ValuJet Postscript: give a statement . . . go to jail

ValuJet Postscript

Give a statement...go to jail

By Stephen P. Prentice

October 1999

Stephen P. Prentice

Most of us feel obligated to assist in accident investigations and usually tell all we know β€” including items that will sometimes get us into trouble. Sure, you may know there could be civil penalties and certificate actions, but you would not usually expect a criminal complaint!

In a previous column, I wrote about being cautious when "self-disclosing" (AC 00-58) to FAA and other government authorities. Confession may be good for the soul, but the mea culpa feeling you have about confessing could be your ticket to jail. In the case of accident investigations, remember you don't get any Miranda warnings about your rights before giving statements. NTSB or other Federal authorities do not have to give you the warning about your rights when you are not "in custody." This means you can incriminate yourself first and later on, be arrested on the basis of what you said!

Federal SabreTech indictments
Former SabreTech employees were indicted recently for their statements and actions surrounding the ValuJet accident. The three technicians from SabreTech were arrested, partly because of statements they gave to the FAA people during the ValuJet investigation.

Many observers called it arbitrary and clearly political grandstanding when the indictments were announced. After all, three years have passed. The Florida State District Attorney filed a separate criminal indictment against SabreTech. Not to be outdone, the U.S. Attorney in Miami followed with his own indictment of SabreTech and three former maintenance employees. There may have been a race to see who would gain the dubious distinction of being first to file.

The technicians also are alleged to have failed to place safety caps on the oxygen generator canisters and yet signed work forms showing they did. All the supervisors and inspectors, including the ValuJet people, did not detect this serious failure. They all ducked for cover and let the technicians take the heat. Besides, having the safety caps in place would not make them legal to carry aboard the aircraft. Along with the inflated tires, they were hazardous and forbidden to be carried by regulation. The technicians most likely never saw the safety caps and if they did, probably did not know what to do with them. There were conflicts in statements regarding whether or not the canisters were empty (expended) and therefore, inert. One could easily be led to believe that inert containers did not need safety caps. Who worries about discarded parts?

The conclusion, however, is that if the safety caps had been in place the accident would not have happened. Of course, you can only put individuals, not a corporation, in jail. SabreTech only exists on paper if at all. There is little left to handle the legal attack anyhow.

FAR 121.363: Responsibility for Airworthiness
What about the rule that says an air carrier is responsible for its contractors? FAR 121.363(b)?

"(b) A certificate holder may make arrangements with another person for the performance of maintenance. However, this does not relieve the certificate holder of responsibility (for airworthiness)."

Why was the oversight with the oxygen canisters not detected by ValuJet quality inspectors on- site? Or were they on-site at all? When did ValuJet do the last quality audit on their contractor? FAR's mandate these inspections on a regular basis. An air carrier cannot delegate its responsibility for airworthiness to a contractor, and should be in a position to double check flight safety items.

It was recommended by the Atlanta FAA staff that ValuJet be grounded before the fatal accident occurred. Somebody quashed the memo dealing with this finding. The memo was written in February and the accident occurred on May 11, 1996. After the accident, so many violations were found at the airline that they were finally grounded. Not that we want them to, but why are the prosecutors not chasing ValuJet or its people?

ValuJet's responsibility?
Did ValuJet employees assist in loading and inspecting the deadly cargo? Yes, they did. The ValuJet ramp agent accepted the hazmat material even though Federal regulations did not allow it. The airline was not permitted to carry any hazmat. Were they not charged with inspecting what turned out to be hazardous materials? Yes, they were. The crew was advised of the nature of the cargo and its weight. It could have been refused. The last line of defense for the paying customers was breached by the airline. Hazmat regulations clearly provide for criminal as well as civil penalties for violations. The common carriers vicarious responsibility for error was paid lip service only! It's a mystery. We have to recall that the only sanction lodged against ValuJet as a result of the accident was certificate enforcement action and civil penalties.

ValuJet as the common carrier is responsible under the law for the safe carriage of the passengers. SabreTech is only a repair contractor who is supposed to be supervised by the carrier. SabreTech is criminally charged along with several of their employees. Go figure!

FAA responsibility?
How about the FAA? Let's remember that the DOT Inspector Generals office found fault with virtually every aspect of the FAA oversight of ValuJet and SabreTech. Nobody talks about sanctions for the FAA personnel who did not do their job as was stated quite clearly in the Inspector Generals Report to Congress.

We do know the FAA Assistant Administrator was forced to resign and later, the Administrator. These are men of high integrity and they accepted the overall responsibility for the lack of oversight. But, there were others in the chain that curiously escaped sanction of any kind.

It was not too long ago that a Supreme Court case called Varig looked at the issue of government responsibility for accidents and oversights very carefully. Although the government was let off the hook in that case for a variety of reasons, it nonetheless spawned and further developed the theory that the United States government should be held responsible for their negligence in performing required services. If Varig were decided in today's environment, many believe the government and its agents would also be held responsible.

