All posts by Evelyn Sahr


U.S. Customs and Border Protection plans to adopt facial recognition technology starting next month at airports across the country. The service will be offered beginning at John F. Kennedy International Airport following a successful trial run at Washington Dulles International Airport. The program, known officially as the 1-to-1 Facial Comparison Project, will specifically be used to confirm the identity of travelers carrying electronic passports embedded with computer chips containing a digital picture of the passport holder. The system works by comparing the digitally-stored picture in the passport with one taken immediately upon presentation of the traveler to customs and border protection for entry into the United States. The technology then rates the match comparison between the two photos on a 0 to 100 scale. Although CBP officials claim that such additional biometric capability will protect legitimate travelers from issues related to identify theft and fraud, civil liberty activists have opposed the program as an overly-invasive surveillance method with the potential for widespread abuse.

If you have any questions, please contact Evelyn Sahr (, 202-659-6622), Drew Derco (, 202-659-6665), or Reese Davidson (, 202-659-6633).


On January 21, 2016, U.S. Customs and Border Protection began implementation of changes to its Visa Waiver Program (VWP) as established under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (114th Congress, 1st Session, H.R. 158, Dec. 9, 2015) (the “Act”).

The Act — which was originally passed in December 2015 — specifically allows U.S. customs officials to more closely screen travelers from 38 countries included within the purview of the VWP — including several European nations — whose citizens are allowed to travel to the U.S. without first obtaining a visa. It specifically excludes nationals of countries otherwise subject to the VWP who have travelled to, or been present in, Iran, Iraq, Sudan, or Syria on or after March 11, 2011 from VWP eligibility, with exceptions granted to individuals serving a VWP country travelling for diplomatic or military purposes. Dual nationals of both a VWP country as well as Iran, Iraq, Sudan, and Syria will similarly be excluded from participation in the VWP— although such individuals will still be able to apply for a visa using the regular immigration process. Such travelers will also be allowed to apply for a U.S. visa for urgent business, medical, or humanitarian travel to the United States via U.S. embassies and consulates on an emergent basis.

Implementation of the new program also requires travelers with current valid Electronic System for Travel Authorizations (ETSAs) previously indicating dual nationality of both a VWP country and Iran, Iraq, Sudan, or Syria on their ETSA applications to have their ETSA status revoked.

However, despite imposition of new VWP requirements, such restrictions may be waived by the Secretary of Homeland Security if determined to be in the interests of U.S. law enforcement or national security interests, as established on a case-by-case basis under generalized waiver requirements under the Act. Such waivers include: (1) individuals who traveled to Iran, Iraq, Sudan, or Syria on behalf on international organizations, regional organization, and sub-national governments on official duty; (2) individuals travelling on behalf of a humanitarian NGO on official duty; (3) journalists travelling for reporting purposes; (4) individuals travelling for business-related purposes following the U.S./Iraq Joint Comprehensive Plan of Action reached as of July 14, 2015; and (5) others travelling for other legitimate business-related purposes.

Such changes to the VWP have generally been supported by members of the U.S. travel industry and compliment security-tightening actions taken by the White House last November after terrorist attacks in Paris, France claimed 130 lives. An updated ETSA application with additional questions addressing exceptions for diplomatic and military-related travel is expected to be released in February 2016.

If you have any questions, please contact Evelyn Sahr (, 202-659-6622), Drew Derco (, 202-659-6665), or Reese Davidson (, 202-659-6633).


DOT has announced that it is exploring the feasibility of utilizing a negotiated rulemaking process to address future legal accommodations for air travelers with disabilities. Issues to be addressed include (1) access to inflight entertainment and supplemental medical oxygen; (2) the definition and accommodation of service animals on flights; (3) accessibility of lavatories on single-aisle aircraft; (4) seating accommodations; and (5) carrier reporting of disability service requests.

Following the announcement, more than 50 public comments were submitted to DOT, including several members of the aviation industry. Although consideration of the negotiated rulemaking process was generally supported, certain entities, such as the Airline Experience Association, specifically opposed the negotiated rulemaking process for the consideration of issues such as In-Flight entertainment for disabled passengers, due to its reliance on complex technology involving hardware and software content currently outside of the jurisdiction of the Department of Transportation. Additionally, the Los Angeles Airports Association protested the definition of service animals as established in the Air Carrier Access Act (ACAA) as too broad, thus opening the door for potential abuse.

