ACI-NA Weekly Legal Briefing, No. 30

 

News from ACI-NA Committees

November 4, 2011

 

 



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             ACI-NA’s Weekly Legal Briefing                  

Volume 2011, Issue 30

Week of October 31 – November 4, 2011

Legal Affairs Committee Members:

The following matters are highlighted for your review and information.

Matters of Interest:

  • As a result of the latest airline tarmac delay events, ACI-NA’s Marketing Communications Committee members were provided with background  information in order to assist in responding to potential inquiries from the media.  In addition, a copy of ACI-NA’s response to USA Today’s editorial on the matter (which appeared in yesterday’s issue) was provided.  I am providing that information to Legal Affairs Committee members for informational purposes.

“In the last few days there has been significant media attention focused on the extended tarmac delays that occurred over the past weekend. As you know airports are not now required to file contingency plans for extended tarmac delays with DOT, as are airlines. Some consumer advocates are now renewing their calls for DOT to require airport plans. Additionally many airlines are privately lobbying DOT to require airport plans to offer another party to fine should DOT take civil penalty action. (As you may remember, ACI-NA argued persuasively in DOT comments that requiring separate airport and airline contingency plans made no sense and could result in confusion that would not serve passengers.)

ACI-NA was informed by USA Today that an editorial will be printed on Thursday, November 3 criticizing airports for being unprepared to deal with extended tarmac delays over the last two years and calling on Congress and/or DOT to require airports contingency plans that would be subject to enforcement and civil penalties. Click here for the “Opposing View” ACI-NA submitted for publication.

Recognizing that such press will further add to national and local media interest in this issue, ACI-NA has prepared the following talking points to assist you in responding to questions from Airport Board members, community leaders and the media:

  • Airports have emergency plans that address irregular operations.  There is no need for additional plans or more federal bureaucracy– better coordination between airlines and airports is necessary.
  • Safety remains the top priority for airports.  During extraordinary situations, this means keeping the runways clear for diversions that may be low on fuel and maintaining the ability to safely park aircraft.  The next priority is to help passengers. Many airports provide blankets and/or cots and all ensure the availability of food, water, and toiletries.  Some airports also work with passengers experiencing disruptions to arrange for hotel accommodations and ground transportation.
  • While DOT rules say airlines must “coordinate” contingency plans with airports, this means that they only need to send airports their plans (see below), rather than engaging airports in real coordination.  ACI-NA believes airlines should be required to meet with airport officials to coordinate contingency plans.
  • FAA and airlines should provide airports with accurate, timely information about diverted flights and other diversion airports to prevent overloading any single diversion airport.
  • Airports should be able to tell FAA and airlines “no more flights” if it cannot accommodate the aircraft or respond to airline requests for help in a reasonable time.
  • Under extraordinary circumstances, airports should be able to take control of gates, unload passengers and direct equipment to serve planes with the greatest need, regardless of company affiliation.

As noted above, DOT’s final rule regarding enhanced passenger protections requires airlines to coordinate their contingency plans with the airports & primary diversion airports they serve (see §259.4(b)(8) in the DOT final rule), which DOT stated can be achieved by airlines sending airports their contingency plans for comment. 

In light of recent events, we encourage you to ensure that you have received a contingency plan from each airline that serves your airport (including those that regularly divert to your airport), review these plans, and contact individual airlines with any concerns you may have.  Comments are particularly important if the airline has not provided sufficient details regarding how they will deal with extended tarmac delays at your airport (e.g., hasn’t addressed who will provide ground handling services upon arrival, isn’t clear regarding who they would contact at the airport for assistance, doesn’t list who airport staff can contact at the airline to determine flight status).”

  • The International Civil Aviation Organization (ICAO) voted against the European Union’s (EU) emission trading scheme on Wednesday, November 2, 2011, relying, in part, on a working paper from the United States, India and two dozen other nations which urged the EU not to include non-EU air carriers in its plan.  See “ICAO Votes Against EU Carbon Plan” at http://www.aviationpros.com/news/10447296/icao-votes-against-eu-carbon-plan
  • FAA Considers Changes to Reimbursement Policies Regarding Airport Noise Homeowner Sound Insulation Programs

As you may have been advised by your Environmental Affairs personnel, or by someone from your local FAA office, the FAA is considering significant changes to its residential sound insulation program guidelines that could potentially impact qualifications for FAA funding.  More specifically, FAA has initiated a dialogue regarding the eligibility criteria for residential structures treated in an RSIP with AIP grant fund participation. FAA headquarters staff has stated they are currently working on a Program Guidance Letter (PGL) to clarify language in the AIP Handbook regarding eligibility of residential properties for installation of sound insulation treatments. This PGL is expected to have a profound impact on existing and planned sound insulation programs that could have devastating public relations and political implications for airport sponsors. FAA has stated that the PGL will contain a requirement that in order for a home to be eligible for AIP or PFC funds for sound insulation, it will have to be located within the DNL 65 dB contour AND have an interior noise level greater than DNL 45 dB.

The ACI-NA Environmental Affairs Committee has taken the lead in voicing concerns regarding the proposed changes and problems inherent in the issuance of a guidance letter without allowing airport stakeholders an opportunity to review it in draft prior to the issuance as a final guidance document.  Some questions have been raised as to whether there is precedent for the FAA’s advance issuance of draft guidance documents in this area or on comparable matters.  I know that advance drafts of guidance documents have been issued in the airport DBE area, for example, last fall, a draft guidance document on Long-Term & Exclusive Agreements was released, and interested parties were permitted to submit comments, which many of your airports, as well as ACI-NA did.  I am writing to make you aware of these issues and to encourage you to coordinate with members of your environmental departments, and to let me know your thoughts on whether there is precedent for PGLs to be issued in draft for public comment prior to their issuance in final.

