Ignoring the Regulatory Mandate

Title 49 CFR §831.4

In aviation, when an investigation takes place, the National Transportation Safety Board (NTSB) accident reports deliver their main product: the Probable Cause. What is the quality of the report’s Probable Cause? What do NTSB investigators understand about an accident report’s Findings or how the Findings contribute to safety? How does report quality affect the Recommendations? To better grasp, it’s important to define Probable Cause and where it comes from.

Under Title 49 code of federal regulations (CFR) §831.4 (a) General: “The NTSB conducts investigations, or has them conducted, to determine the facts, conditions, and circumstances relating to an accident. The NTSB uses these results to determine one or more probable causes of an accident, and to issue safety recommendations to prevent or mitigate the effects of a similar accident.”

Title 49 CFR §831.4 (a) makes two distinctions that specify this rule’s intent: (1) that the NTSB is required to arrive at probable cause; and (2) the intent of the investigation, the probable cause(s), and the recommendations are, “… to prevent or mitigate the effects of a similar accident.” This rule is clear: identify probable cause; prevent or mitigate the accident’s effects. Point (2) will be reviewed later; Point (1) needs to be examined for the term: Probable Cause.

(1) Probable Cause: Title 49 CFR §831.4 (a) stated, “The NTSB uses these results to determine one or more probable causes …” To understand Probable Cause as the CFRs intended, it must first be determined what Probable Cause is, what it means, where it comes from. When a term is introduced into the CFRs, the term, if ambiguous, must be defined, especially when the term is important to the CFRs – no questions. However, the CFRs don’t define Probable Cause in aviation. Although the term Probable Cause appears fourteen times under Title 49 Part 831, it is never properly clarified.

According to Cornell Law School, Probable Cause is: “… a requirement found in the Fourth Amendment …” This refers to law enforcement, so no definition exists without the Fourth Amendment or the enforcement of law. Where does that leave the aviation industry’s Probable Cause and the pursuit of aviation safety?

If the term isn’t defined by the CFRs, then what does Probable Cause mean? The Oxford dictionary defines the word Probable as, “likely to be the case or to happen.” The word Cause to mean, “{noun} a person or thing that gives rise to an action, phenomenon, or condition,” or “{verb} make (something, especially something bad) happen.” Therefore, the term Probable Cause – using synonyms of the base words – means “Likely, maybe, a possible reason to make happen.” Inconclusive. Therefore, in aviation, Probable Cause is ambiguous; not defined or qualified; at best, a safe guess. How could regulation writers have left the NTSB’s very reason for existence to be undefined since 1967?

Root Cause: The Civil Aviation Authority (CAA) presentation, Root Cause Analysis (June 2016), defined Root Cause as: “The fundamental reason for an event which, if corrected, would prevent reoccurrence.” Root Cause, therefore, means the most basic cause for an event; undeniable; no other cause(s) found that led to an accident.

Root Cause has been adopted by the FAA and the International Civil Aviation Organization – ICAO – for discovering fundamental safety failure events. Root Cause Analysis (RCA) is instrumental in determining key causes and in conducting analysis to establish effective corrective actions. Yet, the NTSB doesn’t employ RCA techniques in aircraft accident investigations. NTSB reports make assumptions … and nothing else. NTSB accident reports are about accident aircraft, not correcting unsafe actions.

(2) Prevention and Mitigation: Title 49 CFR §831.4 (a) stated, “… to issue safety recommendations to prevent or mitigate the effects of a similar accident.” What is this rule statement’s intent? According to the Oxford dictionary, the word Prevent means: “keep (something) from happening or arising”; the word Mitigate means: “make less severe, serious, or painful.” If the two words are examined regarding Title 49 Part 831, then for the last 58 years the NTSB has violated its own regulatory mandate.

Whether intentionally or because Title 49 CFR §831.4 (a) was poorly written, it cannot be denied NTSB aviation accident reports are focused on the undefined term: Probable Cause. More importantly, the NTSB opts not to use RCA to ascertain the core reason for the unsafe event(s), preventing a similar accident. The NTSB cannot generate effective corrective actions. They’ve failed to produce effective safety recommendations for each accident since 1967.

