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NTSB/Accident Investigation: From The Desk Of The NTSB General Counsel: Lessons Learned from Asiana Flight 214

On July 6, 2013, Asiana Flight 214, a Boeing 777-200 ER aircraft, crashed on approach to San Francisco International Airport.  All of the usual accident investigation and liability issues ensued, but a whole additional dimension presented itself when, in an unprecedented action, the US Department of Transportation (DOT) fined Asiana Airlines $500,000.00 for violations of The Foreign Air Carrier Family Support Act and the family assistance plan it had filed with the DOT pursuant to that Act. Link

Recently, David Tochen, the General Counsel of the National Transportation Safety Board, which cooperated with the DOT in their investigation of Asiana Airlines, talked about  “lessons learned”  as a result of Asiana’s actions/inactions.

  • Carriers may not understand the scope of their obligations with respect to family assistance.  Plane-ly Spoken would venture to observe that this is quite likely more of a problem with non-US carriers, which frequently view The Foreign Air Carrier Family Support Act and its requirements as more of a “checking the box” exercise than a substantive requirement necessitating relatively comprehensive planning and preparation.
  • Plans filed with the DOT need more detail, rather than simply repeating the 18 assurances required by the Act.  Once again, we would note that far too many family assistance plans, as filed with DOT, are superficial and simply confirm that the procedures for meeting the requirements of the Act are in place.  Regrettably, there is, all too frequently, very little planning or actual preparation behind those assurances.
  • Better planning is required between foreign carriers and their supporting airline alliance partners.  Remember, when an accident occurs in the US, the carrier responsible for the accident/family response is not the code share or alliance partner.  It’s the carrier involved in the accident.  In the Asiana Flight 214 accident, for example, the only role of the code share partner was to, in the words of David Tochen, provide “gap filler services until Asiana [was] fully functional about 5 days post-accident.”

The experience of Plane-ly Spoken is that it is far too easy for a foreign carrier to not fully appreciate what it means for them and their obligations when they have an accident/incident in the US.  The simple fact is that every carrier operating into the United States needs a full spectrum emergency response plan and should not rely upon their code share/alliance partners.

  • Both NTSB and DOT should conduct outreach to educate foreign carriers and industry-wide organizations, presumably IATA.  A worthy goal but one which should include the alliances, like the Star Alliance and Sky Team Alliance, as well.

Undoubtedly, the $500,000 penalty imposed on Asiana Airlines has gotten everyone’s attention, particularly the foreign air carrier community.  On a going forward basis, there is no reason why such issues and problems should present themselves again.  Let’s hope we don’t get the opportunity anytime soon to test the accuracy of this statement.

NTSB/Accident Investigation: From The Desk Of The NTSB General Counsel: Lessons Learned from Asiana Flight 214

NTSB Proposes Changes to Rules for Aviation Accident Investigation

On August 12, 2014, the Federal Register proposed to amend its regulations addressing NTSB accident investigation procedures.  A copy of the Notice of Proposed Rulemaking is available on the government-wide website at www.regulations.gov  [Docket ID Number NTSB-GC-2012-02].

This notice follows the NTSB’s publication, on June 25, 2012, of a notice of intent to undertake a review of all NTSB regulations to ensure they were updated pursuant to the mandate contained in two Executive Orders, dated January 18, 2011 and July 11, 2011, directed at all “Regulation and Independent Regulatory Bodies,” and focused on “Improving Regulation and Regulatory Review.”

In response to its June 25, 2012, notice of intent, the NTSB received five comments, only one from a company (GE Aviation), one from an association (A4A) and the others all from unions, including ALPA. Each of the comments received suggested one or more changes to the NTSB party process and procedures utilized by the NTSB in aviation accident investigation and found in 49 CFR part 831.

Important Deadline

The NPRM provides the public, including all members of the aviation industry, until October 14, 2014, to submit their comments regarding the proposed rule changes.

Highlights of Proposed Rule Changes

Section 831.5 Nature of Investigation

Addresses NTSB fact finding investigations in the context of an investigation meant for determining liability, i.e. civil litigation.

Section 831.6 Request to Withhold Information

Addresses the NTSB withholding safety related information, e.g. ASAP, FOQA, LOSA, etc. provided to them during an investigation, from release pursuant to a FOIA request.

Section 831.7 Witness Interviews

Proposes to limit a witness being interviewed to being represented by a single representative as opposed to two, i.e. a company representative and a union representative.

