Session III Panel Discussion

MR. GOGLIA: Okay. Our final panelist is Mr. Dan Campbell, who is the General Counsel for the National Transportation Safety Board, since the Spring of 1990, and before joining the Safety Board, Mr. Campbell was an Associate General Counsel at the Civil Aeronautics Board and a Deputy General Counsel at the Interstate Commerce Commission.

Dan, before you start, one of the things that came to mind as I was listening to our colleagues up here was the fact that many of the arguments on the video recording were the same arguments or similar arguments that I recall as an infant hearing on the voice recorders, and I couldn't have been very old when that was done. Is my recollection correct?

MR. CAMPBELL: I'm sorry. I'm not technically capable of doing that. Is that now on? I was going to say, John, you're much older than I am. So, I find myself with a handicap remembering those things.

MR. GOGLIA: Remember that with your next review.

MR. CAMPBELL: Maybe I'll step up there for a minute. Good afternoon. I should start by saying that I was told that I wouldn't have to make a presentation, I just had to be here to ask questions. So, I'm not necessarily going to make a long presentation. I don't have any little buttons to push, but I did want to say one thing as kind of a general comment before taking any questions, and that is that -- okay. The experiment is over.

Related to a forum that we once did on fatigue in transportation, wherein a paper was given that indicated that daylight had a great deal to do with the Circadian rhythm, we've been doing a little experiment here. So, all of those who felt the need to nap during the twilight period, thank you for validating our research.

What I wanted to say by way of introductory remarks is we're going through our triennial reauthorization before Congress, and as a part of the amendments that we have asked for in Congress this year, we have put in provisions that would address some of the concerns that Mr. Kauffman and Mr. Fenwick raised about having protections in place prior to any new technology being placed in cockpits or in cabs.

I won't go into exact language, but we are asking (1) that in the event of video recorders available in aviation community, that they be given identical treatment to the cockpit voice recorders that are in existence.

I heard with some interest that ALPA takes the view that the litigation-related provisions in the statute need to be strengthened, and I intend to privately pursue that.

NTSB has not been a large player on the litigation side. We tend to try and stay litigation-neutral. We are very much in support of the provisions that we presently have in the statute that protect CVRs against illegitimate disclosure by the government. We have not had that big a role in how they are handled once they're returned to ownership because in part we attempt to stay as neutral as possible in any subsequent litigation, but given the option of losing my neutrality or losing my data, I would choose to lose my neutrality.

So, if that's an issue, I'd like to research that with ALPA and make certain that we're in agreement on how that needs to be handled.

As to surface vehicle recorders, we would put provisions both for the video, for the possibility of video and voice recorders that are nearly identical, as identical as technological circumstances admit to, for surface vehicles as are in place for cockpit voice recorders.

We have been careful not to put these into the same exact provisions. We have new sections much for the reason that I think that ICAO indicated they would like a separate provision in their annexes. We don't want to be seen to be doing anything to existing and established law.

So, that by way of preliminary presentation might answer some of the questions that were going to be addressed to us about how we're going to go about protecting new data if it becomes available.

MR. GOGLIA: Okay. All right. We have a number of questions for all our panelists, but I have a couple of comments of a personal nature. These are my thoughts.

I heard up here today at least twice people talk about the recorder being used to find the cause of an accident. I think all of us here have heard repeatedly over just these first two days that the recorder, the use of the recorder for finding the cause is really the least important issue.

The real value for the recorders is to give us the data so that we can fix our systems. Give us the data that we can use in a proactive manner. That's what makes the FOQA Program so valuable to the aviation industry, and that's what can make the recorders and the data so important to us in all our other modes, and we shouldn't lose sight of that.

I would take exception to what my friend Larry Mann said about our ability to get the data in railroad accidents and get the causes. Since I've sat on the Board, I have often been concerned about how we have to get our data in railroad accidents, and how circuitously we have to travel to get it, and many times it's by deduction, and that's really not the most effective means.

We need good recorders that tells us what the locomotive engineer was doing, tells us what the signals told him, and the little piece in here for the railroads because if a dispatcher throws a switch in Jacksonville or Fort Worth that indicates that a signal some many miles away is supposed to go to red, do we know that it went to red just because he threw that switch? I don't think anybody in this room can answer that question. We need to have better means to collect all the data, and I sit here questioning my own vote on putting voice recorders in locomotive cabs.

