ACI-NA Weekly Legal Briefing

ACI-NA’s Weekly Legal Briefing

Volume 2011, Issue 23

Week of August 15 – 19, 2011

Legal Affairs Committee Members:

The following matters are highlighted for your review and information.

Litigation Update:

  • Since the Washington Supreme Court granteddiscretionary review of the state appellate court’s decision in the Bandon Apela Afoa case, supplemental briefs have been filed with the State Supreme Court by both parties.  Oral argument in the case has not yet been set.

 

Plaintiff’s Supplemental Brief

Port of Seattle’s Supplemental Brief  

 

Amicus briefs will be made by parties granted the right to participate in the case shortly.  ACI-NA’s Supplemental Brief will be filed within the next two weeks.  Associate law firm Kaplan, Kirsch & Rockwell has been retained for assistance with the brief in this matter.

 

Legislative and Regulatory Developments:

  • ACI-NA issued the following press release on Aug. 17, 2011:

Principato Urges New Deficit Committee to Free the Nation’s Airports

WASHINGTON—Airports Council International-North America (ACI-NA) President Greg Principato has written to the newly-appointed members of the Joint Select Committee on Deficit Reduction requesting that as the committee meets to determine the financial future of the nation, they consider removing the federal government’s restrictions on airport financing.

In his letters, Principato stressed that, “Airports, unlike many in the aviation industry, have the ability to raise our own revenues but the current restrictions put in place by the federal government prevent us from doing so. For example, airports could raise money from capital markets, directly from passenger fees such as the Passenger Facility Charge (PFC) and from PFC backed bonds, but federal restrictions prohibit us from raising the financing that is necessary to maintain and improve our facilities.” 

Principato’s letter went on to emphasize that allowing airports more financial freedom will reduce the amount of money Washington spends on aviation infrastructure and end up with a better system, while also creating jobs in local communities and improving our economy.

“If Congress truly expects airports to continue to meet the numerous federally mandated safety, security and infrastructure projects while reducing the deficit, your plan needs to get the government out of the business of strictly limiting the ability of local communities to raise the funds needed to address their airport’s needs,” Principato continued.

  • ACI-NA issued a press release encouraging Congressional passage of a long-term FAA reauthorization extension on August 15, 2011:

Airports Urge Congress to Pass Long-Term FAA Reauthorization Extension

WASHINGTON—Airports Council International-North America (ACI-NA) President Greg Principato today urged the bipartisan congressional leadership of both the Senate Commerce, Science & Transportation Committee and the House Transportation and Infrastructure Committee to pass a long-term extension of the operating authority of the Federal Aviation Administration (FAA) when they return to Washington next month.

In his letter, Principato emphasized that, “At a time when both the economy and job growth are on shaky ground, one positive step Congress can take is to provide a two-year extension of the FAA’s operating authority through Fiscal Year 2013 in order to provide the stability needed to plan and move forward with needed improvements in the national aviation transportation system and to protect the integrity of the Aviation Trust Fund.”

Principato’s letter went on to stress that airports will continue to support the efforts of both chambers to complete their negotiations on the pending FAA bill but, “Congress cannot afford to leave the aviation industry or the FAA in limbo any longer. In the last year and a half alone there have been 12 extensions, providing an average of 51 days of operating authority.  This is not, as Department of Transportation Secretary Ray LaHood has said, the way to run the safest aviation system in the world.”

FAA:  The Federal Aviation Administration’s (FAA) issued a final rule today that prohibits air carriers and other certificate holders from hiring certain former FAA aviation safety inspectors as company representatives to the agency for a period of two years after they have left the FAA.  The final rule was adopted following the issuance of a Notice of Proposed Rulemaking (NPRM) which was published on November 20, 2009.  The rule is available at: http://archives.gov/federal-register/public-inspection/

According to a press release issued by the FAA:  “Today’s rule responds to concerns raised by Congress and the DOT Inspector General in 2008 about the FAA’s oversight of Southwest Airlines. The DOT Inspector General concluded that that the FAA office overseeing the airline had developed an overly close relationship with the airline and recommended that the FAA create post-employment guidance that includes a “cooling-off” period to prohibit an air carrier from hiring an aviation safety inspector who previously inspected that air carrier.”

See the FAA Press Release at:  http://www.faa.gov/news/press_releases/news_story.cfm?newsId=13045

FCC:  The Federal Communications Commission has issued a final rule impacting public safety networks that may be of interest to the IT and the security community at airports.

 

Link to Federal Register Notice:  http://www.gpo.gov/fdsys/pkg/FR-2011-08-18/pdf/2011-20831.pdf

Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band

AGENCY: Federal Communications Commission.

ACTION: Final rule.

SUMMARY: In this document, the Commission adopts an initial set of rules necessary to ensure the development of a nationwide interoperable public safety broadband network. The establishment of a common air interface for 700 MHz public safety broadband networks will create a foundation for interoperability and provide a clear path for the deployment and evolution of the nationwide network.

DATES: Effective: August 18, 2011

 

IRS:  The Internal Revenue Service (IRS) has issued a notice for a public hearing on the withholding of payments by government entities to persons providing property or services.  The hearing will be on September 12 in the IRS building at 1111 Constitution Ave, Washington, DC.

 

Link to Federal Register Notice:  http://www.gpo.gov/fdsys/pkg/FR-2011-08-17/pdf/2011-20987.pdf

 

Withholding on Payments by Government Entities to Persons Providing Property or Services; Hearing

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of public hearing on proposed rulemaking.

