Final Report on Aviation Disasters Involving Citizens on Government Aircraft

FINAL REPORT

Development of Plans for Responding to Aviation Disasters Involving Civilians on Government Aircraft Table of Contents Introduction Disclosure Statement of Rights and Benefits Evaluation of Existing Laws and Regulations A Plan to Affect Improved Family Assistance Appendices Appendix A: Statement of the CT-43 families regarding the 4.2 Task Force Report Appendix B: Secretary of Defense letter (not available) Appendix C: Sample Disclosure Statement for Civilians Traveling Aboard Federal Government Aircraft Appendix D: Compensation Sources For Those Killed Or Injured Onboard Government Aircraft Appendix E: Condensed Version of December 1996 Report by Department of the Air Force and Office of Personnel Management Appendix F: Implementing the Plan Appendix G: Guidelines for Agencies REPORT PURSUANT TO RECOMMENDATION 4.2 OF THE WHITE HOUSE COMMISSION ON AVIATION SAFETY & SECURITY: DEVELOPMENT OF PLANS FOR RESPONDING TO AVIATION DISASTERS INVOLVING CIVILIANS ON GOVERNMENT AIRCRAFT Introduction This report contains information on how to better assist families following the loss of a loved one in an aviation disaster involving a government owned or operated aircraft. The aftermath of a plane crash is an extraordinarily painful time for the families of the passengers on board. The shock and sense of loss felt by families of passengers who are killed is incalculable. In a memorandum issued on September 9, 1996, President Clinton recognized that the Federal government bears responsibility for addressing the needs of these families. When the accident involves a government owned or operated aircraft, the Federal government bears a special responsibility. In its final report issued on February 12, 1997, the White House Commission on Aviation Safety and Security (the White House Commission) chaired by Vice President Al Gore, called on the United States Department of Transportation (DOT) to coordinate the development of plans for responding to accidents involving civilians injured or killed while traveling on government aircraft. The White House Commission recognized that families of those who gave their lives serving their country are entitled to receive assistance at least comparable to that provided to families of passengers killed in accidents involving commercial aircraft. Recommendation 4.2 in the White House Commission's report states as follows: "The families of civilians killed while traveling on government aircraft face the same traumas and challenges as those whose loved ones were killed on commercial flights. However, the response to such disasters is covered under different laws and procedures. Those differences, and a clear statement regarding their rights and benefits in the event of an aviation disaster, should be provided to passengers on government aircraft prior to boarding. The Commission believes that it is essential that those families receive assistance comparable to that provided after commercial disasters through the enhanced role of the NTSB. The Commission urges the DOT to work with NTSB, DOD, and other agencies and family members to develop plans to accomplish that goal by September 1997 and to evaluate the need to revise existing laws and regulations governing the rights and benefits of civilians on government aircraft." This report is the product of an intergovernmental working group consisting of representatives of ten departments (Department of Agriculture (USDA), Department of Commerce (DOC), Department of Defense (DOD), Department of Health & Human Services (HHS), Department of Interior (DOI), Department of Justice (DOJ), Department of Labor (DOL), Department of State (DOS), Department of Transportation (DOT), and Department of Treasury) and four other Federal agencies (Federal Emergency Management Agency (FEMA), General Services Administration (GSA), National Transportation Safety Board (NTSB), and the Office of Personnel Management (OPM)), referred to hereafter as "the working group." The working group's efforts were coordinated by the Office of the Secretary of Transportation. The members were experts from the personnel benefits, travel, emergency mental health services, family assistance, tort and general law, and aircraft operations fields. Over thirty agency and departmental representatives took part. The members were organized into smaller, more focused subgroups that met regularly for five months. Family members of the victims of the CT-43 crash in Dubrovnik, Croatia, in April 1996 were welcomed participants in the development of this report. The aftermath of that crash -- which took the lives of 35 people, military and civilians, private citizens and Federal employees -- provided the working group with valuable lessons about what the government can do to assist families who are coping with the shock and grief that accompanies the loss of a loved one. Family members were invited to meet the working group at the inaugural September meeting, where several of them gave moving verbal and written statements of their experiences. Some families also attended other