ACI-NA Weekly Legal Briefing

ACI-NA’s Weekly Legal Briefing

Volume 2011, Issue 26

Week of September 5 – 9, 2011

Legal Affairs Committee Members:

The following matters are highlighted for your review and information.

Legislative and Regulatory Developments:

The ACI-NA Government Affairs Staff reported that last night, before a joint meeting of the House and Senate, President Obama outlined his $447 billion American Jobs Act

There are two pieces in the president’s proposal that impact airports:

  • Making an Immediate Investment in Our Roads, Rails and Airports: The President’s plan includes $50 billion in immediate investments for highways, transit, rail and aviation, helping to modernize an infrastructure that now receives a grade of “D” from the American Society of Civil Engineers and putting hundreds of thousands of construction workers back on the job. The President’s plan includes investments to improve our airports, support NextGen Air Traffic Modernization efforts, and resources for the TIGER and TIFIA programs, which target competitive dollars to innovative multi-modal infrastructure programs. It will also take special steps to enhance infrastructure-related job training opportunities for individuals from underrepresented groups and ensure that small businesses can compete for infrastructure contracts. The President will work administratively to speed infrastructure investment through a recently issued Presidential Memorandum developed with his Jobs Council directing departments and agencies to identify high impact, job-creating infrastructure projects that can be expedited in a transparent manner through outstanding review and permitting processes. The call for greater infrastructure investment has been joined by leaders from AFL-CIO President Richard Trumka to U.S. Chamber of Commerce President Thomas Donohue.
  • Establishing a National Infrastructure Bank:The President is calling for Congress to pass a National Infrastructure Bank capitalized with $10 billion, in order to leverage private and public capital and to invest in a broad range of infrastructure projects of nationaland regional significance, without earmarks or traditional political influence. The Bank would be based on the model Senators Kerry and Hutchison have championed while building on legislation by Senators Rockefeller and Lautenberg and the work of long-time infrastructure bank champions like Rosa DeLauro and the input of the President’s Jobs Council.

House Transportation and Infrastructure Committee Chairman John Mica(R-FL) has expressed opposition to the infrastructure bank proposal.

According to the fact sheet released by the White House, the $50 billion for infrastructure investment would be spent as follows:

$27 billion on highways

$9 billion transit

$2 billion to improve intercity passenger rail service

$2 billion in AIP

$50 million for employment and job training opportunities that are transportation related

$10 million to assist minority-owned and disadvantaged businesses

$10 billion for funding ‘innovative transportation’ including: $4 billion for high speed rail; $1 billion for NextGen and $5 billion for TIGER and TIFIA programs

It will now be up to Congress to determine what, if any, of the president’s proposals they will act upon.  We will continue to keep you informed as Congress reviews the proposal.

Please contact ACI-NA’s Government Affairs staff should you have any additional questions or concerns.

House Transportation and Infrastructure Committee Chairman John Mica (R-FL) is expected to introduce legislation today to provide the 22ndextension of operating authorityfor the Federal Aviation Administration (FAA).  The extension would run through the end of the calendar year (December 31st).  ACI-NA Government Affairs staff spoke with Senate Commerce Committee staff this morning and was told that they do not believe there are any policy issues, such as the National Mediation Board or Essential Air Service language, that would create delays and problems similar to what occurred with the effort to obtain the 21stextension.

The 5% reduction included in the extension appears to mirror the actions taken yesterday by the House Appropriations Subcommittee on Transportation and Housing (THUD) on the Fiscal Year 2012 THUD Appropriations bill (which you received a memo on this morning) that cut funding for the Airport Improvement Program (AIP) from $3.5 billion (FY11) to $3.33 billion for FY12. 

ACI-NA released the following statement from ACI-NA President Greg Principato this morning regarding the proposed 5% cut in AIP funding:

“The airport community is gravely concerned about any cuts to Airport Improvement Program (AIP), which has been level funded since Fiscal Year 2006.  It simply doesn’t make any sense at a time when both parties are focused on creating jobs to cut a program like AIP that is a proven jobs creator in large and small communities across the country.  It also raises serious questions with the ability of the FAA to fund critical safety projects, including the congressionally mandated runway safety program which airports across the country must meet by 2015.  Passengers have paid, and continue to pay, for needed safety improvements through the aviation taxes assessed when they fly.  Congress needs to understand that cutting AIP funding will negatively impact airport safety projects and job creation.”