SUMMARY: This document provides notice of public hearing on proposed regulations relating to withholding by government entities on payments to persons providing property or services.

DATES: The public hearing is being held on Monday, September 12, 2011, at 10 a.m. The IRS must receive outlines of the topics to be discussed at the public hearing by Friday, September 2, 2011.

ADDRESSES: The public hearing is being held in the IRS Auditorium, Internal Revenue Service Building, 1111 Constitution Avenue, NW., Washington, DC 20224.

 

TSA:  The Transportation Security Administration issued a notice in the Federal Register this week reporting on the agency’s final rule on air cargo screening and also containing a request for comments on a fee range for Security Threat Assessments.  The changes to the air cargo screening rule include the following: (1) only TSA will be conducting assessments of Certified Cargo Screening Facilities; validation firms will no longer be used; and (2) the requirement that aircraft operators will be able to screen cargo off an airport without having a separate certification as a Certified Cargo Screening Facility.  The notice also contains a request for comments on a proposed fee range of $31 to $51 for security threat assessments for aircraft operators, foreign air carriers, and indirect air carrier personnel.

Link to Federal Register Notice:  http://www.gpo.gov/fdsys/pkg/FR-2011-08-18/pdf/2011-20840.pdf

 

Air Cargo Screening

AGENCY: Transportation Security Administration, DHS.

ACTION: Final rule; request for comments.

SUMMARY: This rule amends two provisions of the Air Cargo Screening Interim Final Rule (IFR) issued on September 16, 2009, and responds to public comments on the IFR. The IFR codified a statutory requirement of the Implementing Recommendations of the 9/11 Commission Act of 2007 that the Transportation Security Administration (TSA) establish a system to screen 100 percent of cargo transported on passenger aircraft not later than August 3, 2010. It established the Certified Cargo Screening Program, in which TSA certifies shippers, indirect air carriers, and other entities as Certified Cargo Screening Facilities (CCSFs) to screen cargo prior to transport on passenger aircraft. Under the IFR, each CCSF applicant had to successfully undergo an assessment of their facility by a TSA-approved validation firm or by TSA. In response to public comment, this Final Rule removes all validation firm and validator provisions, so that TSA will continue to conduct assessments of the applicant’s facility to determine if certification is appropriate.  The IFR also required that if an aircraft operator or foreign air carrier screens cargo off an airport, it must do so as a CCSF. The Final Rule deletes this requirement, as aircraft operators are already screening cargo on airport under a TSA-approved security program, and do not need a separate certification to screen cargo off airport. This rule also proposes a fee range for the processing of Security Threat Assessments, and seeks comment on the proposed fee range and the methodology used to develop the fee. TSA will announce the final fee in a future Federal Register notice.

DATES: Effective September 19, 2011. 

Comment Date: Comments must be received by September 19, 2011.

 

[Regulatory updates provided by James Briggs]

Upcoming Meetings and Events of Interest

  • The ABA Air & Space Law Forum’s 2011 Annual Conference will be held in Montreal on September 22 and 23 at the Marriott Chateau Champlain

Airport Lawyers will find a number of sessions and speakers of interest, notably:

James Cherry, President & CEO, Aéroports de Montréal

will be the keynote speaker on Friday morning, September 23

and a special General Counsels’ Panel that will explore the full range of issues that aviation general counsel, representing a diverse group of entities, are expected to handle, including:

• Litigation management

• Governance issues (public and private sector)

• Discovery requests

• Management oversight of government investigations

• Legal implications of government regulations and policies

Panelists will also discuss their greatest challenges, major accomplishments and key issues facing each organization's legal department.

 

MODERATOR:  Monica R. Hargrove

General Counsel, Airports Council International-North America

 

SPEAKERS:

Scott Casey, Vice President, Legal & Public Affairs, UPS

Gary Doernhoefer, General Counsel, Legal Services Department, International Air Transport Association

Francine Kerner, Chief Counsel, US Transportation Security Administration

David Mackey, Interim CEO & Chief Legal Counsel, Massachusetts Port Authority

David Shapiro, Chief Legal Officer, Vice President & General Counsel, Air Canada

 

  • Public Safety & Security Fall Conference: Perimeter Security Roundtable
    Participate in this roundtable discussion at the Public Safety and Security Fall Conferenceon Aug. 29- Sept. 1 in Arlington, Va., as airports share best practices for vehicle and pedestrian intrusion prevention, suspicious activity detection, conducting perimeter security surveillance, fence line maintenance and working with its community to deter and prevent unauthorized access attempts. Other panelists will cover some of the technological solutions for enhancing perimeter security. This panel will take place on Aug. 30.

 

  • The ACI-NA Fall Legal Conference will take place at the San Diego Convention Center

on October 15 – 16, 2011

The agenda is available on the ACI-NA Website!

http://2011.aci-na.org/sites/default/files/revised_preliiminary_agenda_8.18.2011.pdf

Online registration is available!

If you have any litigation issues for inclusion during the Litigation Update Session or any transactions of note for inclusion during the Transactions Update Session in October, please send them to me or to the Chairman of the Legal Steering Group,

Timothy Karaskiewicz at timothy.karaskiewicz@milwcnty.com

If you have information of interest to share, forward it to me by COB on Thursday of each week.

  Send it to:  mhargrove@aci-na.org

Have a greatl weekend!

Monica

Monica R. Hargrove
General Counsel

Direct: (202) 861-8088                                                                                                             
E-mail: mhargrove@aci-na.org