This edition of the Cozen O’Connor Aviation Regulatory Update includes the recently signed U.S.-Mexico bilateral agreement that liberalizes air services between the two countries, new Cuba-related regulations loosening restrictions on U.S.-Cuba air services and the export and reexport of U.S.-origin aircraft to Cuba, changes to the Visa Waiver Program, proposed dates for upcoming DOT aviation-related rulemakings, the DOT Office of the Inspector General’s reports criticizing FAA operations, oversight, cost controls and air traffic control staffing, DOT animal incident reporting guidance, new FAA Stage 5 aircraft noise standards, DHS implementation of REAL ID requirements for air travelers, and the latest DOT and FAA enforcement actions.

Department of State

U.S. and Mexico Sign Expanded Air Transport Agreement

The State Department and DOT announced that the United States and Mexico signed a new liberalized air transport agreement on December 18, 2015. The new agreement eliminates designation restrictions on the number of carriers that may serve specific city pairs and expands cargo operations between the two countries, but retains restrictions on the cities from which passenger service may be operated beyond U.S. and Mexican points. The agreement awaits ratification before it can enter into force.

State Department/Customs and Border Protection Implement Changes to the Visa Waiver Program

The State Department’s Bureau of Consular Affairs implemented changes to U.S. entry requirements for travelers entering the U.S. from Visa Waiver Program (VWP) countries. Under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, the following travelers are no longer eligible to be admitted to the U.S. under the VWP: 1) nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country); and 2) nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria. These travelers may still apply for a visa at U.S. Embassies or Consulates. The VWP is administered by the Department of Homeland Security’s Customs and Border Protection (CBP) in consultation with the State Department, and CBP updated its VWP ”Frequently Asked Questions” to include the new changes. CBP stated that affected VWP travelers will have their Electronic System for Travel Authorization (ESTA) revoked and will need to obtain a visa to travel to the U.S.

Department of Transportation

Regulatory

DOT Projects New Publication Dates for “Significant” Aviation-Related Rulemakings

DOT issued its January 2016 Significant Rulemakings Report projecting the following rulemaking publication dates:

DOT Inspector General Criticizes FAA’s Failure to Increase Efficiency and Control Operating Costs

A report issued by DOT’s Office of the Inspector General criticized the FAA for its failure to improve agency efficiency and productivity and implement cost controls despite numerous laws passed by Congress to make the FAA a “performance-based organization” that would operate more effectively and efficiently in providing air traffic services and regulatory oversight. The report states that the FAA’s attempts at implementing past reforms, including several reorganizations and cost-cutting measures, have not slowed the agency’s escalating operating costs or improved its productivity. Instead, the FAA’s budget, operations account, and personnel compensation and benefits costs have doubled while air traffic facility productivity has declined. The report found that between FY1996 and FY2012, the FAA’s total budget grew by 95 percent, from $8.1 billion to $15.9 billion, and its total personnel, compensation, and benefits costs increased by 98 percent, from $3.7 billion to $7.3 billion. The report also criticized the FAA’s implementation of NextGen, which remains “over budget and behind schedule due to overambitious plans, unresolved requirements, software development problems, ineffective contract management, and unreliable cost and schedule estimates.” The IG recommended that the FAA should: 1) identify and implement FAA-wide cost-saving initiatives and develop appropriate timelines and metrics to measure whether the initiatives are successful; 2) identify the current estimated costs for each acquisition system, including all segments, when reporting on major acquisitions and identify the total costs for each system and account for the way funds are being used when reporting to managers, Congress, and other stakeholders; and 3) review and identify best practices and OMB and other federal guidance for acquiring major capital investments and IT systems.

FAA Cited by DOT Inspector General for Inadequate Air Traffic Control Staffing

DOT’s Inspector General also issued a report citing the FAA’s shortcomings in ensuring that a sufficient number of adequately trained air traffic controllers are provided at air traffic control facilities around the U.S. The IG report found that FAA’s controller staffing levels at many of its most critical facilities are generally consistent with the FAA’s Controller Workforce Plan, but questioned the validity of the staffing plan. As of October 2014, when excluding controllers-in-training, 13 of the 23 critical ATC facilities had certified professional controller levels below the facility’s planned staffing range, including 6 of 8 large Terminal Radar and Approach Control (TRACON) facilities. The report also found some en route facilities to be overstaffed, while other facilities have fewer controllers than needed. The IG cited weaknesses in how the FAA determines the number of controllers needed, particularly for en route centers, and criticized the FAA for having failed to establish an effective process for balancing training requirements with pending retirements when managing its staffing resources. The IG report recommends that the FAA: 1) develop and implement a process for determining en route staffing ranges; and 2) document and use the results of the agency’s Operational Planning and Scheduling tool when annually negotiating controller work schedules at each facility.

