Monthly Archives: July 2015

FAA PROPOSES HAZMAT PENALTIES AGAINST SIX COMPANIES

The FAA recently proposed civil penalties ranging from $70,050 to $81,669 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.

  • $81,669 against DGI Menard Inc. for offering for shipment aboard a FedEx aircraft  undeclared hazardous materials.  The shipment included eight cans of Lubemaster’s Fire up, a flammable liquid, and six bottles of Diesel Mate All Seasons, a flammable petroleum distillate.
  • $71,500 against Sherwin-Williams for offering undeclared hazardous material shipments for transport on two separate FedEx flights.  Each shipment contained two gallons of HP Primer, two gallons of Epoxy Primer, two quarts of catalyst for the Epoxy Primer and two gallons of paint.  The catalyst is corrosive and flammable.  The FAA also alleges the shipments exceeded the allowable quantity for air transportation.
  • $70,050 against the University of Wisconsin-Madison. The FAA alleges that a university official offered an undeclared hazardous material shipment on a Delta passenger flight.  The shipment, which contained 1.89 liters of ethyl alcohol, which is highly flammable, and 120 milliliters of Epofix hardener, a corrosive material, was in the passenger’s checked baggage.
  • $70,000 against Home Depot for offering nine cans of flammable aerosol spray paint to UPS for transportation by air.
  • $63,000 against CTC Battery for offering an undeclared shipment of four rechargeable lithium ion phosphate batteries to UPS for shipment.
  • $58,600 against FedEx Corp. for accepting a box containing 1.7 liters of flammable liquid for air transportation. The box did not list the proper shipping name of the hazardous materials.  The FAA also alleges the company later accepted a hazardous material shipment where the shipping papers incorrectly listed the amount of the shipment. The FAA further alleges that FedEx did not provide the pilots-in-command with accurate information about the amount of hazardous materials on several flights in 2014.  Those shipments contained radioactive and flammable materials.
  • $54,000 against Aqua-Chem, Inc. for offering UPS an undeclared shipment containing six plastic containers of corrosive phosphoric acid solution.
  • $54,000 against Rust-Oleum Corp. for offering four containers of spray paint for shipment aboard a FedEx aircraft.

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 PROPOSED PENALTIES

  • $75,000 against Murray Aircraft Manufacturing, LLC (“Murray”) for operating an aircraft that was not in compliance with FAA regulations. The FAA’s investigation revealed that Murray operated a Jetstream 3101 on 300 flights when 11 required maintenance checks had not been performed. Under FAA regulations, maintenance checks are required every 200 flight hours.
  • $84,700 against Image Air of Florida for allegedly allowing an unqualified pilot to fly one of its aircraft.  The FAA alleges that between June and September of 2014 the pilot flew at least 16 revenue flights.  The pilot had not passed an FAA required competency check within the past 12 months for the category, class and type of aircraft he was operating.
  • $91,500 against Air Methods Corp. (“Air Methods”) for operating a Bell 407 helicopter in an unairworthy condition. Air Methods operated the helicopter four times when a required torque check inspection on its tail rotor drive shaft components was overdue. In addition, the FAA alleges that Air Methods did not update the aircraft log books to show completion of the inspection and the next inspection deadline.
  • $266,375 against Allegiant Air, LLC (“Allegiant”) for violating drug and alcohol testing regulations. According to the FAA, Allegiant failed to include 25 employees in its drug and alcohol testing pools. These employees were in safety-sensitive positions, and 11 of these employees performed safety-sensitive duties on multiple occasions. In addition, another employee’s follow-up test was not observed directly after the employee had previously tested positive for drug use. The employee continued to perform safety-sensitive duties following the improperly observed test.
  • $735,000 against Volaris of Mexico for returning a U.S.-registered Airbus A319 to service after performing a heavy maintenance inspection despite its mechanics not performing certain required safety inspections including: removing and replacing an emergency slide, verifying that ailerons were properly rigged, and verifying the aircraft’s weight and balance calculations. FAA inspectors reviewed the carrier’s maintenance records and requested that the required inspections be done. At another inspection two weeks later, Volaris allegedly performed the required inspections on the slide and aileron tasks, but not the weight and balance calculation and had allegedly failed to perform the required inspections for two additional tasks related to the heavy maintenance: a right wing slat seal edge replacement and a nose landing gear spring nut replacement. The FAA alleges that Volaris flew the aircraft on a total of 121 passenger flights before bringing the aircraft into compliance.