That's part of the reason why I voted for that was sort of out of desperation because prior to my coming to the Board, there had been many, many recommendations to the railroad industry about recorders that went unheeded, not responded to, ignored, and I believe that if we have recorders as equally well designed as what we have in the aviation industry, on locomotives, there would be no need for a video recorder recommendation or a voice recorder recommendation in the locomotive cabs.

I think I would remind everyone that when we, the public, society, gives entities the right to operate as a public convenience, provide transportation services, it's a two-way street. The public needs and demands something in return. We say we're going to operate, we, the carriers, we're going to operate in a certain way, and we're going to provide safe and efficient service.

But when we look at, in particular, the railroad accidents, how many towns that we've had to evacuate because of hazardous material spills, and how many near-disasters or real disasters we've had because of pipeline accidents and others. Makes you come up with the question, what we've given and what we've gotten in return.

We have a number of questions for everybody up here, and I am going to just take them in order and run down one-by-one for everybody, and I will start with FRA.

Why do transportation industry regulators remain so timid in asserting the obvious appropriateness of monitoring employee activity in high-risk situations to prevent unprofessional and immature behavior?

MR. COTHEN: I kind of like that. I haven't been accused of being timid lately. We, I think, are not timid. I think we look for good reasons to do these things, good and sufficient reasons. We administer an alcohol and drug program which is second-to-none in transportation. It's very aggressive, requires blood and urine samples be provided after major accidents.

We have a locomotive engineer certification program that includes check rides and a great deal of discipline. We do require event recorders, and they are going to be increasingly capable event recorders because of work that the National Transportation Safety Board has urged us to do and that others in the transportation community have urged upon us.

I don't really feel very timid. I do think that when you listen to the reports from aviation that we've had today, you realize that these are not simple matters, that they are matters that are not easily settled, particularly when you're in an environment as we are in this country. We can enact any number of statutes, but we have Article 3 courts that very often don't view themselves as a practical matter constrained by those enactments in many cases.

We've got statutes that say that accident investigation reports can't be introduced in any action for damages, and everything, everything, except for the penultimate statement of probable cause, will get into the record in any tort litigation involving the railroad accident.

We've got regulations for which the courts have said under separation of powers documents principles are appropriate that say that employees of the National Transportation Safety Board and FRA can't be called as expert witnesses in civil litigation, and we have to fight tooth and nail all the time to avoid public resources being drawn down for private litigation purposes.

So, you know, it's much easier to say some of these things than it is to do them, and if you go in with your eyes wide open, maybe you do it right, but we're all for doing whatever is appropriate and necessary to encourage the level of professionalism among railroad employees to continue to mature.

Anybody who's watched the industry, as I have, the last two and a half decades would have to say we have come a very long way, and we can take great pride in the steps that we've made, and we're very much willing to take whatever next steps need to be taken.

It's a matter of resolving what's truly necessary and what's appropriate and the extent to which we can manage the change because we could very easily not manage it well.

MR. GOGLIA: All right. Larry, wake up. Your turn. Please comment. Individuals engaged in occupations that pose high-risk to persons or property have no right to privacy in matters regarding execution of their duties. Alert, committed professional behavior is an absolute requirement, whether the mission requires 12 minutes or 12 hours. The questioner is asking for comment.

MR. MANN: Well, there is no question of the right for the public to have a safe rail system. Nobody questions that. What we're talking about here is the method by which we attain that, and there's a point where one, either by the FRA, the industry, and the public as well, can go overboard, and we just believe, at least from the union standpoint, there is a balance, and that certainly every employee has some right of privacy.

Where is that line? I don't think there's a bright line, but I do believe there is a residual right to have some privacy in my day of 12 hours working on a locomotive, if I'm an operating employee, and having said all that, it's clear to me that in the court system, that right of privacy is minimal.

There's no question in my mind how the current Supreme Court would rule on balancing the individual's right to privacy versus the right to know what caused an accident, how the crew operated, the performance, etc. I don't think there's any limit to what the Supreme Court would say, provide the information.

