August 2016 Update on Significant DOT, FAA and Other Federal Agencies’ Aviation-Related Regulatory Actions 

Aviation Regulatory Update

August 2016

This edition of the Cozen O’Connor Aviation Regulatory Update discusses new FAA reauthorization legislation, DOT awards for U.S. carrier scheduled service to Cuba, DOT’s decision to address consumer notification requirements regarding changes in airline frequent flyer program rules, recent developments regarding the long-pending applications of Norwegian Air International and Norwegian Air UK for U.S. operating authority, proposed slot awards for U.S.-Haneda air services, the FAA’s new small drone/unmanned aircraft systems final rule, EPA’s endangerment finding on greenhouse gas emissions from aircraft, OFAC’s general license allowing the temporary sojourn of aircraft in Iran, new FAA airport-related rules and policies, DOT/FAA/PHMSA increases in civil penalty amounts, and the latest FAA enforcement actions.

Department of Transportation


DOT Issues Order Tentatively Awarding Frequencies for U.S.-Havana Scheduled Air Service; DOT Makes Final Award of Frequencies for Non-Havana Service

DOT issued an Order to Show Cause proposing to award exemption authority and frequencies to Alaska Airlines, American Airlines, Delta Air Lines, Frontier Airlines, JetBlue Airways, Southwest Airlines, Spirit Airlines, and United Airlines to operate scheduled air service between points in the U.S. and Havana, Cuba. Although only 20 daily U.S.-Havana flights are available under the U.S.-Cuba Memorandum of Understanding, 12 U.S. carriers applied for nearly 60 flights per day to/from Havana. DOT tentatively selected the following carriers for U.S.-Havana service:

Air Carrier

Tentative Service Award

Alaska Airlines

1 daily frequency to/from Los Angeles

American Airlines

4 daily frequencies to/from Miami

1 daily frequency to/from Charlotte

Delta Air Lines

1 daily frequency to/from New York (JFK)

1 daily frequency to/from Atlanta

1 daily frequency to/from Miami

Frontier Airlines

1 daily frequency to/from Miami

JetBlue Airways

2 daily frequencies (except 1 frequency on Saturdays) to/from Fort Lauderdale

1 daily frequency to/from New York (JFK)

1 daily frequency to/from Orlando

Southwest Airlines

2 daily frequencies to/from Fort Lauderdale

1 daily frequency to/from Tampa

Spirit Airlines

2 daily frequencies to/from Fort Lauderdale

United Airlines

1 daily frequency to/from Newark

1 weekly frequency on Saturdays to/from Houston

Objections to DOT’s tentative decision were filed on July 22, 2016, with answers to such objections filed on July 29, 2016. DOT expects to issue a final order later this summer and carriers will be required to begin their U.S.-Havana services within 90 days of the issue date of the final order. DOT also issued a separate order awarding frequencies to American Airlines, Frontier Airlines, JetBlue Airways, Silver Airways, Southwest Airlines, and Sun Country Airlines for scheduled passenger services between the U.S. and other points in Cuba, including Camagüey, Cayo Coco, Cayo Largo del Sur, Cienfuegos, Holguin, Manzanillo, Matanzas, Santa Clara, and Santiago de Cuba.

DOT/FAA Increase Civil Penalty Amounts for Aviation Regulatory Violations

DOT/FAA issued an interim final rule revising certain aviation-related civil penalty amounts as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The 2015 Act requires Federal agencies to adjust minimum and maximum civil penalty amounts for inflation and requires an initial catch-up adjustment in the amount of civil penalties to be assessed. Civil penalty increases cannot exceed 150 percent of the civil penalty levels in effect on the date of the 2015 Act’s enactment, which was November 2, 2015. In addition to raising the amount of civil penalties imposed on airmen, other individuals, and small businesses, the final rule increases the civil penalty amounts for 1) violations of hazardous materials transportation rules from $75,000 to $77,114 per violation (conforms with PHMSA’s recent penalty amount increases discussed below); 2) violations of hazardous materials transportation rules resulting in death, serious illness, severe injury, or substantial property destruction from $175,000 to $179,933 per violation (also conforms with PHMSA’s recent penalty amount increases); 3) violations of hazardous materials training requirements from a minimum of $450 to $463 per violation and from a maximum of $75,000 to $77,114 per violation; 4) violations under 49 U.S.C. Section 46301(a)(1) by a person other than an individual or small business concern from $25,000 (the penalty amount last set by Congress and not the current inflation-adjusted amount of $27,500) to $32,140 per violation; 5) tampering with a smoke alarm device from $2,000 to $4,126 per violation; 6) knowingly providing false information about alleged violations involving the special aircraft jurisdiction of the U.S. in the areas of aircraft piracy, interference with flight crew members, weapons or explosives carried onboard aircraft and certain unlawful acts from $10,000 to $22,587 per violation; and 7) interference with cabin or flight crew from $25,000 to $34,172 per violation. The final rule and revised civil penalty amounts became effective August 5, 2016.

