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Travel Safety Recommendations Ignored for Years

October 4th 2010

Disaster - USAir ditch in Hudson

Americans are exposed every day to risks in highway, air, rail and water travel that could be reduced if federal regulatory agencies and states moved faster to carry out recommendations made by the National Transportation Safety Board, which investigates accidents and proposes ways to prevent them.

More than 710 people have died over the past 30 years in plane crashes in which ice built up on the wings of aircraft while the Federal Aviation Administration considered NTSB recommendations to reduce icing dangers.

The Federal Railroad Administration took 36 years after the first NTSB recommendation to settle on a rail car design that gives passengers and workers a better chance of surviving crashes. Twenty-four years passed before the National Highway Transportation Safety Administration required trucks to have anti-lock brakes recommended by the NTSB. The Federal Motor Carrier Safety Administration has yet to fully implement a 2002 recommendation to keep medically unfit bus and truck drivers off the roads. During that time, unfit bus and truck drivers have caused more than 800 fatal accidents.

Thirteen states have ignored a 1993 NTSB recommendation that boater education classes be required for anyone taking a boat out on the water. Two states—Virginia and Wisconsin—have refused to require that children wear life jackets aboard boats.

From 2000 to 2010, the average time federal agencies, states, and transportation industries took to implement NTSB recommendations stretched from just over three years to 5.4 years, according to an analysis. The averages were based on actions that met or exceeded NTSB expectations. They do not include the one-quarter of NTSB recommendations that are still pending or were closed because they were so outdated the board issued replacements or because the board gave up on them.

Federal agencies responsible for highway safety, including the National Highway Safety Administration and the Federal Motor Carrier Safety Administration, took the longest to comply with NTSB safety recommendations: an average of almost eight years. The FAA and aviation industry moved the fastest: an average of nearly four years.

The delays have many causes, the analysis found. Transportation industries and interest groups lobby against safety measures they fear will be expensive, intrusive, or difficult to carry out. The federal agencies have close ties to those they regulate, and their rule-making processes are unwieldy and time-consuming. And the NTSB has no legal authority to force federal agencies, states, or industries to implement its recommendations.

Transportation Department officials say they are working to clear backlogs and ease delays. Deputy Transportation Secretary John Porcari heads a new DOT Safety Council that has cleared more NTSB recommendations in 2010 than in any of the previous five years, according to the department.

Giving Up

Transportation accidents—primarily car accidents—are the leading cause of accidental death for Americans under the age of 34 and the 10th leading cause of death for all ages, according to the Centers for Disease Control and Prevention.

In 2008, there were 5.8 million crashes on the roadways, nearly 2,500 train accidents, more than 12,000 boating accidents and nearly 1,700 plane crashes. In all, 38,686 people lost their lives. Since 1967, the NTSB has been investigating transportation accidents and issuing recommendations—mostly aimed at federal transportation agencies—to prevent deaths and injuries on the ground, in the air and on the water. The board is independent of Congress and regulatory agencies, with five members appointed by the President for five-year terms. But it has no legal authority to force federal agencies, states, or industries to implement its recommendations.

Over the past 43 years, the board has issued more than 13,000 recommendations to reduce accidents and fatalities. It has succeeded in influencing many transportation safety improvements, including child safety seats in cars, better lighting and signs on airport runways, and new technologies to prevent trains from running into each other.

But the NTSB has essentially given up on 1,952 unfulfilled recommendations—one of every six—that it has made since 1967, the analysis found. And the safety board has faced increasing delays before action is taken on recommendations that are eventually implemented, no matter how big or small.

In 1988, an Exxon vessel on the Mississippi River near New Orleans swerved to avoid another ship and ended up with a 32-foot-long gash in its hull. Four thousand tons of carbon black oil spilled into the water. The NTSB recommended that the U. S. Department of Transportation improve ship-to-shore communication in New Orleans. It took nearly 12 years for DOT to comply.

In 1987, when a United Airlines plane made an emergency landing after receiving a bomb threat, a flight attendant pulled the wrong handle on the escape slide and it didn’t fully inflate. Two passengers dropped to the runway. One sprained his back and the other fractured his vertebra. It took the FAA 11 years to implement a NTSB recommendation that “Pull to Inflate” signs be located as near as possible to the proper handle in aircraft.

“The main game here is not to oppose,” said former NTSB chair Jim Hall, who served under President Bill Clinton and is now a registered lobbyist specializing in transportation safety issues. “The main game is to delay.”

“I think it’s a very fragile system,” said Gail Dunham, executive director of the National Air Disaster Alliance/Foundation. “Yes, millions get where they’re going, but the accidents are so preventable.” Hall and Dunham were among hundreds of officials, industry leaders, and safety experts interviewed for this article. Thousands of pages of documents, reports, and accident and investigation data from the NTSB and federal regulatory agencies were analyzed.

Rule-making

Unless a safety measure is mandated by Congress, federal agencies must create new rules that spell out what industry has to do.

