Remarks of Jim Hall, Chairman
National Transportation Safety Board
before the Senior Level Aviation Management Symposium
of the U.S. Department of Transportation
Reston, Virginia
October 17, 1995

I appreciate this opportunity to meet with the people in charge of the operation of the hundreds, if not thousands, of public use aircraft around the country. The public's awareness of this class of transportation has been raised in recent years because of some highly publicized accidents, and now the regulatory structure surrounding them has been altered.

When the Safety Board was founded 28 years ago, it was put in charge of investigating civil aircraft accidents. As an independent agency, our mandate was and is to determine the probable causes of those accidents and, more importantly, make safety recommendations aimed at preventing future accidents.

The legacy of safety improvements from those recommendations encompasses a long list, many of which you're familiar with. For example, floor level exit lighting, smoke detectors in lavatories, fire-blocking materials, crew resource management, ground proximity warning systems, and windshear detection equipment all resulted from NTSB recommendations that have emanated out of some of our 100,000 aviation investigations.

Withheld from our authority was the investigation of accidents to so-called public aircraft, those owned or, in most instances, operated by government agencies.

This did not mean, however, that the Safety Board did not investigate accidents to government aircraft. Over the ensuing decades, we became party to many memoranda of understanding with agencies under which we agreed to investigate mishaps occurring to their aircraft, or to participate in a joint investigation. However, many public aircraft accidents were investigated solely by the operating agencies themselves.

Three well-publicized public aircraft accidents in a 14-month period in 1992 and 1993 brought Congressional scrutiny upon the public aircraft sector.On August 7, 1992, a Sikorski S-76A helicopter crash landed near Graefenburg, Kentucky, seriously injuring 5 of the 6 persons aboard, including the Governor of Kentucky. The Safety Board was asked by the State of Kentucky to investigate this accident.

We determined that the accident was caused, in part, by the flight crew's inadequate inspection of the aircraft before takeoff.

On October 26, 1993, an aircraft owned and operated by the FAA crashed into a mountain while on an airport inspection trip. In our investigation, which was initiated by our standing agreement with the FAA, we found numerous problems with the FAA's own flight department and cited its lack of management over the safety of its system.

But the accident that probably had more to do with the new rules we're discussing today than any other occurred on April 19, 1993 in Zwingle, Iowa. That afternoon, a propeller hub arm on the left engine failed on a Mitsubishi MU-2B-60 at 24,000 feet, releasing a propeller blade. There might have been a cabin decompression caused by a piece of the blade, but in any case the engine was forced downward and inboard on the wing. The resulting aerodynamic drag rendered the aircraft incapable of maintaining level flight.

While on approach to an emergency landing in Dubuque, Iowa, the plane collided with a farm silo, killing all 8 aboard, including the Governor of South Dakota, George Mickelson. The hub failed due to fatigue cracking, and we recommended some extensive inspections on certain propeller assemblies, which have since been completed.

As you know, after Congressional hearings and debate, on October 25, 1994, President Clinton signed H.R. 2440, the Independent Safety Board Act Amendments of 1994. Codified as Public Law 103-411, this Act went into effect on April 23 of this year.

These amendments, which directly affect aircraft operated by and for Federal, State and local governments, are what bring us all here today. The legislation has two parts, one directed to the FAA and the other to the Safety Board. Both are designed to improve the safety record of public aircraft, even though it has been difficult in the past to quantify that record because of the lack of data.

As you heard earlier today, the FAA is proceeding to implement the legislation's amendments to the Federal Aviation Act of 1958. These amendments, in effect, make most of what used to be called "public" aircraft subject to the FAA's safety rules governing pilot qualifications and aircraft operation and maintenance under Part 91.

The Act also addressed the issue from another perspective: it expanded the jurisdiction of the Safety Board. Thus, by assuming authority over public aircraft mishaps, we will investigate more accidents and should have more of a hand in preventing them in the future.

