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U.S.
Department of Transportation Office of the Secretary of Transportation |
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U.S.
Department of Transportation Office of the Secretary of Transportation |
Foreign Air Carrier Family
Support Act of 1997
Questions and Answers
1. If a foreign airline does not hold any economic authority from the Department to serve the United States, but does overfly the United States, and/or make nontraffic (technical) stops (including crew exchanges), is it required to file a plan?
No, it need not file a plan, since it is not a foreign air carrier providing foreign air transportation within the meaning of 49 U.S.C. 41313.
2. If a foreign air carrier holds Department authority to conduct only all-cargo operations, is it required to file a plan?
Yes, it must file a plan. 49 U.S.C. 41313 applies to all foreign air carriers, without distinction as to the type of service being conducted by the carrier. Further, 49 U.S.C. §41313(a)(2) defines "passenger" to "include an employee of a foreign air carrier or air carrier aboard an aircraft." Thus, for example, crewmembers of a foreign air carrier cargo operator are covered under the Act.
3. If a foreign air carrier holds Department authority to conduct U.S. operations but is not currently using that authority, is it required to file a plan? Can it instead file a statement that it will file a plan before conducting any future U.S. operations?
It must file a plan. The Act requires the filing of a plan by all foreign air carriers holding effective Department authority to conduct operations to or from the United States using large aircraft under their control. While a particular foreign air carrier holding effective Department operating authority may have elected not to exercise that authority, it could commence, or re-commence, U.S. operations at its discretion. Accordingly, the provisions of 49 U.S.C. 41313 apply to such a carrier and require it to file a plan by the June 15, 1998 deadline. The filing by such a carrier of a statement that it will file a plan if it decides to conduct U.S. operations is not sufficient.
4. In a code-share situation, which carrier is responsible for filing and implementing a plan?
The carrier physically operating the aircraft in a code-share situation is the entity which must file and implement the plan, since 49 U.S.C. §41313(b) requires a foreign air carrier to submit a plan to cover accidents which "involve an aircraft under the control of the foreign air carrier..." (emphasis added). (Note that if the non-operating carrier also holds effective Department authority to conduct U.S. operations using large aircraft under its control, both carriers are responsible for filing plans.) We would stress that code-share partners should plan for the coordination of their activities in the event of an accident on a code-share flight. While we would look to the carrier operating the aircraft to implement its plan in the event of an accident, we would also expect the non-operating code-share partner to be prepared to be actively involved in the implementation, to the extent that the partner is in possession of passenger identity or other information critical to the successful implementation of the plan.
5. If a foreign air carrier holds Department authority only to conduct operations wholly outside the United States, under code-share arrangements with U.S. air carriers, is it required to file a plan?
No, it need not file a plan. 49 U.S.C. §41313(a)(1) defines "aircraft accident" as an aviation disaster that occurs within the United States. Since a foreign air carrier only authorized to operate wholly outside the United States cannot have such an accident with its aircraft, no filing is necessary. However, as noted in (4) above, we would expect such a carrier to assist in the implementation of its code-share partner’s plan in the event of an accident, to the extent that the carrier is in possession of passenger identity or other information critical to the successful implementation of its partner’s plan.
6. If a foreign air carrier holds Department authority to conduct U.S. operations, does not currently conduct operations to or from the United States, but does conduct a code-share outside the United States on behalf of a U.S. or foreign air carrier, is it required to file a plan?
Yes, it must file a plan, for the reasons set forth in (3) above.
7. If a foreign air carrier holds Department authority to conduct U.S. operations without limitation as to aircraft size, but in fact operates only small aircraft, is it required to file a plan, given the Department’s action in Order 98-1-31 to exempt small-aircraft operators from the requirement to file a plan? If so, would the Department consider exempting these foreign air carriers from the requirement to file?
A foreign air carrier in this situation is required to file a plan. While the Department, by Order 98-1-31, exempted from the requirement to file a plan those foreign air carriers that hold Department authority to conduct only operations with small aircraft, that order explicitly stated that "a foreign air carrier authorized to conduct U.S. operations using large and small aircraft (i.e., without limitation as to aircraft size), and that elects to conduct those operations using only small aircraft, is not relieved from the requirement to file a plan." While we would not consider exempting these foreign air carriers from the requirement to file, we would be prepared to entertain requests from such carriers to amend their operating authority to limit their operations to those involving small aircraft only, so that the exemption granted by Order 98-1-31 would apply, and no plan would need to be filed.
8. If a foreign air carrier holds Department authority to operate only small aircraft (and is therefore exempted from the requirement to file a plan under the provisions of Order 98-1-31), but operates wet-lease or code-share services on behalf of a foreign air carrier which is not exempt, would the otherwise-exempted foreign air carrier be required to file a plan or become a party to the non-exempt carrier’s plan?
