Aviation Regulatory Update – August 2023
August 30, 2023
DOT ASSESSES $4.1 MILLION PENALTY AGAINST U.S. AIR CARRIER FOR TARMAC DELAYS
On August 28, 2023, the United States Department of Transportation (“DOT”) published a Consent Order (“Order”) finding American Airlines (“American”) failed to adhere to its tarmac delay contingency plan for 43 domestic flights. In total, DOT concluded that the tarmac delays affected more than 5,000 passengers between 2018 and 2021, with most of the delays occurring at American’s hub in Dallas, Texas. The delays cited ranged from just over three hours to more than six hours, in violation of the Department’s rules. The Order directs American to pay a $2.05 million penalty within thirty days and credits the remaining $2.05 million penalty to American for the amounts it already compensated passengers on the delayed flights. In response, American asserts that it has made substantial improvements to prevent future tarmac delays and was largely impacted by severe weather in the delays cited. DOT’s Order assesses the largest civil penalty ever issued under the tarmac delay rules.
FAA ANNOUNCES NOTICE OF INTENT TO INITIATE RULEMAKING FOR PUBLIC CHARTER OPERATORS
On August 24, 2023, the Federal Aviation Administration (“FAA”) released a draft Notice of Intent (“Notice”), announcing its plan to initiate a rulemaking to revise the definitions for public charter operations. Under the Notice, the FAA proposes to modify the current exception for public charterers to operate on-demand and scheduled service under 14 C.F.R. Part 380. Under the current rules, Part 380 allows operations to be conducted under Part 135 if the operation involves an airplane with 30 or fewer passenger seats. The new rule would require public charter airplane operators to comply with the requirements in Part 121.
The Notice comes amid congressional and Agency debate concerning large charter operators using the Part 380 rules to forego the pilot hour requirements, and in the context of the larger FAA Reauthorization Act debate surrounding the reduction of pilot flight time requirements to curtail the pilot shortage. Public comments, supporting or opposing the FAA’s Notice, are due within 45 days after publication.
NTSB PUBLISHES REVISED FRAMEWORK FOR AIR CARRIER FAMILY ASSISTANCE PLANS
On August 23, 2023, the National Transportation Safety Board (“NTSB”) published a new version of the Federal Family Assistance Plan for Aviation Disasters, entitled Federal Family Assistance Framework for Aviation Disasters (“Framework”). The new Framework provides assistance to air carriers in drafting the Family Assistance Plan, emphasizing four central concerns: (1) Notification of families regarding passenger involvement; (2) victim accounting, including search and rescue efforts, transportation of passengers to nearby hospitals, and victim identification; (3) identifying resources and information available to families, including receipt of investigative updates, and financial and logistical support; and (4) recovering personal effects and personal items from affected passengers. While not intended to serve as an all-inclusive checklist when drafting a Family Assistance Plan, the new notice provides further support to air carriers when considering what elements to include in their Family Assistance Plan. Air carriers are not required to make changes to their current response plans to implement the new framework, but are encouraged to consider whether their current plan aligns with the NTSB’s revisions.
FAA INVITES COMMENTS ON PRA ESTIMATE TO ENGAGE WITH FOREIGN ENTITIES
On August 18, 2023, the FAA published a Notice and Request for Comment (“Notice”) in accordance with the Paperwork Reduction Act (“PRA”) to permit the Agency to engage with foreign counterparts to “bolster international collaboration and to harmonize international aviation safety requirements.” The Notice is published in response to the requirement codified in 49 U.S.C. 40104, that the FAA engage with international stakeholders to promote and achieve global improvements in air safety. The Notice advises affected parties that the FAA may reach out to foreign entities, both governmental and private parties, to facilitate the statutory requirements. Under the Notice, the FAA expects Agency foreign affairs specialists to engage in twenty instances of international outreach each year. Comments in response to the FAA’s estimated outreach efforts, and the corresponding burden on affected parties, are due by September 17, 2023.