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 PENALTIES

Charter Air Transport, Inc. Fined $30,000

DOT recently fined Charter Air Transport, Inc. (“CAT”) $30,000 for failing to submit reports required under Part 298 in a timely matter. Specifically, CAT failed to file BTS Form 298-C “Report of Financial Data” and Schedule T-100 “U.S. Air Carrier Traffic and Capacity Data by Nonstop Segment and On-Flight Market” in a timely manner. CAT states that at the time DOT discovered CAT’s noncompliance, CAT was in the process of relocating its offices and the person responsible for such filings failed to coordinate the continued submission of the reports with the employee’s successor, or anyone else. The Director of Finance was then assigned responsibility for filing the reports and, with the help of others, did so within two days of contact from DOT.

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

NORWEGIAN AIR INTERNATIONAL LIMITED

On June 1, 2015, Norwegian Air International Limited (“Norwegian”) filed a motion for expedited treatment with DOT in regard to its longstanding application for a foreign air carrier permit. Citing the average processing time for similar applications to be 55 days, Norwegian stated that it has been over 15 months since its application was filed. In addition, the United States has an international legal obligation under the U.S.-EU (Iceland, Norway) Air Transport Agreement of 2011 to “grant appropriate authorizations and permissions with minimum procedural delay.”

Norwegian went on to note that it saw no reason for DOT to delay granting its permit application as Norwegian has committed to use only European and U.S. pilots and crews on transatlantic flights (except if compelled by extraordinary and unforeseen operational reasons). Norwegian emphasized that its addressing the pilot issue should resolve any concerns raised by opponents to its application.

Among those filing comments in opposition were Scandinavian Airline System, Allied Pilots Association, Air Line Pilots Association, Transportation Trades Department, AFL-CIO, European Cockpit Association, Association of Flight Attendants-CWA, International Association of Machinists and Aerospace Workers and Transport Workers Union of America. Comments in support were filed by Federal Express, the U.S. Travel Association and the Port of Oakland.

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

EPA PROPOSES RULE ON GREENHOUSE GASES

The Environmental Protection Agency on June 10, 2015 issued a proposed rule finding that greenhouse gas emissions from certain classes of aircraft engines are contributing to air pollution and endangering public health. The proposed rule seeks input on a variety of issues related to: setting an international CO2 standard for aircraft; ICAO’s progress in establishing global aircraft standards that achieve meaningful reductions in CO2 emissions; and the potential use of section 231 of the Clean Air Act to adopt and implement corresponding aircraft engine GHG emission standards domestically (provided the EPA promulgates findings that engine emissions contribute to air pollution). A deadline for comment submissions has not yet been set.

The EPA will hold a public hearing on August 11, 2015 in Washington, DC, at the William Jefferson Clinton East Building, Room 1153. The last day to pre-register in advance to speak at the hearing will be August 6, 2015. The hearing will start at 10:00 am local time and continue until everyone has had a chance to speak.

Please let us know if you would like further information on the rule or are interested in submitting comments.

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

SENATOR BLUMENTHAL REQUESTS DOJ INVESTIGATION

Last week, Senator Richard Blumenthal (D-CT) urged the U.S. Department of Justice (“DOJ”) to investigate allegedly anti-competitive behavior and collusion among airlines. In his letter to DOJ’s antitrust chief, Senator Blumenthal requested the investigation citing the coordinated behavior of airlines to reduce capacity and artificially raise fares. The Senator discussed the recent IATA conference in Miami, where the leaders of Delta, Air Canada and American Airlines made comments which indicated that they were aligning fares and/or coordinating behavior to prevent smaller airlines from expanding capacity and cutting prices. Referencing a report in the New York Times that Southwest had reversed course on its plans to expand capacity  (and potentially cut fares), the Senator cited his concern that Southwest had been pressured by the other airlines at the conference to take this action.

The Senator also noted that the “unprecedented consolidation” of airlines  has resulted in four airlines accounting for eighty percent of all domestic travel. He went on to point out statements made in DOJ’s antitrust lawsuit complaint, filed in 2013 to block the proposed US Airways/American Airlines merger, detailing instances of coordinated behavior. He urged DOJ to conduct a full-length investigation of the practices of the airline industry, paying special attention to pricing patterns of airlines and the comments of the executives at the conference, and to enforce antitrust laws to punish the airlines if their behavior towards Southwest was found to be collusive.