Also, clarifies the release of transcripts or summaries of such interviews in the public docket.

Section 831.9 Authority of NTSB Representatives

Addresses/clarifies the power of the NTSB, or it authorized representatives during an investigation, including entering property, collecting evidence, CVRs and FDRs.

Section 831.11 Parties to the Investigation

Addresses who shall be a party to an investigation.  This section is likely to draw comment from family/victim groups who, for many years, have sought to attain party status.

Changes also seek to preclude/discourage parties from designating personnel who may have been involved in the “event,” from working on the investigation.

Allows personnel directly involved in enforcement duties, e.g. airline PMI or POI, to be involved in the investigation.

Exempts representatives of other federal agencies from the obligation to sign the Certification of Party Representatives

Recognizes that parties may be conducting simultaneous internal investigations, but requires party to notify IIC of that fact and seek approval

Section 831.13 Flow and Dissemination of Investigative Information

Proposed change to allow a party to release accident investigative information to permit parties to “implement prevention, remedial action, or as otherwise noted by the NTSB…in accordance with certain criteria.”  The proposed criteria includes permitting the NTSB IIC to see, review and, presumably, approve, whatever the company intends to internally generate, as well as any “findings and planned actions” by the company.

Section 831.14 Proposed Findings

While the proposed changes do not currently include providing parties to the investigation a copy of the draft NTSB final report before it is issued (something which is not done now), the notice does indicate “the NTSB plans to address this issue outside the purview of this NPRM.”

In addition to the foregoing highlights, there are a number of other proposed changes addressed in the 19 page NPRM.

Next Step

All comments directed at these proposed amendments are due no later than October 14, 2014.  Several of the proposals are very significant in the context of the accident investigation process going forward and will directly affect a company’s involvement in that process.

This is your opportunity to comment.  Use it or lose it.

For further information contact:

Mark A. Dombroff

Off: 703-336-8700

Cell: 703-795-3858

Email: mdombroff@mckennalong.com

NTSB Proposes Changes to Rules for Aviation Accident Investigation

Still No Answers . . . . But Lots of Speculation

MH 370, MH 17, Air Algerie, TransAsia . . . . Four airline disasters.  Hundreds of people dead, but few answers.

MH 370 has still not been found and, other than speculation, little is known.

MH 17 was, by all accounts, shot down.  But, despite the international outrage, there has been little or no investigation and an inept, barbaric treatment of the victims, as well as the wreckage, which apparently has been ransacked on the site, with little or no security being provided.

TransAsia and Air Algerie, both in the formative stages of the investigation process, have been the subject of nothing more than speculation about weather, training and, in the case of Air Algerie, even hostilities on the ground.

We know that with the rash of airline disasters (at least one of them, MH 17, appears not to have been an accident, which connotes negligence, but rather a criminal act), it is virtually impossible to resist engaging in all manner of speculation.  We were, however, somewhat disappointed when one of our favorite aviation reporters for a 24 hour news network, talking about Air Algerie, suggested the cause was an encounter with severe weather by pilots who weren’t properly trained.  The allegation was also made that the company put profit over safety in that their procedures did not allow for enough safety margin when flying in the area of weather to save fuel and money.

We don’t know how to say it other than call it what it is, namely, irresponsible speculation.  It’s certainly appropriate for any reporter to talk about the various areas under investigation, but to conclude, days after an accident, what the cause is, absent it being patently obvious, isn’t even very good reporting.  We suspect there are far too many viewers of this news network who now believe that what this reporter said is, in fact, what occurred.

We continue to question whether, even assuming MH 370 is found, we will ever know what happened.  We have no doubt that, even with the travesty occurring at the wreckage site in Ukraine, there will ultimately be a meaningful accident report, as there will be with Air Algerie and TransAsia.  In the meantime, the news networks have plenty to fill their airtime without engaging in destructive speculation which is neither helpful, nor contributing to the investigation.

We’re also disappointed in ICAO.  As related to MH 17 they should be forcefully stepping out in front and both demanding and leading an international accident investigation.  ICAO Annex 13 has, for, all intents and purposes been largely ignored.  Sound accident investigation protocol hasn’t been present.  Humanitarian concerns have been trampled upon.

If ICAO doesn’t step up, the UN ought to get out of the international aviation business and go back to the drawing board.

Still No Answers . . . . But Lots of Speculation