Aviation Regulatory Update – August 2026

September 9, 2026

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FEDERAL APPEALS COURT OVERTURNS DOT’S DECISION TO UNWIND DELTA-AEROMEXICO JOINT VENTURE

On August 20, 2026, the United States Court of Appeals for the Eleventh Circuit (Eleventh Circuit) vacated DOT’s September 2025 order terminating approval of the Delta-Aeromexico joint venture and withdrawing the accompanying grant of antitrust immunity (ATI). Having stayed DOT’s order in November 2025 until a three-judge panel could thoroughly review DOT’s decision, the Eleventh Circuit determined that the DOT order was “arbitrary and capricious” in violation of the Administrative Procedure Act (APA) for two reasons.

First, the Court found that DOT failed to conduct a comprehensive U.S.-Mexico market analysis encompassing all applicable network, country-pair, and city-pair levels because it focused solely on anticompetitive conditions at Mexico City’s Benito Juárez International Airport (MEX), a single airport, when assessing whether to withdraw ATI held by the parties. By only focusing on competitive concerns at a single airport like MEX, the Eleventh Circuit stated that DOT ignored the broader U.S.-Mexico market which includes approximately 1,687 city-pairs and therefore DOT departed from longstanding precedent of conducting far broader market analyses.

Second, and more importantly for foreign air carriers, the Eleventh Circuit undercut DOT’s contention that compliance with open skies agreements was a prerequisite for approval of the Delta-Aeromexico joint venture. In making this decision, the Court cited prior DOT precedent where regulators had not imposed such a requirement in other similar cases. For instance, DOT previously granted ATI to two joint ventures between U.S. and Japanese air carriers to operate at Tokyo’s Haneda International Airport even though the bilateral agreement between the United States and Japan explicitly carved out Haneda from the Open Skies regulatory framework. In other words, by requiring Mexico’s compliance with the 2015 Open Skies agreement as a condition for renewing the Delta-Aeromexico joint venture—while not imposing similar requirements in comparable cases—the DOT failed to treat like cases alike, leading the Eleventh Circuit to find its decision arbitrary and capricious under the APA.

In addition to preserving Delta and Aeromexico’s transborder joint venture, Eleventh Circuit’s decision could have broader legal/aeropolitical implications given the Trump administration continues to strictly enforce foreign government compliance with bilateral aviation agreements. The Eleventh Circuit ruling also underscores the importance of federal judicial oversight of agency decisions to ensure that U.S. regulators are applying the law correctly and reaching well-reasoned conclusions supported by the factual record.

ENFORCEMENT OF CERTAIN WHEELCHAIR RULE AND ACCESSIBLE LAVATORY RULE PROVISIONS FURTHER DELAYED

On August 3, 2026, DOT announced another extension of enforcement discretion for four (4) provisions of the Ensuring Safe Accommodations for Air Travelers with Disabilities Using Wheelchairs rulemaking (Wheelchair Rule). DOT previously delayed enforcement of these provisions until December 31, 2026, while the Trump administration worked on a new Airline Obligations to Accommodate Air Travelers with Disabilities Using Wheelchairs rulemaking (Wheelchair Rule II). Having now determined that the Wheelchair Rule II rulemaking process will take longer than anticipated, DOT extended its exercise of enforcement discretion from December 31, 2026, to April 30, 2027. This means that the following four (4) provisions of the Wheelchair Rule will not be enforced until late April 2027 at the earliest:

Liability when passenger wheelchairs or other assistive devices are not timely returned in the condition in which they were received (14 C.F.R. 382.130(a));
Frequency of required refresher training of airline employees and contractors (14 C.F.R. 382.141(a)(6));
Pre-departure notifications to passengers that check wheelchairs or scooters of their right to contact a Complaint Resolution Official and file claim (14 C.F.R. 382.125(e)); and
Reimbursement of fare differences between flight wheelchair or scooter user took, and flight that wheelchair or scooter user would have taken if his or her wheelchair or scooter had been able to fit on preferred flight (14 C.F.R. 382.132).

