This edition of the Cozen O’Connor Aviation Regulatory Update reports on Congress’s six-month extension of FAA’s reauthorization; new U.S. Bilateral Aviation Safety Agreements with the European Union and Canada; the FAA’s final rule on the disclosure of aircraft seat dimensions to facilitate the use of child safety seats on airplanes; DOT’s latest small community air service development grants; the Treasury and Commerce Departments’ new amendments to the Cuba Sanctions Regulations that, among other things, revise rules affecting air travel and trade in aviation-related services and products; recent developments regarding unmanned aircraft; and recent DOT and FAA enforcement actions. 

Congressional Action Impacting Aviation

Congress Passes Six-Month Extension of FAA Reauthorization

On September 28, 2015, the House passed a bill extending the FAA’s reauthorization, with the Senate following suit on September 29, one day before the FAA’s current funding legislation would have expired. The measure extends FAA funding for six months, at which time transportation policy leaders have promised to craft a more extensive funding bill for the FAA that will also include major overhauls of the agency’s operations. Many believe next year’s long-term FAA spending bill will include proposals to privatize or restructure U.S. air traffic control. Funding for the FAA had been included in the first attempt at a Continuing Resolution (CR), a bill that would keep federal government spending at current levels and which would provide a stopgap until both the House and Senate could negotiate the terms of various spending proposals. However, that CR also contained a provision that would have defunded Planned Parenthood and therefore would have been rejected by Senate Democrats and vetoed by President Obama. In an effort to avoid another government shutdown, the Senate worked on a “clean” CR, one that would contain no such defunding of Planned Parenthood but, for procedural reasons, also did not include funding for the FAA. As a result, both the House and the Senate performed a last-minute scramble to enact legislation that would keep the FAA operating past its September 30 reauthorization deadline.

Unmanned Aircraft (Drones) Policies Being Debated on Capitol Hill

Proposals for regulation of unmanned aircraft are under discussion on Capitol Hill, including those that would lessen restrictions on the operation of unmanned aircraft and those that seek tighter restrictions on their use. Senator Chuck Schumer (D-N.Y.) plans to propose a “geo-fencing” requirement for unmanned aircraft to counteract the growing number of reported “incidents” involving close-calls by unmanned aircraft operations. One of these incidents included the shooting down of an anti-pigeon hunting drone during a hunting fundraiser for Senator Jim Inhofe (R-Okla.). Pro-drone organizations, meanwhile, are urging lawmakers not to make any quick decisions on drone policy.

Department of Transportation

Regulatory

DOT Publishes Proposed Timelines for “Significant” Rulemakings

DOT issued its monthly Significant Rulemaking Report projecting the following rulemaking publication dates:

DOT Provides $5.5 Million in Small Community Air Service Development Grants

DOT issued an order providing $5.5 million to 11 small communities for air service improvements under the Small Community Air Service Development Program. The grant awards were made to the following communities: Tallahassee, Fla. ($750,000), Salmon, Idaho ($150,000), Presque Isle, Maine ($250,000), Traverse City, Mich. ($750,000), Great Falls, Mont. ($385,000), Fargo, N.D. ($500,000), Redmond, Ore. ($500,000), Sioux Falls, S.D. ($500,000), College Station, Texas ($475,000), Pasco, Wash. ($750,000), and Riverton, Wyo. ($481,810).

Enforcement

DOT Notifies Kuwait Airways of Anti-Discrimination Violations

DOT issued a statement and sent a letter to counsel for Kuwait Airways alleging that the airline discriminated against an Israeli citizen who attempted to book travel on Kuwait Airways between New York (JFK) and London (LHR). DOT alleged that the airline violated U.S. anti-discrimination laws and possibly U.S. anti-boycott laws by refusing to transport an Israeli citizen between the United States and a third country (the U.K.) where his passport is recognized as a valid travel document and he is permitted to disembark based on U.K. laws. DOT stated that in order to avoid enforcement action, Kuwait Airways would be required to sell tickets to and transport Israeli citizens between the United States and any third country where they are allowed to disembark based on the laws of that country. DOT also required the airline to respond by October 15 on how it plans to comply with 49 U.S.C. § 41310 with regard to its JFK-LHR route, the only route that Kuwait Airways operates between the United States and a third country. DOT had initially determined that no unlawful discrimination had occurred, but after the complainant filed a petition for review with the U.S. Court of Appeals for the D.C. Circuit, DOT reopened its investigation and reconsidered the allegations.

