Aviation and Airport Development Law : Aviation Lawyer & Attorney : Chevalier Allen & Lichman Law Firm : Airport Development, Environmental Law

February 26, 2010 - A summary review of Aviation and Airport Development related news and information that was made public during the past ten days.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every week, please send an e-mail to subscribe@calairlaw.com with the word “subscribe” in the subject line.

 

Watchdog Finds Aircraft Maintenance Problems at American Airlines, Calls FAA Oversight Weak. --- Joan Lowy, Associated Press, February 18, 2010
According to a report released Thursday by the Department of Transportation’s Office of Inspector General, the Federal Aviation Administration’s lax oversight of aircraft maintenance at American Airlines raises concerns about the agency’s ability to regulate aircraft maintenance in general. At least four maintenance-related allegations made two years ago have “potential safety implications,” and despite a significant increase in maintenance problems at American, the FAA did little to address the issues. The report questions the FAA’s effectiveness and notes that the FAA only ever took action after the department had briefed agency officials on the need for them.
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FAA: Body Falls From Miami-Bound Airplane. --- The Denver Channel, February 18, 2010
A person’s body fell from a wheel well of an airplane leaving the Dominican Republic for Miami on Thursday, February 18. The body was recovered in the Dominican Republic.
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FAA Safety Reforms Finally Going to Senate. --- Jerry Zremski, The Buffalo News, February 11, 2010
A week of the U.S. Senate floor time will be scheduled in March for the Federal Aviation Administration reauthorization bill, including its safety provisions. Several of the provisions address concerns that the National Transportation Safety Board listed last week as part of its investigation into the crash of Continental Connection Flight 3407 near Buffalo, New York, last year. The bill would raise pilot-training standards and set requirements for the airlines’ remedial training programs, as well as mandate other increased safety initiatives. Senate Majority Leader Harry Reid finally made the commitment to move the FAA bill up by six months because the Senate has passed its version of health care reform, which had kept it occupied for months, and because the latest in a series of short-term extensions of the FAA bill is set to expire March 31.
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Senate FAA Reauthorization Bill Expected to Finally Move in March! --- Rotor News, February 12, 2010
Senator Charles E. Schumer has persuaded Senate leadership to move ahead with the Federal Aviation Administration reauthorization bill in March. FAA authorization and safety reforms will be considered over the course of a week, though it is unknown if the Senate Finance Committee will mark up the bill before it goes to the Senate floor for debate.
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FAA Reauthorization and Rule Changes to See Debate in March. --- Glenn Pew, AVweb, February 12, 2010
A week of Senate floor time will be scheduled in March to address aviation safety reforms and the Federal Aviation Administration reauthorization bill. The FAA reauthorization bill has been through several short-term extensions which are set to expire March 31. The bill’s current provisions address pilot safety standards and set requirements for remedial training programs for commercial carriers, as well as call for independent study of pilot fatigue research to be considered in new flight-time and duty-time rules for pilots. The House already passed its version of the reauthorization bill but it is considered more stringent than the bill the Senate has proposed, and whatever the Senate passes will have to be merged with the House bill by a House-Senate conference committee.
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January 29, 2010 - A summary review of Aviation and Airport Development related news and information that was made public during the past ten days.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every week, please send an e-mail to subscribe@calairlaw.com with the word “subscribe” in the subject line.

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With the current emphasis on “renewable energy” and sustainability, along with a healthy dose of federal funding, many companies have been developing plans for wind farms to help move this nation from the grip of over-reliance on petroleum products for its energy needs. While barriers to their construction are not new, with wind turbine companies fending off Endangered Species Act lawsuit (endangered bats running into blades) and other environmental issues, the FAA recently raised an additional issue: obstruction to aviation.

On Wednesday, January 6, 2010, the FAA found that 15 of Gamesa’s proposed 30 wind turbines for Shaeffer Mountain in Somerset County, Pennsylvania, exceed “obstruction standards and/or would have an adverse physical or electromagnetic interference effect” on the airspace above the ridge or nearby airports and flight routes. Two days later, on Friday, January 8, 2010, the FAA ruled that one of the two wind turbines proposed for the Dartmouth, Massachusetts owned land is a hazard to air traffic and must be lowered. 

The FAA may have learned its lesson, since back in April, 2008, it was told to go back to the drawing board with its “Does Not Exceed” determinations for a proposed wind farm above a proposed airport just south of Las Vegas in Ivanpah, Nevada. Clark County v. FAA. There, the court determined that the FAA’s findings flew in the data that the 400 ft towers would penetrate the FAA’s 40:1 slope and that 83 turbines would appear as a “fleet of jumbo jets” to the air traffic controllers.

It may be prudent, then, to review the process established by the FAA for determining if an object will be considered to be an “obstruction.”

Notification

Part 77 of the Federal Aviation Regulations (14 C.F.R., Part 77) establishes standards and notification requirements for objects affecting navigable airspace. This notification serves as the basis for:

• Evaluating the effect of the construction or alteration on operating procedures
• Determining the potential hazardous effect of the proposed construction on air navigation
• Identifying mitigating measures to enhance safe air navigation
• Charting of new objects.

Notification allows the FAA to identify potential aeronautical hazards in advance thus preventing or minimizing the adverse impacts to the safe and efficient use of navigable airspace.

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Your local airport is becoming a drain on the local economy. Sure, it provides a few jobs, adds a certain cachet to the area and provides a hobby for the few people who can afford to purchase and maintain aircraft. But the annual expense of keeping the airport running – and running safely - is becoming more and more like a lead weight on your budget. “Let’s just close the thing,” you say. But wait, remember all that money you accepted from the FAA as part of the AIP grant program to lengthen the runway, pay for new taxiways, and purchase property? The FAA remembers. And before you can close the airport, there are many hurdles to clear set by the FAA to discourage the closure of airports.

1.            Take A Look At The Grant Assurances

First, take a look at the documents in your possession – the grant agreements you received from the FAA and signed as a condition of receiving the grants. As you are no doubt aware, under various Federal grant programs, you have agreed to assume certain statutorily defined obligations pertaining to the operation, use and maintenance of the Airport [49 U.S.C. § 47107(a)], that are described and implemented in FAA Order 5190.6B and memorialized in the application for Federal assistance as Grant Assurances, which become a part of the grant offer and bind the grant recipient contractually upon acceptance. 49 U.S.C. § 47107(a); FAA Order 5190.6B, “Guide To Sponsor Obligations” pp. 2-13 to 2-18.

 

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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 would be if the safety or security of the aircraft (as determined by the pilot in command) would not allow a return to the terminal or if air traffic control advises the pilot that returning to the terminal would disrupt airport operations. 

In addition, airlines are required to provide adequate food and potable drinking water for passengers within two hours of the aircraft being delayed on the tarmac and to maintain operable lavatories and, if necessary provide medical attention.

The passengers' rights advocates were understandably jubilant that the rule had come to pass - particularly since the "Passenger Bill of Rights" that was part of the FAA Reauthorization Act of 2009 has stalled in the Senate.  Kate Hanni, Flyerrights.org's president and founder issued this statement:

This is indeed a wonderful holiday gift and a major victory for any airline passenger who has ever been subjected to an unnecessary tarmac delay and has endured endless hours without food, water or adequate toilet facilities. Flyersrights.org has fought for legislation in Congress to limit these delays, yet the bill has languished in the Senate despite bipartisan support. We applaud the Obama Administration and Transportation Secretary Ray LaHood for stepping up to the plate and telling the airline industry, and Congress, that ‘enough is enough’.

However, the rule raises several questions as to its consumer friendliness.  It may force airlines to cancel flights instead of having them wait.  As the air travel blogger "Cranky Flier" pointed out in his Tuesday, December 22, 2009, blog post, this past weekend during a massive storm hitting the East Coast only one JetBlue flight was delayed longer than three hours.  Why did that happen?

It’s all because of gate issues. JetBlue and other airlines started pre-canceling a lot of flights, as I noted on BNET yesterday. Obviously the more flights you pre-cancel, the better chance the remaining flights will operate, but it means that there are a lot of airplanes around and shuffling them to make gates available during a blizzard is a tricky thing. You never want to see a plane sitting around for more than 3 hours, but if it’s only one (and JetBlue compensated the passengers), then that’s not too bad for the storm of the decade.

But all this pre-canceling comes at a price. That means there are a lot more people who aren’t getting home for Christmas because so many flights were canceled.

There’s no question that airlines would have had to cancel a lot of flights, but were they more conservative because of public backlash on delays? That’s my guess. Would you rather sit on an airplane for 4 hours or just have your flight canceled? I imagine that some would be happy to sit around for 4 hours if it meant they’d get out of town. Now they find themselves stuck.

The discretion to stay in line and wait to take off has been taken away and now, after three hours, the aircraft must return to the gate.

We all know why this rule was instituted.  Indeed, the DOT's press release specifically states the cause:

This rule was adopted in response to a series of incidents in which passengers were stranded on the ground aboard aircraft for lengthy periods and also in response to the high incidence of flight delays and other consumer problems. In one of the most recent tarmac delay incidents, the Department fined Continental Airlines, ExpressJet Airlines and Mesaba Airlines a total of $175,000 for their roles in a nearly six-hour ground delay at Rochester, MN.

However, incidents like the one in Rochester, MN, are the exception rather than the rule. Moreover, it is not clear from the way things played out at Rochester that this rule would have changed anything. The incident at Rochester was due to a confederacy of dunces, each contributing their own stupidity to make a bad situation even worse. Since people will still have the ability to mess things up despite the rule, whether that sort of incident can be avoided remains to be seen.

This may be one of those times that government regulation may not be the answer to the problem.  Extended tarmac delays, i.e., over three hours, are exceptions. Moreover, prior to the institution of the rule, passengers had a "bill of rights," it is called the U.S. Constitution.  See, Dr. Barbara E. Lichman's Article "Passengers Detained Have Constitutional and Other Legal Rights."  The DOT rule, however, may have given the airlines a "safe harbor." That is, so long as the flight is delayed less than three hours, the airlines would have a defense to any passenger complaints about being delayed on the tarmac.  Thus, the 3-hour rule may actually have the effect of limiting the passengers' legal remedies.

Government regulation works best when it is proactive rather than re-active.  The legal system, on the other hand, is intended to step in to "make things right," when exceptions, such as the Rochester incident, happen. So long as passengers know that they have legal rights when they are on aircraft, and remedies if the airlines' and FAA's discretion is abused, then they are protected.  While the DOT's intent was laudable, it is not entirely clear that the rule will have the desired effect of assisting passengers who are trapped on aircraft.

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A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every Wednesday, please send an e-mail to subscribe@calairlaw.com with the word “subscribe” in the subject line.

$3.3M Airport Project in Works. --- Stillwater News Press, November 24, 2009
Stillwater Regional Airport in Oklahoma was approved for a $3.3 million taxiway and apron project that may be built in mid-2011. Five percent of the project will be funded by the state and Stillwater City Council, while federal money will account for the remaining 95 percent. The improvement plan will stall however until Congress approves a budget for the Federal Aviation Administration; Congress has passed a resolution providing temporary funding while it reviews and approves the FAA’s budget.
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FAA Fines Airlines for Stranding. --- United Press International, Inc., November 24, 2009
Federal Aviation Administration regulators fined three airlines $175,000 for an August incident where passengers were stranded overnight in a plane in Rochester, Minnesota. Department of Transportation Secretary Ray LaHood expressed his hope that the FAA’s investigation and resulting fine would serve as a signal to the rest of the airline industry that the DOT is expecting airlines to respect air travelers’ rights. The penalty is the first of its kind for the FAA, involving passengers left on the tarmac for an unreasonable period.
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Rockefeller Eyes FAA Extension. --- Adrian Schofield, Aviation Week, November 25, 2009
Commerce Committee Chairman Jay Rockefeller is proposing extending the Federal Aviation Administration’s operating authority through the end of March 2010. The seventh and current extension expires December 31, and it is likely that Congress would need even another extension into the summer. Airport groups will likely be frustrated as they have been pushing for the reauthorization bill to be passed this year, though it is unlikely airlines will be upset since they oppose some significant elements of the House bill.
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Aviation Industry Seeks Stimulus Money to Cut Delays at the Airport. --- Jim Snyder, The Hill, November 26, 2009
Commercial airlines and the private and business aviation industry have joined together to ask Congress to add money for a new air traffic control system in a second stimulus. The two lobbies agree that the NextGen system of satellite-based radar would reduce flight delays and help meet the growing demand for flight travel, but have been divided over how to pay for it.
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Jet Contrails Alter Average Daily Temperature Range. --- Science Daily via Jonathan Guillou, November 28, 2009
A study conducted during the three days after September 11, 20001, when the Federal Aviation Administration grounded commercial aircraft in the U.S., found that jet exhaust contrails affected average daily temperature ranges. Contrails form when water vapor and particles from jet engine exhaust enter the atmosphere, but not all jet exhausts create contrails, especially in warmer areas. Without the contrails from September 11-14, 2001, the daytime temperature was slightly higher and the nighttime temperature slightly lower, creating an increased range between the lowest and highest temperatures. Contrails alter temperature the way natural high clouds do, with the layer of ice crystals shielding the ground from some of the sun’s energy during the day, and preventing some of the Earth’s heat from dissipating into the vaccum at night.
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Wayward Pilots Were “Distracted,” Transcripts Show. --- Matthew Wald, New York Times, November 27, 2009
Transcripts from the October Northwest Flight 188 incident involving a Northwest Airlines plane that overshot its destination and was out of radio contact for over an hour reveal that the pilots were distracted. The transcripts and audio files were released Friday, November 27, 2009 by the Federal Aviation Administration, but the National Transportation Safety Board, which is also investigating, may release the transcript or a summary of it later this year. The FAA classified the incident as a “pilot deviation” and revoked the licenses of the two pilots, who are appealing.
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Report: FAA Accused of “Gross Mismanagement” at Newark Airport. --- David Porter, Associated Press, November 28, 2009
The Office of Special Counsel, a federal agency that handles whistle-blower complaints, has accused the Federal Aviation Administration of endangering public safety by not changing landing procedures at Newark International Airport in New Jersey. An air traffic controller filed a complaint last year describing safety issues with planes landing on intersecting runways at the airport. The report was filed last month and the FAA said it would make changes to the landing procedures by October 26, and later reported that it had done so when it hadn’t. The Office of Special Counsel sent a letter November 19 to White House counsel Gregory Craig reporting the FAA’s gross mismanagement.
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Coyotes Pose an Obstacle at North Carolina Airport. --- McClatchy Newspapers, November 27, 2009
Airport officials at Raleigh-Durham International Airport in North Carolina have noted a recent increase in the number of coyotes crossing the paths of taxiing airplanes and are looking to address the problem. Airport workers and federal wildlife managers usually try to scare coyotes off with cap guns or bottle rockets, but the airport is working on a larger wildlife management plan for the Federal Aviation Administration to review. The proposal recommends improving fencing and keeping grasses trimmed low to manage coyotes and other wildlife on the property.
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Edward Stimpson, Aviation Advocate, Dies at 75. --- John Miller, Associated Press, November 26, 2009
Edward Stimpson, an aviation advocate who pushed to rejuvenate struggling small aircraft manufacturers in the 1990s, died Wednesday, November 25, 2009 from complications related to lung cancer. He was a major proponent of legislation signed by President Bill Clinton in 1994 to prevent general aviation companies from being named as defendants in lawsuits in crashes of small planes 18 years old or older. He also advocated against record flying attempts and was a chairman of the “Be A Pilot” education and research program aimed at increasing the number of people learning to fly.
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Airports Push for Increased Facility Charge. --- Carl Unger, Smarter Travel, November 30, 2009
U.S. airports would like to see the current passenger facility charge (PFC) of $4.50 increased to $7.50 per segment, a 66 percent increase. The fees go toward updating runways, gates, and terminal facilities, but airports say they need higher fees to keep up with the rising costs of these improvements. Airlines oppose the proposed raise, saying that it would impose an additional and unwarranted $2-billion-per-year tax increase on commercial passengers. 
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Airports Want Passenger Fee Charge Increased. --- Roger Yu, USA Today, November 30, 2009
Airports have been lobbying Congress to raise the cap on passenger facility charges (PFCs) that fliers pay as part of their airline tickets, to index them to the inflationary cost of construction. Airlines oppose the increase, but airports have raised more than $27.5 billion since Congress approved the facility charge in 1992. John Meenan of the airline association says airports have too often used the money for projects they shouldn’t that the Federal Aviation Administration has been lax in approving.
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Regulators Reject Boeing 777 Safety Warnings. --- Andy Pasztor, Wall Street Journal, November 30, 2009
Federal Aviation Administration regulators have decided to allow more than 60 Boeing Co. 777 jetliners to continue flying long-distance international trips through early 2011 despite safety warnings from crash investigators and pilots. The jetliners have suspect parts that have caused engines in extremely rare instances to ice up and shut down in midair.
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Mending Fences: FAA Proposes Guidance on Through-The-Fence Operations. --- Mike France, National Air Transport Association, November 30, 2009
The Federal Aviation Administration released a proposed guidance document on through-the-fence (TTF) operations at federally obligated airports that has generated some controversy. A TTF agreement is an agreement entered into by an airport sponsor that would allow access to airport facilities by aircraft based on property adjacent to, but not owned by, the airport. The FAA’s proposed strict prohibition on TTF access for residential uses may create situations where airports’ sponsors are forced to use extraordinary measures to cancel existing TTF agreements. The National Air Transport Association is hoping to work with the FAA to ensure that existing agreements are structured in a way that honors their original intent without placing airports in danger of violating grant assurances.
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FAA Bans Takeoff with “Polished Frost.” --- Aubrey Cohen, Seattle Post-Intelligencer, November 30, 2009
The Federal Aviation Administration announced a new law which will take effect January 30 banning takeoffs with “polished frost” on the wings, stabilizers, and control surfaces of several classes of aircraft. Major and regional air carriers are already prohibited from operating with polished frost, but the new rule will affect 57 operators flying 188 aircraft.
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FAA Press Release: FAA Bans Takeoffs with “Polished Frost.” ---Federal Aviation Administration, November 30, 2009
The Federal Aviation Administration’s new rules, effective January 30, 2010, will prohibit takeoffs with “polished frost,” for several classes of aircraft. Frost can affect wings aerodynamics and control surfaces, and the new rules include four alternatives to removing frost that operators may consider.
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Plume of Pollutants From a Small Airport. --- Henry Fountain, New York Times, November 30, 2009
A study of the air around Santa Monica Airport by researchers at the University of California, Los Angeles found high concentrations of ultrafine particles of organic carbon and sooty black carbon that extended in a plume more than 2,000 feet downwind of the airport—longer than those typically found around highways in daytime. Dr. Paulson, one of the researchers, said that epidemiological studies have shown the health risks associated with these kinds of emissions by vehicles, but that there has not been similar analyses done around airports. Air quality around airports has not been studied much and when it has, the focus has usually been on larger airports.
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FAA Clarifies What Can Be Stowed in Seat Back. --- Joe Sharkey, New York Times, November 30, 2009
New Federal Aviation Administration guidelines clarify formerly confusing policies on whether passengers may put personal items in airplane seat-back pockets. In a recent FAA clarification notice sent to airlines, the notice stated that airline seat pockets are designed to safely hold about three pounds of weight and small, lightweight items can be placed in the pocket without exceeding its total designed weight limitation or blocking anyone from safely evacuating the row of seats. The status quo has allowed for items of reasonable size to be placed in the seat-back pocket, but airlines were being told different things by regional FAA inspectors, perhaps prompting the need for the clarification.
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FAA Asked to Do More to Fix Morale. --- Sholnn Freeman, Washington Post, December 1, 2009
A Government Accountability Office report released Monday, November 30, 2009 called on the Federal Aviation Administration to step up its efforts to promote diversity and do more to counter low morale by broadening its training programs. The GAO said the FAA’s morale and culture problems could obstruct its ability to attract and retain tech-savvy workers, critical as the need for workers will grow as the FAA moves to more advanced equipment and faces a wave of retirements.
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GAO Report: Mica Attacks Controllers as Cause For Morale Problems at FAA. --- The Potomac Current and Undertow, December 1, 2009
After the recently released Government Accountability Office report on poor Federal Aviation Administration morale, Representative John Mica attacked air-traffic controllers as the cause of the problems. He also said that conditions would be unlikely to improve under a “controversial labor contract” that unfairly benefited only one group of FAA employees.
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On Tuesday, November 17, 2009, Chevalier, Allen & Lichman filed a Petition for Writ of Certiorari to the United States Supreme Court on behalf of its client County of Delaware, Pennsylvania (“Delaware”). The Petition asks the Court to reverse the decision of the D.C. Circuit Court of Appeals in County of Rockland, New York, et al. v. Federal Aviation Administration, et al., and remand to the Federal Aviation Administration (“FAA”) for a decision consistent with Congress’ intent and instruction in the Conformity Provision of the Clean Air Act, 42 U.S.C. § 7506.

Delaware argues that the FAA violated the Clean Air Act when, as the Court of Appeals acknowledged, the FAA “did not directly calculate the level of emissions” resulting from a redesign of approach and departure paths at five major airports across five states with five separate State Implementation Plans in the northeastern United States. The Court of Appeals went further and found that FAA “did not need to quantify the reduction [in emissions] in order to conclude the redesign was exempt from a conformity determination,” and assuming FAA’s omission was error, Petitioners had failed to prove the error harmful.

Delaware responds in its Petition that FAA’s failure to follow the clear mandate of the Clean Air Act to calculate emissions; do so within and with respect to each State’s Implementation Plan (“SIP”), 42 U.S.C. § 7506; or, in the alternative, apply the regulations promulgated by the Environmental Protection Agency for determining whether a project is subject to a de minimis exemption from conformity, 40 C.F.R. § 93.153(c) and (b), is both error and harmful, because FAA’s failure prejudices Delaware’s “substantial rights” in the expectation that Federal agencies will comply with the express mandates of Congress in statutes that, like the Clean Air Act, require specific results.

Finally, Delaware argues that the Court of Appeals’ decision not only threatens its substantial rights in the benefits granted by Congress, but also grants a “free pass” to all Federal agencies to rewrite the rules for compliance with the Clean Air Act.

A separate Petition for Writ of Certiorari was also filed by co-Petitioners in the underlying action State of Connecticut and Rockland County. Because the Supreme Court receives a vast number of Petitions, there is no set time frame within which Delaware expects to be notified of the Court’s decision. Obviously, however, Delaware believes that absent a favorable determination from the Supreme Court, its ability to exercise its responsibilities to ensure the public health and welfare under Pennsylvania law, as well as the individual rights of its citizens, will be seriously, and, perhaps, permanently jeopardized.

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A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every Monday, please send an e-mail to subscribe@calairlaw.com with the word “subscribe” in the subject line.

