Development Law News
The Government Accountability Office issued a report to the Chairman of the U.S House Committee on Transportation and Infrastructure entitled "FAA Has Taken Steps to Determine That It Has Made Correct Medical Certification Decisions" on September 30, 2008.
In 2005, a joint investigation known as "Operation Safe Pilot" was conducted by the Department of Transportation Office…
The U.S. House Subcommittee on Aviation met on September 25, 2008 to receive testimony on runway safety. This hearing was a follow-up to the Subcommittee’s February 13th hearing. Rep. Jerry Costello (D-Ill.) stated in his opening remarks that although the U.S. air transportation system is the safest in the world, there remain many issues to be addressed to keep it that way. In particular, he was concerned about the fact that although air traffic is down by 3% for the first six months of 2008 compared with 2007, runway incursions are up slightly. While agreeing that the FAA is headed in the right direction with respect to the development and the deploying of new runway technology, Rep. Costello wanted the FAA to address the very real human factors that the GAO raised in the previous hearing, i.e., the air traffic controller shortage and the adequacy of the training of air traffic controllers. Rep. Costello specifically mentioned the serious runway incursion that occurred at Lehigh Valley International Airport in Allentown, Pennsylvania, on September 19, 2008, where a trainee failed to notice that a small single engine airplane had not yet vacated the runway prior to allowing a regional jet to take-off on the same runway. It was reported that 35% of the controllers at the tower at Allentown are trainees.
With respect to the increase of runway incursions, Hank Krakowski, FAA’s Chief Operating Officer, explained that after the FAA adopted the International Civil Aviation Organization’s (ICAO) definition of "runway incursion," it has seen a spike in incursions due to the more inclusive nature of the ICAO definition. That being said, Mr. Krakowski spent most of his time offering an update about the technological innovations and the progress on the testing in the field. However, Mr. Krakowski did not address Rep. Costello’s concerns head-on. Although he addressed some of the "human factors," by mentioning certain procedural changes and a "first ever" fatigue symposium (which are, by all accounts, steps in the right direction), he did not mention anything about staffing levels and quality of the training.Continue Reading House Aviation Subcommittee Conducts Hearing on Runway Safety
On September 8, 2008, the FAA published a notice in the Federal Register (73 Fed.Reg. 52074) that it is proposing to modify the standard grant application requirements that are required of a sponsor of a non-primary airport before receiving a grant under the Airport Improvement Program (AIP). This modification would require that a sponsor of…
In 1968, Garrett Hardin, a professor of Human Ecology at University of California at Santa Barbara, wrote an influential article for the journal Science that described a dilemma in which multiple individuals acting independently in their own self-interest can ultimately destroy a shared resource even where it is clear that it is not in anyone’s long term interest for this to happen. Prof. Hardin titled this dilemma and his article the “Tragedy of the Commons.” The current situation at this country’s busiest airports, a shared resource, is a graphic example of the Tragedy of the Commons.
In Prof. Hardin’s article, the central theme is that herders share a common parcel of land, i.e., the commons, on which they are all entitled to let their cattle graze. It is in each herder’s interest to put as many cattle as possible onto the commons, even if it is damaged as a result. The herder receives all of the benefits from the additional cattle, but damage to the commons is shared by the entire group. If all the herders make this individually rational decision, however, the commons is destroyed.
A parallel can be drawn to the sttructure of the United States air transportation system with respect to congestion management. It is in the each airline’s interest to schedule as many flights as possible during the busiest time of day, even if those flights are substantially delayed as a result thereby overloading the airspace system and the airport, taxing customers’ patience, and damaging the airline’s reputation. Each of the airlines receives benefits from the additional flights, but the damage to the airport, the airspace system and the airlines is shared by the entire group. Continue Reading The “Tragedy of the Commons” and Airport Congestion Management
Rep. Jerry Costello (D-IL), Chairman of the Aviation Subcommittee remarked in his opening statement that it is: “inexcusable and unacceptable to ignore rules, regulations and standard practices to accommodate those you have responsibility to regulate especially when you have people’s lives in your hands.” With that in mind, the Subcommittee heard testimony from the Office of the Inspector General (OIG) that the FAA had “alarming problems” and “severe lapses” in judgment in its certification process for the Eclipse EA-500, a Very Light Jet (VLJ). VLJs have been heavily promoted as a potential solution to congestion around larger airports, and as a means tobring a convenient, fast transportation alternative to smaller communities that cannot support network commercial air service.
In particular, the OIG made three findings concerning the EA-500 certification process. First, OIG found that the FAA permitted exceptions to its usual design certification process. For example, the FAA accepted an “IOU” from Eclipse that it would meet accepted standard at a later date for the avionics software. For an aircraft that relies heavily on software, the OIG would have expected the FAA to perform rigorous analysis and testing. Second, the OIG found that the FAA awarded Eclipse a production certificate even though the company failed to demonstrate the ability to replicate the approved design. This was despite that fact that Eclipse encountered numerous problems replicating its won aircraft design on the assembly floor both before and after receiving its certificate. Finally, Senior FAA management identified Eclipse as a priority certification and appeared to be lenient with the manufacturer.
If you own a commercial airport that has accepted federal grants and you have sold all or part of the airport’s property, you, no doubt are aware of the provisions of 49 U.S.C. § 47107(l)(5)(A). That provision of the Federal Aviation Reauthorization Act of 1996, as amended, limits any request to recoup capital an operating costs from the sale of airport property to those expenses that occurred within 6 years after the expense has been incurred:
any request by a sponsor or any other governmental entity to any airport for additional payments for services conducted off of the airport or for reimbursement for capital contributions or operating expenses shall be filed not later than 6 years after the date on which the expense is incurred
49 U.S.C. § 47107(l)(5)(A). That new terminal that the City spent $1 million out of its General Fund on seven years ago? According to § 47107(l)(5)(A), you cannot recoup the expense now. Those operating deficits that the airport has been running for the past ten years that the City has covered? Only the last six years can be recouped. Although you may not be planning on selling all or part of the airport now, or even five years from now, it makes sense, because of § 47107(l)(5)(A) to ensure that the owner’s expenses are currently being paid by the airport by requesting reimbursement on a timely basis.
Continue Reading Plan Now, If You Plan to Sell Later: Restrictions on Use of Airport Revenues
On September 10, 2008, Anne Milgram, the New Jersey Attorney General filed an amicus curiae brief in support of the Petitioners in the Airspace Redesign litigation currently pending in Court of Appeals for the District of Columbia Circuit. In it, the New Jersey Attorney General emphasizes the impact that the Airspace Redesign will have on New…
Senator Arlen Specter (R-Pa.) and Senator Christopher Dodd (D-Conn.) filed a amicus curiae brief on Friday, September 5, 2008.
The Brief makes three arguments: how the FAA did not give appropriate weight to noise reduction in balancing the alternatives for the Airspace Redesign Project, how the FAA failed to give appropriate weight to…
Here are a few court decisions that have come down since April, 2008, regarding aviation and airport development law:
…