SENATE PASSES FAA REAUTHORIZATION BILL The United States Senate has passed the Federal Aviatin Administratin (FAA) Reauthrizatin Act f 2016 (S. 2658), which reauthrizes the FAA and its plicies and prgrams fr the remainder f Fiscal Year (FY) 2016 thrugh FY 2017. Key cmpnents f the bill include: Aircraft certificatin refrms t imprve FAA prcesses fr certificatin f aircraft develpment and design; Measures t strengthen airprt emplyee screening prcesses by expanding the vetting prcess fr airprt emplyees and perfrming randm physical inspectins f emplyees in secure areas; Measures t safeguard passengers in nn secure airprt areas by securing airprt perimeters and reducing crwds waiting fr security screenings by vetting passengers befre they arrive at the airprt and expanding the Transprtatin Security Administratin (TSA) PreCheck prgram; Increased security measures fr internatinal flights bund fr the U.S. by expanding infrmatin sharing between the U.S. and ther cuntries, and by requiring a security risk assessment f all airprts with nnstp flights t the U.S.; Recmmendatins t imprve the FAA s transitin t 21st century NextGen air traffic cntrl technlgies; and Implementatin f new cnsumer prtectin requirements fr dmestic and freign carriers such as: Requirements fr DOT t review the number f airlines prviding infrmatin n decisins t delay r cancel flights due t weather related causes; Requirements fr airlines t prvide families with infrmatin abut the availability f seats tgether at the time f bking; Creatin f a standard methd fr airlines t disclse ancillary fees; Requirements fr airlines t return baggage fees when items are lst r delayed; Requirements fr airlines t autmatically return fees fr services purchased but nt received, such as seat assignments, early barding and carry n baggage; and Creatin f a DOT advisry cmmittee t imprve air travel fr persns with disabilities by reviewing training and best practices by airprts and airlines. The FAA Reauthrizatin Act f 2016 des nt include prvisins fr the privatizatin f the U.S. air traffic cntrl system, which was cntained in previus versins f the bill passed by the U.S. Huse f Representatives. Althugh Huse Transprtatin and Infrastructure Cmmittee Chairman Bill Shuster (R PA) applauded the effrts f the Senate in passing the Reauthrizatin bill, Mr. Shuster wh riginally intrduced the FAA Reauthrizatin Act in the Huse stated that he wuld cntinue t push Cngress t pass the Huse versin f the bill privatizing air traffic cntrl befre the final bill is presented t President Obama fr review. Eckert Seamans Cherin & Melltt, LLC, 2016, all rights reserved.
PRECLEARANCE AUTHORIZATION ACT BECOMES LAW The Preclearance Authrizatin Act f 2015 (PAA) was passed int law n February 24, 2016 as part f the Trade Facilitatin and Trade Enfrcement Act f 2015 (TFTEA). The PAA requires fficials at the U.S. Departments f State (DOS) and Hmeland Security (DHS) t wrk tgether t prevent terrrist attacks and ther security risks frm entering int the U.S. The bill als requires Cngressinal apprval f prpsed expansins f preclearance facilities abrad nt less than 60 days befre an agreement with a freign gvernment peratins enters int frce. Cngress must evaluate the impact such expansin will have n legitimate trade and travel, U.S. Custms and Brder Prtectin (CBP), as well as anticipated hmeland security benefits. Befre Cngressinal apprval f preclearance peratin expansins can be given, Cngress must review the anticipated funding surces, as well as perfrm a hmeland security assessment fr the cuntry in which preclearance peratins are t be established. Under the PAA, Cngress may nly grant apprval if at least ne U.S. passenger carrier perates at the prpsed site, and if U.S. passenger carriers wishing t participate in preclearance peratins are prvided cmparable access t nn U.S. passenger carriers perating at the same site. Befre preclearance peratins may be apprved, Cngress must prduce a reprt certifying that CBP cnsulted with stakehlders, including prviders f cmmercial air service t the U.S., emplyees f such prviders, security experts, and any ther parties the Secretary f Hmeland Security deems apprpriate. DOT RELEASES NOTICE OF INTENT TO CONVENE NEGOTIATED