Previously published in the DRI: In Transit magazine
Serious accidents are an unfortunate reality of the transportation industry, and in some cases, can be followed by inquiries to an involved motor carrier from multiple federal agencies. These inquiries can potentially serve multiple purposes depending on the specific objectives of the investigating body. As the attorney for a motor carrier involved in a serious accident, you must assess whether you are prepared to facilitate the interaction between your client and federal investigative and enforcement agencies. When representing a commercial motor carrier in these situations, it is important to understand the differences between the functions of the Federal Motor Carrier Safety Administration (FMCSA) and the National Transportation Safety Board (NTSB).
This article will provide an overview of the legal authority of both these agencies and your client’s rights, and will address how to approach initial post-accident contact from these federal agencies to help ensure that your client’s interests are being adequately protected in the aftermath of a serious accident.
A. Differing Functions and Goals of the FMCSA and the NTSB
1. The regulatory and investigatory functions of the FMCSA
Prior to January 2000, regulatory oversight for the operation of the motor carrier and motor coach industries rested with the Federal Highway Administration (FHWA). Due to inefficiencies and policy differences internal to the agency, Congress decided to withdraw operational oversight from the FHWA and establish a new standalone agency within the U.S. Department of Transportation called the Federal Motor Carrier Safety Administration (FMCSA). The agency was established pursuant to the Motor Carrier Safety Improvement Act of 1999 (49 U.S.C. §113). The agency’s primary mission is “to prevent commercial motor vehicle-related fatalities and injuries.”
For the agency to achieve its primary mission, it utilizes “strong enforcement of safety regulations” established through a rulemaking process under the Administrative Procedure Act of 1947. The agency’s enforcement office targets high-risk carriers and commercial motor vehicle drivers by documenting and analyzing data it receives from other federal, state and local enforcement agencies, as well as the motor carrier industry and labor and safety interest groups.
The FMCSA regulates and enforces safety regulations (FMCSRs) within 49 CFR §§ 350-399, as well as hazardous materials regulations (HMR) within 49 CFR §§171-180, 49 CFR §385-Subpart E (HM Safety Permits), Commercial Driver License Hazardous Material Endorsement (49 CFR §383.121), and violations of certain hazardous materials related to out-of-service orders. In addition, it also regulates and enforces minimum financial responsibility (insurance) requirements of motor carriers under 49 CFR §387 and household goods (HHG) under 49 CFR §375.
Each of the regulations that FMCSA enforces includes language setting forth “penalty factors” to be considered when assessing motor carrier violations. FMCSRs penalties are found in 49 U.S.C. §521(b)(2)(d) and HMRs penalties are respectively located in 49 U.S.C. §5123(c). When considering violations of insurance requirement regulations, FMCSA references 49 U.S.C §31138 and §31139 and 49 U.S.C §14901(c) for household goods (HHGs).
In addition to enforcing their regulations at a federal level, the FMCSA provides grants to state law enforcement agencies to enforce the FMCSRs. These grants provide financial support to the states to ensure enforcement can be coordinated throughout all 50 states. The data that is generated by state law enforcement agencies provides FMCSA with a foundation for establishing the risk values for each motor carrier, which it then uses to target enforcement actions and initiate company-specific compliance reviews. The data includes both federal and state activity related to crashes, roadside inspections, on-site compliance review results, as well as the enforcement history of each commercial motor carrier in the Safety Measurement System (SMS).
Information detailed in the SMS system was formerly available to the public on the FMCSA’s website, but now is no longer available for public display with the passage of Public Law No. 114-94, “Fixing America’s Surface Transportation Act,” or the FAST Act. The FAST Act only allows for the FMCSA and state and local commercial motor vehicle enforcement agencies to use the information for purposes of investigation and enforcement prioritization. While the Act allows individual drivers or motor carriers to access information that relates directly to them, the general public no longer has access to safety related information about commercial motor carriers.
