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Remarks before the American Bar Association Forum on Air and Space Law, San Francisco, California
Jim Hall
American Bar Association Forum on Air and Space Law, San Francisco, California

Thank you for inviting me to speak to you today. It is a pleasure to address so many of my fellow lawyers, but in a way that gives me some pause, because as lawyers, words are very important to us. We must choose them carefully, and sometimes use them sparingly. But above all, we should follow the advice of one of the heroes of my youth, Adlai Stevenson, who said, "Man does not live by words alone, despite the fact that sometimes he has to eat them."

Not that there’s any connection, but let me introduce to you my agency’s General Counsel, Dan Campbell, who is on a panel this afternoon.

I’d also like to say a few words about a distinguished man in our presence, my friend and former colleague Carl Vogt. As many of you know, Carl was Chairman of the NTSB when I was appointed as a Member in 1993. He was Chairman for 2 years, ending in the summer of 1994. As a new Member I often looked to Carl for guidance, and after he left the Safety Board and returned to private practice, I continued to seek him out for counsel.

Washington is a town that has become increasingly acrimonious and even mean spirited. Carl Vogt may sadly represent a vanishing breed: a gentleman, and a public servant of unparalleled talent and integrity. I hope, Carl, that your absence from public service is short lived.

When I became Chairman of the National Transportation Safety Board about 4 years ago, I of course had no inkling about the level of activity my agency was about to enter. July 1994 saw the end of an unprecedented 27-month period in which the major U.S. scheduled airlines incurred no passenger fatalities: a billion passengers carried safely to their destinations.

The USAir accident in Charlotte, North Carolina changed all that. It was closely followed by another USAir crash near Pittsburgh; and then crashes involving American Eagle in Roselawn, Indiana; another American Eagle near Raleigh-Durham; American Airlines in Colombia; ValuJet in the Everglades; Delta Air Lines in Pensacola; TWA flight 800; United Express in Quincy, Illinois; Comair in Michigan; and Korean Air in Guam. And, we’ve also lost two FedEx widebody planes and had another major cargo accident in Miami.

That doesn’t count the Birgen Air and Aeroperu crashes that required our involvement in arranging deep-water searches for flight recorders, and assisting those countries’ investigations. And, it doesn’t include Silk Air in Indonesia, and a recent 737 crash in Colombia, after both of which we assisted the foreign government’s investigation. One day, a few months ago, we had representatives of 5 different countries working with our laboratory on various investigations.

In times past, the Board, with a few pilots and a few engineers, could determine the probable cause of just about any airplane accident that came along – at least to the level necessary to promulgate coherent, viable recommendations to the regulators and to industry. These recommendations are really the essence of the Safety Board’s work. The best accident investigation in the world is simply an academic exercise if no changes come about because of the investigation. Nowadays, however, airplane control systems, airplane navigation systems, and air traffic control systems have become more complicated than they were even a few decades ago in the era of the Boeing 707s and Douglas DC-8s.

Additionally, although the rate of accidents has declined, the number of commercial airliners that are flying at any given time is increasing at a fast pace. I am sure you have heard the ominous prediction that by the end of the first decade of the 21st century, we could be faced with a commercial airliner hull loss every week, if the rate of accidents remains the same as it is today.

To bring that accident rate down even more, it will take a concerted effort by every sector of the air transportation system. And that brings me to a major issue involving how we at the NTSB do business.

Probably the most important, and unfortunately sometimes one of the most misunderstood aspects of the NTSB investigative process, is the "party system." It is under the party system that the NTSB investigates all major accidents. Particularly in aviation disasters, this system is increasingly being challenged by the industry, the plaintiffs’ bar and others.

Utilized by the NTSB for all of our 31 years, the party system allows us to leverage NTSB technical resources in the development of the factual record of an accident. While I usually try to avoid popular Washington D.C. buzz words, one of the most popular these days is the term "partnership." Agencies no longer regulate, or oversee, they partner. Well, the NTSB party system is one of the longest running partnerships in Washington and I believe it has been essential to the investigative success of the agency.

The underlying premise of the party system is a strong one – that everyone has an overriding interest in safety and that everyone wants to find out what happened so that steps can be taken to ensure such an accident is not repeated.

