July 29, 2013
Closing the loophole on aviation accident drug and alcohol testing
The victims of the Asiana Airlines Flight 214 crash were probably stunned to learn that, unlike U.S. pilots, foreign airline pilots who crash a plane on U.S. soil do not have to be drug or alcohol tested. Oddly enough, if the foreign pilots were driving a car and caused an accident on U.S. soil, they could be subjected to drug and alcohol testing. However, according to inconsistent laws, if, instead of driving, they are flying a $315 million dollar plane, weighing 387.3 tons, landing at 137 knots (or should be) with 307 innocent lives on board, they can fly away to foreign shores untested.
What Country’s Laws Apply?
To understand this situation and the inconsistent laws, you first should know that airlines are “flagged,” meaning each possesses a nationality. Each airline has a “residence” and registers its planes in a country. To be able to join the ranks of the aviation nations with planes traversing the world, a country must have a system of regulations for its carriers. The International Civil Aviation Organization (ICAO) requires that if a nation is to field teams of airlines, the nation must have aviation regulations that meet the ICAO requirements. Each aviation nation is supposed to have sufficient inspectors from an effective government air safety agency to enforce those regulations and oversee the nation’s flagged carriers. Then, each nation’s carriers fly under that country’s aviation regulations no matter where they are in the world. They can land in other countries with which their home country has agreements . . . we can land on you and you can land on us. The United States has such agreements with more than 150 nations.
One of ICAO’s recommended standards is that airlines in the aviation nations of the world include as part of their standards that pilots be drug and alcohol tested, both randomly while on the job and in the immediate aftermath of an accident. In the United States, U.S. licensed pilots flying a U.S. flagged plane will be subjected to drug and alcohol testing if they cause an accident. This is the case in the air just as on the ground—whether you are commanding a Boeing or a Buick. However this is not so for Korean airline pilots as our U.S. Senators discovered.
In the aftermath of the Asiana Flight 214 crash, some U.S. Senators called for a change in the law requiring anyone who crashes a plane on American soil to be drug and alcohol tested. What our Senators quickly found out is a world where international treaties trump U.S. aviation regulations—a resulting black hole with the absence of regulations that require drug and alcohol testing for foreign pilots. Even though all the suggested aviation rules and regulations of the ICAO were not incorporated into Korean regulations, particularly the one about drug and alcohol testing, the U.S. still agreed to let Korean Airlines fly here and U.S. airlines fly there.
Tit for Tat
Why don’t we just crack down on lax aviation nations? United States authorities, including the FAA and the U.S. Department of State, are worried that if we crack down on foreign airlines, they will crack down on us. Therefore, it appears that Washington, D.C., not uncharacteristically, has helped to create a stalemate between the economic interests of airlines who want to fly unimpeded around the globe and the safety needs of citizens.
A Code Sharing Loophole
But, there is a huge loophole in the black hole. On Sept. 30, 1999, the Office of Inspector General of the Department of Transportation (yes, the same office I used to head) issued a report called the Aviation Safety Under International Code Share Agreements. The study identified the DOT’s responsibilities for safety under international code share agreements and assessed whether they were adequate from a safety point-of-view if a U.S. passenger is ticketed by a U.S. carrier onto an international code share flight.
Code sharing is a marketing arrangement in which one air carrier sells and issues tickets for a flight on a second air carrier and passes off the second carrier’s flight as if the first carrier was operating the flight. This pawning off of a flight is legal. Code sharing is a marketing strategy to make the passengers think they have “seamless travel.” “Seamless travel” was one of the big buzz words at the turn of this century, suggesting to passengers that they only had to hassle with one airline if they were dumped, bumped or stranded, no matter where in the world they were. Of course the reality is vastly different.
Unbeknownst to the passengers, code sharing was really more to the benefit of the airlines because airlines could form alliances, share flights and make passengers think they would have one airline. The carriers could then blend and reduce their facilities, aircraft, capital resources and most particularly, personnel – all while saving a lot of money.
DOT Must Approve Code Shares
The U. S. DOT gets to decide whether or not to approve an international code share agreement and must determine if the code share agreement is in the public interest. One factor that the DOT must consider is the safety of the foreign carrier. After discovering that our U.S. Department of Defense (DOD) had already required U.S. carriers to perform safety assessments of their foreign code share partners if DOD personnel, such as our soldiers, were code shared onto foreign airlines by a U.S. carrier, Congress demanded the DOT require the same safety audits for the paying public. In 1999 there were just 50 code share agreements between U.S. carriers and Asian carriers, when accident rates in Asia were four times higher than in the United States.
Code Share Audits Helped KAL Improve
The power of a code share audit can vastly improve safety. In 1996 a code share agreement with Korean Air was approved for Delta Air Lines. In the 1990s Korean Air had 11 accidents resulting in 228 passenger fatalities. In the same time period, Delta Air Lines had six accidents with two fatalities. Delta flew approximately four times more passenger miles than Korean Air, making the accident ratio even more significant. In April 1999, Delta Air Lines suspended its code share agreement with Korean Air after Korean Air had fatal crashes in Guam and China. The New York Times called Korean Air a pariah. Delta scrutinized the airline’s safety standards, demanded improvements and in 2003, it resumed their code share alliance.