No, the carrier would not need to file a plan. However, as noted in (4) above, we would expect the exempted small aircraft operator to be prepared for the coordination of its activities with its wet-lease or code-share partner in the event of an accident, to the extent that it is in possession of passenger identity or other information critical to the successful implementation of its partner’s plan.
9. If a foreign air carrier is wet-leasing aircraft to another foreign air carrier, which carrier is responsible for filing and implementing a plan?
As in the case of a code-share (see (4) above), the foreign air carrier physically operating the aircraft (i.e., the lessor) is the entity which must file and implement the plan. However, we would expect the wet-lessee to be prepared for the coordination of its activities with its wet-lessor in the event of an accident, to the extent that it is in possession of passenger identity or other information critical to the successful implementation of its lessor’s plan.
10. Is a foreign air carrier from a country with a Category III rating under the FAA’s International Aviation Safety Assessment program, and which must conduct U.S. operations using aircraft wet-leased from other carriers, required to file a plan?
No, it need not file a plan, for the reasons stated in (9) above.
11. Does the plan filed with the Department and NTSB need to be in English?
The plan filed with the Department and NTSB must be in English. However, a foreign air carrier may, at its option, file a summary of its plan, in English, so long as the summary contains all the information and assurances required by 49 U.S.C. 41313. A foreign air carrier does not need to submit an English translation of its entire internal document covering the implementation of its plan. The Department and NTSB reserve the right to request supplementary information from a foreign air carrier in the event that an English-language summary the carrier has filed does not contain sufficient information to verify compliance with the requirements of 49 U.S.C. 41313.
12. If a foreign air carrier has an ownership affiliation with other foreign air carriers, must each of the carriers file a plan, or can there be one "master" plan for the group?
Each foreign air carrier must file a plan with the Department and NTSB. Affiliated carriers may work together to devise a common plan to be filed and used by all, but in the event of an accident, the carrier operating the flight has the sole responsibility for the implementation of its plan.
13. Is a foreign air carrier required to use the services of the American Red Cross to ensure that families of passengers receive an appropriate level of services and assistance after an accident, or can it provide such services itself or through a contractor?
Questions regarding the required use of the services of the Red Cross are, with one exception, tied to 49 U.S.C. §1136(a)(2), which provides for the NTSB to designate, as soon as possible after each accident, an independent nonprofit organization, with experience in disasters and posttrauma communication with families, to have primary responsibility for coordinating care and support of families of victims. That organization is expected in all cases to be the Red Cross. Thus, there are requirements in the Foreign Air Carrier Family Support Act that require foreign air carriers to (1) provide the Red Cross (or other organization named under section 1136(a)(2)) information (passenger lists; see §41313(c)(4)(B)), (2) work with the Red Cross to ensure victims’ families receive an appropriate level of services (§41313(c)(10)), and (3) provide the Red Cross reasonable compensation for its services and assistance (§41313(c)(11)). The one exception concerns notification of families of passengers involved in an aircraft accident, in that 49 U.S.C. §41313(c)(2)(B) permits the use of either the Red Cross (or other organization designated under section 1136(a)(2)) or "other suitably trained individuals." The latter individuals could be persons provided by a company under contract with the foreign air carrier. Indeed, in connection with the Aviation Disaster Family Assistance Act, which requires U.S. carriers to develop and submit to the Department and the NTSB plans to address the needs of families of victims of aviation disasters, a Task Force on Assistance to Families of Aviation Disasters made up of representatives of government agencies, air carriers, and families of victims of air disasters recommended that all air carriers that cannot or will not be able to provide the services required under the Act consider making arrangements with third-party contractors to meet their obligations under that Act. We urge all foreign carriers as well to evaluate their respective abilities to meet their legal obligations.
14. After enactment of the Aviation Disaster Family Assistance Act of 1996, the Department’s General Counsel sent a letter to U.S. air carriers that referred to the need for the carrier’s plan to cover families of third-party victims, including persons on the ground. Does that requirement apply to foreign air carriers under the Foreign Air Carrier Family Support Act as well?
The Aviation Disaster Family Assistance Act placed in 49 U.S.C. §41113(b)(9) a requirement that the treatment by certificated carriers of the families of "nonrevenue passengers (and any other victim of the accident)" be the same as the treatment of families of revenue passengers. The Foreign Air Carrier Family Support Act did not include in the corresponding language in 49 U.S.C. §41313(c)(9) the phrase "or any other victim of the accident." While the Foreign Air Carrier Family Support Act thus technically does not apply to the treatment of third-party victims, including persons on the ground, we strongly urge foreign air carriers to incorporate coverage for third-party victims in their plans.
May, 1998
To
the Task Force on Assistance to Families of Aviation Disasters
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