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Time to Revamp ‘Most Wanted’ System

Wed, Feb 24, 2010 — David Evans

Articles, Featured

“We don’t get any respect, as evidenced by the failure of regulatory bodies to implement few, if any, of our ‘Most Wanted’ safety recommendations.” This could be the lament of every politically-appointed member and every professional staffer at the National Transportation Safety Board (NTSB). As in years past, the NTSB has conducted a thorough public hearing on its most desired safety recommendations and found that, for the most part, they languish in the limbo between words and action – or, more properly, inaction.

At the tail end of its exhaustive 18 February hearing to update the “Most Wanted” list, a short discussion was held about how to improve the process. Chairman Deborah Hersman said, “There are a lot of items on our list that have been there for far too long; we need to pick up the pace.”

NTSB Member Robert Sumwalt complained, “Things stay in an ‘acceptable response’ status for years, when the final result is that things haven’t really changed.”

Hersman, Sumwalt and Vice Chairman Christopher Hart asked the staff to come up with some ideas for energizing and making the “Most Wanted” process more effective.

Before outlining a few ideas as to how the NTSB might proceed, here are the results of this year’s deliberations. Seven aviation recommendations were issued (14 for all modes of transportation); last year it was six aviation-related recommendations. (See Aviation Safety Journal, ‘Most Wanted List Updated to Account for Reality’)

One of last year’s recommendations was removed because the Federal Aviation Administration (FAA) has taken positive action, which is debatable, and a new one was added dealing with improving pilot proficiency.

The “Most Wanted” recommendations are color-coded by the NTSB to indicate status. Green is for an acceptable response with progress to implementation moving in a timely manner by the affected regulatory agency. Yellow signifies an acceptable response with slow progress toward implementation. Red denotes an unacceptable response. As in years past, not a single aviation “Most Wanted” recommendation is coded green. Five of this year’s “Most Wanted” aviation initiatives are coded red; the other two are yellow. Last year all aviation recommendations were characterized red; this color could easily have been universally applied to this year’s recommendations, but the NTSB wanted to give credit for even a scintilla of progress. Thus, even though the actions called for to “Improve Runway Safety” and “Improve Crew Resource Management” have yet to be implemented, the NTSB coded these items yellow this year.

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Aviation

The Federal Aviation Administration should:

redcirc Improve Oversight of Pilot Proficiency • Evaluate prior flight check failures for pilot applicants before hiring.• Provide training and additional oversight that considers full performance histories for flight crewmembers demonstrating performance deficiencies.
redcirc Require Image Recorders • Install crash-protected image recorders in cockpits to give investigators more information to solve complex accidents.
redcirc Improve the Safety of Emergency Medical Services (EMS) Flights • Conduct all flights with medical personnel on board in accordance with stricter commuter aircraft regulations.• Develop and implement flight risk evaluation programs for EMS operations.

• Require formalized dispatch and flight-following procedures including up-to-date weather information.

• Install terrain awareness and warning systems (TAWS) on aircraft used for EMS operations.

yellowcirc Improve Runway Safety • Give immediate warnings of probable collisions/incursions directly to flight crews in the cockpit.• Require specific air traffic control (ATC) clearance for each runway crossing.

• Require operators to install cockpit moving map displays or an automatic system that alerts pilots when a takeoff is attempted on a taxiway or a runway other than the one intended.

• Require a landing distance assessment with an adequate safety margin for every landing.

redcirc Reduce Dangers to Aircraft Flying in Icing Conditions • Use current research on freezing rain and large water droplets to revise the way aircraft are designed and approved for flight in icing conditions.• Apply revised icing requirements to currently certificated aircraft.

• Require that airplanes with pneumatic deice boots activate the boots as soon as the airplane enters icing conditions.

yellowcirc Improve Crew Resource Management • Require commuter and on-demand air taxi flight crews to receive crew resource management training.
redcirc Reduce Accidents and Incidents Caused by Human Fatigue in the Aviation Industry • Set working hour limits for flight crews, aviation mechanics, and air traffic controllers based on fatigue research, circadian rhythms, and sleep and rest requirements.• Develop a fatigue awareness and countermeasures training program for controllers and those who schedule them for duty.