UNITED STATES AND CHINA AGREE TO DOUBLE FLIGHTS BETWEEN COUNTRIES
On August 11, 2023, the United States Department of Transportation (“DOT”) announced that passenger flights between China and the US would double in the latter part of this year. The Biden Administration has approved increasing the number of flights currently permitted, showing a sign of cooperation between the two countries. The agreement came after China lifted all restrictions imposed at the peak of the global pandemic on group tours for key markets, including Australia, Japan, South Korea, and the US. The two nations expect the travel demand to pick up for the academic year beginning late August to early September. DOT stated that “the consistent engagement by USDOT and the State Department with Chinese officials made this important step forward possible. Our overriding goal is an improved environment wherein the carriers of both parties are able to exercise fully their bilateral rights to maintain a competitive balance and fair and equal opportunity among U.S. and Chinese air carriers.”
The new policy is being implemented in two parts. First, beginning September 1, 2023, the Chinese carriers may operate a total of 18 weekly round-trip scheduled passenger flights to and from the United States (up from the current allowance of 12). Second, beginning October 29, 2023, the Chinese carriers may operate a total of 24 weekly round-trip scheduled passenger flights to and from the United States. In response to the submission of proposed schedule revisions by the affected carriers, DOT approved six additional weekly round-trip scheduled passenger flights for Air China, China Eastern, and China Southern between China and the United States. The new routes will join the carriers’ 12 previously approved weekly schedules, granting 18 weekly round-trip scheduled passenger flights for the carriers between the two countries.
U.S. DISTRICT COURT DISMISSES COMPLAINT ALLEGING VIOLATIONS UNDER MONTREAL CONVENTION FOR LACK OF JURISDICTION
On August 11, 2023, the United States District Court for the Eastern District of Louisiana dismissed a Complaint against Scandinavian Airlines System (“SAS”) requesting damages under the Montreal Convention for a passenger’s fall while disembarking an aircraft in Oslo, Norway. Hardy v. Scandinavian Airlines Sys., 2023 U.S. Dist. LEXIS 140171. In dismissing the plaintiff’s claim, the Court reasoned that the Montreal Convention does not provide an independent basis for personal jurisdiction over the airline. In addition, the Court concluded that because the plaintiff’s cause of action arose from injuries that occurred in Oslo, not in the United States, the Court lacked specific personal jurisdiction over the defendant. As a result, the Court dismissed the plaintiff’s claim requesting recovery under the Montreal Convention for lack of personal jurisdiction.
FAA ISSUES EXTENSION OF LIMITED WAIVER OF THE SLOT USAGE REQUIREMENT
On August 9, 2023, the FAA issued an extension of limited waiver of the slot usage requirement. The FAA has extended the waiver through October 28, 2023. The limited, conditional waiver of the minimum usage requirement applies to Operating Authorizations or “slots” at JFK, LGA, and Ronald Reagan Washington National Airport (“DCA”). The waiver’s extension comes amid increasing post-pandemic effects on Air Traffic Controller (“ATC”) staffing at the New York Terminal Radar Approach Control facility. Carriers will be permitted to voluntarily turn in up to 10 percent of their slots held at JFK and LGA, as well as impacted slots at DCA, for the period from September 16, 2023, through October 28, 2023. In addition, the FAA extended the limited policy for prioritizing returned operations at EWR due to post-pandemic effects on ATC staffing at N90 for purposes of establishing a carrier’s operational baseline in the next corresponding season. Carriers will likewise be permitted to voluntarily turn in up to 10 percent of their approved operating timings at EWR for the period from September 16, 2023, through October 28, 2023.
FAA REPORTS 80% DROP IN CASES OF UNRULY AIRLINE PASSENGERS SINCE 2021
On August 9, 2023, the Federal Aviation Administration (“FAA”) reported that cases of unruly airline passenger behavior have dropped by 80 percent since their peak in 2021. The FAA has recorded 1,117 instances of unruly behavior in 2023, down from 5,973 cases in 2021. Twenty-two cases of particularly unruly conduct were referred to the FBI. The violations took place from December 2021 to April 2023, and include physical assault, yelling and cursing, vaping, refusing to remain seated, sexual misconduct toward flight attendants, and sexually assaulting other passengers. The FAA partnered with the FBI in 2021 to more aggressively bring criminal charges against disorderly airline passengers, in hopes of preventing future incidents. The FAA has referred about 270 cases to the FBI since the partnership began, including 39 cases in 2023. Passengers can face up to $37,000 in civil penalties per violation.
