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Posted 7 Oct 98

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RAND ICJ proposal to NTSB

This proposal was accepted by NTSB and establishes the basis for the research RAND ICJ is performing for the NTSB.

May 28, 1998

The Honorable James E. Hall
Chairman, National Transportation Safety Board
490 L'Enfant Plaza East, S.W. Washington, DC. 20594

Dear Chairman Hall:

The RAND Institute of Civil Justice is pleased to present this proposal for a program of research, entitled Personnel and Parties in NTSB Aviation Investigations, related to the training of investigative personnel at the National Transportation Safety Board and the functioning of the party system in the context of the NTSB investigative process. The proposed program of research was generated by the challenges raised and highlighted by the TWA 800 investigation.

This proposal is the result of extensive conversations between our respective staffs, and is structured to reflect the interconnection between the various issues which have been identified as the TWA 800 investigation has progressed. Essentially, the integrity of the NTSB's accident investigation process is dependent upon the independence and skills of the agency's investigative staff, combined with the probity of the information provided by those organizations, corporations, and individuals who are designated as parties to an investigative proceeding. Focusing on major commercial aviation accidents, this research will comprehensively review these two interdependent aspects of NTSB operations. Recommendations developed will be aimed at assuring that the essential mission of the agency -- the investigation of transportation accidents and the issuance of recommendations to improve transportation safety -- continues to be carried out with the highest degree of public acceptance and accountability. The complexity of the ongoing TWA 800 investigation underscores the value and importance of this independent research.

This research will bring together the resources of the Institute for Civil Justice (ICJ), as well as personnel from other programs at RAND -- including RAND Europe, the Critical Technologies Institute, and Project Air Force -- with significant background and expertise in technology and aviation issues, organizational management, and personnel administration and training. RAND's unique multi-disciplinary approach should provide the varied expertise needed to foster an understanding of the environment in which the work of the NTSB must be carried out and for developing pragmatic solutions to the problems which are identified.

With a small but highly skilled staff oftechnicians and investigators, the NTSB has achieved a much admired record of accomplishment and credibility, serving as the worldwide model for independent transportation safety boards. Uniquely structured as an independent investigative agency with no regulatory authority, the NTSB must rely on the credibility of its findings and recommendations to persuade other governmental agencies, as well as powerful commercial interests and companies. to accept its conclusions. Investigating accidents in the glare of media publicity and heightened public attention, the agency must muster an array of resources and expertise while operating within real budget arid staff constraints. One essential goal of the research to be performed by RAND will be continued assurance of the NTSB's ability to independently investigate complicated aviation accidents trough enhancement of thc technical training of the agency's own personnel. This aspect of the work may entail recommendations for "knowledge management" of a multitude of technologies and skills, as well as direct on-the-job preparation for the kinds of technical issues encountered in complex investigations.
As the TWA 800 investigation has emphasized, the fundamental fact-finding process of the NTSB involves much mare than the work of the agency's in-house investigators. In conducting a major investigation, the Board leverages its resources by designating other organizations or corporations as "parties" as a means of obtaining the necessary technical or specialized knowledge that is relevant to the accident in question. While persons in legal or litigation positions are specifically not permitted to participate in the investigation, the NTSB's determination of "probable cause" has come to play a critical role in the legal proceedings that often follow a major commercial aircrash. It has become apparent that those designated as "parties" by the NTSB are often named as defendants in related litigation. A second aspect of the research to be undertaken by RAND/ICJ will be a comprehensive examination of the party process since its inception, focusing on the way in which the technical investigation of accidents has changed over time and whether the litigation of aviation liability cases has impacted NTSB accident investigations. Such an inquiry may lead to recommendations for alterations in the party process that would help to ensure the continued integrity of NTSB's fundamental fact-finding and investigative missions.


This proposed research effort will focus on two interrelated themes: (1) Identifying Resource Needs for the Future and (2) The NTSB Parry System. For each theme, we will provide a short introductory background followed by a specification of objectives and tasks. We will work on both themes as part of a common effort, and accordingly, the deliverables and other project details will presented for the effort as a whole. The initial research will use as a focal point NTSB investigation of commercial aviation accidents: however, we expect that many of the findings developed may prove generic to accident investigations for other transportation modes.


