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In an attempt to resolve long-standing issues in dispute over
passenger air service at Dallas Love Field, DOT has issued a declaratory
order(1) addressing continuing
airline service at Love Field, and rejecting sought service restrictions.
The ongoing dispute over airline operations at Love Field grew out
of a 30 year old agreement between the Cities of Fort Worth and Dallas, Texas
which sought to eliminate airline operations at the separate Dallas and Fort
Worth Airports(2) and to consolidate
operations at the newly constructed Dallas-Fort Worth International Airport
("DFW"). The direct parties involved in the ongoing litigation over Love Field
service include Fort Worth and Dallas, airline users and potential users at
Love Field and DFW, and the DFW Board. The core issues in dispute concern
Dallas' obligations under the 1968 Bond Ordinance between Dallas and Fort Worth
to restrict airline operations at Love Field in the face of federal legislation
providing for limited interstate operations.
After DFW was opened for business, Dallas kept Love Field open for
certain restricted uses. However, attempts to further restrict airline service
at the airport were partially blocked as the result of litigation with carriers
over the issue.(3) Additionally, in
1980 Congress enacted the Wright Amendment, which allowed a limited amount of
interstate airline service at Love Field.(4) Among other things, the Wright
Amendment authorized unrestricted air service at the airport for aircraft
seating no more than 56 passengers, and allowed airlines to operate
unrestricted Love Field flights to or from points in Texas, and the neighboring
states of New Mexico, Oklahoma, Arkansas, and Louisiana.(5) After years of operations and
several disputes involving Love Field Operations, Congress enacted the Shelby
Amendment,(6) opening up Love Field
for additional airline service by allowing unrestricted Love Field flights to
or from three additional states -- Kansas, Mississippi, and Alabama, and
clarifying that the 56 passenger exemption for air service from the airport
applied not only to aircraft originally designed to hold no more than 56 seats,
but also to reconfigured aircraft with no more than 56 seats.
At the request of several parties to state litigation over Love
Field service, DOT decided to take action to resolve the federal law issues
involved in the disputes. In their pleadings filed with DOT, Fort Worth,
American Airlines (a principal user of DFW), and the DFW Board argued that the
federal law (i.e., the Wright and Shelby Amendments) impacting Love
Field service does not preempt Dallas' ability to limit the scope of Love Field
service. They asserted that the amendments were intended only to limit DOT's
authority to authorize service at Love Field, and not the cities'
authority to restrict the service authorized by the amendments. They also
argued that the exception for aircraft with passenger capacity of 56 seats does
not apply to longhaul interstate airline service at Love Field. Arguing in
opposition to Fort Worth, Dallas and other supporting parties contended that
Dallas does not have the authority to bar airlines from operating at Love Field
pursuant to the Wright and Shelby Amendments because its authority to restrict
the airline service is preempted by federal law.
The core of DOT's decision involved an interpretation of 49 U.S.C.
§ 41713(b)(7) the applicable
federal statute governing the preemption of state and local government
regulation of airline routes, fares, and services. In particular, the dispute
involved an interpretation of the statutory exception to the above preemption
statute authorizing local governments that own airports to exercise certain
proprietary powers.(8)
DOT clarified that existing precedent authorizes restrictions by
airport authorities over operations to the extent that such restrictions are
"reasonable, nonarbitrary, and non-discriminatory" and are designed to
accomplish a "legitimate airport goal."(9) DOT held that the restrictions on
Love Field operations sought by Fort Worth -- to block the interstate service
authorized by the Wright and Shelby Amendments -- "are equivalent to route
regulation." Such local route regulation, said DOT, is unlawful.(10) Additionally, DOT determined that
Fort Worth's attempts to restrict service at Love Field in order to reduce
competition for DFW was not a legitimate reason justifying the imposition of
the sought service restrictions.(11)
In addition to being prohibited by 49 U.S.C. § 41713, held
DOT, the Wright and Shelby Amendments themselves preempted the cities' ability
to restrict Love Field service. According to DOT, the restrictions on service
sought by Fort Worth would "frustrate Congress' policies" of allowing the
interstate service at Love Field as authorized by the amendments.(12)
Finally, DOT concluded that (1) the Wright and Shelby Amendments
authorize unlimited service with any aircraft with a capacity of no more than
56 passengers,(13) and (2) use
agreements between DFW and airlines barring airlines from using any other
airport in the Dallas-Fort Worth metropolitan area are unlawful restraint on
interstate commerce.(14)
NHTSA Motor Vehicle Recall Overturned on Grounds that
Agency Failed to Provide Notice of Noncompliance
The District of Columbia Circuit has reversed a decision ordering
the recall of 91,000 Chrysler cars by the National Highway Traffic Safety
Administration ("NHTSA") for agency failure to provide notice of what is
required under its safety standards. In United States v. Chrysler
Corporation,(15) Chrysler
appealed a federal district court decision granting NHTSA's motor vehicle
recall request for failing to comply with federal safety standards governing
seat belts.(16) The controversy at
issue involved the use and placement of a "pelvic body block," an L-shaped
metal block representing a human pelvis, used to test seat belt assembly
anchorages. Assembly anchorages are placed on seat belts to ensure that the
seat belts remain attached in the event of a crash.
