December 20, 2017

At an executive session on December 13, the Senate Commerce, Science, and Transportation Committee approved a bill to reauthorize the National Transportation Safety Board (NTSB).

The bill, S. 2202, was introduced by Senate Commerce chairman John Thune (R-SD) earlier this month and was supported by a group of 5 bipartisan cosponsors, including the committee’s top Democrat, Sen. Bill Nelson (D-FL). It was passed by voice vote with an amendment in the nature of a substitute, Thune #1 (modified), and Blumenthal #2 (modified).

In addition to authorizing an average of $113,400,000 in appropriations for NTSB through fiscal year 2023, the bill includes a handful of reforms to modernize the safety agency and increase transparency in its investigations, recommendations, and discussions among board members.

“After tragic accidents, we ask NTSB to get facts and tell us what went wrong,” Thune said in a written statement. “This legislation expands the agency’s ability to explain causes and improves the NTSB’s recommendation process so that we can more effectively address our most pressing safety challenges.”

Investigation Transparency

The bill would allow NTSB to make public any transcripts, written descriptions of visual details collected by video recorders, and still images collected from video recorders that are relevant to investigations of aviation and surface vehicle accidents. However, these materials cannot include disclosures of trade secrets or violate the privacy of individuals by identifying them.

The bill would further clarify that the disclosure of information related to an investigation can only be deemed “necessary to protect health and safety” if it is needed to explain a finding, a cause or probably cause, or a safety recommendation related to an accident investigated by NTSB – and that the board could not reasonably fulfill its duties without the disclosure.

Other agencies that receive information that NTSB collected during an investigation would further be prohibited from publicly releasing privileged information that is exempted or prohibited from disclosure.

NTSB’s Most Wanted

Every year, NTSB releases a Most Wanted List (MWL) of its priority issue areas for reducing transportation accidents and associated casualties. The 2017-2018 list included 10 issue areas and actions that can be taken by mode:

• Reduce fatigue-related accidents
• Increase implementation of collision avoidance technologies
• Strengthen occupant protection
• Expand recorder use to enhance safety
• Prevent loss of control in flight in general aviation
• Require medical fitness
• Improve rail safety oversight
• Eliminate distractions
• End alcohol and other drug impairment in transportation
• Ensure the safe shipment of hazardous materials

The implementation of collision avoidance technologies stands out in particular, following the fatal Amtrak crash in Washington earlier this week. An NTSB fact sheet on collision avoidance technologies encouraged railroads to implement positive train control (PTC) ahead of the 2018 deadline set by USDOT – which, for the record, had already been pushed back from a previous deadline of 2015.

While it remains unclear whether PTC could have prevented the collision – which occurred while the train was traveling at 80 mph on a curve rated for 30 mph – the issue of PTC implementation will continue to be a major issue as next year’s deadline nears. (For more information about the crash, see Jeff Davis’ deep dive in ETW this week.)

NTSB has published a list of detailed and actionable recommendations across each of these categories that can be taken by Congress, federal agencies, and/or transportation stakeholders.

In the interest of providing greater clarity as to how it chooses which recommendations to issue, within the next two years S. 2202 would require NTSB to begin including a methodology section in each investigation report. This would include a summary of the internal and external information it reviewed, a summary of alternative actions (or inaction) it considered, and examples of relevant actions that were previously taken by stakeholders. This would not require NTSB to immediately add methodology sections, unless they issue a repeat recommendation after the bill passes.

NTSB would also be required to conduct a retrospective review of its open safety recommendations by June 1, 2019, which will be repeated every 5 years thereafter. This review should consider whether the recommendation is: outdated due to different circumstances or new technologies; ineffective or unfeasible; unclear; or inconsistent or duplicative of other recommendations.

The review also entails a 90-day public comment period to gather feedback on which recommendations should be updated or closed, and why.

Board Member Discussions

Lastly, the bill would allow NTSB’s up to 5 board members to hold private meetings to discuss official business – which creates an exemption to the requirement that all NTSB meetings are held publicly, with some limited exceptions under 5 U.S. Code § 552b.

These nonpublic meetings may be held as long as:

• the majority of members are present;
• no formal or informal vote or other official agency action is taken during the meeting;
• each individual present at the meeting is a member or employee of NTSB; and
• the NTSB general counsel is present at the meeting.

Within 2 business days of the meeting, NTSB must disclose a list of individuals present and a summary of the issues discussed at the meeting.