Monthly Archives: November 2014

FINES UPDATE

In addition to those mentioned above, the following fines were issued this month:

Air Canada Rouge – $90,000

On October 28, 2014 Air Canada Rouge was fined $90,000 for failing to adhere to the assurances in its contingency plan for lengthy tarmac delays.  In January 2014, a Rouge flight was diverted to Buffalo International Airport due to severe weather, where the aircraft remained on the tarmac for more than four hours without offering passenger the opportunity to deplane.  Based on its investigation, the Enforcement Office concluded that Rouge failed to provide passengers with an opportunity to deplane before the tarmac delay exceeded four hours, did not provide food to all of its passengers within two hours, and did not have sufficient resources available to implement its contingency plan as the carrier did not have adequate snacks on board to distribute to passengers during the delay.

FAA PROPOSES HAZMAT PENALTIES AGAINST SIX MORE COMPANIES

The FAA recently proposed civil penalties ranging from $54,000 to $227,500 against six  companies for allegedly 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 the affected companies failed to provide emergency response information and ensure their employees had received required training in packaging and shipping hazardous materials.

  • $227,500 against Shanghai Yancui Import for shipping a package which contained a bottle of Titanium Tetrachloride and two bottles of Benzodioxole on a DHL Express Worldwide cargo flight.  The package was not labeled, marked or packed in accordance with HMR requirements and was not shipped with papers to show the contents were hazardous nor was emergency response information provided.  The company also failed to provide hazardous materials training for its employees.
  • $66,000 against Quaker City Plating for shipping a box containing five one-gallon containers of paint on board a FedEx flight.  Paint is a flammable liquid.
  • $65,000 against Freedom Manufacturing LLC for offering for shipment aboard a FedEx aircraft a box containing six small packages, each holding approximately 1,000 bullets.  Bullets are considered to be explosives and must be shipped in accordance with the HMR.
  • $57,000 against International Dental Supply for shipping a package containing 20 eight-ounce bottles of acrylic on a UPS cargo flight.  Acrylic is a flammable and workers at the destination sorting facility discovered the package was leaking.
  • $54,000 against Saudi Chem Crete Co., Ltd for offering for shipment by air via UPS two one-gallon containers and two one-quart containers of epoxy resin, which is a corrosive liquid.  The FAA determined that the contents of the package exceeded the amount of epoxy resin that can safely be shipped on a cargo aircraft.
  • $54,000 against Passport Health for offering for shipment by air via UPS three 2.5-ounce containers of flammable, liquid hand sanitizer.

NTSB Determines FAA Can Fine UAS Operators

The NTSB issued an important decision today in the developing area of who has authority to regulate unmanned aircraft systems (UAS). The NTSB found that UAS are “aircraft” under the plain language of the law, and that FAA rules prohibiting “careless or reckless” operation of aircraft apply to UAS operators.  The NTSB decision overturns an earlier ruling by an administrative law judge.  The case involved Raphael Pirker, a UAS operator who had been hired to film the University of Virginia campus.  During the filming Pirker allegedly operated a small UAS in close proximity to numerous individuals, buildings, and other structures in a reckless manner.  As a result the FAA issued Pirker a $10,000 fine. An administrative law judge vacated the fine after ruling that the FAA had not historically enforced its aircraft regulations against model aircraft, which would include the UAS at issue, and that therefore the FAA could not issue a fine because it had not issued any regulations specifically for UAS.  The NTSB overruled the administrative law judge by finding that the UAS did meet the definition of “aircraft,” that there was no exclusion in the definition for model aircraft, and that therefore the FAA could take enforcement action against a UAS operator.  The NTSB remanded the case to the administrative law judge to determine if Pirker’s UAS was in fact operated carelessly or recklessly. The case is a big win for the FAA, but there continues to be increased pressure on the FAA to publish proposed rules for small UAS.  The NTSB decision can be found at http://www.ntsb.gov/legal/pirker/5730.pdf.

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.

