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Tarmac Delays . . . Tick, Tock, Tick ,Tock . . . .

Tarmac delays have long been a problem for the aviation industry, with the possibility of substantial fines in cases where there is a long delay in returning to the gate.  Congress, heeding the complaints from the industry, implemented new language in the FAA reauthorization act, making it easier for airlines to avoid enforcement action in the case of departure delays.  As a result, DOT has now issued new enforcement guidance that takes these changes into account.

Under DOT’s existing tarmac delay rule, 14 CFR 259.4, a tarmac delay is defined as the “holding of an aircraft on the ground either before taking off or after landing with no opportunity for passengers to deplane.”  Thus, once the last passenger door shuts, the clock begins and continues to tick until a door is opened allowing passengers to deplane.   However, earlier this year, Congress included a revision in the FAA reauthorization statute that stated that a tarmac delay begins “after the main aircraft door is closed in preparation for departure” and ends when a U.S. carrier “begin[s] to return the aircraft to a suitable disembarkation point.”  As a result, the regulatory standard did not match the newly stated Congressional language, requiring a new rulemaking by DOT.

In the interim, and in light of the anticipated rulemaking, DOT has now stated that it will not pursue enforcement action against “covered carriers” (which includes both U.S carriers and foreign carriers, even though the statute only covers U.S. carriers) whom do not comply with its existing tarmac delay regulations, with respect to departure delays, so long as covered carriers begin to return aircraft to the gate or another place for disembarkation no later than three hours for domestic flights and no later than four hours for international flights.

With respect to arriving flights at an airport, including diverted flights, DOT will continue to apply its tarmac delay rule as written—carriers must allow passengers to deplane within three hours for domestic flights and four hours for international flights.  Furthermore, carriers must continue to abide by the remaining obligations and assurances under DOT’s rule, such as providing food and water to passengers within two hours of a delay, etc. (14 CFR 259.4(b)(3)-(10)).

The amendment to the tarmac delay statute also codifies the length of tarmac delays in 49 U.S.C. § 42301 by defining an “excessive tarmac delay” as a tarmac delay of more than three hours for a domestic flight and more than four hours for an international flight.  This is not a major change because DOT’s existing regulations currently define tarmac delays as three and four hours, but now there is no discretion, as the length of time is codified.

Bottom line get your passengers off the plane before three or four hours … or in the case of a departure delay, start turning yourself around to a gate!

Tarmac Delays . . . Tick, Tock, Tick ,Tock . . . .

Montreal Convention – PTSD Is Not Compensable . . . Or Is It?

An Australian nurse was recently awarded a $5 million verdict after she developed post-traumatic stress disorder (PTSD) following the crash of a medevac flight into the ocean, at night, and in rough seas.  This award would normally not be noteworthy, as a person who suffers a mental injury while within the zone-of danger during a life threatening accident such as this, can normally recover for mental distress, even if they ultimately escape without any serious physical injuries.  The difference here is that the flight in question was an international flight governed by the Montreal Convention.

Under the Montreal Convention, and its predecessor, the Warsaw Convention, the types of damages that a passenger can recover are strictly limited.  Passengers can only receive compensation for “dommage survenu en cas de … lésion corporelle,” or damages arising from a bodily injury.  As a result, courts in the United States have permitted recover for pain and suffering from a physical injury, such as a broken arm, but denied it in cases where passengers thought they were going to die from an imminent crash, but ultimately came through the experience unharmed.

In the case of the Australian nurse, the PTSD claim, unaccompanied by any physical injury would normally not be compensable under the Montreal Convention.  However, the court found that the PTSD itself had caused physical changes in her brain that impaired its function, making her unable to sleep or work, and that these changes in her brain were a bodily injury that was compensable under the Montreal Convention.

The air carrier, Pel-Air, is appealing the decision, arguing that the mental suffering has to arise from a physical injury, and that her expert’s claim that the purely mental injury produced a compensable physical injury goes against the plain language of the Montreal and Warsaw Conventions.

