FAA vs. NTSB

Firebird2XC · May 28, 2009

In order to better my understanding of the FAA vs. NTSB..

It's my understanding that following an event, crash, or whatever, that the NTSB can only recommend changes to the FAA. The FAA can then summarily ignore the NTSB, if it so chooses.

Assuming this is completely correct, the FAA would seem to hold an awfully skewed amount of power. Where are the checks and balances?

Would it be beneficial to have a third party to appeal the FAA's ruling?

How would we go about that?

braunpilot · May 28, 2009

Firebird2XC said:
In order to better my understanding of the FAA vs. NTSB..

It's my understanding that following an event, crash, or whatever, that the NTSB can only recommend changes to the FAA. The FAA can then summarily ignore the NTSB, if it so chooses.

Assuming this is completely correct, the FAA would seem to hold an awfully skewed amount of power. Where are the checks and balances?

Would it be beneficial to have a third party to appeal the FAA's ruling?

How would we go about that?

Hence the reason why my Aviation Law instructor called the FAA and other such agencies as the fourth branch or quasi-government.

Yes we could but who and who gets to elect them? Us or...Congress.

I don't know the answer but what we have now doesn't really work.

MikeD · May 28, 2009

Firebird2XC said:
In order to better my understanding of the FAA vs. NTSB..

It's my understanding that following an event, crash, or whatever, that the NTSB can only recommend changes to the FAA. The FAA can then summarily ignore the NTSB, if it so chooses.

Assuming this is completely correct, the FAA would seem to hold an awfully skewed amount of power. Where are the checks and balances?

Would it be beneficial to have a third party to appeal the FAA's ruling?

How would we go about that?

True, NTSB only recommends. They follow-up their recommendations to the FAA, depending on the FAAs reaction to them, with OPEN-UNACCEPTABLE ACTION, CLOSED-ACCEPTABLE ACTION, OPEN- ACCEPTABLE ACTION, etc.

The FAA generally speaking goes with NTSB recommendations, but not always. The reason they usually do is often for the PR......if an accident happens later related to an action that the NTSB recommended, it would make the FAA look very bad if they didn't take the action specified.....it's all about risks, costs, etc.

NTSB is not a legislative body, hence why they don't make rules.

The current system works....not too many flaws in it IMHO.

SpiraMirabilis · May 28, 2009

The FAA is, to some extent, accountable to the voters at least in the sense that the administrator (and her boss the DoT secretary) is appointed by the President. I'm not sure how many people would say 'The policy your FAA administrator took cost you my vote, President!' but there you go, thats why it has a lot more power than the NTSB.

Where as the NTSB is more of a body of experts.

Firebird2XC · May 28, 2009

MikeD said:
True, NTSB only recommends. They follow-up their recommendations to the FAA, depending on the FAAs reaction to them, with OPEN-UNACCEPTABLE ACTION, CLOSED-ACCEPTABLE ACTION, OPEN- ACCEPTABLE ACTION, etc.

The FAA generally speaking goes with NTSB recommendations, but not always. The reason they usually do is often for the PR......if an accident happens later related to an action that the NTSB recommended, it would make the FAA look very bad if they didn't take the action specified.....it's all about risks, costs, etc.

NTSB is not a legislative body, hence why they don't make rules.

The current system works....not too many flaws in it IMHO.

Still, if the FAA can simply ignore an NTSB recommendation, it gives way to an imbalance of power.

What if the NTSB could go to Congress to appeal?

I've heard it said many times that bodies such as the FAA or NMB are in the airlines' pocket. If we could provide an override to the FAA, that might balance things out a bit, no?

MikeD · May 28, 2009

Firebird2XC said:
Still, if the FAA can simply ignore an NTSB recommendation, it gives way to an imbalance of power.

What if the NTSB could go to Congress to appeal?

I've heard it said many times that bodies such as the FAA or NMB are in the airlines' pocket. If we could provide an override to the FAA, that might balance things out a bit, no?

I doubt you want to get a bunch of congressional idiots involved.

MikeD · May 28, 2009

SpiraMirabilis said:
Where as the NTSB is more of a body of experts.

The NTSB investigators are. The actual NTSB board are political appointees.

Firebird2XC · May 28, 2009

MikeD said:
I doubt you want to get a bunch of congressional idiots involved.

Maybe, maybe not. They make all the other decisions in America- why not them?

Alright then- perhaps an overriding board.. say.. at the DOT or something?

braunpilot · May 28, 2009

Firebird2XC said:
Maybe, maybe not. They make all the other decisions in America- why not them?