Korean Air also won a lifting of the ban by the U.S. DOD which had banned any Defense Department employee from flying on the airline. Not surprisingly, the Korean Air stock more than doubled after the lifting of these code share bans. The flow of U.S. passengers onto Korean Air resumed, and so did the flow of money. If you are interested in what Delta found when they audited Korean Airlines, you can find it here, 37 pages of findings and recommendations. Look at finding number one, “No crew discussion re weather, notams [notice to airmen] or fuel decision. FO’s [first officer] and FE’s [flight engineer] say they do not want to get involved as it is the Captains decision. CRM [crew resource management] is lacking.” Look also at finding number seven, “FO does not scrutinize notams thoroughly and brief the Captains on important items.” Sound familiar? Those findings sound unfortunately very similar to what happened on Asiana Flight 214.
Dumping a Bad Code Share
I recall that China Air was also a code share partner with American Airlines from March 1997 to May 1999, but China Air had nine accidents in nine years that resulted in 471 fatalities. American had 11 accidents in the same time period, resulting in 160 fatalities, but American flew more than eight times the number of passenger revenue miles as China Air. American Airlines, again on its own initiative, cancelled the code share agreement. The U.S. DOT never suspended the code share agreement, but American chose to terminate it, possibly because it had to answer to the liability suits in court for passenger injuries on its code share partners. U.S. airlines can be held liable in court for the harm wrought on the passengers by a foreign airline onto which they code shared passengers.
Without violating any international treaties or involving the ICAO, and without at all affecting the ability and requirement of the NTSB to do its job, both the DOT and the U.S. carriers that code share with foreign airlines have the power, the ability and the incentive, to make this change.
Here Is How It Can Be Changed
Congress must direct the DOT to require foreign airline consent to drug and alcohol testing at accidents before approving a code sharing agreement. For example, since both United Airlines and US Airways code share with Asiana, the airlines should advise Asiana that their code share agreement must be amended. If they refuse, United Airlines and US Airways should inform the carrier that the DOT has made it a condition precedent to renewing the code share agreement (in 24 months or less). When a code share flight is involved in an accident in the United States they must agree that their pilots will be drug and alcohol tested by the cognizant investigative authorities, or the code share is denied. When the code share is denied, the flow of U.S. passengers stops, and when the flow of U.S. passengers stops, the money stops.
The same is true for any other carrier code sharing with a U.S. airline. Upon the evaluation of any new code share agreement or any code share agreement which is sought to be continued or renewed, the DOT should not approve the code share unless the foreign airline agrees to the drug and alcohol testing of the pilots involved in any accident in any U.S. state or territory. There are approximately 150 active code share agreements with five U.S. carriers, involving 55 countries. The FAA reviews about 75 code share audit reports a year and makes recommendations to the DOT (of which they are a division) to decide what code share agreements get approved.
How Fast Can All of This Be Accomplished?
All code share foreign carriers could be brought into compliance within two years because under the FAA code share safety program, an audit of the safety of the foreign code share airline is valid for only 24 months. Both the initial audit of the safety and the renewal audit of the safety expire at the end of 24 months and must be repeated to renew. There are nine elements in the FAA code share safety program guidelines in the continuous monitoring system on pages eight and nine of the Code Share Safety Program Guidelines. I believe that the DOT and the FAA simply need to add a another requirement – consent of the code share foreign carrier to alcohol and drug testing when there is an accident of that carrier in any U.S. state or territory.
Why Do It? Improve Our Safety
If there is still any doubt that we need to crack down on code shares, one needs only to look at the U.S. Government Accountability Office (GAO) August 2005 report on Aviation Safety: Oversight of Foreign Code-Share Safety Program Should Be Strengthened. The GAO found that from 2000 to 2004, the DOT authorized 270 code share arrangement but did not suspend any arrangements because of known safety concerns. I believe approving 270 out of 270 code share agreements, and suspending none because they failed to find any known safety concerns, means that the DOT, including the FAA, is not doing its job. The GAO found that some U.S. airlines occasionally decided not to pursue code share arrangements with foreign carriers because they thought the FAA might object and they worried that sometimes the FAA puts reviews of code share arrangements on hold if the FAA has any safety concerns. Fat chance of that. Even if there were any FAA safety concerns, the GAO found that the FAA failed to check that corrective action was ever taken in response to safety concerns. Sixty-eight percent of the safety inadequacies found in the safety reviews were never resolved.
It is obvious Congress needs to act and order the DOT to do its job on code share oversight. If mandated by Congress, code share loopholes can be closed in 24 months or less and pilots will no longer have less strict testing rules when they are operating Boeings than Buicks.