Monthly Archives: October 2014

UPDATE ON EBOLA

As the global Ebola outbreak persists, the United States Centers for Disease Control and Prevention (CDC) has issued significant guidance to air carriers regarding Ebola and how passengers who are suspected of having the disease should be handled.  Many countries, including the United States, UK, Canada, France and the Czech Republic have also begun actively screening passengers traveling from the West African nations affected by Ebola – Liberia, Guinea and Sierra Leone.  In the U.S., screenings began this month at the John F. Kennedy International Airport, Washington Dulles International Airport, Newark Liberty International Airport, Chicago O’Hare International Airport and Hartsfield—Jackson Atlanta International Airport.

On October 15, 2014, the CDC issued updated guidance for Airline Crews, Cargo Personnel and Cleaning Personnel, which is available here: http://www.cdc.gov/quarantine/air/managing-sick-travelers/ebola-guidance-airlines.html.

In addition:

  • Remember that under U.S. Department of Transportation rules, airlines are permitted to deny boarding to air travelers with serious contagious diseases that could spread during flight, including travelers with possible Ebola symptoms. This rule applies to all flights of U.S. airlines, and to direct flights (no change of planes) to or from the United States by foreign airlines.
  • When providing direct care to a sick traveler who came from a country with an Ebola outbreak, wear a surgical mask (to protect from splashes or sprays), face shield or goggles, and protective apron or gown. Treat all body fluids as though they are infectious. Ebola spreads through direct contact with body fluids – it does not spread through the air like flu.
  • Airplanes traveling to countries affected with Ebola should carry Universal Precaution Kits, as recommended by ICAO for managing ill travelers.
  • If in-flight cleaning is needed, cabin crew should follow routine airline procedures using personal protective equipment available in the Universal Precautions Kit. If a traveler is confirmed to have had infectious Ebola on a flight, CDC will conduct an investigation to assess risk and inform passengers and crew of possible exposure.
  • Any airline crew, cleaning, or cargo personnel who think they were exposed to Ebola either through travel, assisting an ill traveler, handling a contaminated object, or cleaning a contaminated aircraft should notify their employer immediately and self-monitor their health for 21 days, paying particular attention to possible symptoms of Ebola: fever (temperature of 101.5°F/38.6°C or higher), severe headaches, muscle pain, diarrhea, vomiting, stomach pain, unexplained bleeding or bruising.

Unmanned Aircraft Systems (UAS) Update

Legal Landscape for UAS

The FAA Modernization and Reform Act of 2012 (the “Act”) required the FAA to provide for the safe integration of UAS in the national airspace by no later than September 30, 2015. The FAA has cited the Act in support of its declaration that any commercial use of UAS in the United States is prohibited without FAA authorization. Under the Act the FAA was supposed to issue a rulemaking with respect to small UAS (under 55 pounds) by August 2014, with a rulemaking for all other UAS thereafter, however nothing has been issued yet. The FAA is hoping to issue a notice of proposed rulemaking for small UAS by mid-December.

In the meantime, Section 333 of the Act provides an interim policy until the UAS rule is finalized. Section 333 allows the Secretary of Transportation to determine whether airworthiness certification is required for a UAS to operate in U.S. airspace. The Secretary can determine:

  •  If certain UAS, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security; and
  •  Whether a certificate of waiver, certificate of authorization, or airworthiness certification is required for the operation of UAS.

Six aerial photography and video companies in the film industry were recently granted regulatory exemptions under Section 333. The exemptions were granted based on a determination by the Secretary that the proposed operations did not pose a threat to users of national airspace or national security

  • The exemptions also waived or modified other Federal Aviation Administration regulations that were otherwise applicable to the specific operations described in each exemption.

UAS are already being used overseas in numerous industries, including agriculture, utilities, construction and real estate. US companies interested in using UAS should consider applying for a Section 333 permit because an FAA rule on small UAS will not be in place before the end of 2015. Each Section 333 application must be specific to the company seeking approval, the UAS being used, and the operations being performed. Eckert Seamans has experienced aviation professionals who can assist companies with the application and FAA approval process.

UAS State Legislation

Currently, twenty states have UAS laws on their books. These states are: Maryland, Virginia, North Carolina, Tennessee, Florida, Ohio, Indiana, Illinois, Wisconsin, Iowa, Louisiana, Texas, North Dakota, Montana, Idaho, Utah, Nevada, Oregon, Hawaii and Alaska. Issues addressed in these laws include defining what a UAS is, how UAS can be used by law enforcement and other governmental arms, how the public can use UAS, regulations for their use in hunting and the FAA UAS test sites. Some municipalities, including Evanston (Illinois), Syracuse (New York), and Charlottesville (Virginia) have banned the use of UAS.