DOT Inspector General Issues Report Critical of FAA Oversight of Airline Pilots’ Flight Qualifications and Use of Flight Deck Automation

DOT’s Office of the Inspector General issued a report criticizing the FAA for inadequately monitoring air carrier pilot training programs and pilot manual flying proficiency that may be compromised by pilot use of aircraft automation. The report states that recent accidents indicate that pilots who typically fly with automation make errors when they experience unexpected events or transition to manual flying. The report cites FAA estimates that automation is used 90 percent of the time in flight, and that pilots’ over reliance on automation is a growing concern. The report cautioned that the FAA lacks a process to sufficiently assess a pilot’s ability to monitor flight deck automation systems and manual flying skills, and stated that the FAA is “not well positioned” to determine how often air carrier pilots manually fly aircraft. The report recommends that the FAA: 1) develop guidance defining pilot monitoring metrics that air carriers can use to train and evaluate pilots; and 2) develop standards to determine whether pilots receive sufficient training opportunities to develop, maintain, and demonstrate manual flying skills.

DOT Issues Guidance for Carrier Reporting of Incidents Involving Animals Transported by Air

DOT issued a notice reminding U.S. air carriers that operate scheduled passenger service with at least one aircraft designed with a seating capacity of more than 60 passenger seats that they are required to report to DOT the number of incidents they had involving the loss, injury or death of an animal during air transport. Carriers are required to file a report with DOT for any month during which such incidents occur, with the reports due within 15 days after the end of the month to which the information applies. Carriers are also required to submit an annual report of the total number of such incidents and the total number of animals transported by the carrier. Even if a carrier experienced no animal-related incidents in the previous year, they must file an annual report and include the number of animals transported and must enter “0” for any category for which there is no reportable data. The annual report for calendar year 2015 was due January 15, 2016.

Enforcement

DOT Issues Consent Orders Assessing $2.75 Million in Civil Penalties Against United Airlines

DOT issued a consent order assessing $2 million in civil penalties against United Airlines for violations of the disabled passenger rules as a result of an Enforcement Office investigation of the carrier arising from a significant increase in the number of disability-related complaints the carrier received from consumers in the first half of 2014. DOT found that United had failed to provide “adequate and timely assistance” to disabled passengers in moving within the terminal and in enplaning and deplaning aircraft by failing to return passengers’ wheelchairs, mobility aids, or other assistive devices in a timely manner or in the condition in which United received them. United was ordered to pay $700,000 within 30 days of the service date of the consent order, but was credited: 1) $650,000 of the penalty amount for its compensation of consumers who filed a disability-related complaint with the carrier in 2014; 2) $150,000 of the penalty amount for funds it has spent on improving quality assurance audits of its wheelchair vendor(s); and 3) $500,000 of the penalty amount for funds to be spent on technology that will allow disabled passengers to use United’s mobile app to self-identify upon arrival at an airport terminal and notify United of their location for wheelchair or other disability-related assistance, make real-time requests for wheelchair or other disability-related assistance while at an airport terminal, and receive real-time updates on the status of their wheelchair or other disability-related assistance requests.

In addition, DOT issued a consent order assessing $750,000 in civil penalties against United for tarmac delays exceeding 3 hours at Chicago O’Hare International Airport during severe winter weather on December 8, 2013. DOT’s Enforcement Office found that no other airline experienced excessive tarmac delays at Chicago that day, and blamed United’s “gate mismanagement” as the primary cause of the carrier’s excessive tarmac delays. DOT said that given United’s knowledge of the operational situation on the ground and its contingency plan instructions, the carrier should have considered “alternate deplaning options” earlier or assigned gates earlier. The consent order also covered a United tarmac delay in May 2015 in Houston, in which a flight was diverted due to a severe thunderstorm and experienced a 3 hour and 14 minute tarmac delay. DOT stated that United violated the tarmac delay rule for the flight by failing to attempt to deplane passengers before the tarmac delay reached the 3-hour limit. DOT ordered United to pay $375,000 of the assessed penalty amount within 30 days of the service date of the consent order, with the remaining $375,000 credited to United toward its cost of acquiring and installing an automated visual docking and guidance system at most of the carrier’s gates at O’Hare.

