, he noted that, occasionally, a criminal investigation relating to a carrier or some aspect of a case would already be in existence when a transportation accident would occur. In such a circumstance, he suggested it would not be appropriate to delay investigation of the transportation accident until the criminal case was concluded. He also asked whether or not DOT agencies, such as the FAA or RSPA, might bear special responsibilities concerning possible criminal issues in an investigation if the system of fines and other lesser methods of securing compliance had been unsuccessful? As a final concern, he noted the tension and possible struggle likely to occur depending on the case when considering the relative importance of determining the probable cause of an accident vs. bringing an offender to justice.
Finally, Mr. Mead made a number of preliminary suggestions as to how conflict might be reduced. Agencies should come together and coordinate their purposes earlier in the investigative process. Agencies should coordinate procedures for handling physical evidence earlier in the investigation and, in the same vein, should coordinate decisions on gathering evidence as soon as possible. Finally, more importance should be given to distinguishing between when a corporation is cooperating with the NTSB in an investigation and when it is obstructing justice.
Remarks by Ms. Coyner: The focus must be our common objective of maintaining or achieving public confidence in the safe transportation of gas and hazardous materials. This requires the safe transportation of product and placing a high emphasis on safety. This emphasis must result in our minimizing the impact of the transportation on the community by the prevention of "releases" and mitigating the impact of releases when they occur. Criminal prosecution is an important and necessary tool, particularly when we are confronted with persons knowingly and willfully flaunting standards and compliance. Effective prosecution will target those directly involved in releases during transportation AND those that impair transportation (i.e., excavation damage that occurs and is then covered up without repair; or, downgrading ratings of danger and concealing the fact of having done so). The timing of a criminal investigation can impair the transportation investigation conducted by the NTSB. For example, in the Bellingham accident in Washington State company officials taking the 5th amendment eroded the confidence of the victims of the accident and the entire Bellingham community as to the safety of the pipeline. We can not make systematic changes by criminalizing behavior that is not willful and knowing. One method for producing change in the industry without the use of criminal prosecution is the RSPA Correction Order, a flexible and effective administrative order.
Remarks by Mr. Jones: The June 1996 release of 1 million gallons of diesel fuel into the Reedy River in South Carolina resulted in parallel investigations of the incident by the NTSB, OPS, EPA and South Carolina. With the resulting competing demands, Colonial Pipeline, intent on cooperating with all investigations, found coordination among the investigators to be critical - coordination among agencies, between agencies and within the agencies. In the ensuing investigation concerning such an incident or accident, it is important for the company involved to:
· Preserve the integrity of its documents and other evidence (including tracking who copies and examines documents). It is a good idea to have a single point of contact for all requests for evidence and documents;
· Take steps to preserve company proprietary information;
· Continue operations (coordination among investigators can avoid paralysis of the company and will permit the effective/appropriate use of company employees); and
· Respect the rights of individuals. Education dispels concerns. It was company policy to inform employees of their rights and to state that the company was cooperating with the investigation.
Mr. Jones stated that, in the view of Colonial, its cooperation led to investigators using much less disruptive methods and tactics in dealing with the company. The openness also led to the development of a realistic plan for remediation.
Remarks by Mr. Scott: Following the ValuJet and Fine Air accidents in Florida, there is an increased emphasis on investigation of crimes in aviation and at airports. There have been numerous prosecutions, with multiple convictions in the areas of fraud, false statements, Hazmat violations and the area of contraband. Mr. Scott emphasized the need for cooperation among agencies, stating that the criminalization of an accident should be the exception, not the rule. In his view, in the case of an accident, the NTSB should proceed first. If, in the course of its investigation, the NTSB encounters obstruction of justice or destruction of evidence, it can bring in the Department of Justice (DOJ). At the conclusion of the NTSB's inquiry, DOJ can determine if it should go further. There should be an agreed upon procedure whereby disputes between the US Attorney and the NTSB are resolved. Mr. Scott emphasized that the focus of his office, with regard to corporate defendants, is to handle cases to foster compliance and ultimately make the companies better corporate citizens.