FAA: 2 Planes Came Within 90 Feet on Ground at LAX. --- Associated Press, October 28, 2009.
The Federal Aviation Administration determined that a runway incursion at Los Angeles International Airport brought two passenger planes within 90 feet of each other on Sunday, October 25, 2009. A Midwest Express jet taxied toward a runway on which a Northwest Airlines Boeing 757 was taking off, though the jet was supposed to stop. The pilots of both planes will be questioned.
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FAA Issues Notice of ROD for FEIS Concerning Proposed Improvement Activities at Rocky GutierrezAirport in Sitka, AK. --- Federal Register, October 29, 2009.
The Federal Aviation Administration gave notice that it had issued a Record of Decision for the Final Environmental Impact Statement and Alaska National Interest Lands Conservation Act Section 810 Evaluation for Proposed Improvement Activities at Rocky Gutierrez Airport in Sitka, Alaska. The ROD included descriptions of the projects proposed by the Airport Sponsor and evaluation of the projects, as well as federal, state, and local actions that are needed prior to the implementation of the projects. The ROD also identified several of the FAA’s preferred and environmentally preferred alternatives, and alternatives selected by the FAA for implementation.
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Military Says Fighters Should Have Been Launched When Northwest Flight Overshot Airport. --- Lolita C. Baldor, Associated Press, October 29, 2009.
A top commander said the military would have launched fighter jets to track down the Northwest Airlines flight that overshot its destination if officials had been notified sooner. General Gene Renuart, head of U.S. Northern Command, learned of the incident only minutes before the Federal Aviation Administration regained contact with the pilots. He said delays must be corrected, and Northern Command is doing an internal review of the incident.
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FAA Finds Proposed Chiofaro Towers a Hazard. --- Casey Ross, Boston Globe, October 29, 2009.
Preliminary Federal Aviation Administration findings indicate that developer Don Chiofaro’s proposed towers near the New England Aquarium will have to be cut in half, because the tower complex with its proposed heights of nearly 800 feet would pose a hazard to planes taking off and landing at nearby Logan International Airport in Boston, Massachusetts. A principal at Chiofaro’s development firm said that the ruling was expected and the company still plans to pursue high-rise development on the property.
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Atlanta Airport Project Gets Stimulus Funds. --- LexisNexis, October 30, 2009.
Hartsfield-Jackson Atlanta International Airport in Georgia was awarded almost $34 million in stimulus funds through the Federal Aviation Administration’s Airport Improvement Program, to help pay for construction of a new terminal. The total cost of the terminal, expected to be completed by spring 2012, is $1.35 billion, and the 12-gate facility will connect to the existing international Concourse E, creating a 40-gate international air travel complex.
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Air Transport Association Urges U.S. Climate Negotiators to Oppose Climate Change Tax Targeting International Air Passengers. --- PRNewswire, October 30, 2009.
The Air Transport Association of America urged climate negotiators to oppose the “International Air Passenger Adaption Levy,” which would single out aviation to raise $10 billion per year for climate-change projects to be built in developing countries, and would likely take the form of an exorbitant climate change tax imposed on airlines and their passengers. In a letter to Todd Stern, the U.S. Special Envoy for Climate Change, the ATA impelled the United States to oppose the tax and instead support the industry’s proactive proposal for a global and sectoral approach to aviation and climate change.
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FAA Issues Intent to Rule on OAK’s Request for a PFC to Connect OAK to BART. --- Federal Register, November 2, 2009.
The Federal Aviation Administration plans to rule on and invited public comment on a proposed Passenger Facility Charge at Metropolitan Oakland International Airport, which would go toward providing a direct people mover connection between the Coliseum Bay Area Rapid Transit station and the airport.
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Federal Officials Reject Restrictions on Night Flights at BobHopeAirport. --- L.A. Now, November 2, 2009.
A request by the Burbank-Glendale-Pasadena Airport Authority for a curfew at Bob Hope Airport in Burbank, California was rejected by the Federal Aviation Administration for being unreasonable because it would create an “undue burden on commerce” and negatively affect the national air transportation system. The FAA found that the airport failed to meet four of the six conditions required of a restriction proposal, and several major cargo companies including Fed Ex and United Parcel Service opposed the implementation of a curfew.
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Hawaii Airport Getting New Control Tower. --- Associated Press, November 2, 2009.
Construction on a new $39 million air traffic control tower at Keahole-Kona International Airport in Hawaii is to begin in December, and is expected to be put into use in May 2012. The current 51-foot tower was built in 1970 to control a 6,500-foot runway, but after it was extended to 11,000 feet in 1993, it was more difficult for controllers to see the north end. The new tower should provide controllers better views of the airfield.
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Small Airports Land Big Money. --- Thomas Frank, USA TODAY, November 2, 2009.
A USA TODAY analysis shows that Congress has steered $1.1 billion since 2001 to “pet projects” at airports that cater to private planes, with approximately $100 million being allocated to low-priority projects. These “earmarks” projects have been criticized for potentially detracting from federal aid that could be used for projects to ease flight delays at the nation’s busiest airports, but a Federal Aviation Administration spokeswoman said that the earmarks account for only 5% of airport grants.
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Stealth-Mode Wind Turbines. --- Peter Fairley, Technology Review, November 2, 2009.
Danish wind turbine company Vestas and United Kingdom defense contractor Qinetiq believe they may have the solution to the wind-turbine-related aviation radar interference problem: the first “stealth” wind-turbine blade. Turbines can interfere with radar by reflecting radar systems’ microwave signals and creating shadows that erase planes from radar operators’ screens and clutter those screens with the turbines’ signature. The stealth blade is constructed of material that absorbs radar, and the blade produces a markedly smaller signature in comparison to conventional blades.
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Congressman Sherman Proposes Legislation to Allow Nighttime Curfews at Valley Airports. --- California Chronicle, November 3, 2009.
In the wake of the Federal Aviation Administration’s rejection of the Burbank-Glendale-Pasadena Airport Authority’s application for a waiver to impose nighttime curfews at Bob Hope Airport in Burbank, California, Congressman Brad Sherman is proposing legislation that would allow Bob Hope and Van Nuys Airport to implement mandatory nighttime curfews from 10 p.m. to 7 a.m.
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FAA Issues Airworthiness Directive for ATR Model ATR42 and ATR72 to Correct “An Unsafe Condition.” --- Federal Register, November 3, 2009.
The Federal Aviation Administration adopted a new Airworthiness Directive for ATR Model ATR42 and ATR72 airplanes requiring action to address an unsafe condition related to the “unacceptable” probability of ignition risk.
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Safer Standards Urged After North Las Vegas Crashes. --- Keith Rogers, Las Vegas Review-Journal, November 2, 2009.
A Clark County Aviation Department report found that 75 percent of the accidents involving experimental and other aircraft at North Las Vegas Airport in Nevada were caused by pilot error. The report gave several recommendations for the Federal Aviation Administration, which the agency is reviewing and considering, barring those recommendations that have already been implemented.
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IG Report Faults NY Delay Initiative. --- Adrian Schofield, Aviation Week, October 30, 2009.
The Department of Transportation’s Inspector General found that benefits have been seen in just five of the Federal Aviation Administration’s 30 completed New York airport and airspace initiatives. Most of the completed initiatives were either not used or used infrequently, and the IG questioned their viability as “effective delay-reduction solutions.” The IG’s report also found that the FAA lacks an effective process for evaluating the usefulness of the individual initiatives, thereby preventing it from determining if the initiatives provide any benefits.
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Lawmakers Seek Ban on Laptops in Airline Cockpits. --- Joan Lowy, Associated Press, November 3, 2009.
Senator Byron Dorgan, chairman of the aviation subcommittee, said he is planning on introducing a bill that will ban the use of computer laptops and other personal electronic devices in airline cockpits, to prevent an incident like the Northwest Airlines plane that overshot its destination from occurring again. Currently the Federal Aviation Administration does not prohibit pilots from using such devices, except below 10,000 feet when the plane is taking off or landing. Other lawmakers have also indicated that they would support such legislation.
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Acadia to Develop Air Tour Regulations. --- Heather Seavey, WCSH, November 4, 2009.
Acadia National Park in Maine and the Federal Aviation Administration are working together to develop new regulations for scenic air tours that fly over the park. The new regulations would be designed to limit noise for park visitors and wildlife, and would extend to a ½ mile perimeter around the park boundaries and up to 5,000 feet above ground level.
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Northwest Pilots Appeal License Revocation. --- Joan Lowy, Associated Press, November 5, 2009.
The Northwest Airlines pilots who overshot their Minneapolis destination by 150 miles and had their licenses revoked by the Federal Aviation Administration are appealing the revocation with the National Transportation Safety Board. The FAA revoked the pilots’ licenses because they said the pilots put the 144 passengers of the flight in serious danger, and highlighted the incident as an example of the “erosion of professionalism” among commercial pilots.
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FAA Proposes Millions in Penalties Against United Airlines. --- Business and Legal Resources, November 5, 2009.
The Federal Aviation Administration is proposing a $3.8 million civil penalty against United Airlines for operating one of its Boeing 737 aircraft on more than 200 flights in a less-than-airworthy condition. The airline had violated its own maintenance procedures on one of the plane’s engines—two shop towels, and not the required protective caps, had been used to cover openings in the oil sump area.
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FAA Tracking Planes That Flew Over House Hit By Ice. --- ChicagoBreakingNewsCenter, November 5, 2009.
The Federal Aviation Administration is investigating an incident wherein a large piece of ice fell from the sky and hit a home in Chicago, Illinois on Wednesday, November 4, 2009. The house lies under one of O’Hare International Airport’s flight paths, and FAA investigators will seek to identify which planes were overhead at the time of the incident, and if any may have reported a leak, which could then be the source of the ice.
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Are Some Airlines Just Too Dangerous to Fly? --- Richard Korman, Miller-McCune, November 4, 2009.
A recently-conducted study found that certain old planes operated from Latin America, the Middle East, and Africa have more accidents. Developing countries are more likely to use old planes beyond their “designed economic life,” and maintenance of these planes may fall short of international standards, though it is difficult to establish global standardization. The European Union launched an airline blacklist in 2006, and passengers should avoid those carriers or carriers from Federal Aviation Administration-downgraded countries, though international maintenance standards should be implemented and enforced.
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Photos Show AA Plane at Center of Safety Investigation. --- Scott Friedman, NBC DallasFort Worth, November 4, 2009.
American Airlines is being investigated by the Federal Aviation Administration after the airline voluntarily self-disclosed a discrepancy in several of the screwheads used to hold AA plane #279’s skin. The screws appear to be ordinary and unlike the rivets generally used, but the carrier insists that they are aerospace quality and were only installed just before the plane was moved to the New Mexico desert and retired. The FAA is investigating whether the plane carried any passengers with the changed screws, and whether the plane was deliberately moved to the desert graveyard to keep it out of sight of inspectors.
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Barclay Urges Senate to Pass FAA Bill; Eliminate AMT Penalty. --- Aviation News, November 4, 2009.
Charles Barclay, president of the American Association of Airline Executives, is urging the Senate to pass the Federal Aviation Administration reauthorization bill quickly and permanently eliminate the AMT penalty on airport private activity bonds.
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Director of Singapore Firm Sentenced for Illegally Exporting Controlled Aircraft Components to Iran. --- Department of Justice, November 5, 2009.
Laura Wang-Woodford, one of the directors of Singapore-based Monarch Aviation Pte Ltd., was sentenced in federal court in Brooklyn to 46 months in prison for conspiring to violate the U.S. trade embargo by exporting controlled aircraft components to Iran. Along with her husband, Brian D. Woodford, who served as chairman and managing director of Monarch and who remains a fugitive, Ms. Wang-Woodford illegally exported aircraft parts and U.S. military aircraft components. At the time of her December 23, 2007 arrest in San Francisco, she was also in possession of catalogues from a Chinese company from which all U.S. citizens and entities are prohibited from engaging in business.
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FAA Chief: Pilots Must Refocus on Professionalism. --- Joan Lowy, Associated Press, November 4, 2009.
Federal Aviation Administrator Randy Babbitt told an aviation club that pilots must refocus on professionalism, and that recent incidents like Northwest Flight 188, which overshot its destination by 150 miles, and the Buffalo, New York crash that killed 50 people, were caused because the pilots forgot their first job was to focus on flying the plane. Babbitt has been stressing a need for stronger professionalism among airline pilots, and he has urged veteran pilots to mentor less experienced pilots.
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$3.7 Million to Study O’Hare Terminal Airlines Don’t Want. --- Fran Spielman, Chicago Sun-Times, November 4, 2009.
Consulting firm Landrum & Brown was awarded a $3.7 million contract to plan for a new western terminal project at O’Hare International Airport in Chicago, Illinois that the major airlines are refusing to fund and consider ill-conceived. The Federal Aviation Administration, which provided the funding for the study, believes the Western Terminal Planning Study is an “important and necessary tool” to help the agency coordinate with the state to provide regional and local roadways for western access to O’Hare.
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Airport Weight Debate Goes to Commissioners. --- Kurt Hildebrand, The Record-Courier, November 4, 2009.
Douglas County, Nevada commissioners will look at a proposal analyzing what might happen if Minden-Tahoe Airport loses federal funding. The Federal Aviation Administration has already withheld some funding due to the county’s failure to alter the airport’s entry in federal publications, and the FAA would be less likely to continue to provide funding if the airport does not comply with assurances representatives made that the airport would be maintained. The county is analyzing potential options for maintaining the airport without federal funding if the county is held in non-compliance and does not receive federal funds.
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How to Keep Planes From Colliding with Lasers. --- Physics Today, November 5, 2009.
Researchers have created a radio-tracking device that can detect aircraft entering the vicinity of a laser beamed into the sky, which would greatly aid in the prevention of plane-laser collisions. The current method involves using human observers to watch for planes flying with 25 degrees of the laser beams, but the new device would have none of the potential for human error.
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FAA Investigates Clem’s Airport Lease Deal. --- Alan Gustafson, Statesman Journal, November 6, 2009.
The Federal Aviation Administration is investigating a controversial lease awarded by former aviation director Dan Clem to a developer at Aurora State Airport in Oregon. The inquiry concerns whether the lease complied with federal grant conditions for airports that receive FAA funding for improvements, and the Oregon Department of Justice is conducting its own investigation into Clem’s handling of the lease. Mr. Clem resigned as state aviation director on October 19 of this year.
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MontanaAirport Hopes to Build Control Tower Soon. --- Associated Press, November 6, 2009.
Missoula International Airport, Montana airport administrators hope to begin building a new control tower in spring, after the Federal Aviation Administration approved about $6.7 million in funding for the tower. The new tower will likely be about 120 feet tall, approximately double the height of the current tower, which was built in the early 1960s.
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Noise Pollution Control. --- Save the Earth!, November 6, 2009.
Noise pollution is displeasing human-, animal-, or machine-created sounds, damaging to physiological and psychological health. In the early 1970s the Environmental Protection Agency developed federal noise-emission standards, and the Federal Aviation Administration adopted Ldn (day-night equivalent level) as the noise descriptor in assessing land-use compatibility with various levels of aircraft noise. The EPA, FAA, and other government agencies work to identify major noise sources in the United States and craft measures to curb noise pollution.
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Notice of Availability of a Record of Decision for Streamlining the Process of Experimental Permit Applications. --- Federal Register, November 6, 2009.
The Federal Aviation Administration announced the availability of a Record of Decision for streamlining the environmental review of experimental permit applications for the launch and/or reentry of reusable suborbital rockets. The ROD provides a description of the Proposed Action—the FAA’s Preferred Alternative and the environmentally preferable alternative—and includes a discussion of environmental impacts associated with the Proposed Action for each resource area.
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ExhaustConeFalls Off Jet Onto NY Home’s Lawn. --- David B. Caruso, Associated Press, November 6, 2009.
An engine tailcone fell off a Delta Air Lines Boeing 777 and landed on a lawn in a Long Island, New York residential neighborhood, though neither pilots nor anyone on the ground immediately noticed the mishap. The aircraft does not need the part to fly, and carried on safely to its destination in Tokyo, where Delta personnel reported the engine part missing following an inspection after the plane landed. Delta is conducting an investigation to determine what went wrong.
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FAA Streamlines Experimental Space Flight Access. --- Michael Cooney, Network World, November 6, 2009.
The Federal Aviation Administration says it will streamline the environmental review part of permit applications for the launch and/or reentry of reusable suborbital rockets to help bolster a young commercial space market. The Processing of Experimental Permit Applications (PEIS) is the central and important document of the ruling, because it presents information and analysis common to reusable, suborbital rockets and effectively focuses on environmental impacts specific to an applicant’s proposed experimental operations.
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Van Nuys Would Like To Be Paid Back For All That Soundproofing. --- Curbed LA, November 6, 2009.
The Van Nuys Airport Citizens Advisory Council is seeking reimbursement from the City of Los Angeles for the cost of installing insulation in homes near Van Nuys Airport in California, after the Federal Aviation Administration rejected plans to enforce a curfew at Burbank’s Bob Hope Airport which would have resulted in the diversion of planes to airports like Van Nuys. The figure is in the $10 million range, but will likely increase when the cost of noise consultants is factored in.
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NBAA Welcomes FAA Ruling Against Curfew Proposal. --- Charter X News, November 7, 2009.
The National Business Aviation Association applauded the Federal Aviation Administration’s decision to deny a proposed ban on nighttime operations at Bob Hope Airport in Burbank, California. The NBAA had submitted an extensive legal filing in opposition to the curfew proposal, one of the documents cited by the FAA in support of its decision.
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Buzzing of Santa Monica Pier Leads to Questions About Aviation Safety. --- Dan Weikel, Los Angeles Times, November 8, 2009.
A November 2008 incident at Santa Monica Pier involving a low-flying military jet has focused attention on the use of high-performance military jets by civilian pilots and the hazard they can pose to people in the air and on the ground. In the Western Pacific region of California, Nevada, Arizona, and Hawaii there are about 5,600 experimental exhibition planes that are restricted by the government to air shows, flight demonstrations, or training flights over sparsely populated areas, but there is little to stop those who own or operate those planes from using them in unapproved and dangerous ways. David G. Riggs, the pilot and owner of the jet involved in the Santa Monica Pier incident, may have illegally sold rides in such unapproved planes and may even have failed to adhere to proper maintenance standards for the planes.
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FAA Gives Hope to Cargo. --- Aircargo Asia Pacific, November 9, 2009.
The air cargo industry praised the Federal Aviation Administration’s decision to reject BobHopeAirport’s request for a ban on nighttime operations at the Burbank, California airport. Daniel Fernandez, director of the International Air Cargo Association, said that the decision sends a clear message to other airports that may have been considering similar restrictive actions.
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City Council Committee Approves Delta-Airport Lease. --- Kelly Yamanouchi, The Atlanta Journal-Constitution, November 9, 2009.
The Atlanta, Georgia city council transportation committee approved the proposed lease between Hartsfield-JacksonInternationalAirport and Delta Air Lines after the Federal Aviation Administration wrote in a memo that most of its concerns about the deal had been addressed. Key issues involved potentially anti-competitive provisions in the lease, including the restriction of gate usage—a representative for American, Continental, US Airways, and United told the transportation committee that the agreement will restrict those carriers because they will lose five of their gates. The full council will take up the measure at its November 16, 2009 meeting.
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Aircraft Owner Group spent $770,000 Lobbying in 3Q. --- Associated Press, November 9, 2009.
The Aircraft Owners and Pilots Association, representative of private pilots, spent $770,000 lobbying on issues related to small aircraft, security, and airport fees, in the third quarter. The group lobbied for legislation that would require the Homeland Security secretary to go through a negotiated rulemaking process before issuing rules aimed at general aviation aircraft, as well as issues like greenhouse emissions, fuel, reauthorization for the Federal Aviation Administration, and authorization for the Transportation Security Administration.
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US Airways Spent $410K Lobbying Government in 3Q. --- Associated Press, November 9, 2009.
US Airways Group Inc. spent $410,000 lobbying in the third quarter. The carrier lobbied on the cap-and-trade energy proposal and aviation regulation issues, and on bills aimed at curbing speculation in the energy markets. US Airways also lobbied on reauthorization for the Federal Aviation Administration and air cargo security issues, aircraft engineering, flight operations, and maintenance issues.
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Senators Call for Passage of FAA Bill. --- Aviation News Today, November 9, 2009.
A group of lawmakers called on Senate leaders to pass the Federal Aviation Administration reauthorization bill. The Senate Commerce Committee approved the FAA Air Transportation and Modernization Act of 2009, S. 1451 on July 21, 2009, but the bill has stalled in the Finance Committee, which has yet to consider the tax portion of the bill.
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Airbus A319 Drops Parts on Dallas. --- Associated Press, November 10, 2009.
A left overwing emergency slide and the door over the compartment in which the slide was stowed fell from an Airbus A319 jet making a test flight in Dallas, Texas. The jet was undergoing maintenance when the incident occurred, and no injuries were reported and the plane was able to land safely.
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On November 10, 2009, Secretary of Transportation Ray LaHood posted a blog on the Department of Transportation website entitled "The FAA, an Active and Vigilant Partner in Aviation Safety." In his post, Secretary LaHood made the point that the Federal Aviation Adminsitration is seeking to be proactive with respect to safety and "move aggressively to put new safety measures in place." And, in so doing, move forward by working with "key stakeholders to solve aviation problems."

 

The basic point--that safety is this DOT's number one priority--cannot be said too many times. However, I think it's important to make one other point very clearly:

The Obama Administration's Federal Aviation Administration is an active and vigilant partner, and we are moving aggressively to put new safety measures in place.

Now, there are two parts to this claim.

One--the new FAA is active and vigilant.

For that look no further than the recent incident where two Northwest Airlines pilots overflew their destination on the way to Minneapolis. The FAA took action immediately, revoking the pilots’ licenses within a matter of days.

Two--the new FAA is a partner, working with key stakeholders to solve aviation problems.

In June, for example, we issued a call to action encouraging all players in the aviation industry-–labor, management, and the FAA--to come together to scrutinize operations, share best practices, and implement actions we know can improve safety. 

 

To his post, I made this comment.

While I do not for a moment doubt the sincerity of the FAA's statement that safety is its number one priority, since as a former FAA employee, I know firsthand the commitment the agency and its staff have to safety. The issue I have is when the FAA hides its actions behind the mantra of "safety."

Take, for example, the institution of a RNAV procedure at an airport. To say that the purpose and need for the RNAV procedure is to enhance safety is not entirely accurate. The need for an RNAV procedure is to allow, among other things, shorter separation between planes and more accurate flight tracks. Do those goals create a safer environment for those on the plane or on the ground? Perhaps, but safety is really a secondary goal - a by-product, if you will, of the primary goals.

While whether a RNAV procedure is a safety concern or a congestion concern may be a minor thing, the stakes get raised when the legal consequences are considered. The FAA has long recognized that if denominates the purpose of a project as being "safety," it will get less resistance from the public, and from the courts, if litigation results. That would not be the case if the purpose were "convenience," "ease of congestion" or even "efficiency." Thus, when the FAA drafts an Environmental Impact Report pursuant to the National Environmental Protection Act, it knows that, whatever the project, the purpose and need has to be "safety."

If everything is about safety, then nothing is about safety. Denominating safety as the purpose for every project, diminishes the impact that projects that ARE about safety will have. I applaud the FAA safety efforts, particularly with respect to pilots and air traffic controllers, and hope that it is successful instituting the needed changes in its infrastructure to enhance safety even more. But when a project is clearly not about safety or, at best, a minor part of the purpose of the project, the FAA has tell the public the truth.

The point is: too often the FAA hides behind "safety" to protect itself from criticism about its projects.  Too often valid debate about the need for FAA projects, e.g., runway extensions, RNAV procedures, control towers, etc., is muted because the FAA wraps them up in the mantle of safety.  If the true purposes for the projects are announced, then the debate about whether the project's pros can be balanced by the cons can be effectively debated. And that, is the whole point of requiring federal agencies to make their projects known to the public.

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A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post.

House Passes Bill to Toughen Pilot Training Rules.--- Joan Lowy, Associated Press, October 15, 2009

The House passed a bill, 409-11, to toughen regulations on pilot training, qualifications, and work schedules, after a fatal crash in upstate New York in February and other accidents involving regional airlines. The bill would require that all pilots flying for a passenger-carrying airline have an Air Transport Pilot certificate, which would significantly increase the number of flying hours an entry-level airline pilot must have. Under the bill, the Federal Aviation Administration is also required to update rules governing how many hours airlines may require a pilot to fly before the pilot is permitted rest. The FAA is additionally required to ensure that airlines conduct comprehensive pre-employment screening of prospective pilots, create mentoring programs between experienced and newly hired pilots, and provide remedial training for pilots who perform poorly on skills tests. A companion bill is being introduced in the Senate.

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Passenger ‘Rights’ Advocate Sues Delta, Alleges Email Hacking. --- Justin Bachman, BusinessWeek, October 13, 2009

Kate Hanni, a passenger rights advocate, is accusing Delta Airlines and Metron Aviation aviation consulting firm of hacking into her email and personal computer. Her computer and email account were both accessed illegally this past summer, with some emails stolen and other work materials damaged. Both Delta and Metron deny the allegations and dismiss them as “baseless and without merit.”

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ATA Commends ICAO Member States for Progress on Climate Change Agenda. --- Air Transport Association, October 14, 2009

The Air Transport Association of America commended the member states of the International Civil Aviation Organization for confirming a Program of Action at a recent High Level Meeting on Climate Change. The ATA was pleased with the “groundwork” laid by ICAO in the members’ endorsement of continuing fuel efficiency improvements, and agreement that additional goals like carbon-neutral growth in the medium term need to be considered. ATA President James C. May urged ICAO to fully endorse a global sectoral approach to aviation and climate change over the next year.

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Safety Bill Faces Rough Flight in Senate. --- Jerry Zremski, The Buffalo News, October 16, 2009

The aviation safety bill recently passed in the House is likely to face tough challenges for passage in the Senate due to growing industry opposition, the intrusion of extraneous issues that could delay or doom the safety measures, and a tight Senate schedule. The major airlines are particularly opposed to the provision that would boost the number of flight hours for newly hired pilots from the current 250 to 1,500, citing that experience is not equated with total flight time or level of technical certification. The pilots and their union, however, back the training requirement. The bill also faces a procedural challenge in that it must be merged with the Federal Aviation Administration reauthorization bill pending in the Senate Finance Committee, which has been wrapped up for months with healthcare reform legislation.

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FAA Opposes Plan for Composting at Palo AltoAirport. --- Will Oremus, Silicon Valley Mercury News, October 16, 2009

A citizen task force on compost and aviators are opposed on the issue of building a new compost facility at Palo Alto, California airport. The task force presented a plan to the city council to build a new, high-tech composting facility on four undeveloped acres owned by the airport, but airport backers were incensed they had not been consulted, and some saw the project as a nonstarter. They sent a letter to the city council outlining their opposition and noting that the airport has long sought to use the undeveloped land, but been unallowed to by the council, and raising safety issues about the composting operation.

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FAA Drops Objections to New Jersey Wetland Restoration. --- Associated Press, October 16, 2009

The Federal Aviation Administration dropped its objections to the restoration of wetlands on a 250-acre site near Teterboro Airport in New Jersey. The agency had feared that the project would lead to planes hitting more migratory birds, but now says in an Oct. 5 letter that it will work out a plan to keep birds from the area out of the path of air traffic at the airport.

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FAA Scuttles Wind Turbines at CapeBase. --- Associated Press, October 16, 2009

Six days after approving wind turbines at the Massachusetts Military Reservation on Cape Cod, the Federal Aviation Administration said some could not be built because they would pose a hazard to air navigation. The National Guard filed applications for as many as 17 wind turbines and the FAA originally approved of eight of them, but now just three remain.

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FAA Seeks Certain Safety Work on Boeing Jets. --- Reuters, October 16, 2009

The Federal Aviation Administration is asking airlines to replace fuel pump parts on nearly 700 Boeing 757s and inspect more than 780 newer model 737s for tiny fuselage scratches. Boeing Co. said it recommended that both steps be taken as part of ongoing safety programs for the fleet, and as part of joint safety efforts by Boeing, the FAA, and airlines that include reducing chances that electrical shorts could ignite fuel vapors.

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Audit Forcing Airport to Justify Land Usage. --- D.R. Stewart, Tulsa World, October 17, 2009

A Department of Transportation Office of the Inspector General audit is requiring Tulsa International Airport (Oklahoma) and many other commercial airports to show justification for the use of thousands of acres of property acquired under a federal aircraft noise mitigation program. The 2005 audit found that 11 airports surveyed were holding 3,800 acres of land worth approximately $235 million that were no longer needed for noise compatibility or airport development, and the Federal Aviation Administration is now directing airports that have acquired noise-sensitive properties with FAA grants to inventory the properties, describe their uses or proposed uses, and justify the rationale for keeping or selling them back to the private sector.

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FAA Expands American Airlines Repair Probe. --- Associated Press, October 17, 2009

The Wall Street Journal reports that the Federal Aviation Administration may be expanding its investigation into suspected structural problems found in American Airlines’ McDonnell Douglas MD-80 series jets. An American Airlines spokesman told the newspaper that the carrier has responded to the agency’s formal letter of investigation, and the carrier is also slowly replacing the MD-80s with new, more fuel-efficient planes. Preliminary FAA findings show that as many as 16 jets were operated for months despite substandard repairs.

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Two Passengers Sue United Airlines Over A320 Runway Skid in Chicago Caused by Crossed Wiring. --- Tim Klass, Associated Press, October 20, 2009

Two passengers on a United Airlines A320 that skidded off a runway in Chicago in October 2007 are suing the airline and the manufacturer for damages for pain, suffering, lost pay, medical expenses, and other losses. United has confirmed that a previous United A320 that skidded into snow at Jackson Hole Airport in Wyoming in February 2008, as well as the plane in Chicago and a third not involved in any mishap, had crossed wiring in the main landing gear, which could cause the wheels to lock on both planes that went off the runways. The Federal Aviation Administration has not yet determined the outcome of its investigation into the Chicago skid, however, in August 2008 the agency proposed an $18,000 penalty against United for two maintenance violations that preceded the Jackson Hole skid.

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Airport Expansion Hitting Critical Juncture. --- Keith Benman, In Business, October 21, 2009

Gary/Chicago International Airport (Illinois) must accomplish several tasks in the coming months to remain on schedule for spending approximately $6 million per year in Federal Aviation Administration funding. Land acquisition and other projects have kept the airport on schedule for spending the money, Illinois Representative Ed Soliday says getting positive revenue into the airport is also important. State officials have also been pushing for the privatization of Gary airport, hoping that privatization could help bring airlines to the airport. The airport faces problems in moving railroad tracks, which interfere with a planned runway expansion, in seeking the condemnation of 103 acres of land owned by Gary Community School Corp., which it needs to satisfy federal requirements that any sensitive habitats destroyed by the expansion be replaced, and in fully exploring environmental contamination.

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A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post.

FAA Bill Could Pass This Year. --- Adrian Schofield, Aviation Week, October 7, 2009

A staff member from the Senate aviation subcommittee believes that the Federal Aviation Administration reauthorization bill can be finished this year, though the Senate must have its bill approved by November to leave enough time for a House/Senate conference on the bill. The Commerce Committee has approved the bulk of the bill, but the Finance Committee has yet to contribute its proposals on tax changes, despite “tremendous pressure” from both lobbyists and Senate leadership to complete its work. There are some big differences to be resolved between the House and Senate bills, but none involve FAA funding and the houses are “basically aligned” on the aviation measures.

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DOT Issues Lithium Battery Safety Advisory to Increase Aviation Industry Awareness. --- Department of Transportation, October 7, 2009

 

The Department of Transportation issued a safety advisory targeting shippers and carriers responsible for compliance with hazardous materials regulations covering both passenger and cargo aircraft. The advisory highlighted recent aviation incidents involving lithium batteries and outlined the current regulatory requirements for their safe transportation. It also included an announcement that both the Pipeline and Hazardous Materials Safety Administration and Federal Aviation Administration would be stepping up enforcement of safety standards. Since 1991 more than 40 air transport-related incidents involving lithium batteries and devices powered by lithium batteries have been identified, many directly related to the lack of awareness of the regulations, risks, and required safety measures applicable to the shipment of lithium batteries.

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Controllers: FAA’s Computers Prone to Problems. --- Joan Lowy, Associated Press, October 7, 2009

 

The Federal Aviation Administration’s new computer system was unsuccessfully deployed at a Salt Lake City regional air traffic control center, raising doubts about whether it can be operational 15 months from now when the current computers must be replaced. The new ERAM (En Route Automation Modernization) system is based on satellite technology, whereas the current HOST system uses World War II-era radar technology and is a unique computer language that fewer technicians today can understand. In Salt Lake City the new system misidentified planes several times and managers in SaltLake refused to deploy it again, choosing to safely transition back to the HOST system instead.