RULEMAKING COMMITTEE TO AMEND DISABILITY REGULATIONS On April 7, 2016, DOT released a Ntice f Intent (NOI) t establish an Accessible Air Transprtatin Advisry Cmmittee (ACCESS) as part f a Negtiated Rulemaking t amend DOT rules cncerning Nndiscriminatin n the Basis f Disability in Air Travel. The ACCESS Cmmittee will address three primary issues: (1) basic accessibility and strengthening f accessibility requirements fr in flight entertainment (IFE) and cmmunicatins; (2) lavatry accessibility n new single aisle aircraft ver a certain size; and (3) clarificatin f the definitin and utilizatin f service animals by disabled passengers n flights. Applicatins t fill twenty five spts n the ACCESS Cmmittee were due n April 21, 2016 and a rster f applicants selected t serve n the Cmmittee is expected t be annunced this mnth by DOT. Numerus cmments were filed in the respnse t the NOI. These included remarks frm Airlines Fr America (A4A) and the Internatinal Air Transprt Assciatin (IATA), bth f which disagreed with DOT s prpsal fr the size and scpe f the ACCESS Cmmittee. A4A and IATA prpsed resizing the Cmmittee s that the number f cnsumer advcate and disability assciatin representatives is mre in line with the number f industry and carrier representatives directly affected by the prpsed rulemaking. A4A als advcated fr the relegatin f IFE experts, aircraft manufacturers, and charter representatives t technical wrking grups instead f t the full ACCESS Cmmittee. Eckert Seamans Cherin & Melltt, LLC, 2016, all rights reserved.
EUROPEAN COMMISSION PROPOSES SUSPENSION OF VISA WAIVERS FOR FIVE EUROPEAN COUNTRIES FOR U.S. AND CANADIAN CITIZENS The Eurpean Cmmissin has prpsed the suspensin f visa waivers fr U.S. and Canadian citizens visiting Bulgaria, Cratia, Cyprus, Pland and Rmania. The five cuntries are part f the Schengen Area an area cnsisting f twenty six Eurpean cuntries that have ablished all passprt and ther immigratin cntrls at mutual brders t allw the area t functin as a single cuntry fr internatinal travel purpses. The prpsal wuld exclude the five natins because citizens f thse cuntries d nt enjy the same reciprcal visa waivers when visiting Canada r the U.S. Accrding t the Eurpean Cmmissin, the suspensin prpsal is a result f multiple ignred requests t the Obama Administratin and the U.S. State Department t waive the visa requirement ver a span f twenty ne mnths. THIRD CIRCUIT COURT OF APPEALS HOLDS FAA DOES NOT PREEMPT STATE PRODUCTS LIABILITY LAWS In Sikkelee v. Precisin Airmtive Crp., the U.S. Curt f Appeals fr the Third Circuit has held that the Federal Aviatin Act des nt preempt the field f aircraft design and manufacturing prducts liability claims based n state law. Mre specifically, the Curt clarified its previus reading f Abdullah v. American Airlines, Inc. et al., 181 F.3d 363 (3rd Cir. 1999), hlding that language in bth the Federal Aviatin Act and the General Aviatin Revitalizatin Act f 1994 previusly fund t signify Cngress clear intent t preempt state law fr aviatin safety claims des nt apply t aircraft design and manufacturing prducts liability claims, expressly rejecting Plaintiff s argument that the issuance f a type certificate cnstituted a per se preemptin f state law. ICAO ISSUES LITHIUM ION BATTERY SAFETY ADVISORY NOTICE On April 7, FAA issued a Safety Advisry Ntice t advise carriers engaged in cmmercial transprtatin f lithium batteries f recent Internatinal Civil Aviatin Organizatin (ICAO) actins t enhance safe transprtatin f these materials by air. Based n test data by the FAA and recmmendatins develped at the ICAO Multidisciplinary Lithium Battery Transprt Crdinatin Meeting(s), ICAO amended the 2015 2016 editin f the Technical Instructins fr the Safe Transprt f Dangerus Gds by Air (ICAO TI) cncerning the transprt f lithium in cells and batteries t include: A prhibitin n the transprt f lithium in cells and batteries as carg abard passenger carrying aircraft. This prhibitin applies t lithium cells and batteries nt cntained in r packed with equipment when transprted as carg and des nt include batteries cntained in persnal electrnic devices carried by passengers r crew; Eckert Seamans Cherin & Melltt, LLC, 2016, all rights reserved.