Alright then- perhaps an overriding board.. say.. at the DOT or something?

Anything appointed or elected is political. I hate to say it but something based upon Canada's setup with a non-profit organization.

TripSix · May 28, 2009

First, some boring definitions…
Definitions<O</O
An aircraft accident is an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight and such time as all persons have disembarked, and in which any person suffers death or serious injury or in which the aircraft receives substantial damage.
<O

</O

<O

</O

An aircraft incident is an occurrence other than an accident, which affects or could affect the safety of operations.<O

</O

<O
Fatal injury: An injury resulting in death (due to the injury received) within 30 days of an accident.<O

</O

<O
Serious injury: <O

· Requires hospitalization for more than 48 hours commencing within 7 days from the date an injury was received.<O

· Results in a fracture of any bone, except simple fractures of fingers, toes, or nose.<O

· Causes severe hemorrhages, or nerve, muscle, or tendon damage.<O

· Involves any internal organ.<O

· Involves second or third-degree burns, or any burns affecting more than 5% of the body surface.
<O

NOTE: The FSDO researches and determines the classification for these items.<O

<O

Substantial damage is damage or failure that adversely affects the structural strength, performance, or flight characteristics of the aircraft AND that would normally require major repair or replacement of the affected component.<O

<O

Exceptions to substantial damage:<O

· Engine failure or damage limited to an engine if only one engine fails or is damaged<O

· Bent fairings or cowling<O

· Dented skin<O

· Small punctured holes in the skin or fabric<O

· Ground damage to rotor or propeller blades<O

· Damage to landing gear, wheels, tire flaps, engine accessories, brakes, or wing tips (up to the first structure)<O

<O> </O>
NOTE: The FSDO considers all aspects of the exceptions to substantial damage before making a substantial damage determination that would classify the occurrence as an accident. Also, an event sustaining one or more of these types of damages would be classified an aircraft incident.<O

<O

Second, some boring background…<O

Primarily, aviation safety standards and rules and regulations have developed by way of the following legislative acts:<O

· 1919 Flying Regulations<O

· Air Commerce Act of 1926<O

· Civil Aeronautics Act of 1938<O

· Congressional Action of 1940<O

· Federal Aviation Act of 1958<O

· Department of Transportation (DOT) Act of 1966<O

· Independent Safety Board Act of 1974<O

· Public Notice Number One (PN-1)<O

<O

1919 Flying Regulations (1919 U.S. Army Air Service Flying Regulations)<O
<O

Twenty five rules that commenced January, 1920. Some of my personal favorites are:<O

<O

2. Never leave the ground with the motor leaking.<O

4. In taking off, look at the ground and the air.<O

6. Pilots should carry hankies in a handy position to wipe off goggles.<O

11. Learn to gauge altitude, especially when landing.<O

12. If you see another machine near you, get out of the way.<O

14. Do not trust altitude instruments.<O

21. Pilots will not wear spurs while flying.<O

22. If an emergency occurs while flying, land as soon as possible.<O

<O

Air Commerce Act of 1926<O
<O

The first law to promote air safety regulations, accident investigation, and probable cause determination. This law provided the Commerce Department the authority to investigate accidents and determine probable cause. The act also charged the Secretary of Commerce with promoting air commerce, licensing pilots, issuing and enforcing air traffic rules, certifying airworthiness, establishing airways, and maintaining NAVAIDs. This act created a conflict of interest between rulemaking and accident investigation because both were now done by the Commerce Department.<O

<O

Civil Aeronautics Act of 1938<O
<O

· Created an Air Safety Board that was authorized to investigate accidents, determine causes, and recommend safety improvements.<O

<O

· Created a Board for Economic Regulations and Safety Rules that was authorized to make rules and regulations.<O

<O

This act transferred federal civil aviation responsibilities from the Commerce Department to the newly created Civil Aeronautics Authority (CAA). The CAA had the authority to make the rules while the Air Safety Board did no rulemaking but made recommendations based on their investigations, thus resolving the previous conflict of interest.<O

<O

Congressional Action of 1940<O</O
<O

This action divided the CAA into two agencies, both under the Department of Commerce. The CAA was now responsible for air traffic control, certifications, and enforcements. The Civil Aeronautics Board (CAB) was now responsible for rulemaking and accident investigations. Since they both now had rulemaking and investigative powers, the conflict of interest was reinstated.<O