The first step is to draft a proposal that describes the new rule, how standards will be monitored, and any penalties for noncompliance. The White House’s Office of Information and Regulatory Affairs, part of the Office of Management and Budget, has to review the costs and benefits of the new rule.

The proposal then is open for public comment, usually for 90 to 120 days. However, industry groups often ask for extensions to study the issue before responding. In some cases, public comment periods last for years. The agency issues a general response to the comments and may revise the rule or even start over with a different proposal. If it decides to go ahead, the rule again must be reviewed by White House budget officers.

Sometimes, a rule never makes it out of the comment period. In 1995, for example, the FAA issued a proposed rule to address pilot fatigue. It would have shortened the amount of flying time pilots are allowed. The proposal ignited a storm of protest from pilots unions, air carrier associations, and airline companies who said the FAA didn’t have enough scientific evidence to back up the new rule. They submitted comment after comment and argument after argument that the FAA had to address.

Fourteen years and more than 2,000 comments later, the FAA said the proposal was so old it had become outdated. It was withdrawn. In September, the FAA started the process over again, issuing a new proposal to limit pilot flying times and accepting public and industry comments. Every time the FAA brings up flight time for pilots, “you get a huge level of comments,” said Ken Mead, former inspector general for the Department of Transportation. Some of the comments are about cost, while others “argue what is fatigue (and) at what point is the human body fatigued. It’s easy to say, ‘Go fix this’ … but the devil gets in the details and it gets very frustrating how long it takes.”

The NTSB does not take cost into consideration when making its recommendations, some of which can be extremely expensive to implement. The board, for example, long advocated automated train control systems to prevent train accidents. In 2008, Congress stepped in to mandate that most rail lines install the systems by 2015.The cost for installation alone is an estimated $5.4 billion nationally.

David Castelveter, vice president of communications for the Air Transport Association, a trade group that represents the major airlines, said some safety measures aren’t worth the cost. For example, when the FAA studied a NTSB recommendation to force airlines to require young children to be placed in safety seats in airplanes, the agency came to a surprising conclusion: “If parents were forced to buy seats for their children, some would have to drive instead, and the accident rates for cars is much higher than for airplanes,” he said.

The FAA has to “balance the interests of the airlines, the manufacturers, the suppliers, the people who fix the planes, and the people who fly the planes,” he said. “It’s not just as simple as the NTSB says, ‘Do it,’ so let’s do it. “

Jill Zuckman, director of public affairs for the U.S. Department of Transportation, the FAA’s parent agency, said in an e-mail that NTSB recommendations are sometimes impractical or impossible to implement. For example, she said, the NTSB “once recommended that the FAA develop a direct warning system about potential runway collisions for pilots in the cockpit. However, the technology did not exist when the board made that recommendation and still does not exist. … The bottom line is that when it comes to NTSB recommendations, there is often much more to it than meets the eye.”

The DOT also complained that the NTSB is part of the problem, saying that agencies must submit their responses to NTSB recommendations by physical mail, and the NTSB sometimes takes more than a year to process a response.

NTSB spokesman Bridget Serchak said that’s not true. The board has accepted responses electronically for about two years, she said, and most responses are processed within 60 days. The NTSB, on the other hand, sometime waits years for agencies to respond, she said.

NTSB Chair Deborah Hersman said the board tries to be patient about the delays. “While the NTSB would prefer to see less talk and more action on our recommendations, we recognize that we often ask for things that are complicated, expensive or difficult to implement,” she said in an e-mail. “After 40 years and over 13,000 recommendations, we recognize that oftentimes the pace of implementation is slow, but we know that in the end our persistence pays off and changes do occur to improve the safety of the traveling public.”

Rule-making

Problems with the FAA’s rule-making process date back to the 1960s, according to a 2001 Government Accountability Office study. The study said the FAA tended to take on too many projects, continually shifted priorities, and failed to hold anyone accountable for keeping projects on schedule, among other problems. The report stated that between 1995 and 2000 the FAA completed 29 major rules; six of them took 10 years or more to complete.

“The rule-making process is very, very circuitous, complicated (and) time-consuming,” said Gerald Dillingham, the GAO’s director of civil aviation issues who authored the report. That’s partly because new aviation technologies have gotten far more complex, he said.

That was the case after TWA 800 exploded off the coast near New York City in 1996.

First, the NTSB took four years to investigate the accident and issue a recommendation to fix fuel tanks to prevent more explosions. Then FAA researchers went to work developing and testing a variety of fuel tank inerting systems. That took five years.

Gus Sarkos, the FAA’s manager of fire safety, said the technologies were so complicated that it was a lot to accomplish in five years. “We were given a challenge to develop a system that would be practical and cost-effective and do it in (the) near term,” Sarkos said.

The speed at which a rule gets implemented often comes down to economics. Two recent NTSB chairmen, Hall and Mark Rosenker, who served under President George W. Bush, agreed that cost is often the main reason safety recommendations take so long to implement. “There are two competing interests,” said Hall, now a lobbyist who has worked for car, train and telecommunications companies. “One is safety; the other is economics.”

