An Update on DOT’s Passenger Protection Rulemaking #3, NextGen, Ebola, Drones, Enforcement Actions, Security Fees and Other Aviation Regulatory Matters

by Cozen O'Connor
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Department of Transportation

Regulatory

Comments Filed on DOT’s Passenger Protection #3 Rulemaking

U.S. and foreign airlines, airline associations, airports, consumer groups, on-line travel agencies, travel companies, metasearch travel websites, global distribution systems, the Airline Tariff Publishing Company and other interested parties filed comments on September 29 regarding DOT’s proposed “Transparency of Airline Ancillary Fees and Other Consumer Protection Issues” rulemaking. Most of the comments focused on the availability and transactability of airline ancillary services and related fees.

DOT Inspector General Announces Audit of FAA Progress on the Implementation of NextGen

On September 22, DOT’s Office of the Inspector General issued a memorandum announcing an audit of the FAA’s progress on the implementation of the Next Generation Air Transportation System (NextGen) to modernize the U.S. air traffic control system. The audit will focus on any formal changes the FAA has made to its NextGen programs’ scope, including costs and schedules, and adjustments in the FAA’s anticipated benefits with regard to reducing its costs and improving the flow of air traffic.

DOT Awards Small Community Air Service Development Program Grants

DOT issued an order on September 30 awarding 16 grants totaling $7 million under the Small Community Air Service Development Program to help cities enhance air service and address issues related to high airfares. Awards were made to Redding, Calif., Panama City, Fla., Columbus, Ga., Boise, Idaho, Moline, Ill., Columbus, Miss., Gulfport-Biloxi, Miss., Bozeman, Mont., Roswell, N.M., Cheyenne, Wyo., and Sheridan, Wyo., to use for revenue guarantees and/or marketing support to attract new carriers, restore lost service or capacity, and/or provide air travelers with access to additional markets. Grants were also awarded to Watertown, N.Y., and Eau Claire, Wis., to be used by those two Essential Air Service communities to market existing air service, and to Montgomery, Ala., Yakima, Wash., and Rapid City, S.D. to be used to market existing air service at their airports.

Enforcement

DOT Assesses Civil Penalties Against Cathay Pacific Airways for Alleged Full-Fare Advertising Violations

On October 17, DOT issued a consent order against Cathay Pacific Airways Limited, alleging the carrier violated DOT’s full-fare advertising regulations by failing to include carrier surcharges and government-imposed taxes and fees in its website-advertised fares. Cathay Pacific told DOT that its fare displays did not include mandatory fees and taxes because the carrier did not believe that the full-fare advertising rule applied to fares on flights originating outside the United States. DOT ordered Cathay Pacific to cease and desist from future similar violations and assessed a civil penalty of $260,000 against the carrier, with $130,000 due and payable within 30 days and the remainder only due and payable if Cathay Pacific commits similar violations within one year of the issuance of the order.

Federal Aviation Administration

Regulatory

FAA/CDC Issue Statements and Guidance on Ebola Virus’s Impact on Flights

On October 23, the FAA issued a statement regarding its monitoring of the Ebola virus and potential impact on flights. The FAA stated that the health and welfare of flight crews, airline workers and the traveling public is a priority of the FAA and that any decision to restrict flights between the United States and other countries due to public health concerns would be made in tandem with the Departments of Health and Human Services/Centers for Disease Control and Prevention (CDC), State, Homeland Security and Transportation. The FAA stated that the World Health Organization and the CDC have not recommended general travel restrictions to or from the countries affected by Ebola. On October 15, the CDC provided airlines with updated guidance for airline cleaning personnel, as well as general infection control precautions.