Remarks by Captain Soliday: Prior to 1990, the result of incident investigations at United Airlines was individual discipline, with no improvements to its safety systems and minimal understanding of any incident's causal factors. Since 1991 United Airline's incident review sessions focus first on identifying the safety issues, limit participation in the sessions to an airline safety investigator, a union safety investigator and technical experts with no management or disciplinary authorities or responsibilities. The sessions follow a predetermined checklist for the interview, so that all parties know what is expected prior to coming to the session. Essential safety information is gathered and facts only are given to flight management personnel. Discipline is reserved for intentional actions and violations of law. The result has been more dialogue between management and personnel and more errors fixed. In 1994, the CEO and President of United made it policy that no discipline would be administered for reporting a safety violation. The instruments and recorders available only tell what an aircraft is doing, to be effective, a safety program needs more information than that to make sense of every incident or event. The goal should be continuous safety improvement, which is facilitated by information sharing. The FOQA program facilitates the sharing necessary for progress in safety. Civil litigation and criminal prosecution are not effective safety tools and are ineffective with human error. The sharing programs do reach incidents involving error. As to the topic of Enforcers as Safety Regulators, Captain Soliday offered the following quote: "When a person sets out to slay monsters, one must be careful not to become one."
Remarks by Mr. Solow: In order to achieve compliance with its laws, rules and regulations, including those related to safety, the government needs a wide range of responses. Criminal enforcement does not deter error, but it does deter willful, conscious acts of violation. Mr. Solow stated that there is a false dichotomy between investigations into criminal activity and investigations concerning safety issues. The DOJ Guide on corporate prosecutions is instructive as to which cases should be handled as criminal investigations and prosecutions. DOJ seeks to prosecute deliberate acts that involve one or a combination a number of the following: a history of noncompliance (a business decision to delay compliance); high level decision to take the action or refrain from taking it (managers or officers); a wide scale level of risk of harm to the public or individuals; and an obstructionist company.
Government agencies have the responsibility to obtain public compliance with health, safety, and environmental regulations. Although the preferred policy is voluntary compliance along with public education, those government agencies also enforce civil and criminal penalties for violation of those regulations. Therefore, government compliance inspectors many times have the dual and sometimes conflicting responsibility of promoting safety while enforcing the civil and criminal penalties.
This panel explored the legal nuances and public policy issues associated with the dual responsibility of promoting safety while enforcing civil and criminal penalties in context of accident investigation. Legal issues included: (1) protecting individual rights while obtaining accident information, (2) public good in promoting full compliance to obtain accident information, (2) rules of evidence regarding information obtained during accident investigations, (3) sharing of accident information between governmental agencies, (4) informed consent of witnesses giving accident information, and (5) different roles and functions of compliance inspectors during the course of an accident investigation.
DAY 2 PANEL 3
SOLUTIONS FOR SAFETY
Wednesday, April 26, 2000 2:00pm - 5:00 pm (3 hours)
Moderator: Judge Todd Campbell, U.S. District Court, Nashville, TN
Panel Members:
Michel Demetrio
Bob Clifford
Cindy Lebow
Martin Raskin
Bruce Brandon
Elaine Joost
Christopher Hart
Dan Campbell
Ronald Schleede
Kenneth Smart
Ed Soliday
Randal Craft Jr.
Kenneth Mead
Ira Belkin
Issues:
1) How to deal with parallel criminal/safety investigations? Can and should pre-incident compliance and post-incident cooperation determine investigative priorities?
2) Are current CVR/proposed video recorder protections satisfactory?
3) Was Cali court correct on the privilege/peer review issue?
Opening Remarks of Judge Campbell:
Over the course of the past two days, observed/discerned numerous relevant issues: concerns about the use of accident/investigation info in criminal proceedings; 4th Amendment rights; illegal searches; 5th Amendment rights; 6th Amendment rights (right to counsel); corporations' vs. individuals' representation by counsel; public disclosure/privacy/FOIA issues; foreign release of information; employees' concerns about employers' use of information/records; 1st A/media access to information; victims' families' access to investigation information; parallel local/state/federal criminal investigations.
Issue #1 - CAN AND SHOULD PRE-INCIDENT COMPLIANCE AND POST-INCIDENT COOPERATION DETERMINE INVESTIGATIVE PROPERTIES? Regarding the priority of safety investigations; current reauthorization language creates clear NTSB priority absent evidence of criminal cause.
Note - as a federal judge, knows from experience that the criminal docket generally has priority; judges lean towards criminal cases when addressing scheduling, etc.
Note - Numerous crimes with broad reach potentially applicable to accident scenarios:
· Mail/wire fraud cases
· Haz/Mat transportation
· Recklessness
· Intentional conduct
· RCRA and other environmental statutes
· Destruction of aircraft statute (doesn't just apply to terrorism)
· State law - homicide/manslaughter/felony murder/etc.