So, I think we have the right to say to the public, yes, we want a safe system, just like everybody else. You have to understand that the employee is getting killed and injured as well, and when you ask for information, I don't think that there is a lack of information in the rail industry.

I take a little issue with Mr. Goglia on that because there's so many indications of what caused an accident today, from roadside detector equipment, on-board equipment, the radio communications between the dispatcher and the crew, the crew conversations, and in most cases, the crews survive an accident, and you have eyewitnesses.

So, I think I've spoken too long on that answer, but I think you get the point where we're coming from.

MR. GOGLIA: Okay. Caj, since the CVR only records the last one half hour of operation, and incidents could occur far before the end of the flight, would it not be advisable to amend Paragraph 6.3.10.1 in order to provide that the cockpit voice recorder is switched off after the occurrence of an incident?

MR. FROSTELL: Thank you. I think I covered that in my presentation yesterday. The the basic standard in Annex 13 states that the recorder shall record during flight time; that is, they shall not be switched off before the aircraft is on the ground.

There is a switch circuit breaker that they could be stopped with. Again, it goes back to the fundamentals as we heard here just previously. One of the three conditions was that the CVR is used for accident investigation purposes.

Now, the whole use and incidences has come in addition to that, and again to maintain the original purpose, the CVR would need to run until or as long as the aircraft is able, and because if something subsequent to an incident happens, we do want that CVR, and again the CVR is -- is absolutely essential in accident investigation. Hopefully in the incident information, if we have to make a compromise, hopefully we can live without the CVR in an incident information.

Thank you.

MR. GOGLIA: Okay. Next question is for Captain Fenwick. Considering the lack of an NPRM concerning FOQA data security, does national ALPA recommend the start-up and development of FOQA programs at ALPA-represented carriers?

CAPTAIN FENWICK: This has been an on-again/off-again thing, and depending on who you talk to within ALPA, you're going to get different responses.

I'm not fully qualified to answer that. I think they support FOQA in principle. They endorse the programs that are presently operating, but their advice to us at the carrier that I'm with, we have a meeting this coming week to hopefully start implementing a FOQA program, they advise us to tread very carefully and be wary of any surprises.

But I must say that the information we get from our colleagues at USAirways, Delta, United, and also at Continental, indicate that their programs by and large are functioning very well, although I was at a UTRS meeting up in Dulles a couple of weeks ago, and every one of the people with programs, when asked to list what their major problem was, they said data security, and it was interesting that their observation, and this is sort of anecdotal, they felt that the reason that the software did not accommodate the security level to prevent people basically hacking into the system and getting any and all information was they felt that the origin of many of these programs was actually in Europe, where the environment is somewhat different, but security issues remain the Number 1 problem.

MR. GOGLIA: Thank you. The next question is for Dan Campbell. Will we ever reach the point in time that CVRs will be by law or act excluded from use as evidence in criminal and/or administrative procedures absolutely?

MR. CAMPBELL: Probably not.

MR. GOGLIA: A brief answer from an attorney.

(Applause)

MR. CAMPBELL: There are a number of aspects to the question. Administrative procedures by the Federal Government, I think that there's a good chance you could get there.

Criminal proceedings, I think, were detailed pretty well by the captain. They can rise in a host of jurisdictions, and the jurisdictions can be across state lines or national lines, and I would be much too optimistic to think that we would ever be able to control all of the variables that exist there.

I might add, John, I snuck a look at that card, and there was an additional aspect to that question.

MR. GOGLIA: I didn't want to give you an opportunity to answer two.

MR. CAMPBELL: Well, the question did indicate that the questioner was interested in whether ATC tapes or FDRs could be given the same level of treatment, and I think that the answer to that one is also probably not, and the reason for that has to do with expectations of privacy.

I think a great deal of what we are talking about in today's session is grounded in the expectation of privacy that one has in one's conversations, but whether or not that expectation exists in flight data recorder data is another matter, and certainly with the communications between pilot and ATC, when you've clicked on that microphone, you're not going to be able to control who hears that.