Special Interests

Unions, companies and special interest groups are all influential in delaying rules they don’t like. Such groups employed nearly 2,000 registered lobbyists in 2009 to work on behalf of the transportation industry, according to the Center for Responsive Politics. They spent $243.7 million lobbying Congress and regulatory agencies that year.

Lobbying firms are not required to report expenditures by issue, so it’s impossible to say how much of the money was spent on transportation safety issues and how much on other things, such as lobbying for construction projects.

When problems arose with sticky accelerators in some Toyotas, the Center for Responsive Politics and other watchdog groups pointed out that Toyota had spent nearly $25 million lobbying federal regulators and legislators in the past five years and employed former members of Congress and the executive branch as well as former engineers and officials from NHTSA, which was criticized for not acting on reports about safety problems at the company.

Allan Kam, a former senior enforcement attorney for NHTSA, said industry clout can be overwhelming. “The motor vehicle industry is a powerful constituency,” said Kam, who is now director of the Highway Traffic Safety Associates consulting firm. “If they’re united in their opposition, that becomes a very powerful political force.”

For example, trucking companies have slowed down a new safety system designed to get unsafe commercial trucks off the roads. The FMCSA began work on the system in 2004, with a goal of having it in place by 2010. Companies and trucking associations have raised dozens of objections, questioning how they would be monitored and how violations would be assessed.

In late June, Anne Ferro, FMCSA administrator, said the proposal won’t be completed this year. Instead, it will undergo another round of reviews. The NTSB, meanwhile, elevated the matter to its “Most Wanted” list of actions needed to make travel safer.

Many safety rules and regulations for highways have to be approved by state legislatures, each with its own constituencies and priorities.

Congress originally intended to make highway safety a state priority by putting transportation agencies inside governors’ offices, right by the seat of power, said Danielle Roeber, chief of the board’s Safety Advocate Division.

But over the years, transportation safety agencies have lost clout. Many now mostly sponsor public service safety ads, conduct studies, and provide advice to elected officials. And many struggle for funding from cash-strapped legislatures. As a result, states are among the slowest to respond to federal safety initiatives, Roeber said. “We have an understanding with states that it’s going to take 10 years” to implement safety recommendations, she said.

Or longer.

In 1995, a 5-month-old child was the sole casualty in a minor car crash. The NTSB urged all states to require child safety seats for all children under the age of 8. It was four years before any state passed such a law. Nearly half still haven’t.

Compromise

The safety board often will spend years trying to reach a consensus with regulatory agencies and industries over safety steps. That’s because it wants those responsible for implementing regulations to be on board, said Elaine Weinstein, former head of the NTSB’s Safety Advocacy Division.

Doug Rabe, a former NTSB senior investigator who recently retired from the U.S. Coast Guard, said often the two sides don’t disagree so much over what safety measures should be taken as over minutiae of implementation.

In 1985, for example, the NTSB recommended that the Coast Guard conduct research on ways to reduce accidents on small fishing vessels. The Coast Guard agreed with the spirit of the advice but said it didn’t have the money to do all the research. It took nearly 11 years for the two sides to reach a compromise: The NTSB would do the work and the Coast Guard would provide feedback on the research.

“There isn’t that much disagreement about what should be done,” Rabe said. “Frankly, that was nothing more than a paperwork exercise.”

In an effort to reach agreement, the NTSB may accept something less than what it has asked for.

On Sept. 2, 1998, a Swissair flight left New York headed to Geneva. When crew members noticed fire and smoke in the cockpit they diverted to Halifax, Nova Scotia, but before they could make it the airplane crashed into the water. All 229 passengers and crew died.

The NTSB worked with Swiss and Canadian investigators to determine what went wrong. But because the flight data recorder and voice recorder lacked any information for the last six minutes of the flight, they were severely hampered.

This wasn’t the first accident investigation that a data recorder would have helped resolve. In the 15 years leading up to the Swissair flight, there were 52 accidents and incidents in which information from a voice or data recorder was missing when the plane lost power during an emergency.

So the NSTB put data recorders on its “Most Wanted” list.

Nine years later, the board realized that the FAA was not going to do everything it wanted because of the cost to airlines. It wouldn’t mandate expensive recorders that would continue working even if a plane lost power. And it would retrofit some planes with recorders but not others. For example, a floatplane like the one that crashed into the side of a mountain in Alaska in August, killing former Sen. Ted Stevens (R-Alaska) and four others does not have to carry any kind of recording device.

The board decided to take what it could get. It closed the recommendation as “acceptable” in 2008.

Ryan Phillips and Aarti Shahani write for News21, from which this article is adapted. News21 reporters Richie Duchon and Jennifer Brookland and Center for Public Integrity staff members Michael Pell and Nick Schwellenbach contributed to this report.


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