 

FLYERSRIGHTS.ORG INTEREST GROUP WEIGHS IN ON IN-FLIGHT USE OF CELL PHONES

On October 25, 2014, Flyersrights.org, the largest nonprofit airline passenger organization, sent a formal opposition letter to the U.S. DOT Advisory Committee for Aviation Consumer Protection regarding the use of cell phones for voice communications on airliners.

In its correspondence, Flyersrights.org President Paul Hudson highlighted the fact that airline passengers, as well as flight crew members, overwhelmingly oppose the idea of allowing passengers to have cell phone conversations within the passenger cabin.  To support this statement he pointed out that the Federal Communications Commission (FCC) Notice of Proposed Rulemaking that would allow airlines to decide this issue closed in May 2014 and received over 1,400 public comments, of which 98% were in opposition.

He also raised safety and security concerns, such as the possibility of terrorists using cell phones to coordinate attacks, interfere with pilot and crew communications or trigger bombs, and the fact that passengers already have access to internet email using laptops and tablet computers so there is little reason to support a need for voice communications within the cabin.

AIRPORTSUNITED.COM WEBSITE LAUNCHED

In preparation for the 2015 expiration of the FAA’s current reauthorization legislation, the American Association of Airport Executives (AAEE) and Airports Council International-North America (ACI-NA) have developed and launched a website aimed at creating a unified advocacy voice on behalf of U.S. airports leading up to the FAA reauthorization in 2015.

The website, http://www.airportsunited.com/, is designed to function as a repository for background information and other materials that are key to both the 2015 FAA reauthorization and current issues impacting the airport and transportation industries.  The site will also include airport economics data and testimonials from partners beyond the airport industry, as well as a media and action center through which users can advocate for their airport priorities directly with a congressional delegation via letters and social media.

FAA ADMINISTRATOR HUERTA CALLS FOR SECURITY PROTOCOL AND CONTINGENCY PLAN REVIEW

On September 26, 2014, a Federal Aviation Administration (FAA) contract employee set fire to a Chicago-area air traffic control center, causing significant and ongoing operational issues at Chicago’s O’Hare International and Midway airports.  Following the incident, FAA Administrator Michael Huerta stated the FAA would begin a 30 day review of airport contingency plans and security protocols for its major facilities.

Beginning this month, the FAA will begin working with air traffic control staff at major facilities to ensure preparations are in place to assure the safety of aircraft and the efficiency of air traffic control system.  To facilitate the project, the FAA will begin by reviewing security protocols at impacted facilities to make sure that each has the most robust policies and practices in place possible.

Following the fire, Administrator Huerta reminded the industry that the recent attempt to shut down the Chicago facility is a reminder why FAA is working toward an even more robust and scalable system in NextGen, which will incorporate satellite-based technology for tracking and routing air traffic.

U.S. AND MEXICO AGREE TO MUTUAL RECOGNITION

On October 17, 2014, U.S. Customs and Border Protection (CBP) Commissioner R. Gil Kerlikowske and Mexico’s Tax Administration Service (SAT) Chief Aristóteles Núñez Sánchez signed a mutual recognition arrangement that will allow for stronger collaboration between CBP’s Customs-Trade Partnership Against Terrorism (C-TPAT) program and SAT’s New Certified Companies Scheme (NEEC).

The mutual recognition arrangement should provide a necessary link between the two programs, so as to create a unified and sustainable security posture that can assist in securing and facilitating global cargo trade, particularly between the United States and Mexico.

Under the new arrangement, members of both C-TPAT and NEEC will enjoy fewer examinations when shipping cargo, a faster validation process, common standards, efficiency for Customs and business, transparency between Customs administrations, business resumption, front-of-the-line processing, and marketability.

C-TPAT is a voluntary government-business initiative aimed at building cooperative relationships in order to strengthen and improve international supply chain security. This new arrangement marks the U.S.’ ninth such endeavor.  In addition to Mexico, the United States also has mutual recognition arrangements with New Zealand, Canada, Japan, Korea, Israel, Jordan, the European Union and the Taipei Economic and Cultural Representative Office.