working group sessions to comment on issues and enter into dialogue with the various smaller teams. While most of this report represents the consensus of the working group, not all parties are in agreement with all of the findings or recommendations. In particular, the CT-43 families have submitted specific comments to this final report (Appendix A). The DOC, which sponsored the Croatia trade mission, and the DOD, which provided the aircraft and crew, have been involved with the CT-43 families since the day of the accident. The departments performed under extreme pressures and with no precedent to guide them. They have a unique perspective and have gathered a body of knowledge on how to provide a response to families. DOC has put together a "lessons learned" paper and distributed it to all departments and agencies participating in the working group. Perhaps most importantly, the working group learned that each Federal agency must commit the time and the resources now for planning how best to assist families. Without the right people providing support and assistance to the families, even the best plans could compound families' loss and grief. Accordingly, each agency should screen personnel to ensure the best people are available to work in such a situation, train them properly in advance, and prepare for the possibility of a crash rather than react only once it has happened. Much of the work is already underway concerning several of the issues contained in this report. There is a clear need for policies to catch up with the family support that has already been delivered to victims' and survivors' families in previous tragedies involving the Federal government. Many of the experiences of the CT-43 families are similar to those related by the families of passengers killed or injured in commercial aircraft disasters. The working group listened to the CT-43 families and studied the lessons learned in previous commercial air disasters. In particular, the working group relied on the Final Report of the Task Force on Assistance to Families of Aviation Disasters ("the ADFAA Task Force"), which was co-chaired by Secretary of Transportation Rodney Slater and NTSB Chairman Jim Hall. That Task Force had 22 members, including four family members and one crash survivor. In October 1997, the ADFAA Task Force issued its Final Report containing 61 recommendations to improve family assistance. That report details a helpful inventory of family members' needs and much insight on the best ways to meet these needs. While the bulk of those recommendations are directed to the airlines and are thus specific to the commercial context, many have general applicability to government air disasters as well. That report provides many useful roadmarkers to successfully guide implementation efforts. In order to avoid duplicating the work of the ADFAA Task Force, this report is focused on the specific problems that surface following government crashes. As this report was developed by an interagency group, many of the recommendations are general in form. Each of the implementing agencies will need to apply these issues within the context of its own programs and particular concerns. These family support issues can apply in a larger sense to any government mishap that results in injury or death. Agencies should give due consideration to applying these issues and practices to other accident response plans. The White House Commission asked for a plan to respond to the families of "civilians" involved in government air disasters. The following groups are "civilians" for the purpose of family support: families of Federal workers, families of private citizens, military family members and military retirees and families, who routinely are authorized to fly on military aircraft. Family members may be the next of kin or other individuals who considers themselves to be the family of the victim, such as in the case of a fiance or long-term companion of victims, as well as the victims themselves. This report concentrates on civilian Federal workers, private citizens, and their families. The DOD is leading an effort to fully define the response to families of military members and those civilians who travel on military flights, where the military service providing the aircraft has sole investigatory and lead family assistance responsibilities. The CT-43 families wanted the working group to address questions related to aviation safety with regard to government aircraft. These questions include whether government and military aircraft are required to meet the same safety standards as commercial aircraft, and whether the NTSB or another non-DOD agency should be required to investigate military air disasters. In particular, the CT-43 families strongly believe that the NTSB should lead the investigation of any aviation disaster involving civilians. The working group acknowledged the importance of these questions, but considered them to be outside the limits of time, resources, or authority of the participants. Therefore, as the White House Commission directed, this report addresses only how to better assist families following