This edition of the Cozen O’Connor Aviation Regulatory Update discusses DOT’s launch of an investigation of alleged price gouging by airlines following Amtrak train service disruption in the Northeast Corridor, the agency’s continuing review of the Delta/Aeromexico antitrust immunity application, DOT’s and the Departments of State and Commerce’s ongoing review of subsidy allegations brought by the 3 largest U.S. carriers against Emirates, Etihad Airways, and Qatar Airways, new DOT guidance and rules on disabled passenger accommodations, recent DOT and FAA enforcement actions, and Congressional action on a wide range of aviation-related issues.          

Department of Transportation

Regulatory

DOT Investigates Airline Fare Increases for Potential Link to Temporary Amtrak Shutdown

DOT sent a letter to Delta Air Lines, American Airlines, United Airlines, Southwest Airlines and JetBlue requesting pricing information to determine if the carriers’ temporary fare increases on northeastern U.S. routes were prompted by the May 12, 2015, Amtrak derailment and temporary shutdown of train service in the northeastern part of the U.S. DOT said it received consumer complaints about “irregular fares” in the period after the May 12th derailment, and is investigating whether air carriers engaged in “price gouging” during the period when Amtrak service along the Northeast Corridor was delayed or suspended as a result of the derailment. The carriers were required to provide the information by August 23rd.

DOT Requests Additional Information from Delta/Aeromexico and Mexican Airport Authorities on ATI Application

DOT issued an order requesting additional information from Delta Air Lines and Aeromexico regarding their application for antitrust immunity. JetBlue had filed a motion requesting that DOT require Delta and Aeromexico to submit additional documents and data addressing slot constraints and airport access issues at Mexico City International Airport. DOT required Delta and Aeromexico to submit additional documents and data and answer clarification questions about Mexico City slot allocations, slot management rules, and the projected public benefits from the carriers’ proposed joint venture. DOT also submitted questions to Mexican airport authorities regarding access to slots and facilities at Benito Juarez International Airport (MEX) and Toluca International Airport (TOL). DOT required the authorities to submit their responses by September 18, 2015.

Deadline Ends to File Comments With DOT, State and Commerce Departments Regarding Gulf Carrier Subsidy Allegations

The deadline for submitting comments to DOT and the Departments of State and Commerce regarding the 3 major U.S. carriers’ allegations that Emirates, Etihad Airways, and Qatar Airways have benefitted from government subsidies expired on August 3rd. The deadline for filing reply comments is August 24, 2015. Once the three agencies have reviewed the comments, they will decide whether or not to hold consultations with the governments of the United Arab Emirates and Qatar regarding the alleged subsidy allegations and capacity levels operated under their respective open skies agreements.

DOT Issues Final Rule on Disabled Passenger Accommodations at U.S. Airports

DOT issued a final rule amending its regulations requiring disabled passenger accessibility at U.S. airport facilities with 10,000 or more annual enplanements that receive federal financial assistance. The final rule requires airports to provide at least one wheelchair-accessible service animal relief area in each airport terminal no later than August 4, 2016, and requires airports to consult with service animal training organizations regarding the design, dimensions, materials and maintenance of such relief areas. The final rule also requires airports to provide high-contrast captioning of televisions and audio-visual displays at all times in any gate area, ticketing area, first-class or other passenger lounge, or any common area of the terminal to which passengers have access, that are owned, leased, or controlled by the airports. Airports are also required to work with both U.S. and foreign air carriers to ensure that mechanical lifts, ramps, or other devices are available where level entry loading bridges are not available, and enter into written agreements with carriers allocating responsibility for meeting the boarding and deplaning assistance requirements for disabled passengers no later than November 3, 2015. The final rule becomes effective on October 5, 2015.

DOT Publishes Guidance on Air Travelers with Developmental Disabilities

DOT issued guidance regarding air travelers with developmental disabilities, which provides “a brief but authoritative source of information” on airlines’ legal responsibilities to accommodate passengers with such disabilities. DOT stated that “the document does not expand airlines’ legal obligations or establish new requirements under the law.” The guidance informs passengers with developmental disabilities of their legal rights under the Air Carrier Access Act (“ACAA”) and Part 382, and provides them with information on how they can prepare for air travel and the services they can expect to receive; confirms that individuals “on the autism spectrum” or with other developmental disabilities are individuals with disabilities under the ACAA and Part 382; provides guidance on how airlines should assign bulkhead seats to disabled passengers; and reminds airlines that safety and health risks impacting disabled passengers’ ability to be transported must be assessed on a case by case basis, and airlines cannot presume a risk based on a person’s autism or other developmental disability diagnosis.

