Monthly Archives: March 2014

FAA SEEKS COMMENT ON DRUG AND ALCOHOL TESTING OF CERTAIN MAINTENANCE PROVIDER EMPLOYEES LOCATED OUTSIDE OF U. S.

In response to a mandate in the FAA Modernization and Reform Act of 2012 the FAA is seeking comments on developing a rulemaking that would require employees of FAA-certified foreign repair stations and certain other maintenance providers who perform safety-sensitive work on Part 121 U.S. aircraft to be subject to a drug and alcohol testing program.  The mandate also specifies that the proposed drug and alcohol testing program be determined acceptable by the FAA and is consistent with the applicable laws of the countries in which the repair stations are located.  The comment period will be useful to assist the FAA in developing the proposed rule and to examine the economic impact of a testing program.  Specifically, the issues the FAA is interested in include:

  •  Which drugs are most misused in a particular country?  If testing programs exist, are they administered by a national regulatory authority?  Are industry participants required to establish such programs under the country’s laws and regulations, or does industry do that voluntarily?
  • Should the program require testing for the same drugs the FAA requires tests for in the United States? At what concentrations should alcohol and drug tests be considered “positive?”
  • Does a particular country allow or require random drug and/or alcohol testing?  If so, what is the process?
  • If a country does not allow or require random drug and/or alcohol testing, are there laws that prohibit random testing?  What other methods might successfully deter employees from misusing drugs or alcohol while performing safety-sensitive duties, or within a certain period of time before performing such duties?  How would such misuse be detected?
  • What are the standards that employees who have violated drug and alcohol regulations should meet before they are allowed to return to performing safety-sensitive maintenance work?

This Eckert Seamans Aviation Blog is intended to keep readers current on matters affecting businesses and is not intended to be legal advice. If you have any questions, please contact Evelyn Sahr esahr@eckertseamans.com 202-659-6622) or Drew Derco dderco@eckertseamans.com 202-659-6665).

BTS SEEKS COMMENT ON NECESSITY OF T-100 REPORTS

The Bureau of Transportation Statistics (BTS) is requesting comments from interested parties on the continuing need for and usefulness of DOT requiring U.S. and foreign air carriers to file traffic and capacity data (T-100 reports).

Under the regulations U.S. and foreign air carriers are required to submit traffic data reports to BTS every month.  The information submitted is put into a database that provides monthly traffic and operational data for each carrier, for each city-pair/flight stage market that the carrier operated, and monthly traffic, capacity and operational data for each aircraft type that the carrier flew in each city-pair segment or flight stage.

This data is then used by BTS for many reasons, including to determine airport funding, review carrier safety, analyze competition on certain routes in connection with the Justice Department’s review of an acquisition or merger, prepare traffic and operation forecasts, address potential capacity problems, and to reassess service levels at small airports.

Comments are due by April 7, 2014.  If you have any questions or would like assistance in submitting a comment, please feel free to contact us.

This Eckert Seamans Aviation Blog is intended to keep readers current on matters affecting businesses and is not intended to be legal advice. If you have any questions, please contact Evelyn Sahr ( esahr@eckertseamans.com 202-659-6622) or Drew Derco ( dderco@eckertseamans.com 202-659-6665).

CONCERNS RE: EXPORTING AIRCRAFT AND AIRCRAFT PARTS TO EMBARGOED COUNTRIES

The Export Administration Regulations (the “EAR”), administered by the Bureau of Industry and Security of the U.S. Department of Commerce (“BIS”), and the Foreign Assets Control Regulations (the “FACR”) administered by the Office of Foreign Assets Control of the U.S. Department of Treasury (“OFAC”), are the two primary sets of regulations governing the export and re-export of U.S.-origin goods and technology.  Although most cross-border transactions involving the sale or lease of civilian aircraft will not require a license under U.S. law, transactions involving countries subject to U.S. embargoes must be scrutinized closely to determine whether the transaction in question is permitted by U.S. law.

Transactions Subject to U.S. Jurisdiction

Under U.S. law, the re-transfer of U.S.-origin goods from one foreign country to another (the “re-export”) of U.S.-origin goods and technology are subject to the EAR and, potentially, the FACR, even if the transaction is between foreign persons and the subject goods are manufactured abroad.  U.S.-origin goods are goods which contain more than a de minimis amount of U.S.-source content.  With respect to certain countries subject to U.S. embargoes, foreign manufactured goods must contain less than 10% US-source content to be considered de minimis.  For example, a Brazilian entity’s sale to an Iranian entity of a foreign manufactured aircraft containing more than 10% U.S.-source content is subject to U.S. law, because the transaction is a re-export of U.S.-origin goods.  When evaluating potential transactions, it is important to note that for purposes of the EAR and FACR, title to the aircraft does not have to change hands for the transaction to be considered a re-export of a U.S.-origin good.  (i.e. a wetlease of an aircraft with more than 10% U.S.-source content to foreign operator could in some cases require a BIS license).