The central issue in the case was whether a recall can be ordered
without regard to whether the automobile manufacturer has reasonable notice of
the standard giving rise to the alleged noncompliance.(17) The court first reviewed the
governing legal principles, determining that under the "fair notice" doctrine,
traditional notions of due process require an agency to provide "fair notice"
prior to depriving a private party of property. On this basis, the court held
that the NHTSA recall order, entailing the expenditure of significant amounts
of money by the manufacturer, deprived Chrysler of property and triggered the
duty to prove notice.(18)
Additionally, the court clarified that the law governing motor
vehicle recalls requires NHTSA to demonstrate that a reasonable person,
exercising reasonable care, would have known that a vehicle did not comply with
the applicable standards.(19) The
law also provides that a manufacturer certifying that a vehicle complies with
all applicable safety standards cannot be held accountable for having
manufactured a noncomplying vehicle if it had no reason to know that the
vehicle did not comply with the standards.(20) In the case of the Chrysler
recall, said the Court, the company had no reason to believe that the vehicles
were not in conformance with agency standards.
Finally, the court disagreed with the Government's claim that
Chrysler should have known, or have been able to discern, the correct pelvic
body block placement for testing purposes. The court found that NHTSA had
failed to reference any such appropriate standard in its rules. The court
concluded, "Chrysler might have satisfied NHTSA with the exercise of
extraordinary intuition or with the aid of a psychic, but these possibilities
are more than the law requires."(21)
Hot DOT
Spots
- At the close of 1998, DOT issued the third volume draft of its
four volume study on the impacts of truck size and weight on federal highways.
The report, entitled the "Comprehensive Truck Size and Weight Study," examines
the economic and safety costs of allowing longer and heavier trucks on the
nation's roads. The study was first proposed in 1994 by Secretary Slater in his
position as Federal Highway Administrator. Along with its conclusions on the
heightened safety impacts of allowing longer-combination vehicles on the roads,
the study concludes that their use would cause a reduction in railroad profit
margins as a result of predicted truck displacement of rail freight service.
DOT is seeking public comment on its draft study through the end of February.
- Federal Highway Administrator Kenneth R. Wykle has announced
that two neutral "convenors" have been hired by the agency to examine whether
new hours-of-service rules for commercial vehicle drivers can be accomplished
through a negotiated rulemaking among affected parties. Under the negotiated
Rulemaking Act of 1996, neutral convenors may be assigned to assist agencies in
determining whether it is feasible to move forward with a negotiated
rulemaking. A negotiated rulemaking involves an agency inviting interested
parties to develop a consensus proposed draft rule to be published by the
agency for public comment. FHWA has announced that the convenors that it has
hired will interview drivers, motor carriers, safety groups, and enforcement
officials. After the interview process is completed the convenors will submit a
report of findings and recommendations to FHWA as to whether a "negotiating
committee" can be assembled that fairly represents all affected interests and
is willing to negotiate in good faith the agency's hours-of-service rules.
- DOT's Bureau of Transportation Statistics ("BTS"), together
with the Bureau of the Census, has released preliminary results of its 1997
Commodity Flow Survey. The survey compiles data on various transportation modes
used by American businesses to move commodities. It measures the value, weight,
types of commodities shipped, and the point of origin and destination. The
preliminary report shows that between 1993 and 1997, freight shipments in the
United States included in the study increased by approximately 30 percent in
value, 19 percent in tonnage, and 16 percent in ton-miles. A more comprehensive
report is due out by the time of this publication.