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Report Warns Airline Delays Will Increase. --- Bruce Siceloff, Charlotte Observer, October 8, 2009

In a newly released report, the Brookings Institution warns that there will be more delayed flights and longer delays as the U.S. economy recovers and airports get busier in the coming months. The report suggested that federal airport spending would be more beneficial for travelers if it were focused on increasing capacity at the most congested metropolitan airports instead of being scattered across the U.S., and that the Obama administration’s planned high-speed rail network could cut heavy traffic on air corridors of less than 500 miles, which account for half of the nation’s flights.

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FAA Announces Serious Runway Incursions Down by 50 Percent. --- FAA Press Release, October 8, 2009

Federal Aviation Administration Administrator Randy Babbitt announced that serious runway incursions were down 50 percent for the most recent 12-month period, compared to the previous year. There were only 12 serious incursions in fiscal year 2009 with only 2 involving commercial carriers, while there were 25 such events in fiscal year 2008 with 9 involving commercial carriers. Administrator Babbitt praised the progress made since the FAA’s Runway Safety “Call to Action” meeting two years ago, but stated that there is still much work to be done to continue reducing the potential risk of collisions on runways.

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FAA Fears Wetlands Work Near NJ Airport. --- Associated Press, October 9, 2009

 

Federal Aviation Administration officials fear that a wildlife restoration project in the Richard P. Kane Natural Area could create a threat to public safety at nearby TeterboroAirport in New Jersey. TeterboroAirport averaged five bird strikes per 10,000 landings and departures last year, more than double the rate at Newark Liberty International and LaGuardiaAirports, but an airport wildlife biologist for the U.S. Agriculture Department says a busy airport and abundant bird population can coexist if properly managed.

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Getting Air Traffic Under Control. --- Bryan Walsh, Time, October 10, 2009

 

Delays and inefficiencies in air travel are largely due to an outdated traffic-control system that relies on slow, ground-based radar stations and repetitive communication, and the inefficiencies also mean fuel is wasted and unnecessary carbon dioxide emitted at a time when the air-travel industry is coming under scrutiny for its role in climate change. The air-travel industry will be under increasing pressure to cut its emissions or pay a carbon tax, and while the best immediate opportunity may be to improve fuel efficiency, the best way to increase fuel efficiency is to update the current air-traffic control system using NextGen, the Federal Aviation Administration’s long-term plan to replace the current system with one using satellites and a global positioning system.

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Airlines Set Own Emission Targets...but is fuel efficiency enough? --- Associated Press, October 10, 2009 and Steven Taber, Aviation & Airport Development Law, September 24, 2009

Members of the International Air Transport Association pledged to improve fuel efficiency by 1.5 percent a year until 2020 and called on governments worldwide to provide incentives to speed biofuel development.

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In the short run, however, technological innovations like those that would reduce emissions will not be available for implementation in the near future.

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It Is Official! The FAA Rescinds Slot Auction Rule. --- Steven Taber, Aviation & Airport Development Law, October 10, 2009

 

The Federal Aviation Administration officially rescinded its plan to enact mandatory slot auctions on LaGuardia, John F. Kennedy, and Newark airports. In 2008 final rules were published that established procedures to address congestion in the New York City area by assigning slots at the airports, assigning the majority of slots to existing operators, and creating a market by annually auctioning off a limited number of slots in each of the first five years of the rule. The rules were the subject of much litigation and controversy ever since they were first proposed by the Bush Administration, but have now been rescinded partly because of the Omnibus Appropriations Act, and the state of the economy in general.

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Fly-By-Night Story on Airport Funds Goes Off Course. --- Chuck Sweeny, Rockford Register Star, October 10, 2009

 

A Wall Street Journal story criticizing ChicagoRockfordInternationalAirport and other airports for receiving Federal Aviation Administration grants for low-priority projects is being slammed itself. Rockford International Airport Authority Chairman Mike Dunn retorts that Rockford International is a world-class facility that helps relieve congestion at O’Hare International Airport, and is one of just three airports in Illinois authorized to land flights from foreign countries. It is the port of re-entry for thousands of U.S. military personnel en route from the Iraq and Afghanistan wars to their home bases in the U.S., and will likely see the number of passengers it serves grow as the economy improves. Freight and passenger service improvements at the airport have helped generate economic development and will prepare Rockford International for its future role as a “vital part” of the Chicagoland aviation system.

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Report Says Philadelphia Air Traffic Exceeds U.S. Average. --- Linda Lloyd, The Philadelphia Inquirer, October 9, 2009

 

Passenger traffic at Philadelphia International Airport grew 45 percent in the last decade, nearly three times the national average for the 100 largest U.S. metropolitan areas, but 73.4 percent of flights arrived on time during fiscal year 2009, below the national average of 78.4 percent. The combined Philadelphia-New York airspace contributes to 75 percent of delays nationally and affects business travelers everywhere.

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Non-Radar Air-Traffic System Debuts. --- Alan Levin, USA Today, October 12, 2009

 

A new system monitoring air traffic above the Rockies was recently implemented in Colorado. Using 20 sensors clustered around four airports within the Rockies, the sensors monitor radio broadcasts from planes and computers can determine the plane’s location by measuring minute differences in the time it takes for broadcasts to reach the various sensors. The system uses similar technology to the satellite-based system the Federal Aviation Administration is installing nationwide to replace radar, and is a sign that the technology underpinning the satellite system can work.

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Key House Members Work Against User Fees. --- Kerry Lynch and Adrian Schofield, Aviation Week, October 12, 2009

 

House aviation subcommittee chairman Jerry Costello and Thomas Petri have begun a lobbying effort against potential aviation user fee proposals for the fiscal year 2011 budget. In a letter being circulated within the House, Costello and Petri state that they believe user fees will place an undue administrative burden and associated costs on system users and cited previous House opposition in both the 110th and 111th Congresses to proposals of using user fees to finance the Federal Aviation Administration.

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ATM Providers Welcome ICAO Declaration, WantStates to Take More Action

 

The Civil Air Navigation Services Organization commended the achievements of the International Civil Aviation Organization’s High Level Meeting on International Aviation but expressed disappointment that no actions were recommended for member states to undertake themselves to assist the aviation industry in meeting its environmental goals. CANSO Secretary General Alexander ter Kuile identified four steps that ICAO nations could immediately take to deliver an extra 0.5% of fuel efficiency improvement, on top of ICAO’s recommended target of 1.5% improvement through 2020 with carbon-neutral growth thereafter.

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San Francisco Airport, Chevron, and EPA Agree to $1 million in Environmental Improvements at InternationalAirport.

SFO Fuel, Chevron, and the Environmental Protection Agency entered into agreements to resolve violations of the Clean Water Act at a large jet fuel storage facility located at San FranciscoInternationalAirport. SFO Fuel representatives self-reported inadequate secondary containment capacity--which could result in a catastrophic spill into San FranciscoBay--and the EPA investigated and agreed. SFO Fuel, which leases the facility, and Chevron, which operates the facility, have adjusted their operations at the tank farm with alarms and automatic shut-off valves to reduce the volume that is present in the tanks until the facility is able to increase the size of the secondary containment area. The agreements require the facility to come into full compliance by next year, and SFO Fuel and Chevron agreed to pay a penalty of $177,500.

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FAA Proposes $3.8 Million Penalty Against United Airlines. --- FAA Press Release, October 14, 2009

 

The Federal Aviation Administration is proposing a $3.8 million penalty against United Airlines for allegedly operating one of its Boeing 737 aircraft on more than 200 flights after the carrier violated its own maintenance procedures on one of the plane’s engines. Between February 10 and April 28, 2008 the aircraft was flown on more than 200 revenue flights in a less-than-airworthy condition.

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FAA Proposes $5.6 Million Civil Penalty for US Airways, Inc. --- FAA Press Release, October 14, 2009 andUS Airways Responds. --- US Airways Press Release, October 14, 2009

 

The Federal Aviation Administration proposed a $5.4 million penalty against US Airways, Inc. for allegedly operating 8 aircraft on a total of 1,647 flights between October 2008 and January 2009 that were not in compliance with certain Airworthiness Directives or the airline’s maintenance program.

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US Airways issued a statement that it experienced challenges during the integration of maintenance systems and processes on flights that occurred in that time period, and is working with the FAA to investigate and correct any discrepancies and achieve a resolution of the FAA’s civil penalty proposal.

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The Federal Aviation Administration has officially rescinded its controversial plan to enact mandatory slot auctions on LaGuardia, JFK, and Newark airports.  See 74 Fed. Reg. 52,132 (Oct. 9, 2009) (LaGuardia) and 74 Fed. Reg. 52,134 (Oct. 9, 2009) (JFK and Newark). 

Both the final rule "Congestion Management Rule for LaGuardia Airport" and "Congestion Management Rule for John F. Kennedy International Airport and Newark liberty International Airport" were published in the Federal Register on October 10, 2008 (73 Fed.Reg. 60544 and 60574).  These final rules established procedures to address congestion in the New York City area by assigning slots at the airports, assigning to existing operators the majority of slots at the airports, and creating a market by annually auctioning off a limited number of slots in each of the first five years of the rule.

The rules have been the subject of litigation and much controversy ever since the Bush Administration first proposed them.  The D.C. Circuit ruled last year that the slot auctions could not take place pending the outcome of the litigation.  They have also been the subject of two Law Review articles:  Benjamin D. Williams's Comment, Playing the Slots: The FAA Gambles with Its Controversial Congestion Management Plan for New York's Busiest Airports, 74 J. Air L. & Com. 437 (2009), offers a detailed discussion of the law and policy implications of the FAA's proposed slot auction rule; and Professor Michael Levine's article Airport Congestion: When Theory Meets Reality, 26 Yale J. on Reg. 37 (2009) which presents an improved proposal for slot auctions--one which accounts for market realities and provides airlines holding slots to see the full opportunity costs of retaining (and possibly hoarding) their slots

Then the administration changed and on May 14, 2009, the FAA published a notice proposing to rescind the 2008 final rules citing the impact of the Omnibus Appropriations Act on the rules and the state of the economy in general.  And for those reasons, the FAA states that it "has decided to rescind the 2008 final rule effective immediately."

 Other blog posts on this topic:  

FAA Issues Notice of Order to Show Cause Regarding Extension of Limitation of Arrivals at JFK and Newark Airports The FAA, on June 5, 2009, issued two Notices of Order to Show Cause requesting "the views of interested persons on the FAA's tentative determination to extend through October 30, 2010, the January 15, 2008, order limiting the number of...

 

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A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post.

General Aviation Supporters Cite Benefits of Funding Small Airports. --- D.R. Stewart, Tulsa World, September 30, 2009
Critics of general aviation airports believe that the airports receive too much federal funding that should instead go to 400 infrastructure-constrained commercial airports. In response, supporters contend that the general aviation airports are indispensable because they relieve aircraft traffic at commercial airports, provide an economic lifeline for small communities, and serve as training and medical evacuation centers. Through the 28-year-old Airport Improvement Program Congress has appropriated $15 billion to 2,834 general aviation airports, with the majority of the funding being paid by U.S. airline passengers through a tax on each ticket and a fee for each flight.
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NTSB Recommends Several Revisions on Bird Strike, Operations Regulations. --- The Aero-News Network, September 30, 2009
The National Transportation Safety Board has issued a list of recommendations for changes in Federal Aviation Regulations that should enhance bird strike prevention, as well as safety, for charter operators. The recommendations include revisions to existing regulations, as well as more stringent requirements. The NTSB has also called on the Federal Aviation Administration to assess why its current policies, procedures, and practices have resulted in a failure to detect certain noncompliant operations, and to develop additional methods, measures, or procedures for performing inspections on or following up on complaints about noncompliant charter operations.
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Cockpit Chatter Cited in Six Cases. --- Alan Levin, USA Today, October 1, 2009
Federal law prohibits airline pilots from chatting or joking during critical phases of flight, but the National Transportation Safety Board has cited six violations of the “sterile cockpit rule” in six crashes since 2004. Additionally, more than half of the cockpit recording transcripts released in serious accidents in the last decade contain evidence of violations. While safety advocates and even the Federal Aviation Administration Administrator Randy Babbitt acknowledge that pilots need to improve their discipline and too many of the slips are occurring, Professor Edwin Hutchins of the University of California, San Diego cautions that most violations are minor and research has not shown that they are a threat to safety.
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Angry Residents Confront Port of Seattle and FAA Officials About Airport Noise. --- Ralph Nicols, The B-Town Blog, October 1, 2009
During a two-hour community meeting in Burien, Washington, hundreds of angry residents complained about the additional noise generated by commercial jets using Sea-Tac International Airport’s third runway. The citizens said that the Port of Seattle lied to the public about the use of the third runway, and there was even a suggestion that the runway should be shut down, to save the Port millions of dollars in future lawsuits over noise and noise mitigation. Stan Shepard, manager of Sea-Tac noise programs, replied that the Port would not consider shutting down the runway, and another problem exists in that though the runway was planned and built by the Port of Seattle, which operates the airport, it is the Federal Aviation Administration that directs air traffic, including which runways will be used for each landing and take-off. FAA representatives were also present at the meeting, but gave no indication that the residents’ concerns would have an impact on the FAA’s use of the third runway. Use of the third runway may be reduced in future, however, as the complete rebuilding of the longest runway, which is closest to the terminal, is now complete.
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Air Safety Initiatives Run Into Opposition. --- Sholnn Freeman, The Washington Post, October 1, 2009
A number of air safety proposals have been filed in Congress this year following the February 12, 2009 crash of Continental Connection Flight 3407 outside of Buffalo, New York. The National Transportation Safety Board revealed several aviation safety issues in preliminary hearings and reports, and lawmakers demanded action in response. U.S. aviation colleges have emerged as major opponents to some provisions of the proposed House legislation, fighting the provision that would require all airline pilots to obtain airline transport pilot certificates from the Federal Aviation Administration which would substantially boost the flight time of entry-level pilots and likely force the aviation college graduates to spend an additional year or more acquiring the required hours. In the Senate key lawmakers have been more concerned with grappling with healthcare reform, forcing aviation safety legislation into the back seat.
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Coalition of Aviation Industry says FAA Reauthorization “Critically Overdue.” --- September 25, 2009
In a letter to members of the U.S. Senate, a coalition of aviation industry groups stressed the importance of passing a multi-year reauthorization of the Federal Aviation Administration. The group stated that the reauthorization would provide “desperately needed” funding for airport and airway system improvements, and the extensions that have been passed in the last two years are hampering the necessary investments for national airspace infrastructure. The groups urged both legislative chambers to advance the bill and complete the reauthorization process.
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FAA to Overhaul Process of Tracking Whistle-Blower Reports. --- Sholn Freeman, The Washington Post, September 17, 2009
The Federal Aviation Administration plans to overhaul the way it processes whistle-blower reports, saying that it will create an Office of Audit and Evaluation to accept, track, and coordinate action on such reports. Congressional and Department of Transportation probes into safety lapses by American Airlines and Southwest Airlines found that some of the lapses had been brought to light by FAA whistle-blowers, and both Congress and the DOT slammed the FAA for mishandling safety complaints.
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FAA Administrator Babbitt: Major Carriers Reinforce Commitment to Safety. --- Statement by FAA Administrator Randy Babbitt, FAA Press Release, October 2, 2009
In a public statement, Federal Aviation Administration Administrator Randy Babbitt released a list of respondents and non-respondents to the FAA’s Call to Action, which asked air carriers for written commitments to implement “best practices” and adhere to high professional standards. Administrator Babbitt noted that most of the U.S. air carriers had responded and several who did not are already using the key safety programs the FAA had asked for, while some others may have been too small to have certain programs in place. He reiterated the FAA’s goal to ensure all carriers are operating at the highest levels of safety, and released the list of operator and labor organization non-respondents to show them that the American public, and not just the FAA, would “ultimately judge” their reluctance to adopt proven safety practices.
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More Gary Airport Hurdles Crop Up. --- FlyInsider, October 2, 2009
Gary/Chicago International Airport continues to face hurdles in its expansion plans, with the latest being a scrap yard that will have to make way for a railroad relocation. The airport’s plan to move railroad tracks that sit at the end of the airport’s main runway means the tracks will have to run through the property of a scrap company, and the airport would have to pay for some or all of the scrap yard’s land, and possibly the moving of the business as well. The airport authority is also facing opposition from the Gary Community School Corporation, after the corporation rebuffed an offer from the authority to buy 40 acres of the school corporation’s land that are needed for the expansion.
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New York Flight Caps Extended for LaGuardia, Kennedy, Newark. --- John Hughes, Bloomberg.com, October 5, 2009
The Federal Aviation Administration extended hourly flight limits at LaGuardia, Kennedy, and Newark Liberty airports by two years, to October 29, 2011, to hold down flight delays. The FAA will consequently have more time to craft long-term solutions for holdups at the airports. Newark, LaGuardia, and Kennedy lead the are the three worst airports in the nation, respectively, in delays.
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Airports Get Aid for Device to See Debris. --- Matthew Wald, The New York Times, October 5, 2009
In an advisory circular published September 30, 2009, the Federal Aviation Administration is allowing airports to apply for grants to buy systems that will spot dangerous debris on runways. The systems must meet certain specifications, but can use cameras or radars, and can be fixed or mobile. The first systems should hopefully be in place next year.
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United Airlines Chief Calls For More Investment in Developing the Alternative Jet Fuels Market. --- GreenAirOnline.com, October 5, 2009
Glenn Tilton, Chairman of United Airlines and the Air Transport Association of America, called on the government, investors, and producers to develop aviation biofuels, because airlines need alternative jet fuels to help limit price volatility, increase security of supply, and reduce environmental impact. He said that the airline industry is actively seeking funding for the development but needs the government’s commitment, and that the government should focus on investing in alternative fuels that would decrease emissions, instead of “punitive” economic measures addressing climate change. He cited the airlines’ initiative in putting in “intellectual capital and resources,” but stressed the need for leadership from the government to make the investment attractive.
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FAA Requires New Forecast Numbers Before Agreeing to Runway Extension at T.F. Green Airport. --- John Howell, Warwick Beacon, October 6, 2009
The Federal Aviation Administration is requiring Rhode Island’s T.F. Green Airport to update air traffic forecasts, which would push back the completion of the draft environmental impact statement. A revised study is needed because the FAA believes traffic forecasts should be lower, which would affect the determination of future noise contours. FAA spokesman James Peters said the new analysis will not change the purpose and need of the proposed improvements at T.F. Green, but the administration has found at least 10 major issues with the airport plan. 
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Aspen Runway Extension Pitched as Economic Boost. --- Scott Condon, The Aspen Times, October 7, 2009
Pitkin County, Colorado officials believe that the county’s plan to extend Aspen’s Sardy Field airport’s runway will pump millions of dollars into the economy each year by filling more seats on existing flights, though the extension will not attract larger aircraft. The county is working on a proposal to the Federal Aviation Administration to lengthen the runway by 1,000 feet and is seeking an FAA grant for the $15 million project. The runway would have the same weight limits that exist now, but the extension would allow more efficient use of existing flights, easing challenges presented by weight restrictions. Based on studies conducted, consultant Ryk Dunkelberg says that the demand on flights that could be met by the extended runway would add between $20 to $40 million annually to the Aspen-Snowmass economy without increasing the need for tourist accommodations and services.
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FAA Stimulus Recipients Got Low Priority Ratings. --- Christopher Conkey, The Wall Street Journal, October 7, 2009
The Federal Aviation Administration has directed approximately 25% of the stimulus funds provided to the agency for airport work, over $270 million, to projects that were low-scoring on the agency’s national priority rating system, which it uses to grade potential projects. The FAA typically steers grants to projects scoring above 41 on the 1 to 100 scale, though it raised the threshold to 62 for the stimulus grants. The FAA has awarded $272 million to projects below the 62 threshold, however, and an FAA spokeswoman has said the ratings are not the only criteria the agency uses in awarding grants, and  winning projects with ratings below 62 were justified on other grounds, like safety and security. 
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A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post.

• O’Hare Airport hit for safety violations in FAA report. During routine inspections at O’Hare International Airport in Chicago, IL, the Federal Aviation Administration uncovered several violations that endanger airplanes at the most critical phases of flight: takeoffs and landings. In a “letter of correction” to Chicago, the FAA said that O’Hare is out of compliance with federal aviation law and that the airport’s self-inspection program does not reflect actual conditions in the field. The problems noted at O’Hare, considered major violations, have almost all been corrected already and a spokesman for the Chicago Department of Aviation said the rest will be resolved by the end of November. 9/24/09, Jon Hilkevitch, Chicago Tribune, http://bit.ly/xbMHb
• House votes short-term extension for FAA programs. The House has voted to extend existing air transportation programs through the end of the year, the seventh time in two years that it has had to take temporary measures to prevent certain Federal Aviation Administration programs from shutting down. The Senate is expected to follow with a similar bill as it has struggled to get an FAA bill to the floor this year, due to policy differences and a preoccupation in the Senate with the health care issue. 9/24/09, Jim Abrams, Associated Press, http://bit.ly/L1Wg8
• FAA clears India’s safety measures. The Federal Aviation Administration’s International Aviation Safety Assessment team recently revisited India to confirm and validate action taken on earlier concerns raised by an audit in March 2009. The IASA team found India fully compliant with international safety standards as it had taken steps to meet the concerns from the March audit, and reported that it could continue to be maintained in Category-I, which means Indian airlines can expand operations in the U.S. and get new points of call and share codes. 9/24/09, Business Standard, http://bit.ly/hauyN
• AAAE panel mulls lack of long-term FAA reauthorization bill. At the American Association of Airport Executives’ National Airports Conference a panel of industry experts predicted that Congress’ likelihood of passing a long-term Federal Aviation Administration reauthorization bill is slim at present. The passage of a three- to six-month extension of FAA’s authority and funding is only a short-term response to the September 30, 2009 end of the federal fiscal year, and Kate Lang, the FAA’s associate administrator for airports, pointed out that short-term extensions make it difficult for airports to do multi-year projects and a more stable program is needed. 9/23/09, Aviation News, http://bit.ly/17xURv
• Former American Chairman and CEO boosts passenger rights proposals. Former American Chairman and CEO Robert Crandall has joined the call for a federally imposed time limit that would give passengers the option to get off a plane that has been stuck on the tarmac for hours, with a four-hour limit initially that would transition to a three-hour limit on January 1, 2011, to give carriers time to adjust their operations. A passenger rights proposal may be closer to passage now more than ever, with organizations like the Business Travel Coalition and the National Business Travel Association giving their support for the passage of such a bill. Senators Barbara Boxer and Olympia Snowe sponsored passenger rights legislation that is currently in the Senate Commerce Committee’s version of the Federal Aviation Administration reauthorization bill, which has yet to be passed. 9/23/09, Andrew Compart, Aviation Daily, http://bit.ly/8Zoor
• Daley downplays FAA violations at O’Hare. Mayor Richard Daley downplayed Federal Aviation Administration violations recently found at O’Hare International Airport as “not very significant,” declaring that none of the violations deal with the safety of people landing or taking off. He also said that he continues to have confidence in Aviation Commissioner Rosemarie Andolino, and that the city is reviewing and dealing with all of the violations. 9/24/09, Dan Blake, Chicago Tribune, http://bit.ly/P1HlV
• Senate passes three-month FAA extension. The Senate passed H.R. 3607, a bill that extends FAA programs and excise taxes through December 31, 2009, and awaits President Obama’s signing the measure into law before the current extension expires at the end of the month. 9/24/09, Aviation News, http://bit.ly/VI87A
• EIS for the CA high-speed train project from Los Angeles to San Diego via the Inland Empire. The FRA and California High-Speed Rail Authority will jointly prepare a project Environmental Impact Statement and Environmental Impact Report for the Los Angeles to San Diego section of the California High-Speed Train System. The preparation of the EIR/EIS will involve developing preliminary engineering designs and assessing potential environmental effects associated with the construction, operation, and maintenance of the High-Speed Train system. Written comments on the scope of the EIR/EIS should be provided to the appropriate authorities by November 20, 2009, or at any of the public scoping meetings scheduled for various cities from October 13, 2009, to November 3, 2009. 9/24/09, TradingMarkets.com, http://bit.ly/2x1bwb
• FAA Associate Administrator of Aviation Safety Peggy Gilligan’s speech at the ABA Air & Space Forum. In a speech at the American Bar Association’s Air and Space Forum, the Federal Aviation Administration’s Associate Administrator of Aviation Safety Peggy Gilligan stated that safety is the “foundation for public confidence” in aviation. She called for cooperation on safety to ensure the long-term global success of aviation and applauded international cooperation for making great strides over the past 60 years. Ms. Gilligan closed her speech acknowledging that the three-pronged approach in global regulation of aviation that includes holding each other to standards, providing assistance when needed, and proactively identifying and addressing risk, enhances safe air transportation around the world. 9/23/09, Peggy Gilligan, http://bit.ly/ijlZJ
• AEA joins NATA in opposing foreign repair station language in FAA reauthorization bill. The Aircraft Electronics Association and National Air Transport Association are contacting members of Congress in opposition to foreign repair station provisions in both the House and Senate versions of the Federal Aviation Administration reauthorization bill. Each of the bills contains a provision that requires additional FAA oversight of foreign repair stations, and could eliminate a reciprocal audit provision of the U.S.-European Community Bilateral Aviation Safety Agreement, unnecessarily raising costs for E.U.-based repair stations. U.S. repair stations could also face high job loss if companies that hold a U.S.-based European Aviation Safety Agency Part 145 repair station certificate lose the reciprocal audit capabilities between the FAA and EASA. 9/28/09, National Air Transport Association, http://bit.ly/INtRv
• California state court rules that FAA Authorization Act preempts CA’s Unfair Competition Law. California Superior Court Judge Elizabeth White held that the Federal Aviation Administration Authorization Act preempted claims against motor carriers brought under California’s Unfair Competition Law and protected motor carriers from state regulations. The federal law, part of the FAA Authorization Act, prohibits states from enacting and enforcing laws that are related to motor carrier prices, routes, or services, and Judge White held that the attorney general’s case, based on the allegation that the defendants had improperly classified drivers as independent contractors rather than employees, would have a significant effect on motor carrier prices, routes, or services. 9/28/09, Truckinginfo.com News, http://bit.ly/3U9Gkg
• Carbon offset kiosks at SFO help air travelers ditch guilt. San Francisco International Airport has partnered with a private company to install self-serve kiosks where passengers can purchase carbon offsets for their flights. Carbon offsets for travel are unregulated, however, so it is unsure if patrons are getting what they pay for as the idea is rather abstract. Travelers input the number of miles their trip will cover, how long it will take, and the number of passengers they plan to buy offsets for, and receive a piece of paper representing a fact that their money went toward a carbon-offset project somewhere or that an emission did not occur somewhere else. Though more certainty about an offset is preferred, Professor Michael Wara of Stanford University believes the program is “better than nothing” and the airport hopes that the kiosks raise awareness about the environmental impact of flying. 9/29/09, Rori Gallagher, National Public Radio, http://bit.ly/1j6nyE

 

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I.        Introduction

In the grand scheme of things, aviation may not represent a huge source of concern with respect to climate change. But neither should the aviation industry (airports included) ignore the fact that aviation does contribute to climate change not only through the emission of carbon dioxide (CO2) but also through the emission of nitrogen oxides (NOx), aerosols and their precursors (soot and sulfate), and increased cloudiness in the form of persistent linear contrails and induced-cirrus cloudiness. The intent of this series of articles is to examine the effect aviation has on climate change, outline the regulatory and legal framework that is developing, and to suggest avenues for the aviation industry to pursue in the future.  The first challenge is to clear up some misconceptions about aviation and climate change so that we can move forward with accurate and up-to-date information.

II.      Some Facts About Aviation and Climate Change

In Aviation and Climate Change: the Views of Aviation Industry Stakeholders, the aviation industry makes several claims regarding the impact aviation has on climate change. First, the industry claims that “over the past four decades, we have improved aircraft fuel efficiency by over 70 percent, resulting in tremendous savings.” As a result, the industry continues, “given the significance of fuel costs to the economic viability of our industry, our economic and environmental goals converge.” Second, the industry claims that “because of our aggressive pursuit of greater fuel efficiency, greenhouse gas (GHG) emissions from aviation constitute only a very small part of total U.S. GHGs, less than 3 percent.” However, in order to assist the industry in its obligation “to further limit aviation’s greenhouse gas footprint even as aviation grows to meet rising demand for transportation around the world,” those claims of progress need to come under a microscope.