QUESTION - SHOULD NTSB GO FIRST PER THE REMARKS OF USA TOM SCOTT, WITH PROSECUTIONS WAITING FOR THE SAFETY INVESTIGATION TO BE COMPLETED? IF SO, UNDER WHAT PROTOCOL? WHAT ABOUT THE IMMUNITY ISSUE? HOW SHOULD THESE ISSUES/CONCERNS BE ADDRESSED?
Note - regarding use immunity, and whether agencies or only DOJ should be able to grant; numerous USAO's take the position that only a judge can grant immunity.
WHO SHOULD HAVE PRIORITY? IS THERE ANY NEED FOR LEGISLATIVE IMMUNITY FOR ACCIDENT INVESTIGATIONS?
Ira Belkin (Rhode Island USAO): Immunity is not lightly given; perhaps the most important decision a prosecutor can make; it could wreak havoc on prosecutions, some at least, if power to grant immunity were given to other agencies; but use immunity for NTSB statements could be a possible solution if thought through carefully; but example of Congressional immunity to Oliver North, and convictions were ultimately overturned
Note (per J. Campbell) - if statutory immunity for NTSB statements speaks of "truthful" statements made to NTSB investigators, this could turn into a "litigation breeder" problem for prosecutors, et al, to deal with
Note: (per J. Campbell) - immunity orders are, in essence, compulsion orders
WHAT ABOUT THE ISSUE OF MOTIONS FOR SUBSTANTIAL ASSISTANCE (e.g. sentencing credit for cooperative behavior)?
Marty Raskin: (SabreTech defense counsel, ValuJet prosecutions): Belkin's statements represent a prosecutor jealously guarding his turf; federal safety investigations wouldn't generally corrupt a criminal case; the immunity scenario is really no different than a routine proffer letter;
Transportation safety may outweigh a particular criminal case.
Re: cooperation motion: it's not an end all because AUSA can withdraw promises and neither Defendant nor Judge can do anything about it.
Bob Craft (senior aviation litigation partner, Holland & Knight; TWA defense counsel in TWA 800 litigation): has been in situations where pilots' were under threat of criminal prosecution; this stymies the investigative process; not sure we need legislative fix, but if we went that way, we probably need NTSB to be able to grant immunity but only for those situations where NTSB thinks causal/relevant;
A problem, re: criminal/safety investigation priority, however, is that it is hard to tell in advance; e.g., FBI/TWA 800, where the safety investigation has suffered ever since.
JUDGE CAMPBELL IS NOT AWARE OF ANY AGENCY (OTHER THAN DOJ) WITH THE POWER TO GRANT IMMUNITY....
Ira Belkin: agrees with J. Campbell; not aware of any AUSA that would accede to waiver of derivative use of immunized statements;
Why couldn't NTSB be a party to a proffer letter/meeting?
Marty Raskin: the problem is only particular to individual AUSAs.
TO DAN CAMPBELL (Managing Director, NTSB) & CHRIS HART (Asst. Administrator, System Safety, FAA) - DO AGENCIES WANT THE POWER TO CONFER IMMUNITY?
Dan Campbell: no doubt there is some conduct that requires criminal deterrence; and, deterring dangerous situations pertains to the NTSB mission; so, careful consideration of the issue should be directed towards non-intentional conduct; NTSB doesn't want to be a foil to deliberate, truly criminal behavior; this type of behavior, however, isn't what NTSB typically sees in its investigations; at present, NTSB as an agency hasn't formally considered asking for NTSB immunity.
Chris Hart: vast majority of accidents/incidents don't involve intentional behavior; sees the panel issue as the tail wagging the dog; if someone is concerned about whether or not he will get immunity, they are in a culture that will not encourage them to talk; NTSB only deals with accidents, whereas his FAA focus is on acquisition of pre-accident information; for him, what is important is learning about intentional acts potentially unintentionally causing an accident; if "intent" equals prosecution (e.g., pilots intentionally dialed an albeit erroneous command into the autopilot), then FAA won't get data (via FOQA programs) unless there is an accident; operating community needs a major degree of comfort that when they disclose things it won't be used against them; this is human nature.
Ed Soliday (FOQA manager, United Airlines): NTSB isn't just another rulemaking agency; it's unique; independent; designed to focus on transportation safety for the public good; thus, why can't NTSB conduct privileged interviews in a closed environment, and others (criminal prosecutors, litigants, etc.) can interview the same persons at a later time?
Cindy Lebow (RAND Corp., co-author NTSB study): very concerned that we're just adding another "interest" to those already present in NTSB investigations as a result of the party process; NTSB should seek priority; and seek with DOJ protocols for the conduct of parallel criminal investigations of transportation accidents; AG Reno could issue guidelines for all AUSAs;
NTSB will need commensurate funds/resources to timely complete its investigations if prosecutors will be waiting in the wings.