FAA, Industry Send Plan to Congress to Accelerate NextGen

The FAA and the aviation industry sent a NextGen Priorities Joint Implementation Plan to Congress on October 17 outlining how the FAA plans to accelerate the implementation of key NextGen initiatives over the next three years. Under the plan, the FAA proposes to institute new procedures involving: 1) the use of Multiple Runway Operations at 36 airports nationwide to increase airport efficiency and reduce flight delays; 2) the deployment of satellite-based navigation procedures known as Performance-Based Navigation in Northern California, Atlanta and Charlotte to provide more direct flight paths, improved airport arrival rates, enhanced controller productivity, increased safety due to repeatable and predictable flight paths, fuel savings and a reduction in aviation’s environmental impact; 3) an increase in Surface Operation data sharing to increase predictability and provide “actionable and measurable surface efficiency improvements” at U.S. airports; and 4) the acceleration of work on the FAA’s Data Communications services, which upgrades communication between pilots, air traffic controllers and airline operations centers from voice to digital, providing enhanced safety and efficiency of the airspace system.

FAA Grants Exemptions for Commercial Use of Drones by Movie and TV Production Companies

DOT Secretary Anthony Foxx announced on September 25 the FAA’s approval of regulatory exemptions granted to six aerial photo and video production companies that allows them to use drones in the National Airspace System. The FAA also determined that the drones did not need an FAA-issued certificate of airworthiness based on a finding that they would not pose a threat to national airspace users or national security. The Motion Picture Association of America facilitated the exemption requests on behalf of its members Astraeus Aerial, Aerial MOB, LLC, HeliVideo Productions, LLC, Pictorvision Inc., RC Pro Productions Consulting LLC d/b/a Vortex Aerial and Snaproll Media, LLC.

FAA Issues Proposed Acceptance Criteria for Portable Oxygen Concentrators Used on Board Aircraft

On September 19, the FAA issued a notice of proposed rulemaking that would establish new acceptance criteria for passenger use of portable oxygen concentrators (POCs) on board aircraft operated under 14 C.F.R. Parts 121, 125, and 135. The proposed rule would replace Special Federal Aviation Regulation No. 106 (SFAR No. 106) and the FAA’s current process of assessing each POC on a case-by-case basis to determine safety with the new acceptance criteria and require POC manufacturers to demonstrate compliance by affixing a label on the POC exterior in a manner that ensures it will remain affixed for the life of the POC. The proposed acceptance criteria and labeling requirement would only affect POCs intended for use on board aircraft, and POCs currently approved for use on board aircraft would be listed in any final regulations as having been previously approved. Comments on the proposed rule are due November 18, 2014.

FAA Publishes New Schedule of Charges for Flight Standards Services Performed Outside the United States

The FAA issued a notice of availability of Advisory Circular 187-1H, which updates the schedule of charges for services performed by FAA’s Flight Standards Aviation Safety Inspectors outside the United States. The AC contains new fee information for certification, approval, authorization, inspection and renewal services provided under Parts 61, 63, and 65 (Airman Certification) and Parts 141, 142, 145 and 147 (Air Agency Certification). The new fees became effective on October 1.

Enforcement

FAA Proposes Civil Penalties Against Gulfstream Aerospace Corp. for Alleged Training Violations

The FAA issued a press release on September 16 proposing $425,000 in civil penalties against Gulfstream Aerospace Corp., for its alleged failure to properly train aircraft mechanics. FAA inspections between November 2009 and March 2010 found that Gulfstream allowed mechanics to maintain aircraft when they had not completed the required training and that the company’s employee training records were unclear as to whether such training had been completed.

FAA Proposes Civil Penalties Against Three Companies for Alleged Hazardous Materials Violations

On September 22, the FAA proposed civil penalties ranging from $57,400 to $63,000 against three companies, Mattoon Rural King Supply, Inc., MidContinental Chemical Company Inc., and Aeroplus Interiors, Inc., for allegedly violating the Hazardous Materials Regulations (HMR). The FAA alleges that the companies’ shipments were: 1) not accompanied by shipping papers indicating hazardous materials; 2) not marked, labeled or packed in accordance with the HMR; and 3) not packaged adequately for shipping and protecting against a release of hazardous materials. The FAA also alleged the companies failed to provide emergency response information and ensure their employees had received required training in packaging and shipping hazardous materials.