Facts are vital in accident investigations– not just ethically, but by regulation – to guarantee future accident prevention and mitigation. Findings generate recommendations; they are used to determine probable cause(s). Ambiguous terms, like “It is likely …” or “… might not have …” (AAR-98/04); or “… generators likely were actuated …” or “… it might have suppressed …” (AAR-97/06) These are opinions being used interchangeably with facts. Recommendations’ quality and the probable causes’ clarity are in doubt.

If the NTSB is required by rule to prevent future accidents, then they MUST incorporate root cause and RCA into their analysis. If these breaks from the rules weren’t intentional, then what happened? Is the NTSB workforce’s quality now in question? Does the NTSB fail to properly scrutinize investigator talent when hiring? Are NTSB investigators bringing the right skills and knowledge to the position? When investigating an accident, one must understand the environment that led to it; one must have experienced that environment firsthand, lived it, understood it.

Inexperienced NTSB Investigators: When an NTSB major accident investigator does a deep dive of the air operator whose aircraft just crashed, the investigator must assume they are alone – no lifelines. This is important in preventing bias, misinformation, and, most importantly, not losing control of the investigation. To do this the investigator must inject his or her aviation career experience into the investigation. It’s easy to spot the NTSB investigator who’s out of their comfort zone; they become overly dependent on their team for leadership instead of the reverse.

The aviation aircraft investigator workforce (Aircraft Maintenance, Structures, Systems, and Powerplants) must know from career experience all the fundamental aircraft systems, such as engine air, ignition, hydraulics, flight controls, pneumatics, avionics, and fuel of the accident aircraft. Why? Because they won’t receive training on the aircraft they’re investigating. They start at a disadvantage.

Consider this fact: It takes weeks, maybe months for an aircraft technician or pilot to become trained and proficient in one type of aircraft, to understand the inner workings of that airliner. In contrast, the NTSB expects its investigators to not only know the airliner in question within minutes of arriving on-site, but to accurately assess what happened; to be focused on the environment in which any unsafe acts occurred … without the benefit of training. How can one prevent or mitigate unsafe actions if one doesn’t understand the problem?

Furthermore, the NTSB only employs engineers for the accident aircraft. In industry, engineers are airline support; they provide technical data, airworthiness directives, and service bulletins. They don’t install, remove, adjust, or operationally check anything; they’re not FAA-certificated. They don’t touch the aircraft. Can engineers understand aircraft they don’t see, environments they don’t experience, or various maintenance issues airline mechanics see daily?

NTSB Management: NTSB management is comprised of promoted inexperienced investigators, the ones that never maintained or inspected aircraft. NTSB group Leads, front line supervisors, division heads, and directors are all positions that are promoted to from within, from the investigator levels. It is a closed society, which doesn’t have the experience or knowledge to supervise.

This is the way of government. An unqualified group promoting from within. Work environments that don’t allow change because nothing needs to be altered, with a ‘we’ve-always-done-it-this-way’ perspective. This is demonstrative of a workplace with no internal auditing, self-evaluations, personnel reviews, or corrective action. NTSB management refuses to adopt quality assurance procedures that verify investigatory skills and methods are up to the changing technologies.

In addition, NTSB management includes Board Members, who don’t correct what is missing, namely investigatory excellence. Board members are political bureaucrats by design. Instead of creating a workforce that achieves progress; growing the NTSB mission to keep pace with the industry; or making safety improvements that change unsafe habits. Board members leave the NTSB exactly as they found it.

In Conclusion

How does the industry reconcile that for 58 years the NTSB has not followed its regulatory requirements per Title 49 CFR §831.4 (a)? Complacency plays the largest role in allowing aviation safety to go ignored for almost six decades. This isn’t just about mistaking an accident’s cause, it’s about certificated versus uncertificated; experienced versus inexperienced; knowledgeable versus untrained; safety versus unprevented disaster. The fundamental purpose of this agency has never been qualified. If the transportation industry, in demanding excellence has only been provided inferiority, then the NTSB’s only success is it has consistently failed in its mission. Transportation safety, in particular Aviation safety, continues to be dismissed.