EEOC PROPOSES REGULATIONS FOR NEW PREGNANCY LAW
On August 7, 202,3 the U.S. Equal Employment Opportunity Commission (“EEOC”) revealed proposed regulations for implementing the Pregnant Workers Fairness Act (“PWFA”), a law enacted in late 2022 that requires employers to make reasonable changes in the workplace to help employees who have pregnancy-related limitations. The public will have 60 days to comment on the proposed rule, the EEOC said. The Agency called for input on specific areas including defining key terms, examples of what would constitute reasonable accommodations under the law, and an assurance that employees would not face consequences for using such accommodations. The EEOC began accepting charges alleging violations of the PWFA on June 27, the law’s effective date. The PWFA, part of a bipartisan omnibus spending bill signed on December 29, gave the Commission one year from the law’s enactment to issue the regulations. While the EEOC has released tips for workers seeking accommodations and released both an infographic for employers and a poster about the PWFA, lawmakers and workplace advocates have expressed concern that the Agency is not moving fast enough.
ELEVENTH CIRCUIT AFFIRMS LOWER COURT DECISION DISMISSING DEFAMATION PER SE CLAIM IN DISPUTE BETWEEN AIRLINE AND PASSENGER
On August 7, 2023, the United States Court of Appeals for the Eleventh Circuit affirmed a decision from the United States District Court for the Southern District of Florida dismissing claims for defamation per se and breach of contract against American Airlines. Clowdus v. Am. Airlines, Inc., 2023 U.S. App. LEXIS 20232. According to the complaint, the plaintiff alleged that in June 2021 he boarded an early flight from Miami to Mexico City. While taking his seat in business class, a flight attendant instructed him to stow his satchel in the overhead bin because his seat was in the bulkhead row. After initially ignoring the request from the flight attendant, the plaintiff passed his bag backwards and by the plaintiff’s own admission, “made slight contact” with the flight attendant. The plaintiff was subsequently removed from the flight, banned from future flights, and terminated from the airline’s loyalty reward program. The Eleventh Circuit affirmed the lower court’s decision holding that neither the airline nor the flight attendant had engaged in defamation per se because they had not “published” the allegedly false statements. Moreover, the Court also held that there was no breach of contract for removing the plaintiff after he made contact with the flight attendant and was removed from the loyalty program. The Court reasoned that the airline’s Conditions of Carriage and loyalty program Terms and Conditions provided latitude to remove passengers and expressly permitted the plaintiff’s termination from the loyalty program.
DOT ISSUES ORDERS AGAINST AIRLINES FOR FAILURE TO PROVIDE TIMELY REFUNDS FOR FLIGHT CANCELLATIONS AND DELAYS
On August 3, 2023, the DOT Office of Aviation Consumer Protection announced publication of two consent orders and notices of dismissal regarding Air Transat A.T. Inc. (“Air Transat”) and SAS’ failure to provide timely refunds to passengers for flights to and from the United States that were cancelled or significantly changed, in violation of 49 U.S.C. § 41712 and 14 C.F.R. Part 259. The orders direct the two airlines to cease and desist from engaging in similar violations and assess civil penalties in the amount of $525,000 for Air Transat and $750,000 for SAS.
Specifically, DOT reported that it received more than 700 informal complaints alleging SAS’ failure to provide timely refunds since March 2020. In addition, DOT reported receipt of more than 150 complaints against Air Transat alleging the same. Air Transat, DOT reported, also allegedly provided credits, instead of refunds, for flights cancelled during the height of the COVID-19 pandemic between March 2020 and November 2020. DOT’s orders represent the latest action the Agency has taken to continue enforcing refund requirements stemming from COVID-related flight cancellations.