• Develop guidance for operators to establish fatigue management systems, including a methodology that will continually assess the effectiveness of those systems.

The seven major recommendations were characterized thusly by Chairman Hersman:

“Every one of the hundreds of currently open safety recommendations address concerns that the Safety Board has uncovered in its accident investigations. But the recommendations on the Most Wanted list represent those improvements that can have the widest benefit.”

They are also those items that may be the most difficult to implement, because of their sweeping and potentially costly nature. Consider how long the current aviation “Most Wanted” recommendations have been on the list:

Improve Oversight of Pilot Proficiency: added this year.

Require Image Recorders: included as part of “automatic recording device” recommendation added to list in 1995.

Improve the Safety of Emergency Medical Services Flights: added in 2008.

Improve Runway Safety: added to “Most Wanted” list in 1990.

Reduce Dangers to Aircraft Flying in Icing Conditions: added in 1997.

Improve Crew Resource Management: added in 2006.

Reduce Accidents Caused by Fatigue: added in 1995.

With the exception of the one recommendation added this year, the average stay time on this year’s “Most Wanted” list is some six years. Four recommendations have been on the list for 13 years or more.

An item removed from past lists reveals just how ineffectual the “Most Wanted” can be. The NTSB added child occupant protection (e.g., safety seats for infants) to its “Most Wanted” in 1999, but dropped the recommendation from the list in 2006 when the FAA indicated it would not impose a prohibition on lap children. Any number of NTSB board members had vigorously asserted the importance of securing infants in restraints for takeoff, landing and during turbulence, but the FAA refused to require infant restraints. Indeed, the FAA ignored over 4,000 comments in support of child restraint systems posted to the federal docket in response to a proposed ruling – an unprecedented public reaction, all for naught.

Now NTSB officials say the issue is not under active pursuit but has not been forgotten. However, without the visibility of the “Most Wanted” list, the issue of child restraints is, for all practical purposes, invisible.

Consider also the issue of explosive fuel-air mixtures in fuel tanks, highlighted by the explosion of TWA flight 800 in 1996. Inerting fuel tanks by filling the void spaces with a non-explosive gas like nitrogen was put on the “Most Wanted” list in 1997, and removed in 2008 with fervent thanks to the FAA by then-NTSB Chairman Mark Rosenker. The FAA published a final rule requiring a “Flammability Reduction Means” for the existing fleet of airliners within ten years. The last airplanes covered by the rule can fly without modification until 2018 – fully 22 years after TWA 800 exploded.

In addition to the exceedingly long delay, the inerting system will only be required for center wing tanks with nearby heat-generating machinery, like air conditioning packs (which are located right below the B747’s center wing tank). The NTSB called for inerting in all fuel tanks, not just those with heat sources nearby.

The FAA also propounded that the inerting system need not function during descent, when demand for nitrogen-enriched air is greatest. The agency also relaxed the maximum oxygen content from 9% to 12%. The 12% target is easier to achieve, and the FAA asserts that inerting to 9% oxygen content in the void spaces is not necessary (9% would require a heavier system, and weight is the big bugaboo in airline operations).

What the FAA set forth on inerting was but a portion of the NTSB recommendation, with reduced functionality standards that the NTSB completely glossed over.

Suffice to say, there is not an airliner now flying in the U.S. (or anywhere else, for that matter) whose fuel tanks are inerted to prevent a repeat of the TWA 800 disaster. Fourteen years after the explosion that ripped apart the TWA B747-100, and 2 years after removal from the “Most Wanted” list, the primary dependence for fuel tank safety is one of eliminating ignition sources. Inerting the fuel tanks would be safer, because it would prevent an explosion regardless of ignition sources inside the fuel tanks. Inerting would also satisfy the need for redundancy to assure safety. In this case by working to eliminate electrical ignition sources and by filling the void space with an explosion-suppressing inert gas.

By the way, the FAA still does not prevent an airliner from being designed and certificated with electrical wires and components inside fuel tanks.

In terms of actual improvements to the existing fleet, the “Most Wanted” documents do not keep score. The NTSB counts only successful regulatory or other action, even if many years are allowed for implementation.