        A.            Contribution of Aviation to Climate Change Remains Subject to Debate

First, how much aviation contributes to climate change is still up to debate. Several governmental and aviation industry organizations have been reporting a “less than 3%” number for quite some time while environmental groups, particularly in Europe, claim that the percentage is anywhere from 5 to 9%. In examining the claims and counterclaims concerning emissions of GHG, one has to be very careful about the language and the metrics used in determining the “impact” any given industry will have on “climate change.” Many reports and studies focus only on CO2, since the amount of CO2 produced both naturally and by humans is overwhelming. However, as just about everyone knows by now, there are other gases and anthropogenic actions that exacerbate climate change. For example, the U.S. EPA recently proposed regulations that would require major emitters of six “greenhouse gases” to report their emissions to the EPA on an annual basis. Those six greenhouse gases are: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), sulfur hexafluoride (SF6), hydrofluorocarbons (HFCs), perfluorochemicals (PFCs), and other fluorinated 20 gases (e.g., nitrogen trifluoride and hydrofluorinated ethers (HFEs)). It also should be kept in mind when discussing climate change, especially with respect to aviation, that water vapor is estimate contribute anywhere from 36% to 72% of the greenhouse effect. This is important because the radiative forcing effect of cirrus cloud formation from the aircraft is a significant contributor to the greenhouse effect. As pointed out above, it is generally accepted that for aviation the GHGs of concern are CO2, nitrogen oxides (NOx), aerosols and their precursors (soot and sulfate), and increased cloudiness in the form of persistent linear contrails and induced-cirrus cloudiness.

 

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A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post.

• Honeywell gets FAA okay on runway safety systems.The Federal Aviation Administration has greenlighted Honeywell International Inc.’s SmartRunway and SmartLanding, designed to prevent runway accidents at crowded airports. The systems reinforce standard operating procedures and add “situational awareness” at crowded airports by alerting pilots about runway and taxi locations, unstable approaches and long landings, and when an aircraft is landing too far down the runway to stop safely.  9/16/09, Phoenix Business Journal, http://bit.ly/C3w3B
• Regulatory abuse by airlines threatens aviation safety. Aircraft Engineers International cites that the largest single cause of the downward trend in aviation safety is the increase in the number of regulatory breaches by airlines that remain uncorrected. Engineers from all over the world will meet in Varna, Bulgaria, from September 23-26, 2009 for the Aircraft Engineers International’s 37th Annual Congress, where they will take a closer look at issues including airlines’ deliberate abuse of aviation regulations to reduce costs, and airworthiness authorities’ adopting a more “hands on” approach to regulation. 9/16/09, Aircraft Engineers International, http://bit.ly/1WQ0gm
• Feds keep little-used airports in business. Congress has directed $15 billion from an obscure federal program that raises billions of dollars a year through taxes on every airplane ticket sold in the United States to general-aviation airports. General-aviation airports have no scheduled passenger flights and operate separately from the commercial airports that handle almost all passenger flights, and comprise the world’s most expansive and expensive network of airports. Critics contend that the number of subsidized airports with no commercial flights is excessive at a time when larger airports are struggling with delays in air traffic, and that only a few private pilots are benefited. Local residents have also complained about the noise and pollution generated by the little-used airports. 9/17/09, Thomas Frank, USA Today, http://bit.ly/5icdM
• FAA announces new efforts to respond to safety concerns. Federal Aviation Administrator Randy Babbitt announced that the FAA has a new focus on improving the agency’s response to public safety complaints and whistleblower contributions, as well as renewing efforts to ensure consistent interpretation of agency regulations and policies. The FAA will also improve how it communicates and interacts with employees, the public, air carriers, and manufacturers. Administrator Babbitt stated that the FAA’s “number-one customer” is the public, and is implementing changes in communication and interpretation of safety information to maintain a safe U.S. fleet and avoid cancellations. 9/17/09, FAA Press Release, http://bit.ly/RaNXC
• FAA launches new accident prevention office. The Federal Aviation Administration’s Office of Aviation Safety launched a new Accident Investigation and Prevention Service that will integrate the work of the Offices of Accident Investigation and Safety Analytical Services. The new organization will consolidate resources and data from accident and incident investigations, historical accidents and incidents, and voluntarily submitted information from industry programs so the FAA can better understand current risks across the aviation community, and identify emerging vulnerabilities and trends. 9/17/09, FAA Press Release, http://bit.ly/Ifx2M
• DOT fines Spirit Airlines for violating bumping and other rules. The Department of Transportation has fined Spirit Airlines $375,000 for various rule violations, including bumping passengers from oversold flights without compensating them and failing to resolve baggage claims within a reasonable time. The DOT’s action is being lauded for clearly protecting airline consumers against unfair and deceptive practices, which is a stated part of the Department’s mission. 9/17/09, Official Blog of the U.S. Secretary of Transportation, http://bit.ly/1s4ru5
• Mountain Home Air Force Base wants more air space. Officials at Mountain Home Air Force Base in Idaho have asked the Federal Aviation Administration to expand the base’s air space deeper into Oregon and Nevada, saying that the expansion would double the effectiveness of the air space and training offered there and potentially making the base more attractive as a future training site for jets more modern and faster than the jets currently housed at the base. If approved, the expansion would increase the air space by nearly 30 percent from the more than 187 square miles the range complex currently covers. 9/17/09, The Associated Press, http://bit.ly/WkklS
• UAL names Jane Garvey to Board of Directors. United Airlines announced that Jane Garvey, former administrator of the Federal Aviation Administration and President Obama advisor, will be joining the company’s Board of Directors. She was the first woman appointed to the role of FAA administrator and served on the transition team for President Obama, which focused on transportation policies and related infrastructure challenges. She has also advised states on financing strategies to facilitate project delivery for state governments and served as acting administrator and deputy administrator for the Federal Highway Administration. 9/17/09, PRNewswire, http://bit.ly/Bcn5o
• FAA reauthorization bill pushed back in Senate. The Senate will not pass a Federal Aviation Administration reauthorization bill by September 30, the time the current bill will expire, and both the House and Senate will have to agree to an extension. The bill is being pushed back for an “inevitable fight” over a labor provision that FedEx adamantly opposes. Jay Rockefeller, chairman of the Senate Commerce Committee, wants final passage of the bill postponed but wants the bill considered sometime during this calendar year. 9/17/09, Bartholomew Sullivan, Memphis Commercial Appeal, http://bit.ly/Qn3sI
• FAA will stop calling airlines “customers.” In a response to complaints that the agency’s relationship with airlines was placing the industry’s economic interests above passenger safety, Federal Aviation Administrator Randy Babbitt has said that the FAA will stop calling airlines “customers.” Administrator Babbitt listed several short- and long-term actions, including making the agency’s engineers available around the clock to support safety inspectors assigned to airlines, to improve airline compliance. A spokesman for the Air Transport Association is optimistic, believing the steps will lead to more succinct instructions for incorporating safety directives and leave less chance for technical ambiguity over compliance. 9/17/09, Joan Lowy, http://bit.ly/21aGlT
• FAA OK’s first step of privatizing New Orleans airport. The Federal Aviation Administration has accepted a preliminary application to lease Louis Armstrong New Orleans International Airport, Louisiana’s largest commercial airport, to a private operator. Under a private operation program approved by Congress, an airport with a private manager could continue to receive FAA funds and grants and collect fees and charges, and the city could use lease proceeds for non-aviation purposes after money was set aside for airport debt service. Up to five public airports have been allowed to participate in the program, and Chicago’s Midway Airport is also considering a privatization plan. The program was started in 1997 to explore privatization as a way of generating private capital for airport projects.  9/17/09, The Associated Press, http://bit.ly/25Neo1
• IATA Director General asks Obama to make aviation policy a priority. International Air Transport Association Director General Giovanni Bisignani wants the Obama administration to renew its role as a leader in the global aviation industry and make aviation policy a priority. Director General Bisignani has presented several policy recommendations to help in the recovery of the U.S. aviation industry in the areas of safety, security, environment and commercial freedoms, which include putting the NextGen system on a “fast track” to reduce delays at airports and airport emissions. 9/18/09, San Francisco Foreign Policy Examiner, http://bit.ly/LpoGt
• Boston airport prepares nation’s first green runway. Boston’s Logan International Airport is nearly finished repaving the first runway in the nation with an environmentally friendly material called warm-mix asphalt. The asphalt is heated to a lower temperature than normal, and burns less fuel and emits less carbon. 9/19/09, The Associated Press, http://bit.ly/2XqAhb
• Will a bigger runway boost the local economy? Carroll County government officials argue that the new, $72 million runway at Carroll County Regional Airport “won’t hurt” in attracting new businesses. Primarily paid for by the Federal Aviation Administration, the new runway will be longer and will have wider separation between the taxiway and runway, making it safer to land there and potentially able to handle more corporate jets. A spokesman for the National Business Aviation Administration said having an airport that can handle corporate aircraft is attractive to companies thinking about where to locate some or all of their businesses, but opponents of the project remain skeptical about the economic benefits or oppose the new runway because of the cost. 9/20/09, Adam Bednar, Carroll County Times, http://bit.ly/y2dix
• Commentary from Federal Times: Charting a new path for the FAA. Dave Bowen, chief information officer for the Federal Aviation Administrator, states that the FAA’s NextGen initiative will enable digital communication, and digital weather modeling and other capabilities, while supporting a level of air traffic more safely, efficiently, and effectively than current levels. NextGen technology includes Wide Area Augmentation, which provides an additional degree of accuracy and reliability, and Traffic Information Service - Broadcast, which combine together into Automatic Dependent Surveillance-Broadcast. With ADS-B, an aircraft would broadcast its Global Positioning System position and receive the broadcasts of other similarly equipped aircraft. While the FAA is working with airlines to get them to put ADS-B equipment in their aircraft, the NextGen initiative as a whole is the “path to the future” for the FAA. 9/21/09, Dave Bowen, Federal Times, http://bit.ly/24CZjo
• FAA approves first U.S. ground based augmentation system. The Federal Aviation Administration has approved Honeywell’s Smartpath Precision Landing System, which would provide precise navigation service based on the global positioning system. The ground based augmentation system augments GPS by providing precision approach guidance to all qualifying runways at an airport by monitoring GPS signals to detect errors and improve accuracy by transmitting correction measures to aircraft. GBAS has been identified as an enabler for descent and approach operations to increase capacity at crowded airports and will be improved over the next few years. 9/21/09, FAA Press Release, http://bit.ly/10xNLl
• Senator Barbara Boxer says airline passenger bill of rights is coming. Senator Barbara Boxer says that passengers’ rights legislation is popular in Congress and likely to pass, even over airline industry objections. The senator’s bill would require airlines to provide food, water, and bathrooms to passengers stranded on flights and would force airlines to allow passengers off planes after three hours of sitting. The legislation is currently included in the Federal Aviation Administration reauthorization bill. Airlines have fought customer-service legislation for over ten years, but Senator Boxer has drawn support from former AMR Corp. and American Airlines chairman Robert Crandall, who believes new rules can be implemented without compromising safety. 9/22/09, Scott McCartney, http://bit.ly/cOau1

IATA goal of halving emissions by 2050 over 2005 levels. The International Air Transport Association stated its goal of cutting emissions in half by 2050 over 2005 levels, through a four-part approach of technology, operational improvements, infrastructure upgrades, and “economic measures.” The airlines plan to present plans by November 2010 to begin trading carbon credits on a global market as part of a global approach to the issue, and to improve carbon efficiency by 1.5% annually through 2020 and show carbon-neutral growth from 2020 onwards. The industry is on pace to improve carbon efficiency by 1.8% this year, but it is worth noting that with fuel being among the largest expenses at an airline, carriers have a clear and immediate incentive to pursue such gains. 9/22/09, Justin Bachman, BusinessWeek, http://bit.ly/17QP9U

 

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A summary review of Aviation and Airport Development related news and information that was made public during the past week. These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post.

• FAA promises to change Palm Springs, California takeoff route to appease residents. In an effort to ease Palm Springs residents’ concerns over the increased number of planes flying over their homes, Federal Aviation Administration officials are looking to change Palm Springs International Airport’s takeoff pattern by October 22, 2009. The route was newly changed in January of this year, but officials are hoping to switch to a “hybrid” pattern next month. 09/09/09, Marcel Honore, The Desert Sun, http://bit.ly/NBzzd
• Quick action on FAA bill unlikely. The American Association of Airport Executives is urging the Federal Aviation Administration to pass the FAA reauthorization bill before September 30, 2009, when the current FAA authorization extension will expire. The Senate Commerce Committee approved the bill in July, but it has yet to go to the Senate floor. AAAE notes that Congress has passed a series of short-term extensions since the last full authorization bill expired almost two years ago, but stresses that the short-term extensions and “uncertain funding levels” are disruptive for airport executives trying to plan construction projects. 09/09/09, Adrian Schofield and James Ott, Aviation Daily, http://bit.ly/1IELDI.
• Pilots and Airlines urge new fatigue rules. A unified group of representatives from the airline industry and pilot unions have agreed that an overhaul of the rules combating pilot fatigue is necessary. The group urged Federal Aviation Administration Administrator Randy Babbitt to replace old regulations with uniform limits on how many hours a pilot can fly with more flexible rules based on scientific studies about the causes of fatigue. 09/11/09, Andy Pasztor, The Wall Street Journal, http://bit.ly/HENld
• Department of Transportation aims to step up commuter-airline safety. Transportation Secretary Ray LaHood has stated that enhancing training and oversight of commuter-airline pilots is the Department of Transportation’s top aviation-safety priority. The February crash of a Colgan Air turboprop near Buffalo, New York revealed several training lapses and other safety shortcomings, prompting the DOT to “step up quickly” and show that those issues are its primary concern. Secretary LaHood also said there will be proposals to revise rules to combat fatigue, and that the FAA is collecting additional data on pilot-training programs and devising better ways to track pilots with training failures. 09/10/09, Andy Pasztor, The Wall Street Journal, http://bit.ly/d1UIu.
• FAA Administrator Babbitt questions professionalism of Colgan Air crew in Buffalo crash. Federal Aviation Administration Administrator Randy Babbitt believes the Colgan Air crash near Buffalo, New York demonstrated “complete inattention to basic details.” Officials from Colgan Air acknowledged that the two pilots were not paying close attention to the aircraft’s instruments and failed to follow the airline’s procedures for handling an impeding stall in the final minutes of a flight. Administrator Babbitt contrasted the actions of the Buffalo crew with those of Capt. Chesley Sullenberger, pilot in the Hudson landing, and called for greater professionalism in the industry, encouraging experienced pilots to mentor newer ones, greater use of professional systems, and fostering an atmosphere that encourages employees to voice their concerns. 09/11/09, Carolyn Thompson, The Associated Press, http://bit.ly/3b6NdS.
• LAWA Director seeks to reverse decades of LAX underinvestment. Gina Marie Lindsey, executive director of Las Angeles World Airports, is hoping for the passage of legislation that could see an increase in the Passenger Facility Charge, which could help fund expansion of Los Angeles International airport. Ms. Lindsey stated that airport authorities themselves should have the right to raise the PFC independently, and is also advocating other methods to generate extra income for LAX, which she says has faced decades of underinvestment. The bill is currently under a consideration by a Senate committee. 09/14/09, Ben Vogel, Jane’s, http://bit.ly/2HCCFI
• Congress reluctant to fund ADS-B equipage. US Senate staff said that determining how to pay for the transition to a satellite-based NextGen ATC system is proving difficult; Congress is reluctant to provide funding to allow airlines to fit some aircraft with ADS-B equipment that would enable early NextGen demonstrations and testing. The House of Representatives has already passed an FAA reauthorization bill and the Senate is considering one, but neither legislative proposal details the mechanisms for funding the NextGen transition. A professional staffer on the Senate committee explained that the “philosophical issue” lies in whether Congress would be creating a legacy whereby the government is expected to equip every aircraft, if it were to provide money to equip some aircraft. 09/15/09, Aaron Karp, ATW Daily News, http://bit.ly/wzjQX
• The FAA is investigating a complaint that raises questions about the validity of Texas Southern University’s School of Aviation. The Federal Aviation Administration is investigating a complaint that alleges that ground and flight training instructors lack instructor certificates from the FAA. If the allegations are true, Texas Southern University’s School of Aviation would be in violation of federal guidelines, and commercial pilots who have already graduated from the program would question the validity of their degrees.A school spokesperson responds that the courses in question do not lead to FAA certifications and do not require FAA certified instructors or FAA approval, though an internal investigation is pending. 09/08/09, Houston News Video, http://bit.ly/YXi8q.

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A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post.

• Administrative Law Judge orders FAA to pay $120,169.35 in attorney fees and costs to Florida-based air ambulance service. The Honorable William A. Pope, II, NTSB Administrative Law Judge, ordered the Federal Aviation Administration to pay Florida-based Air Trek $120,169.35 in attorney fees and costs because the Administrator failed to achieve his ultimate goal in the revocation of Air Trek’s air carrier certificate. The fees and costs awarded were pursuant to the Equal Access to Justice Act (EAJA). Judge Pope found that the Administrator was inadequately prepared to proceed to a hearing against Air Trek and did so without substantial justification. The FAA appealed the judge’s decision and were denied. 09/02/09, PRNewswire, http://bit.ly/4CdZvp
• FAA’s glacial pace puts local man’s business in deep freeze for years. Anthony Reguero, an Orange County, California businessman has seen his investment in his Cota de Caza, California, business – Choice Aviation - frozen for over two years as a result of stonewalling on the part of the Federal Aviation Administration. The local FAA Flight Standards District Office has delayed processing his application for over two years and cites understaffing as the problem. 09/02/09, Dena Bunis, Orange County Register, http://bit.ly/4czoum.
• FAA issues Airworthiness Directive requiring Thales Avionics to replace pitot probes on certain models of the Airbus A330 and A340. The Federal Aviation Administration has adopted a new Airworthiness Directive for certain Airbus models. The AD requires the replacement of certain Thales Avionics to replace pitot probes with certain other pitot probes, because of reports of airspeed indication discrepancies while flying at high altitudes in inclement weather conditions. This action was taken as a result of the crash of the Air France flight over the Atlantic and the resulting investigation which indicated that the airspeed indicator was malfunctioning. 09/03/09, Federal Register, http://bit.ly/3siaVi.
•  Port Columbus’ request for $20 million in stimulus funds for airports denied by the FAA. The Columbus Regional Airport Authority (Ohio) applied to the Federal Aviation Administration for more than $20 million in stimulus funds for six projects. Although t south runway project at Port Columbus was approved, none of the authority’s stimulus proposals was accepted. 09/02/09, Doug Caruso, The Columbus Dispatch, http://bit.ly/Io440.
• Personal items in seatback pocket rule varies by airline, not by FAA regulation. The Federal Aviation Administration mandates Federal Aviation Regulations that require by law that laptops and major personal belongings be properly stowed in overhead bins or the seat in front of the passenger. Airlines can establish their own “guidance” regarding whether even small personal items should be banned from the seatback pocket. 09/03/09, Sean O’Neill, Budget Travel Blog, http://bit.ly/LEmrZ.
• Ellington, Connecticut asks FAA for Feasibility Study for the purchase of EllingtonAirport. The town of Ellington, Connecticut has asked the Federal Aviation Administration for a feasibility study about the purchase of Ellington Airport. The study will look into various issues, including whether it would be beneficial for the town to buy the airport, which has been for sale for a while. 09/03/09, Larry Smith, Hartford Courant, http://bit.ly/T8lrW  
• RiversideCounty grounds glider flights at Hemet-RyanAirport. Riverside County has decided to ban sailplane flying, which relies on natural forces to stay aloft, at Hemet-Ryan Airport. Sailplane activity could conflict with future expansions planned for the airport, and the sailplane business operating at the airport had also asked for an earlier conclusion to its lease because of a downturn in business. A spokesman for the county’s Economic Development Agency also stated that closing the airport to gliders was a safety issue, as glider operations had resulted in “fatalities, injury, and serious violation of regulations over the years.” 09/04/09, The Valley News, http://bit.ly/QrmVb.
• The FAA is investigating a complaint that raises questions about the validity of Texas Southern University’s School of Aviation. The Federal Aviation Administration is investigating a complaint that alleges that ground and flight training instructors lack instructor certificates from the FAA. If the allegations are true, Texas Southern University’s School of Aviation would be in violation of federal guidelines, and commercial pilots who have already graduated from the program would question the validity of their degrees.A school spokesperson responds that the courses in question do not lead to FAA certifications and do not require FAA certified instructors or FAA approval, though an internal investigation is pending. 09/08/09, Houston News Video, http://bit.ly/YXi8q

 

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A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber.

• FAA Administrator Babbitt’s Pilot Fatigue Advisory Committee delivers its recommendations.  An advisory committee on pilot fatigue,convened by Administrator Babbitt, delivered its recommendations to the Federal Aviation Administration late Tuesday, September 1, 2009.  Committee members said the FAA had asked them not to make their recommendations public. Although FAA Administrator Randy Babbitt has promised to vet the recommendations swiftly and turn them into a formal proposal by the FAA, the process will take months to complete.  09/02/09, Denver Post,  http://bit.ly/4wAugf 
• FAA gives Southwest until December 24, 2009,  to replace unapproved parts. The FAA will require Southwest Airlines to replace unapproved parts associated with hinge fittings for the exhaust gate assembly--and which help protect aircraft flaps from engine heat--by December 24, 2009.  All other unapproved parts made by the same vendor must also be located and disposed of, and results of aircraft inspections must be sent to the FAA daily.  09/01/09, FAA Press Release,  http://bit.ly/5PAe6
• FAA tells Haines, Alaska, it cannot designate flight paths for helicopters.  Haines Borough, Alaska, is looking to eliminate flight-path restrictions and expand the number of clients that companies are permitted for commercial helicopter and heli-skiing activities.  The FAA has told the borough that it does not have the authority to regulate airspace, but borough leaders respond that they are only designating flight paths as a condition of a borough permit.  08/27/09, Chilkat Valley News, http://bit.ly/CmFqj
• Connecticut Governor furious about low-flying F-18s. Connecticut Governor Jodi Rell was incensed about a low-flying F-18 when neither the state of Connecticut nor the FAA had received advance notice about its flight.  A spokesman for Naval Air Force Atlantic stated that the aircraft operated in accordance with all FAA-approved visual flight rules and remained within speed and altitude restrictions.  08/29/09, Hartford Courant, http://bit.ly/P4waO.
• Expansion of Aero Country Airport in McKinney, Texas Causes Problems. McKinney City Council in Texas has approved development on the east side of the Aero Country Airport that could double its size; nearby residents oppose the expansion plans.  City By laws state that the City Council cannot reverse its decision, and Mayor Pro Tem Pete Huff seems unconcerned about homeowners who say they will move if the city does not halt the expansion, citing that the airport is part of the town.  08/27/09, NBCDFW.com, http://bit.ly/3vk14h.
• FAA Announces $2.5M grant to soundproof homes in Key West.  The Federal Aviation Administration this week approved a $2.5 million grant to soundproof 38 homes impacted by noise at Key West International Airport.  08/29/09, KeysNet.com, http://bit.ly/phcK7
• FAA gives Miami-Dade $4.2M to extend main runway at Kendall-Tamiami Executive Airport. The FAA gave Miami-Dade $4.2 million to extend the main runway at Kendall-Tamiami Executive Airport, which would allow heavier planes to use the airport to travel to and from destinations in Central America, South America, and the Caribbean. With an extended runway Kendall-Tamiami would be able to receive flights that would normally go to Miami International Airport. 08/28/09, South Florida Business Journal, http://bit.ly/sqmn5.
• FAA signs ROD for Columbus (OH) Regional Airport Authority’s plan to move Columbus Airport’s runway farther south. Columbus Regional Airport Authority’s plans to relocate Port Columbus International Airport’s runway farther south along with other improvements has been approved by the FAA, contingent upon environmental remediation in the area. The next issue for the airport is a decision from the FAA on the level it will be funding the project; the government’s intent to fund only a smaller portion might require the airport authority to reapply.  08/28/09, Columbus Business First, http://bit.ly/flHYd.
• NTSB suggests to FAA new altitudes for Hudson Corridor.  The NTSB recommended new altitudes to the FAA for helicopters and planes over the Hudson Corridor to prevent something like the Aug. 8 midair collision that killed nine people from reoccurring. In the past, the FAA has often failed to heed NTSB suggestions, with many outstanding recommendations up to 10-15 years old.  08/27/09, The New York Times, http://bit.ly/rFOqg
• Connecticut Attorney General Blumenthal says he will take Airspace Redesign fight to Supreme Court.  Connecticut Attorney General Richard Blumenthal is disappointed that the U.S. Court of Appeals for the D.C. Circuit has denied an Aug. 19 request to reconsider its refusal to halt the new FAA airspace redesign project. Mr. Blumenthal is preparing an appeal to the U.S. Supreme Court asking it to overturn the ruling and override the FAA, since the FAA used defective data on noise and traffic and failed to follow its own rules and procedures. 08/26/09, acorn-online.com, http://bit.ly/2UUXRs
• FAA investigates Southwest regarding use of unauthorized parts.  FAA air-safety regulators are investigating unauthorized parts installed on at least 42 Southwest Airlines jets and why the carrier’s maintenance-control procedures failed to identify the problem. The suspect parts do not pose an “immediate safety issue” but planes were temporarily grounded. The controversy exemplifies continuing friction between airlines and federal regulators on how to deal with minor maintenance lapses.  08/26/09, Wall Street Journal, http://bit.ly/4n2Srj.
• Houston receives $8.8 million in grants from the FAA. The City of Houston Dept. of Aviation received $8.8 million in grants from the FAA to install new state-of-the-art equipment at George Bush Intercontinental Airport (IAH). The grants, awarded through the FAA’s Airport Improvement Program (AIP) and Voluntary Airport Low Emission (VALE) program, will allow the purchase of equipment and vehicles that are expected to reduce emissions by up to 60 percent. 08/25/09, PRNewswire, http://bit.ly/4hcaM9.

 

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EPA Administrator signed a Notice on August 17, 2009, proposing Airport Deicing Effluent Guidelines. In that Notice, EPA is proposing "technology-based effluent standards for discharges from airport deicing operations."  Effluent guidelines and new source performance standards are technology-based regulations that are developed by EPA for a category of dischargers. In this case, the deicing effluent guidelines are based on the performance of control and treatment technologies.

In general, the regulations would apply to "wastewater associated with the deicing of aircraft and airfield pavement at primary commercial airports."  (Although various industry groups have objected to using the term "wastewater" to describe the deicing effluent, since that is the term that the EPA uses in the proposed rule, that is the term used in this article).  The proposed regulations would affect airports that

1. conduct aircraft deicing operations,
2. have 1,000 or more annual jet departures, and
3. 10,000 or more total annual departures.

Such airports would be required to collect spent aircraft deicing fluid (ADF) 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 more environmentally friendly airfield deicers that do not contain urea.