DOT Inspector General Issues Audit Report Prompting DOT Plans to Address Airline Notification to Consumers of Changes to Frequent Flyer Program Rules

DOT’s Office of the Inspector General (OIG) issued an audit report critical of DOT’s process for identifying unfair or deceptive practices regarding airlines’ frequent-flyer program (FFP) rule changes. The report highlighted airlines’ ability to make FFP changes with little to no notice to consumers that in some cases reduce the value of FFP awards. The report stated that although DOT considers an airline’s changes to its FFP terms and conditions without reasonable consumer notice to be an unfair or deceptive practice, DOT rarely investigates whether this practice occurs. DOT agreed to implement two of the OIG’s recommendations, including the training of DOT analysts to more easily identify what constitutes unfair or deceptive practices, and defining what constitutes reasonable notice for consumers regarding changes to FFP terms and conditions and requiring airlines to provide such notice. DOT planned to complete the first recommendation by June 30, 2016, and said it would accomplish the second recommendation with a new rulemaking before the end of 2018.

DOT Dismisses Norwegian Air UK’s Exemption Request, Prompting EU Call for Arbitration

DOT issued an order dismissing the application of Norwegian Air UK Limited for an exemption, asserting that the carrier’s application for both exemption and foreign air carrier permit authority “has raised a number of significant issues” that are “novel and complex” and mirror those in the still pending proceeding involving the permit application of Norwegian Air International Limited (NAI). (DOT has issued an order proposing to grant NAI’s permit application.) Both NAI’s and Norwegian Air UK’s applications have been strongly opposed by labor unions and others that argue that both carriers seek to establish a “flag of convenience” in order to avoid stronger labor laws in Norway by establishing both carriers’ bases of operations outside of Norway using crews from other countries. DOT stated that it does not find that grant of a temporary exemption to Norwegian Air UK is “appropriate or in the public interest.” DOT said that Norwegian Air UK’s U.S. operating authority will be considered in the context of its application for a foreign air carrier permit.

Violeta Bulc, EU Commissioner for Transport, sent a letter to DOT Secretary Anthony Foxx expressing concerns regarding DOT’s inability to approve NAI’s and Norwegian Air UK’s applications and stating that she has “initiated the decision to formally request arbitration” on the issue.

DOT Tentatively Awards U.S.-Haneda Daytime Slots to U.S. Carriers

DOT issued a show cause order tentatively awarding five available daytime slot pairs for daily scheduled combination services between the U.S. and Tokyo’s Haneda Airport, as follows: 1) one slot pair to American Airlines for Los Angeles-Haneda service; 2) two slot pairs to Delta Air Lines for Los Angeles-Haneda and Minneapolis/St. Paul-Haneda services; 3) one slot pair to Hawaiian Airlines for Honolulu-Haneda service; and 4) one slot pair to United Airlines for San Francisco-Haneda service. DOT previously awarded Hawaiian an uncontested nighttime slot pair to serve the Kona/Honolulu-Haneda route. DOT also proposed to condition Delta’s Minneapolis award to provide that if Delta significantly deviates from its Minneapolis service proposal, then its Minneapolis slot award would automatically terminate and American’s backup authority for Dallas/Fort Worth service would automatically activate. Comments and objections to the show cause order were filed August 1, 2016.