The FAA uses this way of “scoring” its action regarding “Most Wanted” recommendations accordingly. In a 5-page “Fact Sheet” the FAA distributed at the last NTSB “Most Wanted” hearing, the FAA asserted:

“The record shows the NTSB and FAA agree on a course of action about 88% of the time. Of literally thousands of safety recommendations made to the FAA, the Board has classified about 82% ‘Closed – Acceptable Response,’ and about 6% remain open in ‘Acceptable’ status.”

Note that the FAA does not even attempt to explain why it has received red or yellow goose eggs in every “Most Wanted” category for the last two years.

Note also that the FAA neatly sidesteps actual implementation of the recommendations, focusing only on its issuance of a promissory note. “Acceptable response” from the NTSB does not mean the safety implementation has necessarily been implemented in the airline fleet, and among airline operators and/or manufacturers. It seems the NTSB plays good cop, the FAA plays bad cop, and the “Most Wanted” status quo ante goes on seemingly forever. Action must replace bureaucratic formalism.

The first thing the NTSB could do to make the “Most Wanted” more meaningful is to scratch an item off the list only when the safety initiative has been fully, unequivocally and demonstrably implemented in the field. Mere acceptance of a recommendation is not good enough; this procedure focuses on the bureaucratic process, not full implementation. Of course, elimination of FAA promises will make compliance with “Most Wanted” recommendations appear even more discouraging. But this alternate measure will be more realistic, as it would focus attention on what makes passengers and aircrews actually safer.

The second thing the NTSB could do in the way of energizing the “Most Wanted” program is to engage the heads of safety at the various agencies. At the last hearing, whether in aviation, rail, road, pipeline or sea transportation, NTSB officials used the same language:

“It’s taken a long time.”

“It took two acts of Congress, but they finally did it.”

“This [insert recommendation] has been on our list with no progress for 10 years.”

“Are we looking at 5-10 years before we see a final rule?”

Whether it’s the FAA, the National Highway Traffic Safety Administration, or the Pipeline and Hazardous Materials Safety Administration, these frustrated phrases from NTSB officials could apply equally.

But the heads of safety at these agencies were not present. The “Most Wanted” hearing on 18 February was an exercise in the NTSB talking to itself. There was no one from the various regulatory agencies present to hear the long litany of inaction. Sure, the FAA had a midlevel public affairs official cover the proceedings, and he was the one who handed out the FAA “Fact Sheet” full of promises for action to come, not documented evidence of actions accomplished. But a public affairs official is not a policy decider.

It was an excellent hearing, characterized by an in-depth discussion between NTSB professional staff and politically-appointed members of the Safety Board. However, the full tenor of the discussions is not going to be relayed back to the regulatory bureaucracy by a mere midlevel public affairs official.

The top safety officials at the FAA and other regulatory agencies should be invited to attend, and to testify regarding what they are doing, and why, to implement (or not) the “Most Wanted” safety recommendations. All of these officials need to be present at the same time, so that the FAA can see that its regulatory foot dragging is not unique, and likewise for its sister agencies with oversight over other modes of transportation.

If these safety heads do not attend and testify voluntarily, then subpoenas to compel their testimony should be issued. And their remarks should be taken under oath. The questions they should answer are really straightforward:

When is final regulatory action to be issued (not voluntary compliance documents, such as advisory circulars, safety alerts for operators, and other non-binding ephemera)?

When will implementation begin?

When will implementation be completed?

If implementation is not foreseen, explain why.

And this matter of regulatory compliance and implementation time should be part of the NTSB’s “Most Wanted” recommendations. In other words, the NTSB should establish, in its “Most Wanted” recommendations, a deadline for implementation. Recommendations presently are open ended in terms of compliance, presenting the opportunity for slow-rolling the recommendations into oblivion.

For instance, a deadline of three years from receipt of the “Most Wanted” recommendation should be sufficient for publication of a final rule. And three years after that, implementation should be complete. This is not an unreasonable schedule. The FAA required cargo compartments to be fitted with smoke alarms within three years – an outgrowth of the fatal crash from a cargo compartment fire in 1996 of ValuJet flight 592. The rule impacted thousands of aircraft, and the industry had to scramble to get the job done in time (aircraft were lined up waiting fitment just a few days before deadline). The job was done, on time, and the FAA lauded the airline industry’s responsiveness and commitment to safety (after threatening to ground aircraft not upgraded on time).