Summary of Proposed Airport Deicing Effluent Limitation Guidelines and Standards
Regulatory Level	Technology Basis	Technical Components
		Airports >1,000 Annual Jet Departures and >=10,000 Annual Departures	Airports >1,000 Annual Jet Departures and <10,000 Annual Departures
Best Available Technology Economically Achievable (BAT)	1. 60% or 20% Aircraft Deicing Fluid (ADF) capture 2. Biological treatment 3. Pavement deicer product substitution	1. Capture 60% of available ADF (for airports having >=460,00 gal. ADF usage) or capture 20% (for airports <460,000 gal. ADF usage) 2. Treat wastewater to meet effluent limit for chemical oxygen demand (COD) 3. Certify use of non-urea-based pavement deicers or Meet effluent limit for ammonia	1. Certify use of non-urea-based pavement deicers or Meet effluent limit for ammonia
New Source Performance Standards (NSPS)	1. 60% ADF capture 2. Biological treatment 3. Pavement deicer product substitution	1. Capture 60% of available ADF 2. Treat wastewater to meet effluent limit for chemical oxygen demand (COD) 3. Certify use of non-urea-based pavement deicers or Meet effluent limit for ammonia	1. Certify use of non-urea-based pavement deicers or Meet effluent limit for ammonia
Note: All references to ADF are for normalized ADF, which is ADF less any water added by the manufacturer or customer before ADF application

Although EPA Administrator signed the notice on August 17, 2009, it has not yet been published in the Federal Register.  The public comment period on the regulations will run for 120 days after publication in the Federal Register.

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Writing in the Wall Street Journal, Senior Special Writer Andy Pasztor states:

Federal Aviation Administration chief Randy Babbitt, in his most detailed comments yet about combating pilot fatigue, vowed to tailor future regulations to better reflect the safety challenges facing commuter pilots.  In a speech to the country's largest commercial-pilot union, the agency's administrator said the current "one size fits all" regulations don't adequately take into account fatigue typically experienced by commuter pilots, some of whom fly five or more segments per day.

This speech by Administrator Babbitt underscores the growing concern about Pilot fatigue and safety of the aircraft that are flown.  Ever since it came to light that the co-pilot of the Continental Flight 3407, which crashed in Buffalo, New York, had commuted from Seattle to Newark to be on the flight, and that the pilot was not familiar with the de-icing procedures for the type of aircraft he was flying, pilot training, fatigue and maintenance have been hot topics.

Administrator Babbitt vowed in his speech to the Air Line Pilots Air Safety Forum not to wait until the Congress gets its act together and passes legislation.  He said that he has set up a rulemaking committee studying fatigue:  "I want to make sure that we get the answers we need as working men and women aviators.  In rulemaking not only does one size not fit all, but it's unsafe to think that it can."

Although not part of his rulemaking committee, Administrator Babbitt also mentioned that the FAA is holding a series of 12 nationwide airline safety forums aimed at "stimulat[ing] a safer, more professional enviroment at regional airlines. . . the discussions are focusing on air carrier management responsibilities for crew education and support, professional standards, flight discipline, training standards and performeance."

This is not to say that Congress is standing still waiting to see the outcome of these rules and meetings.  The Senate Subcommittee on Aviation has a held a series of three hearings on Aviation Safety, the most recent being August  6, 2009, which focused on "the relationship between the major, or network, airlines and their regional airline partners." (Witness lists for the three hearings appear after the jump).  The goal, as expressed by Subcommittee Chairman Jay Rockefeller (D-W.Va.) is to "to determine if there are further steps we can or must take to ensure there is one level of safety throughout the commercial air transportation system."

Maybe Administrator Babbitt got it right when he concluded his remarks by stating that "if you think the safety bar is set too high, your sights are set way too low."

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Several groups. individuals, cities, and counties who petitioned the United States Court of Appeals for the District of Columbia to review the FAA's decision to move forward with its redesign of the New York/New Jersey/Pennsylvania airspace have filed Petitions for Rehearing after the rather surprising D.C. Circuit ruled against them in an opinion that reeks of judicial indifference.  See, "D.C. Court of Appeals Decides Against Challenge to East Coast Airspace Redesign," posted June 11, 2009.

Standard

In order to obtain a  rehearing en banc (i.e., by all of the judges currently sitting on the D.C. Circuit), a petitioner must show:

• The decision of the panel conflicts with the decision of the U.S. Supreme Court or with the decisions of the D.C. Circuit; and/or
• The proceeding involves "one or more questions of exceptional importance."

Federal Rules of Appellate Procedure (FRAP) 35.  The intent of the rule is to "secure and maintain uniformity of the court's decisions."  Id.

The standard for obtaining a rehearing by the same panel of three judges who heard the matter the first time is slightly lower.  A petition for rehearing will be granted when the court agrees that points of law or fact were overlooked or misapprehended by the panel.  FRAP 40.  In this case, all three Petitions for Rehearing ask for both a rehearing en banc and a rehearing by the panel.

Delaware County's Petition for Rehearing

Delaware County's Petition focuses on the court's decision that the FAA complied with the conformity provisions of the Clean Air Act by providing a "fuel burn report" instead of a more comprehensive emission inventory  According to Delaware County, this position conflicts with the U.S. Supreme Court case of Department of Transportation v. Public Citizen, 541 U.S. 752 (2004) and two D.C. Circuit cases as well:  Environmental Defense Fund, Inc. v. EPA, 467 F.3d 1329 (D.C. Cir. 2006) and Friends of the Earth, Inc. v. EPA, 446 F.3d 140, 145 (D.C. Cir. 2006).  These cases, Delaware County argues, require scrupulous compliance with the Clean Air Act as well as the EPA's implementing regulations. 

The court's failure to hold the FAA to following the letter of the Clean Air Act and the EPA regulations not only conflicts with other decisions, but also presents an issue of exceptional public importance in that it contravenes  the express purpose of Congress in enacting the Clean Air Act.The D.C. Circuit recently held in Environmental Defense v. EPA, 467 F.3d 1329, 1336 (D.C. Cir. 2006) that the FAA "may not 'avoid the Congressional intent clearly expressed in the text simply by asserting that its preferred approach would be better policy.'"

In addition, Delaware County argues that the panel misapprehended several critical facts, not the least of which is the fact that the court based its rejection of one the Petitioners' critical arguments on the Petitioners not raising the issue in their Opening Brief.  The Petition for Rehearing cites the references in the Opening Brief where that issue was raised.

Finally, Delaware County contends that that the panel misapprehends the burden of proof necessary in this matter.  Under the holdings of Alabama Power v. Costle, 636 F.2d 323, 360 (D.C. Cir. 1979) and Association of Administrative Law Judges v. Federal Labor Relations Authority, 379 F.3d 957 (D.C. Cir. 2005) the burden is on the agency to fully document that an agency's action falls within a de minimis exemption.

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On Wednesday, July 29, 2009, the bipartisan leadership of both the Committee on Transportation & Infrastructure and the Subcommittee on Aviation introduced H.R. 3371, the "Aviation Safety Bill" designed to "enhance airline safety by setting new training and service standards for commercial pilots."  This bill came primarily as a response to the Senate Commerce Committee's passage of its version of the FAA Reauthorization Bill (S. 1451), which included aviation safety measures such as a call for the National Academy of Sciences to conduct a study on pilot fatigue and requiring the FAA to establish and maintain a pilot employment, training, and testing database.

After the passage of the House FAA Reauthorization Bill (H.R. 915), hearings were held regarding aviation safety, particularly in response to the crash of Flight 3407 in Buffalo, New York.  As ranking member Thomas E. Petri (R-Wis.) stated at the press conference announcing the bill: "the Buffalo crash and the subsequent Aviation Subcommittee hearing revealed some troubling questions in terms of training, development, and the working environment of pilots - particularly at regional airlines."

The Press Release from the Transportation & Infrastructure Committee indicated that the bill:

• Requires FAA to ensure that pilots are trained on stall, recovery, upset recovery, and that airlines provide remedial training;
• requires airline pilots to hold an FAA Airline Transport Pilot license (1,500 minimum flight hours required);
• Establishes comprehensive pre-employment screening or prospective pilots including an assessment of pilot's skills, aptitudes, airmanship and suitability for functioning in the airline's operational environment;
• Requires airlines to establish pilot mentoring program, create Pilot Professional Development Committees, modify training to accommodate new-hire pilots with different levels and types of flight experience, and provide leadership and command training to pilots in command;
• Directs FAA to update and implement a new pilot flight and duty time rule and fatigue risk management plans to more adequately track scientific research in the field of fatigue.  It also requires air carriers to create fatigue risk management systems approved by FAA.
• Requires the Department of Transportation Inspector General to study and report to Congress on whether the number and experience level of safety inspectors assigned to regional airlines is commensurate with that of mainline airlines;
• Mandates that the first page of an internet website that sells airline tickets disclose the air carrier that operates each segment of the flight;
• Directs a National Academy of Sciences study on pilot commuting and fatigue,;and
• Requires the Secretary of Transportation to provide an annual report to Congress on what the agency is doing to address each open National Transportation Safety Board recommendation pertaining to commercial air carriers.

Once the Senate FAA Reauthorization bill is voted on (and presumably passed) by the full Senate in the Fall, this bill along with H.R. 915, will go to House-Senate conference committee.

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In a per curiam Abbreviated Disposition that will not be published, the U.S. Court of Appeals for the District of Columbia Circuit summarily denied 12 separately-filed petitions for review that questioned the legality of the Federal Aviation Administration’s Environmental Impact Statement for its East Coast Airspace Redesign. The matter, Rockland County v. Federal Aviation Administration, brought 12 lawsuits together that represented a multitude of petitioners from Delaware, Pennsylvania, New Jersey, New York, and Connecticut. The Court kicked all of the citizens’ complaints about the effect the Airspace Redesign would have on their environment to the curb, deferring to the FAA’s analysis.

The Court reached this conclusion without addressing many of the arguments that the Petitioners presented in their briefs and at oral argument. First, with respect to Petitioners’ argument that the EIS violated the National Environmental Policy Act, the court simply stated that it is deferring to the FAA’s reasoning that they did everything they needed to do. Not mentioned in the Court’s cursory and truncated analysis is the fact that the FAA has said that it will not implement the Night Routing part of the EIS’ “Preferred Alternative,” and the effect that failure will have on the environmental impacts of the Airspace Redesign.

Second, the Court also deferred to the FAA in deciding that the EIS sufficiently took into account the state and local parks and parklands that would be affected by the Airspace Redesign. The Court, states that the Petitioners should have engaged in a “battle of the experts” and should have “impugn[ed] the agency’s screening methodology.” Disposition, p.8. In most cases, impugning an agency’s methodology is looked upon in great disfavor by a court.

Finally, the Court decided that the Airspace Redesign fell within the de minimis exception of the Clean Air Act, thereby releasing the FAA from any requirement to perform any type of analysis as to the impact the project will have on the surrounding area’s air quality programs. The Court admitted that the FAA did not follow the procedures set forth by the EPA in 40 CFR 93.153, but the “fuel burn analysis” that the FAA did create was sufficient. This was true, the Court concluded, despite the fact that the “fuel burn analysis” was devoid of any mention of criteria pollutants or indirect emissions as required by EPA’s regulation 40 CFR 93.153. The Court went on to hold that any error that the FAA committed in not following the required air quality procedures was harmless error.

It is obvious why the Court does not want this decision published. It is rudimentary and lacking in analysis of many of the arguments presented by the Petitioners. Moreover, it is cursory in statements of law and fact. For example, on p. 10 of the Disposition, in a footnote, the court states:

The petitioners also argue that the fuel burn analysis failed to show the redesign will reduce emissions in all relevant nonattainment and maintenance areas, see 40 C.F.R. 93.153(b), but that argument is not properly before us because the petitioners failed to raise it until their reply brief, Sitka Sound Seafoods, Inc. v. NLRB, 206 F.3d 1175, 1181 (D.C. Cir. 2000).

In fact, the Petitioners had raised that issue in their opening brief, not once, but twice. See, Petitioners’ Joint Brief, pp. 88 and 93.

In the end, it is sad to see that a Court that prides itself on having many of its members become Supreme Court Justices, hide behind a per curiam decision that is so superficial and so careless. The Petitioners now have 45 days to decide whether to seek a rehearing or a rehearing en banc.

Other Articles on the subject:

• Delaware County Press Release, June 11, 2009.
• Conn. AG loses first round in flight fight,  The Hour.
• Blumenthal Loses First Round In Flight Fight, Hartford Courant
• CT Attorney General: seeks rehearing in FAA Southwestern Ct case
  Hartford Courant
• DC Circuit Sides with FAA in Airspace Redesign Dispute, The BLT: Blog of Legal Times.

Other posts on this blog about the Airspace Redesign:

• East Coast Airspace Redesign Challenge Heard at D.C. Circuit Court of Appeals, posted May 18, 2009
• Petitioners File Reply Brief in East Airspace Redesign Case, posted March 8, 2009
• FAA Files Its Brief in the East Coast Airspace Redesign Lawsuit, posted January 13, 2009
• New Jersey Attorney General Files Amicus Brief in the Airspace Redesign Litigation, posted September 12, 2008.
• Sens. Specter and Dodd File a Joint Amicus Brief in the East Coast Airspace Redesign Litigation, posted September 8, 2008.
• Petitioners' Opening Brief, posted September 3, 2008.
• Update of Airspace Redesign Litigation, posted April 28, 2008.
• Airspace Redesign May Not Reduce Fuel Consumption for the Airlines as FAA Claims, posted March 18, 2008

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FAA Administrator Randy Babbitt told the Senate Subcommittee on Aviation Wednesday, June 10, 2009, that small regional airlines are held to the same safety standards as the major carriers. Babbitt says he and Secretary of Transportation Ray LaHood are ensuring that the FAA is taking steps to ensure that that is the practice as well as the law. However, FAA Inspector General Calvin Scovell  says that is not currently the case.

Subcommittee Chair Byron L. Dorgan (D-N.D.) opened the hearing with the statement that he was concerned that there is a double standard in aviation instead of  "one level of safety for both regional and major carriers."  This issue has come to the forefront since the crash of Colgan Air flight in Buffalo, raising issues of pilot training, proficiency and pay at regional airlines.  The investigation into that crash has revealed that the pilot flew cross country as a passenger on a flight the night before and lacked experience in the deicing procedures for the type of aircraft that crashed.

FAA Administrator Babbitt said that the same safety laws and regulations apply across the board to all airlines, regardless of whether they are regional or national in scope.  That being said, Administrator Babbitt stated that there is much to be done to improve safety and that he and Secretary of Transportation Ray LaHood are committed to focusing on inspection of aircraft and safety.

FAA Inspector General Calvin Scovell, however, stated that although the laws and regulations may be the same, in practice there are two standards.  He stated that he was particularly concerned about the difference between pilots' training and level of flight experience in the two types of airlines.  The major airlines did not escape the hearing unscathed.  Scovell also testified that  there have been many lapses in oversight of the major airlines' technical programs, similar to the problems that came to light last summer concerning Southwest Airlines. In particular, he was concerned that 7 major airlines missed "Air Transportation Oversight Systems" inspections, some had been allowed to lapse  "well beyond the 5-year inspection cycle."

NTSB Chairman Mark Rosenker also had some choices remarks for the FAA.  He informed the panel that the FAA has failed to heed recommendations suggested by the NTSB that would produce greater safety.  When asked how many recommended changes were outstanding, Chairman Rosenker stated that there about 450 recommendations still outstanding with some 10 - 15 years old.  Sen. Barbara Boxer (D-Cal.) called this an "outrage" and an indictment of the FAA, "it is not about anyone personally, it is the institution, it is the way they think, and it is very disturbing to me."

In the end, Administrator Babbitt promised to consider the NTSB recommendations, and although the FAA will not adopt them all, he would make the FAA "more transparent" about the process.

Click on "continue reading" to see list of written statements and link to the archived webcast of the hearing.

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The FAA, on June 5, 2009, issued two Notices of Order to Show Cause requesting "the views of interested persons on the FAA's tentative determination to extend through October 30, 2010, the January 15, 2008, order limiting the number of scheduled aircraft arrivals at John F. Kennedy International Airport [and Newark Liberty International Airport] during peak hours."

In the Notices, the FAA recites the events that have occurred since it instituted the January, 2008, Order, which include that current proposed rule to rescind its rule regarding slot auctions at both of the airports (74 Fed.Reg. 22714 (May 14, 2009); see also, "FAA Proposes Rescission of Congestion Management Rules for JFK, LaGuardia and Newark," posted May 14, 2009).  As result, the FAA states that it does not believe that it will have an "effective final rule" by the time the January, 2008, Order expires.  Without an extension and without an "effective final rule," the FAA believes that there will be a return to the "congestion-related delays that precipitated the voluntary schedule reductions and adjustments reflected in the January 2008 order."

This extension, then, the FAA claims, is necessary to prevent a recurrence of over-scheduling at the two airports between the date that the January, 2008 Order is slated to expire (October 24, 2009) and the effective date of the the replacement rule.  The Notice extends the January, 2008, Order until October 30, 2010.

To submit comments:

• Electronically:  go to http://regulations.gov and search for docket number FAA-2007-29320 or click here for the comment submission form.
• U.S> Mail:  send comments to Docket Operations, U.S. Department of Transportation, M-30, Room W12-140, 1200 New Jersey Avenue SE, Washington, D.C. 20590-0001
• Fax:  fax to (202) 493-2251.

Other Posts on this topic:

 

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Both houses of the legislative branch of the U.S federal government were at work yesterday on FAA business.  The U.S. House of Representatives passed HR 915, reauthorizing the FAA and the U.S. Senate confirmed Capt. Randy Babbitt as FAA Administrator for a five-year term.

The U.S. House of Representatives passed on a vote of 277-136 HR 915, the Federal Aviation Administration Reauthorization Act of 2009.  It now goes to the Senate, where a similar bill died last year.  The details of HR 915 have been debated for several months in committee and on the House floor, with the version that was passed yesterday including several amendments. These include: a provision that would make it easier for FedEx employees to unionize by shifting jurisdiction of unionization rules to the National Labor Relations act; authorization of a congressional study of pilot training; and increased inspection of aircraft repair stations abroad.  Click here for a copy of the as-passed version of HR 915.

Other posts regarding FAA Reauthorization Act of 2009:

• "User Fees Continue To Be A Sticking Point To FAA Reauthorization," posted on May 10, 2009.
• "User Fees Issues Probably Will Force Short-Term Extension of FAA's Authorization Instead of Full Reauthorization," posted on March 16, 2009.
• "Several Amendments Made to H.R. 915, FAA Reauthorization Act of 2009," posted on March 5, 2009.
• "U.S. House Transportation & Infrastructure Committee Holds Hearings on FAA Reauthorization Bill," posted on February 14, 2009.

On the other side of the Capitol, the U.S. Senate voted to confirm Capt. Randy Babbitt as Administrator of the Federal Aviation Administration for a five-year term.  Administrator Babbitt previously served as President and CEO for U.S. Air Lines Pilots Association, the world’s largest professional organization of airline pilots. The FAA has been run by interim administrators since Marion Blakey's term expired in September, 2007.  The Bush Administration attempted to have Acting Administrator Bobby Sturgell confirmed last year, but his appointment was blocked by the two Senators from New Jersey, which effectively ended his bid for a term as Administrator.  Administrator Babbitt was seen as a "compromise" candidate who was more acceptable than another former ALPA president, Duane Woerth. Woerth was favored by the AFL-CIO.  Administrator Babbitt's confirmation was lauded by both union and aviation groups.

Other Posts concerning Administrator Babbit's Confirmation:

• "President Obama Officially Nominates Capt. Randy Babbitt For FAA Administrator," posted on March 27, 2009

 

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A multi-year challenge to the Federal Aviation Administration’s reorganization of the airspace in four East Coast states culminated on May 11, 2009 with oral argument at the D.C. Circuit Court of Appeals before Chief Judge David Sentelle, and Judges Douglas Ginsberg and Ray Randolph.  The litigation team was made up of 12 law firms representing public entities and environmental organizations from Connecticut, New York, New Jersey and Pennsylvania.  The team designated three of its members to present the oral argument: (1) Richard Blumenthal, Attorney General of the State of Connecticut; (2) Larry Liebesman, of Holland & Knight, representing communities in Rockland County, New York; and (3) Dr. Barbara Lichman of Chevalier, Allen & Lichman, representing Delaware County, Pennsylvania.  The FAA was represented by Department of Justice attorneys Mary Gay Sprague and Lane McFadden.

In the 30 minutes allotted to the opening presentation, the team emphasized the FAA’s failure to adhere to governing statutes and regulations in implementing the Airspace Redesign Project.  Specifically, Attorney General Blumenthal presented the Court with a litany of FAA lapses in conducting the analysis of the project’s noise impacts.  The Attorney General argued that the mistakes and omissions from the analysis resulted in artificial and inaccurate minimization of those impacts.  In addition, the Attorney General challenged FAA’s failure to reveal even the artificially minimized noise impacts to the affected public for review and comment, as it is obligated to do under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. 

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The U.S. Senate Subcommittee on Aviation held a hearing on Wednesday, May 13, 2009, on FAA Reauthorization in which it sought information about

mplementing Next Generation Air Traffic Control System (NextGen), a satellite-based navigation and air traffic management system. NextGen will address the long ignored safety and economic shortcomings in civil aviation while fully integrating national defense and homeland security improvements. Moving to a satellite- based system represents a fundamental shift from our current system that has been in place since the 1950s.

Modernization of Air Traffic Control (ATC) will fundamentally transform the way we travel. More efficient use of airspace will cut costs for everyday fliers, while also accommodating millions of additional passengers with less congestion and fewer delays. It is imperative that we take this opportunity to reauthorize the FAA to make certain NextGen is adequately funded for implementing key programs.

Modernization is also absolutely critical in keeping America competitive, improving our economy, and providing billions of dollars in increased productivity to U.S. companies. Air carriers will see fuel costs reduced, more communities will have access to uncongested hubs, and more companies will be able to operate efficiently in these challenging economic times.

It goes without saying that safety is always the paramount goal in aviation. With a serious investment in NextGen, we can make the air traffic system significantly safer through modern tracking technology for controllers on the ground and pilots in the sky.

Reauthorization legislation must also address concerns regarding FAA’s oversight of airline maintenance operations and troubling trends in runway incursions and operational errors. As part of this commitment to safety, we are looking to develop a comprehensive package that will address the multiple issues raised by aviation experts and government agencies.

Statements

• Majority Statements - John D. Rockefeller, IV
• Minority Statements - Kay Bailey Hutchison
   

Witness List

Panel 1

• Chip Barclay, President, American Association of Airport Executives
• Marion Blakey, President and Chief Executive Officer, Aerospace Industries Association
• Jim May, President and Chief Executive Officer, Air Transport Association of America
• Edward M. Bolen, President and Chief Executive Officer, National Business Aviation Association

Panel 2

• Patrick Forrey, President, National Air Traffic Controllers Association
• Captain John Prater, President, Air Line Pilots Association International
• Robert Roach Jr., General Vice President - Transportation, The International Association of Machinists and Aerospace Workers
• Ken Hall, Vice President at Large, International Brotherhood of Teamsters
• Tom Brantley, President, Professional Aviation Safety Specialists
• William McGlashen, Executive Assistant to the International President
  Association of Flight Attendants – CWA, AFL – CIO

Video

 

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The Federal Aviation Administration today proposed to rescind the congestion management rules for JFK, LaGuardia and Newark that would have created auctions for slots at those airports.  (Click here for the JFK and Newark proposal, click here for the LaGuardia proposal)  Those rules were ardently opposed by the airlines as well as by the Port Authority of New York and New Jersey.  These proposed rules would rescind the previous rules regarding the slot auctions, although it would not rescind the order limiting scheduled operations at the airports to 81 operations per hour.  That order remains in place until October, 2009.

Although the FAA admits that the Congestion Management Rules was "highly controversial," it does not admit that its position with respect to the FAA's intangible property rights to the slots was necessarily wrong.  The FAA states that a series of events led to its decision to rescind the rules.  First, in December, 2008, the United States Court of Appeals for the District of Columbia Circuit issued an order staying the rule. Then, the Omnibus Appropriations Act, 2009, passed on March 11, 2009, contained a provision denying any funds to implement the auctions. Those two setbacks coupled with the souring economy, the FAA realized that "the halt in funding for this fiscal year makes it impossible for the rule to have the 10-year life originally contemplated, even without considering the challenging and widespread change in current economic conditions that led to the adoption of the American Recovery and Reinvestment Act of 2009."  Thus:

 

Because of the complexity of the issues, the uncertainty caused by the Omnibus Appropriations Act, and the possible impact of the significantly changed economic circumstances on the slot auction program, the FAA believes it would be better to rescind the rule rather than propose to extend it.  Rescission would also eliminate the potential for wasting resources of all parties in the pending litigation.

 

Put off for another day, however, is the issue of whether government licenses are property.  The proposed rules simply state that the FAA is "in the process of considering its options with regard to managing congestion at the airport[s] in ways that provide a means for carriers to either commence or expand operations at the airport[s], thereby introducing more competition and service options to benefit the traveling public."  Thus, slot auctions may be off the table for the time being - at least until the the funding restriction of the Omnibus Appropriations Act expires on September 30, 2009 - but the FAA has not yet totally abandoned the idea.

Other Posts on this topic:

 

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There were two events this past Thursday, May 7, 2009, that may affect H.R. 915, the FAA Reauthorization bill, which is currently pending in the U.S. House of Representatives. First, in the Obama Administration’s budget stated in its budget that starting in 2011, the budget “assumes a scenario where most of the air traffic control system would be paid for by direct charges levied on users of the system. The FAA’s current excise tax system, which generated $12.4 billion in 2008, is largely based on taxes that depend upon the price of customers’ airline tickets, not FAA’s cost for moving flights through the system.“ Then, the House Ways and Means Committee held a hearing on the financial status of the Airport and Airway Trust Fund. At that hearing, Rep. James Oberstar (D.-Minn.), Chairman of the House Committee on Transportation and Infrastructure told Ways and Means that “changes to the current system of excise taxes should be made only if such changes will improve upon [excise taxes’] record of stability, revenue adequacy, and ease of administration.”

Obama Administration Seems to Favor User Taxes

The Obama Administration has been fairly clear about its preference for user taxes to fund the air traffic control system in the United States. The budget framework that the Obama Administration issued in February indicated that it would like to transition some aviation taxes to user fees. Indeed, it was this indication of the Administration’s preference for user fees that caused the Congress to approve another continuing resolution for the FAA instead of passing the 2009 FAA Reauthorization. See, "User Fees Issues Probably Will Force Short-Term Extension of FAA's Authorization Instead of Full Reauthorization" posted March 16, 2009. While the budget released this past week ruled out user fees for fiscal year 2010, the administration indicated that “the FAA should move toward a model whereby FAA’s funding is related to its costs, the financing burden is distributed more equitably, and funds are used to pay directly for services the users need.” But the Budget stopped short of endorsing user fees. It continued: “the Administration recognizes that there are alternative ways to achieve these objectives. Accordingly, the Administration will work with stakeholders and the Congress to enact legislation that moves toward such a system.”

User fees are not only on the White House’s wish list. The Department of Transportation confirmed that the longer-range reauthorization plan for the FAA will include “cost-based user charges for air traffic services starting in 2011.” Although, DOT added that the specifics “are under development and some time will be needed to implement the charges once approved.” The Congressional Budget Office seemed to support a move away from excise taxes, too, although indirectly. Robert A. Sunshine, Deputy Director, Congressional Budget Office stated that “the current financing system provides limited incentives to air carriers and general aviation flyers to use the system efficiently in congested areas – but structured differently, by linking the taxes paid by users of the system to the cost of providing air traffic control services, the financing system could help to reduce the potential for increasing congestion and delays.”

Strong Support in Congress for Current System

The House Ways and Means Committee took up H.R. 915, the FAA Reauthorization bill of 2009, to consider the financing provisions. H.R. 915 has been approved by the Transportation and Infrastructure Committee, but the financial provisions need to be approved by Ways and Means before it can go to the full House. Rep. Charles Rangel (D.-N.Y.), Chairman of the Ways and Means Committee stated that the Committee intends “to act on this matter so that we can avoid the need for yet another temporary measure.” All of the witnesses stressed the need to move the legislation along. Rep. Oberstar commented that “we are already almost two years behind schedule in reauthorizing these programs. Airport development capital projects and key NextGen programs need the stability that a multi-year authorization bill provides.” FAA programs can be funded by aviation excise taxes, a reasonable General Fund contribution and a modest increase in General Aviation fuel taxes: an increase from 21.8 cents per gallon to 35.9 cents per gallon for noncommercial jet fuel, and an increase from 19.3 cents per gallon to 21.4 cents per gallon for avgas.   This increase is identical to legislation reported by Ways and Means in 2007 and was passed by the House on September 20, 2007.