Airlines 4 America requested that if the negotiated rulemaking process is to be convened, that the Department of Transportation publically provide all information required by the ACAA, including how moving forward with the process was determined to be in the public interest. Airlines 4 America also requested access to specific information used by the Department of Transportation to support its belief that a reasonable likelihood exists that consensus on all issues could be reached.

Similarly, Delta Airlines raised concerns for the Department’s ability to reach consensus for issues including the provision of inflight medical oxygen, inflight entertainment, accessible lavatories on single-aisle aircraft, disability assistance request time monitoring and seating accommodations. However, Delta did believe that the definition and accommodation of service animals would be amenable to the negotiated rulemaking process.

The International Air Transport Association agreed with Delta’s positions, although it added an additional request for the Department to consider potential abuses of current requirements to provide passengers with wheelchairs as a sixth issue as part of the Negotiated Rulemaking process.

We will continue to keep you updated on the negotiated rulemaking process. If you are interested in submitting a comment, or have concerns regarding the above, please let us know.

If you have any questions, please contact Evelyn Sahr (, 202-659-6622), Drew Derco (, 202-659-6665), or Reese Davidson (, 202-659-6633).


The Office of Foreign Assets Control has announced changes this week amending regulations restricting exports and facilitating authorized travel between Cuba and the United States. Changes include allowing entry of U.S. and foreign air carriers into Cuba in the form of code sharing and leasing arrangements to facilitate the provision of carrier services between Cuba and the U.S., including entry into such arrangements directly with Cuban airlines. The agreement also allows for the removal of restrictions on payment and financing terms for authorized imports and exports except agricultural commodities and U.S. depository institutions, which will be allowed to provide Cuban financing. The United States will also be allowed to export and re-export other commodities, including software, telecom items and certain agricultural items. Restrictions on travel for professional meetings and public performances have been eased as well, although travel for tourist activities continues to be prohibited. This announcement follows actions by the U.S. State Department last month that allowed Cuba and the United States to reach a new bilateral air services agreement for air services after three days of technical talks on civil aviation held in Washington D.C. Immediately following the announcement, American Airlines, which has operated charter service to Cuba since 1991, announced plans to submit a U.S. – Cuba service proposal to the U.S. DOT to begin scheduled service from Miami International Airport and its other service hubs as early as next year. United Airlines, as well as JetBlue Airways, Southwest Airlines and Spirit Airlines have also expressed interest in flying to Cuba as soon as all regulatory requirements are fulfilled.

If you have any questions, please contact Evelyn Sahr (, 202-659-6622), Drew Derco (, 202-659-6665), or Reese Davidson (, 202-659-6633).

REMINDER: Part 382 Annual Disability Reports due on January 25, 2016

Pursuant to 14 C.F.R. Part 382, covered U.S. and foreign air carriers that conduct passenger service to, from, or within the United States must record and categorize disability-related complaints they receive during each calendar year.  At the end of the year, carriers are required to submit an annual report of the complaints they received to the Department’s Aviation Consumer Protection Division on or before the last Monday in January.  This year’s report, covering calendar year 2015, is due on January 25, 2016.

The report must be submitted by the carrier’s authorized representative electronically at Please note, carriers that did not receive any written disability-related complaints in calendar year 2015 are still required to file a report showing no complaints.  Penalties for non-compliance can be severe (up to $27,500 per day per violation) and the Aviation Enforcement Office has taken action against a number of carriers in the past for failing to comply with these requirements.

If you have any questions, or need assistance with filing your carrier’s report, please contact either Evelyn Sahr at (202-659-6622) or Drew Derco at (202-659-6665).