an aviation disaster. However, some in the working group consider the two issues of disparate safety standards between commercial and government/military aircraft, and the need for an outside investigatory source for military air disasters involving nonmilitary loss of life, as worthy of further study by appropriate entities. In conjunction with the issuance of this report, the Secretary of Defense sent a letter (Appendix B) to the Secretary of Transportation outlining the steps DOD has taken regarding safety standards for military aircraft, as well as DOD's policy concerning inviting other Government agencies with special expertise to participate in accident investigations, where appropriate. The White House Commission called for three deliverables: a statement of rights and benefits, an evaluation of the existing laws and regulations governing those rights and benefits, and a plan to accomplish the goal of developing and implementing the government's response to provide family assistance comparable to that provided after commercial disasters. These three items are described below, and are explained in greater detail in appendices to this report. Disclosure Statement of Rights and Benefits The White House Commission found, based in part on the testimony of the CT-43 family members, that a disclosure statement of rights, benefits, and possible consequences of boarding a government aircraft should be routinely available to passengers. At this time, there is no systematic process of notifying passengers in advance of boarding of their rights and benefits. The working group found that such notice should be given to passengers at the time of invitation, or at the issuance of the travel orders, depending on the nature of the mission and the type of passenger (private citizen or Federal employee). A sample disclosure statement of rights and benefits is attached as Appendix C. The purpose of the statement is to provide potential passengers adequate notice that traveling on government aircraft is different than traveling on commercial aircraft, and to inform the potential passenger to seek more information if the person so chooses. The OPM should produce a final version of this summarized statement for distribution. OPM also has an excellent in depth pamphlet, "Work-Related Injuries and Fatalities -- What You and Your Family Should Know About Your Benefits," Publication RI84-2. The pamphlet is clear and concise. It has updated the publication, will reissue it, and has made it available on the Internet. The pamphlet complements the statement of rights and benefits. OPM should coordinate with the GSA to issue the statement of rights and benefits to all agencies, which should establish processes to ensure that their travelers have timely notification of these rights and benefits. Evaluation of Existing Laws and Regulations The White House Commission called for an evaluation of existing laws and regulations governing the rights and benefits of civilians who travel aboard government aircraft. Two appendices related to the compensation of aircraft accident victims and their families are attached. Appendix D frames the legal issues as they arise in this context and discusses potential legislative changes should a greater range of options and benefits for accident victims be deemed desirable. Appendix E contains a synopsis of government benefits and other forms of assistance currently available to civilians injured or killed aboard government aircraft. A Plan to Affect Improved Family Assistance It is critical for the full development and implementation of all aspects of the government's response that one entity serve as the focal point while the key support departments and agencies continue to develop and revise their specific parts of the overall effort. In general, personnel management and support issues should be coordinated by OPM, with input from DOL and others it deems appropriate. GSA should take the lead on any travel changes deemed necessary or desirable, and its Interagency Committee for Aircraft Policy (ICAP) should continue its welcomed and expert assistance with regards to implementing air disaster response plans and aircraft flight planning and management issues. However, the NTSB is the one agency that victims' families recognize as an independent source of representation for them in the event of a crash. Therefore, the NTSB is the best choice to address not only all matters of air disaster response, its area of expertise, but to take the responsibility for overall coordination of family support matters. (The Working Group recognizes the significant family support expertise and statutory responsibilities residing within the DOS for accidents in a foreign country, and with the DOD for military disasters. It further recognizes DOD's special responsibility to lead the assistance effort for accidents that arise from its missions). The detailed discussion of implementation issues for these three key agencies is attached as Appendix F. The NTSB has been asked by President Clinton, in a Memorandum dated September 9, 1996, to take the lead role to coordinate the provision of Federal