The proposed raises in the fuel taxes and other funding mechanisms were the results of years of negotiating, with industry expressing support for the increases in return for the promise of no user fees. Rep. Jerry Costello (D.- Ill.), Chairman of the Aviation Subcommittee indicated that the proposed increase in fuel taxes has the support of the General Aviation groups over the imposition of a user fee system. It is the support of the General Aviation groups that seems to be issue here. As Rep. Tom Petri (R. – Wis.), Ranking Member on the Aviation Subcommittee told the Ways and Means Committee, he continues to support the structure of the funding recommendations which were developed in a bipartisan fashion, adding that “General Aviation is strong in the United States compared to other countries and unique. Of all the world’s licensed and active aviation pilots, 62 percent reside here in the U.S.”

Result: Excise Taxes, At Least For Now

Since the leadership of both parties on Transportation and Infrastructure Committee support continuation of the excise taxes, it seems unlikely that H.R. 915 will be amended to include user fees, even in 2011. The feeling among all involved is that the FAA reauthorization needs to be accomplished now and now is not the time for a discussion about the viability of user fees over excise fees. However, fiscal year 2011 is another story. Once Capt. Randy Babbitt has been confirmed as FAA Administrator, excise taxes and user fees can be examined a little more closely.

 

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An article in the March 23, 2009 edition of Aviation Week & Space Technology reports that, because of the decreased demand for air travel and the resulting loss of airport revenues, U.S. airports are seeking to replace lost revenues through non-airline related uses of airport land.  According to AW&ST, almost half of the revenues earned by airports comes from landing fees and rent for ticket counters and gates.  The balance comes from food and retail concessions, parking fees, rental car facilities and on-site hotels.  Therefore, as passenger traffic declines, so do airport revenues.

The declines in passenger traffic and airport revenues have forced airports to focus more on the use of one of their most valuable assets - land.  Many airports are looking at developing airport land for aviation related uses that do not produce passenger generated revenues, such as flight simulator facilities and air cargo facilities.  Some airports are considering non-aeronautical uses of airport property, such as warehouses, distribution centers and light industry, as alternate sources of revenue.

These kinds of uses present a number of potentially critical issues that must be considered in planning the use of airport land for non-aviation purposes, as well as planning for nearby off-airport development.  For example, entry by suppliers and employees of on-airport businesses are likely to create added airport access and security concerns.  New on-airport structures may impact air and ground safety and air traffic control procedures, and limit or restrict future changes in airport configuration and development.  New airport tenants will require new airport ground leases.

Another related question is whether the Federal Aviation Administration (FAA) will apply and  enforce Federal grant assurances with respect to non-aeronautical activities on airport property.  Sponsors of public airports that accept Federal assistance, either in the form of grants under the Airport Improvement Program (AIP) or property conveyances under the Surplus Property Act, are obligated to comply with certain written grant assurances that require that the airport be operated for the use and benefit of all types, kinds and classes of aeronautical activity.  Federally obligated airport sponsors are prohibited from discriminating among airport users or granting exclusive rights, i.e., a right granted to a single operator to provide an aeronautical activity to the exclusion of others.  The grant assurances expressly refer only to aeronautical activities.  However, with the advent of increased non-aeronautical activity on airport property, the applicability of grant assurances to such activity is likely to become an important issue.

Other potential issues include increased on- and off-airport surface transportation, increased off-airport development, increased applications by businesses or individuals for access to the airport infrastructure from outside airport property, i.e., “through-the-fence” operations, and various environmental impact issues.
 

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In a Press Release issued on Friday, March 27, 2009, announcing selections for several positions in his Administration, President Obama nominated J. Randolph Babbitt to be the Administrator of the Federal Aviation Administration.  This nomination has been expected for some time since Capt. Babbitt emerged as a "compromise" candidate.

The Press Release gave the following as Capt. Babbitt's bio:

J. Randolph Babbitt, Nominee for Administrator, Federal Aviation Administration
J. Randolph Babbitt, known as Randy, is a partner in the worldwide aviation consultancy of Oliver Wyman. He was the former Chairman and CEO of Eclat Consulting until they were acquired by Oliver Wyman in 2007.  Babbitt is internationally recognized as a leader in the field of aviation safety and policy, and labor relations with almost 40 years of experience in the industry.  Babbitt began his aviation career as a pilot for Eastern Airlines and flew for more than 25 years. He served as President and CEO for US ALPA, the world’s largest professional organization of airline pilots. In 1993 he served as a Presidential appointee on the National Commission to Ensure a Strong Competitive Airline Industry. In 2008 Babbitt was named by the Secretary of Transportation to an independent review team of aviation and safety experts tasked with evaluating and crafting recommendations to improve the FAA's implementation of the aviation safety system and its culture of safety. Babbitt attended both the University of Georgia and the University of Miami.

We all wish Capt. Babbitt well, and look forward to working with him and his colleagues at the FAA in the future.

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Although originally billed as a Senate hearing on FAA Reauthorization, because another continuing resolution was passed last week, the Senate Subcommittee on Aviation Operations, Safety and Security switched the focus of the hearing from Reauthorization to NextGen and "the Benefits of Modernization." 

Essentially, this hearing was a scaled-down version of the hearing that the House held last week.  (See, "U.S. House Subcommittee on Aviation Holds Hearing on FAA's NextGen and ATC Modernization Efforts,"  posted March 22, 2009). Indeed, the written testimony of Dr. Dillingham is almost word for word identical to the written testimony presented to the House Subcommittee.  Likewise, the written testimony of Dale Wright, NATCA's Director of Safety and Technology, was in most respects the same as Patrick Forrey's last week.  As Sen. John D. Rockefeller, IV, Chairman of the full Committee stated in his opening statement, this hearing was a first step to "move the U.S. past Mongolia in the ranking of air traffic control systems."

It was also Sen. Rockefeller who summed up the problems the FAA has been having not only with respect to NextGen, but many other issues as well:  "[r]ivalries in the aviation community have hampered the industry's ability to speak with one voice for far too long.  Without that one voice, you will fail."  The simmering labor disputes between the Air Traffic Controllers and the FAA; the mistrust between the Pilots and General Aviation; the airlines' position with the FAA have all made it difficult for anything to be resolved, even if everyone agrees that some form of NextGen is an absolute necessity.

Thus, the hearing had Hank Krakowski, Chief Operating Officer of the Air Traffic Organization at the FAA, patting FAA on the back for getting ATC Modernization off of GAO's "High Risk List," (see, "GAO Removes FAA Air Traffic Control Modernization Program From Its High Risk List," posted January 22, 2009) and generally touting how invested the FAA is in working with all stakeholders to achieve the goals.  In counterpoint, NATCA's Wright, talked about the human cost of NextGen, and telling the Subcommittee that the "FAA  must collaborate meaningfully with stakeholders" pointing out that "to date [NATCA has] received no indication from the FAA that the Agency has any intention of meaningfully collaborating with NATCA."

Likewise, T.K. Kallenbach of Honeywell Aerospace lauded the environmental benefits of Continuous Descent, which is possible with the new NextGen technology.  Meanwhile United Airlines' Joe Kolshak understandably lobbied hard for NextGen, since the airlines anticipate a huge drop in fuel costs, although the airlines might be looking for some assistance to get the required technology installed into the cockpits.  And finally, Dr. Dillingham once again told a Congressional panel that the "FAA faces challenges in resolving human capital," research and development, and facilities issues.

So, where does that leave us? Two "foundational" and "critical" hearings in which the same people are saying essentially the same thing that they (or their agencies/organizations) have been saying for at least the past two years.  With FAA Reauthorization stalled in the House (see "User Fees Issues Probably Will Force Short-Term Extension of FAA's Authorization Instead of Full Reauthorization," posted March 16, 2009), and the Obama administrative set to present its proposal in Mid-April, it seems unlikely that anything will get rolling anytime soon.

A list of the witnesses and their written testimonies follows.

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On March 18, 2009, the U.S. House Subcommittee on Aviation held a hearing entitled "Air Traffic Control Modernization and the Next Generation Air Transportation System:  Near-Term Achievable Goals."  The Subcommittee and the FAA are placing much of their hopes and dreams on the viability and success of NextGen and Air Traffic Control Modernization.  In opening comments, it seemed that if ATC Modernization and NextGen are fully implemented all of the current ills of the FAA will be resolved and world peace will be achieved:  safety will be improved, delays will be diminished, air traffic controllers will be able to handle more operations more quickly and more efficiently, pilots will be able to fly better, and, oh, it is good for the environment, too.  While, only being a tad sarcastic, it seems that many dreams have been placed on NexGen's shoulders.

There can be no doubt that NextGen is needed.  All of the technical witnesses testified that ATC modernization and NextGen are absolutely critical to maintaining the U.S.'s airspace.  Captain Rory Kay, Executive Air Safety Chairman of ALPA, stated that:

NextGen has the potential to revolutionize the National Airspace System and our air transportation system . . . Forecasted increases in air traffic of two to three times today's traffic cannot be met in today's NAS.

So what are the problems?  First and foremost, it is a question of funding. As former FAA Administrator Marion Blakey stated, in testimony as President and CEO of Aerospace Industries Association:

Much of what is needed for NextGen falls under the category of "new starts" which, as you well know, are prohibited under funding extensions. A large number of FAA NextGen pre-implementation issues - including development and acquisition decisions, have been adversely affected.

Now that FAA Reauthorization has been put on the back burner with the passage of yet another continuing resolution, do not look for these new NextGen projects to see the light of day any time soon.

Another issue is human resources.  NextGen represents a fundamental shift in the responsibilities and practices of pilots and air traffic controllers.  As Patrick Forrey, President of National Air Traffic Controllers Association, stated:

Under the proposed system, air traffic control would shift to what the FAA is euphemistically referring to as "Trajectory Management."  Essentially, air traffic controllers would discontinue active air traffic control and shift instead to air traffic monitoring and route management.  This could have serious implications for the safety of the NAS.

NATCA worries that "air traffic managers" would rely heavily on an automated system and not how to handle an emergency situation should the automated system go down.

For the airlines and general aviation, the problem with NextGen is the "equipage."  NextGen relies on up-to-date technology not only on the ground, but on the aircraft.  In the early 2000's, for example, American Airlines retrofitted its fleet to install the Controller Pilot Data Link Communication system only to have FAA abandon its efforts in 2004.  Airlines probably will be reluctant to equip their fleets until the FAA is able to effectively address the legitimate concern that the technology is good investment.  And that is difficult to do when the funding for the programs to develop the technology is not in place and has not been in place for the past 2 years.

All this assumes that the FAA has in place the management infrastructure to effectively manage and implement NextGen.  Although the GAO pulled ATC Modernization off of its "High-Risk" list, NextGen, as soon as its implementation begins will land on the list.  The GAO has found that the JPDO and ATO have made progress in planning for and developing NextGen, but much is left to do.  As Calvin Scovel, the Department of Transportation Inspector General pointed out, the FAA needs to :

(1) establish[ ] priorities and Agency commitments with stakeholders and reflecting them in budget and plans; (2) manage[ ] NextGen initiatives as portfolios and establish[ ] clear lines of responsibility, authority, accountability; (3) acquire[ ] the necessary skill mix for managing and executing NextGen; and (4) examine[ ] what can reasonably be implemented in given time increments.

Transportation and Infrastructure Committee Chairman James Oberstar (D-Minn.) stated that this was a "foundational" hearing on a topic of importance.  While Congress debates FAA Reauthorization, NextGen and ATC Modernization must move forward.

Lists of Hearing Witnesses and Links to their written testimonies can be found by clicking on the "Continue Reading" link.

 

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Update 3/30/2009:  President Obama has signed HR 1512 the "Federal Aviation Administration Extension Act of 2009," which extends through September 30, 2009, FAA authority to: collect taxes that fund the Airport and Airway Trust Fund; make expenditures from the Airport and Airway Trust Fund; and make grants to airports under the Airport Improvement Program.

Update 3/18/2009: The House and Senate have both passed HR 1512, the Federal Aviation Administration Extension Act of 2009, which extends funding for FAA until September 20, 2009.  The Bill now awaits President Obama's signature.

Various sources are reporting today that the U.S. House of Representatives could vote as early as as tomorrow, March 17, 2009, to extend the FAA’s authorization to operate through the end of September, 2009. 

Since the current extension of authorization runs through the end of March, 2009, any such extension must be completed quickly, most likely under suspension of the rules.  The reports are that the bill will focus only on extending the authorization, as is typical with such measures.

The issue holding up the passage of the full FAA Reauthorization Act of 2009 (HR 915) seems to be a battle between excise taxes and direct user charges.  The Ways and Means Committee, which has opposed user fees, has indicated it will not begin to consider the funding measures contained in the FAA Reauthorization Act until after it can examine the President’s budget. The Obama Administration, in its budget guidelines issued last month, stated its desire to eliminate around $7 billion in "aviation excise taxes" and replace them with direct user charges.  Moreover, this proposal has met with opposition from General Aviation, in part for their belief that the "direct users charges" will impact them, and in part because it is not clear which excise taxes the administration wants to eliminate.

The Obama Administration has indicated that it will send its draft FAA Reauthorization Bill to Capitol Hill by mid-April, 2009, along with its detailed proposal for the federal budget.  That should indicate both which excise taxes it proposes to delete and what sort of direct user charges would replace them.

Meanwhile, the Senate Aviation Subcommittee still has a hearing scheduled for March 25, 2009, to discuss the FAA Reauthorization.

Other Posts on FAA Reauthorization:

• GAO Supplies Responses to Questions Posed at FAA Reauthorization Act Hearing, posted March 11, 2009.
• Several Amendments Made to H.R. 915, FAA Reauthorization Act of 2009, posted March 5, 2009.
• U.S. House Transportation & Infrastructure Committee Holds Hearings on FAA Reauthorization Bill, posted February 14, 2009.

See also:

• FAA Reauthorization Still Faces an Uphill Battle, Aviation International News, posted March 10, 2009.
• House Committee Passes FAA Funding Bill, But Issue Still Far From Resolved, AOPA Online, March 5, 2009.
• FAA Funding Bill Passes Transportation Committee, AVweb, posted march 6, 2009.

 

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With little fanfare, (FAA announced it through a line item buried deep in its website on its "airport noise" page), PARTNER (Partnership for AiR Transportation Noise and Emissions Reduction) began a new website: NoiseQuest: Aviation Noise Information & Resources.  PARTNER, which is  "an FAA/NASA/Transport Canada-sponsored Center of Excellence," has lined up

• The Pennsylvania State University
• Purdue University
• Harris Miller Miller & Hanson Inc.
• Metropolitan Washington Airports Authority
• Palisades Citizens Association
• Wyle Laboratories

to be the sponsors of the site.  Despite the decidedly muted introduction, in setting up the site the sponsors state that the goal of NoiseQuest is to "your source for information on aviation noise. Our main goal is to improve the relationship between airports and their surrounding communities."

To that end, NoiseQuest has set a "community forum" on Wyle Laboratories' "Discussion Forum Website":

The NoiseQuest Community Forum is part of the Wyle Discussion Forum Website. This forum gives you an opportunity to share your ideas, interests, and question. Through this forum, we want to hear and discuss your noise problems and solutions, identify existing, effective outreach and education practices, and to share information between groups or individuals.

.  .  .  .

The NoiseQuest Community Forum can be found on the Wyle Noise Bulletin Discussion Forum List.

In addition to the Community Forum, NoiseQuest has several other sections that attempt to explain in layman's terms aviation noise, what causes it and how it is measured.

While community outreach is an important part of the FAA's strategy with respect to aviation, the community has to feel that not only does it have the opportunity to comment, but that its comments are heard, digested and implemented by the FAA, airports, and airlines.  With the lack of attention that was paid to the roll-out of this website, one wonders if FAA is serious in wanting to start a dialog with the communities surrounding airports about noise and emissions.  This could be a powerful tool in fostering communication between FAA and the communities if it is managed properly and results are taken to heart.  Such communication would be a benefit for the airports, airlines, the communities, and FAA.

Related posts:

• Presentation on Aviation Noise, presented at the AAAE Environmental Management Conference, February 10, 2009.

 

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On March 10, 2009, the GAO made public its response to questions submitted for the record related to the February 11, 2009, hearing concerning  the FAA Reauthorization Act of 2009.  At that hearing, Dr. Gerald Dillingham, Director, Physical Infrastructure Issues, was asked a series of questions to which he replied that he would supply written responses at later date.  This document that GAO has now made public are those responses.

Most of the questions concerned NextGen, its implementation, and potential pitfalls that the GAO believes the FAA will encounter.

1. How can the FAA provide incentives to get aircraft equipped to handle NextGen?

Answer:  Through use of some combination of mandated deadlines, operational credits or equipment investment credits.  FAA has proposed a "best-equipped, best-served" program whereby FAA would offer those aircraft operators who choose to equip their aircraft as soon as possible with various operational benefits, such as preferred airspace, routings, or runway access.  Boeing has proposed a "reverse auction" in which federal investment tax credits would be combined with operational benefits.  This program, however would cost about $750 million annually over and above the cost of the implementation of NextGen.

2. List of NextGen technology demonstration projects

Answer:  See the next page for a table of the demonstration projects.

3. Does the GAO distinguish between ATC Modernization and NextGen?

Answer:  The ATC modernization program focused primarily on the acquisition of ATC systems. NextGen is a total transformation of the air transportation system, representing a paradigm shift from air traffic control to air traffic management. It is a shift from ground based radar control of aircraft to a satellite-based, aircraft-centric national airspace system.

4. If Congress were to provide the level of funding outlined in the FAA's preliminary estimate, approximately $1 billion more through 2012 than the most recent Capital Investment Plan, would it help to accelerate the development and deployment of NextGen?

Yes, if Congress provided FAA with additional funding, that funding could be applied to a variety of projects and initiatives that would help to accelerate the development and deployment of NextGen.

5. Would additional funding help to bridge the so-called "NASA Gap?"

The NASA gap has increased in recent years from both the previous administration's cuts to NASA's aeronautics research funding and the expanded requirements of NextGen.

6. Additional research, development and deployment that could be done with funding over and above FAA's Capital Investment Plan funding levels?

GAO found that avionics development and aircraft equipage are two areas that are critical and time sensitive for the implementation of NextGen and could be candidates for increased funding. In addition, additional funding for human factors to aid in the transition from "air traffic control" to "air traffic management" could be used to elucidate the new roles for all participants.

 

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On Friday, March 6, 2009, the Joint Petitioners in the East Coast Airspace Redesign case now pending in the D.C. Circuit Court of Appeals, filed their Reply Brief, arguing that the FAA failed to comply with 4(f) of the Department of Transportation Act, the Clean Air Act and NEPA.

The Reply Brief takes the FAA to task for failing to consult with the state and local authorities regarding the tremendous impact that the Airspace Redesign will have on "4(f) properties," that is, state and local parks, and wildlife preserves.  It also points out that the FAA is in violation of the Clean Air Act, because it failed to establish that the Airspace Redesign would conform with the Clean Air Act.  Finally, the Reply Brief, argues that the FAA violated NEPA by not following its own regulations concerning aircraft noise in assessing the noise impacts of the Airspace Redesign.

Briefing for the case is now completed and oral argument is scheduled for 9:30 a.m.. on May 11, 2009, in front Judges Sentelle, Ginsburg, and Randolph at the E. Barrett Prettyman United States Courthouse, 333 Constitution Ave. NW, Washington, D.C..  Senators Dodd (D - Conn.) and Specter (R - Pa.) filed a amicus curiae brief supporting the Petitioners' Petition for Review to have the Airspace Redesign vacated and remanded back to the FAA.  The New Jersey Attorney General, Anne Milgram also filed an amicus brief in support of the Petitioners.

Other Posts regarding this Litigation:

• FAA Files Its Brief in the East Coast Airspace Redesign Lawsuit, posted January 13, 2009
• New Jersey Attorney General Files Amicus Brief in the Airspace Redesign Litigation, posted September 12, 2008.
• Sens. Specter and Dodd File a Joint Amicus Brief in the East Coast Airspace Redesign Litigation, posted September 8, 2008.
• Petitioners' Opening Brief, posted September 3, 2008.
• Update of Airspace Redesign Litigation, posted April 28, 2008.
• Airspace Redesign May Not Reduce Fuel Consumption for the Airlines as FAA Claims, posted March 18, 2008

 

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On March 4, 2009, Rep. James Oberstar (D. Minn.), the Chairman of the House Transportation and Infrastructure Committee offered several amendments to  H.R. 915, The “FAA Reauthorization Act of 2009."  The following summary of the changes was provided:

Funding of FAA Programs

Revises sections 101, 102, and 104 of H.R. 915 to better align the Federal Aviation Administration’s (“FAA”) Airport Improvement Program (“AIP”) and Facilities & Equipment (“F&E”) funding provisions with the account structure outlined in the FAA’s National Aviation Research Plan. The manager’s amendment moves the Airport Cooperative Research Program and Airports Technology Research funding from the Research, Engineering and Development (“RE&D”) account to the AIP. Similarly, the manager’s amendment shifts funding for the Center for Advanced Aviation System Development from the RE&D account to the F&E account. The manager’s amendment also reduces total funding for RE&D by the same amount as the programs shifted to AIP and F&E.

Authorized Expenditures

Revises section 106(k) to improve safety for medical helicopters by reauthorizing funding for the development and maintenance of approach procedures for heliports that support all-weather, emergency services. This provision was originally included in Title 49 by AIR 21 (P.L. 106-181).

Revises section 106(k) to reauthorize funding for the Alaska aviation safety project with respect to three-dimensional terrain mapping of Alaska’s main aviation corridors for pilot training. This program was originally included in Title 49 by Vision 100 (P.L. 108-176).

Funding for Aviation Programs

Revises section 105 to change the amount initially made available from the Airport and Airway Trust Fund (“Trust Fund”) to support FAA’s budget from 95 percent of the estimated Trust Fund revenues, to 90 percent. This change would provide greater room for error in revenue estimates until the actual level of revenues received for that year is known, and an adjustment is made to reconcile actual amounts deposited to the Trust Fund with actual amounts appropriated from it. Given recent revenue estimates, a 10 percent margin of error is necessary. A year ago, fiscal year (“FY”) 2009 revenues were estimated to be $13.04 billion, but are now estimated to be $11.68 billion, a decrease of approximately 10 percent.

Qualifications-Based Selection

New section 113 requires Qualifications Based Selection (“QBS”) to be used to select planning, architectural and engineering contracts for any airside project funded by Passenger Facility Charges (“PFC”). QBS is an open, competitive procurement process where firms compete on the basis of qualifications, past experience, and the specific expertise they can bring to the project. QBS is currently applicable to planning, architectural, and engineering contracts that utilize AIP funding. Many airports use a mixture of PFC and AIP funds for airside projects.

Solid Waste Recycling Plans

New section 150 requires that airport master plans address the feasibility of solid waste recycling. The Secretary of Transportation may approve a grant for an airport project only if he is satisfied that the airport has a master plan that addresses the feasibility of solid waste recycling at the airport and minimizing the generation of solid waste at the airport. This provision also clarifies that solid waste recycling plans at airports are AIP-eligible by broadening the definition of airport planning.

Personal Net Worth Test for Disadvantage Business Enterprise Programs

New section 137 adjusts the personal net worth (“PNW”) cap for the Disadvantaged Business Enterprise (“DBE”) program as it relates to airport construction projects and airport concessions. To be certified as a DBE (for airport contracting) or an airport concession DBE (“ACDBE”) an individual business owner must be economically disadvantaged. Currently, to be considered economically disadvantaged, a business owner must, among other requirements, have a PNW that does not exceed $750,000, excluding the equity in the individual’s primary residence and the value of their ownership interest in the firm seeking certification. Individuals seeking an ACDBE certification may exclude other assets that the individual can document, which are necessary to obtain financing or a franchise agreement for the initiation or expansion of his or her ACDBE firm (or have in fact been encumbered to support existing financing for the individual's ACDBE business), up to a maximum of $3 million. This provision would adjust the personal net worth cap for inflation for both programs, making an initial adjustment to correct for the impact of inflation since the cap was originally imposed by the Small Business Administration in 1989, and then making annual adjustments thereafter.

Airport Security Program

Revises section 144 of H.R. 915. The manager’s amendment amends 49 U.S.C. 47137 to allow FAA more flexibility to award contracts, cooperative or other agreements in addition to grants, to a consortium composed of public and private persons including an airport sponsor. The provision also reiterates the DOT’s and other agencies’ obligation to cooperate and provide technical expertise as needed to administer the program, while the DOT retains overall program oversight and funding responsibility. The provision specifies that the award designee be a nonprofit consortium with at least ten years of demonstrated experience in testing and evaluating anti-terrorist technologies at airports. The annual authorization for this program is increased from $5 million to $8.5 million. This provision was originally included in Title 49 by AIR 21 (P.L. 106-181) and amended by Vision 100 (P.L. 108-176).

Airport Master Plans

New section 151 requires the Secretary of Transportation (“Secretary”) to encourage airports to consider customer convenience, airport ground access, and access to airport facilities in airport master plans.

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The U.S. House Committee on Transportation and Infrastructure has proposed H.R. 915, the FAA Reauthorization Act of 2009.  Since funding authorization for aviation programs and authorization for taxes and fees that provide revenue for the FAA expired at the end of fiscal year 2007 and revenue collections and FAA programs have been extended several times (until March 31, 2009), this bill is a priority item for the FAA. What follows is a summary of the provisions of the Reauthorization Bill.

Funding & Financing

• Taxes on aviation users will be increased - Passenger flight segment tax increased to $3.60; International departure and arrival taxes increased to $16.10; Alaska Hawaii facilities tax increased to $8.00.
• Provides historic funding levels for the FAA’s programs between 2009 and 2012, including $16.2 billion for AIP; $13.4 billion for Facilities and Equipment; $38.9 billion for operations; and $1.35 billion for Research, Engineering and Development.

Airports

• Makes several modifications to the current AIP distribution formula that provide significant increases in AIP funding for smaller airports, which are particularly reliant on AIP for capital financing, as well as more AIP discretionary funding.
• Increases Passenger Facility Charge from $4.50 to $7.00.  This provision was strongly supported by Jim Elwood, representing the American Association of Airport Executives.

ATC Modernization and NextGen

• Provides $13.4 billion for the FAA's Facilities and Equipment account.
• Increases the authority and visibility of the Joint Planning and Development Office.
• Requires the JPDO to develop a work plan that details, on a year-by-year basis, specific NextGen-related deliverables and milestones.
• FAA wants to emphasize "infrastructure" improvements at the nations' airports, which includes a full roll-out of NextGen.

Safety

• Includes several safety provisions, such as authorizing additional funds for runway incursion reduction programs and the acquisition and installation of runway status lights.
• Increases the number of aviation safety inspectors and requires safety inspections of foreign repair stations at least twice a year.
• Directs FAA to commence a rulemaking to ensure that covered maintenance work on air carrier aircraft is performed by part 145 repair stations or part 121 air carriers.
• Creates an independent Aviation Safety Whistleblower Investigation Office within the FAA charged with receiving safety complaints and information submitted by both FAA employees and employees of certificated entities.
• Directs FAA to modify its “customer service initiative” to remove air carriers or other entities regulated by the FAA as “customers.”
• Adds a two-year “post-service” cooling off period for FAA inspectors and requires principal maintenance inspectors to rotate between airline oversight offices every five years.

Small Communities

• Increases the total amount authorized for Essential Air Services each year from $127 million to $200 million.
• Requires 50% of over-flight fees collected in excess of $50 million be dedicated to EAS.
• Authorizes the Secretary to enter into long-term EAS contracts that would provide more stability for participating air carriers.
• Reduces local share of AIP projects from 10% to 5% for economically depressed communities.
• Includes several provisions to mitigate the effects of increases in aviation fuel costs by increasing the existing $200 per passenger subsidy cap.
• Extends the Small Community Air Service Development Program through fiscal year 2011, at the current authorized funding level of $35 million per year.