Federal Aviation Administration

Regulatory

FAA Proposes New “Stage 5” Noise Standards for U.S.-Certificated Airplanes

The FAA issued a notice of proposed rulemaking to add a new “Stage 5” noise standard that would apply to applications for certification of certain subsonic jet airplanes and subsonic transport category large airplanes with a maximum certificated takeoff weight of 121,254 pounds (55,000 kg) or more on or after December 31, 2017 or that have a maximum certificated takeoff weight of less than 121,254 pounds (55,000 kg) on or after December 31, 2020. The proposed standards are designed to reduce the noise produced by new airplanes and harmonize noise standards for U.S.-certificated airplanes with new, more stringent ICAO noise standards that became effective on July 14, 2014. The FAA cautioned that the adoption of these Stage 5 noise standards for new airplane type designs should not be interpreted as a “phasing out” of the existing noise standards that apply to the production or operation of current airplane models, and that there are no “operational restrictions nor production cut-offs” on the use of Stage 3 or Stage 4 airplanes in the U.S. Comments on the proposed rule are due by April 13, 2016.

FAA Amends Certain Effective Dates in the Final Rule on Changes to Production Certificates and Approvals

The FAA issued a notice changing the effective dates of certain provisions contained in its final rule on changes to production certificates and approvals, which was published on October 1, 2015. The notice provides for earlier implementation of the rule’s provisions that allow production approval holders (PAHs) to issue authorized release documents for aircraft engines, propellers, and articles. The notice also allows an earlier implementation date for production certificate holders to manufacture and install interface components, and provides earlier relief from the current requirement that fixed-pitch wooden propellers be marked using an approved fireproof method. The FAA changed the final rule’s effective date of March 29, 2016 to January 4, 2016, for the following sections: § 21.1(b)(1), which revises the definition of airworthiness approval; § 21.1(b)(5), which defines interface component; § 21.137(o), which establishes provisions for the issuance of authorized release documents by PAHs; § 21.142, which codifies provisions for the inclusion of interface components in a production limitation record; § 21.147, which specifies the requirements that must be met to amend a production certificate to include interface components; and § 45.11(c), which excludes fixed-pitch wooden propellers from the requirement that they be marked using an approved fireproof method.

FAA Registers Nearly 300,000 Recreational Unmanned Aircraft Operators; Plans Online Registration for Commercial Operators

The FAA announced it has registered nearly 300,000 recreational users/hobbyist operators of small unmanned aircraft systems (UAS)/drones during the first 30 days that its online registration system has been operational. UAS owners are currently required to register their aircraft before flying them outdoors, and recreational users/hobbyists who operated their small UAS before the registration requirements were adopted must register by February 19, 2016. The agency said that it plans to make its online registration system available to commercial UAS operators by March 21, 2016. For additional information regarding the FAA’s recently adopted small UAS registration requirements, see the December 2015 edition of the Cozen O’Connor Aviation Regulatory Update.

FAA Issues Fact Sheet Delineating Federal, State and Local Oversight of Unmanned Aircraft Systems/Drones

The FAA issued a fact sheet outlining federal oversight of unmanned aircraft systems (UAS)/drone operational safety and areas of law relating to UAS/drone operations that fall under state and local regulation. The fact sheet discusses state and local UAS-related laws for which consultation with the FAA is recommended, such as restrictions on flight altitude or flight paths, regulation of the navigable airspace, and mandating UAS-specific equipment or training, as well as state and local government authority to regulate drones, including law enforcement requirements to obtain a warrant prior to using UAS for surveillance, privacy-related prohibitions on the use of drones for voyeurism, prohibitions against using UAS for hunting, fishing, or harassing individuals engaged in those activities, and prohibitions on attaching firearms or other weapons to a UAS/drone.

FAA Amends Final Rule on Pilot Certification and Qualification Requirements for Air Carrier Operations

The FAA issued a notice amending its regulations on certification and qualification requirements for pilots in air carrier operations. The FAA’s rules, issued on July 15, 2013, incorrectly revised the pilot certificate requirements for a second in command (SIC) in Part 135 operations by requiring the SIC to hold an airline transport pilot (ATP) certificate and an aircraft type rating for the airplane flown in situations where the certificate holder conducting the Part 135 operations has voluntarily chosen and been authorized to comply with the Part 121 training and qualification requirements. Because the FAA did not intend to impose additional requirements on SICs serving in such Part 135 operations, the FAA revised 14 C.F.R. § 135.3(c) to clarify that a SIC performing Part 135 operations does not need to comply with 14 C.F.R. § 121.436(b) but may continue to hold a commercial pilot certificate with an instrument rating. The FAA also made minor corrections to the rules, including clarifications that: 1) the training required by 14 C.F.R. § 61.156 is only required for those pilots seeking an ATP certificate in the airplane category with a multiengine class rating; and 2) a knowledge test applicable to multiengine airplanes is required only if the pilot does not have valid ATP airplane knowledge test results that were taken prior to August 1, 2014. The amendments became effective on January 4, 2016.