DOT Imposes $100,000 in Civil Penalties Against Spirit Airlines for Alleged Tarmac Delay Violations

DOT issued a consent order assessing $100,000 in civil penalties against Spirit Airlines for alleged violations of DOT’s tarmac delay rules. DOT alleges that following a Spirit flight’s diversion to Houston due to severe weather, the carrier failed to provide passengers with an opportunity to deplane before the tarmac delay exceeded three hours. DOT also said that while the aircraft was parked, Spirit failed to provide food and drinks to passengers within two hours after the aircraft’s arrival. In its defense, Spirit asserted that the captain relied on ATC information that a departure lane was open and the aircraft could soon be in the air, and as a result did not allow passengers to deplane or food and drinks to be served. The captain believed this was “in the best interest of the passengers” as she expected a speedy departure. Spirit stated that although the three-hour mark passed on the taxiway, the captain determined that had the flight returned to the gate, the flight crew would have timed out, delaying passengers from continuing on to their intended destination of Dallas/Fort Worth. DOT ordered Spirit to pay $50,000 within 30 days, with the remaining $50,000 due and payable if Spirit violates the order’s cease and desist provisions within one year of the issuance of the consent order.

American Airlines Assessed $20,000 in Civil Penalties for Denied Boarding Violations

American Airlines was assessed $20,000 in civil penalties pursuant to a consent order issued by DOT alleging that the carrier violated DOT’s oversales regulations and related reporting requirements. DOT alleges that American denied boarding to a group of 11 passengers without providing “any meaningful explanation” nor offering them any type of compensation. In response to the passengers’ complaint filed with DOT, American initially offered denied boarding compensation that DOT deemed to be inadequate based on the total roundtrip fare paid. DOT questioned American’s exclusion of taxes and fees in its calculation of the compensation, and American subsequently increased the compensation amount after “repeated inquiries” from DOT’s Enforcement Office. DOT said that American also violated 14 C.F.R. § 259.5 and its Customer Commitment by failing to properly handle “bumped” passengers. In addition, American was found to have violated DOT’s oversales reporting requirements by misclassifying passengers who were denied boarding involuntarily as volunteers.

DOT Issues Consent Order Alleging Unauthorized Charter Air Transportation by Beijing Capital Airlines

DOT issued a consent order imposing $40,000 in civil penalties against Beijing Capital Airlines d/b/a Deer Jet for allegedly operating unauthorized charter air transportation between the United Kingdom and the United States. In mitigation, Beijing Capital contended that the aircraft used for the charter flight was leased to a third-party charter broker, which Beijing Capital expected would comply with all applicable regulatory requirements. The carrier stated that it would be applying for exemption authority and a foreign air carrier permit to serve the United States so that it would have all necessary authorizations prior to any future U.S. charter operations. The carrier was ordered to pay $20,000 within 30 days of the issuance of the consent order, with the remaining $20,000 due and payable if, within one year of the date of the order, Beijing Capital violates the order’s cease and desist provision.

Federal Aviation Administration

Regulatory

FAA Announces New Bilateral Aviation Safety Agreements with EASA, Canada

The FAA announced new U.S. Bilateral Aviation Safety Agreements with the European Aviation Safety Agency (EASA) (Technical Implementation Procedures for Airworthiness and Environmental Certification) and Transport Canada (Implementation Procedures for Airworthiness (Amendment 1 to Revision 1)) that will allow reciprocal acceptance of the majority of Technical Standard Order (TSO)-approved articles. The new agreement with EASA also facilitates acceptance of the classification for basic Supplemental Type Certificates. The FAA said that an audit process will ensure that technical classifications continue to meet established criteria and ensure that safety standards are being met.

FAA Sets Deadline for Carrier Submission of Summer 2016 Flight Schedule Information

The FAA issued a notice setting a deadline of October 8, 2015, for carriers to submit their summer 2016 flight schedules (covering from March 27 through October 29, 2016) at Los Angeles International Airport (LAX), Chicago O’Hare International Airport (ORD), San Francisco International Airport (SFO), John F. Kennedy International Airport (JFK), and Newark Liberty International Airport (EWR) in accordance with IATA Worldwide Slot Guidelines. The FAA is primarily requesting information on “scheduled and other regularly conducted commercial operations during peak hours,” but carriers may submit schedule plans for the entire day. The schedule information should include, at a minimum, the operating carrier, flight number, scheduled time of operation, frequency, and effective dates. IATA’s standard schedule information format and data elements (Standard Schedules Information Manual or SSIM, Chapter 6) may be used. Schedules should be submitted to the FAA’s Slot Administration Office.