DOT Issues Updated List of Air Carrier Tariff Filing Exemptions

DOT updated its list of tariff filing exemptions under 14 C.F.R. Part 293 for country-pair markets. The list shows the countries whose air carriers are exempt from the statutory and regulatory duty to file international passenger tariffs with DOT, as well as the countries whose carriers are still required to file such tariffs.

DOT Advisory Committee for Aviation Consumer Protection Schedules September Meeting

DOT issued a notice scheduling the next public meeting of its Advisory Committee for Aviation Consumer Protection for September 1, 2015, at DOT headquarters. The committee plans to discuss recommendations submitted to it during the past three public meetings addressing government-imposed taxes and fees, airline mergers and consolidations, space allocated per passenger on aircraft, airline frequent flyer programs, airline change/cancellation fees, baggage allowances, airline fees and interlining. The committee also plans to provide its preliminary recommendations to DOT as part of its report to the Secretary on improvements to existing aviation consumer protection programs.

Enforcement

DOT Assesses Civil Penalties Against Great Lakes Aviation for Alleged EAS Service Suspension Without Adequate Notice

DOT issued an order assessing $40,000 in civil penalties against Great Lakes Aviation due to the carrier’s alleged failure to provide advance notice before suspending or reducing air service it provided under the Essential Air Service (“EAS”) Program. DOT alleged that between January 1, 2014, and April 8, 2014, Great Lakes ceased providing EAS service to 13 of the 32 EAS communities that it served without providing the required 90-day notice to DOT and the communities and passengers affected. DOT also alleged that Great Lakes reduced service below EAS minimum levels to three other EAS communities. DOT required Great Lakes to pay a penalty of $40,000 in four installments, with the first installment of $10,000 due and payable within 30 days after the service date of the consent order, and each of the remaining installments due and payable on September 1, 2015, October 1, 2015, and November 1, 2015.

Federal Aviation Administration

Regulatory

DOT Inspector General Announces Audit of FAA Oversight of Unapproved Parts

The DOT Office of Inspector General (“OIG”) announced it will conduct a review of the FAA’s oversight of Suspected Unapproved Parts (SUPs) beginning in August 2015. SUPs are aircraft parts that are suspected of being manufactured without FAA approval or parts that have been intentionally misrepresented (i.e., counterfeit). Since 2007, FAA has issued 70 notifications to the aviation industry specifically related to SUPs.  Additionally, in the last 5 years, OIG has investigated 118 SUPs cases, which resulted in 63 indictments and 51 convictions. Specifically, the OIG has said it will assess the effectiveness of FAA’s (1) process for monitoring and investigating suspected unapproved parts, and (2) oversight of industry actions to remove unapproved parts from the aviation supply chain.

Pilots Report Significant Increases in Close Calls with Drones, FAA Says

According to the FAA, pilots have reported significantly more sightings of unmanned aircraft, with a reported total of 238 sightings in 2014 jumping to more than 650 sightings by August 9, 2015.  Pilots operating different types of aircraft, including commercial airliners, reported spotting 16 unmanned aircraft in June of 2014, and 36 the following month. This year, 138 pilots reported seeing drones at altitudes of up to 10,000 feet during the month of June, and another 137 in July. Additionally, firefighters in the western United States have been forced to stop firefighting operations due to the presence of one or more unmanned aircraft nearby. In addition to continuing to mount its “Know Before You Fly” campaign, the FAA is working with law enforcement to investigate unauthorized unmanned aircraft operations. The FAA said it has levied civil penalties for a number of unauthorized flights in various parts of the country and that it has dozens of open enforcement cases.

FAA Issues Notice of Types of ATC Services Provided in U.S.-Controlled Oceanic Airspace

The FAA issued a notice informing airspace users of the types of ATC services provided by the FAA in oceanic airspace under U.S. control, which includes ATC services over the domestic U.S. and within certain areas of the western half of the North Atlantic, the Gulf of Mexico, the Caribbean, and the North Pacific. This includes ATC services provided in Control Areas and Flight Information Regions (“FIRs”). The notice was prompted by ICAO recommendations that all Contracting States define their oceanic airspace and inform interested parties as to the type of ATC services that would be provided. 