Federal Aviation Administration


FAA Issues Final Rule on Small Unmanned Aircraft System/Drone Operations

The FAA issued a final rule governing the certification and commercial operation of small unmanned aircraft systems (UAS)/drones in the U.S. National Airspace System. The rule allows certain operations of small UAS without the need for aircraft airworthiness certification, an operating exemption, or a certificate of waiver or authorization (COA). The final rule adds a new Part 107 to Title 14 of the Code of Federal Regulations, which requires UAS pilots to operate within visual line of sight of their UAS and limits operations to daylight and during twilight if the drone has anti-collision lights. The new regulations also limit the maximum groundspeed of UAS operations to 100 mph (87 knots) and the maximum altitude of UAS operations to 400 feet above ground level (AGL) or, if higher than 400 feet AGL, within 400 feet of a structure. In addition, the rules prohibit flights over unprotected people on the ground who are not directly participating in the UAS operation. The FAA’s new regulations also provide a process to waive some restrictions if an operator proves the proposed flight will be conducted safely under a waiver. The FAA plans to make an online portal available to those applying for such waivers. Current holders of Section 333 exemptions will be allowed to either continue operating under the terms of their exemption or conduct operations under Part 107 as long as their type of operation complies with the new regulations. The final rule is effective August 29, 2016.

FAA Publishes Supplemental NPRM on Airport Safety Management Systems

The FAA published a Supplemental Notice of Proposed Rulemaking (SNPRM) to require safety management systems (SMS) at certain U.S. airports. The SNPRM would govern airport safety through four key components — safety policy, safety risk management, safety assurance, and safety promotion. The FAA proposes to integrate “proactive hazard identification and risk-management based principles” into day-to-day airport operations. SMS would be applied at any Part 139 certificated airport that is classified as a small, medium, or large hub airport and is identified by Customs and Border Protection as a port of entry, designated international airport, landing rights airport, or user fee airport or is identified as having more than 100,000 total annual operations (takeoffs and landings). The FAA had originally proposed requiring all Part 139 airports to participate in SMS, but based on comments received on the proposed rule, decided to instead apply SMS to certificated airports receiving the vast majority of passenger enplanements, operations, and international service. Instead of applying SMS requirements to more than 500 certificated airports, the SNPRM would apply to approximately 260 airports. Comments on the SNPRM are due September 12, 2016.

FAA Issues Final Rule Amending Repair Station Housing and Rating Requirements

The FAA issued an interim final rule amending its housing and rating requirements for repair stations. The rule, which is effective immediately, would: 1) remove the FAA’s requirement that a repair station with an airframe rating provide “suitable permanent housing” to enclose the largest type and model aircraft listed on its operations specifications; 2) provide that a repair station’s housing for its facilities, equipment, materials, and personnel be consistent not only with its ratings, but also with the limitations to those ratings; and 3) add an additional “general purpose limited rating” to cover maintenance work not covered by the existing 12 limited rating categories under Part 145, which would allow some repair stations to obtain a limited rating that is more tailored to the scope of their work and relieve them from having to provide large and expensive housing to enclose the entire aircraft when that type of housing is not needed for the type of work they perform. The final rule is being implemented to assist repair stations by eliminating costly housing requirements that are not necessary in many cases. Comments on the interim final rule are due August 26, 2016.

FAA Issues Policy on Evaluating Disputed Changes of Sponsorship at Federally Obligated Airports

The FAA issued a policy statement clarifying its legal authority for regulating airport sponsorship and setting forth its policy for monitoring and approving requests to change the sponsorship of, and/or operational responsibility for, an airport from one public agency to another public agency when there is a dispute surrounding the proposed change at federally obligated, publicly owned airports. The FAA also clarified its requirements that state or local governments coordinate with the FAA when contemplating such changes in sponsorship. The policy statement does not apply where the current sponsor/operator and the proposed new sponsor/operator agree to a change of sponsorship and/or operational control, to changes of sponsorship or ownership of privately owned airports, to transfers under the Airport Privatization Pilot Program, or to changes when the U.S. Government exercises its “right of reverter.”