A requirement fr lithium in cells and batteries t be shipped at a state f charge f n mre than 30 percent f their rated capacity n carg aircraft (such materials are currently frbidden n passenger aircraft); and A limit n the number f packages f bth lithium in and lithium metal batteries that may be ffered fr transprtatin n carg aircraft under current prvisins fr small cells and batteries t nt mre than ne package per cnsignment r ver pack. The amendments are effective April 1, 2016 and a cpy f the Safety Advisry Ntice is available at: https://www.federalregister.gv/articles/2016/04/07/2016 07936/hazardus materials ica lithium inbattery prhibitin safety advisry ntice. DOJ DROPS SUIT AGAINST UNITED FOR NEWARK SLOT ALLOCATION The U.S. Department f Justice (DOJ) has drpped a federal antitrust lawsuit against United Airlines after it agreed t terminate an agreement with Delta Airlines t take ver twenty fur takeff and landing slts at Newark Liberty Internatinal Airprt (EWR). The annuncement cmes after the FAA agreed t lift slt cntrls at EWR after determining that the airprt had additinal flight capacity due t an under utilizatin f existing slts. Had the United/Delta agreement gne thrugh, Delta wuld have given United cntrl f apprximately 75% f the 1,230 slts available at EWR. Due t the FAA determinatin, EWR will be reclassified as a Level 2 airprt, drpping the current Level 3 slt cntrlled status and allwing fr ptential imprvements in access t sme f the mst in demand airspace in the cuntry. Accrding t the FAA, the reclassificatin frm Level 3 t Level 2 culd als lead t mre ptins fr lcal cnsumers. FAA DOUBLES BLANKET ALTITUDE FOR UAS After cmpleting a cmprehensive risk analysis, the FAA has raised the blanket altitude authrizatin fr 14 C.F.R. Sectin 333 exemptin hlders and gvernment aircraft peratrs f unmanned aircraft systems (UAS) t 400 feet. The new altitude is a significant increase ver the previus 200 ft limitatin as stated by Certificate f Waiver f Authrizatin (COA) requirements and allws small UAS t fly up t the blanket altitude authrizatin anywhere in the cuntry except in restricted airspaces such as airprts and majr cities. The new blanket authrizatin is expected t reduce wrklad fr COA applicatins and FAA regulatrs, reducing the need fr individual COA by 30 t 40 percent. Hwever, ther FAA UAS authrizatin prvisins, such as registratin and pilt certificatin, still apply. Eckert Seamans Cherin & Melltt, LLC, 2016, all rights reserved.
DOT WEBSITE ACCESSIBILITY REQUIREMENT REMINDER DOT s website accessibility rule requires all pages f a carrier s primary website used t advertise r sell air transprtatin that begins r ends in the U.S. must be accessible t individuals with disabilities under the Web Cntent Accessibility Guideline (WCAG) standards develped by the Web Accessibility Initiative f the Wrld Wide Web Cnsrtium. The cre WCAG requirements are defined as: Bking r changing a reservatin (including all flight amenities); Checking in fr a flight; Accessing a persnal travel itinerary; Accessing the status f a flight; Accessing a persnal frequent flyer accunt; Accessing flight schedules; Accessing carrier cntact infrmatin. DOT extended the Phase 1 cmpliance deadline fr cre website functins t June 30, 2016. The Phase 2 cmpliance deadline, which requires that all remaining cmpnents f the carrier s website be made accessible, remains December 12, 2016. DOT recently advised that: If the page is nt wned r cntrlled by the carrier, DOT des nt cnsider the page t be part f the airline s primary website, and therefre, n requirement exists that it be accessible; If the page is wned r cntrlled by the carrier, DOT will review the URL fr that page. If the URL has the same dmain as the primary website, DOT wuld cnsider it part f the carrier s primary website and it wuld need t be accessible, even if the URL is nt exactly the same. Please cntact us if yu have any questins r require additinal infrmatin n this rule. DOT CONSENT ORDERS Air France, Lufthansa, and British Airways vilatins f 14 C.F.R. Part 382 failure t adequately respnd t cmplaints filed by passengers with disabilities Air France and Lufthansa were each fined $200,000 and British Airways was fined $150,000 fr failure t adequately respnd t cmplaints filed by passengers with disabilities. Under 14 C.F.R. Part 382, carriers are required t prvide a written dispsitive respnse t written cmplaints alleging a vilatin f the ACAA within 30 days f receipt. The cnsent rders are the result f several n site regulatry cmpliance inspectins f each airline cnducted in 2012 and 2013 by DOT s Office f Aviatin Enfrcement and Prceedings. During these inspectins, DOT reviewed a number f disability related cmplaint files and fund that, in many ccasins, Air France, Lufthansa, and British Airways failed t prvide dispsitive respnses t passenger cmplaints. In sme cases, British Airways failed t include a summary f the facts, stating instead that the cmplaint wuld be frwarded t the relevant airprt authrity fr respnse. British Airways als failed t infrm cmplainants f their right t pursue enfrcement actin with DOT. Lufthansa similarly did nt infrm passengers f their right t pursue Eckert Seamans Cherin & Melltt, LLC, 2016, all rights reserved.
