Imagine a classroom of students taking a quiz. One student has been designated to collect the completed work and deliver it a distance of several blocks distant to the teacher. The student courier is highly tempted to take a peek at the students’ work. This is an approximation of the procedure by which flight recorders are removed and shipped from aircraft involved in incidents. In this case, the recorder was downloaded in whole or in part at the airline’s maintenance facility instead of being shipped unmolested to the Washington DC headquarters of the National Transportation Safety Board (NTSB).
On 28 December an American Airlines B757 overran the snowy runway at Jackson Hole, WY by some 350 feet. None of the 181 persons aboard was injured; neither spoilers nor thrust reversers deployed promptly.
The immediate problem in the Wyoming incident is that neither NTSB nor Federal Aviation Administration (FAA) officials were present to supervise removal of the flight recorders. This task was left to the airline, which then flew the recorders to its maintenance base at Tulsa, OK. While there, a portion of the flight recorder data (FDR) or the entire 2-hours was downloaded for company use. The recorder was then shipped to the NTSB laboratory in Washington.
According to knowledgeable sources, this is not the first time that the carrier has downloaded recorder information while entrusted to ship them – without interference – directly to the NTSB.
As a result of its ill-advised actions, American Airlines has been removed from party status, which basically means it has been barred from participating in the investigation.
The penalty seems to be the equivalent of a hand-slap.
NTSB Chairman Deborah Hersman said in a statement that the download was “a breach of protocol” that violates standards for any organization that is allowed to participate in a Board investigation.
Adherence to standards is “vital to the integrity of our investigative processes,” she said.
American Airlines spokeswoman Mary Fagan said in a statement that the airline downloaded information from the FDR “as part of its normal safety investigation of the incident.” There was no attempt to circumvent the collaborative process with the NTSB, she added. These glib excuses suggest that American Airlines sees nothing wrong with its actions and, indeed, may have engaged in similar downloading previously.
Information from the cockpit voice recorder (CVR) was not downloaded, raising questions about the carrier’s motives for accessing only the FDR.
Given the history of airline and manufacturer denial of key information, obfuscation of facts, and selective memory, one could question the NTSB assertion that the process has worked jut fine for 40 years.
In the Wyoming overrun case, a number of questions were posed to the NTSB; some of the answers point to numerous holes in their investigative process:
Question: Who removed the recorders from the overrun airplane and when?
Answer: The NTSB asked American Airlines to have their personnel remove the recorders from the aircraft and transport them to the NTSB recorder lab in Washington, DC, in accordance with normal party procedures. The recorders were removed from the aircraft the same day as the incident.
Q: Why were these recorders not transported via the NTSB chain of command instead of by American Airlines?
A: The NTSB investigates most accidents using the party system. In this case, the NTSB initiated a formal incident investigation and designated American Airlines as a party to the investigation and requested that they ship the recorders to NTSB HQ in the most expeditious manner. As the operator, American is required to preserve all data surrounding the incident until the Board takes custody in accordance 49 CFR 830.10 [Title 49, Transportation, Code of Federal Regulations, paragraphs dealing with Preservation of aircraft wreckage, mail, cargo, and records].
For major accidents on which an NTSB Go Team launches, the NTSB or our designee takes custody of the recorders at the site and the recorders are flown to Washington, usually via the FAA airplane that transported the NTSB investigative team to the site. For incidents, where there is no FAA or NTSB employee on scene and there is not likely to be for several hours, we may have the carrier remove the recorders and send them to us by the most expeditious means possible.
Q: Were these recorders in a locked steel container for shipment? If so, how did American Airlines access the recorder?
A: The recorders were shipped in appropriate shipping containers specifically designed for each recorder.
Q: In civil jurisprudence, evidence tampering is a crime. What do your lawyers and administrative law judges propose in the way of sanctions – for this or future cases – that have more bite than removal of party status?
A: The sole objective of an NTSB investigation of an accident or incident is for the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability (§ 831.4 Nature of Investigation). The “party system” utilized by the NTSB to investigate accidents has been in use for decades, primarily because it is the most effective investigatory process for major transportation accidents and incidents.
Guidance provided to parties for their participation in an NTSB investigation notes that parties and party participants must be responsive to the direction of NTSB personnel and may lose party status if they conduct themselves in a manner prejudicial to the investigation or do not comply with NTSB instructions.
In this situation, we have determined that the revocation of American’s party status was the appropriate course of action. We also believe that this will send a clear message to the aviation community that such breaches of protocol are not acceptable. There are certain circumstances in which actions by an individual or entity, including a party, that interfere with or impede the Board’s investigation can rise to the level of a criminal offense. The Board may turn those matters over to federal prosecutorial authorities as the Board deems appropriate.
Q: If the NTSB does not have a regulation that says, in effect, “NO REPRESENTATIVE OTHER THAN THE NTSB WILL BE ALLOWED TO HANDLE, STORE AND/OR TRANSPORT FLIGHT RECORDERS” is such a proviso now contemplated?