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 ISSUES DENIED BOARDING COMPENSATION FINAL RULE; NEW AMOUNTS ARE $675/$1,350

To account for inflation, the Department of Transportation recently issued a final rule raising the maximum denied boarding compensation amounts from the current figures of $650/$1300 to $675/$1350 effective August 25, 2015. As a reminder, denied boarding compensation must be provided to passengers who are denied boarding involuntarily on a domestic flight by a carrier who offers alternate transportation and such transportation is planned to arrive at the passenger’s first stopover or final destination more than one hour but less than two hours after the planned arrival time. In such an instance, the denied boarding compensation must be 200% of the fare to the passenger’s destination or first stopover, with a maximum of $675. Denied boarding compensation must also be provided for passengers who are denied boarding and are rerouted to reach their destination two hours or more after their planned arrival time. In this case, the compensation must be 400% of the passenger’s fare, with a maximum of $1350.

The inflation adjustment also applies to passengers involuntarily denied boarding on an international flight outbound from a U.S. airport. In those cases, passengers who are denied boarding and are provided alternate transportation to their destination that is scheduled to arrive more than one hour, but less than four hours, after the planned arrival time must be offered compensation that is 200% of the fare with a maximum of $675. Similarly, passengers who are rerouted to arrive four hours or more after their original arrival time must be compensated 400% of the fare, with a maximum of $1350.

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

CBP EXPANDS PRECLEARANCE TO TEN NEW SITES

CBP recently announced that it would enter into negotiations to expand preclearance operations at ten new non-U.S. airports. The ten foreign airports identified for possible preclearance locations are: Brussels Airport, Belgium; Punta Cana Airport, Dominican Republic; Narita International Airport, Japan; Amsterdam Airport Schipol, Netherlands; Oslo Airport, Norway; Madrid-Barajas Airport, Spain; Stockholm Arlanda Airport, Sweden; Istanbul Ataturk Airport, Turkey; and London Heathrow Airport and Manchester Airport, United Kingdom.

Currently, CBP Preclearance provides for the U.S. border inspection and clearance of commercial air passengers and their goods at 15 locations in 6 foreign countries. A preclearance inspection is essentially the same inspection an individual would undergo at a U.S. port of entry and preclearance travelers do not have to undergo a second CBP inspection upon arrival in the United States.  Successful CBP programs are already being carried out at airports in: Dublin and Shannon in Ireland; Aruba; Freeport and Nassau in The Bahamas; Bermuda; Calgary, Toronto, Edmonton, Halifax, Montreal, Ottawa, Vancouver, and Winnipeg in Canada; and Abu Dhabi, United Arab Emirates. CBP and the national governments of the selected airports are expected to begin negotiations soon which could result in final air preclearance agreements.

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

HAZMAT REGISTRATION FOR TRANSPORT OF CERTAIN CARGO

Although carriers are not required to register with DOT’s Pipeline and Hazardous Materials Safety Administration, registration is required for carriers who ship specific types (e.g., explosive, radioactive, toxic) and quantities (e.g., bulk shipments and shipments requiring placarding) of cargo. Specifically, carriers are required to register with DOT’s Pipeline and Hazardous Materials Safety Administration if they ship:

(1) radioactive material;

(2) more than 25kg (55 pounds) of an explosive material that has a mass explosion hazard, a projection hazard, or a combination of a fire hazard and a minor projection or minor blast hazard;

(3) more than one L (1.06 quarts) per package of material that is extremely toxic by inhalation;

(4) a quantity of hazardous materials in bulk packaging greater than 13,248 L (3,500 gallons) for liquids or gasses or more than 13.24 cubic meters (468 cubic feet) for solids;

(5) a shipment of hazardous materials greater than 2268kg (5000 pounds), in other than bulk packaging, for which placarding is required; or

(6) any quantity of hazardous materials that requires placarding.

Registration allows a carrier greater flexibility in the types of hazardous materials that can be transported.  The registration cost is $2,600 for one year, $5,175 for two years and $7,750 for three years.  The registration period runs from July 1 to June 30 and the fee is not prorated. If your carrier would like to register for the 2015-2016 period, please contact us.

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