Somalia, Yemen Flight Prohibitions Expanded by the FAA

The FAA issued a final rule expanding current flight prohibitions in the territory and airspace of Somalia by raising the minimum Flight Level (FL) for flight operations from FL200 to FL260 due to the “unacceptable risk” to U.S. civil aviation operating in Somalia at altitudes below FL260 resulting from terrorist and militant activity. The FAA also issued a final rule prohibiting certain flight operations in specified areas of the Sanaa (OYSC) Flight Information Region (FIR) due to risks to U.S. civil aviation from ongoing military operations, political instability, violence and the continuing terrorism threat associated with the fighting and instability in Yemen. The prohibitions apply to U.S. air carriers; U.S. commercial operators; persons exercising the privileges of a U.S. airman certificate, except when such persons 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, foreign air carriers’ code-share statements of authorization contain provisions that prohibit them from displaying a U.S. air carrier’s code on their flights operated in any airspace in which the FAA has issued a flight prohibition, and carriers failing to comply with these provisions could be subject to DOT enforcement action. The final rules are effective immediately.

Enforcement

FAA Proposes to Assess $417,500 in Civil Penalties Against FedEx for Alleged Safety Violations

The FAA issued a release proposing to assess $417,500 in civil penalties against Federal Express for allegedly operating an aircraft that was not in compliance with Federal Aviation Regulations. The FAA alleges that FedEx failed to rebalance a horizontal stabilizer tab control surface on a B-727 aircraft after repainting the part, even though the aircraft’s Structural Repair Manual identifies the work as a “major repair” requiring rebalancing the control surface after completion of the work. As a result, the FAA alleges the aircraft was operated on at least 133 flights in an unairworthy condition.

Department of Homeland Security

DHS Sets Final Implementation Dates for States’ Compliance With REAL ID Requirements

The Department of Homeland Security issued a release announcing that effective January 22, 2018, air travelers with a state-issued driver’s license or identification card that does not meet the requirements of the REAL ID Act (unless that state has been granted an extension to comply with the Act) will be required to present an alternative form of identification acceptable to TSA in order to be allowed onboard a commercial domestic flight. In order for a license or identification card to be compliant with the REAL ID Act, the state issuing it must incorporate anti-counterfeit technology into the card, verify the applicant’s identity, and conduct background checks for employees involved in issuing driver’s licenses. Currently, 23 states are fully compliant with the REAL ID Act, 27 states and territories have been granted extensions of time to become compliant, and 6 states and territories – Illinois, Minnesota, Missouri, New Mexico, Washington, and American Samoa – are noncompliant and do not currently have extensions. Starting July 15, 2016, TSA plans to coordinate with airlines and airports to issue web-based advisories and notifications to the traveling public regarding REAL ID requirements, and beginning on December 15, 2016, TSA plans to expand outreach at airport checkpoints through signage, handouts, and other methods. Starting October 1, 2020, every air traveler will need a REAL ID-compliant license or other acceptable form of identification for domestic air travel.

Treasury Department - Office of Foreign Assets Control

OFAC Amends Cuban Assets Control Regulations to Authorize Travel-Related Transactions and Blocked Space, Code-Sharing, and Leasing Arrangements, Including with Cuban Air Carriers

The Treasury Department’s Office of Foreign Assets Control (OFAC) issued a final rule amending the Cuban Assets Control Regulations by allowing the entry into blocked space, code-sharing, and leasing arrangements to facilitate the provision of U.S.-Cuba air services, including the entry into such arrangements with Cuban air carriers. OFAC also authorized additional travel-related transactions directly related to the temporary sojourn of aircraft in Cuba, including those involving travel between the U.S. and Cuba by certain personnel required for “normal operation and service” on board aircraft or to provide services to aircraft on the ground. In addition, OFAC removed the limitations on payment and financing terms for all exports from the U.S. or reexports of 100 percent U.S.-origin items from a third country that are licensed or otherwise authorized by the Department of Commerce, other than exports of agricultural items or commodities. The final rule became effective on January 27, 2016.