Special Rules for Embargoed Countries and Specially Designated Nationals

Exports and re-exports of U.S.-origin goods or technology to countries subject to U.S. embargoes are generally prohibited by the FACR.  Iran, Cuba, Syria, Sudan, and North Korea are subject to almost total U.S. embargoes, and any transactions (including dry leases and wet leases/ACMI leases) involving those countries must be carefully scrutinized to ensure compliance with U.S. law.

Further, U.S.-origin goods may not be exported or re-exported to Specially Designated Nationals (“SDN”).  The SDN list is a list of individuals, groups, and entities subject to economic sanctions by OFAC.  The SDN list is maintained by OFAC.  More information on the SDN list can be found here: http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx

There has been some loosening of sanctions against Iran recently.  OFAC will now consider license applications on a case-by-case basis for transactions which are specifically intended to ensure the safe operation of commercial civil aircraft in Iran.  Activities which will be considered for licensing include, but are not limited to, the exportation and re-exportation of (i) services related to the inspection of commercial aircraft and parts in Iran or another country, (ii) services related to the repair or servicing of commercial aircraft in Iran or another country, and (iii) goods or technology, including spare parts, to Iran or a third country.

Should you wish to engage in a transaction involving Iran in light of the change in policy it is highly recommended that you check with U.S. counsel who can advise regarding the likelihood of obtaining a license.

This Eckert Seamans Aviation Blog is intended to keep readers current on matters affecting businesses and is not intended to be legal advice. If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

The Export Administration Regulations (the “EAR”), administered by the Bureau of Industry and Security of the U.S. Department of Commerce (“BIS”), and the Foreign Assets Control Regulations (the “FACR”) administered by the Office of Foreign Assets Control of the U.S. Department of Treasury (“OFAC”), are the two primary sets of regulations governing the export and re-export of U.S.-origin goods and technology.  Although most cross-border transactions involving the sale or lease of civilian aircraft will not require a license under U.S. law, transactions involving countries subject to U.S. embargoes must be scrutinized closely to determine whether the transaction in question is permitted by U.S. law.

Transactions Subject to U.S. Jurisdiction

Under U.S. law, the re-transfer of U.S.-origin goods from one foreign country to another (the “re-export”) of U.S.-origin goods and technology are subject to the EAR and, potentially, the FACR, even if the transaction is between foreign persons and the subject goods are manufactured abroad.  U.S.-origin goods are goods which contain more than a de minimis amount of U.S.-source content.  With respect to certain countries subject to U.S. embargoes, foreign manufactured goods must contain less than 10% US-source content to be considered de minimis.  For example, a Brazilian entity’s sale to an Iranian entity of a foreign manufactured aircraft containing more than 10% U.S.-source content is subject to U.S. law, because the transaction is a re-export of U.S.-origin goods.  When evaluating potential transactions, it is important to note that for purposes of the EAR and FACR, title to the aircraft does not have to change hands for the transaction to be considered a re-export of a U.S.-origin good.  (i.e. a wetlease of an aircraft with more than 10% U.S.-source content to foreign operator could in some cases require a BIS license).

Special Rules for Embargoed Countries and Specially Designated Nationals

Exports and re-exports of U.S.-origin goods or technology to countries subject to U.S. embargoes are generally prohibited by the FACR.  Iran, Cuba, Syria, Sudan, and North Korea are subject to almost total U.S. embargoes, and any transactions (including dry leases and wet leases/ACMI leases) involving those countries must be carefully scrutinized to ensure compliance with U.S. law.

Further, U.S.-origin goods may not be exported or re-exported to Specially Designated Nationals (“SDN”).  The SDN list is a list of individuals, groups, and entities subject to economic sanctions by OFAC.  The SDN list is maintained by OFAC.  More information on the SDN list can be found here: http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx

There has been some loosening of sanctions against Iran recently.  OFAC will now consider license applications on a case-by-case basis for transactions which are specifically intended to ensure the safe operation of commercial civil aircraft in Iran.  Activities which will be considered for licensing include, but are not limited to, the exportation and re-exportation of (i) services related to the inspection of commercial aircraft and parts in Iran or another country, (ii) services related to the repair or servicing of commercial aircraft in Iran or another country, and (iii) goods or technology, including spare parts, to Iran or a third country.

Should you wish to engage in a transaction involving Iran in light of the change in policy it is highly recommended that you check with U.S. counsel who can advise regarding the likelihood of obtaining a license.