FAA Issues Final Rule on Disclosure of Seat Dimensions to Facilitate Use of Child Safety Seats on Airplanes

The FAA issued a final rule requiring Part 121 air carriers to publish on their web sites the maximum width of the seats on each aircraft they operate to allow passengers to determine which child restraint systems can be used on the carriers’ aircraft. Carriers will be required to identify the width of the narrowest and widest passenger seats in each class of service for each make, model and series of airplane used in passenger-carrying operations. The FAA stated that the final rule will provide caregivers with additional information on whether an FAA-approved child restraint system will fit on the aircraft on which they plan to travel. The FAA also updated its advisory circular (AC 120-87C) on the use of child restraint systems on aircraft to address the final rule’s seat dimension disclosure requirements. In addition, the FAA plans to update its “Information for Operators (InFO) 11007, Regulatory Requirements Regarding Accommodation of Child Restraint Systems.” The final rule is effective October 30, 2015, and compliance is required by February 29, 2016.

DOT Inspector General Issues Audit Report on FAA Air Traffic Controller Productivity

DOT’s Office of the Inspector General (OIG) issued a report on its audit of FAA air traffic controller productivity. OIG found that although total air traffic operations handled by FAA air traffic control facilities declined by 19 percent between fiscal years 2004 and 2013, FAA’s operations budget increased by 0.6 percent, air traffic controller costs decreased by only 6 percent, while controller overtime hours increased by 12 percent. The report criticized the FAA for not regularly analyzing its operational and cost data to determine if cost reductions or productivity improvements could be achieved. The report was prepared at the request of the House Aviation Subcommittee.

FAA Publishes Updated Advisory Circular on Recreational Use of Unmanned Aircraft/Model Aircraft

The FAA revised its guidance on model aircraft operations and hobby or recreational use of unmanned aircraft systems (UAS) by issuing Advisory Circular 91-57A.  The new AC revises the description of a “model aircraft operation” to comply with UAS requirements included in the FAA Modernization and Reform Act of 2012. To qualify as a “model aircraft operation” and not a commercial operation requiring FAA licensing, a UAS must be flown strictly for hobby or recreational use; the UAS must be operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization (CBO); the UAS and its payload must not weigh more than 55 pounds, unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a CBO; the UAS must not interfere with, and must give way to, any manned aircraft; and when flown within five miles of an airport, the model aircraft or model UAS operator is required to provide the airport operator or the airport air traffic control tower with prior notice of the operation. The AC also clarifies that model UAS operations that endanger airspace safety, such as careless or reckless operations and interference with manned aircraft, may be subject to FAA enforcement action.

Enforcement

FAA Releases List of Recent Unmanned Aircraft-Related Incidents

The FAA released a list of recent reports of incidents involving unmanned aircraft systems (UAS) that occurred between November 13, 2014 and August 20, 2015. The list records over 700 close encounters reported by pilots, air traffic controllers and citizens, a dramatic increase in such incidents over the past year. The FAA has warned that unauthorized UAS operations, especially near other aircraft, are illegal and may be subject to stiff penalties and criminal charges. The FAA is currently investigating about 15 instances of alleged unauthorized UAS operations.

FAA Proposes Civil Penalties Against the City of Cleveland for Alleged Airport Safety Violations

The FAA issued a release proposing to assess $735,000 in civil penalties against the City of Cleveland for failing to maintain a safe airport during winter weather conditions. The FAA alleges that during a 15-month period ending in March 2015, Cleveland Hopkins International Airport failed on numerous occasions to keep its runways and taxiways safe and clear of snow and ice.

FAA Alleges Sun Country Airlines Violated Drug and Alcohol Testing Regulations

The FAA issued a release alleging that Sun Country Airlines violated federal drug and alcohol testing regulations and proposing to assess a $114,975 civil penalty against the carrier. The FAA stated that Sun Country failed to conduct pre-employment drug tests and receive verified negative results before hiring or transferring a mechanic and three flight attendants into safety-sensitive positions. The FAA also alleged that one of the flight attendants performed in-flight duties before she was subjected to a pre-employment drug test, and that the airline transferred another employee from a non-safety sensitive position into a safety-sensitive position more than 180 days after she had taken a pre-employment drug test without retesting the employee. In addition, the FAA alleged that Sun Country failed to include a pilot and seven aviation screeners in its random drug and alcohol testing pool.

Mesa Airlines Faces $174,600 Proposed FAA Civil Penalty

Mesa Airlines is facing a $174,600 civil penalty for allegedly violating federal drug and alcohol testing regulations. In a release, the FAA claims that Mesa hired six employees for safety-sensitive positions – five aircraft dispatchers and one quality assurance inspector – but failed to place them in its random drug and alcohol testing pools. All five dispatchers allegedly performed safety-sensitive functions while not in the random pools. The FAA also alleges that Mesa failed to notify the FAA that an employee who held an FAA mechanic certificate refused to submit to a drug test within the two‑day period specified in the regulations, and that Mesa used a DOT drug testing form when conducting a non‑DOT drug test triggered by Mesa’s determination that an accident occurred when in fact no accident occurred, among other violations.