FAA Publishes Final Policy on the Non-Aeronautical Use of Airport Hangars

The FAA published a final policy on the storage of non-aeronautical items in federally-funded airport facilities designated for aeronautical use. The policy prevents hangars from being used for non-aeronautical purposes when there is an aviation need, but allows them to be used for non-aviation activities when demand for space is low. The policy also requires airport sponsors to obtain FAA approval before hangars can be used for non-aviation purposes. In addition, the policy outlines the type of aircraft that can be built in a hangar, the equipment and items that can be stored in hangars, and the role of the airport sponsors to ensure tenants pay fair market value for hangar space. The policy becomes effective on July 1, 2017.

FAA Extends Requirement for Helicopters to Use the New York North Shore Helicopter Route

The FAA issued a final rule extending its requirement that pilots operating civil helicopters under operating Visual Flight Rules (VFR), whose flights take them over the north shore of Long Island between the Visual Point Lloyd Harbor waypoint and Orient Point use the North Shore Helicopter Route as published in the New York Helicopter Chart. This requirement was instituted in response to concerns from local residents regarding noise from helicopters operating over Long Island, New York. Pilots are only permitted to deviate from the route and altitude requirements when necessary for safety, weather conditions, or transitioning to or from a destination or point of landing. The FAA extended the requirement through August 6, 2020.

FAA Issues Final Rule Changing Application Requirements for Authorization to Operate in Reduced Vertical Separation Minimum Airspace

The FAA published a final rule amending its requirements for applications to operate in Reduced Vertical Separation Minimum (RVSM) airspace by eliminating the need for applicants to develop and submit an RVSM maintenance program solely for the purpose of obtaining an RVSM authorization. These requirements were promulgated in 1997 when most aircraft required significant design changes or inspections to qualify for RVSM operation. The FAA said that the requirements are no longer necessary since RVSM systems are now incorporated into aircraft type designs or have been incorporated through modifications performed using supplemental type designs or amended type designs. Operators are required to properly maintain those systems as part of their airworthiness obligations, making a separate RVSM maintenance program “redundant and unnecessary.” The final rule is effective on August 19, 2016.

FAA Extends and Amends Flight Prohibitions Over Certain Parts of Ukraine

The FAA issued a final rule extending its flight prohibitions involving the Simferopol (UKFV) and Dnipropetrovsk (UKDV) flight information regions (FIRs) in the Ukraine for all U.S. air carriers, U.S. commercial operators, persons exercising the privileges of a U.S. airman certificate (except when they are operating a U.S.-registered aircraft for a foreign air carrier), and operators of U.S.-registered civil aircraft (except when such operators are foreign air carriers). In addition, the FAA amended the prohibited airspace area covered by the flight prohibitions in response to the State Aviation Administration of Ukraine’s recent airspace restructuring that altered the UKFV and UKDV FIR altitude structure specified in the final rule. The final rule became effective on July 21, 2016.


Amazon Faces $480,000 in Proposed FAA Civil Penalties for Alleged HazMat Violations

The FAA has proposed three separate civil penalties against, Inc. for allegedly violating Hazardous Materials Regulations. Amazon is facing a $350,000 civil penalty for offering a package to UPS for transportation by air from Louisville, Ky., to Boulder, Colo., on October 15, 2014, that contained a one-gallon container of “Amazing! LIQUID FIRE,” a corrosive drain cleaner. While being transported, some of the Liquid Fire leaked through the fiberboard box. Nine UPS employees who came into contact with the box reported feeling a burning sensation and were treated with a chemical wash. Amazon is also facing a $78,000 civil penalty for offering a package to FedEx on May 24, 2014, that contained corrosive rust stain preventer for transportation by air from Plainfield, Ill., to Davenport, Fla. One of the packages contained four 1-gallon plastic jugs of Rid O’ Rust Stain Preventer Acid Well Water Formula, while the other held two 1-gallon jugs of the formula. Additionally, the FAA has proposed to fine Amazon $52,000 for shipping a non-specification cardboard box via UPS from Whitestown, Ind., to Glendale, Calif., on June 2, 2014, that contained a 19-ounce container of Simple Air EZ Green HVAC Cleaner, which is a flammable gas. In all three cases, the FAA alleges that the packages were not properly marked, labeled, packaged or accompanied by shipping papers indicating the amount, type and hazardous nature of the material inside. The FAA also alleges Amazon did not provide required emergency response information with the shipments.

