Monthly Archives: June 2014

FAA PUBLISHES GUIDANCE TO MODEL AIRCRAFT OPERATORS

On June 23, 2014 the FAA published a Federal Register notice on its interpretation of the statutory special rules for model aircraft in the FAA Modernization and Reform Act of 2012.  The notice comes on the heels of several incidents where unmanned model aircraft were flown recklessly near airports and crowds of people.

The notice essentially provides clear guidance to operators of model aircraft on the “Do’s and Don’ts” of safe operation.  The FAA also restated the definition of a “model aircraft” and described its operational limits as: (1) the aircraft is flown strictly for hobby or recreational use; (2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization; (3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization; (4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; (5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower…with prior notice of the operation; and (6) the aircraft is flown within visual line sight of the operator.

It is important to note that the FAA may take enforcement action against operators of model aircraft who operate their aircraft in an unsafe manner.  The FAA plans to coordinate with its inspectors and model aircraft operators in order to promote the dissemination of standard information on how the public should operate model aircraft in compliance with current regulations and avoid endangering the safety of the nation’s airspace.

Additional information on the safe operation of model aircraft is available here: http://www.faa.gov/about/initiatives/uas/model_aircraft_operators/.

FINES UPDATE

The following fine has recently been issued by DOT:

Air Europa Lineas Aereas, S.A.U. – $140,000

Air Europa Lineas Aereas was fined $140,000 for violating the Department’s tarmac delay rules, 14 C.F.R. Part 259 and 49 U.S.C. § 41712.  The offending flight, which occurred on November 7, 2012, was scheduled to depart JFK at 10:05 p.m. for Madrid-Barajas Airport (MAD).  The aircraft’s door was closed at 11:34 p.m.  At 11:54 p.m., the captain announced the flight would be delayed due to weather conditions.  Air Europa requested an estimated pushback time from Air Traffic Control several times yet no estimate was given. The aircraft continued to hold at the gate until 3:31 a.m. and, after deicing, the flight ultimately departed for MAD at 4:34 a.m.  An investigation by the Department’s Enforcement Office found that during the time the aircraft was sitting at the gate Air Europa did not adhere to its tarmac delay contingency plan and did not inform the passengers on board that an opportunity to deplane existed.

This Eckert Seamans Aviation Blog  post 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).

DC COURT OF APPEALS CASE ON DRONES

A non-profit Texas company specializing in performing missing persons searches, Texas EquuSearch Mounted Search and Recovery Team (EquuSearch), filed a lawsuit in U.S. Court of Appeals for the D.C. Circuit asking the court to set aside an order that prohibits the non-profit company from employing drones to perform its work.  EquuSearch has coordinated volunteer searchers in search-and-rescue missions and for nearly a decade has used camera-equipped model aircraft to assist in the searches.

In February 2013, an EquuSearch volunteer made an informal inquiry to the FAA about whether the agency’s policies on the use of drones for search-and-rescue missions has changed.  The FAA responded in an email to EquuSearch that the unauthorized use of drones violates Advisory Circular AC 91-57 and hence the operations are illegal.  The FAA also noted that EquuSearch holds a Certificate of Authorization (COA) to operate but only in a particular area and if there were any operations outside of the prescribed area they should stop immediately.  In response to the email from the FAA, on March 17, 2014 EquuSearch brought the exchange to the attention of the FAA’s Chief Counsel and asked the directive to “stop immediately” be rescinded within 30 days.  When EquuSearch did not receive a reply within 30 days the company filed a Petition of Review with the court.

The Petition for Review argues there is no basis in law to prohibit the operation of model aircraft for humanitarian search-and-rescue operations and that the use of drones falls outside FAA restrictions that say model aircraft may not be operated “by persons or companies for business purposes.”

This Eckert Seamans Aviation Blog  post 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).

FDA AND FOOD LABELING FOR AIRLINES

We have learned that the Food and Drug Administration (FDA) is considering a new policy on how food must be labeled on commercial airlines, which represents a change in the way the agency has historically interpreted the 2004 Food Allergen Labeling and Consumer Protection Act (the Act).  Currently, complimentary food served on airlines is treated the same as food served in restaurants, which is exempt from labeling requirements.  The FDA’s change in position appears to be based, at least in part, on a concern that passengers with severe allergies may inadvertently ingest food on an aircraft that was not labeled under the agency’s current interpretation of the Act.