DOT will also exercise its enforcement discretion regarding the annual training mandate for flight attendants as contemplated within the Accessible Lavatories on Single-Aisle Aircraft rulemaking (Accessible Lavatory Rule) which was issued in August 2023 to improve the accessibility of lavatories on single-aisle aircraft. Among other requirements, the Accessible Lavatory Rule mandated annual hands-on training for flight attendants relating to on-board wheelchair (OBW) use, stowage, and best practices for assisting passengers to/from the lavatory (14 C.F.R. 382.63(h)(1)). Note that this rulemaking only applies to U.S. and foreign air carriers that operate single aisle aircraft to, from or within the United States. Since the frequency of refresher training for flight attendants will be addressed in the new Wheelchair Rule II rulemaking, DOT will not enforce the annual training requirements of the Accessible Lavatory Rule until April 30, 2027.

CUSTOMS USER FEES TO BE ADJUSTED FOR INFLATION IN 2027

On July 31, 2026, U.S. Customs and Border Protection (CBP) increased certain customs user fees and corresponding limitations to keep pace with inflation. U.S. and foreign air carriers are directly impacted by such increases via CBP’s Customs User Fee (CUF) (also known as the Commercial Aircraft Passenger Arrival Fee) which must be collected per revenue and non-revenue passenger arriving in the United States. Effective October 1, 2026, CBP will be increasing the CUF amount to from $7.39 to $7.61 for nonexempt air passenger arrivals. As a reminder, payment of CUFs is due quarterly no later than 31 days after the close of the previous quarter and foreign air carriers must maintain records of CUF collections and remittances for at least five (5) years. If a foreign air carrier fails to collect user fees from passengers and/or neglects to remit those fees to the U.S. government, the carrier remains liable for payment of those fees and the federal government may impose interest and penalties for late payments.

COMMERCE COMMITTEE ISSUES LETTER TO MAJOR U.S. AIRLINES OVER AI TICKET PRICING

On August 11, 2026, United States House Representative Frank Pallone Jr. (D-N.J.), the ranking member of the House Energy and Commerce Committee, issued eight (8) letters to major U.S. air carriers requesting details on how they collect and use customer data. Representative Pallone wrote, “I am very concerned about companies potentially using Americans’ personal data to determine what prices they see and pay, and I am continuing an inquiry into just how widespread this practice is.” American, Delta, United, Alaska, JetBlue, Southwest, Frontier, and Hawaiian all received Pallone’s letter.

The Federal Trade Commission (FTC) defines surveillance pricing broadly; however, it includes factors such as location, shopping habits, browsing history, demographics, and device type. Pallone’s letter poses 19 questions to the targeted airlines, asking how they collect customer data and how they use it to set prices. The letter specifically asked about AI algorithms, customer opt-out rights, loyalty program databases, and data security.

COMMERCE DEPARTMENT EASES DRONE EXPORT CONTROLS

The Commerce Department’s Bureau of Industry and Security (BIS) has eased export controls on certain commercial drones and related technology. The new rule became effective August 13, 2026, and eliminates the wind gust tolerance test as a control parameter, raises the national security threshold for drone endurance from one (1) hour to three (3) hours, and removes national security controls on software and technology for drones with less than three (3) hours of endurance. This change, stemming from a 2025 executive order to boost American drone exports, aims to reduce burdens on the U.S. drone industry and maintain global competitiveness. BIS estimates that the changes will reduce the number of export-license applications by approximately 30 annually. However, the new rule also imposes stricter controls on drones designed for military use, now requiring export licenses for these systems because of their increasing role in military operations.

The rule change should make it easier for U.S. manufacturers to sell drones internationally and provide customers with software, software updates and related technical support without having to obtain an export license in circumstances where a license previously may have been required. Practically, for an American drone manufacturer, the rule is generally favorable because it makes the international sale of ordinary commercial drones—particularly systems with less than three hours’ endurance—substantially easier.

FAA MODERNIZES COMMERCIAL AIRLINE EMERGENCY MEDICAL KIT REGULATIONS

The FAA is proposing to update its regulations regarding emergency medical kits (EMKs) and first aid kits (FAKs) carried onboard commercial aircraft. Rather than prescribing a specific list of required items, a rule proposed by FAA would implement a performance-based requirement, ensuring that the kits’ contents remain sufficient for addressing the most common medical emergencies encountered during flights. The proposed update would allow operators increased flexibility to tailor their onboard medical kits to current medical standards and operational needs, while still maintaining predictability and safety. The proposal would also remove an outdated reference to emergency medical kits that were modified on April 12, 2004, and revise related crew training requirements. These changes are being made to fulfill the requirements of the FAA Reauthorization Act of 2024, which directs the agency to modernize equipment and training standards. The FAA is seeking public comments on this proposal until October 5, 2026, with instructions for submitting feedback provided in the notice.