Other than those in the military, an aircraft is either "civil" or "public." Before this legislation was enacted, the Safety Board had jurisdiction only to investigate civil aircraft accidents, although in recent years accidents and incidents involving public aircraft were required to be reported to us. The only time we investigated public aircraft accidents was when we were specifically invited, either in a particular incident or through an existing agreement with that agency. Section 3(c) of the Act expands the Safety Board's statutory role in investigating aircraft accidents to include all public aircraft other than "those operated by the Armed Forces or by a United States intelligence agency." Thus, with these two exceptions, aircraft operated by Federal, State and local governments -- the flight operations of most of you in this room -- are subject to Safety Board jurisdiction for the purposes of accident investigation in the United States.

By Notice of Proposed Rulemaking published in the Federal Register on March 15, 1995, we proposed and sought comment on rules to implement our new authority. The 10 States that commented welcomed our new investigative responsibilities. The Air Line Pilots Association favored this expansion of authority, but urged that funding levels be adequate for the Board to continue to investigate thoroughly both public and civil aircraft accidents. While we agree on the funding sentiments, we won't really know the extent that this new law will affect our workload until we live under it for a few years.

The legislation raised two key questions we had to answer. First, what did the terms "Armed Forces" and "intelligence agencies" encompass? And second, when does an accident qualify for the exception to our authority? Somewhat surprisingly, we received no comments from any agency that remotely resembled an armed forces or intelligence agency.

No one commented on the first question at all. Therefore, we adopted our proposal to consider the National Guard and the Coast Guard within the definition of Armed Forces and to construe the term "intelligence agency" only to apply to those Federal agencies that are so named or categorized; for example, in their enabling statutes.

On the second question -- the meaning of "operated" -- the Forest Service and the Helicopter Association International expressed concern that the exception for aircraft operated by the Armed Forces and U.S. intelligence agencies not be read too broadly.

The Forest Service was especially concerned that its use of National Guard aircraft and crew to help in fire fighting would not be considered an Armed Forces flight outside of our jurisdiction. The Forest Service considers these flights to be under its auspices and control and therefore subject to the Board's investigative authority. That is, it asked us to interpret the Armed Forces exception narrowly and assert our jurisdiction over aircraft from Reserve and National Guard units that are under the operational control of non-defense agencies. This would define the new statutory phrase "operated by" as control not in a physical, manipulating the controls sense, but in the sense of directing the use to which the aircraft is put.

The comments we received demonstrated that defining our jurisdiction and the exception would not be as straightforward as we had hoped. But one thing was certain: the critical consideration was to ensure that the exception was not read so broadly as to defeat the safety purpose of the legislation, and not read so narrowly as to intrude into military concerns that have no implications for civilian air safety.

We published our final rules in the Federal Register on August 7, 1995.

We will consider both who is manipulating the controls and what entity is directing the operation in determining whether an aircraft is operated by the Armed Forces or an intelligence agency so as to remove it from our investigatory responsibility. Using this approach, we would find, for example, that a cloud-seeding flight using a National Guard pilot and aircraft, but arranged and contracted for by the Forest Service, is not a flight "operated by" the Armed Forces. In fact, because cloud seeding is also conducted by civilian aircraft, an accident involving that flight has implications for civilian aircraft safety and, therefore, prompts exercise of our statutory role to promote air safety.

On the other hand, investigations of accidents involving combat aircraft, combat maneuvers, or military surveillance are clearly on the other side of the equation. We believe that it is examples such as these that prompted Congress' exception.

There may be instances where looking at who is manipulating the controls of the aircraft as opposed to who arranged the flight could produce opposite conclusions. For example, if the Army used a civilian aircraft and crew to transport troops, looking only at who was flying the plane would lead to the conclusion that the aircraft was not "operated by" the Armed Forces. But if you looked at who arranged the flight, you would conclude that, because the Army "caused" the operation, it involved aircraft operated by the Armed Forces and was not subject to our investigative jurisdiction.

