This edition of the Cozen O’Connor Aviation Regulatory Update includes looming revisions to the Visa Waiver Program, DOT’s plans for an additional round of new regulations on disabled passenger-related issues, the FAA’s new registration requirements for small unmanned aircraft systems/drones, DOT guidance on airline liability for damage to components of checked baggage, Congressional bills on Export-Import Bank reauthorization, pilots’ rights, and Visa Waiver Program Changes, the status of FAA reauthorization legislation, the FAA’s updated airspace obstruction standards, and recent FAA enforcement actions.

White House

Obama Administration Proposes “Enhancements” to Visa Waiver Program

The White House announced new “enhancements” to the Visa Waiver Program (VWP) in response to concerns that terrorists could use the VWP process to evade screening prior to entry into the U.S. The proposals would modify the Electronic System for Travel Authorization (ESTA) process by requiring VWP travelers to provide information regarding past travel to countries constituting a terrorist safe haven; accelerate DHS review of VWP partner countries; identify possible programs to collect and use biometrics (fingerprints and/or photographs) in the VWP to increase security; identify countries that are deficient in key areas of security cooperation; provide a range of penalties and incentives to promote cooperation, including more frequent submission of ESTAs and/or the suspension of ESTA issuances (new and/or renewals) for citizens of countries that fail to meet key security metrics; assist countries with improving terrorism information sharing; and seek authority to increase Advance Passenger Information System (APIS) fines from $5,000 to $50,000 for air carriers that fail to verify a traveler’s passport data. See the “Congressional Action Impacting Aviation” section below regarding proposed legislative changes to VWP.

Department of Transportation

Regulatory

DOT Considering a “Negotiated Rulemaking” for Upcoming Disabled Passenger Rules

DOT issued a notice of intent requesting comments on whether it should conduct a “negotiated rulemaking” on disabled passenger-related accommodations regarding in-flight entertainment, supplemental medical oxygen, service animals, accessible lavatories on single-aisle aircraft, seating accommodations, and carrier reporting of disability service requests. Specifically, DOT is considering a negotiated rulemaking that would: 1) require the same in-flight entertainment be made available to all passengers, including disabled passengers; 2) allow individuals who use in-flight medical oxygen to have greater access to air travel consistent with safety and security requirements; 3) establish an appropriate definition of a “service animal” and create safeguards to reduce the ability of passengers to falsely claim pets as service animals; 4) consider the feasibility of requiring accessible lavatories on new single aisle aircraft; 5) determine whether premium economy is a separate class of service from standard economy for purposes of providing seating accommodations to disabled passengers within the same class of service; and 6) require airlines to report annually to DOT the number of disability assistance requests they receive and the time period within which wheelchair assistance is provided. DOT also announced the hiring of Richard Parker from the University of Connecticut School of Law as a “neutral convenor” to consider the feasibility of conducting such a rulemaking and a regulatory negotiation between persons with disabilities, airlines and other stakeholders, and, if so, to determine the scope of the issues that are appropriate for a negotiated rulemaking process. Comments on the notice of intent are due January 6, 2016.

DOT Issues Guidance Regarding Airlines’ Liability for Damage to Wheels, Handles, and Other Components of Checked Baggage

DOT issued guidance reminding air carriers of their liability for damage to passengers’ checked baggage, including damage involving baggage wheels, straps, zippers, handles, and other protruding parts. DOT said that carriers are prohibited under 14 C.F.R. § 254.4 and the Montreal Convention from limiting their liability for “provable direct or consequential damages” resulting from the loss of, damage to, or delay in delivery of a passenger’s baggage in the carriers’ custody, and DOT asserted that carrier limitations of liability for baggage-related damage or losses within their control constitutes an unfair practice under 49 U.S.C. § 41712. Although carriers are not required to cover “fair wear and tear” resulting from ordinary handling of baggage, DOT’s Enforcement Office considers “categorical exclusions” for damage to specific parts of checked baggage, including handles, straps, wheels and zippers, to be “arbitrary limitations of liability” in violation of DOT rules and carriers are expected to reimburse passengers appropriately for such damage. DOT also reminded carriers that all reports of mishandled baggage should be accepted by carrier personnel for review, regardless of whether the carrier’s agent believes that the claim will result in reimbursement, and that failure to do so constitutes an unfair and deceptive practice in violation of 49 U.S.C. § 41712. In its press release announcing the guidance, DOT stated that DOT inspections of U.S. and foreign air carrier operations at 16 U.S. airports over a two week period in September 2015 uncovered carriers’ routine exclusion from liability damage to checked baggage wheels, straps, zippers, handles, and protruding parts. DOT stated that carriers often post signs at ticket counters indicating their refusal to compensate passengers for damage to such items, and carrier agents discourage or refuse to accept reports of such damage. DOT is requiring carriers to immediately review and revise their baggage liability policies to ensure full compliance with DOT’s baggage liability rules no later than January 9, 2016, or face potential enforcement action. In addition, DOT’s Enforcement Office is investigating certain carriers based on information obtained during its inspections.