If a final rule is not issued within three years, the “Most Wanted” recommendation would automatically be coded yellow. If not actually implemented within six years, a red code would highlight that fact.

If these changes fail to elicit the desired regulatory response, the NTSB might consider submitting a legislative proposal to Congress mandating compliance by the FAA with the recommendations. The NTSB might even lobby Congress for a change in its charter, giving the NTSB power to issue mandatory compliance with its “Most Wanted” safety recommendations. This fact needs to be emphasized: the FAA may issue hundreds of airworthiness directives (ADs) each year, requiring compliance. But the ADs frequently mirror steps the manufacturers are already taking through notices, alert service bulletins, and so forth.

To really improve aviation safety, the “Most Wanted” safety recommendations present a clear way forward.

There is another option that should be considered. The NTSB could take the FAA (and other transportation regulatory bodies) to court. Under a writ of mandamus (Latin for “we order”), the court can order a government body like the FAA to implement a recommendation when it has neglected or refused to do so.

The effect of taking the FAA to court would have a number of salutary effects:

1. The NTSB would not be seen as toothless and ineffectual.

2. The NTSB would have to explain why a particular recommendation rose to the level of “Most Wanted,” and the FAA would have to explain why implementation was delayed.

3. The mere threat of such legal action may stimulate the FAA to more seriously consider the price of inaction.

4. Such court proceedings would certainly interest the oversight committees in Congress as to why the FAA was being dragged before the bar to explain itself (with obvious implications for FAA staffing and funding).

One reason for FAA inaction may be the lingering effects of its “Customer Service Initiative,” whereby the airlines and manufacturers were regarded by the agency as its customers. In recently announcing its new “Consistency & Standardization Initiative,” the replacement for the much-maligned “Customer Service Initiative,” the FAA assured it “will no longer refer to the airlines as the agency’s ‘customer.’ ” The airlines and manufacturers are referred to as “stakeholders” under the new program. Either way, the FAA has been seen as coddling the industry, and that may go a long way toward explaining the lack of progress (and outright resistance) to the “Most Wanted” recommendations. Each of the recommendations requires a fundamental change in the existing order. (See Aviation Safety Journal, “ ‘Stakeholders’ Substituted for ‘Customers’ in Dubious Agency Safety Changes”)

It may also be worth contemplating the present lay of the land in terms of culpability translating into criminalization. Toyota has just been served with a Federal Grand Jury subpoena over its inaction for years on known vehicular defects that have led to many deaths. An indictment is expected. Indictments have been issued in France over the 2000 Concorde crash and five persons are on trial.

The crash of a TunInter ATR72 off Palermo in 2005 has resulted in both pilots receiving ten year prison sentences. Their crime? Failing to notice that an ATR42 fuel gauge had been inadvertently installed in their ATR72 (the gauges were visually identical).

The November 2007 crash of an Atlas MD83 could result in 15 year sentences handed out to airline executives and maintenance stall presently on trial. The two pilots of an Ansett New Zealand Dash 8 were tried for their inattention during a landing gear malfunction, which led to an off airport crash.

The incidence of criminalization in air accidents is a lengthening list. There is a blatant incongruity in prosecuting aircrews while holding those ultimately responsible for setting safety standards somewhere above the law.

Extrapolating from this observation, there is an overarching reason for taking the FAA to court: safety delayed is safety denied. Any death resulting from negligent inaction could give rise to at least a charge of manslaughter. Not to mention that the principle of corporate culpability is well ensconced in law.

The NTSB has clearly put considerable thought into which recommendations rise to the level of “Most Wanted.” These recommendations merit more clout and timely implementation. It is frankly shocking that most are not color-coded green for full and timely compliance.

The NTSB has a choice: either take steps to ensure its “Most Wanted” recommendations are implemented (not just “accepted”), or drop the program as an unfortunate annual reminder of the toothless pleading for progress.


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