services to families of victims of aviation (and other transportation) disasters. The NTSB's Office of Family Affairs will serve as the executive agent to coordinate the completion and implementation of all support plans, policy initiatives, and processes necessary to assist families following nonmilitary Federal aviation disasters. While there are many existing policies, laws and regulations that encompass this response, the NTSB is best suited to lead the implementation of these recommendations to improve the response government-wide across the spectrum of personnel, travel, aircraft flight planning and management, interagency cooperation, mental health services, and the many other issues identified in this report, in the ADFAA Task Force's Final Report, and by the White House Commission. The NTSB is not authorized to investigate military or intelligence agency aircraft accidents. Their role as family liaison is built around full access to the investigation, which enables them to fully and properly apprise families of developments and coordinate family notifications and media briefings. However, they have agreed to provide technical assistance in family support if requested by DOD or other Federal agencies involved in a military or intelligence related crash. DOD began its own effort in September 1997 by launching an Interservice Task Force to study lessons learned from the CT-43 tragedy. The Secretary of Defense requested that those lessons be documented, disseminated, and acted upon by the military services. Specifically, the goals of this Task Force were to review the procedures, policies, and practices that the Services employ when dealing with tragedies involving private citizens and Federal civilian employees, and ensure that the Services have uniform and efficient procedures for addressing sensitive family support matters such as notification, counseling, and claims processing. Several representatives from DOC, DOS, DOT and DOD shared membership in both the DOD initiative and this effort, addressing mutual issues and concerns and integrating the appropriate findings of the Interservice Task Force as well. The DOD report is not yet final. Once released, its recommendations will be developed in partnership with the same key agencies and departments already engaged. Appendix G details several key family support issues for all departments and agencies involved in government air travel. The issues complement the findings of the ADFAA Task Force in its recommendations for assistance in commercial air disasters. These issues should be incorporated in departmental or agency-specific air disaster response plans to maximize effective family support actions in the event of a government air disaster. Appendix A: Statement of the CT-43 Families Regarding the 4.2 Task Force Report The CT-43 families add the following comments to the final report of the 4.2 Task Force. These comments reflect the feelings and experiences the families have shared with the Task Force, but are excluded from the final report. We advocate for a meaningful disclosure statement, safer government aircraft, an impartial and unbiased crash investigations, and the right to sue for wrongful death. Disclosure Statement The CT-43 families strongly object to the "Statement of Rights and Benefits" as presented. Recommendation 4.2 from the White House Commission on Aviation Safety and Security report states as follows: "The families of civilians killed while traveling on government aircraft face the same traumas and challenges as those whose love ones were killed on commercial flights. However, the response to such disasters is covered under different laws and procedures. Those differences, and a clear statement regarding their rights and benefits in the event of an aviation disaster, should be provided to passengers on government aircraft prior to boarding. The Commission urges the DOT to work with NTSB, DOD and other agencies and family members to develop plans to accomplish that goal by September 1997 and to evaluate the need to revise existing laws and regulations governing the rights and benefits of civilians on government aircraft." Product safety warnings appear on cigarettes, liquor, plastic bags, medicines, appliances, etc. The word WARNING is used purposefully. Original drafts by the 4.2 Task Force called this a "Disclosure Statement: and rightfully so. Despite the objections of the CT-43 families, the Task Force changed the name to "Statement of Rights and Benefits" creating a seemingly harmless, innocuous piece of employer blather instead of presenting a proper warning disclosure and clear statement of differences between commercial and government/military flight. The "Statement of Rights and Benefits" in the 4.2 Task Force report is: Vague- it does not clearly state that benefits under FECA could be as little as $10,000; Misleading- it implies that government aircraft are fully governed by the same FAA regulations as commercial aircraft when they are not; Deceptive- it leaves the impression that counseling and emotional support will be provided when in fact the CT-43 families have received no