Data provided in Table 1 (below) suggests that either the FMCSA has become more aggressive with their enforcement of safety regulations over the last several years or the industry has become less safety conscience. Since it takes several months to open and close an investigation where civil penalty violations are assessed, it appears that the agency has both initiated more investigations, as well as become much more aggressive with the amount of civil penalties it is assigning. For instance, in 2005, the FMCSA closed 4,452 cases and collected $23,220,209 in civil penalty violations. In 2014, however, it closed 5,085 cases but collected $36,362,097 in civil penalties. In just ten years, the FMCSA increased the number of cases it closed by 14.21% and increased the amount of civil penalties it collected by 56.17%.
Table 1 – FMCSA’s Enforcement Cases and Settlements between 2005-2015 (Source: FMCSA website)
2. The investigatory function of the NTSB
The National Transportation Safety Board (NTSB) is an independent agency established under the Independent Safety Board Act of 1974 that reports to the President of the United States. The agency is responsible for investigating both aviation and surface transportation accidents and incidents. Pursuant to 49 CFR §831.2(a), the NTSB must investigate all accidents and incidents that occur within the United States in the aviation mode of transportation. In the surface modes of transportation, however, this mandate from Congress is not as stringent and allows the NTSB to decide if the accident or incident is worthy of the agency’s resources, unless the fact patterns of the accident meet criteria established in 49 CFR §831.2(b).
With regard to accidents or incidents that occur on highways within the United States, the NTSB has broad powers for determining if it believes that investigation of the accident would help prevent similar accidents in the future. The NTSB has authority to investigate any highway accident or incident, including railroad grade-crossings, that it feels is worthy of the agency’s investigative resources. Ultimately, the NTSB is responsible for investigating any accident or incident that in the “judgment of the Board, is catastrophic, involves problems of a recurring character, or would otherwise carry out the policy of the Independent Safety Board Act of 1974.” See 49 CFR §831.2(b).
Pursuant to 49 CFR 831.4, the nature of an NTSB investigation is to determine the: (1) facts, (2) conditions, (3) circumstances associated with the accident or incident, and to (4) determine probable cause. Investigations that are initiated by the NTSB are not subject to the Administrative Procedure Act (5 U.S.C §504 et seq.), nor are they initiated to determine “the rights or liabilities of any person.” This enables the NTSB to conduct their investigations in a way that allows the agency to remain neutral when it comes to both liability and the enforcement of federal and state regulations.
When the NTSB is notified about an accident through its Response Operations Center, which monitors both national and international news, additional information is gathered to brief the appropriate Office Directors, Managing Directors, Board Members and the Chairman regarding the preliminary situation. If the transportation accident or incident meets both criteria established by Congress, as well as internally within the NTSB, then a decision is made to “launch” on the accident or incident. When a “go-team” is “launched” to an accident or incident site, the team will identify an Investigator-in-charge (IIC) and several group chairpersons, all of whom are federal investigators from the NTSB.
A “Member” or the “Chairman” of the NTSB, who is appointed by the President of the United States and confirmed by the U.S. Senate, may also accompany the “go-team.” If one of these individuals becomes part of the team, he or she will be the spokesperson for the agency for the on-scene portion of the investigation. If not, the IIC will serve as the spokesperson. The spokesperson will be the person that represents the agency in front of the media and will be the only one that communicates factual information to the media. Other entities that have “Party Status,” like carriers, manufacturers, etc., are prohibited from making such public statements while NTSB is present on scene.
The NTSB utilizes a “Party Status” process when conducting investigations, which enables individuals, companies and other individuals within the government to be part of the fact-finding process of the investigation.This investigative process does not guarantee that a transportation company involved in the accident or incident will gain party status. According to 49 CFR §831.11(a)(1), the IIC “designates parties to participate in the investigation.” The language in this section also provides “other than the FAA in aviation cases, no other entity is afforded the right to participate in Board investigations.” [emphasis added]
The flow and dissemination of accident or incident information during the NTSB’s on-scene portion of the investigation is limited to factual information. According to 49 CFR §831.13, this information will only be released by “the Board Member present at the accident scene, the representative of the Board’s Office of Public Affairs, or the investigator-in-charge.” Historically, the NTSB has needed to remind organizations of this strict hold over information during the time when the NTSB is present at the accident scene. Although companies often want to provide a statement to the media, it must coordinate with the NTSB in order to release any such statement. This is an area where many companies test the boundaries of the authority of the NTSB, but can result in the company losing party status if it fails to comply.