It should be noted that one of the purposes of an international convention such as this is to ensure uniformity of outcomes across all member nations.  While the courts in the United States have consistently held a hard line on this bodily injury issue, there have been some conflicting decisions coming out of courts in the UK.  If this Australian decision stands, it could lead to increased pressure in the us to change the way the terms are interpreted to “better conform” to the international norm.  This is definitely a case worth watching.

Montreal Convention – PTSD Is Not Compensable . . . Or Is It?

It’s A Bird! It’s A Plane! It’s a Drone!

The ability of people to operate small UAS over people has taken a big step forward.  The FAA has been saying that it wanted to release its draft of the so-called microUAS rules before the end of the year.  However, before that can be done, the Notice of Proposed Rulemaking (NPRM) must go through a review process at the Office of Information and Regulatory Affairs (OIRA), which is part of the Office of Management and Budget (OMB) at the White House.  That crucial first step was taken earlier this week.

According to OIRA’s website, the new rule, entitled “Operations of Small Unmanned Aircraft Over People,” will address:

the performance-based standards and means-of-compliance for operation of small unmanned aircraft systems (UAS) over people not directly participating in the operation or not under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft. This rule would provide relief from certain operational restrictions implemented in the Operation and Certification of Small Unmanned Aircraft Systems final rule.

This provides a golden opportunity for stakeholders to influence the process before the regulation is publicly released.  As part of the review, members of the public can request a meeting with OIRA pursuant to Executive Order 12866 to discuss the proposed rule, what it should contain, and how the rule will impact interested parties — including UAS manufacturers, operators, and users.  As part of Executive Order 12866, OIRA is required to conduct a cost/benefit analysis and determine whether the benefits of the rule justify the costs.  The review process can take up to 90 days, and can be extended for an additional 30 days.  There is no minimum time for the review.  According to OIRA, the average review period is 53 days.

If OIRA’s analysis is favorable, the NPRM would then move forward.  It is possible, however, that at the end of the review period, the rule may be “returned” to the FAA, which would then have to take additional time to revise or redraft the proposed regulation.

It is OIRA’s policy to meet with any interested party, including state or local governments, small businesses or other business interests, or from the environmental, health, or safety communities to discuss proposed regulations.  The meetings are conducted under the OIRA Administrator or his designees, and a log is publicly available of all meetings.

Now is the time for UAS manufacturers, operators, and users to get involved in the federal government’s process and be heard.  If you have a strong interest in operations over people, this is your last chance to impact the regulatory landscape before the rule is published and open for comment.

It’s A Bird! It’s A Plane! It’s a Drone!

The 2017 Aviation Symposium

                  February 7–9, 2017 

The Ritz Carlton
1700 Tysons Boulevard
McLean, VA 22102 l Map

The 2017 Aviation Symposium is free of charge and includes a Continental Breakfast, Welcome Cocktail Party, Lunch and Networking Reception

RSVP

Whether you’re a large airline, a regional carrier, a cargo carrier, a charter operator or a corporate/business/fractional owner-operator, the efficient management of available resources when things go wrong is of critical importance. Not only may you find your options limited by the resources available to you, but in foreign countries or other locations where you have few or none of your own people on the ground, you may have to depend on resources that you aren’t familiar with.

During this, our 11th annual Aviation Symposium, we will focus on how to effectively plan for and use to maximum advantage all resources available to mount a response—whether to an emergency requiring the evacuation of a handful of executives or hundreds of passengers, an airplane blown off the runway or a mid-air collision—that is calculated to meet the needs of the situation at hand, but also protect your brand and to position your company to “come out the other side.”

View the full agenda on the 2017 Airline Symposium event webpage

Accommodations

As in years past, the Symposium will be held at The Ritz Carlton, McLean, VA. A block of rooms has been set aside at a special rate, but history tells us these go fast, so book early.