A: In accordance with 49 CFR 830.10, the operator of an aircraft involved in an accident or incident must preserve “all recording mediums of flight, maintenance, and voice recorders pertaining to the operation and maintenance of the aircraft” until the Board “takes custody thereof or a release is granted ….” The NTSB took custody of the recorders when they arrived at DCA and, until that point, the party was responsible for preserving them in the condition they were upon removal.
As referenced above, there are provisions already in place that address interference with an NTSB aircraft accident investigation. We provide clear and unambiguous instructions to the carrier on the protocols for handling the recorders and transporting them to us. As noted in response to the previous question, all parties are instructed that they may lose party status for failure to comply with NTSB instructions.
Based on these responses, a number of thoughts occur:
The airplane could have been parked, unmolested, until an NTSB official arrived on-scene to supervise/witness recorder removal. It makes absolutely no sense that an FAA employee from Casper, WY, or elsewhere could not be at the incident site sooner than it took to assemble a group of American Airlines mechanics and fly them in a chartered corporate jet from Tulsa to Jackson Hole.
And having this team retrieve, unsupervised, the flight recorder, was more expedient for the NTSB? Safety and sanctity of the FDR data should take precedence over expedience any day.
In its answers, the NTSB included this sentence: “The airline is instructed to transport the recorders without delay and without accessing the information contained within them by any means.” Where or when was this instruction given to American Airlines? §49 CFR 830.10 is silent on the matter.
The recorders should have been placed in a steel tamper-proof lockbox at the scene for shipment to Washington DC. If necessary, the steel box can be shipped via overnight, registered express. One doubts that shipment by the concerned airline is appropriate or faster.
The NTSB says “most accidents” are investigated by the party system, suggesting that not all inquiries involve parties. The question is why ANY investigation should involve parties and their resultant privileged position. Some other accident investigation bodies internationally do not utilize the party system, and their accident reports do not seem to be hampered in the least.
The Board should “take custody” of recorders at the incident site, not when the recorders are received in Washington DC. Different procedures for incidents and accidents are nonsensical; the difference between an accident and an incident is a few feet or a few seconds timing.
Custody by “our designee” suggests that said designee could be the airline involved – which compromises the NTSB’s role as an independent investigator.
What is the point of evidence collection through party members who may tamper with that evidence? The NTSB seems mighty trusting. Note the NTSB says the recorders were shipped in “appropriate” containers, sidestepping the issue of whether they were locked and bonded to deny access to all but the NTSB.
The claim that the party system in use for decades works well is belied by controversy. In the early 2000s, then-Chairman Jim Hall was extremely dismayed to find that Boeing had withheld from the Board key information about B747 fuel tank inerting. Filling the void space in the fuel tank with inert gas is the process of insuring that the tank is explosion-proof. Had this information been available, it certainly may have influenced the Safety Board’s recommendations coming out of the investigation into the fuel tank explosion that downed TWA flight 800 and involved a B747. The FAA, also a party to the TWA 800 investigation, failed to disclose to the NTSB that it had successfully test-flown a fuel tank inerting system at its technical center in the late 1970s.
Another point to be made is that 40 years ago the technology allowed for recording only minimal data about flight performance. Today, much more raw data is available through flight recorders, enabling precise reconstruction of an event. The volume of data available today means it is a more valuable resource, requiring enhanced procedures to secure and transport the recorders to the NTSB.
The NTSB says it “may” turn over to Federal prosecutors cases involving blatant abuse of the party system. There is no record in recent years of the NTSB ever having done so. One thinks this would have a marvelously clarifying effect on any party to an NTSB investigation.
While 49 CFR 830.10 requires operators to turn over all recording mediums to the NTSB, the regulation is silent on the matter of unauthorized downloading of the data.
In the NTSB’s convoluted and self-justifying responses, the whole issue of when custody should be assumed is given short shrift. The NTSB, not the party, should supervise removal of flight recorders (or retrieval from the wreckage, as the case may be), ensure that recorders are placed in an NTSB-locked tamper-proof container, and shipped to the NTSB laboratory in such a manner as chain of custody is maintained by the NTSB and not by a party to the investigation.
It seems the NTSB should adopt protocols by which a recorder may not be removed from any aircraft involved in an accident or incident while engaged in a Part 121 (scheduled) or Part 135 (air taxi) operation without an NTSB and/or FAA representative with authority present. The only exception would be if the recorder is in imminent danger of being further damaged if not removed promptly.
If the NTSB does not have the resources to guarantee this process, it should request them from Congress. Nothing less than the NTSB’s independence is at stake.
For the first offense of party malfeasance, no less than a fine in the six figure range is appropriate, with a second offense within five years increasing the penalty to the seven-figure rage. For the third offense, losing of the operator’s license should be considered. Similarly, any party that opens and/or downloads information from the flight recorders should face a heavy fine and possible operating license suspension.
In this case, the NTSB was not even at the scene when American Airliners had a team of technicians and maintainers from that charter flight going over every possible procedural, mechanical and electronic component that may have contributed to the overrun. The circuit breaker was pulled to ensure that the recorder information was not corrupted, but the airplane itself should have remained where it was until an NTSB official arrived to take charge.
One does not take custody of critical evidence a few miles from NTSB headquarters, and from the airline involved, while insisting the loosey-goosey collaboration has “worked” for 40 years.