Amtrak’s Strategic Guidance governs planned service improvements and expansion, including six broad goals to be safer, greener, and healthier and to improve financial performance, customer service, and meet national needs.  The Strategic Plan also creates key performance indicators to measure progress toward the stated goals.  In concert with the Strategic Plan, the Five Year Financial Plan for FY 2010 – FY 2014 provides detailed financial projections for Amtrak’s revenue, operating costs, capital programs, and debt service obligations.  Among the specific plans to be accomplished by the end of FY 2014 are to increase ridership by 15 percent, grow ticket revenue by 20 percent, expand service on eight existing state-supported corridors, form two new state partnerships, and improve reliability of service across the railroad.

On October 15, 2009, the Federal Railroad Administration (FRA) issued its Preliminary National Rail Plan (the Preliminary Plan) that sets out general principles and parameters to guide the development of policies to improve the nation’s rail transportation system.  The Preliminary Plan was mandated by the Passenger Rail Investment and Improvement Act of 2008 and is intended to deploy rail’s attributes to improve safety, foster livable communities, increase the economic competitiveness of the U.S., and promote sustainable transportation as part of a first-ever National Rail Plan.  The Preliminary Plan reflects the introduction of high-speed rail as a significant component of the nation’s rail transportation system and aims to increase the integration of all transportation modes.  The Preliminary Plan identifies issues to be considered in formulating a National Rail Plan, rather than setting out prescriptive approaches and emphasizes that State rail plans are expected to play a large role in identifying issues and priorities.

On September 30, 2009, the FAA issued Order 5190.6B, Airport Compliance Manual.  The Order cancels Order 5190.6A, which had been in effect since 1989.  The Order sets forth the FAA’s policies and procedures concerning airport sponsor compliance with Grant Assurances, deed restrictions, and statutory obligations concerning the treatment of airport users and tenants.  While binding only on FAA personnel, the Order is an extremely important document for airport sponsors, users, and tenants because it contains the FAA’s position on key topics such as the lease of airport property, aircraft operating restrictions, and airport rates and charges.  While the Order is final and operative, the FAA has indicated its intent to solicit comments and to consider possible revisions to the Order in response to comments.

On September 18, 2009, the FAA Associate Administrator affirmed in all respects the Director’s Determination dismissing a complaint filed pursuant to FAR Part 16 against Firm client, the County of Westchester, New York.  In the Final Order, the FAA concludes that the County’s policy of distinguishing between larger FBOs and light general aviation FBOs at the Westchester County Airport does not result in unjust discrimination or grant an exclusive right.  The Final Order contains an extensive treatment of the standard of review applied in Part 16 appeals and the standards for exclusive rights.

On September 14, 2009, the U.S. Court of Appeals for the Third Circuit affirmed DOT’s determination that a “privilege fee” imposed by Tinicum Township (PA) for the use of Philadelphia International Airport violated the Anti-Head Tax Act.  Tinicum Township does not operate the Airport; however, portions of the Airport are located within the Township.  Both DOT and the Court of Appeals considered the proper interpretation of the Anti-Head Tax Act, both before and after recodification in 1994.  The court concluded that the Anti-Head Tax Act unambiguously prohibited the privilege fee.

On August 28, 2009, the U.S. Environmental Protection Agency (U.S. EPA) published a proposed rule that would establish new technology-based effluent limitation guidelines (ELGs) and new source performance standards (NSPS) under the Clean Water Act for discharges from airport deicing operations.  Airport operators are currently required to obtain stormwater discharge permits under the National Pollutant Discharge Elimination System (NPDES) program and to ensure that wastes from deicing operations are properly collected and treated.  The EPA’s proposed rule would be implemented through the NPDES permit program.  The proposed rule would generally apply to wastewater associated with the deicing of aircraft and airfield pavement at primary commercial airports.  Airports that conduct aircraft deicing operations, have 1,000 or more annual jet departures, and 10,000 or more total annual departures, would be required to collect spent aircraft deicing fluid and treat the wastewater.  They may either treat the wastewater on-site or send it to an off-site treatment contractor or publicly-owned treatment works.  Some airports would be required to reduce the amount of ammonia discharged from urea-based airfield pavement deicers or use airfield deicers that do not contain urea.  Comments on the proposed rule must be filed by December 28, 2009.

On August 7, 2009, the U.S. Court of Appeals for the District of Columbia Circuit issued its opinion in Alaska Airlines v. DOT.  The court’s decision is the latest in a long-running dispute over the FAA’s Policy Regarding Airport Rates and Charges and specific rates and charges imposed by the City of Los Angeles on airlines at the Los Angeles International Airport.  The issues are too numerous and the court’s conclusions too extensive to summarize adequately in this brief article.  The court upheld certain aspects of DOT’s decision, rejected certain aspects, and remanded the matter to DOT to further justify other aspects.

On July 22, 2009, the deadline expired for public comments on an application filed with the FAA by the Burbank-Glendale-Pasadena Airport Authority to impose a mandatory curfew on all aircraft operations at the Bob Hope Airport.  This is the first such application submitted for formal FAA review under the Airport Noise and Capacity Act of 1990.  The City of Burbank, along with numerous residents living in neighborhoods surrounding the Airport, submitted comments in favor of the curfew.  Several aviation industry groups submitted comments opposing the curfew.  The FAA has until November 1, 2009, to render its decision the application.  Comments submitted by our client, the City of Burbank, are available here.  To access all comments, visit www.regulations.gov and search for Docket FAA-2009-0546.