FAA Proposes $500,000 in Civil Penalties Against SeaPort Airlines for Alleged Safety Violations

The FAA issued a release proposing to assess $500,000 in civil penalties against SeaPort Airlines for alleged safety violations. The FAA alleges that SeaPort operated three single-engine Cessna Caravans after failing to perform required initial and recurring borescope inspections of the aircrafts’ turbine compressor blades. The FAA stated that the aircraft were operated on a total of 583 flights when the inspections were overdue. The FAA also said that SeaPort failed to record the method of compliance with the Airworthiness Directive requiring the inspections and the date when the next recurring inspections were required for those three aircraft as well as another Cessna Caravan.

Pipeline and Hazardous Materials Safety Administration

PHMSA Amends Hazardous Materials Regulations

The Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a final rule amending its Hazardous Materials Regulations (HMR). PHMSA revised 49 C.F.R. Part 175 in collaboration with the FAA to: 1) clarify that air cargo operators that transport hazmat must interact with the FAA Regional Office in the region where the operator is certificated, rather than located, and with their Hazardous Materials Division Manager (HMDM) who has already reviewed and recommended for approval the operator’s hazmat-related manual(s); 2) prohibit hair curlers (curling irons) containing a hydrocarbon gas and gas refills from being carried in checked baggage on board passenger-carrying aircraft; 3) permit small cartridges fitted into or securely packed with devices with no more than four small cylinders of carbon dioxide or other suitable gas in Division 2.2 to be carried by passengers or crewmembers; 4) include Part 125 operations in the provision under 49 C.F.R. § 175.8 that states that oxygen, or any hazardous material used for the generation of oxygen, for medical use by a passenger and furnished by the aircraft operator is not subject to the requirements of the HMR; 5) clarify that the HMR do not apply to dedicated air ambulance, firefighting, or search and rescue operations; and 6) provide new requirements for “mixed contents packages” in which multiple hazardous materials are packed within the same package. PHMSA also corrected inaccurate references to title 14 of the C.F.R. and made minor editorial corrections applicable to air operations to improve overall clarity. The final rule became effective July 5, 2016.

PHMSA Increases Civil Penalty Amounts for Hazmat Violations

PHMSA issued an interim final rule revising the amount of civil penalties that may be imposed for violations of Federal hazardous material transportation law or a regulation, order, special permit, or approval issued under that law. The final rule increases the maximum civil penalty from $75,000 to $77,114 for a known hazmat violation not involving death, serious illness, or severe injury to any person or substantial destruction of property and increases the maximum civil penalty from $175,000 to $179,933 for a known hazmat violation involving death, serious illness, or severe injury to any person or substantial destruction of property. The final rule also increases the minimum civil penalty from $450 to $463 for a hazmat violation relating to training. These civil penalty amount adjustments are statutorily required under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The revised civil penalty amounts are effective August 1, 2016.

Office of Foreign Assets Control

OFAC Issues General License Authorizing Temporary Sojourn of Aircraft in Iran

The Treasury Department’s Office of Foreign Assets Control (OFAC) issued a new ”General License J,” which authorizes non-U.S. persons to re-export certain “Eligible Aircraft” to Iran. The license applies only to “temporary sojourns” and does not allow sales or leases (including wet leases) of aircraft, which continue to require a specific license, nor does it authorize any transaction by a U.S. person. Eligible aircraft include fixed-wing civil aircraft, aircraft containing 10 percent or more U.S.-origin content by value, aircraft classified under Export Control Classification Number (ECCN) 9A991.b, and aircraft registered outside the U.S. and outside an embargo country (Iran, North Korea, Syria, or Sudan). This action will enable foreign-registered aircraft with U.S. content to operate service into Iran. Such operations are considered a “re-export” to Iran. In order for non-U.S. persons to “re-export” Eligible Aircraft to Iran, all of the following criteria must be met: 1) the non-U.S. person retains the right to hire and fire the cockpit crew, dispatch the Eligible Aircraft, determine the Eligible Aircraft’s routes, and perform or obtain the principal maintenance on the Eligible Aircraft, which must take place outside of Iran under the control of a party who is not an Iranian national ordinarily resident in Iran; 2) the place of registration of the Eligible Aircraft will not change to Iran; 3) there is no transfer of technology to an Iranian national ordinarily resident in Iran; 4) the Eligible Aircraft will not bear the color, livery, or logo of any Iranian air carrier; 5) the Eligible Aircraft will not carry a flight number issued to an Iranian air carrier; 6) the Eligible Aircraft will not be equipped with, or used to transport any items controlled on the United States Munitions List, any items under certain ECCNs including 600 series items, or any items used to facilitate the development or production of a chemical or biological weapon or other weapon of mass destruction and their means of delivery, including ballistic missiles; and 7) the Eligible Aircraft will be in Iran for no more than 72 hours on each temporary sojourn. General License J will allow foreign air carriers to operate scheduled flights to Iran. However, such carriers will still be prohibited from engaging in any transactions with individuals or entities located on OFAC’s List of Specially Designated Nationals (SDN List). Foreign entities seeking OFAC specific licenses for the sale or lease of commercial passenger aircraft to Iran will still be required to continue with that licensing process.