</O

<O

Federal Aviation Act of 1958<O</O
<O

This act created the Federal Aviation Agency (FAA), and repealed all previous aviation statutes. The FAA was charged with establishing and running a broad air traffic control system to maintain safe separation of all commercial aircraft through all phases of flight. The FAA assumed jurisdiction over all other safety matters, such as the certification of aircraft designs, airline training, and maintenance programs while the CAB retained the jurisdiction over economical matters such as airline routes and rates. Funding for NAVAIDs was increased, a major step towards modernization of the air traffic system (enroute radar) was realized, and airlines were required to adhere to prescribed routes and altitudes.<O

</O

<O

This act made the FAA a rulemaking and enforcement agency, with its administrator reporting directly to the President while the CAB retained investigative authority.<O

</O

<O

Department of Transportation (DOT) Act of 1966<O</O
<O

This act established the DOT as an agency, bringing 31 previously separate federal elements (including the FAA) under the wing of one Cabinet Department. <O

</O

<O

The Federal Aviation Agency was renamed the Federal Aviation Administration.<O

</O

<O

This transferred the CAB’s accident investigation function to the newly established National Transportation Safety Board (NTSB) to provide investigation of accidents involving transportation modes regulated by other agencies and demands continual review, appraisal, and assessment of the operating practices and regulations of all such agencies (this covered railroad, highway, waterway, and airway) and to:<O

</O

<O

· Determine the cause or probable cause of transportation accidents and report the facts, conditions, and circumstances relating to such accidents.<O

</O

· Review, on appeal, the suspension, modification, revocation, or denial of any certificate or license issued by an Administrator or by the Secretary.<O

</O

<O

</O

The act also established that the NTSB could not properly perform its functions unless it was totally separate and independent from any other department, bureau, commission, or agency of the United States (the NTSB, at this point, was still under the DOT). In the exercise of its functions, powers, and duties, the NTSB was made independent of the Secretary and the other offices and officers of DOT. The decisions of the NTSB were designated “Administratively Final,” with appeals only to the courts.<O

</O

<O

</O

Independent Safety Board Act of 1974<O</O
<O

</O

This separated the NTSB from the DOT, becoming a non-regulatory board completely independent of any other federal agency.<O

</O

<O

</O

The NTSB’s mandate regarding any aircraft accident is to:<O

</O

<O

</O

· Determine facts, conditions, and circumstances.<O

</O

· Determine cause or probable cause(s).<O

</O

· Make recommendations to reduce the likelihood or recurrences of similar accidents.<O

</O

<O

Other NTSB duties:<O

</O

<O

· The NTSB is solely responsible for issuance of probable cause in the accident report.<O

</O

· The NTSB is charged with organizing, conducting, and controlling all accident investigation involving civil aircraft or civil and military aircraft in the US, US territories, US possessions, and international waters outside the US.<O

</O

<O

</O

The FAA’s responsibilities in investigating aircraft accidents are to determine whether any of the following were a factor:<O

</O

<O

</O

· Performance of FAA facilities.<O

</O

· Performance of non-FAA owned and operated ATC facilities or NAVAIDs.<O

</O

· Airworthiness of FAA certified aircraft.<O

</O

· Competency of FAA-certified airmen, air agencies, commercial operators, or air carriers.<O

</O

· Adequacy or violation of Code of Federal Regulations (CFR).<O

</O

· Airport certification standards or operations.<O

</O

· Airport security standards or operations.<O

</O

· Airman’s medical qualifications.<O

</O

<O

</O

Public Notice Number One (PN-1) June, 1984<O</O
<O

</O

Under PN-1, the FAA was given the same authority in the investigation of designated accidents as the NTSB investigators to determine facts, conditions, and circumstances for accidents involving: <O

</O

<O

</O

· Rotorcraft and civil aircraft of 12,500 lbs. or less when there were no fatalities.<O

</O

· Aerial applications operations. <O

</O

· Restricted category aircraft (experimental aircraft) and amateur built aircraft operations, even if fatalities were involved.<O

</O

<O

</O

The FAA then submits a factual verbal report to the NTSB. The FAA shall not determine probable cause. The NTSB then uses the information the FAA provided to write a determination of probable cause and generate a written report on the accident.<O

</O

<O

</O

Under PN-1, the FAA is not authorized to investigate:<O

</O

<O

</O

· Air Taxi operators.<O

</O

· Commercial operators of small aircraft (CFR Part 135). <O

</O

· Rotorcraft and civil aircraft over 12,500 lbs.<O

</O

· Air carriers. <O

</O

<O

</O

<O

</O

Third, some boring procedures…

For accident and incident investigations the chain of command is:<O

</O

<O

</O

NTSB Investigator in Charge à FAA Investigator in Charge à Air Traffic Representative. There are NO EXCEPTIONS.<O