The volume of domestic commercial aviation traffic is expected to continue to sharply increase in the future. Depending on the success of various aviation safety initiatives, this traffic increase could read to increases in the numbers of aviation accidents and incidents that the NTSB will he called on to investigate. The agency s burden is further exacerbated by the increasing technological complexity of aircraft and communications systems, by changes in the relationships among the various stakeholders in commercial aviation and by the internationalization of aircraft manufacturing and passenger travel. This vision of the future brings into question whether current NTSB training and staffing practices are satisfactory to meet anticipated needs. The initial phase of the research proposed will examine these issues

Theme I: Objectives and Tasks

The objectives of this theme of the proposed RAND research are:

1. To determine the nature of NTSB relationships with other stakeholders in commercial aviation, including U.S. government agencies, air carriers, aircraft manufacturers, airport operators, air traffic controllers, labor unions and trade associations, ICAO, and other national aviation investigation boards, with respect to investigation of commercial aviation accidents;

2. To study the current state of NTSB practices and policies with regard to the training and qualifications of aviation accident investigators and the management of information provided by designated parties to such investigations;

3. To determine the adequacy of these practices and policies in light of anticipated future developments, including the demand for accident investigations and expected changes in aircraft technology and systems and air traffic control systems; and

4. To identify promising options in training and staffing to meet future accident investigation challenges.

These objectives will be accomplished through the conduct of a series of defined research tasks:

Task 1.1: Characterize Current Tasks and Resources -- Establishing the Baseline

In order to establish the current state of NTSB practices and policies, a thorough understanding of the organization of the agency and the aviation investigative process is needed, including, among other things: (1) the number of aviation accidents and incidents investigated over a relevant time period; (2) the nature and character of those investigations; (3) the identity and nature of the involvement of parties in investigations; (4) NTSB recruiting and hiring patterns; (5) staff breakdown by functional area and specialty; (6) profile of accident investigation staff; (7) facilities available to NTSB to train personnel; and (8) other duties of the NTSB with respect to aviation accidents.

Task 1.2: Assess Influence of Emerging Environment

This task will identify expected changes in the commercial aviation system over the next decade, with emphasis on how these changes could influence the ability of the NTSB to continue to successfully perform its investigative function. There will be a focus on the changes in the commercial aviation system over the next decade, with emphasis on how new technologies will impact aviation safety, the relationships among sector stakeholders, and the Investigative process. In this phase, we will analyze (I) changes in traffic growth and accident rates; (2) changes in aviation technology; (3) changes in communications technology; and (4) changes in the commercial aviation sector, including the implications of internationalized aircraft and component manufacturing.

Task 1.3: Evaluate Current Investigative Operations

With the baseline of current NTSB polices and practices and the identification of anticipated changes and trends, the next task would be a comparison of capabilities and needs in order to identify possible options for improvement. This task would include (1) determining how well the NTSB aviation investigation process functions at present, including, among other things, time, costs, results and public and industry acceptance; (2) determining whether the NTSB staff is adequately trained to meet current and future needs: (3) determining what procedures, skills, and facilities are required to fulfill future training requirements: and (4) ascertaining the skill level and technical competency of party representatives to determine whether the provision of information available from other parties is adequate to meet current and future needs and (5) evaluating the training of NTSB staff by potential parties In each instance, the evaluation would be geared toward identifying specific systemic shortcomings.

Task 1.4: Identify Future Options

This task will identify alternative options for meeting future NTSB investigative needs. The broad strategic approaches for enhancing accident investigations will be broken down into options for improving training and other personnel policies and practices. While an evaluation of these options is beyond the scope of the present investigation, this task will set forth a framework for such an evaluation. Options for training programs for NTSB aviation investigators might include, but not be limited to (I) improving technological skills; (2) acquiring knowledge management" skills; (3) improving investigative and systems analysis skills, including failure analysis; and (4) augmenting NTSB staff with skilled subcontractor/consultant service relationships.



Pursuant to statute and regulation, the NTSB is vested with the authority to investigate and establish the facts, circumstances and cause or "probable cause(s)" of civil aviation accidents (as well as accidents involving other modes of transportation), with the results to be used in ascertaining measures that would best prevent similar accidents or incidents in the future. The investigator-in-charge may designate "parties" to assist in such an inquiry, but pates are only to be those persons, government agencies, companies and associations whose employees, functions, activities, or products were involved in the accident and who can provide "suitable qualified technical personnel actively to assist in the investigation (49 C.F.R. 831.11). As devised in the late 1960's, the NTSB "party system" was intended to be a means of supplementing and leveraging the resources required to technically investigate a complex transportation accident, with the intent of employing only those persons or entities with the necessary expertise relevant to determining the cause of a specific accident. NTSB regulations prohibit any representative of claimants or insurers" from participating as a parry, specifically excluding accident victims, family members, or plaintiffs' lawyers from having any role in the investigative process.