So, the expectation is somewhat diminished, and I think I can't speak for the captain, but I suspect that he does not engage in idle chit-chat when he has the mike keyed down, and he's talking to ATC. So, it has traditionally been the case that at least transcripts of those recordings are released earlier in time even by the Administration.

MR. GOGLIA: Thank you. Mr. Cothen, if voice recordings in the rail industry were protected from public release the way aviation CVRs are, would the FAR mandate audio recorders in locomotive cabs?

MR. COTHEN: I'm going to cheat on this one. We've done a preliminary response to the Board on this. We have done a final response to the Board. I've laid out some of the pros and cons on the issue, and our Administrator needs to be able to, you know, reflect on this and come to a position because certainly we want to look at whatever legislation that the Board sent up this year for reauthorization. We have the ability also to make legislative proposals. So, that part of it may be a doable deal.

We have not finally resolved that. We need to see, though, some fairly tangible benefits that flow from getting this data, and I must say that we're probably a little closer to Mr. Mann's position at this hour than the Board's position with regard to the extent to which in an accident investigation setting, there would be a sufficient resolution of underlying cause to warrant the expense, and I use that in the larger extent, not just dollars of this kind of program.

You know, it's a particularly difficult issue if you consider that we're only going to listen to the contents if there is a serious accident requiring involvement of the Board or FRA as an investigative body because then you've lost a lot of the opportunity that would otherwise be there, to which Member Goglia referred, to have a preventive sort of approach to feed the process of crew resource management and training and rule revisions and so forth and so on.

So, we've got to be persuaded that there's a concept of this that goes beyond just the accident investigation. Whatever the underlying human causes of some of these rule violations may be, principally going past signals, disregarding the limits of track warrants, this kind of thing, most of them can be handled in terms of prevention through capable positive train control systems.

So, what are we going to do the investigation for if the Board's most wanted list has already identified the solution?

MR. GOGLIA: Thank you. Larry, human factor studies have repeatedly documented that individuals who are asked to recount their conversations, actions, etc., prior to and during a mishap or incident repeatedly fail to do so accurately. If individual privacy could be assured, why would you not want to have this accurate account of the events?

MR. MANN: The premise of that question is if individual privacy could be assured. I think rail labor would support that if individual privacy could be assured.

We at this stage are not sure that that could happen or would happen, and being involved in a lot of litigation over a lot of years, I can tell you it hasn't occurred to date. So, whether or not rail labor would come forward and support the Board's proposed legislation at this point, I doubt it, without some better protections built in than what we already understand that the proposal is.

MR. GOGLIA: Caj, your presentation addressed the use of FDR data in CVR recordings for accident investigations. Is ICAO addressing voluntarily-provided flight data, FOQA data, in similar ways to protect the privacy of air crews?

MR. FROSTELL: Yes, that is the intent. We are still in the process of developing the ICAO material. We're proceeding with incident reporting systems, and the intent is to provide guidance or further guidance than we have now in the accident prevention manual.

The other project involves, we call it, flight data analysis programs, basically defined the same way as FOQA, and we're dealing with proposed amendments to Annex 6. They probably are going to be ready by the end of the year, and they would then be sent to states for comments.

The flight data analysis program would go in Annex 6. There is a chapter in Annex 6 that requires the operator to establish an accident prevention program.

Now, the flight data analysis program would be part of that prevention program. I would say that as part of the prevention program, the operator shall or should, depending on whether it's a standard or recommended practice, should establish flight data analysis program.

We're also dealing with the issue of protecting the data and the data source. How that will be solved, we haven't reached that point yet. So, I can't dwell on that further.

Thank you.

MR. GOGLIA: Thank you. For Captain Fenwick, DFDR, digital flight data recorder, data is an extremely valuable resource for the FAA to validate or update air frame certification requirements, i.e. gust loads, turning maneuvers, etc. What is ALPA's position regarding FAA having access to large quantities of the identified digital flight data recorder information?

CAPTAIN FENWICK: I don't believe ALPA has any problem at all with that. I mean we have to fly in these airplanes along with the passengers, and the integrity of the air frame and its systems is pretty much at the forefront of our minds, particularly those of us who spend a lot of time flying very old airplanes.

MR. GOGLIA: Thank you. We have a question here for the NTSB. Please ask government employees present if they would agree to having all their conversations taped, and I guess, Dan, you can answer that one.

