Monthly Archives: December 2015

FAA ISSUES UNMANNED AIRCRAFT SYSTEMS (UAS) REGULATIONS

Under new Federal Aviation Administration (FAA) UAS regulations, persons who operate UAS weighing more than 0.55 pounds (250 grams) and less than 55 pounds (approx. 25 kilograms) for hobby and recreational purposes must register with FAA using either a paper application or web-based application.  The rule does not cover operators who either fly or plan to fly UAS in connection with a commercial activity and is limited to those persons who operate UAS as “model aircraft.”  The rule requires any owner of a small UAS who has previously operated an unmanned aircraft exclusively as a model aircraft prior to December 21, 2015 to register no later than February 19, 2016 while owners of any other UAS purchased for use as a model aircraft after December 21, 2015 must register before the first flight outdoors.  Upon submission of their name, home address, and email, UAS registrants will receive a Certificate of Aircraft Registration/Proof of Ownership and unique identification number that is valid for three years and may be used in connection with each of the registrant’s UAS.  FAA is waiving the $5.00 registration fee from Dec. 21, 2015 to Jan 20, 2016 to encourage model aircraft/UAS operators to register with the agency.  According to FAA’s press release, an online registration system to support registration of UAS used for commercial purposes will be launched by spring of 2016.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622), Drew Derco (dderco@eckertseamans.com, 202-659-6665), or Reese Davidson (rdavidson@eckertseamans.com, 202-659-6633).

DOT CONSIDERS NEGOTIATED RULEMAKING FOR PASSENGERS WITH DISABILITIES

The U.S. Department of Transportation has announced the hiring of a neutral convenor, Richard Parker of the University of Connecticut School of Law, to evaluate a negotiated rulemaking that would develop additional requirements to ensure that passengers with disabilities enjoy equal access in the air transportation system.  The additional requirements might include issues that the Department deferred final action on in its 2008 final rule and also account for developments since 2008.  The Department specifically noted several areas that the negotiated rulemaking will consider including:

  • Ensuring that in-flight entertainment is accessible to passengers with disabilities
  • Increasing access for passengers dependent on in-flight medical oxygen
  • Clarifying the definition of a service animal
  • Ensuring that passengers wishing to travel with pets cannot falsely claim that they are service animals
  • Evaluating whether premium economy is a different class of service for disability rule purposes

Under a negotiated rulemaking, a neutral convenor assists an agency to determine the scope of issues appropriate for a rulemaking process.  If the Department decides to proceed, it then invites interested parties likely to be affected to work with the agency on an advisory committee to help form a consensus on the appropriate rule.  The Department noted that interested parties might include advocacy groups and organizations, airlines, airports, manufacturers, service animal training organizations and more.  If consensus is reached, the Department can then issue a proposed rule for public comment under routine rulemaking procedures.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622), Drew Derco (dderco@eckertseamans.com, 202-659-6665), or Reese Davidson (rdavidson@eckertseamans.com, 202-659-6633).

CONGRESS TO TIGHTEN VISA WAIVER PROGRAM

On December 18, the U.S. House of Representatives passed the Visa Waiver Program Improvement and Terrorist Travel Prevention Act when it passed its fiscal year 2016 Omnibus Appropriations Bill. The appropriations bill was later signed into law by President Obama. The Terrorist Travel Prevention legislation includes wide-ranging reforms of the Visa Waiver Program intended to prevent persons with ties to countries that support terrorism from gaining entry to the U.S. as citizens of countries participating in the Visa Waiver Program.  (Residents of participating countries are permitted to enter the U.S. without first obtaining a Visa.)

The most prominent provision of the Act prohibits citizens of Syria, Iraq, Iran, or Sudan, or travelers who have visited these countries within the last four years, from entering the U.S. under the terms of the waiver program.  While the Department of Homeland Security has expressed some concern over its ability to enforce this particular travel restriction, carriers providing transportation to the U.S. should assume that the restrictions will become effective as proposed.  In addition to the restrictions discussed above, the bill includes a number of additional modifications to the VWP, such as:

  • Starting April 1, 2016, persons traveling under the VWP must present electronic passports that comply with international standards, are machine readable, and include biometric information on the passenger.
  • No later than 270 days after the bill becomes law, participating countries must certify that they are consulting Interpol databases and information sources to screen each non-citizen entering or exiting their country for “unlawful activities” and that they are sharing any relevant information collected with the U.S.; countries that do not comply with the screening and sharing requirements may be lose their designation as a VWP participant.
  • The bill mandates that the Secretary of the Department of Homeland Security, Secretary of State, and National Security Director determine within 60 days of the bill becoming law (i.e., after the bill is signed by President Obama) whether any other countries constitute “areas of concern” based on their support for terrorism and/or policy of harboring terrorists.
  • Within 60 days of the bill becoming law, the Secretary of Homeland Security shall submit a report to Congress evaluating each VWP participant country’s potential terrorist threat to the U.S. and whether any participant country presents a “high risk” of terrorism to the U.S. and should be prohibited from participating in the VWP.
  • The bill further requires that the Secretary of Homeland Security submit a report to Congress within 90 days of the bill becoming law on each VWP participant country’s compliance with the program’s requirements and the potential threat to U.S. security each country’s participation in the program may or may not represent.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622), Drew Derco (dderco@eckertseamans.com, 202-659-6665), or Reese Davidson (rdavidson@eckertseamans.com, 202-659-6633).

CIVIL PENALTIES PROPOSED BY FAA

  • $68,000 against Unical Aviation Inc. for allegedly violating Hazardous Materials Regulations.  The FAA alleges that on July 21, 2015, Unical knowingly offered undeclared hazardous material shipments to FedEx for transport by air.  The shipments contained Protective Breathing Equipment Units, which contain an oxygen generator chemical.  The chemical can cause or enhance combustion of other materials.  The FAA further alleged that in addition to failing to declare the hazardous materials being transported, the company also failed to properly class, describe, package, mark, and label the shipments as containing hazardous materials, and did not provide emergency response information with the shipments.
  • $200,000 against Detroit’s Wayne County Airport Authority (WCAA) for allegedly failing to maintain safe airfield conditions during a November 2014 storm.  The FAA alleged that WCAA, which operates Detroit Metro-Wayne County International Airport (DTW), did not follow the FAA-mandated Snow and Ice Control Plan (SICP) during the November storm and allowed various DTW airfield surfaces to become unsafe.  WCAA also did not limit air carrier operations to safe portions of the airfield.  The FAA further alleged that WCAA did not notify airlines of changing runway conditions, failed to activate the DTW “snow desk”, and did not conduct frequent runway inspections during the storm.
  • $240,000 against Helicopter Transport Services for allegedly operating a helicopter not in compliance with Federal Aviation Regulations.  The FAA alleged that on October 8, 2012, Helicopter Transport Services installed an unauthorized gearbox in a Sikorsky S61R10 and operated the helicopter 37 times when it was not in airworthy condition.
  • $509,180 against Martinaire Aviation LLC, for allegedly violating Hazardous Materials Regulations.  The FAA alleged the cargo carrier failed to comply with Notification to Pilot-In-Command (NOPIC) requirements for carrying hazardous materials onboard an aircraft.  The purpose of NOPIC is to “provide pilots and emergency responders with complete information about hazardous materials on aircraft for emergency response purposes.”  The FAA alleged that the company did not comply with NOPIC on board its aircraft for 43 flights between October and December 2013.  The cargo on those flights included toxic, corrosive and flammable materials as well as ammunition.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622), Drew Derco (dderco@eckertseamans.com, 202-659-6665), or Reese Davidson (rdavidson@eckertseamans.com, 202-659-6633).

DOT CONSENT ORDERS

  • Violation of the 24-hour Reservation Hold Rule – The Enforcement Office found that American Airlines violated the 24 hour reservation hold rule, 14 CFR § 259.5(b)(4) and the statutory prohibition against unfair and deceptive trade practices, 49 U.S.C. § 41712, following the airline’s cancellation of 605 tickets placed on hold after a mistaken fare sale.

American Airlines experienced a technical error on its U.S. website on March 17, 2015 between 5:00 pm and 10:00 pm EDT (“sale period).  During this period, full fare business class tickets (including taxes, fees and surcharges) between select U.S. cities and Shanghai or Beijing China, were offered for sale at between $400 and $800 per ticket.  The average full fare cost of the same tickets on American Airlines for the city pairs during the days immediately before and after the sale ranged between $4,500 and $5,000.  A total of 1194 reservations were made during the sale period, while only 100 reservations per day were made in the five days prior to the sale.  American attributed this disparity to social media, which publicized the mistaken fares.  Of the 1194 reservations made during the sale, 809 were purchased immediately and the remaining 605 reservations were placed on a 24 hour hold.  American honored the purchased tickets and canceled the tickets that were on hold.

American Airlines and DOT reached a settlement and American agreed to compensate the holders of the cancelled reservations by either offering a zero dollar economy class ticket, (plus taxes and fees), or a reduced price business class ticket to China between the same city pairs as the cancelled tickets.