Under the NTSB’s party system, qualified technical representatives of organizations with a specialized knowledge are invited to join in the field, fact-finding portion of the investigation. It is during this part of the investigation that the factual record is developed. As I have mentioned, the NTSB is a small agency with about 400 employees, and without the ability to call on the special technical skills of others, I doubt whether we could conduct and complete our investigations in a timely manner without a very significant increase in resources. The party participants – be they air carriers, manufacturers, pilots organizations, emergency response providers, suppliers, or maintenance providers – all have at one time or another provided the NTSB with the technical depth of knowledge we have needed to determine the probable cause of a transportation disaster.

Over the past few years, the party system has been stressed by several extraordinarily complex accidents made more difficult by an increasingly aggressive and at times, ill-informed press corps. These stresses might have been building for quite a while, but you can certainly say that the atmosphere changed with USAir flight 427 in September 1994, and continued to change with the American Eagle accident in Roselawn, Indiana; the Valujet crash in the Florida Everglades; and of course the TWA 800 tragedy off Long Island. The NTSB has been challenged like never before, especially by the news media; a news media, I might add, that doesn’t always do its homework, as the recent debacle at CNN and the nerve gas story illustrates.

It is in light of these stresses that I have asked the Rand Corporation to assist the Safety Board in reviewing the party process and to assist in the development of recommendations to Congress to strengthen that process so that the American people can continue to have confidence in the quality and independence of our work.

I believe it is, after all, the independence of the Safety Board that gives credibility to our investigations. I do not believe that either Congress or the American people would seriously entertain any kind of undermining of the Board’s ability to independently determine what happened after a transportation disaster.

There have been proposals from some party participants that the Safety Board should open up the analysis portion of its investigation to allow for input and sign off on NTSB work by the parties involved. This proposal was part of the recommendations of the National Civil Aviation review Commission chaired by Norman Y. Mineta in its recent work reviewing several aspects of aviation safety. The Mineta report concluded that party participants may have important continuing technical input that should be part of the analysis portion of our reports. The argument continues with the belief that, and I quote, "everyone’s confidence would go up" with this kind of expanded party input. Well, I’m not exactly sure that everyone’s confidence would go up. Certainly, the confidence level of the party members who received such access would go up, but anyone who is left out of this process would probably become even more leery.

That highlights an important change that has taken place over the past few years. In the past, those interested and committed to transportation accident investigation were a fairly limited fraternity. Now, whether it’s the incredibly high financial and public relations stakes or the media’s seemingly insatiable appetite for disasters, there is a long list of those who consider themselves stakeholders in NTSB accident investigations. The exclusive and very dedicated group of those interested or involved in the activities of the Safety Board has grown to include, among others, the family members of victims of our disasters, plaintiffs’ attorneys and others.

While the original group of party participants believed that their input into the process needed to be expanded, some new stakeholders viewed the current party structure and traditional participation in NTSB investigations as the granting of a profound privilege to a select few. And, more importantly, that with the high stakes there was concern that party participants could possibly influence the direction or timing of an investigation. Access to the analysis portion of our process would only serve to enhance an already special and privileged position.

This is an outline of only a few of the very complex and compelling issues that confront the Safety Board as we enter the next century. I am hopeful that our independent review will help clarify and frame the issues for us to have when we approach Congress for reauthorization.

We intend to have the broadest and most comprehensive possible input for their consideration. We intend to reach out to many of the stakeholders for their direct input, and I suggest that if any of you have thoughts or suggestions concerning this issue, you contact the Rand Corporation or the NTSB. I am looking to strengthen the party process so that our next 3 decades can be as successful as our first.

The party process has served the transportation industry and the American public well for over 30 years. Those of you who have worked within it must know that there is a certain fragility to this partnership. The pursuit of aggressive self interest at the expense of the process may make it difficult for us to continue to provide technically superior independent accident investigations for you and the American public. I hope that as we proceed with our work we will all be able to agree on steps necessary to strengthen the party process and improve our investigative procedures.

Yes, I said improve our investigative procedures. I agree with what Robert Kennedy once said, that change has its enemies. I am not an enemy of change, nor is the rest of the leadership of the National Transportation Safety Board. But I will resist any movement that diminishes the Safety Board’s independence, whether it be independence from other segments of government, or independence from the private sector.

NTSB recommendations have, over the years, greatly improved transportation safety because they have been based on an unbiased examination of all contributing factors to accidents, whether they’re in the private or the public sector. That is one change that will not occur while I am Chairman of the National Transportation Safety Board.

Thank you for your attention, and have a successful conference here in San Francisco.


Jim Hall's Speeches