This Eckert Seamans Aviation Blog is intended to keep readers current on matters affecting businesses and is not intended to be legal advice. If you have any questions, please contact Evelyn Sahr ( esahr@eckertseamans.com 202-659-6622) or Drew Derco ( dderco@eckertseamans.com 202-659-6665).

DOT Fines Asiana Airlines $500,000 for Failing to Comply With Its U.S. Family Assistance Obligations

DOT fined Asiana Airlines $500,000 on February 25th for failing to comply with assurances in its Family Assistance Plan including failing to publish and implement a reliable toll-free telephone number that families of passengers in an accident can utilize, failure to timely notify families of passengers involved in the accident and failure to commit sufficient resources to carry out its Family Assistance Plan.

The Foreign Air Carrier Family Support Act of 1997 requires foreign air carriers to assure DOT and the National Transportation Safety Board (“NTSB”) that various services will be provided to passengers and their families in the event of an aircraft accident that results in a major loss of life.  These assurances are filed with both DOT and the NTSB, and are commonly known as a carrier’s Family Assistance Plan.    A carrier’s Family Assistance Plan must include assurances about 18 specific actions a carrier will take in the event of an aircraft accident, such as publishing a toll-free telephone number for families to contact the airline, notifying family members, compiling a list of passengers, and returning possessions of people who were injured or killed in an aircraft incident.

According to DOT, for more than 18 hours following the accident, Asiana failed to publish and provide a reliable, toll-free telephone number and staff to receive calls from families of passengers involved in the accident.  During that time the only available telephone number was the reservations line and locating that number on Asiana’s website took significant effort.  Second, DOT alleged Asiana took two days to contact the families of just three-quarters of the passengers and that some families were not notified until five days after the accident.  Third, according to DOT, Asiana chose to rely on the assistance of another carrier (a codeshare partner), during the initial few days of the incident.  Asiana employees did not take over the handling of family assistance until five days following the incident and it took two full days for the airline to send its trained representatives to SFO.  DOT also pointed out that the Asiana representatives lacked adequate staff to communicate in the passengers’ language and had no preexisting contract for the cleaning and returning of passenger property.

In its defense, Asiana specified numerous actions it did take including sending both its Senior Vice President and Executive Vice President to the accident site, assigning a special assistance representative to each passenger or family, staffing a 24-hour Family Assistance Desk and provision of clothing and food, crisis counseling, child care services and expense money.  Asiana also advised it experienced difficulty in contacting passengers and their family members because it is the practice of travel agencies in China not to provide telephone numbers for passengers.  In addition, many passengers left their cell phones behind when evacuating the aircraft making contact difficult.

This Eckert Seamans Aviation Blog is intended to keep readers current on matters affecting businesses and is not intended to be legal advice. If you have any questions, please contact Evelyn Sahr ( esahr@eckertseamans.com   202-659-6622) or Drew Derco ( dderco@eckertseamans.com 202-659-6665).

Comments to U.S. DOT on Possible Ban on Cell Phone Use Due March 26th

Following up on our February 14, 2014 advisory, carriers and other interested parties have until March 26, 2014 to submit comments to DOT regarding the Department’s possible ban on voice communications via wireless devices during passenger flights operating to, from, or within the United States.  DOT has specifically requested comments from international carriers that currently permit in-flight voice communications pursuant to national laws on the potential financial impact of a ban.

DOT has also sought comments on the following issues from Part 121, 125, 129 and 135 carriers:

  • Whether a blanket ban on voice communications is necessary, and why;
  •  What benefits may be derived from allowing voice communications;
  •  Whether air carriers should be allowed to determine whether voice calls may be permitted and how they may be permitted;
  •  Whether a proposed ban should include all in flight voice communications, or only certain types;
  •  Whether a definition of mobile wireless device should be included in any proposed ban;
  • Whether text-to-speech technologies should be considered exempt from any proposed ban, particularly for passengers with disabilities, and why;
  • When a proposed ban might apply (i.e. only once the aircraft door is closed);
  • Whether a proposed ban should include exceptions for personal, passenger-related emergencies, or for crewmembers, law enforcement, or other officials;
  •  Any impact on consumers of allowing in-flight voice communications;
  •  Any alternatives that might be available to allow consumers to avoid being subjected to voice calls on flights (e.g. creation of ‘quiet sections,’ or limitations on voice calls during certain times); and
  •  Whether voice communications are more or less disruptive than other behaviors that take place during passenger flights (i.e. conversations between passengers).

This Eckert Seamans’ Aviation Blog is intended to keep readers current on matters affecting businesses and is not intended to be legal advice. If you have any questions, please contact Evelyn Sahr ( esahr@eckertseamans.com   202-659-6622) or Drew Derco ( dderco@eckertseamans.com  202-659-6665).  The notice, as published in the Federal Register, is available at: https://federalregister.gov/a/2014-03684