enfrcement actin with DOT and imprperly referred passengers t an attachment titled Travel Tips that failed t include adequate infrmatin t assist passengers with disabilities t file cmplaints against Lufthansa with DOT. Air France systematically failed t respnd t passengers with disabilities requests altgether, and fr thse t which it did reply, failed t summarize the facts f the cmplaint r systematically admit r deny the vilatin as required by Part 382. SeaPrt Airlines, Inc. (SeaPrt) vilatins f 49 U.S.C. 41734 and 14 CFR part 323 fr terminating service withut prper ntice in the DOT Essential Air Service (EAS) Prgram SeaPrt was fined $30,000 fr unlawful cnduct related t its participatin in the EAS Prgram and was rdered t cease and desist frm future similar vilatins. Specifically, the carrier vilated DOT rules and federal statutes by terminating service t Greenville, MS despite rders frm DOT fr SeaPrt t maintain service until anther carrier culd begin service t thse cmmunities as required under the EAS. Prgram. Thrugh the EAS prgram, carriers prvide air transprtatin t cmmunities that wuld nt therwise receive scheduled air service. DOT subsidizes thse carriers thrugh the prgram. The carrier has t prvide 90 days advanced ntice t the affected cmmunity, the apprpriate state authrity and DOT prir t ending, suspending r reducing service t the cmmunity. This gives the cmmunity and DOT the pprtunity t find alternative prviders in a timely manner. The ntice requirement als gives interested parties the chance t file any bjectins t the change in service. CIVIL PENALTIES PROPOSED BY FAA $52,000 against The Hme Dept fr ffering fr shipment abard a UPS flight 16 cans f flammable spray paint The FAA alleges that the shipment was discvered by a UPS emplyee befre being laded nt the aircraft withut accmpaniment f shipping papers t indicate the hazardus nature f their cntents and were imprperly marked, packed r labeled. Hme Dept als failed t prvide emergency respnse infrmatin with the shipments. $162,500 against Airbus Defence and Space fr ffering fr shipment n a passenger carrying aircraft frm Seville, Spain t Miami Flrida tw Prtective Breathing Equipment Units, each cntaining a chemical xygen generatr. The chemical can cause cmbustin in ther materials and HMR prhibits transprting the devices n passenger carrying aircraft. Upn arrival in Miami, the shipment was ffered undeclared t FedEx fr shipment t Kansas. The shipment als was nt accmpanied by shipping papers t indicate the hazardus nature f their cntents and were imprperly marked, packed r labeled. Airbus Defence and Space als failed t prvide emergency cntact infrmatin with the shipments. This Aviatin Regulatry Update is intended t keep readers current n matters affecting the industry, and is nt intended t be legal advice. If yu have any questins, please cntact Evelyn Sahr at esahr@eckertseamans.cm r 202 659 6622; Drew Derc at dderc@eckertseamans.cm r 202 659 6665; r Reese Davidsn at rdavidsn@eckertseamans.cm r 202 659 6633. Eckert Seamans Cherin & Melltt, LLC, 2016, all rights reserved.