On April 8, 2009, the Department of Transportation (DOT) issued a Notice of Proposed Rulemaking (NPRM) and an Advance Notice of Proposed Rulemaking (ANPRM) concerning the Disadvantaged Business Enterprise (DBE) rules found at 49 CFR Part 26.  In the NPRM, DOT proposed to revise Part 26 to require recipients of federal financial assistance to submit the recipient’s overall goals for DBE participation to DOT every three years, rather than every year as currently required.  In the ANPRM, DOT sought comment on five issues:  counting credit for items obtained by DBEs from non-DBE sources, contract unbundling, revising the DBE certification application and personal net worth statement, enhancing program oversight, and facilitating interstate certification of DBEs.  Comments on the NPRM and ANPRM must be submitted on or before July 7, 2009.

On April 7, 2009, Los Angeles World Airports (“LAWA”) announced that the FAA has determined that a proposed restriction on Stage 2 aircraft at Van Nuys Airport is exempt from—or “grandfathered” under—the Airport Noise and Capacity Act of 1990 (“ANCA”).  On March 19, 2009, Catherine Lang, FAA Acting Associate Administrator for Airports, wrote to Gina Marie Lindsey, LAWA Executive Director, and advised that the FAA consider a phaseout of Stage 2 aircraft at Van Nuys Airport over a seven year period to be grandfathered so long as LAWA agrees to exempt Stage 3 and Stage 4 aircraft from the noise rule.  LAWA had argued that the Stage 2 phaseout qualifies for an exemption contained in ANCA for restrictions that had been proposed but not yet implemented at the time ANCA was enacted by Congress.  LAWA has released a Final Environmental Impact Report evaluating the environmental consequences of the Stage 2 phaseout, and the LAWA Board of Airport Commissioners is scheduled to consider the Stage 2 phaseout on May 4, 2009. 

Employee fatigue is an issue Congress sought to address through an overhaul of statutes and regulations governing employee work hours in the Rail Safety Improvement Act of 2008.  The hours of service provisions issued in this final rule apply to freight railroads as of July 16, 2009, and generally shorten the permissible on-duty time of an employee, and specify minimum breaks and rest periods.  Passenger rail employees remain subject to hours of service regulations as they existed prior to the statute’s October 16, 2008, enactment, pending the issuance of passenger-specific regulations by the Federal Railroad Administration.  Because of significant differences in scheduling practices, duties and operating conditions between commuter and freight operations, requiring commuter systems to comply with the new rules adopted for freight railroads could unnecessarily increase costs, disrupt collectively bargained work practices and create the potential for disruption of service on commuter systems with no attendant benefit in reducing employee fatigue.

As required by the Passenger Rail Investment and Improvement Act of 2008, the Federal Rail Administration (FRA) and Amtrak jointly announced the initiation of efforts to establish means to evaluate the quality of intercity passenger rail service.  The FRA released a preliminary staff report that addresses such issues as financial and operating parameters; on-time performance and delays; service availability and connectivity to other modes of transportation; and other, more subjective service and quality components such as customer satisfaction with various aspects of Amtrak’s operations.

On March 12, 2009, the U.S. Court of Appeals for the Eleventh Circuit affirmed a decision of the U.S. District Court that, in effect, permits the continued application of a longstanding ban on firearms within public airports in Georgia.  In Georgiacarry.org v. City of Atlanta, a gun rights advocacy group and a member of the Georgia House of Representatives argued that H.B. 89, enacted by the Georgia General Assembly in April 2008, authorized licensed firearm owners to carry a firearm within public airport terminals, superseding the prior ban.  The District Court found that the law, by its plain language, did not apply to public airport terminals and that the pre-existing ban therefore remains valid and enforceable.  The U.S. Court of Appeals affirmed the District Court decision in an unpublished opinion, citing the reasoning of the District Court.

On March 11, 2009, the President signed the 2009 Omnibus Appropriations Act that contains $410 billion in new spending commitments, including $10.2 billion for public transit projects.  This act funds domestic programs through September 30, 2009.  The amounts appropriated for transit fall $106 million short of the levels originally set forth for FY09 in the Safe, Accountable, Flexible, Efficient Transportation Equity Act – A Legacy for Users (SAFETEA-LU) in August 2005.  However, the appropriation is in addition to the stimulus monies authorized by the American Recovery and Reinvestment Act of 2009 on Feburary 17, 2009.  The text of the omnibus legislation applicable to the Federal Transit Administration is available at pages 56-67 and 76-83.

On March 10, 2009, the U.S. Environmental Protection Agency (U.S. EPA) issued a proposed rule that would require large emitters of greenhouse gases to report their emissions.  The proposed rule—if adopted in substantially similar form—could affect airports directly by, for example, requiring reporting of GHG emissions from large stationary sources like boilers.  U.S. EPA also has requested comment on other possible reporting requirements that would affect airports.  Comments will be due 60 days from publication in the Federal Register.

On March 3, 2009, the FAA issued guidance on the distribution of funds authorized under the American Recovery and Reinvestment Act of 2009.  In the Act, Congress provided $1.1 billion for distribution under the Airport Improvement Program for shovel-ready airport projects.  The FAA is treating the funds as pure discretionary, meaning that the funds are not subject to allocations and set-asides for particular use.  The FAA’s Stakeholder Guidance provides critical information on the criteria and process by which airport sponsors can secure stimulus funding.

On March 3, 2009, the DOT Office of Inspector General (OIG) released a report entitled Actions Taken and Needed to Improve FAA’s Runway Safety Program.  The Report indicates that, while FAA has made significant progress in improving runway safety areas (RSAs) as required by Congress, further action is needed.  DOT OIG made five specific recommendations, including proposals that FAA take action at 11 large airports and that FAA more effectively address NAVAIDs located within RSAs.