Again, we would resolve the question by analyzing the circumstances with special reference to our statutory responsibility. With a civilian aircraft and crew, we intend to assert jurisdiction over the accident because there are such implications for civilian air travel that the exception should not apply. After all, had the Arrow Air tragedy of 1985 occurred on landing in Kentucky, rather than on takeoff in Canada, who would argue that the circumstances of the accident did not have implications for civilian aircraft safety?

And speaking of international accidents, we have not yet had to face the inconsistency between the new law and the International Civil Aviation Organization. ICAO procedures apply only to civil aircraft, and thus would not apply if a U.S. public aircraft crashed overseas. We will cross that bridge when we come to it, but we don't expect problems making arrangements to investigate or participate in investigations of public aircraft accidents on foreign soil.Even though we did not have the benefit of their comments in our rulemaking, we are confident that, with experience, we will develop a mutually agreeable understanding with the Armed Forces and Federal intelligence agencies regarding investigatory roles. In the past, interagency agreements and other more informal processes have led to our participation, despite any argument that we lacked jurisdiction, in Armed forces aircraft investigations, whether because the Armed Forces sought our assistance in an aspect of the investigation or because we believed our participation would contribute to furthering our statutory role. We expect this spirit of cooperation will continue and that jurisdictional disputes will be rare.

In any event, for those of you representing State agencies, there shouldn't be any ambiguity. If one of your aircraft has an accident, it will fall under our jurisdiction.

There obviously are practical consequences to all of you from our new authority. Your obligations begin with reporting to us immediately if one of your public aircraft is involved in an accident or incident. The scope of reportable events is quite broad. The Board does not limit its interest to occurrences involving serious injury or loss of an aircraft. For example, any flight control system failure or inflight fire is a reportable incident.

Your personnel involved in aviation matters must be familiar with Title 49 of the Code of Federal Regulations, Parts 800 and 830. Part 800 identifies all the events we investigate, while Part 830 sets forth the rules for notifying us of aviation accidents or incidents.

Let me talk a little about the mechanics of our investigations and matters you should consider when participating in them.

We understand that your agencies also perform management evaluation investigations on aircraft accidents and incidents that occur when you are operating agency aircraft or have contracted with an operator to perform certain functions for your agency. When an accident or incident is being investigated by the Safety Board, the individual that you assign as a party should not be the same person responsible for your internal evaluation.

The purpose of the Safety Board's investigation is to determine the cause of the accident or incident to prevent recurrence of similar type mishaps, whereas the thrust of the management evaluation investigation is to establish possible liability or personnel action. Our process is designed for the free flow of information between those individuals who have been involved in the mishap and the investigation team members. Company or organization representatives should not be burdened with special assignments or different agendas from their parent organizations. They should be free to accomplish their assignments associated with the Board's investigation.

Although the two investigations may examine the same areas of management, the Safety Board's investigation has primacy over all other investigations and other investigations should and will not be allowed to interfere. We understand the importance of the management investigation to your agency and know that factual information developed during the Safety Board's investigation will want to be shared by your representative to our investigation with the person assigned to the management evaluation investigation. We ask that in no case should this sharing of information be done other than suggesting broad areas of inquiry. In no case should copies of reports developed during the Safety Board's investigation be shared outside of the party members themselves until those reports are placed in the public docket. The management investigation must be conducted separately and independent of ours.

I hope this meeting is the only occasion that you will have to interact with us. If, however, you suffer an aviation accident, rest assured that we will do everything we can to quickly, thoroughly and independently determine what went wrong and what should be done to ensure it doesn't happen again.

Your organization and ours have two things in common -- we're both supported by the taxpayer, and we both are dedicated to aviation safety.

Thank you, and please feel free to contact our Office of Aviation Safety, either here in Washington or at one of our field offices, for any information on how we can assist you.

 

Jim Hall's Speeches