The ACI-NA Environmental Affairs Committee held a webinar with Elliott Black of FAA on Tuesday, and their Steering Group held a call during which they briefed their Steering Committee members on what they learned during the webinar on Wednesday afternoon, and I participated in the Wednesday afternoon call.  These were very productive conversations concerning FAA’s planned development of a program guidance letter (PGL) for residential sound insulation programs.  It was reported that the airport environmental representatives were able to convey to Elliott the potentially significant consequences that the proposed guidance letter would have on airports.

Roy Fuhrmann, Chair – ACI-NA Environmental Affairs Committee and Director of Environment for the Metropolitan Airports Commission, Minneapolis-St. Paul International Airport, reported recently that Elliott Black, Deputy Director,  FAA, Office of Airport Planning and Programming, recognized that there indeed have been some other instances in which draft program guidance letters have been issued prior to implementation, but reiterated that the FAA does not see this as a change in policy and that the standards he discussed on Tuesday during the Webinar have been, in their perspective, the FAA’s policy.

Roy reported further that Mr. Black agreed that the FAA will always be open to comments and, in fact, has received a number of letters from airports already. As part of their conversation, Elliott discussed with Roy that it would be helpful for airports to be forward-looking in their comments rather than going into too much detail about how their sound insulation programs have been implemented, or worse yet how airports have interpreted FAA’s guidance concerning the RSIP program at their specific airports, which may be a slippery slope.

The Environmental Committee Chair has thus urged all interested airports to focus on requesting the FAA to provide and circulate a draft PGL letter to airports. This will allow a very focused response and provide the best feedback to the FAA. The Legal Steering Group has reviewed this matter and joins the Environmental Committee Chair in encouraging airports to register their concerns directly with the FAA about the issuance of any changes to their policies in this area without first allowing you to review a draft PGL and provide feedback on your concerns about the impact of changes in homeowner sound insulation policies that have been in effect and on which airports have relied to resolve litigation matters and to mitigate homeowner noise concerns, some of which are works in progress.  We encourage you to keep this at a “process” level, that is, to seek information and an understanding of what changes are under consideration, to be involved in the process of reviewing and commenting on those changes, and to avoid getting into specific descriptions of how your particular airport might be affected by the changes, since we have not yet received a written description of them.  If you can cite past examples of the FAA’s issuance of a draft guidance where policy changes were under consideration and prior to their implementation, we encourage you to include those in your letters.  Mr. Black's email address is:  Elliott.Black@faa.gov  Also, we would like to receive copies of letters that you send for our files.

Please plan to submit these letters by the end of next week so that the FAA receives evidence of the extent of the concerns of the airport community on this matter.  As it is difficult to comment on something we haven’t seen, it is imperative that we urge FAA to get us a draft before we send them letters with specific comments on the proposal itself.  

ACI-NA will continue to engage with the FAA on this issue and update you accordingly.  Please feel free to contact Katherine Preston, the ACI-NA staff Environmental Affairs Committee liaison at kpreston@aci-na.org or me with any questions or concerns about this issue.

Regulatory Matters:

  • The FAA issued its November/December 2011 issue of FAA Safety Briefing, which takes an in-depth look at the nation’s wide array of public-use airports.  The link to the online edition is: http://www.faa.gov/news/safety_briefing/.

Upcoming Conferences

ACI-NA Airports Concessions Conference

Don't miss out on your chance to network with other airport concessions colleagues!  In addition to networking opportunities, this all-in-one conference offers the latest in retail and restaurant design, merchandising trends, and much more. Learn about exciting innovations in airport terminal concession concepts and revenue strategies!  See the comprehensive  Conference Agenda!

Speed Dating
Participate in this exciting networking session where airports, concession operators, and small business owners can meet and exchange contacts for future business relationships.

Please click here to sign up for Speed Dating. The final deadline to register for Speed Dating will be November 7, 2011.

Airport Tour
To attend the tour of Hartsfield-Jackson Atlanta Airport including the new Maynard H. Jackson International Terminal, please click here to sign up for the tour no later than November 7, 2011.

The Business Diversity Committee will meet on Monday, November 7 from 10:30 a.m. until 1 p.m. immediately prior to the Concessions Conference in Salons ABC of the Loews Hotel in Atlanta.    The Final Business Diversity Committee Meeting Agenda is available.

  • ACI-NA International Aviation Issues Seminar

December 1 - 2, 2011

The Fairfax at Embassy Row, Washington, D. C.

This annual seminar brings together top airport and airline management, government officials and consultants, to explore the latest developments in international air travel, government air transport policies and negotiations and facilitation policies/procedures which impact airports' ability to retain and secure new international air service. The seminar will conclude with ACI-NA's Annual Holiday Reception. In addition, there will be an ACI-NA U.S. International Air Service Program business meeting and ACI-NA Facilitation Working Group. For a review of the agenda, go to http://www.aci-na.org/sites/default/files/events/eventagenda2381018.pdf

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 great weekend!

Monica

Monica R. Hargrove
General Counsel

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

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