Under new Federal Aviation Administration (FAA) UAS regulations, persons who operate UAS weighing more than 0.55 pounds (250 grams) and less than 55 pounds (approx. 25 kilograms) for hobby and recreational purposes must register with FAA using either a paper application or web-based application.  The rule does not cover operators who either fly or plan to fly UAS in connection with a commercial activity and is limited to those persons who operate UAS as “model aircraft.”  The rule requires any owner of a small UAS who has previously operated an unmanned aircraft exclusively as a model aircraft prior to December 21, 2015 to register no later than February 19, 2016 while owners of any other UAS purchased for use as a model aircraft after December 21, 2015 must register before the first flight outdoors.  Upon submission of their name, home address, and email, UAS registrants will receive a Certificate of Aircraft Registration/Proof of Ownership and unique identification number that is valid for three years and may be used in connection with each of the registrant’s UAS.  FAA is waiving the $5.00 registration fee from Dec. 21, 2015 to Jan 20, 2016 to encourage model aircraft/UAS operators to register with the agency.  According to FAA’s press release, an online registration system to support registration of UAS used for commercial purposes will be launched by spring of 2016.

If you have any questions, please contact Evelyn Sahr (, 202-659-6622), Drew Derco (, 202-659-6665), or Reese Davidson (, 202-659-6633).


The U.S. Department of Transportation has announced the hiring of a neutral convenor, Richard Parker of the University of Connecticut School of Law, to evaluate a negotiated rulemaking that would develop additional requirements to ensure that passengers with disabilities enjoy equal access in the air transportation system.  The additional requirements might include issues that the Department deferred final action on in its 2008 final rule and also account for developments since 2008.  The Department specifically noted several areas that the negotiated rulemaking will consider including:

  • Ensuring that in-flight entertainment is accessible to passengers with disabilities
  • Increasing access for passengers dependent on in-flight medical oxygen
  • Clarifying the definition of a service animal
  • Ensuring that passengers wishing to travel with pets cannot falsely claim that they are service animals
  • Evaluating whether premium economy is a different class of service for disability rule purposes

Under a negotiated rulemaking, a neutral convenor assists an agency to determine the scope of issues appropriate for a rulemaking process.  If the Department decides to proceed, it then invites interested parties likely to be affected to work with the agency on an advisory committee to help form a consensus on the appropriate rule.  The Department noted that interested parties might include advocacy groups and organizations, airlines, airports, manufacturers, service animal training organizations and more.  If consensus is reached, the Department can then issue a proposed rule for public comment under routine rulemaking procedures.

If you have any questions, please contact Evelyn Sahr (, 202-659-6622), Drew Derco (, 202-659-6665), or Reese Davidson (, 202-659-6633).


On December 18, the U.S. House of Representatives passed the Visa Waiver Program Improvement and Terrorist Travel Prevention Act when it passed its fiscal year 2016 Omnibus Appropriations Bill. The appropriations bill was later signed into law by President Obama. The Terrorist Travel Prevention legislation includes wide-ranging reforms of the Visa Waiver Program intended to prevent persons with ties to countries that support terrorism from gaining entry to the U.S. as citizens of countries participating in the Visa Waiver Program.  (Residents of participating countries are permitted to enter the U.S. without first obtaining a Visa.)

The most prominent provision of the Act prohibits citizens of Syria, Iraq, Iran, or Sudan, or travelers who have visited these countries within the last four years, from entering the U.S. under the terms of the waiver program.  While the Department of Homeland Security has expressed some concern over its ability to enforce this particular travel restriction, carriers providing transportation to the U.S. should assume that the restrictions will become effective as proposed.  In addition to the restrictions discussed above, the bill includes a number of additional modifications to the VWP, such as:

  • Starting April 1, 2016, persons traveling under the VWP must present electronic passports that comply with international standards, are machine readable, and include biometric information on the passenger.
  • No later than 270 days after the bill becomes law, participating countries must certify that they are consulting Interpol databases and information sources to screen each non-citizen entering or exiting their country for “unlawful activities” and that they are sharing any relevant information collected with the U.S.; countries that do not comply with the screening and sharing requirements may be lose their designation as a VWP participant.
  • The bill mandates that the Secretary of the Department of Homeland Security, Secretary of State, and National Security Director determine within 60 days of the bill becoming law (i.e., after the bill is signed by President Obama) whether any other countries constitute “areas of concern” based on their support for terrorism and/or policy of harboring terrorists.
  • Within 60 days of the bill becoming law, the Secretary of Homeland Security shall submit a report to Congress evaluating each VWP participant country’s potential terrorist threat to the U.S. and whether any participant country presents a “high risk” of terrorism to the U.S. and should be prohibited from participating in the VWP.
  • The bill further requires that the Secretary of Homeland Security submit a report to Congress within 90 days of the bill becoming law on each VWP participant country’s compliance with the program’s requirements and the potential threat to U.S. security each country’s participation in the program may or may not represent.