As recently as 2008 the FDA continued to view food service on airlines as akin to restaurant food.  Carriers and members of the in-flight catering community point to numerous ways in which in-flight food options are analogous to choices at a restaurant, as opposed to foods served in a grocery store (which must be labeled).  For instance, passengers review airline “menus” when making food choices, obtain food via live service like in a restaurant, and interact with flight attendants in the same manner as a waiter or waitress.  Given the above, and because food is served on commercial airlines in a variety of ways depending on flight time, origin, destination and cabin class, industry interests argue that a strict rule on labeling without any flexibility would be problematic.

While members of the industry are aware that some passengers have serious allergen concerns, it is impossible for carriers to create a 100% allergen-free environment due to passengers bringing their own food onto aircraft.  Regardless of this difficulty, carriers strive to make allergen information available through labeling.  In fact, many carriers already make allergen-related information available through the use of menu cards, inflight magazines or table tray liners, which allows passengers to make informed choices before they make food selections.  Airlines believe that flexible means of distributing allergen information is the best course and has been proven by the lack of incidents inflight.  The industry also believes that package labeling would be too limiting and the FDA should continue to classify airlines like restaurants which are not required to have on-package labeling, and will continue to work with FDA on any changes to the agency’s policy in this regard.

This Eckert Seamans Aviation Blog  post 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).

U.S. DOT RELEASES CONSUMER RULE #3

On May 23, 2013 the U.S. Department of Transportation (DOT) published the latest installment of new consumer protections for air travelers in the Federal Register, building on the previous passenger protection rules that were issued in December 2009 and April 2011.  The newest rule, “Transparency of Airline Ancillary Fees and Other Consumer Protections Issues” (i.e. Consumer Rule 3), was published in the form of a Notice of Proposed Rulemaking (NPRM).

The NPRM proposes the following:

  • To require airlines and ticket agents to disclose fees for certain additional services (i.e. first checked bag, second checked bag, one carry-on item, and advance seat assignment) associated with airline tickets at all points of sale.
  • To expand the number of carriers that would be required to report on-time performance, oversales, and mishandled baggage information to DOT.  Reporting carriers would also have to include data for domestic scheduled flights operated by a codeshare partner.
  • To enhance protections for air travelers by codifying the Department’s interpretation of the term “ticket agent”, which is used in many laws and regulations.
  • To require large travel  agents to adopt minimum customer service standards similar to those already imposed on airlines (i.e. responding promptly to customer complaints and holding reservations without payment, or cancelling without penalty, for 24 hours if the reservation is made one week or more prior to a flight’s departure date).
  • To require carriers and ticket agents to disclose any code-share arrangements on initial itinerary displays on their websites.
  • To require large ticket agents to maintain and display lists of carriers whose tickets they market and sell.
  • To prohibit unfair and deceptive practices by ticket agents, such as preferentially ranking flights of certain carriers above others without disclosing the bias in any presentation of carrier schedules, fares, rules, or availability.
  • To clarify how the post-purchase price increase rule is applied to price increases for ancillary services.
  • DOT has also asked for comments from interested parties on how the industry should best handle erroneous fares that are published by mistake and subsequently purchased by predatory consumers.

Comments on the proposal are due within 90 days of publication in the Federal Register, or by August 21, 2014.  We will provide a more complete explanation of the rule shortly as well as any issues you may wish to consider submitting comments on. In the meantime please do not hesitate to contact us with any questions.

This Eckert Seamans Aviation Blog  post 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).

CDC GUIDANCE REGARDING REPORTING OF SUSPECTED MIDDLE EAST RESPIRATORY SYNDROME (MERS)

The United States Centers for Disease Control and Prevention (CDC) has issued guidance regarding Middle East Respiratory Syndrome for airline crew on flights arriving to the United States. The guidance states that crew should report to CDC ill travelers (with symptoms below) arriving from countries in and near the Arabian Peninsula, including Bahrain, Iraq, Iran, Israel, Jordan, Kuwait, Lebanon, Oman, the Palestinian territories, Qatar, Saudi Arabia, Syria, the United Arab Emirates (U.A.E.), and Yemen. Crew should report to CDC if the ill person:

  • feels warm to the touch, gives a history of feeling feverish, or has an actual measured temperature of 100° F (37.8° C) or higher, PLUS
  • has a cough or difficulty breathing.