Customs and Border Protection

Regulatory

CBP Restricts Flight Arrivals from Ebola-Stricken Countries

In response to the growing international health threat posed by the Ebola virus, Customs and Border Protection (CBP) issued a Notice of Arrival Restrictions, which requires all flights to the United States transporting persons who have recently traveled to, from or through Ebola-stricken countries (Liberia, Guinea and Sierra Leone) to arrive at one of the following five U.S. airports where CBP is implementing enhanced screening procedures: New York’s John F. Kennedy International Airport (JFK); Newark Liberty International Airport (EWR); Washington Dulles International Airport (IAD); Chicago O’Hare International Airport (ORD); and Hartsfield-Jackson Atlanta International Airport (ATL). These restrictions, which became effective on October 21, 2014, will remain in effect until superseded, modified or revoked by CBP.

Transportation Security Administration

Regulatory

TSA Terminates Aviation Security Infrastructure Fee

TSA issued a final rule on September 23 terminating its authority to impose the Aviation Security Infrastructure Fee on U.S. and foreign air carriers as of October 1. The termination of the fee was mandated by the Bipartisan Budget Act of 2013, which restructured the security fee imposed on passengers and repealed TSA’s authority to impose a security fee on carriers. TSA reminded carriers that any fees collected before 11:59 p.m. on September 30, 2014, must be transmitted to TSA consistent with current fee remittance procedures.

National Transportation Safety Board

NTSB Extends Comment Period on Rulemaking to Amend Its Investigation Procedures

The NTSB issued a notice on October 10 extending the comment period on its rulemaking to revise the agency’s “event” investigation procedures. Comments are now due on October 31, 2014.

Government Accountability Office

GAO Issues Report on Impact of Fuel Price Increases on the Aviation Industry

The GAO issued a report that discusses 1) the impact of aviation fuel price increases over the past 10 years on commercial passenger aviation and general aviation, and 2) the results of GAO's analysis of how future fuel price increases could impact the Airport and Airway Trust Fund.

Congressional Action Impacting Aviation

House Passes Bill to Limit TSA’s Passenger Security Fee

Responding to strong opposition from airlines and air travel consumers, the U.S. House of Representatives on September 17 passed a bill, H.R. 5462, which would limit the amount that TSA could collect in passenger security fees to $5.60 per one-way trip and $11.20 per round trip. The bill, passed by a unanimous vote of 423-0, is seen as correcting what some think is TSA’s misinterpretation of the passenger security fee increase allowed in the 2013 budget agreement.

President Obama Signs Continuing Resolution Extending Export-Import Bank Authorization Through June 2015

On September 19, President Obama signed into law H.J. Res. 124, the continuing resolution passed by Congress that extends the Export-Import Bank’s authorization and its ability to issue aircraft loan guarantees through June 30, 2015.

Court Action Potentially Impacting Aviation

First Circuit Court of Appeals Issues Decision Favoring Broad Application of Federal Preemption

The First Circuit Court of Appeals issued an opinion in Massachusetts Delivery Association v. Coakley, No. 13-2307 (September 30, 2014), overturning a lower court’s refusal to preempt a Massachusetts independent contractor law under the preemption provision of the Federal Aviation Administration Authorization Act, which prohibits state and local regulation related to prices, routes or services of motor carriers, and was substantially derived from the express preemption provision of the Airline Deregulation Act. An association of motor carrier delivery companies challenged the Massachusetts law that limits the types of workers that may be classified as independent contractors, claiming that the law should be preempted by the Act. Among other things, the association claimed that the law, by limiting who could be designated as independent contractors, would nearly double labor costs and raise “prices.” In its decision, the First Circuit rejected arguments that general employment laws are per se preempted or that their potential or indirect impact on prices is insufficient for preemption. Instead, the court emphasized the breadth of the federal preemption provision and held that indirect and/or potential impact on prices can be sufficient to trigger preemption if significant. The First Circuit also asserted that the lower court should have considered the employment law’s potential impact on motor carriers’ services and routes, as well as prices. The court remanded the case and instructed the lower court to decide the preemption issue consistent with these principles.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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