Environmental Protection Agency

EPA Finalizes Endangerment Finding on Greenhouse Gas Emissions from Aircraft

The EPA issued a final rule finding that greenhouse gas emissions from certain classes of aircraft engines contribute to air pollution and endanger public health and welfare under section 231(a) of the Clean Air Act. The agency found that the combined mix of six greenhouse gases, carbon dioxide (CO2), methane, nitrous oxide, hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6), emitted from aircraft produce harmful air pollutants. The finding applies to “U.S. covered aircraft,” which is defined as “subsonic jet aircraft with a maximum takeoff mass (MTOM) greater than 5,700 kilograms and subsonic propeller driven aircraft (e.g., turboprops) with a MTOM greater than 8,618 kilograms.” The EPA stated that aircraft are the single largest greenhouse gas-emitting transportation source not yet subject to greenhouse gas standards in the U.S. The endangerment finding allows EPA to promulgate emission standards applicable to greenhouse gas emissions from the classes of aircraft engines included in the “contribution finding.” The EPA plans to conduct a future rulemaking to adopt greenhouse gas standards for aircraft.

Department of Commerce/International Trade Administration

ITA Increases Fees for Obtaining Certain Air Travel Data

The Commerce Department’s International Trade Administration (ITA) issued a notice increasing fees for obtaining monthly, quarterly and annual data from the Advance Passenger Information System (APIS) I–92 Program, the I–94 International Arrivals Program, and the annual custom reports, data tables or files from the Survey of International Air Travelers (SIAT) Program. The APIS I–92 program is a joint effort between Customs and Border Protection (CBP) and ITA’s National Travel and Tourism Office (NTTO) to provide international air traffic statistics data to the U.S. government and the travel industry. The data contains information on all international flights to/from the United States and reports the total volume of air traffic and various subsets of traffic, including the number of U.S. citizens vs. ‘‘all other citizens’’ traveling by air to/from the United States. The information is collected from APIS and all carriers serving the United States are required to transmit APIS data (from their automated flight manifests) to CBP for each flight to/from the United States. The I–94 International Arrivals Program provides data to the U.S. government and the public on the monthly and annual overseas visitor arrivals to the United States along with select Mexican and Canadian visitor statistics.

The NTTO manages the program in cooperation with CBP and collects I-94 data that non-U.S. citizens from overseas are required to complete to enter the U.S., with all visitation data processed by residency (world region and country), total arrivals, type of visa, mode of transportation, age of traveler, address (state level only) while in the U.S. port of entry, and select percentage change comparisons year-over-year. The information is presented in a report entitled the Summary of International Travel to the United States. The SIAT Program gathers statistical data about air travelers in U.S.-overseas and U.S.-Mexican air travel markets (Canada is excluded), and includes data collected on selected flights which have departed, or are about to depart, from the major U.S. international gateway airports. The NTTO provides all of this data for a fee to subscribers. Fees for APIS/I–92 and I–94 products are increasing by 5 percent from 2015 fee levels. For the SIAT reports, a majority of the reports offered will see no fee increase from 2015. However, the cost of obtaining certain SIAT custom reports, data tables and files is also being increased by 5 percent from 2015 fee levels. The revised fees became effective on June 20, 2016.

