Category Archives: Uncategorized


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).


Days after the five low-cost carriers sent the above letter complaining about the lack of slot access at New York City airports, the U.S. Department of Justice (DOJ) filed a lawsuit seeking to block a slot-swap agreement between Delta and United.  DOJ claimed that the deal, which would involve United acquiring 24 slots from Delta at EWR, would further contribute to United’s dominant position at the airport and lead to higher airfares and fewer choices for the 35 million passenger a year who use EWR.  DOJ also alleged that United does not use as many as 82 slots a day that could otherwise be used by competitors.  DOJ chose not to challenge a related deal that involves Delta acquiring a similar number of slot pairs from United at JFK; DOJ noted a different competitive environment at JFK to explain its enforcement posture.

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


Representatives of five low-cost carriers (Alaska, Allegiant, Frontier, Spirit and Virgin America) wrote a letter to the U.S. Department of Transportation on November 3rd urging the Department to reform the slot allocation process at slot-restricted airports around New York City.  The Department recently sought public comment on a Notice of Proposed Rulemaking (NPRM) that would alter the slot allocation procedures at JFK, LGA and EWR airports.  The letter from the five carriers urged the Department to implement the rule in order to maximize opportunities for new-carrier entry.  They noted that New York City is the largest and most important travel market in the country and that each of the carriers had been unsuccessful in obtaining slots to expand service at those airports.  Specifically, the five carriers urged the Department to: tighten the slot utilization rule, allocate unused slots to new entrants, establish a robust secondary market for slots, review slot transactions for anti-competitive effects, allocate slots via statutory exemption and evaluate proposals for a minimum average seat requirement.

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

Visa Waiver Program Update in Light of Paris Attacks

In the wake of last month’s terrorist attacks in Paris, which were conducted by citizens of countries that currently participate in the Visa Waiver Program, the White House has announced steps it will take to ensure terrorists from Visa Waiver Program countries are not able to enter the U.S.  While some of the proposed changes may impact the procedures foreign carriers currently implement when transporting passengers from Visa Waiver countries, the new measures have been characterized as “limited.”  More sweeping changes are possible over the course of the coming year, but will require Congressional legislation.

The following changes are likely to be implemented in the near term:

  • ​Visa Waiver partner countries will be asked to issue “e-passports” that would include greater detail on the holder’s travel history;
  • The White House plans to expand the use of the “pre-clearance program” in foreign airports in order to allow U.S. border officials to collect and screen biometric information before visa waiver travelers can board aircraft to the United States.
  • DHS will immediately take steps to modify its Electronic System for Travel Authorization (ESTA) applications to capture information from VWP travelers regarding any past travel to countries constituting a terrorist safe haven.
  • The Department of Homeland Security is planning to seek authority to increase the penalty assessed against carriers that fail to verify passenger passport information from $5,000 to $50,000.
  • The Secretaries of DHS, State, and Commerce will promote the Global Entry program among VWP partners to further expand this trusted traveler program, which includes the use of biometrics.​

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

New DOT Enforcement Policy on Damage to Baggage

On November 25, DOT’s Office of Aviation Enforcement and Proceedings issued a notice reminding U.S. and foreign carriers of their obligation to compensate passengers under DOT’s regulations and, in the case of international transportation, the Montreal Convention, for damage claims relating to luggage components such as wheels, straps, zippers, handles and protruding parts. According to DOT, a recent investigation revealed that U.S. and foreign carriers operating at 16 U.S. airports routinely refused to compensate passengers for damage claims involving specific parts of checked baggage, such as wheels, straps, zippers, handles, and protruding parts.  DOT further alleges that certain carriers have posted notices disclaiming liability for damage to luggage components and have discouraged agents from accepting reports of damage to baggage.

Under DOT’s regulations governing damage to baggage transported on U.S. domestic flights, carriers may not impose arbitrary limits on their liability “for provable direct or consequential damages resulting from the disappearance of, or damage to, or delay in delivery of a passenger’s personal property, including baggage, in its custody to an amount less than $3,500 for each passenger” (14 CFR 254.4).  For international flights governed by the Montreal Convention, carriers are liable for damaged or lost baggage if “the destruction, loss or damage” occurred while the checked baggage was within the custody of the carrier and, according to DOT, the Convention also prohibits lower limits on reimbursement for damage to baggage components.