Belkin: maybe in a small number of cases, DOJ should go first; cases are very fact specific; guidelines might therefore be helpful.
Raskin: the problem is these are broad generalizations; maybe only 1% or so should not have NTSB priority; the players, though, will naturally be reluctant without more experience to define these cases in advance; prosecutors might have one such case in his/her career, so even informal/informational talks between AUSA and NTSB would be helpful to inform the AUSA handling the case.
Ken Smart (Director, Aviation Accident Investigations, UK AIB): UK situation is very different; some comments heard during this panel bothered him; e.g., if suggestion of criminality, the file could be handed over to the prosecutors to handle the case; however, the USA has signed the ICAO/Chicago Convention, and, accordingly, it has duties (airworthiness, etc.) that should militate in favor of the accident investigation going forward; he's not thrilled with the idea of having a UK accident that could have been prevented but for delays to the safety investigation aspects of a case; the USA sometimes gets forgetful of its world-wide safety obligations;
From experience, it is always better to have an agreement before the facts of a particular case; therefore, DOJ and NTSB could probably benefit from advance discussions;
If NTSB has priority, we can truly say it is pursuing an investigation without any focus on blame; we need to keep a distance between criminal and safety investigations.
Ron Schleede (Director, Major Investigations, TSB Canada, on detail from NTSB): TSB Act has statutory privilege (civil and criminal) for investigative statements; no priority over RCMP, though;
panel issues support need for legislative language for NTSB to take priority;
likes Ken Smart's remarks about common worldwide safety interests.
Bob Craft: as long as there is the threat of criminal liability, a cooperative company can work with the government with a lot less fear that the "gov't will turn on them" - e.g., demonstrated commitment to compliance programs, safety practices, etc., including, especially, not just documents but a commitment to maintaining programs, etc., and keeping safety programs/practices up to date;
It is his understanding that post-accident cooperation can also ameliorate the putative drive of prosecutors.
TO KEN MEAD (Inspector General, DOT), DURING AN ACTIVE NTSB INVESTIGATION, WHAT ARE THE DOT IG's RULES REGARDING INTERVIEWS AND TALKING TO THE PRESS?
Ken Mead: DOT IG would be working with the FBI; the only appropriate comment is "no comment" or referral to the USAO handling the matter;
Agrees with Chris Hart that sequence is not the primary issue; destruction of evidence; DOJ shouldn't be looking at a prosecution unless there is a good sign of a crime; thinks the immunity discussion is destructive; pre-accident discussion among the "players" therefore is the better route.
Bob Clifford (aviation plaintiff's lawyer): the key goal is the rapid dissemination of safety information;
Why can't two investigations (safety and criminal) ultimately be done?
If rapid acquisition of safety information is a problem, then we should work on limited immunity
Michael Demetrio (aviation plaintiff's lawyer): Ken Smart is really saying we're being way too bureaucratic; aren't we all on the same team and have the same goal?
Don't we all want anything but the best - NTSB, AIB, etc. - doing the safety investigation? Prosecutors can always take the facts from these investigations to trial, if necessary.
Ed Soliday: legislative solution is way too complex; but pre-arranged protocols with DOJ might be useful; e.g., terrorist act, where cause may be criminal, but there is still a very important need to understand safety issues, such as what the aircraft/why/how it failed/etc.
Such protocols/discussions should include all parties with an interest in an accident (DOJ, local prosecutors; etc) and reflect/discuss the respective needs/interests of each.
Issue #2 - ARE CURRENT CVR PROTECTIONS ENOUGH? ENOUGH FOR NEW TECHNOLOGIES? FOR ALL MODES?
Bob Clifford: video recorders have their place; in favor of CVR-like protections, which necessitates legislative protections;
consider the families' feelings; they don't like to feel left out;
Video recorders would be great for trials.
Michael Demetrio: video makes sense from a societal point of view; shows exactly what happened; CVR/video protections make sense; has no problem with procedure of 49 USC 1154 for use by civil litigants; video makes sense as an investigative tool; CVR protections are transferable to video recorders;
Re: ALPA opposition to video recorders, analogizes to the acceptance of convenience store clerks to subjecting themselves to continuous surveillance; there, mere money is what is at stake, whereas in the cockpit even more is at stake
Judge Campbell: 4 judges dealt with notion of cameras in their courtroom in 4 different ways.