If you have any questions, please contact Evelyn Sahr (, 202-659-6622), Drew Derco (, 202-659-6665), or Reese Davidson (, 202-659-6633).


  • $68,000 against Unical Aviation Inc. for allegedly violating Hazardous Materials Regulations.  The FAA alleges that on July 21, 2015, Unical knowingly offered undeclared hazardous material shipments to FedEx for transport by air.  The shipments contained Protective Breathing Equipment Units, which contain an oxygen generator chemical.  The chemical can cause or enhance combustion of other materials.  The FAA further alleged that in addition to failing to declare the hazardous materials being transported, the company also failed to properly class, describe, package, mark, and label the shipments as containing hazardous materials, and did not provide emergency response information with the shipments.
  • $200,000 against Detroit’s Wayne County Airport Authority (WCAA) for allegedly failing to maintain safe airfield conditions during a November 2014 storm.  The FAA alleged that WCAA, which operates Detroit Metro-Wayne County International Airport (DTW), did not follow the FAA-mandated Snow and Ice Control Plan (SICP) during the November storm and allowed various DTW airfield surfaces to become unsafe.  WCAA also did not limit air carrier operations to safe portions of the airfield.  The FAA further alleged that WCAA did not notify airlines of changing runway conditions, failed to activate the DTW “snow desk”, and did not conduct frequent runway inspections during the storm.
  • $240,000 against Helicopter Transport Services for allegedly operating a helicopter not in compliance with Federal Aviation Regulations.  The FAA alleged that on October 8, 2012, Helicopter Transport Services installed an unauthorized gearbox in a Sikorsky S61R10 and operated the helicopter 37 times when it was not in airworthy condition.
  • $509,180 against Martinaire Aviation LLC, for allegedly violating Hazardous Materials Regulations.  The FAA alleged the cargo carrier failed to comply with Notification to Pilot-In-Command (NOPIC) requirements for carrying hazardous materials onboard an aircraft.  The purpose of NOPIC is to “provide pilots and emergency responders with complete information about hazardous materials on aircraft for emergency response purposes.”  The FAA alleged that the company did not comply with NOPIC on board its aircraft for 43 flights between October and December 2013.  The cargo on those flights included toxic, corrosive and flammable materials as well as ammunition.

If you have any questions, please contact Evelyn Sahr (, 202-659-6622), Drew Derco (, 202-659-6665), or Reese Davidson (, 202-659-6633).


In sharp contrast to DOT’s protracted rulemaking on small unmanned aircraft systems (“SUAS”), FAA’s task force on UAS registration issues, formed in late October 2015 in response to an alleged and highly-publicized increase in unsafe UAS operations, issued a set of recommendations on November 21.  The task force solicited public comments on the registration of small unmanned aircraft systems (“SUAS”) and took it into account and the participants – who represented UAS manufacturers, model aircraft operators, sUAS interest groups, retail companies seeking to operate sUAS for commercial purposes, general aviation, and the airline industry – met for three days before coming to a consensus recommendation.

According to the recommendations, “the Task Force undertook the task to develop and recommend a registration process that ensures accountability for users of the NAS and encourages a maximum level of compliance with the registration requirement, while not unduly burdening the nascent UAS industry and its enthusiastic owners and users of all ages.”  And while FAA’s October 22 notice and request for comments clarified that the statutory requirements regarding aircraft registration of UAS apply to aircraft used for recreational or hobby purposes, the final recommendations acknowledge that the task force lacked time to assess the impact of a registration requirement on the recreational operation of model aircraft.

The Task Force’s recommendations are non-binding.  FAA’s eventual registration requirements may differ in one or more important respects from those suggested by the Task Force, although nothing in the recommendations indicates that FAA is opposed to any of the suggested approaches; if changes are eventually made, it is likely they will address the scope of the registration requirement and the recommendation that all sUAS weighing more than 250 grams – which would include a variety of so-called “toy sUAS” – be subject to a registration obligation.

If you have any questions, please contact Evelyn Sahr (, 202-659-6622), Drew Derco (, 202-659-6665), or Reese Davidson (, 202-659-6633).