Below is the fact sheet the Committee is circulating:


H.R. ____ - “Airport and Airway Extension Act of 2011, Part V”

September 2011

  1. Clean, 3-month extension of FAA’s authority, funding authorizations, and taxes through December 31, 2011.
  2. Authorization levels reflect a ~5% reduction from the 2011 Appropriated levels.   These levels are:
  3. In line with the August 17, 2011 memo from OMB to Federal agencies indicating their overall agency request for 2013 should be at least 5 percent below their 2011 enacted discretionary appropriation.
  4. Responsive to the bipartisan deficit reduction bill recently signed into law.
  5. The Essential Air Service (EAS) program is authorized at the FY 2012 House Appropriations Subcommittee mark-- $150 million.
  6. Provides the DOT Secretary authority to pay furloughed FAA employees as a result of the partial FAA shutdown this summer.

We will continue to keep you informed as we receive additional information.

Please contact ACI-NA’s Government Affairs staff should you have any additional questions or concerns.

FAA:  The September 7, 2011 issue of the Federal Register (76 Fed. Reg. 55217), contains a FAA Final Rule entitled ‘Procedures for Protests and Contracts Dispute”.  The FAA has adopted as a Final Rule the rule proposed in its January 12, 2011, NPRM.  This action updates, simplifies, and streamlines the current regulations in 14 CFR Part 17 governing the procedures for bid protests brought against the FAA and contract disputes brought against or by the FAA. The Final Rule revises Part 17 to incorporate the FAA’s Office of Dispute Resolution for Acquisition (ODRA) evolving practices; to reflect the availability of a pre-dispute process; to reorganize and streamline the rules for ease of use; and to harmonize the existing Part 17 rules with current statutory and other authority.  In addition, the Final Rule expands coverage in areas such as confidentiality of alternative dispute resolution, requests for reconsideration, sanctions, professional conduct, and voluntary dispute avoidance and early resolution.  The Final Rule becomes effective on October 7, 2011.

Link to Federal Register Notice:

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“Matters of Interest”

Many will pause to remember 9/11 this week;

TSA has announced the following remembrance in Washington, D.C.

TSA Joins the Smithsonian’s National Museum of American History for the

Ten-Year Commemoration of September 11

TSA is proud to inform you of a special partnership with the Smithsonian’s National Museum of American History. To commemorate the ten-year anniversary of  September 11, 2001, the Museum will feature a display, “September 11: Remembrance and Reflection”  featuring artifacts from the World Trade Center, the Pentagon, Shanksville, PA  and Transportation Security Administration. This unique display will be open to the public for nine days only. 

Date:             Saturday, September 3 – Sunday, September 11, 2011

                       Daily from 11:00 a.m. to 3:00 p.m.

Location :     National Museum of American History

Hall of Musical Instruments, Third Floor

Madison Drive between 12th & 14th Streets, N.W.

Washington, D.C.

“September 11: Remembrance and Reflection” will include objects donated by TSA, marking the agency’s contribution to American history.

On behalf of the men and women of TSA, we hope you will visit the National Museum of American History to view the display.

The Federal Bar Association's Transportation and Transportation Security Law Section invites you to a Brown Bag Lunch NEXT TUESDAY, September 13th.

Featuring Attorneys from the United States Environmental Protection Agency (EPA)'s Water Enforcement Division and the United States Department of Transportation (DOT)'s Pipeline and Hazardous Materials Safety Administration (PHMSA)


Cheryl T. Rose- Senior Attorney, Water Enforcement Division, Office of Enforcement and Compliance Assurance, EPA

Jim Pates-  Assistant Chief Counsel for Pipeline Safety Law, PHMSA


Speakers will share their perspectives on Pipeline Incidents, including:

- EPA + DOT/PHMSA jurisdictional boundaries and regulatory authority regarding pipeline spills,

- Enforcement,

- Areas of collaboration between the two agencies, and

- Notable cases and emerging legal issues.


Time & Location:

Tuesday, September 13th,

12 noon – 1p.m.

Conference Room 4, DOT Headquarters West Building,

1200 New Jersey Avenue, SE, Washington, DC 20590

 Beverages and dessert will be provided.  Please bring a brown bag lunch. To register, please email Jenny Bosak at jbosak@fedbar.orgby September 12, 2011, with your name and title as you would like them to appear on your name badge. A call-in number will be provided upon registration.


  • ACI-NA Webinar on the Safety Act

As a follow up to the Webinar hosted yesterday by ACI-NA to discuss and provide information about the Support Anti-terrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act), following is a linkto the audio portion of the presentation. In addition, the presentation slides can be found here.

  • If you have any questions or need additional information, please contact Christopher R. Bidwell, Vice President, Security and Facilitation, at (202) 861-8081.

Upcoming Conferences

  • 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



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


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!

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

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

  Send it to:

Have a great weekend!


Monica R. Hargrove
General Counsel

Direct: (202) 861-8088