Department of Commerce

BIS Issues Aviation-Related Revisions to Cuba Licensing Policy

The Department of Commerce’s Bureau of Industry and Security (BIS) issued a final rule amending the exceptions to the general policy of denial in the Export Administration Regulations (EAR) for certain exports and reexports to Cuba. The final rule, which was issued simultaneously with, and complements, the OFAC rule (see above), amends the EAR licensing policy by identifying additional types of exports and reexports that are subject to a “general policy of approval,” including, among other things, items for the safety of civil aviation and safe operation of commercial aircraft engaged in international air transportation. Such approvals would include the export or reexport of aircraft leased to state-owned enterprises. Previously, such items were subject to “possible approval on a case-by-case basis.” BIS made the changes based on the substantial increase in air travel to and from Cuba in order to emphasize the importance of civil aviation safety and to recognize that access to aircraft that meet FAA and the European Aviation Safety Agency’s operating standards by Cuban state-owned enterprises contributes to aviation safety. However, applications to export or reexport items, including aircraft, destined to the Cuban military, police, intelligence and security services remain subject to a general policy of denial. The final rule also retains the prohibition on the export or reexport of other items subject to the EAR to Cuba without a license or applicable license exception. The final rule became effective on January 27, 2016.

Occupational Safety and Health Administration

OSHA and FAA Sign MOU to Protect Whistleblowers from Retaliation for Reporting Safety-Related Violations

OSHA and the FAA announced they have entered into a memorandum of understanding to promote the sharing of information between the two agencies regarding the protection of employees of air carriers and their contractors and subcontractors from firing or retaliation due to complaints about violations of aviation safety regulations. Currently, OSHA investigates complaints of retaliation and is authorized to order a violator to stop the retaliation, reinstate the complainant to his or her former job and pay damages, including back pay and attorney fees. The FAA is responsible for investigating complaints related to air carrier safety, enforcing air safety regulations and issuing sanctions to airmen and air carriers for violating these regulations. Under the terms of the MOU, the FAA will refer employees who complain of retaliation to OSHA, and OSHA will provide the FAA with copies of complaints, findings and preliminary orders filed under the whistleblower provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR 21”). The agencies will provide each other with a summary of all complaints received at least quarterly. Additionally, OSHA and the FAA plan to develop training to assist FAA enforcement staff in recognizing retaliation complaints and OSHA enforcement staff in recognizing potential violations of airline safety regulations revealed during investigations.

Government Accountability Office

GAO Publishes Report on the Lack of U.S. Preparedness to Address Air Travel-Related Communicable Diseases

GAO published a report on U.S. preparedness to handle communicable diseases relating to air travel, which criticizes the U.S. government’s lack of a “comprehensive national aviation-preparedness plan” to prevent and contain the spread of diseases through air travel. The report cited U.S. airports and airlines as not being required to each have preparedness plans, and the absence of federal tracking of which airports and airlines have them. Annex 9 of the Chicago Convention requires member states to develop a national aviation-preparedness plan for communicable disease outbreaks, but only some elements of such a plan exist at only a few airports and airlines. The report contends that individual airport preparedness plans are often intended to handle a limited number of contagious passengers arriving on one or two flights, rather than being able to handle an epidemic. GAO asserted that a national aviation-preparedness plan would provide airports and airlines with a much-needed framework with which to align their individual plans to ensure such airport and airline plans work in conjunction with each other to provide a mechanism for the public-health and aviation sectors to coordinate to more effectively prevent and control a communicable disease threat while minimizing unnecessary disruptions to the national aviation system.

Congressional Action Impacting Aviation

Congress Continues Discussions on FAA Reauthorization

Although funding for the FAA expires on March 31, 2016, a draft FAA reauthorization bill has yet to be issued by the House or Senate. Leadership in both chambers indicate that FAA reauthorization talks are continuing. House Transportation Committee Chairman Bill Shuster (R-Pa.) has stated that he would like to release a draft bill by February 11, but no official date has been confirmed. Congressional leaders indicate that a potential privatization of U.S. air traffic control is the most significant unresolved issue in legislative discussions. In addition, the regulation of unmanned aircraft/drones continues to be a topic of keen interest to many members, including Senator Bill Nelson (D-Fla.), who recently reported that he is committed to ensuring that drone safety be included in any FAA reauthorization.