Bruce Brandon (ALPA/USAir pilot; attorney): video recorders won't be adequately protected; the Dateline airing of the AA 965 Cali accident CVR demonstrates that current protections are inadequate; also a serious concern, even with adequate US protections, about use/disclosure of CVR/video in the case of foreign accidents; video isn't even really necessary, modern FDRs record as many as 2500 parameters, which allow a recreation of virtually everything that went on in the cockpit during an accident;
Focus should be on preventative rather than reactive safety measures - e.g., EGPWS, anti-windshear Doppler radar, TCAS, etc; especially given the vast data recorded by modern FDRs, the safety dollar is better spent on these improvements rather than on fitting a/c with video recorders;
Real value of cockpit video recorders is for presentation to a jury.
WHAT ABOUT ENCRYPTION TO PREVENT UNAUTHORIZED DISCLOSURE OF COCKPIT VIDEO?
Bruce Brandon: Safety dollar is better spent on preventative improvements like EGPWS, etc.
Ed Soliday: you can't deny persons evidence or the right to a fair trial; however, there are legitimate concerns about when CVR recordings or video recordings go outside the trial arena to the media, etc.; therefore, there should be sanctions, etc., for disclosure by attorneys, etc.
Mike Demetrio: the current transport fleet doesn't have enough FDR parameters (e.g., older B737s) to obviate video recorders.
Bruce Brandon: the convenience store analogy isn't cogent because, unlike the convenience store clerk who is free to move outside the range of the camera and/or go on breaks, the pilots in the cockpit will have to be in front of the camera constantly; what are the psychological effects? Pilots are not robots ....
Chris Hart: sides with Bruce Brandon in that better dollar is probably spent on EGPWS, etc.; exception is the case of older aircraft where limited FDR parameters make for a much stronger argument in favor of cockpit video recorders;
Ken Smart: recent Montreal meeting on Annex 6 (CVRs, FDRs, etc); video recorder specifications are now quite advanced and will come into Annex 6; thus, states will have to file "differences" if they disagree with ICAO on video recorders;
ICAO has requested its legal counsel to prepare a formal study re: how best to enhance protections of video recorders world-wide; the Cali/Dateline and Japanese cases, in particular, have helped to spike this issue).
Ron Schleede: the ICAO study will ask for volunteers to serve as experts; USA, UK, Canada, etc.;
The impetus to get the ICAO video recorder standards will have to come from key countries; ICAO is just a mechanism to make it happen; Canada has already amended its Act to cover video (aka "onboard") recorders just as with CVRs.
Bob Clifford: the argument against cockpit video recorders that there are better ways to contribute to system safety is specious; it's about money; otherwise older aircraft with limited FDR parameters would have long ago been retrofitted.
Ed Soliday: agrees with Clifford.
Issue #3 - WAS THE CALI COURT CORRECT? SHOULD LITIGATIVE PRIVILEGES EXPAND FOR SELF-ASSESSMENTS?
Judge Campbell: It is important to remember that the resolution of this issue in this case is just one opinion of one district court judge - it's not necessarily a privilege that will be recognized by another judge; indeed, there may be a better solution available;
FAA has pending regulations pertaining to FOQA/voluntarily-submitted data.
Ed Soliday: concern about specific information, specific facts, etc., therefore need to avoid chilling the source of that information; fight or flight syndrome of crews; information is key to preventing accidents; key to getting this information is the confidence of the crews disclosure is not a bad choice for them; in this sense, the Cali decision is not as good as it could be.
Chris Hart: the proposed FOQA regulations have provisions dealing with subpoenas targeting voluntarily-submitted information.
Bob Clifford: plaintiffs can live with it because don't need data to prove their case;
If judge gets it, can't NTSB get it, and, if so, aren't plaintiffs therefore entitled to it?
Judge Campbell: doesn't like in camera review because the judge has to guess at what's important to another person's case.
Bob Craft: the Cali court was wrong; self-critical privilege only applied to analytical matters; Vermont case - whether provided under government compulsion; good reading on this issue an article by Brad Bacon in the Kansas Journal of Law and Public Policy; it is worth precluding use of ASAP-type data for other purposes; doesn't prevent government agencies (NTSB, etc.) from informing the public about general observations or conclusions based on self-critical analysis
Marty Raskin: hasn't seen a criminal court apply a Cali-type (judgement privilege) privilege; if outside accident, privileged and wouldn't release; if within accident, if spoke directly to accident, germane, and would be captured (but "would be careful not to put too broad a brush on it"); What Clifford sees in discovery might not be what we see.
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