SYRIA SEES ITS DESIGNATION AS A STATE SPONSOR OF TERRORISM REMOVED

On August 24, 2026, the U.S. Department of State removed Syria from its list of State Sponsors of Terrorism, fulfilling President Trump’s pledge to deliver sanctions relief to Syria. This action lifts restrictions under the Terrorism List Governments Sanctions Regulations and related statutes. Simultaneously, the Department revoked the terrorist designation of al-Nusrah Front (HTS), and the Treasury Department’s Office of Foreign Assets Control (OFAC) delisted HTS from the Specially Designated Nationals and Blocked Persons List. The Departments of Commerce, State, and Treasury jointly issued an advisory on sanctions and export controls relief for Syria, which confirms that property of blocked people and entities at least 50% owned by blocked persons remains blocked and must be reported to OFAC.

APHIS ENFORCEMENT SERVICES ANNUAL ENFORCEMENT REPORT

The Animal and Plant Health Inspection Service (APHIS) recently released its fiscal year 2025 enforcement activity summary.

Key Points in the Summary:

New Cases: In FY 2025, APHIS Investigation and Enforcement Services (IES) opened 1,269 new cases supporting APHIS programs and CBP, ranging from complex, multi-state investigations to expedited reviews for clear-cut violations like regulated garbage and passenger baggage issues.
Open Cases: By the end of FY 2025, 316 cases were still active, representing ongoing investigations or enforcement actions at various stages.
Official Warnings: APHIS issued 818 official warning letters to individuals or businesses where evidence proved a violation, but APHIS chose not to seek penalties.
Pre-Litigation Settlements: There were 487 pre-litigation settlement agreements, allowing alleged violators to resolve cases without formal litigation, resulting in APHIS collecting $869,947 in stipulated penalties.
Formal Enforcement Actions: In 22 cases referred for formal action, APHIS—through the Office of the General Counsel—secured administrative orders totaling $257,269 in civil penalties, suspended or revoked three (3) Animal Welfare Act licenses, and disqualified 10 individuals under the Horse Protection Act.

CBP AND CDC EXTEND ORDER RELATING TO EBOLA OUTBREAKS AND UPDATE DESIGNATED AIRPORTS

On May 18, 2026, the United States Customs and Border Protection (CBP) released an Order suspending entry of any “covered aliens” into the U.S. for a period of 30 days for persons that have departed from, or were otherwise present in, the Democratic Republic of Congo, Uganda, and South Sudan during the last 21 days. CBP said it implemented this Order in response to Ebola outbreaks in the countries. Pursuant to the Order, the Centers for Disease Control and Prevention (CDC) has been performing enhanced public health screenings on travelers arriving from these countries. Currently, travelers, including U.S. citizens and U.S. nationals, who have been in the Democratic Republic of Congo within 21 days before departure will not be allowed to board commercial flights with U.S. destinations. U.S. citizens and U.S. nationals who have been present in South Sudan or Uganda within 21 days of their travel date will have their air travel routed through designated U.S. airports for enhanced public health screenings.

Through a number of updates, CBP designated four (4) airports for CDC to perform the enhanced screening program: Washington Dulles International Airport (IAD), Hartsfield-Jackson Atlanta International Airport (ATL), John F. Kennedy International Airport (JFK), and George Bush Intercontinental Airport (IAH). On August 12, 2026, CBP formally extended the original order to September 11, 2026. However, for flights departing after 11:59 p.m. Eastern Daylight Time on August 31, 2026, IAH will no longer be a designated airport for the enhanced screening program.

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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 or require additional information, please contact Evelyn D. Sahr at 202.659.6622 or esahr@eckertseamans.com; Drew M. Derco at 202.659.6665 or dderco@eckertseamans.com; Tyler R. Myers at 202.659.6642 or trmyers@eckertseamans.com; Xander B. Silva at 412.566.6069 or xsilva@eckertseamans.com, or any other attorney at Eckert Seamans with whom you have been working.

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