Below are examples of some of the laws that have been passed or are under consideration in various states:

 New Jersey: Recently, a New Jersey State Assembly committee advanced a bill which would criminalize installing firearms, or any weapons intended to harm, incapacitate or negatively impact a human being on UAS. Installing such a device would be a fourth degree crime and could mean a fine up to $10,000 and 18 months imprisonment.

 North Carolina: North Carolina’s laws on UAS set up a structure for state licensing of UAS operators. The laws also authorize different types of infrared and thermal imaging technology for specific commercial and private purposes including the evaluation of crops, mapping, scientific research and forest management. The laws also curtail the ability of people and entities from conducting surveillance of people, their homes and private property. In addition it is a crime to use UAS to:

  • unlawfully distribute images obtained with a UAS,
  • interfere with manned aircraft,
  • unlawfully fish or to hunt, or harass hunters or fisherman with UAS,
  • operate a UAS commercially without a license, and
  • use an UAS that has a weapon attached.

 Virginia: In 2013, Virginia was the first to enact laws relating to UAS. Under the laws, local law enforcement and state agencies that oversee criminal law and enforcement of regulatory violations cannot use UAS until July 1, 2015. Exceptions to the ban include:

  • enabling officials to deploy UAS for Amber Alerts,
  • enabling officials to deploy UAS for Blue Alerts and use by the National Guard,
  • enabling higher education institutions to use UAS, and
  • use of UAS in search and rescue operations.

Testing of UAS for Air Deliveries

DHL has started delivering medications and other urgently needed goods via UAS to the small island of Juist in Germany as part of its research project. The project was approved by the German Ministry of Transport and the parcelcopter is making these deliveries. DHL has partnered with the island pharmacy and residents of the island will soon be able to place orders. The deliveries are focused on times when other forms of transportation, such as ferries and flights, are not available.

Google has also started testing UAS for air deliveries. Google conducted several delivery tests to farmers outside of Brisbane, Australia. In the U.S., Amazon is also seeking to test its UAS, but is awaiting FAA approval of a Section 333 permit the company has pending.

This UAS Update is intended to keep readers current on developments in the unmanned aircraft systems world and is not intended to be legal advice. If you have any questions, please contact Earl Comstock at 202.659.6627 or ecomstock@eckertseamans.com.

FINES UPDATE

The below additional fines have recently been issued by DOT and FAA:

Gulfstream      Aerospace Corp. – $425,000 

The FAA has proposed a $425,000 fine against Gulfstream Aerospace Corp. for allegedly failing to comply with Federal Aviation Regulations (FAR) related to training aircraft mechanics.  A series of inspections by FAA investigators revealed that certain company mechanics did not complete required training within the company’s re-established time limits. Additionally, the FAA inspectors noted discrepancies with the company’s employee training records. The FAA alleges that the violations compromised safety since mechanics maintained aircraft without receiving required recurrent training.  Gulfstream Aerospace Corp. has 30 days to respond to the agency.

WestJet      – $50,000

On September 5, 2014 DOT fined Westjet $50,000 for allegedly violating 49 U.S.C. § 41301 and 49 U.S.C. § 41712.  An investigation by the Department’s Office of Aviation Enforcement and Proceedings found that China Eastern had engaged in unauthorized foreign air transportation by virtue of its marketing and sale of unauthorized codeshare flights operated by another foreign air carrier that did not hold proper authority from the Department.

China      Eastern Airlines Co., Ltd. – $40,000

DOT on September 5, 2014 fined China Eastern Airlines $40,000 for allegedly violating 49 U.S.C. § 41301 and 49 U.S.C. § 41712.  An investigation by the Department’s Office of Aviation Enforcement and Proceedings found that China Eastern had engaged in unauthorized foreign air transportation by virtue of its marketing and sale of unauthorized codeshare flights operated by another foreign air carrier that did not hold proper authority from the Department.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

REMINDER – SUBSCRIBE TO ECKERT SEAMANS AVIATION BLOG

For those readers who have not yet subscribed, Eckert Seamans publishes an Aviation Blog, which offers information on developments in the U.S. aviation/regulatory area.  Posts provide tactical and timely updates related to emerging legislation, regulations, cases, policies and trends, with a focus on relevant business opportunities and risks.

The substantive information on the constantly evolving aviation marketplace is navigated by the attorneys of Eckert Seamans’ Aviation department, which serve the full range of participants in the airline and airport sector.

To access and subscribe to the blog, click here.

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 PROPOSES HAZMAT PENALTIES AGAINST THREE MORE COMPANIES

The FAA recently proposed civil penalties ranging from $57,400 to $63,000 against three  companies for violating the Hazardous Materials Regulations (HMR).  In each case, the FAA alleged certain shipments were not accompanied by shipping papers to indicate the hazardous nature of their contents and were improperly marked, labeled or packed. The FAA further alleged that certain packages were not adequate for shipping and that the various companies failed to provide emergency response information and ensure their employees had received required training in packaging and shipping hazardous materials.