Consumer Protections

• Includes several provisions to ensure passenger needs are met including a mandate that air carriers and airports submit emergency contingency plans and detail in their plans how they allow passengers to deplane following excessive delays.
• DOT is required to publicize and maintain a hotline for consumer complaints, establish an Advisory Committee for Aviation Consumer Protection, expand consumer complaints investigated, and require air carriers to report diverted and canceled flight information monthly.
• DOT Inspector General is asked to report on the causes of air carrier flight delays and cancellations.

Environmental Provisions

• Includes several provisions related to the environment, noise mitigation and land use initiatives, including:
  • An environmental mitigation pilot program;
  • The phasing out of noisy Stage II aircraft;
  • An aircraft departure queue management pilot program;
  • Broadened AIP eligibility to include several energy saving terminal projects; and
  • Requirements for the FAA to build sustainable air traffic control facilities.
• Allows airport operators to reinvest the proceeds from the sale of land that an airport acquired for a noise compatibility purpose, but no longer needs for that purpose, giving priority, in descending order to:
  • Reinvestment in another noise compatibility project;
  • Environmentally-related project
  • Another otherwise-eligible AIP project;
  • Transfer to another public airport for a noise compatibility project; or
  • Payment to the Trust Fund.
• Provides authorization for the Continuous Lower Energy, Emissions and Noise (“CLEEN”) Engine and Airframe Technology partnership to develop, mature and certify CLEEN engine and airframe technology for aircraft over the next 10 years.

Labor

• Modifies the dispute resolution process for proposed changes to the FAA personnel management system, and replaces it with a new dispute resolution process.
• Applies the new dispute resolution process to the ongoing dispute between NATCA and the FAA. That is the changes implemented by the FAA on and after July 10, 2005, would be null and void and the parties will be governed by their last mutual agreement.
• Amends the Railway Labor Act to clarify that employees of an “express carrier” shall only be covered by the RLA if they are employed in a position that is eligible for certification under FAA’s rules and they are actually performing that type of work for the express carrier.
• Requires an assessment of training programs for controllers and air traffic technicians.
• Requires that FAA include employee unions as stakeholders in the development and planning for NextGen.
• Requires the establishment of a Task Force on Air Traffic Control Facility Conditions to determine whether employees are exposed to dangerous environmental conditions in their work place.
• Requires the Secretary to establish within the FAA a working group to develop criteria and make recommendations for the realignment and consolidation of services and facilities.

Aviation Insurance

• Extends requirement until September 30, 2012, that the FAA provide U.S. airlines’ aviation insurance from the first dollar of loss at capped premium rates, after which the requirement becomes discretionary until September 30, 2019.
• After December 31, 2019, such insurance must be provided instead by airline industry-sponsored risk-sharing arrangement approved by the Secretary.

Next Article: Summary of Comments regarding Safety Provisions.

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On February 3, 2009, the U.S. Court of Appeals for the District of Columbia Circuit denied a petition for review of the Federal Aviation Administration’s (FAA) “presumed to conform rule.”  72 Fed.Reg. 41565 (July 30, 2007).  

Under the “presumed to conform rule” the FAA can avoid its obligation under the Clean Air Act to assure that its projects “conform to an implementation plan after it has been approved or promulgated under section 7410" of the Clean Air Act.  42 U.S.C. 7506(c).  The FAA used its presumed to conform rule as one of the justifications for its failure to perform a conformity determination in the East Coast airspace redesign.

Although the Court found that the Petitioners did not have standing to bring the petition for review, the petition was successful in at least a couple regards.  First, the decision was based on the predicate issue of standing, and did not reach the merits of the Petitioners’ argument that the FAA had not complied with federal law in the promulgation of its presumed to conform rule.  Thus, that argument may be raised by the Petitioners in the East Coast airspace redesign litigation now pending before the D.C. Circuit.

Second, by bringing this case, Petitioners exhausted their legal remedies with respect to a "facial" challenge to the FAA's presumed to conform rule.  The opinion in this case leaves the validity of the FAA’s presumed to conform rule on the table, ripe for the court’s consideration in the airspace redesign litigation.

That being said, the court’s opinion is not without error.  For example, the court states that the “Petitioners challenge two recent FAA actions in which the FAA altered the air traffic control activities at airports . . .” Opinion, p.4.  However, that, in fact, is not the case.  As stated in the Petitioners’ brief, the issue was whether the FAA followed the rules set out by the EPA in 40 CFR 93.153 in promulgating its presumed to conform rule.  By confusing the Petitioners’ facial challenge of the FAA’s presumed to conform rule for an “as applied” challenge, the court mistakenly applied incorrect facts and law to the matter that resulted in error in the outcome.

You can read the pleadings in this matter right here:

• County of Delaware’s Opening Brief;
• FAA’s Response Brief;
• County of Delaware’s Reply Brief.

In addition, the EPA is revising the regulations governing conformity. They expect to issue new regulations in early 2009. A group of cities and concerned companies filed comments on the EPA’s proposed revisions and asked the EPA to eliminate the “presumed to conform” rule from the regulations.

Other blog posts on this topic:

• "FAA's Presumed to Conform Rule Will Affect Communities Around Airports."   Posted August 8, 2008.

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The U.S. Government Accountability Office today removed FAA air traffic control modernization program in its biennial update of its list of federal programs, policies, and operations that are at "high risk' for waste, fraud, abuse, and mismanagement or in need of broad-based transformation.  See, High Risk Series:  An Update, issued January 22, 2009.

The GAO added FAA air traffic control modernization to the High-Risk List in 1995 due to cost overruns, schedule delays, and performance shortfalls in the FAA attempts to modernize its air traffic control system.  However, the GAO has found that the FAA is making progress in "addressing most of the root cause of its past problems."  The GAO concluded that the FAA's efforts "have yielded results, including deploying new systems across the country and incurring fewer cost overruns." 

That being said, the GAO warned the FAA that it "will be closely monitoring FAA’s efforts because the modernization program is still technically complex and costly, and FAA needs to place a high priority on efficient and effective management."  Moreover, because FAA has now extended its modernization efforts to plan for a next-generation air transportation system that is to transform the current radar-based system to an aircraft-centered, satellite-based system, it must fall into the same pitfalls "that have plagued it in the past."

One thing missing from the GAO report is any discussion about how resolving the labor issues with the Air Traffic Controllers would affect the modernization effort currently underway.  With the emphasis in the GAO Report on equipment and deployment of that upgraded equipment, one wonders about making sure that the humans operating that equipment are well-trained and well-paid.

Other information regarding this document:

• GAO's 2009 High-Risk Series in a list format
• Summary of the GAO Report "High-Risk Series:  An Update"
• Highlights of the GAO Report "High-Risk Series:  An Update"

 

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The FAA today issued a Notice of Amendment to Order indicating that it is amending its December 12, 2006 Order, which temporarily capped the scheduled operations at New York's LaGuardia Airport.  The FAA published a final rule instituting longer-term regulation involving auctions of slots, but that rule is currently stayed pending review by the U.S. Court of Appeals for the Second Circuit in New York.  (See, "D.C. Court of Appeals Stays Slot Auctions at JFK, Newark and LaGuardia," posted Dec. 9, 2008).  In this Amendment, the FAA is "mov[ing] toward an hourly limit of 71 operations from 6 a.m. through 9:59 p.m. Eastern Time, Monday through Friday, and 12 noon through 9:59 p.m., Eastern Time, on Sunday."

Unlike with the final rule, under this amendment, the FAA states that it will not force air carriers to relinquish Operating authorizations at the airport, and instead it will "accept voluntary flight reductions for the duration of the Order."  The FAA will then retire the surrendered Operating Authorizations until an hourly average of 71 scheduled operations is achieved.  If the final rule comes into effect and further reductions are necessary, air carriers that voluntarily surrendered their Operating Authorizations will be credited.  In order to receive credit for the voluntary reduction in the future, though, an air carrier must present its offer to reduce scheduled service at LaGuardia no later than February 2, 2009.

The following comments were received by the FAA: 

• Comments of Air Carrier Association of America
  
• Comments of Airports Council International-North America
• Supplemental Comments of American Airlines
• Comments of the Port Authority of New York and New Jersey
• Comments of Coalition for an Airline Passengers' Bill of Rights
• Comments of Lehigh-Northamption Airport Authority
  
• Comments of Delta Airlines, Inc.
  
• Comments of US Airways Group, Inc.
  
• Comments of Midwest Airlines, Inc.
  
• Comments of Jetblue Airways, Inc.
• Supplemental Comments of Delta Airlines, Inc.
• Comments of American Airlines, Inc.

 

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After several months of delays, the FAA filed its Brief for Federal Respondents in the East Coast Airspace Redesign case that is pending before the U.S. Court of Appeals for the District of Columbia Circuit.  As expected, the brief alleges simply that the FAA performed the Environmental Impact Study for the airspace redesign "adequately" - which is all that is required under NEPA - "adequately" addressing cumulative impacts, "adequately" analyzing noise impacts, and "properly" assessing environmental justice impacts.

There is one interesting note contained in the Brief.  The FAA argues that the Airspace Redesign is "presumed to conform" with the Clean Air Act (Brief, p.108).  If the project is "presumed to conform" the FAA can forego its duty under the Clean Air Act from performing a conformity applicability analysis.  This position is contrary to the position that the FAA took in a lawsuit brought by Delaware County, Pennsylvania, in which the FAA argued the Airspace Redesign project did not rely on the presumed to

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In the January 9, 2009, edition of the Federal Register, the FAA announced that the Record of Decision (ROD) for the development and expansion of Runway 9R/27L and other associated airport projects at Fort Lauderdale-Hollywood International Airport is now available.  With the publication of this notice in the Federal Register, opponents of the project have 60 days (i.e., until Tuesday, March 10, 2009) to file a Petition for Review of the ROD and the Final Environmental Impact Statement (FEIS).

The FAA identified "Alternative B1b" as its "preferred alternative" in the ROD.  That was also its preferred alternative in the FEIS.  This alternative includes the expansion of Runway 9R/27L ti an overall length of 8,000 feet and width of 150 feet.  The runway will extend to the east without encroaching onto NE 7th Avenue and would be elevated over the Florida East Coast Railway and U.S. Highway 1.  The western extent of the runway is the Dania Cut-Off Canal.  Alternative B1b also includes the following projects:

• construct a new full-length parallel taxiway 75 feet wide on the north side of Runway 9R/27L with separation of 400 feet from 9R/27L;
• contruct an outer dual parallel taxiway that would be separated from the proposed north side parallel taxiway by 276 feet;
• construct connecting taxiways from the proposed full-length parallel taxiway to existing taxiways;
• construct an Instrument Landing System (ILS) for landings on Runways 9R and 27L;
• Runway 13/31 would be decommissioned and permanently closed due to the increased elevation of the expanded Runway 9R/27L at its intersection with Runway 13/31.

Opposition to the expansion centers around the increased noise that the expansion will bring, as well as damage to the surrounding environment.

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The White House announced today, January 6, 2009, that Lynne A. Osmus will take over for Bobby Sturgell effective January 16, 2009.  Near the end of a "personnel announcement," announcing many of President Bush's last minute appointments is the the statement:  "The President intends to designate Lynne A. Osmus, of Virginia, to be Acting Administrator of the Federal Aviation Administration, to become effective January 16, 2009."

Ms. Osmus is currently the FAA Assistant Administrator for Security and Hazardous Materials, a position she has held since July 1, 2003.  She has been with the FAA since 1979, and an executive since 1990, primarily in the field of aviation security.  She was appointed to be the Deputy Associate Administrator of FAA's Civil Aviation Security Program just three months prior to the 9/11 attacks and then led the FAA's transition of the security programs to the TSA.

More recently, Ms. Osmus was designated as the "transition executive" for the Obama Transition team.  This reunited her with her old boss Jane Garvey, the former FAA Administrator under President Clinton, for whom Ms. Osmus was Chief of Staff.  Ms. Garvey is a member of the Obama Transition team and had been mentioned as a possible nominee for Secretary of Transportation.

• Lynne A. Osmus' Bio on the FAA Website
• Ms. Osmus' testimony before Congress on commercial aircraft transporting Priority Mail (4/23/1991).
• Ms. Osmus' testimony before Congress on protection of air travelers from terrorist attacks (3/5/1991).
• Ms. Osmus is mentioned in an article about the trial of 9/11 conspirator Zacarias Moussaoui. (3/15/2006)
• News article indicating that Ms. Osmus was scheduled to tesitfy at the trial concerning the ValuJet crash.  (11/16/1996)
• News article quotes Ms. Osmus regarding the security situation at Lagos, Nigeria, airport.  (5/2/1993)
• Ms. Osmus is cited on a website about a speech she gave regarding the transition of security functions to the TSA from the FAA.  (4/3/2002)

The appointment comes as a bit of a surprise, since the current Acting Administrator, Bobby Sturgell, has not been reported as having resigned.  That being said, it was widely assumed that he would be stepping down at the end of the Bush Administration since his effort to remove the "acting" from his title was unsuccessful.  In addition, reports from sources in the FAA had indicated that Mr. Sturgell had presented Ms. Osmus as the new Deputy Administrator in an internal e-mail as recently as Monday, January 5, 2009.

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The U.S. Court of Appeals for the District of Columbia Circuit granted a stay of the slot auctions that were scheduled to take place on January 12, 2009, pending arguments on whether the FAA has the legal authority to auction the slots.

Although the court's order does not go into any details as to why it is granting the Motion for Stay beyond stating that the Petitioners "have satisfied the stringent standards required for a stay pending court review," this is a significant victory for the Petitioners.  First, in order to obtain a stay one must show, among other things, "irreparable injury" and "likelihood of success on the merits."  This standard is a high one that is rarely surmounted.  Thus, it is an indication that the court is looking favorably upon the Petitioners' case.

Second, it pushes the date for the first slot auctions beyond the change of administrations.  The opponents of the slot auctions fervently hope that the Obama Administration will be more receptive to their pleas that slots auctions will not solve the problems at the New York/New Jersey airports.  With the change of administrations, there is hope among the opponents of the slot auctions that "a new, workable plan to reduce flight delays and give New York's airspace and airports the upgrade they need and deserve."

Petitioners' statements regarding the court's ruling:

• Port Authority of New York and New Jersey
• Air Transport Association of America

Neither the Department of Transportation nor the FAA have any press release or statement on their websites regarding the court's ruling.  However, the wire services and newspapers are reporting that Sarah Echols, a spokeswoman for the Department of Transportation, said:  "Today's court decision is bad news for travelers seeking a better flying experience in and out of the New York region.  We are committed to our goal of protecting travelers, giving passengers more options and improving the air travel experience, and will continue to assess our options to provide relief."

Previous blog posts regarding slot auctions:

• FAA Proposes Congestion Management Rule for JFK and Newark (May 21, 2008)
• FAA Issues Order Limiting Scheduled Operations at Newark Liberty (May 21, 2008)
• FAA Suspends Auction of Flight Slots at Newark (August 29, 2008)
• GAO Declares that the FAA Does Not Have Legal Authority to Auction Slots (October 1, 2008)
• Despite GAO Ruling FAA Issues Congestion Management Rules for JFK, LaGuardia and Newark (October 12, 2008)
• Legal Analysis of FAA's Slot Auction Rule for JFK and Newark, Part 1 (October 26, 2008)
• Legal Analysis of FAA's Slot Auction Rule for JFK and Newark, Part 2 (October 28, 2008)

Other news articles:

• The New York Times, Court Order Delays Auction of Landing Slots at Airports
• Business Week, Court blocks FAA plan to auction NYC-area slots
• The Dallas Morning News, Court blocks auction of NY airport slots
• The Associated Press, Court blocks FAA auction of airport slots
• The Wall Street Journal, Court Blocks Plan to Auction Landing Slots at New York Airports

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In a speech given yesterday to the Department of Transportation, President Bush stated that in:

an age when teenage drivers use GPS systems in their cars, air traffic controllers still use World War II-era radar to guide modern jumbo jets.  That doesn't seem to make any sense to me, and I know it doesn't make sense to the Secretary [of Transportation] and a lot of folks in this audience. Modernizing our aviation system is an urgent challenge.  So today, I'm signing an executive order that makes this task a leading priority for agencies across the federal government.

Since implementation and funding for the "Next Generation Air Transportation System" (NextGen) is contained in the FAA Reauthorization bill, which is stalled in Congress over issues like Acting FAA Administrator Bobby Sturgell's appointment to a full term, the East Coast Airspace Redesign, and Climate Change, Pres. Bush sought to take matters into his own hands by issuing an Executive Order.

The Fact Sheet that accompanied Pres. Bush's speech, claims that the Executive Order

. . . strengthens DOT's coordination with other Federal agencies. The EO will help transform the national air transportation system and effectively implement the NextGen Initiative (Next Generation Air Transportation System) that utilizes satellite-based guidance technology, which is safer, more secure, affordable, and environmentally friendly.

Although the Executive Order does set up a "Senior Policy Committee," and involves the Secretaries of Defense, Commerce and Homeland Security as well as the Secretary of Transportation, the Executive Order seems to be toothless without funding, which can only be supplied (to the extent that NextGen requires it) by Congress.  In essence, the Executive Order simply states that the Secretary of Transportation will take appropriate action to implement NextGen (as stated in Section 709 of Vision 100-Century of Aviation Reauthorization Act) and recommend action for the President to take.

As reported by AvWebBiz, according to Doug Church, spokesman for the National Air Traffic Controllers Association, "[The executive order] certainly appears like yet another new red bow on the same old box, which remains empty. Is the administration now saying modernizing our aviation system was NOT a leading priority up until today?"

President Bush also addressed several other aviation topics in speech:

• Mentioned that the FAA will "start auctioning takeoff and landing slots at New York airports"in January, thus siding with the FAA over the GAO in the intra-governmental spat;
• Suggested giving airlines incentives to "boost efficiency" and encourage them to use larger planes out of the New York area.
• Mentioned that three new runways would be opening up this week at Seattle-Tacoma, Washington-Dulles, and Chicago O'Hare.
• Completion of regulations that provide increased protection for consumers, specifically a measure that will require airlines to provide greater compensation for lost bags as well as tougher penalties when airlines fail to notify travelers of hidden fees.

Related articles:

• "President Bush Orders Priority Action on ATC Modernization." AvWeb, November 19, 2008.
• "President Bush Signs Executive Order To Make Modernization of Aviation System a Top Priority."  RTT News, November 18, 2008.
• "Executive order focuses on NextGen."  AOPA Online, November 19, 2008.
• "Bush Unveils Operational Initiatives."  Aviation Week online, November 19, 2008.

 

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The GAO released its Report to Congressional Committees on the FAA's "Voluntary Airport Low Emissions" (VALE) program on November 10, 2008.  Entitled Aviation and the Environment:  Initial Voluntary Low Emissions Program Projects Reduce Emissions, and FAA Plans to Assess the Program's Overall Performance as Participation Increases, the GAO reports on how the VALE has been implemented and the outcomes attributable to it.

In 2003, Congress established VALE to reduce airport ground emissions at commercial service airports in areas failing to meet or maintain air quality standards.  FAA administers the program and provides funding for it through Airport Improvement Program grants or Passenger Facility Charges.  Participating airports receive credits for the emission reductions achieved through VALE projects.  Airports can then use these credits to offset emissions resulting from development projects to comply with federal Clean Air Act requirements.

The GAO reports that as of September, 2008, only 9 of the 160 airports that were eligible had or were planning to initiate a VALE project.  Those airports are:

• Bush Intercontinental Airport, Houston, TX
• Hobby Airport, Houston, TX
• Detroit Metropolitan Airport, Detroit, MI
• Erie International Airport, Erie, PA
• Greater Rochester International Airport, Rochester, NY
• Albany International Airport, Albany, NY
• Stewart International Airport, Newburgh, NY
• Westchester County Airport, White Plains, NY
• Philadelphia International Airport, Philadelphia, PA

Although FAA expects participation in VALE to increase as more airports become familiar with the program, GAO reported that non-participating airports stated they were aware of the program, but did not want to participate.  One reason for the lack of participation is that some airports have a misperception that VALE projects compete with other projects for AIP funding, thereby limiting the funds an airport could receive for other projects.  VALE projects, however, are funded through discretionary AIP set-aside for noise and emission projects.

This is not to say that VALE is not without success. Houston Hobby Airport and Bush Intercontinental Airport have both taken advantage of the program to obtain emission credits for planned construction projects.  Likewise, Philadelphia International Airport plans to use the program to satsify CAA conformity requirements to offset emissions produced in the constructionof its ongoing capacity enhancement project.

Despite the marked lack of participation, FAA seeks to use VALE as a "new model for government efforts to promote clean fuels and technology."  For this reason, the FAA and the GAO point out that EPA is recommending in current proposed revisions to its General Conformity Regulations that the VALE system for granting emissions credits be expanded to all action subject to General Conformity Regulations.

Related articles and documents:

• US green airport scheme fails to take off, Businessgreen.com, November 11, 2008.
• EPA Proposed Revisions to General Conformity Rules, Aviation and Airport Development Law Blog, March 7, 2008.
• Guidance on Airport Emission Reduction Credits for Early Measures Through Voluntary Airport Low Emission Programs.  EPA, 2004.
• Aviation and the Environment:  Strategic Framework Needed to Address Challenges Posed by Aircraft Emissions, GAO, Feb. 28, 2003.

 

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Anyone who has recently traveled for business, read the business section of the local newspaper, or watched CNN knows that the airline industry is in dire economic straits.  Pundits typically attribute that weakness to increased fuel prices.  But the reality is that the deterioration began at almost the same time as the passage of the Airline Deregulation Act in 1978 and results from at least two major factors:  (1) predatory competition pitting legacy carriers against startups; and (2) the airlines' flawed business model which depends on "hubbing," an expensive process of concentrating resources in a few locations to aggregate as much demand as possible (versus "point to point" operations, a model used consistently and successfully for the entire period since the advent of deregulation).

The Airline Deregulation Act was Congress' test of the viability of transforming the airline industry, an industry that had, until that time, been considered in the nature of a regulated utility, into a model of the benefits of economic competition.  Specifically, the ADA eliminated Federal control over airline routes and pricing, and prohibited any local or state government from exercising that control.  Its intended purpose was to increase competition thus expanding service and lowering prices to the public.

The fundamental problem with this conversion from utility to free market is that is ignores the fundamental reality that airlines like other transportation industry components have never been able to survive for long without government subsidies.  They are continuously subsidized out of the taxpayers' pockets in at least two ways:  (1) construction and improvement of airports upon which airlines operate are paid for 80-90% by grants from the Federal Aviation Administration ("FAA"), to which development airlines contribute through landing fees and other charges; and (2) in times of economic upheaval such as the aftermath of 9/11, they received direct gifts from the government to keep them afloat.  Until September/October, 2008, when banks began getting Federal government handouts, airlines were among the principal U.S. businesses relying upon such taxpayer largesse.

A debate has now arisen within the airline industry cncerning the wisdom of some form of re-regulatoin.  On the one hand, Robert Crandall, former President of American Airlines, argues, in his article of June 16, 2008, in Aviation Week and Space Technology, that "unfettered competition does not work.  Airlines are more like utilities," and that "a fundamental problem is how the industry prices its product.  The instant perishability of empty seats and the impossibility of quickly reducing fixed costs when demand falters, create a temptation to sell seats too cheaply."  He suggest, among other things, some combination of "modest price regulation," and "capacity controls at congested airports, revised bankruptcy and labor laws, and a more accommodating stance toward industry collaboration."  Id., see also, Aviation Week and Space Technology, October 27, 2008.

On the other hand, those who disagree contend that deregulation should be extended to "completing the move to deregulation in areas as foreign investment [in U.S. airlines] laws, security mandates, bankruptcy reform, and operational restrictions."  Id.

Whichever way it goes in the future, the traveler is being squeezed now.  Aircraft operations are being cut back, services are being eliminated, delays are increasing, baggage incurs additional charges, and, adding insult to injury, travelers are paying "fuel surcharges."  Ironically, however, deregulation has also allowed airlines to consolidate, thus freezing out startups, and raising prices to the public, the opposite of the effect deregulation was supposed to have had.  No one argues that airlines are not an indispensable part of the nation's transportation system.  It is, therefore, clear tha they will have to continue to survice and, hopefully, to thrive.  However, the question raised by Bob Crandall, i.e., whether a heavily subsidized airline industry can survive in the guise of free market enterprises, still hangs in the air.

Related Articles:

• Remarks of Michael E. Levine, "Airline Survival in a Tough World."  Speech before the The International Aviation Club, July 29, 2008.
• "The 'Tragedy of the Commons' and Airport Congestion Management," Steven M. Taber.  Blog post, September 22, 2008.
• "The Threat of Latter-Day 'Progressives' to an Authentically Liberal Economic Policy," Alfred E. Kahn.  Working Paper 08-03, January, 2008, Reg-Markets Center.

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On October 28, 2008, Acting FAA Administrator Bobby Sturgell rolled out the FAA's 2009-20013 "Flight Plan" at a speech in Oklahoma City, Oklahoma.  The "Flight Plan," in which FAA sets goals for itself, is "the strategic plan for the agency, the plan to help [the agency] prepare for the future."  In the past year, for example, as Acting Administrator Sturgell pointed out, the FAA "reached 25 out of 29 goals," with the remaining goals "probably" being achieved by November 20, 2008.  In other words, the goals set in the Flight Plan are projects and issues that the FAA has good reason to believe it can achieve over the stated planning horizon.

Priority one, according to the Flight Plan, is "dealing with congestion and delays . . . both in the air and on the ground.  Toward that end, the FAA plans to "identify and address capacity-constrained airports and metropolitan areas."  The FAA has identified Atlanta, Chicago Midway, Fort Lauderdale, John Wayne Orange County (CA), Las Vegas, Long Beach, Oakland, Phoenix, San Diego and San Francisco as being "capacity constrained" and provided these airports with a "toolbox" which includes "technological, procedural, and infrastructure improvements to be considered for implementation at airports based on additional capacity needs in the future."

In addition, in FY 2009, the FAA plans to "increase aviation capacity and reduce congestion in the 7 metro areas and corridors that most affect total system delay."  Those areas are:  San Francisco, Los Angeles, Las Vegas, Chicago, Charlotte, New York and Philadelphia.  Apart from continuing the controversial airspace redesign for the New York/New Jersey/Philadelphia Metropolitan area, and the slot auctions for JFK, Newark and LaGuardia, which all spawned lawsuits, the FAA plans on moving forward with the redesign of the airspace for the remaining 7 metro areas.

 

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Analysis of Legal Issues Regarding Slot Auctions, Part Two.

Having established previously that the FAA does not have specific authority to lease or otherwise dispose of slots, FAA turns to its general power to dispose of property in order to justify its auctioning of the slots.  Under 49 U.S.C. 106 FAA is authorized to:

acquire, construct, improve, repair, operate, and maintain . . . real and personal property . . . and to lease to others such real and personal property . . .” as well as to enter into “such contracts, leases, cooperative agreements, or other transactions as may be necessary to carry out the functions of FAA.

49 U.S.C. 106(l).  In addition 49 U.S.C. 40110 authorizes FAA “[to] dispose of an interest in property for adequate compensation . . .”  Thus, the FAA theorizes, if a slot is “property,” then by virtue of these three provisions it has all the authority it needs to dispose of the “property.”  

Leaving aside the statutory construction arguments that the FAA’s property disposition authority does not extend to such evanescent and intangible property rights as “slots,” the real legal question comes down to this:  Are slots a property right owned by the FAA?  

