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Senior Member Guide

 

Working With the NTSB and FAA

 

            This section discusses the potential involvement of two federal agencies outside the Department of Defense: National Transportation Safety Board and Federal Aviation Administration.

          The National Transportation Safety Board is an independent agency with statutory authority to investigate air, rail, highway, pipeline and maritime accidents, and to propose corrective action. NTSB’s charter in aviation applies to any aircraft accident (major damage or severe injury) in U.S. jurisdiction, but in practice is reserved to civil registry aircraft operating under FARs. Accidents involving only “public use” aircraft (operated by federal/state/local government) are investigated by the respective agencies.

          The Federal Aviation Administration, under the Department of Transportation, operates the national airspace system, certificates aircraft and licenses airmen. The FAA has no investigative authority in its own right, but is likely to be involved in military mishaps because it provided services or simply because it had radar coverage of the mishap locale.

          An agreement between NTSB and FAA permits NTSB to delegate certain mishaps to the FAA for investigation. NTSB occasionally does so based on its assessment of merit in applying its assets to a case in which there is minimal risk to flyers and passengers in general and commercial aviation. When NTSB has investigative jurisdiction, it is recommended Navy and Marine Corps personnel request appointment of an NTSB Investigator-in-Charge (IIC).

           For a mishap involving civil and military aircraft, it is conceivable there could be three concurrent investigations: NTSB, Aircraft Mishap Board and JAG Manual. The NTSB investigation would have precedence over the military safety investigation for access to evidence. Procedure for such an investigation is described in OPNAVINST 3750.16_.

           The context described in this section is the more frequent case: a naval aircraft mishap without civil aircraft involvement. The military retains jurisdiction, but other circumstances invoke NTSB and/or FAA attendance with “party” status (defined below).

           By law, military authorities must provide for participation by the Secretary of Transportation in a military mishap investigation in which a duty of the Secretary is or might be involved. In practice this can mean FAA attendance at an investigation which inquires into an FAA service or function. The NTSB has an interest when the above duty applies to civil aviation (most do). Participation may be extended to the NTSB whenever military authority considers it could contribute to aviation safety.

           In most cases, FAA is simply a resource for information. The following is a list of items obtainable from FAA:

*taped communications of: airman-to-FSS telephone weather brief and filing radio: ATIS, clearance, ground, tower, approach, departure, enroute internal/external comm for controllers/supervisors
*transcription of tape (This is labor-intensive. Don't ask unless you listen to it and assess transcription is worthwhile.)
*facility status (runways, taxiways, navaids)
*NOTAMs
*statements by controllers/supervisors on duty during mishap
*weather observations (hourly/special)
*replay radar tape (visual)
*entabulation (radar file on paper) for analysis/simulation.
*depiction of control sector (airspace) boundaries/altitudes

           A request for the above information does not require FAA participation. However, if the Board entertains that an FAA service or function might be among the possible causes, the Senior Member should make appropriate notifications (see below) to initiate FAA participation. Circumstances in which NTSB or FAA participation might be appropriate are:

*a mishap involving a military aircraft or component equipment with civilian equivalent, or involving an operation applicable in civil aviation.
*a mishap involving an FAA function.

           Consider the FAA involved if any of the following apply:

**performance of an FAA employee or designee.
**FAA certification of a civilian crew member.
**FAA design or airworthiness certification.
**navigation or airport facility established, operated or maintained by FAA or another agency for FAA.
**FAA rule, regulation or order applicable to airspace use.
**FAA air traffic service (clearance, instruction, advisory); air-ground or point-to-point message transmission; weather observations and reports; Notices to Airmen; airport advisory and flight service.
**FAA approach control function delegated to a military facility.
**operation under an FAA waiver or exemption.
**FAA regulation and nonmilitary publications.
**FAA standards for obstruction clearance, flight inspection, lighting or markings at airports and along airways.

Participation

               The terms “party” and “participation” derive from the NTSB practice of admitting organizations, corporations or agencies to its investigations based on their familiarity or technical competence with some aspect of the involved operations, equipment, facilities or personnel. Neither term is defined in OPNAVINST 3750.6_, which implements Navy and Marine Corps internal investigation and reporting; however, OPNAVINST 3750.16_, mandates this accommodation.

            In practice NTSB/FAA participation differs little from the familiar provision for an AMB’s use of engineers, technicians or manufacturers' representatives. As in the familiar case, personnel other than those appointed to the investigative board are not included in the board's interviews with witnesses who could self-incriminate, deliberations on privileged information, or creation of the investigation report.

            The concept of privileged information is not practiced in NTSB investigations, nor in FAA proceedings; however, when personnel of those agencies are admitted to a military safety investigation, they and their agencies are bound to observe and comply with confidentiality of information obtained under promise of nondisclosure.

            In view of the above, NTSB/FAA participation in a mishap investigation under military authority is construed as attendance and active assistance in any portion of the investigation except those in which the investigative board obtains, analyzes or reports privileged information.

Interagency Notification

                At the earliest occasion the AMB entertains an FAA function as possible cause, the Senior Member should notify his Type Commander/Controlling Custodian and NAVSAFECEN to accomplish necessary interagency coordination. OPNAVINST 3750.16_ provides further direction and information. The Naval Safety Center will determine whether NTSB might have interest in the investigation.

            The Naval Safety Center will provide the NTSB and the FAA opportunity to participate according to each agency's involvement or interest. The agencies will acknowledge notification, indicate their intentions (decline or participate) and, if appropriate, identify personnel assigned to the investigation.

             Not all NTSB and FAA personnel hold security clearances. In a mishap involving classified matters, military authorities must identify an access level so NTSB and FAA headquarters can assign personnel with appropriate clearance. Official notification from the NTSB and the FAA to military authorities of clearances agency personnel hold and presentation of agency credentials will constitute evidence of clearance.

             If not previously initiated, subsequent Amended Mishap Data Reports from the AMB should include as INFO addees the NTSB, FAA headquarters and the Naval liaison (NAVREP) in the respective FAA regional office.

             The Senior Member of an investigative board with FAA or NTSB participants will supervise and direct their activities during the course of the investigation.

             NTSB and FAA representatives can be expected to support the AMB with access to agency personnel for interviews, information, and records. They can be expected to pass to their agencies information which applies to civil aviation.

             An FAA participant in a military safety investigation may not take part in an FAA enforcement action in connection with the mishap. This does not preclude the agency taking action on violations of Federal Aviation Regulations: other agency personnel would be appointed to gather evidence for such action.

             Privileged documents (witness statements, records of board analysis, conclusions or recommendations) may not be provided to NTSB or FAA participants. Copies of nonprivileged documents used by the military investigation board may be provided to NTSB and FAA participants as the senior member sees fit.

Reports

                A mishap safety investigation report may be released only as prescribed by CNO. NTSB OR FAA personnel who assist an AMB are not entitled to a copy of the SIR, nor should the AMB include their agencies as addressees on the SIR. If during an investigation, the board identifies a hazard which requires immediate action on the part of civil aviation, the Senior Member should expeditiously transmit a hazard report to the Naval Safety Center for passage to the appropriate action agency. A conclusion in an SIR attributing cause to another agency or recommendation of corrective action by another agency may be released externally only by CNO.


Contact Info: 757-444-3520 Ext: 7813 | POC: SAFE_Code13@navy.mil
Last Reviewed February 26, 2013