</O

<O</O

The NTSB IIC is the head of the overall accident investigation activity and supervises the field phase of the investigation. Their primary responsibilities are:<O

</O

<O

</O

· Control the release of accident information.<O

</O

· Issue detailed, narrative accident reports.<O

</O

· Set forth the facts, conditions, and circumstances relating to the accident and the probable cause.<O

</O

· Determine probable cause.<O

</O

· Make appropriate recommendations based on the investigation.<O

</O

<O

For major accident investigations conducted by the NTSB, the Office of Accident Investigation (AAI-100) designates a specialist to act as the FAA IIC.<O

</O

<O

</O

For the investigations conducted by the FAA in accordance with PN-1, the Office of Flight Standards/Regional Flight Standards Division designates the FAA IIC.<O

</O

<O

During accident and incident investigations conducted by the NTSB or the FAA, the FAA IIC shall, as appropriate:<O

</O

<O

· Advise other groups within the FAA when their areas of responsibility are involved.<O

></O

>
· Provide liaison/coordination with NTSB, Military, Region, Headquarters, or other involved FAA offices.<O

</O

· Verify FAA Form 8020-9 (Aircraft Accident/Incident Preliminary Notice) has been or will be sent by Air Traffic as soon as possible.<O

</O

· Organize the investigation and exercise the same authority as the NTSB IIC when investigating aircraft accidents IAW PN-1.<O

</O

EXCEPTION: The FAA IIC CANNOT form conclusions nor determine probable cause.<O

</O

· Request technical assistance directly from regional Flight Standards.<O

</O

· Divisions and Headquarters through AAI-100 (Office of Accident Investigation).<O

</O

· Request a flight inspection, if necessary.<O

</O

· Submit safety recommendations.<O

</O

· Initiate or recommend emergency correction action immediately by direct communication with AAI-200 (Accident Investigation).<O

</O

· Directs and controls all investigation activities of FAA organizations pertinent to the specific accident circumstances such as airworthiness, security, public affairs, airports, and air traffic.<O

</O

<O

</O

During NTSB investigations, the System Operations Litigation assigns someone to the investigation to serve as the Air Traffic Representative.<O

</O

<O

During PN-1 investigations, the Air Traffic Representative will be someone from the service center.<O

</O

<O

The Air Traffic Representative handles ONLY the Air Traffic portion of an aircraft accident.<O

</O

<O

The duties of the Air Traffic Representative for accident investigation are to:<O

<O

· Ensure the operational integrity of the Air Traffic facility.<O

</O

· Arrange for the protection of involved Air Traffic personnel’s well being.<O

</O

· Ensure that all original documentation is protected, including the original voice tapes and/or computer data.<O

</O

· Conduct an investigation of all Air Traffic aspects of the accident or incident to confirm the adequacy of equipment, procedures, and personnel.<O

</O

· Determine if navigation facilities and/or ATC equipment were involved or suspected to be involved.<O

</O

· Establish and maintain liaison with the FAA IIC and act as the FAA IIC’s principal contact for information and documents.<O

</O

· Establish and maintain contact with the Regional or Chief Counsel’s Office, as appropriate.<O

</O

· Provide the FAA IIC with working copies of draft transcripts and voice tapes as soon as practical.<O

</O

· Direct all public inquiries concerning the accident to the FAA IIC.<O

</O

· Arrange for additional personnel to aid the Air Traffic facility in preparing the accident documentation and material requested by the FAA IIC.<O

</O

<O

Lastly, some conclusions…<O

</O

<O

As you can see the struggle of who is in charge of what, who mandates what, who oversees who, and who has the final say has been a historical process of evolution in aviation. <O

</O

<O

The NTSB and FAA in their current state, in my opinion are both entwined and separate in function. It does serve well (for the most part) to have the non-regulatory body (NTSB) recommend to the regulatory body (FAA) – and to have these two entities fall under different parts of the government.<O

</O

<O

As far as the third party to oversee, that commonly rests on the shoulders of the Office of Inspector General when it becomes problematic. If you’ve never seen the FAA sitting in front of congress for completely ignoring recommendations put forth by the NTSB as the result of OIG involvement, you’re missing out – it’s usually a sight to behold.<O

</O

seagull · May 28, 2009

Correct. Of course, after the OIG does their part, you can be fairly sure Congress will get involved as well. FAA has done a pretty good job, historically, of balancing the needs of the airlines with legit safety concerns. In every case I am familiar with, they have leaned to be overly cautious on safety at the cost of hurting airlines and manufacturers.