FAA Proposes to Assess $211,000 Civil Penalty Against Dukes Aerospace Inc.

The FAA issued a release proposing to assess $211,000 in civil penalties against Dukes Aerospace, Inc. for allegedly violating federal drug and alcohol testing regulations. Specifically, the FAA claims that Dukes failed to include four of its safety sensitive employees in random drug and alcohol testing pools; receive verified negative results before transferring nine employees into safety sensitive positions; ask 10 safety‑sensitive employees whether they had tested positive or had refused to submit to a DOT pre-employment drug or alcohol test at other companies they had applied to for safety‑sensitive transportation work during the previous two years; use a scientifically valid method of random selection for a drug test; and conduct a random drug test on two employees rather than the alcohol test for which they had been selected, among other violations. Dukes has requested to meet with the FAA to discuss the case.

FAA Proposes Civil Penalties Totaling $360,000 against Empire Airlines

Empire Airlines faces a $360,000 civil penalty for allegedly operating a Cessna Caravan that was not in compliance with Federal Aviation Regulations, the FAA said in a release. According to the FAA, one of the airline’s Cessna Caravans experience a lightning strike. FAA regulations required that the propeller be removed from service and inspected for damage at an authorized aircraft repair station. While Empire Airlines inspected the aircraft after the event, it did not service the propeller as required, the FAA said. Empire operated the aircraft on 35 revenue flights before removing its propeller from service and sending it to an authorized repair station for the required inspection and it was not in an airworthy condition during those flights, the FAA alleged.

FAA Proposes $173,500 Civil Penalty against Servisair LLC

The FAA has proposed a $173,500 civil penalty against Servisair LLC for allegedly violating federal drug and alcohol testing regulations. The FAA specifically stated in a release that Servisair failed to include ten of its safety-sensitive employees in random drug and alcohol testing pools during several months in 2013. Three of the employees performed safety-sensitive functions a total of 24 times while not in the random pool. Further, according to the FAA, Servisair should have conducted 19 random drug tests in 2013 but only conducted eight. Servisair is scheduled to meet with the FAA in October to discuss the proposed penalty.

Bureau of Industry and Security/Office of Foreign Assets Control

BIS/OFAC Amend Cuba Sanctions Regulations, Including Aviation-Related Requirements

The Treasury Department’s Office of Foreign Assets Control (OFAC) issued amendments to the Cuba sanctions regulations that include new provisions affecting air travel. In addition, the Department of Commerce’s Bureau of Industry and Security (BIS) published air travel-related amendments that provide for a case-by-case review of license applications for exports and re-exports to Cuba of items to help ensure the safety of civil aviation and the safe operation of commercial passenger aircraft, including aircraft parts and components; software and technology related to safety of flight; air traffic control, aviation communications, and aviation weather related equipment; airport safety equipment; and devices used for security screening of passengers and baggage. Also, the amended License Exception for Aircraft, Vessels, and Spacecraft (AVS) authorizes aircraft on temporary sojourn to remain in Cuba for up to seven consecutive days. Certain persons and entities subject to U.S. jurisdiction, including providers of carrier and certain travel services, as well as those providing mail or parcel transmission services or certain cargo transportation services, will be allowed to establish and maintain offices and/or warehouses in Cuba. These individuals and entities will also be authorized to employ Cuban nationals, open and maintain bank accounts in Cuba, and employ persons subject to U.S. jurisdiction in Cuba. The amendments became effective on September 21, 2015.

Transportation Security Administration

TSA Clarifies Pre-Check Policy

Although it has been reported that TSA was no longer allowing individuals who were not enrolled in the TSA Pre-Check program to use the expedited security screening lines at airports, the TSA further clarified the new policy. According to an update from the TSA, passengers that are screened by a dog “sniff” test will be able to use the expedited Pre-Check lines if it is not burdensome to those individuals who have actually enrolled in the program.

Government Accountability Office

GAO Issues Report Criticizing the FAA’s NextGen Global Interoperability Efforts

GAO issued a report discussing aviation industry stakeholders’ concerns regarding the interoperability of NextGen with other countries' air-traffic management system modernization efforts. The report criticizes the FAA’s lack of a mechanism for comprehensively identifying and assessing risks and for prioritizing resources to manage NextGen's interoperability risks. GAO contends that the FAA has not conducted a comprehensive risk assessment or analysis of threats and vulnerabilities specific to NextGen interoperability, and that without a more comprehensive approach to assessing and managing risks, the FAA is not well positioned to ensure that its strategy effectively mitigates all potential risks to NextGen's interoperability or to prioritize resources toward actions that will manage and mitigate those risks. The report recommends that the FAA conduct a comprehensive assessment of risks to NextGen's global interoperability and identify how to mitigate risks and prioritize resources.