counseling for emotional support; Ambiguous- for example, the word ‘inhabitant' is not defined when the report states an ‘inhabitant' of a foreign country may be eligible to file a claim under the Foreign Claims Act; Evasive- the note at the beginning of Appendix A on page 6 (C-1) states "the information in not all-inclusive" leaving one to wonder what was not included; Inadequate- it fails to address the possible invalidation of life insurance claims on government charter flights as well as military flights; and Incomplete- ignores the reality that wrongful death suits against the US government can be and will be denied. The CT-43 families have clearly and forcefully stated that passengers should be informed that wrongful death suits will be denied by the US government. The "Statement " prepared by the 4.2 Task Force provides little, if any WARNING to those traveling aboard government aircraft and fails to provide a clear and thorough listing of passenger rights and benefits as directed in 4.2. The 4.2 Task Force "Statement" does not adequately address the differences between commercial and government flight leaving the governmental passenger with the false impression that they are the same. The CT-43 families know all too well: they are not! The "Statement" does not call attention to those differences and does not serve the rights of governmental aircraft passengers. A "Disclosure Statement" in needed which realistically defines the differences. The "Statement of Rights and Benefits" in the 4.2 Task Force report does not accomplish the mandate of 4.2 Legislative/Policy Consideration Legislative/policy considerations remain markedly biased despite our attempts to include a balanced view. The goal of the Task Force appears to be maintained of the status quo rather than offering contrasting opinions. Will a single existing law or regulation be changed as a result of this report? We firmly believe by presenting the pros and cons, our audience is given the opportunity to consider both sides of the issue and a more informed decision will be made. The CT-43 families have previously submitted language to provide balance. For the most part, it has been ignored. Our omitted opinions and ideas follow (in bullet format) regarding the legislative/policy considerations addressed in this report. Federal Employees Compensation Act (Page 11) (D-4) Elimination of the "FECA bar" would give families the option to choose a FECA settlement or file a wrongful death suit; Proposing legislation to eliminate the "FECA bar" would provide the opportunity for a dialogue on the current policy concerning worker's compensation legislation, and Congress routinely writes special interest legislation as broadly or as narrowly as it sees fit irregardless of disparate treatment. Federal Tort Claims Act (Page 12) (D-5) Legislation could be drafted to prohibit potential exposure to claims based upon foreign laws; Congress routinely writes special interest legislation as broadly or as narrowly as it sees fit irregardless of disparities in treatment; and It would provide families the election to sue for employer misconduct as currently provided by several states. Liability Information for Non-Federal Passengers (Page 13) (D-6) A clear statement of benefits, legal remedies and sources of assistance could lead to improved safety standards for those traveling on government aircraft; Legislation may be preferable as Executive orders only last for the length of that Presidency. Corporate disclaimers and disclosure statements routinely confront and overcome legal complexities in order to avoid vague, meaningless warnings; and For those traveling on government aircraft, such information would be valuable and necessary in assessing potential risks. Family Counseling Assistance (Page 14) (D-7) Providing family counseling could facilitate healing and reduce the need for long-term health care and its related costs; and Permanent legislation is preferable to Executive orders which expire at the end of each Presidency. Travel to Accident Site (Pages 15-16) (D-8 and D-9) Government policy is contrary to the more compassionate practices adopted by the commercial sector; and Permanent legislation is preferable to Executive orders which expire at the end of each Presidency. Personal Property Claims Personal property claims are not addressed in the 4.2 Report. We believe a procedure similar to that developed by the Air Disaster Family Assistance Act Task Force for commercial disasters should be adopted. Disaster Assistance Plans Under the Air Disaster Family Assistance Act (ADFAA) the US government requires commercial aircraft (both domestic and foreign) to submit disaster assistance plans, but government aircraft are not required to do the same. The rulemakers don't follow their own rules. Air Disaster Family Assistance Act The CT-43 families believe the government is remiss for its failure to include government aircraft under the ADFAA. The law was created to protect America's families. The rulemakers MUST follow their own rules. Passengers on government aircraft deserve the same rights and benefits other Americans enjoy. Membership