The Ritz Carlton 

1700 Tysons Boulevard, McLean, VA 22102, Phone: +1 703 506 4300, Fax: +1 703 506 2694

Symposium Hotel Booking Information: 

Group: 11th Annual Aviation Symposium hosted by Dentons  Rate: Deluxe Room for $250 (single or double, plus applicable taxes)  Reservations number: +1 800 241 3333  Cutoff date: January 6, 2017

Book your reservation online Online Group Code: AIRAIRA

AERO meeting

Before the Welcome Cocktail Party on February 7, there will be a general meeting of the Aviation Emergency Response Organization (AERO), the association of emergency response professionals from across the aviation industry, including airlines of all sizes, cargo operators, charter and fractional operators, airports, insurers, consultants and others. The meeting will provide an opportunity for members to connect and non-members to learn about and join AERO.

Also at the AERO meeting, you’ll hear from Christine Negroni, author of The Crash Detectives: Investigating the Word’s Most Mysterious Air Disasters.

Questions

Please contact Barbara Butler at +1 703 336 8704 or Lauren Duda at +1 703 336 8747.

If you would like to receive CLE credit in your state, please just let us know your state of admission

The 2017 Aviation Symposium

Drone v. Airplane: A Near Miss in Canada

For the past several years, people have been warning that it is only a matter of time before there is a serious incident involving an unmanned aircraft and a large commercial passenger plane.  While there have been reports of sightings of UAS by airliners near airports, none of these events have resulted in injuries.  This has led some to say that the threat to manned aircraft by UAS is largely overblown.  Unfortunately, today we have a reminder that the risks are real, and that as UAS are integrated into the National Airspace System, everyone has to take safety issues seriously.

The Canadian Transportation Safety Board has announced that it is investigating an incident on Monday that resulted in the injury of two persons on a Porter Airlines flight from Ottawa to Toronto.  The plane was forced to take evasive action to avoid a collision with what the flight crew believes was a UAS that crossed its path when the aircraft was making a landing at Toronto’s Billy Bishop Toronto City Airport.  The two injuries were to flight crew, who were up securing the cabin for landing when the aircraft made its sudden dive.

Canadian transportation authorities are taking the matter very seriously, and have promised to speed up the issuance of their own comprehensive UAS regulations, which are expected to be released for public comment sometime in the spring of 2017.  In the meantime, Canadian authorities are going to be stepping up their public education campaign to address the steadily increasing number of serious UAS interactions with aircraft.  The Canadian Pilot’s Association is also pushing for Canadian authorities to implement a system of UAS registration for Canada similar to what the FAA put into place last year.

This incident once again shows that the need to educate the public is never ending.  Given the way the technology is proliferating around the world, there continues to be an influx of people conducting aeronautical activities who do not have an understanding of how the system works or what is unsafe.

Drone v. Airplane: A Near Miss in Canada

UAS Webinar Series – Drones: A Year End Review and Preview for 2017

We would like to offer our thanks for the huge turnout we had for our free webinar on UAS Webinar Series – Drones: A Year End Review and Preview for 2017.  For those of you who could not make it, we are providing a downloadable version of the slides, as well as a link to the full presentation so that you can listen at your leisure.

UAS Webinar Series – Drones: A Year End Review and Preview for 2017

The Airline Symposium Webinar Series – Ground Handlers: Liabilities, Claims, Insurance and Contracts

We would like to offer our thanks for the huge turnout we had for our free webinar on The Airline Symposium Webinar Series – Ground Handlers: Liabilities, Claims, Insurance and Contracts.  For those of you who could not make it, we are providing a downloadable version of the slides, as well as a link to the full presentation so that you can listen at your leisure.

The Airline Symposium Webinar Series – Ground Handlers: Liabilities, Claims, Insurance and Contracts

WHEN IS A PUBLIC AIRCRAFT NOT A PUBLIC AIRCRAFT?

The question of whether a UAS can be operated as a public aircraft is a very serious issue for state and local governments.  Public aircraft are exempt from many of the rules and regulations that govern commercial (i.e., civil) aircraft operations.  However, just because an aircraft is owned by the government does not automatically make it a public aircraft.  The aircraft must also be flown iN support of a core governmental function.