Crew should report the ill traveler’s presence as soon as possible and before arrival by one of the following methods:

  1. Air Traffic Services (ATS) if in international airspace or Air      Traffic Control (ATC) if in U.S. airspace

This reporting option also complies with International Civil Aviation Organization (ICAO) reporting standard (ICAO document 4444 and Annex 9 of the Chicago Convention).

ATC will notify CDC’s Emergency Operations Center (EOC) and the EOC will notify the appropriate CDC Quarantine Station and the local health department of jurisdiction.

OR

  1. Airline’s land-based point of contact (e.g., Operations Center,      Flight Control, airline station manager)

Instruct the airline’s point of contact to notify CDC by contacting the:

    1. CDC Quarantine Station at or closest to the airport where the flight is arriving: http://www.cdc.gov/quarantine/QuarantineStationContactListFull.html       or
    2. CDC EOC (770.488.7100), which will then notify the appropriate CDC Quarantine Station.

This Eckert Seamans Aviation Blog  post 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).

UPDATE ON FAA FOREIGN REPAIR STATION DRUG AND ALCOHOL TESTING

As we reported in the March U.S. Aviation/Regulatory Update, 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 FAA has granted an extension to file comments which are now due on July 17, 2014.

Before the FAA adopts a final regulation it is particularly interested in hearing from interested parties whether local privacy laws currently permit drug and alcohol testing programs since the FAA’s authority is limited to a program that will be consistent with local laws. The FAA is also interested in knowing the costs of implementing a drug and alcohol testing program in a foreign country and if there are already established programs in other countries that could be used as guidance for the FAA.

Please let us know if you are interested in filing comments or would like assistance with filing.

A link to the ANPRM is attached for your convenience below:

http://www.gpo.gov/fdsys/pkg/FR-2014-03-17/pdf/2014-05653.pdf

This Eckert Seamans Aviation Blog  post 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).

FAA RELEASES ORDER LIMITING SCHEDULED OPERATIONS AT JFK

The Federal Aviation Administration (FAA) has designated John F. Kennedy International Airport (JFK) as an IATA level three fully coordinated airport, which means carriers are required to obtain takeoff and departure slots before operating to the facility.  Notwithstanding this requirement the FAA on May 29, 2014 released a Notice of Limited Waiver of the Slot Usage Requirement at JFK due to construction at the airport during the winter 2014/2015 and summer 2015 scheduling seasons.  The notice, which is necessary due to a temporary reduction in capacity at the airport caused by the construction, grants with conditions a limited waiver of the airport’s slot usage requirement and applies only to JFK slots for the period between March 1, 2015 and October 24, 2015.

The Notice is FAA’s attempt to reduce service at JFK through voluntary reductions in operations by carriers that currently operate to the airport.  To obtain a waiver for a specific slot held, a carrier must temporarily return to the FAA slots that it will not operate during the waiver period.  While the carrier will not be operating a particular slot during that timeframe, it will nevertheless retain historical precedence for the slot or slots at issue and will be able to reacquire rights to the slot for the next season.  The temporary return of slots to the FAA will allow the agency to plan for days on which closures due to construction and resulting operational impacts occur.

The FAA does recognize that carriers may make adjustments in their schedules based on operational assessments that are currently underway and may also need additional time to finalize schedules and potential reductions beyond the regular winter 2014/2015 slot return deadline of August 15, 2014.  Therefore, the FAA will allow an additional slot return date to allow for better planning and for discussions with the FAA on potential schedule and slot adjustments to avoid delays.  For slots between March 1 and March 28, 2015, the temporary slot return deadline is December 15, 2014.  For slots between March 29 and October 24, 2015, the temporary slot return deadline is January 15, 2015.  FAA will discuss this issue in further detail at the upcoming IATA slots conference in Abu Dhabi and will reach out to affected carriers on an individual basis over the coming weeks.

Temporary slot returns should be submitted to the Slot Administrative Office by email at:  7-awa-slotadmin@faa.gov.

This Eckert Seamans Aviation Blog  post 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).