Subparagraph (b) of 49 CFR §831.13 also restricts the release of information that concerns the accident or incident to any persons “outside the investigation” unless the IIC has authorized its release through official channels. The regulations allow parties to the investigation to release information within their organization that is “necessary for purposes of prevention or remedial action.”
In addition, the NTSB does not allow insurance representatives or claimants to be represented within the investigative team, nor do they allow attorneys to be part of the investigation or sit in on field investigative meetings. Surprisingly, this also goes for prosecutors and their representatives. The NTSB has stated that the “failure to comply with these provisions may result in sanctions, including loss of status as a party” to the investigation. When selecting who will have party status within an NTSB investigation, the agency considers what technical, operational, and manufacturing assistance the organization, company or government entity will be able to bring to the overall fact gathering process of the investigation. These factors are important considerations in the wake of a serious accident in that a motor carrier should not assume that it is being denied a legal right or otherwise mistreated by virtue of its counsel being “left out” of the investigative process.
The NTSB has preeminent authority over ALL federal agencies when it comes to investigating accidents or incidents that occur in transportation modes pursuant to the appendix to §800 in 49 CFR, except for major maritime investigations where they are jointly investigated with the U.S. Coast Guard under 49 U.S.C §1131(a)(1)(E). Congress provided this authority in 1997 after investigative issues arose during the TWA800 investigation in 1996. For example, this priority over investigations extends to law enforcement agencies such as the Federal Bureau of Investigation (FBI). The FBI will now provide its assistance to the NTSB until criminal evidence is found that would cause the accident or incident to fall under the jurisdiction of the FBI, in which case the NTSB would then provide investigative assistance to the FBI. This authority, however, does not weaken the authority of other federal agencies, such as FMCSA, to conduct investigations of the accident or incident that correspond to the applicable laws and authorities provided by Congress. According to 49 CFR §831.5, these agencies are able to “obtain information directly from parties involved in, and witnesses to, the transportation accident or incident, provided they do so without interfering with the Safety Board’s investigation.” This enables the FMCSA to run a parallel investigation on a motor carrier from a compliance and enforcement perspective, and to move forward on any potential violations after the on-scene part of the NTSB’s investigation is complete.
3. Contrast in Agency Goals (subsequent regulation vs. root cause determinations)
The FMCSA and NTSB have different missions as dictated by Congress, and each has its own role as it relates to the safety of the traveling public. The FMCSA is a regulatory agency that has been assigned the task of limiting the loss of life resulting from commercial vehicle accidents. The NTSB, on the other hand, has been tasked with determining the probable cause of transportation accidents and making safety recommendations to help prevent similar accidents from occurring in the future. Indeed, “NTSB neither promulgates nor enforces any air safety regulations. Nor does the agency adjudicate claims over liability for accidents. Rather, it simply analyzes accidents and recommends ways to prevent similar accidents in the future.” In re Air Crash, No. 5:06-CV-316 – KSF, 2008 U.S. Dist. LEXIS 56169, *21-22 (E.D. Ky. 2008) (citing Chiron Corp. and Perspective Biosystems, Inc. v. National Transportation Safety Board, 339 U.S. App. D.C. 188, 198 F.3d 935 (D.C. Cir. 1999)).
The FMCSA establishes specific safety-related regulations for commercial vehicles and has compliance and enforcement specialists that initiate inspections and investigations into the failure of a commercial entity to comply with the safety regulations. The NTSB has federal investigators on board who are responsible for documenting an accident through root cause analysis. The FMCSA likewise has the authority to issue civil penalties against a motor carrier following a post-accident compliance review, while the NTSB has no authority to penalize any individual or company in either a civil or criminal context.