Last year, the FAA’s counsel’s office seemed to definitively state that a UAS flown to inspect government infrastructure was a core governmental function and could be done by a public aircraft.  In its opinion to the Tennessee Valley Authority, FAA counsel reasoned that:

the FAA finds that public works projects such as the inspection and maintenance of dams, waterways, bridges, and roads may all be characterized as valid governmental functions when the projects belong to and are funded by a governmental entity, and the operations do not also constitute a commercial purpose. Similarly, a government entity may conduct a public aircraft operation using a UAS for the purpose of conducting a mandatory code inspection of a construction project.

As a result, the FAA told the TVA that they could use UAS to inspect their “39 dams and the numerous waterways connected to them.”

It appears, however, that not all infrastructures are created equal, and that there are exceptions to what appeared to be a bright line rule.  Just recently, the Turlock Irrigation District in California was told that UAS inspections of the government-owned local power system would not qualify as a public aircraft operation.  The FAA agreed that the power company was a government entity, but stated that it was unable to conclude that “a ‘public power utility’ whose function is ‘providing safe, reliable and low-cost electric power'” could meet even an expanded test of governmental function.  The FAA’s position is that, at least on the state level, public aircraft operations are limited to only those “activities that are core functions necessary to operate as a state.”

That a state may choose to expand the reach of its own government to provide any number of services or goods for its residents is not at issue. But the actions of state legislatures to create entities such as public vendors of electrical power cannot be read to bind the terms of the public aircraft statute so as to allow any decision of a state legislature to be the basis for [Public Aircraft Operation].

This decision was followed just a few weeks ago by a similar request by the Salinas Airport to permit the use of public aircraft to inspect the municipal airport.  The FAA noted that “not everything” a government entity decides to do automatically becomes a valid governmental function.  The FAA then went on to conclude that it:

does not consider the operation of an airport to be a governmental function  . . . nor would the inspection of it using a UAS change that status. There is nothing basic to the core function of a state (or a political subdivision of a state) that supports the operation of an airport as a governmental function, nor the inspection of it using a UAS or a manned public aircraft.

The FAA went on to advise that, if the airport wanted to perform the inspections, it would have to:

do so as a civil operator and had to comply with 14 CFR Part 107, including the waiver provisions of §§107.200 and 107.205.   If the limitations on operation in Part 107 do not meet its needs, the city may apply for an exemption from the FAA as a civil operator.

So, based on these three decisions, it appears that the FAA is standing by a very restrictive view of “core governmental function.”  Public safety organizations, such as police and fire departments, clearly qualify.  Universities qualify, but only for certain types of work such as aeronautical research.  Dams and certain types of road and construction projects might qualify, but government-run airports and power companies apparently do not.  For now, it seems that the best course of action is, if in doubt, ask the FAA counsel’s office, because only they seem to know for sure.

WHEN IS A PUBLIC AIRCRAFT NOT A PUBLIC AIRCRAFT?

DRONE DEFENSE . . . NOT SO FAST SAYS FAA

Unmanned Aircraft are definitely a transformative technology.  They open up the lowest parts of the airspace to productive use.  At the same time, they also create new problems for privacy and security.  As a result, interest in “drone defense” technology has been skyrocketing.  It seems that there is a new innovative defensive system unveiled by entrepreneurs on a weekly basis.  A new letter form the Office of Airports Safety and Standards, however, indicates that the FAA would like to slow down and coordinate this new technological stampede.

Earlier this week, the FAA’s Office of Airports Safety and Standards sent an open letter to all airport sponsors officially clamping down on independent testing of defensive systems.  The FAA notes in the letter that, while the Congress instructed the FAA to establish a pilot program to mitigate airspace hazards at airports and other critical infrastructure, that will be done through a Cooperative Research and Development program later this year and next year.  According to the letter, some airports had begun to enter into individual agreements with system manufacturers for testing or pilot programs.  The letter warns that they have no authority to enter into those agreements, and that if they do so, they could be “in violation of their grant assurances.”

