Congressional Action Impacting Aviation

Senate Commerce Committee Chairman Requests Airline Information on Ancillary Service Fees, Consumer Privacy Protection

Senator John D. Rockefeller, IV, chairman of the Senate Commerce, Science, and Transportation Committee, sent a letter on August 18 to the 10 largest U.S. airlines requesting information on their collection and disclosure of fees they charge consumers for ancillary services, such as checked and carry-on baggage, seat selection, and priority boarding. The letter also requested information on how the airlines handle and protect personal information they obtain from consumers. Senator Rockefeller cited a lack of comprehensive federal privacy law applicable to the collection, use and disclosure of consumer travel information as a concern and said it is difficult for consumers to learn what information airlines and others in the travel sector are collecting, keeping and sharing about them. The airlines were asked to respond to the committee’s request by September 5.

Continuing Resolution Introduced to Fund Export-Import Bank Through June 2015

A continuing resolution on appropriations for federal agencies, H.J. Res. 124, was passed in the U.S. House of Representatives on September 17 that would extend the Export-Import Bank’s operating authority through June 30, 2015.

Department of Transportation

Regulatory

DOT Passenger Protection Rulemaking #3 Comment Deadline Fast Approaching

Comments on DOT’s Rulemaking on the Transparency of Airline Ancillary Fees and Other Consumer Protection Issues (Passenger Protection Rulemaking #3) are due on September 22. A discussion of the comments filed with DOT will be included in next month’s Cozen O’Connor Aviation Regulatory Update.

DOT Dismisses Norwegian Air International’s Exemption Application, Continues Permit Application Review

DOT issued an order on September 2 dismissing the exemption application filed by Norwegian Air International (NAI) for U.S.-EU open skies authority. DOT cited the “novel and complex nature” of the case as the basis for its decision that a temporary exemption granted to NAI would not be appropriate or in the public interest. In dismissing the application, DOT stated that it reserves its exemption powers for cases that are more “clear-cut” and that require less procedural protections than show-cause procedures and presidential review provide. DOT said it will continue to process NAI’s permit application and will issue a tentative decision on that application after it completes its review.

Inspector General Announces Audit of DOT’s Oversight of Airlines’ Frequent Flyer Programs

DOT’s Office of the Inspector General issued a memorandum on September 11 announcing an audit of DOT oversight of airlines’ compliance with frequent flyer program disclosure requirements.  Among the issues the IG will review is transparency for consumers when airlines change their frequent flyer program terms and conditions.

Enforcement

DOT Issues “Cease and Desist” Consent Order Against British Airways, But Dismisses Consumer Complaint

On September 5, DOT issued a Consent Order and Order of Dismissal regarding a consumer complaint brought against British Airways alleging that: 1) the carrier failed to properly disclose and justify its carrier-imposed surcharges; 2) the carrier failed to comply with DOT’s “full fare” advertising rules regarding its “On Business” company travel website; and 3) the carrier’s advertisements of around-the-world travel using the oneworld booking engine misrepresented its surcharges as government taxes and fees. Because many of the alleged violations were previously addressed by DOT in a prior consent order and DOT determined that the remaining issues did not warrant enforcement action, DOT ordered British Airways to “cease and desist” without assessing any civil penalties.

DOT Imposes Civil Penalties on WestJet and China Eastern Airlines for Alleged Codeshare Violations

DOT issued a consent order on September 5 alleging that WestJet operated unauthorized codeshare flights displaying China Eastern Airlines’ designator code without obtaining a statement of authorization from DOT. DOT imposed a civil penalty of $50,000 against WestJet, ordering the carrier to pay $25,000, with the remaining $25,000 due and payable only if WestJet violates DOT’s cease and desist order within the next year. DOT also issued a consent order imposing $40,000 in civil penalties against China Eastern, alleging that the carrier marketed the codeshare flights between Canada and the United States without WestJet holding the requisite DOT authority to display China Eastern’s code on the flights. DOT ordered China Eastern to pay $20,000 of the penalty amount, with the remaining $20,000 due and payable only if it violates the order’s cease and desist provision within the next year.