DOT INCREASES REACH AND FINES CATHAY PACIFIC FOR ADVERTISING VIOLATIONS

On October 17, 2014, the United States Department of Transportation (DOT) fined Cathay Pacific Airways Limited (Cathay Pacific) $260,000 for violating the Department’s full-fare advertising rule, 14 C.F.R. 399.84(a), and the statutory prohibition against unfair and deceptive practices, 49 U.S.C. § 41712.

Pursuant to 14 C.F.R. 399.84(a), carriers must ensure that advertised prices for passenger air transportation include all government-imposed fees and taxes and all mandatory airline and ticket-agent imposed fees.  The applicable regulation applies to advertisements on carrier websites that are “marketed to U.S. consumers”.  In determining whether a website is marketed to U.S. consumers, DOT analyzes each site on a case-by-case basis and considers several factors, including: (1) whether fares are marketed in U.S. dollars; (2) whether the language on the site is English; and (3) whether the seller has an option on its website that differentiates sites or pages designed for U.S. or other consumers.

Following a consumer complaint, the Department’s Enforcement Office found that Cathay Pacific advertised, on its U.S. customer-facing website, certain fares for travel beginning outside the United States that did not include  mandatory taxes and fees.  DOT determined that this practice constituted a violation of the full-fare advertising rule.

In mitigation, Cathay Pacific highlighted several relevant factors, including that its website did display the full fare to be paid for all travel originating in the United States.  For fares originating outside the United States, it reasonably believed that those fares were not marketed to U.S. consumers because people who purchase fares for travel originating in a foreign country are generally located in that country. Cathay Pacific explained that it did not consider people who used the U.S. website to book transportation originating and/or terminating outside the United States to be “U.S. consumers” for purposes of complying with the full fare advertising rule.  Cathay Pacific also highlighted the fact that its U.S. website displayed fares originating outside the United States in the currency of the country in which the fare originated, not U.S. dollars, and that its website and the servers used to operate its website are located in Hong Kong.

This fine represents somewhat of a departure from DOT enforcement history for two reasons.  First, it is much higher than similar fines that have been levied against foreign carriers (in the past, violations of the full-fare advertising rule by foreign carriers have led to fines, for the most part, in the  $50,000 – $80,000 range).  Second, it is an example of DOT’s arguably extraterritorial application of its regulations in the sense that the Department fined Cathay Pacific for selling airfare originating, and in some cases, terminating, in foreign jurisdictions.

NTSB MEETS WITH AIRLINE COUNSEL

At the request of the National Transportation Safety Board (NTSB), select outside counsel for Part 129 [foreign] carriers met with NTSB’s Transportation Disaster Assistance Division to discuss airline responses to air disasters.  Below are bullet point highlights of the meeting:

  • The NTSB considers an accident to fall within the statutory requirement to implement a family assistance plan (49 USC § § 41113 and 41313) if there is “more than one” loss of life.  Because the carrier cannot predict the outcome in an incident where initially there are no fatalities or only one fatality the carrier should “lean forward” and start implementing its plan immediately.
  • Carriers should follow the official NTSB “Air Carrier Tasks” checklist and, in the first 24 hours following an accident, should: (1) Notify the NTSB Communications Center of the accident; (2) Publish a reliable toll-free telephone number and have adequate staff to handle call volume; and (3) Coordinate public notification of the toll-free number with various media (television, radio, Internet).
  • In codeshare situations, carriers should agree and plan in advance with their partners as to  family assistance obligations in the event of a disaster.  Ultimately  the operating carrier has responsibility and could be the subject of a DOT enforcement proceeding if family assistance obligations are not satisfied.  The NTSB does appreciate that foreign carriers may need to rely on their U.S. partners for certain services in the first 48 hours, but the operating carrier is nevertheless responsible for the notifications above and should be primarily in charge after the first 48 hours.
  • Carriers are not required, and are in fact discouraged, from filing their entire emergency response manual.  Only the statutorily required 18 assurances need be filed with DOT and NTSB.  Assurances should be amended or updated as frequently as needed to keep contact information current.  The 24-hour contact number (which can be the airline’s dispatch number) must remain current.  If carriers provide contact information for their vendors, which is not required and also is discouraged, that information should be updated whenever a vendor changes.