FAA EXTENDS CUTS TO AIRLINES’ MINIMUM FLIGHT REQUIREMENTS AT NY AIRPORTS
On August 2, 2023, Reuters reported that the Biden Administration is divided over whether to grant a request from the U.S. biofuel industry that would make it easier for sustainable aviation fuel (“SAF”) made from corn-based ethanol to qualify for subsidies under the White House’s signature climate law. At issue is a requirement in last year’s Inflation Reduction Act (IRA) that SAF producers seeking tax credits must demonstrate with an approved scientific model that their fuel generates 50 percent less greenhouse gas emissions over its lifecycle than petroleum fuel. The administration has a goal to supply at least 3 billion gallons of SAF per year by 2030 as part of its broader effort to decarbonize the transport sector. By 2050, it hopes the SAF industry – which is now miniscule – will meet 100 percent of aviation fuel demand at around 35 billion gallons per year.
AIRPORTS COUNCIL INTERNATIONAL PUBLISHES POSITION PAPER ON TSA AVIATION WORKER SCREENING NATIONAL AMENDMENT
On August 2, 2023, the Airports Council International (“ACI”) published a position paper requesting the Transportation Security Administration (“TSA”) withdraw its National Amendment to Airport Security Program, TSA-NA-23-02 (the “Amendment”). ACI requests that TSA work with airports and congressional leaders before finalizing the Amendment, noting it would impose substantial liabilities and costs on airports. The Amendment would require airports to implement physical screening of aviation workers and procure explosive detection screening technology. In arguing against the Amendment, ACI alleges its implementation runs afoul of current TSA regulations and requests, instead, that TSA initiate a notice of proposed rulemaking to allow affected airports the opportunity to comment on the proposed changes and expected costs. Other entities that have concern regarding TSA’s Amendment, and the potential increase in costs passed down to the airlines, are requested to submit a petition for reconsideration by September 10, 2023.
AMERICAN AVIATION ACT PASSES HOUSE, PENDING BEFORE SENATE
On July 20, 2023, the U.S. House of Representatives passed H.R. 3935, the Securing Growth and Robust Leadership in American Aviation Act (the “Act”). The Act is now before the U.S. Senate for review and debate. The current version of the Act includes provisions on FAA organizational reform, increasing pilot protections, and improving airport infrastructure. In Title VI, “Aerospace Innovation,” the Act details new requirements for unmanned aircraft systems (“UAS”), advanced air mobility (“AAM”), and commercial space launches and reentry. Specifically, Section 652 includes a congressional mandate for the Federal Aviation Administration (“FAA”) to publish the final rule establishing procedures for certifying powered-lift pilots and applying the operational rules to powered-lift operations within 13 months of the Act’s enactment. In addition, Section 265 directs the FAA to update low altitude routes and flight procedures for powered-lift, requiring the Administrator to consult with powered-lift operators and “other relevant stakeholders” when crafting the revised rules.
In Title VII, “Passenger Experience Improvements,” the Act includes new requirements for family seating, seat dimensions, airplane drinking water, accessibility, and several other consumer protection provisions. Section 726 would require, for example, that all domestic and foreign air carriers provide complementary drinking water to passengers on flights with a scheduled duration of 1 hour or more. Further, Section 719 would require the Department of Transportation (“DOT”) to issue a notice of proposed rulemaking directing air carriers to sit young children adjacent to an accompanying adult at no additional cost. The House’s full version of the Act, subject to Senate amendments, approval, and debate, is available for review online.
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This Aviation Regulatory Update is intended to keep readers current on developments in the law. It is not intended to be legal advice. If you have any questions, please contact Evelyn Sahr at 202.659.6622 or esahr@eckertseamans.com; Drew Derco at 202-659-6665 or dderco@eckertseamans.com; Jay Julien at 202.659.6648 or jjulien@eckertseamans.com, or any other attorney at Eckert Seamans with whom you have been working.
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