FAA Reminds Operators of Noise Requirements for Small Jet Aircraft

The FAA issued a notice reminding operators of jet aircraft weighing 75,000 pounds or less that as of December 31, 2015, their operations in the contiguous 48 U.S. states must be conducted only with aircraft that comply with at least Stage 3 noise levels, except for aircraft that have an experimental airworthiness certificate. Operators that fail to meet this requirement may be subject to enforcement action unless their operations are conducted under special flight authorizations granted by the FAA on a case-by-case basis.

FAA Notifies Airlines of Deadline for Submitting LaGuardia Airport Slot Adjustments for Winter 2015 Traffic Season

The FAA issued a notice announcing an August 5, 2015 submission deadline for carrier requests to adjust slot times and arrival/departure designations at LaGuardia Airport for the upcoming Winter 2015 IATA scheduling season. The FAA stated that if a carrier wanted to adjust slot times and arrival/departure designations, they are required to submit to the FAA’s Slot Administration Office the following information: the name of the operating carrier, slot number, the current and requested slot arrival or departure times, frequency, and effective dates. The FAA said that new entrants and limited incumbents would be given priority if the FAA received conflicting retiming requests.  When evaluating requests, the FAA stated that it would consider “the overall operational impact at LGA and whether the requests improve or have a neutral effect on operational performance.” The FAA planned to respond to the requests no later than August 12, 2015.

FAA Releases Wildlife Strike Report

At the request of the FAA, wildlife expert Dr. Richard A. Dolbeer published a wildlife strike report, which shows that 47 percent of the wildlife strikes that occurred from 2009 to 2013 were reported to the FAA’s National Wildlife Strike Database. That number is up from 42 percent for the previous reporting period of 2004 to 2008. The report credits FAA’s proactive outreach with aviation industry and government partners for improving the quantity and quality of voluntary wildlife strike reporting. The report highlights a decrease in the number of damaging strikes in general and within the airport environment.

FAA Publishes Q&A on Air Traffic Controller Fatigue Assessment Report

The FAA published a Q&A on NASA’s air traffic controller fatigue assessment report. The Q&A discusses the results of the FAA’s implementation in 2012 of its Fatigue Risk Management System to manage controller fatigue.  

Enforcement

FAA Proposes to Assess Over $1 Million in Civil Penalties Against SkyWest Airlines

The FAA issued a release proposing to assess $911,000 in civil penalties against SkyWest Airlines for allegedly failing to inspect the cargo door skins on two Bombardier CL-600 aircraft as required by a 2006 Airworthiness Directive issued after cracks were found in the aluminum cargo door skin of a CL-600 during fatigue testing. The FAA alleges that SkyWest operated the aircraft on 15,969 flights when the inspections were overdue. The FAA also issued a separate release proposing an additional $320,000 in civil penalties against SkyWest for alleged failure to inspect main landing gear components on four Bombardier CL-600 aircraft as required. The FAA said that SkyWest allegedly operated the aircraft on more than 6,700 flights when the inspections were overdue.

FAA Proposes $325,000 Civil Penalty Against Southwest Airlines

Southwest Airlines faces a $325,000 civil penalty for allegedly operating a Boeing 737 in violation of Federal Aviation Regulations. According to the FAA, in July 2014, an FAA inspector performed an aging aircraft inspection on the B-737 and discovered that Southwest improperly recorded a temporary repair to an approximately nine-inch crease in the aluminum skin of the jetliner’s rear cargo door as a permanent repair. The FAA alleges that while the temporary repair was made in May 2002, Southwest was required to inspect the temporary repair every 4,000 flights and complete a permanent repair within 24,000 flights. Instead, the FAA alleges that Southwest operated 24,831 flights without performing the required inspections and also operated the plane on 4,831 flights beyond the flight threshold by which it was required to have performed the permanent repair.  