Federal Aviation Administration

Regulatory

FAA Issues Regulations for Unmanned Aircraft Systems (“UAS”) Registration Based on Task Force Final Recommendations

The FAA announced new regulations requiring owners/operators of small UAS/drones to register their aircraft. Beginning on December 21, 2015, small UAS weighing more than 0.55 pounds and less than 55 pounds (including payloads such as on-board cameras) purchased for use as model (or recreational) aircraft will be required to be registered before their first outdoor flight, while UAS operated as model aircraft prior to December 21, 2015, will be required to be registered no later than February 19, 2016. Registration may be completed using either a “paper-based process” or the FAA’s new web-based system. Registrants using the web-based system must be at least 13 years old to register. All registrants will be required to provide their name, home address and e-mail address, and upon completion of the registration process, will be issued a Certificate of Aircraft Registration/Proof of Ownership, including a unique identification number that must be marked on the aircraft. The registration will be valid for 3 years and registrants will be required to pay a $5 registration fee, which the FAA will waive for the first 30 days (from December 21, 2015, to January 20, 2016). Comments on the new rules are due January 15, 2016. The regulations are based on recommendations contained in the FAA’s Unmanned Aircraft Systems (“UAS”) Registration Task Force Aviation Rulemaking Committee final report. The Task Force issued three primary recommendations for the UAS registration process: 1) requiring sUAS operators’ to complete an electronic registration form through the web or through an application (app); 2) requiring the FAA to issue an electronic certificate of registration and a personal universal registration number for use on all sUAS owned by each registrant; and 3) requiring the marking of the registration number (or registered serial number) on all applicable sUAS prior to their operation in the NAS.

FAA Publishes Safety Checklist for Drone Operators in Anticipation of Post-Christmas Expansion of Hobbyists’ Unmanned Aircraft Operations

The FAA published a safety checklist for drone hobbyists based on projections that drones will be one of the most popular gift items this holiday season. The checklist reminds drone hobbyists that when they operate a drone anywhere in U.S. airspace, they automatically become a pilot responsible for maintaining aviation safety. The checklist reminds drone hobbyists to operate their drones below 400 feet and always within visual line of sight, to never fly over groups of people, and to never operate within 5 miles of an airport or in proximity to other aircraft.

FAA Reassigns Thailand’s IASA Rating to Category 2

The FAA issued a release announcing that Thailand no longer complies with ICAO safety standards and reassigning the country’s safety rating under the FAA’s International Aviation Safety Assessment (IASA) program to Category 2 based on the FAA’s reassessment of the country’s civil aviation authority. The Category 2 rating means that Thailand either lacks laws or regulations needed for adequate oversight of its air carriers in accordance with minimum international standards, or its civil aviation authority is deficient in areas such as technical expertise, trained personnel, record-keeping, or inspection procedures. Under a Category 2 rating, Thailand’s air carriers are allowed to maintain existing U.S. air service, but will not be allowed to establish new U.S. air service.

FAA Updates Airspace Obstructions Standards

The FAA issued an updated advisory circular on proper lighting and marking of obstructions affecting navigable airspace. The updated advisory circular includes new lighting specified for wind turbines at various heights, standards for voluntary marking of meteorological evaluation towers lower than 200 feet, lighting and marking standards to reduce impact on migratory bird populations, and performance standards for Aircraft Detection Lighting Systems.

FAA Issues Advisory for General Aviation on Prevention of Loss of Control Accidents

As part of its “FlySafe” national safety campaign, the FAA issued an advisory for general aviation operators on how to prevent Loss of Control (LOC) accidents. The advisory provides tips for pilots and links to the FAA’s Advisory Circular on Enhanced Flight Vision Systems, a related 2014 FAA Safety Briefing, and fact sheet on GA safety improvements and initiatives.