Federal Aviation Administration

Regulatory

FAA Issues Legal Interpretations on Expense-Sharing for Non-Commercial Flights

On August 13, the FAA Chief Counsel’s Office issued a legal interpretation regarding AirPooler, a “peer-to-peer general aviation flight sharing company” website that allows private pilots to offer space on their flights to others in exchange for cost reimbursement. On August 14, the FAA issued a similar legal interpretation regarding the reimbursement of expenses by persons sharing flights found through an exclusive, members-only website available to pilots and “aviation enthusiasts.” In both interpretations, the FAA stated that because the AirPooler and members-only flights were available to a “broad segment of the public interested in transportation by air,” the flights were being held out to the public and constituted common carriage, requiring a FAR Part 119 certificate.

FAA Issues Legal Interpretation On the Number of Operations Personnel Required at U.S. Airports

The FAA Chief Counsel’s Office published on August 25 a legal interpretation regarding the number of operations personnel required to be on duty at U.S. airports during scheduled air carrier operations. The FAA stated that a “sufficient” number of airport personnel must be onsite to perform the duties applicable to air carrier operations specified in FAR Part 139 and in an Airport Certification Manual. However, the FAA said that airport personnel need not be onsite during all hours, because the use of designees such as air carrier station employees or fixed-base operator employees to perform required duties during air carrier operations “mitigates the burden of having an airport employee onsite.” The FAA concluded that although § 139.303(a) requires at least one airport employee or designee to be onsite during air carrier operations, the number of individuals that would be sufficient depends on “the specific needs of each airport after considering its size and layout as well as the volume and complexity of operations.”

FAA Issues Emergency Authorization for Texas EquuSearch to Use Drone to Search for Missing Person

The FAA issued a statement on September 10 that it had approved an Emergency Certificate of Waiver or Authorization (COA) allowing Texas EquuSearch to use a drone to search for a missing person near Dallas. The Emergency COA was issued to the National Institute of Standards and Technology on behalf of Texas EquuSearch at the request of the Plano, Texas Police Department. The COA allows Texas EquuSearch to operate its drone from September 11-15, 2014. Texas EquuSearch, a nonprofit organization that assists with locating missing individuals, has previously challenged the FAA’s authority to regulate its drone operations (see the August 2014 edition of the Cozen O’Connor Aviation Regulatory Update).

FAA Extends Comment Period on Proposed Policy on the Non-Aeronautical Use of Airport Hangars

The FAA has issued a notice extending the comment period on its proposed policy on the non-aeronautical use of airport hangars. Comments on the proposal are now due on October 6.

FAA Issues Submission Deadline for Schedule Information for Summer 2015 Scheduling Season

On September 18, the FAA issued a notice announcing a submission deadline of October 9, 2014, for summer 2015 (from March 29, 2015 through October 24, 2015) flight schedules at Chicago’s O’Hare International Airport, San Francisco International Airport, New York’s John F. Kennedy International Airport and Newark Liberty International Airport in accordance with the IATA Worldwide Slot Guidelines.  The October 9 deadline is coordinated with the schedule submission deadline for the IATA Slots Conference for the summer 2015 scheduling season.

Enforcement

FAA Proposes $195,000 in Civil Penalties Against British Airways

On September 12, the FAA issued a release proposing $195,000 in civil penalties against British Airways for allegedly offering a chemical oxygen generator to American Airlines for shipment onboard a passenger aircraft flying between London Heathrow Airport and Dallas/Fort Worth International Airport in violation of the Hazardous Materials Regulations. Oxygen generators are prohibited as cargo onboard passenger aircraft.