- George Warrington has been appointed President and Chief
Executive Officer of Amtrak. Formerly the President of Amtrak's Northeast
corridor operations, Warrington had been serving as Acting President of Amtrak
since December 1997. Warrington has expressed as his chief objectives the
self-sufficiency of the railroad by the end of fiscal year 2002 and the
launching of high-speed rail between Boston, New York, and Washington in 1999.
Amtrak employs more than 24,000 people and serves more than 500 communities in
45 states.
1. Docket OST-98-4363, Love Field Service
Interpretation Proceeding (Decision served Dec. 23, 1998) (Order 98-12-27).
An electronic version of the decision can be found on the World Wide Web at
http://dot.gov/briefing.htm.
2. Love Field is the Dallas Airport. The
Greater Southwest International Airport was Fort Worth's airport, which was
demolished as a result of the construction of DFW.
3. Among the various disputes, Southwest
Airlines prevailed in litigation over its use of Love Field for intrastate
passenger air service. See City of Dallas, Tex v. Southwest
Airlines, 371 F.Supp. 1015 (N.D. Tex. 1973), aff'd on different
grounds, 494 F.2d 773 (5th Cir. 1974).
4. International Air Transportation Competition
Act of 1979, Pub. L. No. 96-192, § 29, 94 Stat. 35, 48-49 (1980). The
Amendment was named after former Congressman Jim Wright (D-TX), of Fort
Worth.
5. The Wright Amendment prohibited the sale of
through transportation beyond the Love Field service area for aircraft not
meeting the 56 passenger exemption, requiring travelers to purchase separate
tickets for each leg of air travel ending at points outside the airport's
service area.
6. Department of Transportation and Related
Agencies Appropriations Act, 1998, Pub. L. No. 105-66, § 337, 111 Stat.
1425, 1447 (1997). The Amendment was named after its sponsor, Senator Richard
Shelby (R-AL).
7. This provision was enacted as part of the
Airline Deregulation Act of 1978, Pub. L. No. 95-504, § 4, 92 Stat. 1705
(1978).
8. Id. at § 41713(b)(3).
9. DOT Order No. 98-12-27, at sheets 30-34.
10. Id. at sheets 34-35.
11. Even if Dallas could restrict Love Field
service to protect DFW from competition, said the court, the specific service
and route restrictions on Love Field sought by Fort Worth were too expansive,
and did not comport with case law authorizing airport owners to adopt rules to
mitigate congestion and environmental problems, or to preserve the viability of
the airport. Id. at 35-39. As for the impact of the Wright and Shelby
Amendments on the viability of DFW, said DOT, Fort Worth had not cited evidence
showing that the role of DFW as the Dallas-Fort Worth area's dominant airport,
was threatened by the Amendments. Id. at 39-41.
12. Id. at 45-50.
13. Id. at 50-54. This included service
by retrofitted jet aircraft with gross weight of 300,000 pounds or less (but
not service by widebody aircraft).
14. Id. at 54-59. DOT also clarified
that the exemption authorizing aircraft with a passenger capacity of 56
passengers or less would allow Continental Express to operate through service
between Love Field and points outside the Love Field service area, when the
service involved an intrastate flight service leg, accompanied by an interstate
movement to points beyond the immediate Love Field service area. Id. at
59-61.
15. 158 F.3d 1350 (D.C. Cir. 1998).
16. The cars in question were Model Year 1995
Chrysler Cirrus and Dodge Stratus cars. NHTSA specifically alleged that the
cars were not in compliance with Federal Motor Vehicle Safety Standard 210
regulating seat belt assembly. See 49 C.F.R. § 571.210.
17. Under governing law, NHTSA may seek recall
of motor vehicles for safety defects, or for failure to comply with an
applicable motor vehicle safety standard (a noncompliance violation).
See 49 U.S.C. § 30118(b). The instant case involved a noncompliance
violation.
18. Chrysler Corp., 158 F.3d at
1354-55.
19. See National Traffic and Motor
Vehicle Safety Act, 49 U.S.C. §§ 30112(b)(2)(A).
20. Id. at § 30115.
21. Chrysler Corp., 158 F.3d at
1357.
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