In a somewhat unsubtle attempt to implement the current Administration’s 2017 Executive Order “Enforcing the Regulatory Reform Agenda,” allowing federal agencies to simplify their regulatory mandates, the Department of Transportation (“DOT”), on behalf of its subsidiary agency the Federal Aviation Administration (“FAA”), has instead thrown complex and expensive regulatory/legal hurdles in the path of consumers who attempt to enforce the provisions of current protective regulations. Specifically, the DOT published, on February 28, 2020, in the Federal Register, a Notice of Proposed Rulemaking (“NPRM”), that purports to simplify “definitions of the terms ‘unfair’ and ‘deceptive’ in the Department’s regulations implementing its aviation consumer protection statute.” See 85 Fed.Reg. 11881. The devil, however, is, as usual, in the details.

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Passengers seeking to travel with their service animals in the main cabin may soon face new restrictions from airlines, as the Department of Transportation (“DOT”) recently published a Notice of Proposed Rulemaking (“NPRM”) to alter existing DOT regulations. 85 Fed. Reg. 6448 (Feb. 5, 2020). The NPRM represents DOT’s latest effort to carry out the Air Carrier Access Act of 1986, 49 U.S.C. § 1705 (“ACAA”), which prohibits air carriers from discriminating against a qualified individual on the basis of physical or mental impairment. The NPRM arises, in part, from DOT’s stated desire to harmonize its regulations with rules promulgated by the Department of Justice to implement Titles II and III of the American’s with Disabilities Act.

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The Federal Aviation Administration (“FAA”) relies on the mantra “safety is our business, our only business” where, for example, justifying changes in aircraft flight paths over heavily populated residential communities. But is that reality? Not according to the Office of Inspector General, U.S. Department of Transportation (“OIG”) report of October 23, 2019, Department of Transportation’s Fiscal Year 2020 Top Managerial Challenges (“OIG Report”), when dealing with members of one of FAA’s primary constituencies, the aircraft manufacturers.

Specifically, the OIG Report highlights significant “challenges FAA faces in meeting its safety mission,” p. 1. Most notable is the correction of its lax oversight of aircraft certification procedures as graphically demonstrated by the recent deaths of 346 people in two separate crashes of Boeing’s 737-Max 8 aircraft, at least preliminarily thought to have been caused by systemic malfunctions in computer systems designed and installed by Boeing but never disclosed to operators.

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Secretary of Transportation Ray LaHood announced on Monday, December 21, 2009, that DOT was was issuing its Final Rule "enhancing airline passenger protections" by, among other things, limiting airlines to three hours waiting on the tarmac before requiring that the aircraft return to the terminal and allow the passenger to disembark. The only exceptions allowed

The House of Representatives Subcommittee on Highway and Transit is planning to start the transportation reauthorization process on June 24, 2009 at 11:00 a.m. EST by marking up the Surface Transportation Act of 2009 (“Act”). House Transportation and Infrastructure Chairman, James Oberstar, has made a proposal which would fundamentally overhaul surface transportation programs drawing on many of the recommendations by a federally mandated Surface Transportation Policy and Revenue Commission as well as on White House policy priorities. The Obama Administration, however, has a completely different political and legislative strategy in mind, causing a public disconnect between leaders of the legislative and executive branches.

First, on a negative note, the Act would consolidate or eliminate 75 existing Federal highway and transit programs including the “Indian Reservation Road Bridges Program,” and “The Public Transportation Participation Pilot Program.

On the positive side, the Act would create a new rail section to promote President Obama’s proposal of a high speed passenger rail network. Also, at the urging of the Administration, Oberstar would create an Office of Livability in the Transportation Department, to link transportation planning to housing and business development. The Act would also overhaul the Transportation Department’s inner workings by creating a position of Undersecretary of Intermodalism. That Undersecretary would help coordinate planning by agencies responsible for different methods of transportation, including the aviation, railroad, transit, highway and maritime administrations, along with Amtrak, the Coast Guard and the Army Corps of Engineers. “It’s an opportunity to restructure all of transportation,” Oberstar said at a briefing Wednesday. “Those modal administrators have not done so much as what we’re doing here – sat around a table, had coffee together – in 40 years. It’s time to do that.”


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