In sum, DOT’s position is that its own regulations governing damage to bags in domestic transportation together with the Montreal Convention’s provisions on damage to baggage during international transportationeach prohibit carriers from refusing to compensate passengers when specific components of a traveler’s luggage are damaged but the passenger’s luggage has neither been lost or destroyed in its entirety.

In addition, DOT announced a new enforcement policy in the November 25 notice intended to address the alleged reluctance of U.S. and foreign carriers to fully compensate passengers for damaged luggage.  Specifically, beginning January 9, 2016, DOT will treat any refusal by a carrier to accept a baggage damage claim as an unfair and deceptive trade practice violating 49 U.S.C. § 41712.  Furthermore, DOT is placing carriers on notice that they must remove or modify any signage purporting to limit liability for damage to baggage wheels, straps, handles, and protruding parts by January 9.

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


The DOJ has issued a memorandum (the Yates memorandum) announcing its intention to target individuals for corporate misconduct.  The memo with the new rules was issued to prosecutors across the country and states that fighting corporate fraud and other misconduct is a top priority for the DOJ.  In order to carry out its mission, DOJ noted that one of the most effective ways to fight corporate misconduct is to seek accountability from the individuals who perpetrated the misconduct.  The new policy is designed to make sure all attorneys across the DOJ are consistent in efforts to hold individuals responsible for illegal corporate actions and is in response to criticism that DOJ often targets corporations but does not hold individuals accountable for corporate malfeasance.

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


The FAA has proposed a civil penalty of $1.9 million against UAS operator SkyPan International for endangering airspace safety.  This is the largest civil penalty the FAA has proposed against an Unmanned Aircraft Systems (UAS) operator to date.

The FAA alleged that SkyPan conducted 65 commercial unauthorized UAS flights involving aerial photography between March 2012 and December 2014.  The flights took place in New York City and Chicago.  The company flew 43 of the 65 flights in restricted New York Class B airspace without receiving air traffic control clearance to access the airspace.

The FAA further alleged that the aircraft used in all 65 flights lacked an airworthiness certificate, effective registration and that SkyPan did not have a Certificate of Waiver or Authorization for the flights.

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


On October 23, 2015, DOT issued an interim rule prohibiting passengers and crewmembers from carrying battery-powered portable electronic smoking devices (e.g., e-cigarettes, e-cigs, e-cigars, e-pipes, e-hookahs, personal vaporizers and electronic nicotine delivery systems) in checked baggage and also prohibits passengers and crewmembers from charging the devices and/or the batteries while on board the aircraft.  However, these devices may continue to be carried in carry-on baggage.

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


On November 1, 2015, the Automated Commercial Environment (ACE) will be a CBP-authorized Electronic Data Interchange (EDI) System.  CBP’s Automated Commercial System (ACS) is being phased out as an authorized EDI System for the processing of electronic entry and entry summary filings.  ACE will replace the ACS as the authorized EDI system for processing commercial trade data.

The ACS is currently used by CBP to track, control, and process all goods imported into the United States.  By the end of 2016, ACE will become the primary system through which the trade community will report imports and exports and the government will determine admissibility.

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


On October 15, 2015, Administrator Michael Huerta announced a new FAA “Compliance Philosophy” that aims to de-emphasize enforcement as a means of ensuring compliance in favor of a more collaborative approach that is intended to identify and resolve problems before they result in an accident.

The new policy recognizes that “most operators voluntarily comply with both the rules and the core principles” and that even the most compliance-oriented operators will make unintentional errors.  The agency will now rely to a greater extent on training or documented improvements to the extent a deviation from the rules results from flawed procedures, simple mistakes, a lack of understanding, or diminished skills.  “We don’t want operators who might inadvertently make a mistake to hide it because they have a fear of being punished …. [i]f there is a failing, whether human or mechanical, we need to know about it, to learn from it and make the changes necessary to prevent it from happening again.”

Huerta emphasized that FAA will continue to have a zero-tolerance policy for intentionally reckless behavior and inappropriate risk taking and will take enforcement action in cases of “willful or flagrant violations, or for refusal to cooperate in corrective action.”  The FAA will train all employees on the new Compliance Policy, will use “data, not calendar dates” to guide its surveillance and inspection programs, and has emphasized to its inspectors that they must work with operators to identify risks and the most appropriate tools needed to permanently fix the problems.

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