FAA Proposes Civil Penalties Totaling $380,600 against Leading Edge Aviation Services for Violating Drug and Alcohol Test Regulations

The FAA proposed a $380,600 civil penalty against Leading Edge Aviation Services for allegedly violating federal regulations requiring drug and alcohol testing for individuals in safety-sensitive positions. The FAA alleged that Leading Edge Aviation Services hired 29 people for safety-sensitive positions but did not include the employees in the company’s random drug and alcohol testing pools as required. The FAA also alleged that the company failed to inquire as to whether 18 safety-sensitive employees had tested positive or refused to take 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. Further, the FAA said that the company hired six people for safety-sensitive positions before it received verified negative pre-employment drug tests for those individuals.

Customs and Border Protection

CBP Announces Passenger Biometric and Biographic Information Collection Testing at Certain U.S. Airports

U.S. Customs and Border Protection  (“CBP”) announced the implementation of its “BE-Mobile Air Test” program to collect biometric and biographic information from certain foreign visitors departing the U.S. on selected flights from up to ten of the following airports: Los Angeles International Airport; San Francisco International Airport; Miami International Airport; Hartsfield-Jackson Atlanta International Airport; Chicago O’Hare International Airport; Newark Liberty International Airport; New York’s John F. Kennedy International Airport; Dallas Fort Worth International Airport; Houston’s George Bush Intercontinental Airport; and Washington Dulles International Airport. During the test, CBP officers will use wireless handheld devices to collect biographic and biometric information from certain passengers upon departure, biometrically record their departure, and screen their biometric data against a DHS biometric database in real time. Through this test, CBP believes it will be able to conduct a statistically valid survey of the “air outbound environment” to assist DHS in determining how to effectively implement an air biometric exit system and match departures with prior arrival records.  The test collections began July 6, 2015, and will continue for approximately one year.

Volunteers Solicited by CBP for Automated Commercial Environment (“ACE”) Export Manifest for Air Cargo Test

CBP issued a notice announcing plans to conduct an Automated Commercial Environment (“ACE”) Export Manifest for Air Cargo Test, which is a voluntary program where airlines and freight forwarders agree to submit export manifest data electronically at least 4 hours prior to cargo being loaded onto aircraft in preparation for departure from the U.S. Currently, carriers are required to submit a paper CBP Form 7509 manifest for export air shipments generally within 4 days after departure. CBP anticipates that manifest data provided 4 hours prior to loading will allow sufficient time for risk assessment and identification of shipments to be inspected early enough in the supply chain to enhance security while minimizing disruption to the flow of goods. The test will begin on or after August 10, 2015, and will last approximately two years. CBP is accepting applications for test participation until it receives applications from nine “stakeholders in the air cargo environment” that meet its test requirements. CBP is seeking participation from at least three air carriers and at least three freight forwarders capable of electronically transmitting export manifest data in a format acceptable to CBP. 

CBP Extends Air Cargo Advance Screening Pilot Program

CBP issued a notice extending the Air Cargo Advance Screening (“ACAS”) pilot program for an additional year through July 26, 2016 and reopening the application period for new participants for 90 days. The ACAS program is a voluntary test in which participants submit a subset of required advance air cargo data to CBP at the “earliest point practicable prior to loading of the cargo onto aircraft destined to or transiting through the U.S.” Applications for new participants will be accepted through October 26, 2015.

Department of Commerce/National Telecommunications and Information Administration

Commerce Department’s NTIA Schedules Public Meetings on UAS Privacy Issues

The Commerce Department’s National Telecommunications and Information Administration issued a notice announcing public meetings on privacy issues relating to commercial and private unmanned aircraft system (“UAS”) operations, transparency (identity of UAS operators and purpose of operations), and accountability (oversight and privacy training for UAS pilots, as well as policies for how companies and individuals operate UAS and handle data collected by UAS). The meetings will take place on August 3, 2015; September 24, 2015; October 21, 2015; and November 20, 2015 from 1:00 p.m. to 5:00 p.m. in Washington, DC. The meetings are open to the public and will be webcast.

Government Accountability Office

GAO Issues Report on FAA’s Progress on Unmanned Aircraft Systems Integration

GAO published a report that is cautiously optimistic regarding the FAA’s progress in integrating unmanned aircraft systems (“UAS”) into the National Airspace System. The report cited FAA’s approval of hundreds of exemptions for operators of small UAS, the agency’s collaboration with MITRE to develop a UAS integration implementation plan (expected to be implemented by December 2015), and its successful launch of UAS test sites that have hosted over 195 test flights. However, the report was critical of the delay in FAA’s issuance of a final rule on small UAS operations and provided examples of other countries’ superior progress in authorizing UAS operations.