EAL: The real beginning
Bringing this type of indictment is not particularly unusual as was suggested in the Miami local press. Recall USA vs. Eastern Air Lines et al. CR 90 629, Eastern District of New York? In this case, which was brought by the U.S. Attorney in Brooklyn, the individuals charged included among others, the Vice President of Maintenance and Engineering, and the Director of Maintenance; who was sentenced to serve 27 months in jail. This was the "big" case. There were a grand total of sixty counts in that 45 page indictment. These people went to jail for crimes that did not involve deaths.

Eastern was the watershed case that established precedent for going after airlines and airline personnel with criminal actions. Albeit, many believed for obvious political reasons at the time β€” it obviously is not the last.

Bad business
The trend at FAA today is to encourage the reporting of incidents and other things that are out of order, so that safety in general can be enhanced. Therefore, FAA should have an interest in these cases for a lot of reasons. For starters, they are now trying to implement self-disclosure procedures wherein persons and companies may voluntarily self confess, and avoid sanctions β€” all in the interest of safety.

The FAA already receives a ton of "voluntarily" submitted information. Air carriers for example, provide information via their FAR 121.373 Continuing Analysis and Surveillance programs that many times is not otherwise provided to FAA. In addition, AC 00-58 describes a voluntary disclosure program that provides for avoiding sanctions when incriminating information is voluntarily provided to FAA before they find it.

The recently implemented ATOS system for the collection of safety data from airlines depends largely on voluntarily submitted data.

Likewise, programs like the Flight Operations Quality Assurance (FOQA) and the Aviation Safety Action Program (ASAP) provide operations and maintenance data on a voluntary basis to FAA that is not otherwise available.

The big fear now by operators is that this information will be used against them in many and varied ways and may be the subject of enforcement action including fines and or arrest and jail time. Why share information with the Government that could be released to the public and used against you in government and civil litigation or as stated, result in your going to jail? Why take the risk?

NASA reports FAR 91.25
Another example of a voluntary reporting program is the ASRS. Most pilots and technicians are or should be familiar with the Aviation Safety Reporting System. If you think you violated an FAR, you can file your report with the NASA people at Moffett Field and have a qualified exemption from imposition of a penalty. This of course is not usually a report that is available to FAA. Although this voluntary program has protections, it is not without exceptions.

Many assume that the information provided is totally protected from access by FAA. Not true. Sure, for the most part, the information you provide via the ASRS report is not available to the FAA. (FAR 91.25), but, there is an exclusion big enough to drive a truck through. There is a big hole here when one considers the definition of accident and criminal offense. It leaves much room for interpretation. The FAA or NTSB could make use of the data you provide. ASRS says that they only do this on request of FAA or NTSB

Note further that one should be careful not to use or make available to FAA your ASRS report during an NTSB hearing. The information contained in it can be used against you if you introduce it at an enforcement hearing for any reason. You should only reveal the report when and if you are hit with a sanction at the end of the proceeding and not before!

New NPRM protection of voluntarily submitted information
In an attempt to allay some fears, FAA has just published what is purported to be a proposed regulation to protect information that you provide to FAA from public availability. It is complex and designed with more loopholes for release of information than a slab of Swiss cheese. (NPRM Fed. Reg. Vol. 64 No. 142, July 26, 1999).

Like most government attempts at regulation, this piece is far more complicated than necessary. The proposed rule for example states that in some legal actions, such as enforcement actions and criminal prosecutions, information would be released. Whoa! That's good enough for me to clam up! How can anyone who is not a lawyer be expected to know that what they say to FAA is going to get them in trouble? Will it be sent over to a prosecuting agency and result in a criminal action or used against them in a civil damage claim? Is it going to be necessary to retain an army of lawyers to review information and statements before they are released? Did the guys at SabreTech have any idea that they might be criminally prosecuted for their actions and statements? If they did, would they have been cooperative and given statements to assist in the accident investigation? Probably not.

Why not simply say that you want assurance that the information you provide will not be used against you before you assist in any investigation? In other words demand immunity from at least criminal prosecution before giving out any information or statement.

Chilling effect
Criminal indictments will clearly hamper future investigations by NTSB and the collection of safety data by FAA. The homicide squad can't be involved in safety investigations. Investigators will find it increasingly difficult to get candid and complete statements and data from technicians and others in the field. Immunity has to be considered in order to get cooperation. Remember Monica L.? She got immunity.

The NTSB will find it more difficult to come up with a cause for accidents without cooperative statements. Investigative authorities will have to find some way to protect technicians and others from prosecutors when they want information. Otherwise, the only beneficiaries of this mess will be the many lawyers that will be required to counsel and advise in these situations.

ValuJet was a terrible accident, not a crime! The bottom line is that it resulted from joint failures at many levels β€”the FAA, the airline, and the shop!

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