Government Accountability Office

GAO Issues Report Recommending Changes to the FAA’s Oversight of Repair Stations

The GAO published a report recommending significant changes in the FAA’s oversight of repair stations, including amendments to the FAA’s Safety Assurance System (SAS) used to monitor the regulatory compliance of repair stations. The report recommends that the FAA should “develop and implement a process for incorporating into SAS volume data for U.S. airlines’ maintenance contracted to repair stations” and “develop a process to evaluate the effectiveness of SAS.” The report found that the design of SAS only partially meets FAA-identified key principles for repair station safety assurance and that FAA inspectors need to consider a repair station's volume of work when determining safety risk. The GAO also criticized the FAA for failing to develop a process with “goals and performance metrics” for determining the effectiveness of SAS, stating that such failure resulted in the FAA not knowing whether its current risk-based oversight approach is a success or could be improved.

GAO Publishes Report Critical of TSA’s Oversight of Airport Perimeter and Access Control Security

The GAO issued a report urging TSA to update its assessment of the “threat, vulnerability, and consequence components of risk” to airport perimeter and access control security to reflect changes in the airport security risk environment, particularly the potential risk posed by “rogue aviation workers” exploiting their credentials, access, and knowledge of security procedures throughout an airport for personal gain or to inflict damage. The report criticized TSA for not comprehensively assessing airports’ risk of vulnerability system-wide through its joint vulnerability assessment (JVA) process. GAO stated that through 2015, TSA has conducted JVAs at only 81 of the 437 commercial airports nationwide (about 19 percent) due to resource constraints. The report asserts that while conducting JVAs at all commercial airports may not be feasible due to budget and resource constraints, other approaches, such as providing all commercial airports with a self-vulnerability assessment tool, could allow TSA to assess vulnerability at airports system-wide. GAO also recommended that TSA update its National Strategy for Airport Perimeter and Access Control Security, which defines how TSA seeks to secure the perimeters and security-restricted areas of U.S. commercial airports, in order to reflect changes in the airport security risk environment and new and enhanced activities TSA has taken to facilitate airport security and to better inform management decisions and focus resources on the highest-priority risks.

GAO Issues Report Recommending Changes to TSA’s Federal Air Marshal Deployment Strategy

The GAO published a report stating that TSA should better incorporate risk in its Federal Air Marshal deployment strategy. GAO said the U.S. Federal Air Marshal Service (FAMS) deploys air marshals based mostly on its travel budget and number of personnel, but only partially based on risk when initially dividing its annual resources between domestic and international flights. Among its recommendations, the GAO said that FAMS should: 1) further incorporate risk into its method for providing resources between international and domestic flights; 2) conduct a risk assessment to support certain domestic deployment decisions; and 3) document the rationale for FAMS' selection of international deployment destinations.

Congressional Action Impacting Aviation

President Obama signed into law the Federal Aviation Administration Extension, Safety, and Security Act of 2016 (H.R. 636) on July 15, 2016, thereby extending the reauthorization of FAA programs through September 30, 2017. The extension contains a number of new safety measures, including new medical screening requirements for pilots, as well as guidelines for streamlining the TSA security screening process. It also includes new consumer protection provisions that require refunds of airline-imposed baggage fees when airlines provide delayed baggage delivery, guarantee the seating of children with their parents on flights in certain circumstances, and further address tarmac delays. The legislation also contains additional requirements for regulating, certifying, and restricting the use of drones/unmanned aircraft systems. The legislation does not contain provisions reorganizing the air traffic control system into an independent entity, which were proposed in previous FAA reauthorization bills. Lawmakers have indicated their intent to pass more comprehensive, long-term FAA reauthorization legislation next year.


David Heffernan

Vice Chair, Transportation & Trade

(202) 463-2537

Mark W. Atwood


(202) 463-2513

Rachel Welford


(202) 912-4825

Related Practices

Related Industries

Please contact David Heffernan or Mark Atwood, members of the Cozen O’Connor Aviation Regulatory Practice Group, for more information regarding aviation regulatory issues. For additional information regarding legislative developments affecting aviation, please contact Robert Freeman, Government Relations Principal of Cozen O'Connor Public Strategies