The cases include the following:

  • $63,000 against Mattoon Rural King Supply, Inc. of Mattoon, Ill. for offering to UPS two 2.5-gallon plastic containers of herbicide for shipment by air.  Herbicides are considered to be a flammable liquid.
  • $63,000 against MidContinental Chemical Company Inc. of Olathe, Kan. and its subsidiary, MCC Chemical Services, LLC of Hammond La. for offering to UPS two 3-ounce containers of flammable petroleum distillates and two 3-ounce containers of flammable Kerosene for shipment by air in packages that      ultimately leaked.
  • $57,400 against Aeroplus Interiors, Inc. of Rosharon, Texas for offering for shipment aboard FedEx aircraft three undeclared packages containing metal cans of flammable JetGlo Contrail White Aircraft Paint.  This type of paint is considered to be a hazardous material because it is flammable.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

CESSATION OF AVIATION INFRASTRUCTURE SECURITY FEES

In 2001, the Aviation and Transportation Security Act (ATSA) authorized TSA to impose a fee to defray the government’s costs for providing U.S. civil aviation security services.  In 2002, TSA issued a rule (49 C.F.R. 1511) which required carriers to pay the Aviation Infrastructure Security Fee (ASIF).  The fee was never imposed on carriers that were not in existence in 2000. In the 2013 Budget Act, Congress repealed TSA’s authority to collect the fee effective October 1, 2014.  The period ending September 30th will be the last for which carriers will be liable for the fee, with payment being due on October 31st.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

GREENHOUSE GAS EMISSIONS FROM AIRCRAFT – EPA POISED TO ACT?

This month, the Environmental Protection Agency (EPA) submitted a paper to the International Civil Aviation Organization (ICAO) that details its plans to address greenhouse gas emissions under the Clean Air Act.  In it, the EPA announced that it would comply with a recent D.C. District Court ruling ordering the agency to make a formal determination under the Clean Air Act on whether greenhouse gas emissions from aircraft cause or contribute to air pollution that may be reasonably anticipated to endanger public health or welfare.  If a positive endangerment and cause or contribute findings are made, EPA will be obligated by the terms of the Clean Air Act to set GHG emission standards for aircraft.

According to the paper, the EPA’s endangerment findings proposal will be based on its 2009 findings for on-road vehicles and will rely on previous peer-reviewed science from the U.S. Global Change Research Program, National Research Council, and the Intergovernmental Panel on Climate Change.  (IPCC), along with updated reports from the same major climate change assessments.  At the same time as it releases its proposed findings, EPA will issue an advanced notice of proposed rulemaking (ANPRM) providing an overview of ICAO/CAEP efforts to reduce greenhouse gas emissions and, if EPA makes a positive finding regarding aircraft emissions, the potential use of ICAO standards to guide U.S. regulation.

EPA projects that it will release its aircraft emissions ANPRM in April, 2015.

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 AND FAA PROPOSE NEW RULES FOR ON-BOARD ACCEPTANCE OF PORTABLE OXYGEN CONCENTRATORS

On September 19, 2014 DOT published a NPRM concerning revised criteria for evaluating Portable Oxygen Concentrators (POCs) for use on board aircraft.  The proposed rule would affect the use of POCs on board aircraft in operations conducted under 14 C.F.R. parts 121, 125, and 135, and also have tangential impacts on foreign carriers by virtue of compliance with the requirements of Part 382.

In 2005, the FAA established standards for the use of POCs on board aircraft through Special Federal Aviation Regulation (SFAR) No. 106—Rules for use of portable oxygen concentrator systems on board aircraft.  The FAA has historically limited the carriage and use of POCs on board aircraft to only those models that have been pre-approved by the Administration.  Each time a new POC is approved by the FAA, SFAR No. 106 must be amended to include the name of the newly approved POC. This is a long and arduous process that can in some cases take more than two years.

Rather than amend existing SFAR No. 106 every time, the proposed rule seeks to replace the existing FAA case-by-case POC approval process in SFAR No. 106 with an “acceptance criteria” methodology for POCs.

Under the proposed rule, manufacturers of POC models not identified in SFAR No. 106 would have to ensure their POC satisfies the FAA’s acceptance criteria before it may be used on board an aircraft. If a manufacturer determines that a new POC model meets these criteria, it would not need to seek FAA approval.  Rather, it would need only to affix a label to the POC, indicating that it meets FAA acceptance criteria. The FAA believes this proposed label would facilitate passenger and crew recognition by identifying the POC as safe for use in the cabin during all phases of flight.