4. Use of NTSB and FMCSA investigations in accident litigation
An essential part of handling initial communication by and between a motor carrier and federal agencies is assessing how the elements of the post-crash investigation may be used in subsequent litigation. To ensure that NTSB investigations are “independent” and not impeded by litigants, 49 U.S.C. §1154(b) provides, “(n)o part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report.” In addition, the NTSB limits the information that it will release as part of an investigation if they receive a FOIA request. Most requests from the public are referred to the information that is available in the factual portion of the accident investigation docket. Pre-decisional information or information obtained as part of the investigation that qualifies as a “trade secret” under 18 U.S.C. §1905 and meets exemption 4 of the Freedom of Information Act (5 U.S.C. §552), as well as the Independent Safety Board Act of 1974, will be withheld by the NTSB and not provided to the requester. There are, however, exceptions to this policy which allows the NTSB “under certain circumstances, [to] disclose information related to trade secrets.” Prior to the NTSB releasing any confidential information, they are required to provide notice and the opportunity for a company to give additional reasons why the information should not be released. A company that is requested by NTSB to provide “trade secrets” should be aware that there are specific requirements that must be met for the information to be considered a “trade secret.” These requirements can be found in 49 CFR §831.6(a)(2) and require each page of information that is provided to the NTSB to be marked confidential.
The prohibition against the admissibility of “reports of the Board” in litigation does not, however, extend to factual investigative determinations made by the NTSB. In fact, 49 CFR §835.2 expressly divides NTSB reports into “(1) ‘factual’ reports from its investigators and (2) analytical reports containing the Board's determinations, which may include the probable cause of an accident.” In re Air Crash, 2008 U.S. Dist. LEXIS 56169 at *19. As explained by several federal courts, “[t]he latter may not be used as evidence, but the NTSB does not object to admission in litigation of factual accident reports." Id. (citing 49 CFR §835.2). Statements by either the NTSB or the FMCSA in the course of a post-accident investigation, moreover, are not “rules” and are not subject to judicial review. See TransAm Trucking, Inc. v. FMCSA, No. 14-9503, 2015 U.S. App. LEXIS 18563 (10th Cir. 2015)).
Another important consideration in this context is the degree to which other statutes and rules may affect the admissibility of a particular item of evidence. For example, even if a motor carrier’s accident register was to appear in a factual report completed by an NTSB investigator, statutes and regulations geared toward FMCSA investigations may preclude the admission of the accident register even if it could be characterized as an otherwise admissible component of a NTSB “fact” investigation. See Sajda v. Brewton, 265 F.R.D. 334 (N.D. Ind. 2009) (citing 49 U.S.C. §504(f) and concluding that a motor carrier accident register was neither discoverable nor admissible in evidence). In this context, Congress has also consistently shown a “strong desire” to keep the NTSB “free of the entanglement” of accident-related litigation and has emphasized that NTSB conclusions (and arguably at least some of their underpinnings) “should not be used to the advantage or disadvantage of any party in a civil lawsuit." Chiron Corp. v. NTSB, 198 F.3d 935, 940 (D.C. Cir. 1999). Accordingly, counsel should also bear in mind that the NTSB in particular is not concerned with “fault” as determined in the context of litigation. Instead, the NTSB’s focus is on the degree to which the probable cause of a particular accident is tied to larger national issues such as the efficacy of a particular type of traffic control device or whether existing regulations regarding vehicle maintenance require revision.
B. NTSB and FMCSA Powers and Procedures Following a Serious Accident
1. Differing subpoena powers
There are significant differences between the FMCSA and the NTSB with regard to each agency’s ability to subpoena documentation from a subject entity that is part of an investigation. First, the FMCSA is under a cabinet level department within the executive branch of government, which requires subpoena authority to be delegated from the Secretary of Transportation down to the Administrator of the FMCSA and then to the Office of Chief Counsel within the agency. This authority to subpoena information requires several specific steps and some time before the agency is able to issue a subpoena to a motor carrier. If, however, a motor carrier denies access to FMCSA inspectors who are requesting records, provisions contained in SEC.32103 of P.L. 112-141 or Moving Ahead for Progress in the 21st Century Act (MAP-21) provide FMCSA the ability to “suspend, amend, or revoke any part of the registration of a motor carrier, broker, or freight forwarder for willful failure to comply with…” various items including an administrative subpoena or a letter demanding release of company safety records.
The IIC in an NTSB investigation, by contrast, has authority provided through delegation by the Chairman of the NTSB to issue a subpoena for either information or to request that a person to be present for an interview during the on-scene phase of the agency’s investigation. The IIC does not need to contact anyone within the agency to serve a subpoena to anyone if they believe doing so is in the interest of gathering necessary information for the NTSB to complete its investigation. The NTSB may also issue a subpoena to a company at the company’s request to ensure that any release of personal information regarding its employees is deemed pursuant to a formal legal request.