Also, don't underestimate the impact of an NTSB Member testifying before Congress on various things.

You left out the part of NTSB being the U.S. Accredited Rep on overseas accidents, which gets into a whole other complexity.

MidlifeFlyer · May 29, 2009

Firebird2XC said:
Still, if the FAA can simply ignore an NTSB recommendation, it gives way to an imbalance of power.

I'm not sure how that follows unless you're also assuming that a federal agency like the FAA isn't answerable to anyone else if it's not answerable to another agency. (like Congress, the President, political lobbying, a strong political figure, public opinion...)

Firebird2XC · May 29, 2009

TripSix said:
First, some boring definitions…
<o><o></o>
The NTSB and FAA in their current state, in my opinion are both entwined and separate in function. It does serve well (for the most part) to have the non-regulatory body (NTSB) recommend to the regulatory body (FAA) – and to have these two entities fall under different parts of the government.<o></o>
<o></o>As far as the third party to oversee, that commonly rests on the shoulders of the Office of Inspector General when it becomes problematic. If you’ve never seen the FAA sitting in front of congress for completely ignoring recommendations put forth by the NTSB as the result of OIG involvement, you’re missing out – it’s usually a sight to behold.<o></o>

Yeah... then nothing happens. We need SOMEBODY that can balance the FAA's regulatory power. They're in the pocket of the ATA, and that needs to change.

</o>

trafficinsight · May 29, 2009

Two of the responsibilities of the FAA are regulating civil aviation to promote safety, and encouraging and developing civil aeronautics.

Those two responsibilities contradict each other because regulation, most of the time, tends to stifle development. For any proposed change the FAA needs to determine whether the change will have enough safety benefit to make it "worth it."

For the most part, I think, they do a pretty good job. Is it a perfect system? no.

seagull · May 29, 2009

Firebird2XC said:
They're in the pocket of the ATA, and that needs to change.</o>

Hardly, what on Earth gives you that idea? If anything, FAA tends to be "knee jerk" and implement things that have very low ROI based on public pressure. They should be a LOT less! They are costing the carriers BILLIONS over things that have VERY LOW probability of causing future accidents. That money COULD go into things that might make differences in safety, like, say, pilot pay and work rules at the regionals....

seagull · May 29, 2009

trafficinsight said:
Two of the responsibilities of the FAA are regulating civil aviation to promote safety, and encouraging and developing civil aeronautics.

Those two responsibilities contradict each other because regulation, most of the time, tends to stifle development. For any proposed change the FAA needs to determine whether the change will have enough safety benefit to make it "worth it."

For the most part, I think, they do a pretty good job. Is it a perfect system? no.

They don't contradict particularly, they just force some (not a lot, unfortunately) of ROI calculation before instituting regulation.

Firebird2XC · May 29, 2009

seagull said:
Hardly, what on Earth gives you that idea? If anything, FAA tends to be "knee jerk" and implement things that have very low ROI based on public pressure. They should be a LOT less! They are costing the carriers BILLIONS over things that have VERY LOW probability of causing future accidents. That money COULD go into things that might make differences in safety, like, say, pilot pay and work rules at the regionals....

Your statement sounds alot like a knee-jerk generalization itself.

Care to quantify?

Houston · May 29, 2009

Firebird2XC said:
Would it be beneficial to have a third party to appeal the FAA's ruling?

Where do you think the ALJs come from?

seagull · May 29, 2009

Firebird2XC said:
Your statement sounds alot like a knee-jerk generalization itself.

Care to quantify?

My statement is based on having actually worked on regulatory issues for the past 15 years on both the union and company side. Hardly "knee jerk".

Specifics on "knee jerk" regulation? Short list off the cuff might include (and is far from complete):

1. TCAS
2. Fuel Inerting
3. OpSpec A332
4. Icing regulation for swept wing transports
5. Current plans to regulate commuting pilots

Firebird2XC · May 29, 2009

seagull said:
My statement is based on having actually worked on regulatory issues for the past 15 years on both the union and company side. Hardly "knee jerk".

Specifics on "knee jerk" regulation? Short list off the cuff might include (and is far from complete):

1. TCAS
2. Fuel Inerting
3. OpSpec A332
4. Icing regulation for swept wing transports
5. Current plans to regulate commuting pilots

Plans to regulate commuting pilots? Say wha?

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