The proposed acceptance criteria are:

  • The  POC manufacturer complies with all FDA requirements to legally market the device in the  United States; and
  • The POC may not contain any hazardous materials subject to the Hazardous Materials regulations (49 CFR parts 171 through 180) except as provided for in the exceptions for crewmembers and passengers (49 CFR 175.10); and
  • The maximum oxygen pressure generated by the POC must fall below the threshold for the  definition of a compressed gas per the HMR; and
  • The POC electromagnetic emissions must fall below the threshold permitted in RTCA standard 160G, Section 21, Category M.

Devices previously approved for use on board aircraft would be grandfathered in.

Comments on the NPRM must be submitted before November 18, 2014.  The FAA is considering an effective date of 90 days after the final rule’s publication in the Federal Register.

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. CDC Updates Guidance for Airlines on Ebola

On October 2, 2014, the U.S. Centers for Disease Control (CDC) issued updated guidance for Airline Crews, Cargo Personnel and Cleaning Personnel.  Airline crews should continue to follow the guidance we provided previously (see below).  In addition:

  • Remember that under U.S. Department of Transportation rules, airlines are permitted to deny boarding to air travelers with serious contagious diseases that could spread during flight, including travelers with possible Ebola symptoms.  This rule applies to all flights of U.S. airlines, and to direct flights (no change of planes) to or from the United States by foreign airlines.
  • When providing direct care to a sick traveler who came from a country with an Ebola outbreak, wear a surgical mask (to protect from splashes or sprays), face shield or goggles, and protective apron or gown.  Treat all body fluids as though they are infectious. Ebola spreads through direct contact with body fluids – it does not spread through the air like flu.
  • Airplanes traveling to countries affected with Ebola should carry Universal Precaution Kits, as recommended by ICAO for managing ill travelers.
  • If in-flight cleaning is needed, cabin crew should follow routine airline procedures using personal protective equipment available in the Universal Precautions Kit.  If a traveler is confirmed to have had infectious Ebola on a flight, CDC will conduct an investigation to assess risk and inform passengers and crew of possible exposure.

Any airline crew, cleaning, or cargo personnel who think they were exposed to Ebola either through travel, assisting an ill traveler, handling a contaminated object, or cleaning a contaminated aircraft should take the following precautions:

  • Notify your employer immediately.
  • Monitor your health for 21 days.  Watch for symptoms of Ebola: fever (temperature of 101.5°F/38.6°C or higher), severe headaches, muscle pain, diarrhea, vomiting, stomach pain, unexplained bleeding or bruising.

Should you have any questions, please do not hesitate to contact Evelyn Sahr at esahr@eckertseamans.com or Beth Fitzpatrick at bfitzpatrick@eckertseamans.com.

A4A AND DOT MEET TO DISCUSS CONSUMER RULE 3

On August 7, 2014, Airlines For America (A4A) met with representatives from the U.S. Department of Transportation (DOT) regarding the Notice of Proposed Rulemaking (NPRM) on “Transparency of Airline Ancillary Fees and Other Consumer Protection Issues” Rulemaking (i.e. Consumer Rule 3).  The following are some key points from a report that was recently published in Docket DOT-OST-2014-0056.

  • Carriers are only required to provide ticket agents fare, schedule, availability and ancillary service information.  They are not required to provide customer-specific information such as frequent flyer status, or the fee rules for particular passenger types.  The reference to carriers being required to provide ticket agents the fee rules for particular passenger types (e.g., military, frequent flyers, or credit card holders) was erroneous.
  • Under the proposed rule, DOT would require carriers to provide ancillary fee information to ticket agents that is “useable, current, and accurate,” but has not defined the terms.  If a dispute arose between airlines and ticket agents about what constitutes a “useable” format, DOT indicated that it would prefer to interfere as little as possible in such disputes.
  • Carriers cannot pre-select the “opt out” option of the rule proposed in requiring carriers and ticket agents to disclose basic ancillary fee information because the Department wants consumers to choose the information they do and do not see. 
  • DOT encouraged interested parties to file comments as to when in the search process a customer should receive an “opt in” choice if the Department decides to require ancillary service fee information only upon the consumer’s request.
  • DOT said that the proposed rule’s prohibition on charging for distributing information via contract provisions would last as long as the existing contracts between airlines and GDSs — DOT does not want to disrupt existing contracts.  After that time, any price charged for distribution of ancillary service fee information would be negotiated by the parties involved, just like the price for distributing fare information.

To date, numerous parties have filed comments, including Air Transat, Aeroflot, The George Washington University Regulatory Studies Center, Virgin Atlantic Airways, AeroMexico, Google, Hipmunk, Tripadvisor LLC, and masFlight.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).