2. Differing investigatory procedures
a. NTSB evidence
When the NTSB initiates an investigation and launches a “go-team,” it begins by documenting the accident or incident scene and determining what evidence is required for the investigation. This evidence normally includes wreckage, records, mail, cargo, and summaries of interviews. It is important to note that the NTSB has been given significant empowerment by the Congress, within Section 3(b) of the 1990 Amendments to the Independent Safety Act, with regard to who is permitted to participate in the observation of wreckage testing and analysis. The Act states, “The Board shall have sole authority to determine the manner in which testing will be carried out…, including determining the persons who will conduct the test, the type of test which will be conducted, and the persons who will witness the test. Such determinations are committed to the discretion of the Board and shall be made on the basis of the needs of the investigation being conducted by the Board.” This language was solidified under 49 §CFR 831.12(a) as “[o]nly the Board’s accident investigation personnel, and persons authorized by the investigator-in-charge to participate in any particular investigation, examination or testing shall be permitted access to wreckage, records, mail, or cargo in the Board’s custody.”
b. NTSB public investigative hearings
After the NTSB’s investigative staff has concluded its investigation, a public hearing is scheduled for the five-member Board to deliberate on the draft investigative report that is written by the IIC with input from each of the Group Chairman’s factual and analysis reports. Prior to the investigative hearing, the only information available to the public is the factual reports that would be disclosed in the investigative docket. The analysis reports that are drafted by the Group Chairman are not released to the public and are considered “pre-decisional.” Ultimately, the IIC and the Group Chairman publicly present their findings to the five members of the NTSB for their consideration. These members will agree on the probable cause of the accident or incident, as well as make conclusions and safety recommendations.
The Board members are not permitted to deliberate regarding the outcome of the investigation prior to the public investigative hearing because of restrictions established under the “Sunshine Act” or 5 U.S.C. §552b regarding meetings open to the public. Prior to the investigative meeting, however, investigative staff will brief each of the NTSB board members individually. Each Board Member receives the draft investigative report that will be presented to them about two weeks prior to the respective Board Meeting. Each Board Member is allowed to ask the staff questions about the facts and analysis provided in the report, which will enable them to develop their own opinions regarding the conclusions, probable cause and safety recommendations drafted by the staff for consideration by the Safety Board.
c. NTSB depositions
The ability of an employee of the NTSB to be deposed for civil or even criminal litigation is restricted. All requests must be in writing and be presented to the General Counsel of the agency, who will then decide whether to grant outside counsel access to the NTSB employee. According to 49 CFR §835.5(a), NTSB employees may not appear and testify in court.
Additionally, no litigant can retain a current NTSB employee as an expert witness because the NTSB utilizes the expert opinions of their investigators as part of the Board’s deliberations in determining the probable cause of an accident. Governing regulations within 49 CFR §835.5(a) go a step further and state, “litigants must obtain their expert witnesses from other sources.” There is no restriction, however, against former investigators being used as expert witnesses or providing their firsthand knowledge as to how the NTSB completes investigations or evaluates either industry compliance or regulatory oversight of a safety issue.
d. Formal and informal interviews by FMCSA and NTSB
As part of the NTSB’s normal investigative procedures, investigators will always interview appropriate witnesses and individuals involved with the nature of the accident or incident as a fact-finding exercise. As part of an investigation, the NTSB considers the weight of each of these interviews equally when trying to determine the probable cause of an accident or incident. These interviews are documented either through notes, a court reporter or other means of documenting what an individual being interviewed has to say regarding the situation.
FMCSA inspectors may utilize either formal or informal interviews when investigating a safety related compliance issue, but it is unlikely for a formal interview to be used by either federal investigators or state law enforcement officers that either perform a traffic stop or roadside inspection.
e. Right to counsel
A person interviewed by the NTSB has the right to be “accompanied, represented, or advised by an attorney or non-attorney representative.” Pursuant to 49 CFR §831.7, the right to representation attaches, “regardless of the form of the interview (sworn, unsworn, transcribed, not transcribed, etc.).” NTSB investigators, however, cannot guarantee the interviewee immunity from prosecution, confidentiality, or any other legal protection. Accordingly, the interviewee retains his or her federal constitutional right against self-incrimination.