Enforcement

Detroit’s Wayne County Airport Authority Faces $200,000 FAA Civil Penalty

The FAA is proposing to assess a $200,000 civil penalty against Detroit’s Wayne County Airport Authority (WCAA) – which operates Detroit Metro-Wayne County International Airport (DTW) – for allegedly failing to maintain safe airfield conditions during a November 2014 storm. According to the FAA, WCAA failed to follow its FAA-mandated Snow and Ice Control Plan (SICP) during the storm and allowed various DTW airfield surfaces to become unsafe while failing to limit air carrier operations to safe portions of the airfield. Specifically, the FAA alleged that WCAA failed to treat a taxiway and a deicing pad with deicer fluid, among other violations. The FAA said that during the storm, one commercial jet slid off the untreated taxiway and onto the grass, a cargo jet became stranded due to icy conditions after exiting a runway, and three commercial airliners became stranded on the de-icing pad for approximately three hours each due to icy pavement conditions. The FAA further alleged that WCAA failed to notify airlines of changing runway conditions; activate the DTW “snow desk” to coordinate snow removal operations; monitor snow removal operations and issue information about conditions affecting the runways, taxiways and ramp areas; conduct frequent runway inspections and friction tests; provide enough qualified personnel on the airfield to comply with the SICP; and issue a timely notice that a runway was closed. WCAA said in a statement that it “has an excellent history of providing a safe and secure airfield at Detroit Metropolitan Airport (DTW) and safety remains our number one priority,” and that “[t]he events that precipitated this investigation occurred in extraordinary circumstances.”

FAA Proposes $240,500 Civil Penalty Against Helicopter Transport Services, LLC.

Helicopter Transport Services, LLC of Corvallis, Ore., is facing an FAA civil penalty of $240,500 for allegedly operating a Sikorsky S61R10 helicopter when it was not in compliance with Federal Aviation Regulations. According to the FAA, on October 8, 2012, Helicopter Transport Services installed a main gearbox in the aircraft that was not authorized for installation. The company allegedly operated the helicopter 37 times between October 8 and October 29, 2012, when it was not in an airworthy condition as a result of the unauthorized gearbox installation.

FAA Proposes Civil Penalty Against Sun Air Express

The FAA proposed a $169,500 civil penalty against Sun Air Express, LLC, of Lititz, Pa., for allegedly operating aircraft that were not in compliance with Federal Aviation Regulations. The FAA alleged that the charter operator failed to conduct required annual inspections of the aircraft avionics systems on three Piper PA-31-350 airplanes in 2014. The agency also alleged that the company flew the aircraft on a total of 313 flights when the inspections were overdue. Sun Air Express has asked to meet with the FAA to discuss the case.

Martinaire Aviation Facing $509,180 in FAA Civil Penalties for Alleged Hazmat Violations

The FAA issued a release proposing a $509,180 civil penalty against Martinaire Aviation, LLC, of Addison, Texas, for allegedly violating the Hazardous Materials Regulations. The FAA alleged that the cargo carrier failed to comply with Notification to Pilot-In-Command, or NOPIC, requirements for hazardous materials on board its aircraft for 43 flights between October 1, 2013 and December 3, 2013. The cargo allegedly included toxic, corrosive and flammable materials, as well as ammunition.

National Transportation Safety Board

NTSB Issues Direct Final Rule Amending Reporting and Notification Requirements for Certain Aircraft Accidents or Incidents

The NTSB issued a direct final rule amending its regulations regarding notification and reporting requirements for Airborne Collision and Avoidance System (ACAS) advisories relating to certain aircraft accidents or incidents. Specifically, the NTSB deleted its requirement for notifications of ACAS reports from aircraft operators operating within Class A airspace that receive a traffic collision avoidance systems (TCAS) resolution advisory. NTSB regulations require operators of any civil aircraft, any public aircraft not operated by the U.S. Armed Forces or intelligence agencies, or any foreign aircraft to immediately notify the nearest NTSB office when an aircraft accident or certain serious incidents occur, including where an ACAS resolution advisory is issued when an aircraft is being operated on an instrument flight rules (“IFR”) flight plan and compliance with the advisory is necessary to avert a substantial risk of collision between two or more aircraft or to an aircraft operating in class A airspace. The direct final rule also updates NTSB contact information for the submission of notifications of ACAS reports. The direct final rule will become effective February 16, 2016, unless the NTSB receives adverse comments by January 14, 2016. If the NTSB receives such comments, it plans to withdraw the direct final rule and may then issue an NPRM proposing the amendment by way of a final rulemaking process.

Department of State

The State Department issued a final rule repealing outdated regulations regarding U.S. consular offices’ responsibilities regarding aircraft accidents overseas involving U.S. citizens and property. The repealed regulations addressed reporting, rendering assistance, safeguarding wreckage, salvage of diplomatic pouches, protective services for survivors, disposition of remains, preservation of property, limitations on expenditure of funds, and protection of U.S. interests in the case of civil aviation disasters. The regulations, 22 C.F.R. Part 102, were repealed because other federal laws, regulations, and guidelines provide more modern, comprehensive, and detailed instructions and information.