In the vocabulary of the NTSB statutory charter, the Board is charged with determining the "probable cause" of an accident; i.e., what caused the accident to happen. However, similar but different issues of causation are also critical to establishing legal liability in any civil litigation resulting from the occurrence. From a plaintiff or defense point of view, causation is a threshold legal issue. An aircrash involving death or serious injury to possibly hundreds of persons is likely to have a major impact on many potential "parties," including those that might ultimately be named as parties defendant in the ensuing litigation. The list of interested parties, from a litigation standpoint, could include the air carrier, the manufacturer of the aircraft, manufacturers of component parts, the airport, the Federal Aviation Administration, air traffic controllers, the owner of the aircraft, insurance companies representing any (and sometimes several) of these parties, as well as the estates of the crew and passengers - often the very same persons or entities with knowledge about the cause of the accident. Clearly, the participation of "parties" in an accident investigation presents significant issues for those who might eventually be exposed to liability. While use of the NTSB report as evidence is prohibited in any civil damage suit and NTSB regulations are strict concerning the conduct of parties during an investigation, inevitably the imperatives of litigation become intermingled with the investigative process.

For the NTSB, the conflicts of interest inherent in the party system may represent a significant threat to the integrity of the agency's mission. The independent determination of the cause of an accident might easily be colored by information provided by parties whose technical assistance is rendered with an eye toward litigation strategy or defense. At the same time, NTSB findings frequently end up as indispensable evidence in subsequent litigation, often becoming the critical impetus in settlement negotiations or as trial evidence. Potential party defendants might like to constrain the role of the NTSB in determining "probable cause," while plaintiffs and victims groups seek a role in the investigative process that has been denied them up to now. These conflicting objectives are likely to be part of the legislative process when the NTSB's authorizing statute is reconsidered by Congress next year.

Theme II: Objectives and Tasks

For this theme of the research, the objectives are:

1. To comprehensively review the functioning of the NTSB's party system;

2. To develop options as to how the NTSB party system can be modified to best address concerns of potential parties as well as accident victims and family groups, and to assure the continued integrity and independence of the investigative process; and

3. To determine whether the integrity of the NTSB investigative process has become compromised by litigation strategy and/or procedure.
These objectives will be accomplished through the conduct of a series of defined research tasks:

Task II.1: Review the Functioning of the NTSB Party System

In order to understand the ways in which the NTSB party system operates and how the civil liability process may intertwine with it, a thorough review of the NTSB party process is necessary, including, among other things: (1) an explanation of the origin and rationale for the party system; (2) a review of the procedures by which parties are designated by investigators-in-charge; (3) in selected cases, a review of NTSB accident investigation procedures, including the procedures by which parties supply information to the NTSB; (4) the identity of individuals, corporations, and other entities that have served as parties in complex aviation investigations, and the accidents or incidents with which they were associated; (5) in selected accident investigations, a review of the nature of the technical assistance and information provided by designated parties; and (6) the role of parties in NTSB public hearings, including the origin and basis for the exclusion of attorneys from participation.

Task II.2: Review the Context of NTSB Investigations

Accident investigation models from foreign nations, and the procedures followed in non-transport domestic sectors will be detailed and their commonalties and departures from the NTSB model will be analyzed as to cause and effect. Emphasis will be given to all phases of accident determination, including investigative approach, report preparation and design, and responsibility for the promulgation (and where applicable) of enforcement of recommendations. This task will examine NTSB conclusions regarding "probable cause" by comparing the outcomes of selected cases in both the investigative and litigation contexts, and will determine whether the "probable cause" requirement is essential to NTSB efforts as an investigative agency.

TaskII.3: Determine How NTSB Findings Are Used in Litigation

Another issue to be considered is the use of NTSB reports in civil litigation. According to statute, NTSB reports are not to be introduced as evidence in civil suits for damages resulting from a matter mentioned in the report. The principle rationales for this exclusion are to preclude a jury from hearing what might otherwise be considered prejudicial information about the Board's determination of "probable cause," and to protect the independence and neutrality of the NTSB proceeding. However, the content and findings of NTSB reports are used for many other purposes in litigation, by parties and non-parties alike. In order to build or defend a liability case, NTSB investigators and experts who participated in an investigation are often requested to provide testimony. Factual documents prepared for the NTSB investigation, by the agency and outside parties, can be introduced into evidence in subsequent civil proceedings. Use of such material in trial underscores the degree to which the investigative and litigation processes have become intermingled in a manner that could jeopardize the independence of the NTSB's work. This task will review these developments.