  • Violation of Full-Fare Rule – Middle East Airlines (MEA) was fined $10,000 and ordered to cease and desist similar violations of 49 U.S.C. §41712 and 14 CFR § 399.84.  DOT found that MEA violated the full-fare rule by including a carrier-imposed fee within an amount described as “taxes” on its U.S. directed website.

In December of 2013, a third party complaint was filed against MEA for allegedly violating DOT’s full-fare price rule.  The complainant states he used MEA’s website to obtain coach-class travel from New York, New York, to Beirut, Lebanon.  The site displayed a ticket price of $633.00 plus taxes of $734.84 for a final cost of $1,397.84.  The complainant stated there is no tax of $734.84 and alleged MEA mischaracterized a carrier-imposed fee or surcharge as a tax, which is in violation of DOT regulations.  MEA answered in January of 2014 and took corrective action to modify the website to confirm to DOT requirements.

MEA argued that because it does not have DOT economic authority, does not operate to the United States directly or in a codeshare arrangement and is not a ticket agent, DOT did not have jurisdiction to enforce section 399.94.  However, DOT found that MEA is a ticket agent because it “sells, offers for sale, negotiates for, or holds itself out as selling, providing, or arranging for, air transportation” and is therefore subject to section 399.84.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622), Drew Derco (dderco@eckertseamans.com, 202-659-6665), or Reese Davidson (rdavidson@eckertseamans.com, 202-659-6633).

FAA UAS TASKFORCE ISSUES NEW RECOMMENDATIONS

In sharp contrast to DOT’s protracted rulemaking on small unmanned aircraft systems (“SUAS”), FAA’s task force on UAS registration issues, formed in late October 2015 in response to an alleged and highly-publicized increase in unsafe UAS operations, issued a set of recommendations on November 21.  The task force solicited public comments on the registration of small unmanned aircraft systems (“SUAS”) and took it into account and the participants – who represented UAS manufacturers, model aircraft operators, sUAS interest groups, retail companies seeking to operate sUAS for commercial purposes, general aviation, and the airline industry – met for three days before coming to a consensus recommendation.

According to the recommendations, “the Task Force undertook the task to develop and recommend a registration process that ensures accountability for users of the NAS and encourages a maximum level of compliance with the registration requirement, while not unduly burdening the nascent UAS industry and its enthusiastic owners and users of all ages.”  And while FAA’s October 22 notice and request for comments clarified that the statutory requirements regarding aircraft registration of UAS apply to aircraft used for recreational or hobby purposes, the final recommendations acknowledge that the task force lacked time to assess the impact of a registration requirement on the recreational operation of model aircraft.

The Task Force’s recommendations are non-binding.  FAA’s eventual registration requirements may differ in one or more important respects from those suggested by the Task Force, although nothing in the recommendations indicates that FAA is opposed to any of the suggested approaches; if changes are eventually made, it is likely they will address the scope of the registration requirement and the recommendation that all sUAS weighing more than 250 grams – which would include a variety of so-called “toy sUAS” – be subject to a registration obligation.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622), Drew Derco (dderco@eckertseamans.com, 202-659-6665), or Reese Davidson (rdavidson@eckertseamans.com, 202-659-6633).

DOJ SUES TO PREVENT UNITED-DELTA SLOT SWAP

Days after the five low-cost carriers sent the above letter complaining about the lack of slot access at New York City airports, the U.S. Department of Justice (DOJ) filed a lawsuit seeking to block a slot-swap agreement between Delta and United.  DOJ claimed that the deal, which would involve United acquiring 24 slots from Delta at EWR, would further contribute to United’s dominant position at the airport and lead to higher airfares and fewer choices for the 35 million passenger a year who use EWR.  DOJ also alleged that United does not use as many as 82 slots a day that could otherwise be used by competitors.  DOJ chose not to challenge a related deal that involves Delta acquiring a similar number of slot pairs from United at JFK; DOJ noted a different competitive environment at JFK to explain its enforcement posture.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622), Drew Derco (dderco@eckertseamans.com, 202-659-6665), or Reese Davidson (rdavidson@eckertseamans.com, 202-659-6633).