Government Accountability Office

GAO Publishes Report on the Effects of Budget Uncertainty on the FAA

The GAO published a report critical of the effects of federal budget uncertainty arising from the 2013 federal government shutdown, sequestration, the 2011 FAA reauthorization lapse, continuing resolutions, and multiple short-term reauthorizations on the FAA’s ability to implement its programs. The report cited as problematic such effects as the 2013 sequester-related air traffic controller furloughs, which delayed 7,099 flights, mostly in heavily congested air-traffic areas; delays in final investment decisions for certain NextGen programs; and limits on the FAA’s ability to transfer funds between its four main budget accounts to meet funding priorities. The report also looked at alternative funding options for the FAA, including a restructured Air Traffic Organization.

Congressional Action Impacting Aviation

Permanent FAA Reauthorization Legislation Postponed Until Next Year

Although the House Transportation and Infrastructure Committee is celebrating the recent passage of a five-year surface transportation bill, the Committee has decided to hold off on FAA reauthorization until the first part of 2016. Both House Transportation and Infrastructure Committee Chairman Bill Shuster (R-Pa.) and Ranking Member Peter DeFazio (D-Ore.) have reported that some of the major issues to be included in the bill have been resolved but that the future status of air traffic control is the key issue that requires resolution before a draft bill is introduced.

Visa Waiver Program Changes Included in Spending Bill; Senator McCain Introduces Visa Waiver Program Legislation

On December 8, the House passed the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act” by a vote of 407-19. Under provisions of the bill, travelers from visa waiver countries who have recently traveled to Syria, Iraq, Iran or Sudan would have to obtain a visa before coming to the United States. The bill would also require visa waiver countries to transition to electronic passports and would increase information sharing between visa waiver countries and the U.S. regarding citizens who may have terrorist sympathies. The bill language is included in the “omnibus” spending bill. Senator John McCain (R-Ariz.) also introduced legislation to amend the visa waiver program. Provisions in his bill would require the Department of Homeland Security to review all “public records” of foreign travelers wishing to enter the U.S. The focus of this bill is to require a review of foreign travelers’ social media postings in light of information gathered from the investigation into the recent San Bernardino terrorist attack.

Export-Import Bank Reauthorized as Part of Highway Bill

President Obama signed the “Fixing America’s Surface Transportation Act,” also known as the “highway bill,” on December 7. This five-year authorization for surface transportation projects also included a reauthorization of the Export-Import Bank (Ex-Im). Reauthorizing Ex-Im had become a contentious issue, with many members of Congress calling for an end to the bank based on the belief that it represented “crony capitalism.” With this reauthorization, Ex-Im has funds in place for four years; however, due to a lack of board members, Ex-Im cannot approve loans over $10 million. Currently the Ex-Im board has only two members, and needs three to approve any loans over $10 million. The Senate has yet to confirm Patricia M. Loui-Schmicker, whom the president nominated in March 2015. The Senate Banking Committee has not scheduled a confirmation hearing, largely due to the opposition of its Chairman, Richard Shelby (R-Ala.), to Ex-Im’s reauthorization.

Senate Passes Pilot’s Bill of Rights Legislation

The Senate unanimously passed Senator James Inhofe's (R-Okla.) "Pilot's Bill of Rights" (S.571), which requires the FAA to issue or revise medical certification regulations to allow individuals to operate as pilots of certain “covered aircraft” without having any medical certification or proof of health if the flight meets certain criteria and the individual: 1) has a valid state driver's license; 2) complies with applicable medical requirements associated with that license; 3) is transporting 5 or fewer passengers; and 4) is operating under visual or instrument flight rules. The bill also ensures pilots have the right to appeal FAA decisions in federal court and increases pilot access to flight data to help them defend themselves during enforcement action proceedings.

House Homeland Security Committee Questions TSA on Foreign Airport Security

On December 8, the House Homeland Security Committee questioned Transportation Security Administration (TSA) officials at a hearing regarding security at foreign airports. The hearing was convened in response to the Russian Airbus A321 flight that crashed in Egypt. While the cause of the crash has not been determined, it has been alleged that a bomb on board detonated. Terrorists are being blamed for the attack and lawmakers on the House Homeland Security Committee pushed TSA officials on the steps that are being taken to ensure the safety of Americans traveling through foreign airports. TSA officials assured Committee members that they work closely with their security counterparts in other countries and have boosted security measures for foreign flights in their efforts to combat these types of threats. Although some Committee members did express their support for the efforts being taken by TSA, Committee Chairman John Katko (R-N.Y.) argued that TSA should do more.