Congressional Action Impacting Aviation

FAA Reauthorization Bill On Hold

Although the House Transportation and Infrastructure Committee had announced that it would release a draft of the long-awaited FAA Reauthorization bill on July 1, no such draft was released. Current FAA reauthorization legislation will expire on September 30.

Senate Commerce Committee Minority Staff Release Report on Airline Ancillary Fees

Under the direction of Senator Bill Nelson (D-FL), the Senate Commerce Committee’s minority staff issued a report that is critical of airline disclosure of ancillary fees, including those covering changes and cancellations and preferred seating, and recommended requiring more transparency from the airline industry on such fees. The report recommended: 1) better and earlier disclosure of ancillary fees to consumers; 2) requirements for checked baggage and carry-on baggage fees to be based on the costs actually incurred by the airlines for baggage services; 3) requirements for airlines to promptly refund fees for any bags that are delayed more than 6 hours on a domestic flight; 4) limits on airline change fees to a “reasonable amount tied to lead time prior to departure and an amount less than the original fare;” 5) mandated disclosures that “preferred seat” charges are optional; and 6) requirements for airline and travel agency websites to have “clear and conspicuous” links to DOT’s Aviation Consumer Protection website.

Congressman Mica Calls for Congressional Action in Response to FAA Air Traffic Control Failure

In response to the FAA’s software “glitch” that occurred on August 15th and delayed hundreds of flights, Congressman John Mica (R-FL) is calling for congressional action. Mica, former Chairman of the House Transportation and Infrastructure Committee, is requesting a congressional hearing on the incident and stated that he plans on introducing legislation that would require “real-time” posting of air-traffic control delays. Although this already exists on the FAA’s website, this incident could bolster the case of some congressional members for a privatization of the air traffic control system.

TSA Administrator Testifies on Agency Management and Preparedness

On July 29, TSA Administrator Peter Neffenger testified before the House Homeland Security Committee for the first time since his confirmation.  The hearing focused on the overall management and preparedness of the TSA.

House Passes TSA-Related Legislation

On July 27, the House passed four bills regarding the Transportation Security Administration’s (TSA) screening procedures. H.R. 2750, the Improved Security Vetting for Aviation Workers Act, would impose further checks on airport workers; H.R. 2843, the TSA PreCheck Expansion Act, would allow private companies to install kiosks or provide online applications to speed up the process for applying to join TSA’s PreCheck program; H.R. 2127, the Securing Expedited Screening Act, would require that airports only allow those in the PreCheck or “trusted traveler” programs to use the expedited screening lanes at security checkpoints with exceptions also made for elderly or other “low risk” passengers; and H.R. 2770, the Keeping Our Travelers Safe and Secure Act, would require that TSA conduct more frequent and more thorough maintenance for their security technology.

House Members Introduce “Families Flying Together Act”  

Congressman Rodney Davis (R-IL) and Congressman Jerry Nadler (D-NY) introduced H.R. 3334, the Families Flying Together Act, on July 30. If enacted, this bill would require airlines upon booking to notify passengers with children that there are not seats available to sit together and would require that airlines ramp up their efforts to ensure that families sit together on flights.

Legislation Introduced to Require EpiPens on Flights

On August 5, Senator Mark Kirk (R-IL) and Senator Jeanne Shaheen (D-NH) introduced a bill intended to protect airline passengers with peanut allergies. S. 1972, the Airline Access to Emergency Epinephrine Act, would require EpiPens on all flights and training for crew members on how to respond to an acute allergic reaction.

Pilots Bill of Rights Introduced in Both the House and Senate

The “Pilots Bill of Rights 2” (S. 571) and the “General Aviation Pilot Protection Act of 2015” (H.R. 1086) were introduced to amend FAA medical certification requirements by allowing certain individuals to operate as non-commercial pilots under Part 91 without having to undergo medical certification or provide proof of health. Pilots with private or recreational pilot certificates are currently required to have at least a third-class medical certificate to ensure they have sufficient vision, equilibrium, mental, neurological, cardiovascular and other physiological functions. Under the bills, these individuals would need only a valid state-issued driver’s license and to comply with any medical requirements associated with such licenses.