on 4.2 Task Force The ADFAA Task Force included four voting family members and one voting crash survivor (5 voting family members). Although the White House Commission urged the DOT to work with NTSB, DOD and other agencies and family members (emphasis added), the 4.2 Task Force did not include family members as did the ADFAA Task Force. Although CT-43 family members were often welcome participants, they were excluded from some Task Force meetings and were not allowed to participate as voting members of the 4.2 Task Force. Crash Investigations Greater consideration needs to be given to the issue of crash investigations involving government aircraft. This issue is discussed on page 5 of the 4.2 Report. When transporting non-military passengers, investigations of government/military air disasters should be conducted by the NTSB or another outside agency. Would Congress, the President or the public allow TWA, Delta or any other commercial airline to: determine what equipment makes their aircraft airworthy; fly the plane crash the plane; manage the search and rescue, independently conduct and frame the investigation to determine the cause of the disaster without consideration of outside, divergent opinions; write the accident report; manipulate and control the media interaction; decide in secrecy who is responsible for causing the tragedy; determine the appropriate penalty for those liable under a justice system that is separate from civilian law (the Uniform Code of Military Justice) and closed to the public; administer the punishment; control and limit access to information via classification and complex FOIA regulations; and remain impervious to the pressure of public opinion. Too permissive, you say! Not enough oversight, you conclude! A commercial airline would never be given this carte blanche! Yet, that is precisely how the military functioned in the crash of the CT-43. Under these circumstances, can we trust the results to be unbiased, impartial, factual and honest? Given this framework, it is easy to understand why the families of the CT-43 crash question the validity, thoroughness, and accuracy of the 7,000 page report prepared by the Air Force, and would like an independent, unbiased third party to reexamine the CT-43 crash and search for answers and explanation to the countless unanswered questions posed by family members. The present system used by the government/military must to be changed if their investigation results are to be considered valid and trustworthy. Military families have also detected flawed, inadequate DOD investigations. All too often these investigations are cloaked in secrecy; mask the truth; deny families access to information; and lack openness and honesty. It is obvious to the CT-43 families that the present investigative system is glaringly flawed and procedures must be dramatically changed if the the government is to maintain its integrity. Acknowledgment The families of the CT-43 crash wish to recognize and acknowledge the members of the 4.2 Task Force for their work on our behalf. We know work schedules were interrupted, unique situations called for non-routine considerations and deadlines added stress to work loads. We trust having heard our thoughts and ideas regarding the impact current laws, regulations and procedures have had on our lives since the death of our loved ones has heightened your consciousness of not only the frailty of life but also the need for fairness and equity for all citizens... even those on government aircraft whether federal employee, public-spirited volunteer, or invited guest aiding or reporting on the mission. Thank you for giving the CT-43 families the opportunity to express our heart-felt, yet practical thoughts regarding the government's response to their own air disasters. In Memorium Our efforts to change the laws, regulations and procedures are done in memory of those who lost their lives in Dubrovnik, Croatia on April 3, 1996. They died when the Air Force CT-43 in which they were traveling crashed. There were no survivors. The names of our loved ones appear below. Gerald Aldrich Kathryn Kellogg Niska Antonini Shelly Kelly Dragica Bebek James Lewek Ronald Brown Frank Maier Duane Christian Charles Meissner Barry Conrad William Morton Paul Cushman Walter Murphy Adam Darling Nathaniel Nash Ashley Davis Lawrence Payne Gail Dobert Leonard Pieroni Robert Donovan John Scoville Claudio Elia Timothy Shafer Robert Farrington Donald Terner David Ford P. Stuart Tholan Carol Hamilton Cheryl Turnage Kathryn Hoffman Naomi Warbasse Lee Jackson Robert Whittaker Stephen Kaminski Note: The letters and numbers in parentheses refer to the printed copy of the report. If you would like a printed copy of the report, contact George Kuehn, U.S. Department of Transportation, at 202-366-1614. Appendix C: DISCLOSURE FOR CIVILIANS TRAVELING ABOARD FEDERAL GOVERNMENT AIRCRAFT NOTE: The disclosure contained herein is not all-inclusive. You should contact your agency's personnel office, or if you are a private citizen, your agency sponsor or point-of-contact for further assistance. To all passengers traveling aboard government a