MR. CAMPBELL: Probably not.

(Applause)

MR. GOGLIA: Boy, that would be interesting in my office.

Okay. This one goes to both of our railroad people. Would you be open to a CVR that was on a short loop catching only the pre- and post-accident communications, thereby protecting the private conversations of the cab crew?

MR. COTHEN: We are open to considering anything at this point. We're talking about conversations, and given the additional data recording capability we have, which is 48 hours by the way, we certainly would expect that that would not need to be an extended period.

The kind of speculations that we have to engage in with our colleagues at the Board related to some of these accidents normally do relate to the crew and their actions immediately prior to the accident, and that should be sufficient for that purpose.

MR. MANN: Probably not.

MR. GOGLIA: Uh-oh. Too many lawyers up here.

Captain Fenwick, it seems that you have selected just a few incidents of the hundreds that show that the cockpit voice recorder tapes have a negative impact on aviation safety. Do you have any information on the large numbers of CVRs that have shown that the crew operated in a professional and correct manner, and that the CVR tape would have been the only evidence of this?

CAPTAIN FENWICK: I'm sure there have been instances where people were surprised at the professionalism that the accident crew displayed. The point I'd make here is that in our business, even though there has not been a great number of abuses, it is the instances that there has been abuse and misuse that stick in everybody's mind, and this colors our perception.

I mean we feel that perhaps if 30 minutes of tape has shown itself that it could be misused, then why give them two hours, three hours, four hours or any arbitrary number?

One other related point. Keep in mind that the CVR, although there are sounds and frequencies and things that would constitute objective information or objective data, in comparison, the flight data recorder, which provides literally hundreds of parameters recording in real time over a 25-hour period, that's objective data, and for most accidents, the flight data recorder is going to be the key, and I think I can speak for the association to say that if we wanted to emphasize one or the other, it would be enhancing the capabilities of the DFDR rather than extending the duration of the CVR.

MR. GOGLIA: A little editorial comment. In my past, before coming to the Board, I have, this is going back a few years, seen many cases where the CVR has actually shown the pilots to have operated in a professional and proper manner.

Today, in the more recent accidents that we've investigated, we are more in a position to point the finger at the pilots, and in a good portion, the reason is that we have corrected many of the problems of the past because we have the data, and we have engineered better products, and the last piece in that puzzle, in that loop, is the human, whether it is the person in the cockpit or the person in the back end of the airplane or the person on the ground in the form of maintenance or the people who load the airplane or dispatch or everyone else that's designed to fit like a finger in a glove in the system that makes our air transportation system safe, and now we must deal with those people issues.

So, I think if we were to revisit recent accidents and cockpit voice recorders, the finger would point at the individuals, but we need to look at that, and if we're going to look at that, we need to look at it over the long haul because in the past, it was just the opposite, not so recent past.

(Applause)

MR. GOGLIA: Dan Campbell addressed some questions about what we were doing in our triennial review, and he needs to clarify this one. I won't read it because it's too long.

MR. CAMPBELL: The question principally speaks to whether or not we are seeking similar protection for voice and video recordings in all transportation modes, and I must have done a poor job of articulation because the answer to that is yes.

The legislation that we're seeking for surface modes would be virtually identical to both the voice and proposed video protections that we have for aviation.

MR. GOGLIA: Okay. Grady, why can't the FRA regulate the release and disclosure of cab voice recordings similar to existing regulations for cockpit voice recorders to address the private company and union concerns about this issue?

MR. COTHEN: I think we probably could under existing authorities, we could probably regulate the issue of the employers handling the information. But once you get beyond that, for instance, Federal Railroad Administration having the material in our hands, or the NTSB or, you know, the employer receiving a subpoena from a state or federal court, those aspects of it, you really couldn't handle by regulation, and that's why statutory change would be a necessary foundation in the rail industry as it has been in aviation.

MR. GOGLIA: Thank you. Larry, can rail employees be considered quasi-public employees if the rail system is subsidized by federal taxes?