FAA Proposes Civil Penalties Against American Eagle Airlines for De-Icing Violations

The FAA on September 12 proposed to assess $60,000 in civil penalties against American Eagle Airlines for allegedly allowing unqualified and improperly trained contractor employees to apply aircraft de-icing fluid on aircraft flying out of Sioux Falls, S.D., last winter.

FAA Proposes Hazmat-Related Civil Penalties Against Three Companies

On September 12, the FAA proposed civil penalties ranging from $54,000 to $65,000 against Federal Express, Linvin, LLC, and Allied Technology Group for allegedly offering or accepting hazardous materials in violation of the Hazardous Materials Regulations.

FAA Revokes MARPAT Aviation’s Operating Certificate

On August 27, the FAA issued a notice that it has revoked MARPAT Aviation’s Rotorcraft External-Load Operator Certificate. The FAA alleges that MARPAT performed external load operations related to firefighting without holding the requisite authority. According to the FAA, the company failed to have a qualified chief pilot, falsified its certificate renewal application, refused to comply with repeated FAA instructions to amend its flight manual, and operated aircraft in a “careless or reckless manner.” The FAA said that MARPAT has surrendered its certificate.

FAA Proposes Civil Penalty Against Mountain Air Cargo for Alleged Safety Violations

The FAA issued a notice on September 5 proposing a $132,425 civil penalty against Mountain Air Cargo for operating 115 flights using an ATR-42 airplane that was improperly repaired and noncompliant with Federal Aviation Regulations.

Pipeline and Hazardous Materials Safety Administration

Regulatory

PHMSA Proposes to Amend Certain Hazmat Regulations to Align With International Standards

The Pipeline and Hazardous Materials Safety Administration (PHMSA) published a proposed rule on August 25 that would amend the Hazardous Materials Regulations by harmonizing them with recent changes made to international standards, including ICAO’s Technical Instructions for the Safe Transport of Dangerous Goods by Air and the United Nations Recommendations on the Transport of Dangerous Goods — Model Regulations. The proposed rule would change certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations and air transport quantity limitations. PHMSA plans to finalize the proposed amendments by January 1, 2015, the date most of the changes to the international standards take effect, so that U.S. companies competing in foreign markets will not be placed at an economic disadvantage by having to comply with a dual system of regulations. Comments on the proposed rule are due October 24.

Transportation Security Administration

Regulatory

Airlines’ Brief Due in Lawsuit Challenging TSA Passenger Security Service Fee

The brief for petitioners Airlines for America and IATA is due to be filed on September 26 in their lawsuit filed in the U.S. Court of Appeals for the D.C. Circuit challenging TSA’s Interim Final Rule increasing the Passenger Civil Aviation Security Service Fee.

Government Accountability Office

GAO Publishes Report on Stakeholders' Perspectives on Air Traffic Control Operations, Modernization, and Structure

The GAO published a report on September 12 that provides an overview of aviation industry stakeholders’ perspectives regarding the FAA’s current air traffic control operations and the agency’s challenges in transitioning to the Next Generation Air Traffic Control System (NextGen). Sixty-four stakeholders suggested changes they believe could improve the efficiency of ATC operations and NextGen implementation.

Department of Defense Air Mobility Command

Regulatory

DOD Air Mobility Command Limits Participation in Domestic Air Tender Program to CRAF Participants

DOD’s Air Mobility Command (AMC) issued a notice on September 3 regarding changes to its Domestic Air Tender policy that would restrict registration in the Freight Carrier Registration Program for Domestic Air Tenders to include only Civil Reserve Air Fleet (CRAF) Transportation Service Providers (TSP). Domestic Air Tenders are used for transporting DOD freight within the continental United States. In implementing the changes, DOD/AMC is relying on the Industrial Mobilization exception to full and open competition, which is allowed under 10 U.S.C. Section 2304(c)(3), in order to strengthen the CRAF program and maintain adequate airlift services in case of a national emergency.