The letter goes on to stress that there are still many issues that have to be worked out, not just at FAA, but across the entire alphabet soup of federal agencies.  The FAA stressed that there are strong concerns that “electromagnetic and Radio Frequency (RF) interference” will affect safety of flight and air traffic management issues.  In addition, the FAA warned that the technology still has a number of legal hurdles to overcome, including laws that “prohibit destruction or endangerment of aircraft and others that restrict or prohibit electronic surveillance, including the collection, recording or decoding of signaling information and the interception of electronic communications content.”

Anti-drone technology is still in the early stages.  A cautions approach may be warranted until the competing technologies have demonstrated their safety and effectiveness.  There is no reason, however, why the legal issues cannot and should not be worked out now.  The last thing we need is to yet again reach a point where proven technologies have to sit on the shelf while the FCC, DHS, and others start their rulemaking processes.  In addition, while Congress has demonstrated a desire to see this technology move forward, some of the biggest impediments are statutes that only Congress can modify.  Hopefully our legislators will be able to give these issues the attention they deserve after the elections are finally over.

DRONE DEFENSE . . . NOT SO FAST SAYS FAA

“YOUR WAIVER REQUEST HAS BEEN DENIED . . . ” WELCOME TO THE REGULATED WORLD OF AVIATION

The FAA has just issued a statement declaring the new part 107 waiver process a success.  At the same time, however, the FAA has warned that the quality of many of the waiver requests has been so low, that many of them are being rejected.

In a press release on October 25, 2016, FAA noted that as of this week, it had approved 81 authorizations for flights in Class D and E airspace, and has issued 36 waivers of Part 107 provisions to drone operators who applied after the rule’s effective date.  The FAA went on to note, however, that “many applications have incorrect or incomplete information,” request too many waivers or request waivers for flights in types of airspace for which the FAA is not yet granting approvals.  As a result of these problems, the FAA has had to “reject 71 waiver requests and 854 airspace applications.”

It appears that many of the applications are simply stating that the operator desires a waiver without providing any information about how the flights will be flown safely.  By way of example, the FAA noted that it gets many requests for night operations.  In order for the request to be granted, the applicant must:

  • Provide a method for the remote pilot to maintain visual line of sight during darkness;
  • Provide a method for the remote pilot to see and avoid other aircraft, people on the ground, and ground-based structures and obstacles during darkness.
  • Provide a method by which the remote pilot will be able to continuously know and determine the position, altitude, attitude, and movement of their small unmanned aircraft (sUA).
  • Ensure that all required persons participating in the sUA operation have knowledge to recognize and overcome visual illusions caused by darkness, and understand physiological conditions which may degrade night vision.
  • Provide a method to increase conspicuity of the sUA to be seen at a distance of 3 statute miles unless a system is in place that can avoid all non-participating aircraft.

Apparently, most people are under the impression that all they need to do is parrot back to the FAA that they promise to do these things, and the waiver will be granted.  What people are, failing to grasp, is that they have to give the FAA a description of what it is they are actually going to do to meet these requirements.  Without this information, the FAA will not grant the waiver.

The FAA also noted that it is only considering requests for operators who want to go beyond class G airspace and fly into class D and E.  The FAA will only start to consider requests for flight into class C airspace at the start of November, and class A airspace after December 5.   Applications to fly in those areas before the indicated dates won’t be approved.

It appears that the UAS community got too comfortable with the pre-Part 107 Exemption process, where operators could simply file a one page letter stating that they wanted to fly UAS and would abide by the standard terms.  The FAA is now clear that the waiver process is going to be treated differently, at least for the time being, and waivers will only be granted if the request is accompanied by a “solid, detailed safety case for any flights not covered under the small drone rule.”

This is but one of the latest manifestations of the fact that drones/UAS are airplanes and, as such, are heavily regulated.  A recognition of this fact is going to become increasingly important as the industry develops and the FAA holds more and more companies accountable.

“YOUR WAIVER REQUEST HAS BEEN DENIED . . . ” WELCOME TO THE REGULATED WORLD OF AVIATION