However, pursuant to 49 §CFR 801.55 and 5 §U.S.C. 552(b)(5) “any record prepared by an NTSB employee for internal Government use is exempt from public disclosure to the extent that it contains (1) Opinions made in the course of developing official action by the NTSB but not actually made a part of that official action, or (2) Information concerning any pending NTSB proceeding, or similar matter, including any claim or other dispute to be resolved before a court of law, administrative board, hearing officer, or contracting officer.”
C. Responding to FMCSA and NTSB inquiries
1. Document preservation/litigation holds in anticipation of agency interviews and document production
As with any immediate response to a serious accident, a motor carrier should make intentional, documented efforts to obtain and preserve data and information that will foreseeably be relevant to both litigation and federal agency inquiries as soon as possible after the accident occurs. This information of course includes, but is not limited to, hours of service documentation, documentation regarding the load and bill of lading, and physical evidence such as the involved tractor and trailer. In this context, special emphasis should be placed on data and information that is regularly destroyed or overwritten in the regular course of business following the passage of time.
2. Don’t rebuff the agency
It is in the best interest of any organization involved in an inspection or investigation by either the FMCSA or the NTSB to work cooperatively with the agency and provide them with the information they are requesting. As federal inspectors or investigators, the agencies have substantial authority that can cause grief for companies that fail to comply. If they request information that is reasonably necessary for them to complete the work they are required to accomplish, it is in the company’s best interest to provide it to them as quickly as possible.
3. Involvement of counsel and experts
As a motor carrier, it is crucial to have counsel made aware of the situation as quickly as possible. If the NTSB contacts the motor carrier directly, it would be prudent for the company to immediately contact counsel, as well as experts who have firsthand working knowledge of the agency. This expert should be able to provide guidance to help ensure that the company’s rights and interests are considered as part of the on scene phase of the investigation, as well as throughout the evaluation of factual information while at either NTSB headquarters or at one of the field offices.
4. Review of final reports absent conclusions
According to 49 CFR §831.14, any company whose “employees, functions, activities or products were involved in an accident or incident under investigation may submit to the Board written proposed findings to be drawn from the evidence produced during the course of the investigation, a proposed probable cause, and/or proposed safety recommendations designed to prevent future accidents.” This section of the governing regulations allows for a motor carrier to consider all the facts that were drawn upon by the NTSB while investigating the accident or incident and provide the NTSB with suggested findings. If the motor carrier has retained counsel, and individuals that have expertise in working with the NTSB, it is essential to have these individuals incorporated into the workings of the investigation from the beginning. This will enable areas of the investigation that are focused on the motor carrier to be fully explored and a formal submission drafted for NTSB’s consideration as part of their deliberations.
David Chapman is an attorney in the Knoxville office of Leitner, Williams, Dooley & Napolitan, PLLC. David’s practice focuses primarily on the defense of local and national transportation companies and commercial motor vehicle drivers, including medical and liability expert retention and discovery, accident investigation and evaluation, and pre-trial, trial, and appellate litigation. He has also worked with multiple motor carriers and transportation companies regarding post-accident protocols and FMCSA compliance.
Christopher J. Bonanti is a Senior Managing Consultant for Engineering Systems Inc. (ESI). His primary expertise involves his more than 20 years of experience leading and managing regulatory, legislative, and infrastructure projects for all modes of transportation, including rail, motor vehicle, and aviation. Prior to joining ESI, Mr. Bonanti was a former member of the U.S. Senior Executive Service and was especially recognized for his work as the Associate Administrator for Rulemaking at the National Highway Traffic Safety Administration (NHTSA). During this time he also served as Head of the U.S. Delegation to the United Nations World Forum for the Harmonization of Vehicle Regulations. Mr. Bonanti has also worked as the Director for the Office of Hazardous Materials at the Federal Aviation Administration (FAA), as staff members of both the U.S. Senate and U.S. House of Representatives, as Special Assistant to the Administrator of the Federal Railroad Administration (FRA), and as an investigator-in-charge (IIC) at the National Transportation Safety Board (NTSB).