MR. MANN: It's no different than any industry that's subsidized partially. You can't say rail employees versus airline employees versus truckers. The trucking industry has got highways that are supported by federal dollars. So, if the rail employee's going to be considered a federal employee, so should all others in transportation industry. I don't think you should segregate them.

MR. COTHEN: Yeah. Member Goglia, if I might ask if the questioner would see me afterwards, and I'll provide them a primer on the freight railroad economics, you know, in the second half of the 20th Century, because I think the premise of the question's pretty questionable itself.

MR. GOGLIA: That's true, if you read the balance sheet today of the railroads. Subsidy is not really an issue, is it?

MR. COTHEN: No, sir.

MR. GOGLIA: To Lindsay, the video recorder would seem to offer invaluable human factors data if the crew were in the field of view. Why does ALPA oppose the acquisition of such data if adequate disclosure protection is provided?

CAPTAIN FENWICK: I think there is a skepticism. If you were to go back through the ALPA records, back in the 1960s, the FAA actually proposed using cockpit voice recorder data as some kind of academic study to discuss crew behaviors, and that at the time was met with a lot of reluctance by the pilots.

They also proposed video recording and making movies of crews in action, and ALPA passed a resolution that threatened a suspension of service, in other words shut down the whole system, should that particular activity take place, and I know for a fact that that resolution is still on the books.

So, you would have a very hard job convincing pilots, I think, that every aspect of their behavior, their body, needs to be covered with a video recorder.

The ALPA position is that the focus should be on the instrument panel or on circuit breaker panels, if necessary, incidental body parts, such as a hand adjusting an altimeter or a throttle movement, that sort of thing, would obviously be acceptable.

But in an absolute worst case scenario, you might have a video recording of a crew contemplating their last seconds on this earth and right up to the point of impact, and I don't know that that would advance accident investigation a great deal.

MR. GOGLIA: You know, one thing to take into mind for everyone as we move forward in this debate about video recording cockpits, every moment that goes by, we're introducing more and more digital airplanes, and at some point, the video recording will really become a non-issue because the ability to record vast quantities of data digitally is with us today, and virtually with the digital data buses on airplanes, we can get one heck of a lot of information off the bus without a video recorder looking at the crew's actions.

But there are a few other areas in the cockpit that a video recorder could prove to be beneficial, and it really doesn't need to be focused on the crew.

It says here in an earlier presentation by Captain Spendlove, it was mentioned that the assumption was made that the video data recorder information was the property of the company that fitted the equipment. Would the panel like to comment? I guess I would start with Lindsay.

CAPTAIN FENWICK: I guess the same provisions would apply as to the CVR, and I know that that's considered the property of the airline that in my case employs me. Now, what the legal interpretation is, if the -- who owns the images on the tape, I believe there's some case law where the airline retained the actual tape, but it was erased, conveying, I would assume, that the information on it belonged to somebody other than the airline.

MR. GOGLIA: Caj, do you have a view on that subject?

MR. FROSTELL: Well, I'm aware that most accident investigation authorities have in their legislation the right to take samples and whatever needed for the investigation from the wreckage, which no doubt includes the recording media.

The practice varies slightly whether how much is returned to the airline. In some countries, the information is there or is shared with the airline, and in some countries, it's not.

Thank you.

MR. GOGLIA: Dan, do you have a view?

MR. CAMPBELL: I'd be interested to know who the other potential claimants might be considered to be. I think as everybody understands, it is NTSB's view that cockpit voice recorders are owned by the companies that have installed the recorders, and that's our practice, is to return the original to the owner when we've completed our undertakings.

I guess I didn't understand from the premise who else might be thought to have an ownership right in that. So, it's kind of hard to actually speculate about what the balancing of claims might be.

The only one that I know that we own is TWA 800, and that's because the airline in that case is disclaiming any interest in its wreckage. I always like to point that out publicly when I have the opportunity.

MR. GOGLIA: Okay. We'll do one final question, and this one's for Larry. What evidence do you have that the voice recordings would not be an economic benefit to the railroad operators?

MR. MANN: An economic benefit? I have no knowledge about the economic benefit at all.

MR. GOGLIA: Okay. It has come to the appropriate time for us to adjourn this session.

I'd like to thank you all for sitting through it, thank our panelists for participating, and we'll see you tomorrow.