Task II.4: Determine the Role of Insurance Companies in NTSB Proceedings

NTSB regulations specifically prohibit any representative of "claimants or insurers' from participating in an investigation. Currently, only two insurers dominate the aviation insurance market. increasing the likelihood that several potential parties in an aircrash investigation are insured by the same company. Liability insurance generally covers the cost of investigating an accident by the airline, manufacturer, maintenance facility, or other insured party. This would include the costs of participation by designated parties in an NTSB proceeding. While insurance proceeds may assist in financing a detailed inquiry into the cause of an accident, the insurer's interest is primarily in avoiding liability costs or in mitigating large damage awards in subsequent litigation. This arrangement could have implications for the ability of designated parties to provide technical assistance in a "probable cause" investigation. To the extent information is made available, this task will examine these relationships to determine the impact of insurers on NTSB investigations.

Task II.5: Identify Legislative, Regulatory, or Procedural Options

This task will identify promising alternatives to managing the party process, including suggested legislative remedies, changes in the NTSB regulation of party designation and participation, as well as procedural options that could be implemented through the rules of evidence and civil procedure governing federal and state court proceedings. As with the training theme, an evaluation of these options is beyond the scope of the present investigation, and so this task will set forth a framework for such an evaluation.

Methods of Obtaining Information
The tasks of both themes described above will be accomplished by using a variety of analytic methods; when appropriate, we will take advantage of economies of effort to work simultaneously on both themes.

* Structured interviews (following constructed protocols) of selected NTSB personnel, potential parties to accident investigations (air carriers, aircraft and component manufacturers, air traffic controllers and FAA personnel, etc.), national and international organizations; and technical and systems training and analysis facilities

* Basic data collection, including facts and figures about NTSB staff, current training regimes, NTSB hiring and salary structure, and facts and figures about aviation accidents and NTSB investigations

* Case studies detailing NTSB "successes" where investigation led to identification of cause of accident and effective safety recommendations; NTSB cases where the technical investigation was not conclusive; and instances where party behavior impacted the NTSB investigation or the development of effective safety recommendations.


This first phase of the proposed research could result in recommendations that, if implemented, would have a budgetary impact on the NTSB. In our previous conversations with you and other NTSB senior staff, it has been made clear that it would be desirable for the NTSB to be made aware of the nature and scope of such potential recommendations as early as possible, so that the agency might include any additional funding requests in its FY 2000 budget submission to the Office of Management and Budget. In consideration of these circumstances, we propose to deliver the following:

1. An interim oral and annotated briefing on progress of the research and preliminary results, to be delivered to the NTSB in Washington, D.C. on or about August 1, 1998;

2. A second interim report (oral or written) further updating results of the research, on or about October 1, 1998; and

3. A final oral brieflng and final draft written report, to be delivered to the NTSB in Washington, DC., on or about February 1, 1999.

4. A final written report to be delivered to the NTSB in Washington, D.C. on or about April 1, 1999.

Project Management

The project will be managed through thc Institute for Civil Justice of RAND, and will be co-led by Cynthia C. Lebow, JD and James P. Kahan, PhD. Lebow will have primary responsibility for the parties theme and Kahan will have primary responsibility for the training theme. Individual personnel will be assigned to specific tasks according to their area of expertise and level of experience. Resumes of the senior personnel to be assigned to the project are attached. The project budget will be administered through the ICJ.

Project Budget

The total budget for this project shall be $250,000 in fiscal year 1998, ending September 30, 1998, and $150,000 in fiscal year 1999. The ICJ will bill the NTSB on a monthly basis.

We believe that this proposal presents a challenging program of research that will produce important information to assist the NTSB in fulfilling its essential missions. We very much look forward to working with you on this exciting project.


s/ Deborah R. Hensler

Deborah R. Hensler

RAND Staff - NTSB Study


Cindy Lebow Liam Sarsfield
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Emile Ettedgui
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William L. Stanley Brent Keltner
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Jean R. Gebinan Bonnie Dombey-Moore
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James P. Kahan Lisa van Dorp
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