LOW-COST CARRIERS URGE GREATER SLOT ACCESS

Representatives of five low-cost carriers (Alaska, Allegiant, Frontier, Spirit and Virgin America) wrote a letter to the U.S. Department of Transportation on November 3rd urging the Department to reform the slot allocation process at slot-restricted airports around New York City.  The Department recently sought public comment on a Notice of Proposed Rulemaking (NPRM) that would alter the slot allocation procedures at JFK, LGA and EWR airports.  The letter from the five carriers urged the Department to implement the rule in order to maximize opportunities for new-carrier entry.  They noted that New York City is the largest and most important travel market in the country and that each of the carriers had been unsuccessful in obtaining slots to expand service at those airports.  Specifically, the five carriers urged the Department to: tighten the slot utilization rule, allocate unused slots to new entrants, establish a robust secondary market for slots, review slot transactions for anti-competitive effects, allocate slots via statutory exemption and evaluate proposals for a minimum average seat requirement.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622), Drew Derco (dderco@eckertseamans.com, 202-659-6665), or Reese Davidson (rdavidson@eckertseamans.com, 202-659-6633).

Visa Waiver Program Update in Light of Paris Attacks

In the wake of last month’s terrorist attacks in Paris, which were conducted by citizens of countries that currently participate in the Visa Waiver Program, the White House has announced steps it will take to ensure terrorists from Visa Waiver Program countries are not able to enter the U.S.  While some of the proposed changes may impact the procedures foreign carriers currently implement when transporting passengers from Visa Waiver countries, the new measures have been characterized as “limited.”  More sweeping changes are possible over the course of the coming year, but will require Congressional legislation.

The following changes are likely to be implemented in the near term:

  • ​Visa Waiver partner countries will be asked to issue “e-passports” that would include greater detail on the holder’s travel history;
  • The White House plans to expand the use of the “pre-clearance program” in foreign airports in order to allow U.S. border officials to collect and screen biometric information before visa waiver travelers can board aircraft to the United States.
  • DHS will immediately take steps to modify its Electronic System for Travel Authorization (ESTA) applications to capture information from VWP travelers regarding any past travel to countries constituting a terrorist safe haven.
  • The Department of Homeland Security is planning to seek authority to increase the penalty assessed against carriers that fail to verify passenger passport information from $5,000 to $50,000.
  • The Secretaries of DHS, State, and Commerce will promote the Global Entry program among VWP partners to further expand this trusted traveler program, which includes the use of biometrics.​

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622), Drew Derco (dderco@eckertseamans.com, 202-659-6665), or Reese Davidson (rdavidson@eckertseamans.com, 202-659-6633)

New DOT Enforcement Policy on Damage to Baggage

On November 25, DOT’s Office of Aviation Enforcement and Proceedings issued a notice reminding U.S. and foreign carriers of their obligation to compensate passengers under DOT’s regulations and, in the case of international transportation, the Montreal Convention, for damage claims relating to luggage components such as wheels, straps, zippers, handles and protruding parts. According to DOT, a recent investigation revealed that U.S. and foreign carriers operating at 16 U.S. airports routinely refused to compensate passengers for damage claims involving specific parts of checked baggage, such as wheels, straps, zippers, handles, and protruding parts.  DOT further alleges that certain carriers have posted notices disclaiming liability for damage to luggage components and have discouraged agents from accepting reports of damage to baggage.

Under DOT’s regulations governing damage to baggage transported on U.S. domestic flights, carriers may not impose arbitrary limits on their liability “for provable direct or consequential damages resulting from the disappearance of, or damage to, or delay in delivery of a passenger’s personal property, including baggage, in its custody to an amount less than $3,500 for each passenger” (14 CFR 254.4).  For international flights governed by the Montreal Convention, carriers are liable for damaged or lost baggage if “the destruction, loss or damage” occurred while the checked baggage was within the custody of the carrier and, according to DOT, the Convention also prohibits lower limits on reimbursement for damage to baggage components.

In sum, DOT’s position is that its own regulations governing damage to bags in domestic transportation together with the Montreal Convention’s provisions on damage to baggage during international transportationeach prohibit carriers from refusing to compensate passengers when specific components of a traveler’s luggage are damaged but the passenger’s luggage has neither been lost or destroyed in its entirety.

In addition, DOT announced a new enforcement policy in the November 25 notice intended to address the alleged reluctance of U.S. and foreign carriers to fully compensate passengers for damaged luggage.  Specifically, beginning January 9, 2016, DOT will treat any refusal by a carrier to accept a baggage damage claim as an unfair and deceptive trade practice violating 49 U.S.C. § 41712.  Furthermore, DOT is placing carriers on notice that they must remove or modify any signage purporting to limit liability for damage to baggage wheels, straps, handles, and protruding parts by January 9.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622), Drew Derco (dderco@eckertseamans.com, 202-659-6665), or Reese Davidson (rdavidson@eckertseamans.com, 202-659-6633)