Asiana Wreckage Flight 214 AP Photo Marcio Jose Sanchez

Recently the Associated Press reported that the US Department of Transportation (DoT) was reviewing Asiana Airlines post-crash plan, specifically their compliance with the US Family Assistance Laws.  Asiana was required by law to provide a copy of that plan to both the DoT and National Transportation Safety Board (NTSB).  This is the first time that DoT has conducted a review with regard to potential family assistance law violations for an international airline.

The first family assistance law was enacted in 1996, and titled “Aviation Disaster Family Assistance Act of 1996”.  It required US airlines to submit a plan for addressing the needs of the families of passengers involved in aircraft accidents. These plans had to meet 13 specific requirements:

• Requirement #1, A plan for publicizing a reliable toll free number with staff to handle calls from families of the passengers;
• Requirement #2, A process for notifying families of passengers before providing any public notice of the names of passengers;
• Requirements #3, -12 Specific assurances for family care; recovery and return of deceased, their personal effects and memorials;
• Requirement #13, An assurance that the air carrier will commit sufficient resources to carry out the plan.

That law was amended in 1997 to include foreign carriers.  It meant that foreign airlines operating to or from the United States also had to comply with the law.  This included submitting a plan and providing assurance that the airline will commit sufficient resources to carry out the plan.

In 2000, the law was again amended.  This amendment required all carriers both foreign and domestic to submit updated plans.  It changed the definition of passenger, adding those on non-revenue tickets. The additional requirements included:

• Requirement #14, An assurance that if a family member called, and their relative was listed on the preliminary manifest, the airline would tell them;
• Requirement #15, An assurance that the airline will provide adequate training to their employees or agents to meet the needs of survivors and family members following an accident;
• Requirement #16, An assurance that if an airline is assisting a US citizen overseas, they will a consult with the NTSB and US State Department.

In 2003, the law was again amended. This amendment required all carriers both foreign and domestic to submit updated plans.  Airlines had to meet two new requirements. These include:

• Requirement #17, An assurance that in accident that results in significant damage to property on the ground, the airline will advise the owner about liability, and means for obtaining compensation;
• Requirement #18, An assurance that if the NTSB conducts public hearings over 80 miles away from the accident site, the airline will ensure that the hearings are available via electronic means at both the origin city and destination city if that city is located within the US.

Airlines complied with the requirement to submit plans in very different ways.  Some airlines submitted their entire emergency response plans.  Others simply submitted a document saying they have the resources and provided assurance that they will comply with the law.  Some even went as far as to write that they felt that local governments (in whose jurisdictions a loss occurs) should be responsible for taking care of some of the requirements.

In December 1997, in response to these submitted plans the DoT office of Aviation Enforcement and Proceedings sent out a letter to all US airlines.  In this letter the DoT said they had received and reviewed all plans, and that:

“The Department and the NTSB have received your plan. As we are sure you can appreciate, the plans we have received differ greatly in content, approach, and detail. Our initial review has concentrated solely on whether the plans address all of the assurances required by the statute. Although we have “accepted” all of the plans we have received, this does not constitute our “approval.” Now, our primary concern is whether each air carrier has or will be in a position to commit the necessary staffing and other resources to adequately carry out its plan in the event an accident occurs.”

“After any accident, the NTSB will monitor the involved carrier’s implementation of the assurances given in its plan. If the NTSB determines that the air carrier did not meet the assurances required by the legislation and submitted in its plan, the NTSB will refer the matter to the Department. We will investigate and pursue enforcement action where necessary. Such action could result in a cease and desist order and civil penalties, or, in egregious cases, modification or revocation of the carrier’s authority to operate. Moreover, individuals could be subject to criminal prosecution in connection with any misrepresentation made to the Federal government.”

This is exactly where Asiana finds it self today, awaiting the DoT review.  The DoT review will certainly look at the following: Did Asiana have an updated plan on file?  Did that plan address all 18 requirements?  Most importantly, did the airline have the trained resources to meet the needs of the survivors and the families of the passengers, who died?

So today airlines are watching and waiting to see what happens.  For many professional airlines they understand that taking care of people is not only a legal requirement but also good for business and the right thing to do.  The majority of international (foreign) carriers have robust emergency response departments, call centers and training programs.  They conduct realistic training exercises and drills and most importantly have partnered with professional service organizations to provide the experience and capacity for incident response.

However, there are some very prominent foreign flag carriers and US carriers who pay lip service to the law.  They believe it “won’t happen to us” or they believe they will manage it on the go, or even worse partner with service organizations without validating their resources and capabilities.   This needs to stop.

Prudent airlines (or any other transportation operator or organization) working with crisis response companies (such as Kenyon) will verify the capabilities and preparedness of their service provider to ensure they are able to respond in a manner that meets these legal requirements as well as those that are often imposed by other nations in which they operate. As CEO and leader at Kenyon, I welcome any one of our several hundred clients in the airline, rail, cruise, natural resources or government organizations to tour our facilities and evaluate our state of preparedness at any time. For a company to feel confident they can meet these legal obligations and more importantly, the expectations of the families and those impacted in an accident, they must demand this of their provider.

Learn from this accident.  Review your submitted plans and validate your resources and those of your partners.  Visit their offices, identify full time staff, look at equipment, systems, and written procedures and process. Trust but verify.

Note:
In addition to the United States many countries have enacted similar laws.  Related laws for other industries such as Rail Passengers also exist.  Beyond the law, International Civil Aviation Organization and NTSB have both published plans and recommendations for meeting the needs of survivors and their families.

References used here:

• US Public Law 104-264
• US Public Law 105-148
• US Public Law 106-181
• US Public Law 108-176
• US Department of Transportation, Office of Aviation Enforcement and Proceedings, Washington, DC dated December 3, 1997, and signed by Nancy E. McFadden, General Counsel