The controversy turns an interpretation of Cleveland v. United States, 531 U.S. 12 (2000), which was mentioned in the GAO Legal Opinion, IATA’s comments and ATA’s comments.  Cleveland stands for the proposition that the government’s regulatory powers to issue licenses to do something which otherwise would not be permitted does not create a property right for the government.  It only becomes a property right to the licensee after the issuance of the license.  In Cleveland, Louisiana claimed that licenses it issued to run video poker devices were its “property.”  The U.S. Supreme Court saw it a little differently:

Without doubt, Louisiana has a substantial economic stake in the video poker industry.  The State collects an upfront “processing fee” for each new license application . . ., a separate “processing fee” for each renewal application . . ., an “annual fee” from each device owner . . ., an additional “device operation” fee . . ., and, most importantly, a fixed percentage of net revenue from each video poker device . . . It is hardly evident, however, why these tolls should make video poker licenses “property” in the hands of the State.  The State receives the lion share of its expected revenue not while the licenses remain in its own hands, but only after they have been issued to licensees.  Licenses pre-issuance do not generate an ongoing stream of revenue.  At most, they entitle the State to collect a processing fee from applicants for new licenses.  Were an entitlement of this order sufficient to establish a state property right, one could scarcely avoid the conclusion that States have property rights in any license or permit requiring an up front fee, including drivers’ licenses, medical licenses, and fishing and hunting licenses.  Such licenses, as the Government itself concedes, are “purely regulatory.”

531 U.S. at 22. In other words, absent a statutory provision, so long as the “property” (the license in Cleveland) is the product of the Government’s regulatory power, or its police powers, it is not property while it is in the Government’s hands.  In this case, it would seem, based on Cleveland, that since the FAA derives its authority to assign slots from its regulatory authority over “navigable airspace,” slots are not property rights in the hands of the FAA.

FAA attempts to get around Cleveland by asserting that “Section 40110(a)(2) does not speak to whether the FAA actually owns property that is being disposed of.  It only speaks to the disposal of a property interest.  Only the FAA has authority to assign the use of navigable airspace under section 40103.”  73 Fed.Reg. at 60549.  The FAA concludes that even though the property right is created “at the time of transference” of the slot, it still falls within its property disposition power under 40110(a)(2) since it is “disposing of” a “property right.”  This however, ignores the fact that the FAA has no property interest to “dispose of,” and that in assigning slots it carrying out its regulatory duties with respect to the airspace.

Similar to the FAA, in Cleveland, Louisiana tried to compare its interest in video poker licenses to a patent holder’s interest in a patent that she has not yet licensed.  The court rejected that argument:

Louisiana does not conduct gaming operations itself, it does not hold video poker licenses to reserve that prerogative, and it does not “sell” video poker licenses in the ordinary commercial sense.  Furthermore, while a patent holder may sell her patent . . ., the State may not sell its licensing authority.  Instead of patent holder’s interest in an unlicensed patent, the better analogy is to the Federal Government’s interest in an unissued patent.  That interest, like the State’s interest in licensing video poker operations, surely implicates the Government’s role as sovereign, not as property holder.

531 U.S. at 23-24.  In other words, if it is not a property right until after it is sold or licensed, you do not have a “property right” to “dispose of.”  The FAA’s assigning use of navigable airspace “implicates the Government’s role as sovereign, not as property holder.”  Thus, it seems that since the Supreme Court has spoken on this issue, the FAA will be hard pressed to successfully argue that it can auction slots by virtue of its property disposition authority.

Next Post: Even if slots are FAA property, does the FAA violate the IOAA by accepting money for them?

 

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Pt. 1: Setting The Stage

When the FAA adopted its slot auction rules for LaGuardia, JFK  and Newark Airports, it did so despite the fact that the GAO had issued a legal opinion stating that it believed that the FAA did not have a legal basis to conduct auctions of slots at the airports. 

Needless to say, the FAA's decision brought some criticism from Congress.  Rep. James Oberstar (D-Minn.) and Rep. Patty Murray (D-Wash.) sent a letter to the FAA Inspector General, Hon. Calvin Scovel, requesting that he look into the matter and assess whether the FAA's actions were "potential willful violations of the Purpose Statute [31 U.S.C. 1301(a)] and the Antideficiency Act [31 U.S.C. 1341(a)(1)(A)]." 

The stakes got higher when, on October 10, 2008, the Port Authority of New York and New Jersey filed a Petition for Review in the U.S. Court of Appeals for the District of Columbia.  That Petition was followed on October 14, 2008, by similar Petitions for Review filed by the International Air Transport Association and the Air Transport Association of America.  All of the Petitions for Review were consolidated by the Court on October 27, 2008.

There seems to be agreement among all of the parties that the FAA has the regulatory authority to impose caps on hourly arrival and departure slots based on its authority under 49 U.S.C. 40103(b)(1) and (2), which allows the FAA to "ensure efficient use of the airspace."  The issue that separates the FAA from GAO, IATA, ATA and PANYNJ is whether the FAA may raise funds in connection with its assignment of slots through a slot auction, imposing a user fee, assessing a tax, or by some other mechanism.

In analyzing this fundamental disagreement some consensus emerges.  It is agreed that Congress has granted FAA explicit statutory authority to collect fees in several different situations, but that FAA has no explicit authority to impose fees related to the assignment of slots.  Indeed, the FAA has long sought such explicit authorization from Congress, which Congress has not yet granted.  See, e.g., 71 Fed.Reg. 51362 (Aug. 29, 2006) ( ". . . the FAA currently does not have the statutory authority to assess market-clearing charges for a landing or departure authorization").  It is FAA's efforts to get around the fact that it lacks explicit authority that is at the heart of the matter.

In order to claim authority to collect funds in connection with its assignment of slots, FAA makes two connected arguments.  First, FAA claims that a "slot" is an "intangible" form of property that it may lease pursuant to its "property disposition" power granted to it by Congress under 49 U.S.C. 106(l)(6) and (n) and 40110(a)(2).  Second, since the slot is a property right being leased, it is not an "user fee" or "tax."  Therefore, it is not subject to the Independent Offices Appropriations Act (IOAA), 31 U.S.C. 9701 et seq.  The opposing parties have claimed that the FAA is wrong on both counts.

Next Post:  Analysis of FAA's claims that it possesses a property interest in slots at airports.

 

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On September 26, 2008, the FAA published a Draft Environmental Impact Statement (DEIS) for the construction and operation of proposed airfield improvements to Palm Beach International Airport (PBIA) “to accommodate existing and projected aviation demand.”  Comments on the DEIS are due no later than November 24, 2008.  Since the Airport Sponsor (Palm Beach County) seeks to enhance capacity at PBIA, one would think that there would be a concomitant increase in environmental effects of the project over what would be considered the "no action" alternative, i.e.,  not doing the project.  However, the FAA claims that there will be a net decrease in environmental effects (after construction) because the project will not increase capacity above what is already planned and delays will be reduced.  See below for an analysis of that issue. That being said, the FAA admits to there being a shift in the noise contours and an increase in air pollution created by the airport, at least temporarily by the construction created by the Project.

The major "airfield improvements" that the FAA is requesting approval for are:

• Modifications to Runway 9R/27L.  Relocate and construct Runway 9R/27L 100 feet south of its existing location to  length of 8,000 feet and a width of 150 feet.
• Modifications to Runway 13/31.  Shorten the southeast end of Runway 13/31 currently 6,932 in length) by 3,412 to provide a standard Runway Safety Area and extend the northwest end of Runway 13/31 by 480 feet.  The total adjusted length of Runway 13/31 would be 4,000 feet.

According to the DEIS, "once constructed and operational, the improved Runway 9R/27L would be primarily used as an arrival runway, and existing Runway 9L/27R would be used as the primary departure runway.  Because of its shortened length . . . Runway 13/31 would be used only by small, G[eneral] A[viation]-type aircraft."

The FAA admits that Proposed Project will result in significant increases in noise.  In 2013, the Proposed Project would cause 386 housing units and 957 people to experience a DNL 1.5 increase or greater.  By 2018 the number of affected housing units will increase by 423 and another 1,049 people.  Both of these increases are considered to be "significant impacts" under FAA criteria.  For these people, the FAA is deciding whether to offer:

• Acquisition and relocation of homes;
• Purchase of an avigation easement;
• Sound insulation in exchange for an avigation easement; or
• Purchase assistance.

Moreover, there will be impacts on property that do not experience an increase of DNL 1.5.  FAA criteria does not consider these impacts to be significant, therefore no mitigation will be proposed for the Project.  The FAA states that the "Airport Sponsor [Palm Beach County] may initiate an update to their current FAR Part 150 Noise Compatibility Program to mitigate noise impacts to these additional homes."

The FAA relies heavily on the assumption that the Proposed Project will not increase capacity beyond what is already forecast.  Thus, it claims environmental benefits based on the reduction of time that aircraft spend idling and taxiing due to a decrease in delays created by the Proposed Project.  This assumption, however, ignores the economic principle "induced demand," that is, if delay times are decreased during peak hours, then the airlines will, most likely, schedule additional flights thereby increasing the number of aircraft on the runways, which will increase idling and taxi time.  This is not a concept that is foreign to the FAA, since it includes in its Benefit Cost Analysis Guidance for Airport Sponsor a specific formula that equates a decrease in delay time with an increase in aircraft operations.  See, p.41 and Appendix C of FAA Benefit Cost Analysis Guidance.

With respect to air quality, although the FAA admits to a short-term rise in emissions due to construction of the Proposed Project, the FAA claims that the Proposed Project will result in fewer emissions than if the Project is not constructed.  This outcome is based on the FAA's assumption that increasing the capacity of the airport will not cause the airlines to schedule additional flights over and above those already forecast.  Thus, the decrease in emissions "is due to the reduced aircraft taxiing times associated with the planned improvements to the airports."  Thus, if the airlines schedule flights over and above those already forecast, this benefit is eliminated or, at least, seriously diminished.  This would be an increase not only of "criteria pollutants" (i.e., Volatile Organic Compounds, Nitrous Oxides, and Particulate Matter) but also of "Hazardous Air Pollutants" and greenhouse gases. 

Moreover, despite recent studies indicating that emission of pollutants above 3,500 feet above ground level has an effect on air pollutant levels on the ground (click here for a summary of the Taubman and the Clark studies, click here (on p.3) for a summary of the University of Maryland study), the FAA ignores the effect that such high level emissions will have.

In addition, although the FAA did "inventory" Hazardous Air Pollutants (HAPs) at PBI, it did not perform a Human Health Assessment.  The FAA claims that because the EPA has not set a "National Ambient Air Quality Standard" (NAAQS) under the Clean Air Act, it need not assess the impact that the Proposed Project will have on the emission of HAPs.  However, this ignores the NEPA requirement that all environmental effects of a federal project must be assessed.  NEPA does not limit the air quality assessment solely to "criteria pollutants."  Thus, a Human Health Assessment of the HAPs would be appropriate in this case.

A couple of final notes:

• Comments on the DEIS are due no later than November 24, 2008. 
• That being said, it should also be noted that if one were to bring a lawsuit against the FAA after the FAA decides to implement this Project, that person is limited to raising issues before the court that he or she raised before the FAA.  In other words, if no one comments on the Project on a particular issue prior to the FAA making its final decision, that issue may not be raised in a subsequent lawsuit.

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The FAA recently published the Draft Environmental Impact Statement (DEIS) for its "Capacity Enhancement Project" (CEP) (warning! this is a large file, the DEIS is broken up into Chapters at the end of this post) at the Philadelphia International Airport (PHL).  Comments on the DEIS are due no later than November 10, 2008.  Since, as its title suggests, the FAA seeks to increase capacity at PHL, there is a concomitant increase in environmental effects of the project over what would be considered the "no action" alternative,i.e., not doing the project.  In particular, there will be increases in noise in certain areas and an increase in air pollution created by the airport, not only by the increase in aircraft once the project is finished, but also by the construction created by the Project.

After dismissing several options as not meeting the "Purpose and Need" of the Project, the FAA offers two alternatives, both involve:

• the addition of a new 12,000-foot runway 9C-27C;
• relocating the Air Traffic Control, Tinicum Island Road, Island Avenue, and the UPS terminal;
• closing Hog Island Pier and and extending Fort Mifflin Pier; and,
• closing Conrail line south of the Airport and constructing new rail line northeast of the Airport. 

The major differences between the two alternatives are:

• Alternative B eliminates the 6,500-foot runway, Runway 17-35; and
• Alternative B would tear down the existing terminal and create a terminal system similar to that at Atlanta Hartfield with terminal "islands" connected by a People Mover;

Although the FAA claims that the total population and housing units exposed to DNL 65 dB and greater would decrease substantially under both alternatives, those decreases "would occur primarily north of the Airport in Philadelphia County, Pennsylvania as a result of eliminating Runway 17-35 or significantly reducing its use."  That being said, the FAA admits that there would be "significant impacts" under both alternatives to people and housing units in Delaware County thus shifting the noise contours from Philadelphia County to Delaware County.  In addition, both Camden and Gloucester Counties would experience increases in noise levels during the twelve years of construction.

Likewise, with respect to air quality, the FAA admits that there will be an increase in emissions of pollutants, especially during the construction phase of the project.  This is an increase not only of "criteria pollutants" (i.e., Volatile Organic Compounds, Nitrous Oxides, and Particulate Matter) but also of "Hazardous Air Pollutants" and greenhouse gases.  Moreover, despite recent studies indicating that emission of pollutants above 3,500 feet above ground level has an effect on air pollutant levels on the ground (click here for a summary of the Taubman and the Clark studies, click here (on p.3) for a summary of the University of Maryland study), the FAA ignores the effect that such high level emissions will have.  

Humans will not be the only ones effected by the project.  The DEIS also reports that natural resources such as wetlands, and parks, as well as endangered and threatened species will be impacted by the Project.

A couple of final notes:

• The DEIS does not mention coordination with any local agency outside the City of Philadelphia. This is despite the fact that although the City of Philadelphia operates PHL, most of the Airport is actually located in Delaware County, Pennsylvania.
• Comments on the DEIS are due no later than November 10, 2008.  That being said, it should also be noted that if one were to bring a lawsuit against the FAA after the FAA decides to implement this Project, that person is limited to raising issues before the court that he or she raised before the FAA.  In other words, if no one comments on the Project on a particular issue prior to the FAA making its final decision, that issue may not be raised in a subsequent lawsuit.

More information regarding the Project can be found at the Project web site http://www.phl-cep-eis.com.  Here are links to the separate Chapters, Figures and Appendices, if you do not want to download the entire DEIS.

• Executive Summary
• Abstract
• Chapter 1Introduction and Background
• Chapter 1 Figures
  
• Chapter 2 Purpose and Need
• Chapter 2 Figures
• Chapter 3  Alternatives
• Chapter 3 Figures
• Chapter 4  Affected Environment
• Chapter 4 Figures A
• Chapter 4 Figures B
• Chapter 5  Environmental Consequences
• Chapter 5 Figures A
• Chapter 5 Figures B
• Chapter 5 Figures C
• Chapter 5 Figures D
  
• Chapter 6 Mitigation
• Chapter 6 Figures
• Glossary, Index, References, List of Preparers, and Distribution List
• Appendices

 

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In a gutsy move that is sure to draw the ire of Congressional leaders as well as the Air Transport Association, the FAA announced last Friday, October 10, 2008, that it had promulgated two "congestion management" rules:  one for LaGuardia Airport, and the other for JFK and Newark Airports.  In these rules, the FAA stated that it would proceed with its auctions of slots at the airports despite the GAO Report indicating that it was unlawful to do so. (See, GAO Declares FAA Does Not Have Legal Authority to Auction Slots).

The Rule for JFK and Newark and the Rule for Newark, which both become effective December 9, 2008, establish procedures to address "congestion in the New York City area by assigning slots" at the three airports in a way that the FAA believes will allow "carriers to respond to market forces to drive efficient airline behavior."  The JFK/EWR Rule extends the caps on the operation at the two airports, assigns to existing operators the majority of slots at the airports, while the LGA Rule grandfathers the majority of operations at the airport.  The FAA claims that both Rules will develop a "robust" secondary market by annually auctioning off a limited number of slots in each of the first five years of this rule.  The FAA states that the proceeds of the auction will be used to mitigate congestion and delay in the New York City area.  Finally, the Rule also contains provisions for minimum usage, capping unscheduled operations, and withdrawal for operational need.  Leases obtained in the first auction will start on October 25, 2009.

Most of the Federal Register notice announcing the promulgation of the Rules is spent justifying the Rules in the face of the GAO's report that concluded that the FAA did not have the authority to auction the slots.  The FAA concludes that "the issues involved represent novel legal issues upon which reasonable poeple, and agencies, acting in good faith, have disagreed.  The FAA disagrees with the GAO conclusions and has decided to proceed with the adoption of this final rule."

An analysis of the legal statements will be forthcoming in future blogs.

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The GAO, in a legal opinion issued September 30, 2008, declared that "FAA currently lacks the authority to auction arrival and departure slots, and thus also lacks authority to retain and use auction proceeds."  This legal opinion came as a result of a Congressional request.

In April and May, 2008, the FAA issued proposed regulations to conduct auctions of the airport arrival and departure slots at LaGuardia, JFK and Newark airports. (See, FAA Proposes Congestion Management Rule for JFK and Newark Liberty).  Since then, the FAA indicated in August that that it was proceeding with an auction of two specific slots at Newark airport on September 3, 2008.  Although that action was administratively stayed (See, FAA Suspends Auction of Flight Slot at Newark Airport), the stay (issued by the FAA's Office of Dispute Resolution for Acquisition) was subsequently lifted on September 30, 2008.  Moreover, the FAA, on September 16, 2008, announced that it "may" auction slots at Newark, LaGuardia and JFK starting on January 12, 2009.

The FAA claimed that the slots are "intangible property" that it "constructs, owns, and may lease" for "adequate compensation under 49 U.S.C. 106(l)(6) and (n) and 40110(a)(2).  The GAO stated:

An examination of those statutes read as a whole, however, makes clear that Congress was using the term "property" to refer to traditional forms of property.  It was not referring to FAA's regulatory authority to assign airspace slots, no matter how valuable those slots may be in the hands of the regulated community.  Related case law confirms our conclusion.

The GAO concluded that if the auctions were to go ahead, and the FAA retained the proceeds that the the GAO "would raise exceptions under its account settlement authority for violations of the 'purpose statute,' 31 U.S.C. 1301(a), and the Antideficiency Act, 31 U.S.C. 1341(a)(1)(A)."

Needless to say the Department of Transportation was not too pleased with the outcome, stating that the GAO did not have time to do a thorough review given the "complexities of aviation law."  If the GAO had the opportunity to reflect, the DOT was "confident that GAO will better understand both the validity and the effectiveness of [the FAA's] approach."

On the other side of the fence, both the Air Transport Association and the Port Authority of New York and New Jersey issued press releases applauded the GAO's legal opinion.  Rep. James Oberstar (D-Minn.), the Chairman of the U.S. House Transportation and Infrastructure Committee, said in a press release that the "FAA should now reconsider its plan to auction slots in light of the GAO finding."

(For my commentary on the situation, see the blog post The "Tragedy of the Commons" and Airport Congestion Management)

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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 of the Inspector General, Social Security Administration's Office of Inspector General, and California's U.S. Attorney Office.  That investigation revealed that the FAA had issued medical certificates to a small percentage of pilots who had disqualifying medical conditions that they did not report on their medical certification applications.  Calling some of the medical certificate cases "egregious," the DOT IG stated that 45 individuals identified as having falsified their certificates were prosecuted criminally as a result of the investigation. 

In March, 2007, the House Committee issued a report showing that a significant number of pilots were flying with fraudulent medical certificates and asked the GAO to assess FAA's efforts for screening medical certification applicants and identifying medically unqualified pilots.  The Report published on September 30, 2008, is the result of that request.

In sum, the GAO reported that the FAA has developed programs to help it determine whether it has properly issued medical certificates.  In particular, the FAA has instituted two quality assurance review programs, one to evaluate certificate that the Aviation Medical Examiners issued and a second to evaluate certificate decisions made by FAA application examiners.  In addition, the FAA checks each pilot applicant against the National Driver Register to look for drug- and alcohol-related motor vehicle actions and indications of substance abuse.

However, due to "recently resolved litigation," the FAA currently does not check federal disability benefits databases for indications that pilots may have disqualifying medical conditions.  The GAO's analysis of the Social Security Administration's disability databases found that 1,246 of the 394,985 medically certified pilots were receiving disability benefits.  Since this was the crux of the DOT IG's "Safe Pilot" investigation, the GAO's recommendation that "federal disability data bases can provide useful information on potentially disqualifying medical conditions" is a bit of an understatement.  That being said, the GAO correctly points out that just because a pilot is receiving disability benefits does not automatically mean that they are medically unfit to fly.

On September 26, 2008, Chairman James Oberstar (D-Minn.) issued a press release stating that although he was pleased that progress is being made, the fact that there are still medical certificates being issued to unfit applicants is troubling.  “Progress is good, but progress must lead to a goal,” Oberstar said. “In this case, the goal should be 100 percent certainty that certificates are not obtained fraudulently or erroneously. Perhaps that is an impossible goal, but it should be our goal nonetheless.”

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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.

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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 a nonprimary airport submit a list of the aircraft (both fixed wing and rotary wing) that are based on the airport.  The FAA invites public comments on this proposed modification.  Comments must be submitted on or before October 8, 2008.

FAA believes that this information is necessary because "accurate information on based aircraft is an important element of justification for many proposed AIP projects at nonprimary airports."  In addition, the FAA posits that the information regarding based aircraft "supports the airport's importance in the biennial Report to Congress - The National Plan of Integrated Airport Systems (NPIAS) and in the Airport Master Record." 

FAA defines "based aircraft" as an "operational aircraft that is registered in the FAA Aircraft Registry that is at the airport the majority of the year."  The proposal is that the FAA may require a sponsor for a nonprimary airport to include the "N-number" for each based aircraft or to update the list of based aircraft submitted with the most recent Form 5010 inspection.  Unfortunately, the Notice does not provide definition of how airports are to determine which aircraft are "based aircraft."  The FAA concludes the Notice by stating that it will consider a failure to provide the information "as a factor when considering a request from the airport for discretionary funding."

Comments can be sent or delivered to FAA, Airports Financial Assistance Division, APP-500, Room 619, 800 Independence Avenue, SW., Washington D.C. 20591.  Comments can also be submitted electronically by clicking here and then clicking on "Send a Comment or Submission."  This will take you to the Regulations.gov page for docket number FAA-2008-0972-0001.

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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. 

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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.

 

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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.

 

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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 Jersey's air quality and the FAA's abject failure to address those air quality issues.

The amicus brief "concurs with and joins" in Petitioners' argument that the Airspace Rdesign is not exempt from the Clean Air Act or EPA regulations, that FAA's presumption of conformity for air traffic control procedures is not applicable to the Airspace Redesign; and that neither FAA's regulations nor the record in this matter supports FAA's "fuel burn study."  The amicus brief goes on to state that the issues that face New Jersey as a result of the FAA' decision, including inhibiting New Jersey's ability to comply with the NAAQS under the Clean Air Act.

The brief also mentions that the FAA violated the National Environmental Policy Act (NEPA) because the Airspace Redesign was approved on the basis of an inadequate environmental impact statement.  In particular, the brief argues that the EIS failed "to adequately inform the public of the noise impacts of the Airspace Redesign."

This brief, coupled with the brief that Sen. Arlen Specter (R-Pa.) and Sen. Christopher Dodd (D-Conn.) filed on September 5, 2008, provide the court with additional reasons why the EIS must be remanded back to the FAA for further consideration.

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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 noise reduction, which is inconsistent with Congressional Intent, and how the FAA's current interpretation that safety and efficiency are much more important than noise reduction is inconsistent with its prior interpretations of the relevant statutes.

The Senators in their brief point to several instances where Congress directed the FAA to protect exposed populations from the harm of aircraft noise, concluding that "given this history, the FAA's policy of considering noise mitigation only 'where feasible' cannot withstand scrutiny."  Likewise, the Senators point out that members of Congress have "criticized the FAA for the lack of weight afforded to noise reduction as a goal of the redesign plan."  Thus, the Senators conclude, the FAA "failed to heed its mandate to integrate noise reduction with its other laws, regulations, and policies for the redesign plan.

The FAA's Brief is due December 12, 2008.

News Articles regarding the amicus Brief by Sens. Specter and Dodd:

Delaware County Daily Times, September 8, 2008.

Danbury News Times, September 8, 2008.

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Here are a few court  decisions that have come down since April, 2008, regarding aviation and airport development law:

1. Aerial Banners, Inc. v. F.A.A., 11th Circuit, Case No. 08-10042 (August 26, 2008). The Federal Aviation Administration grants waivers of certain regulations to businesses that tow advertising banners behind airplanes. Without the waiver, a business cannot conduct air towing operations because aerial towing is generally prohibited. See 14 C.F.R. § 91.311. Aerial Banners, as its name indicates, towed aerial banners for advertisers pursuant to a waiver. After a series of safety problems, including a couple of crashes, the FAA revoked Aerial Banners' waiver, putting the company out of business. Aerial Banners has petitioned this court to set aside the FAA's revocation claiming both substantive and procedural violations of the Administrative Procedure Act.  The Court held that the Company argument that it was not responsible for its pilots' mishaps was unavailing.  In addition, the FAA had found the Company's maintenance record seriously wanting.  Thus, the FAA had "reasonable" grounds for revoking the waiver.
2. Flamingo Express v. F.A.A., 536 F.3d 561 (6th Cir. 2008). Airline petitioned for review of an order of the Federal Aviation Administration (FAA), which dismissed airline's complaint against municipal owner of airport, alleging that it had violated its obligations under federal law by failing to approve airline's application for permit to operate commuter air service and requiring airline to obtain unreasonably high liability insurance coverage. The Court of Appeals, held that municipal owner did not violate its federal obligations by refusing to approve airline's permit for proposed commuter service, and that substantial evidence supported FAA determination that owner's proposed $20 million liability insurance requirement was neither unreasonable nor unjustly discriminatory.
3. Town of Winthrop v. F.A.A., 535 F.3d 1(1st Cir. 2008). Town and local residents filed petition for review of final order of Federal Aviation Administration (FAA) permitting construction of new taxiway at airport. Airport operator intervened. The Court  held that plaintiffs had standing to challenging FAA order; that  FAA's failure to prepare supplemental EIS before giving its final approval to project was not arbitrary and capricious; and that FAA's choice of modeling program for evaluating project's noise impact was not arbitrary and capricious.Petition denied.
4. Association of Citizens to Protect and Preserve the Environment of the Oak Grove Community v. FAA, Case No. 07-15675, 11th Circuit (July 16, 2008). The Association alleged that the FAA arbitrarily issued a Finding of No Significant Impact (“FONSI”) with respect to the proposed expansion project at the Troy Municipal Airport in Troy, Alabama. It also alleged that the FAA failed to follow its own regulations requiring additional review and approval of certain mitigation measures. On appeal, the Association maintains that the district court has jurisdiction over the first claim (the “FONSI claim”) because the FONSI is not a final order, and therefore, 49 U.S.C. § 46110(a) does not divest the district court of jurisdiction. The Association also argued the district court has jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 702, over its claim that the FAA failed to comply with its own regulations (the “procedural claim”). The Court held that the district court correctly determined that it lacked jurisdiction over both claims

 

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The Government Accountability Office (GAO) has issued its long awaited "FAA Airspace Redesign:  An Analysis of the New York/New Jersey/Pennsylvania Project."  Although the GAO promised to publish the report by August 1, 2008, it waited until the same day the Petitioners in the Airspace Redesign litigation filed their opening brief to publish the Report.  Although the GAO promised members of Congress to examine "to what extent did FAA follow key legal procedures and requirements in conducting its environmental review" (p.3), it failed to take into two important aspects of the FAA's environmental review of its Airspace Redesign project, namely the Clean Air Act and section 4(f) of the Department of Transportation Act (for a full treatment of these issues, see the Joint Brief filed by the 12 sets of Petitioners in the Airspace Redesign litigation).

The GAO, making several critical assumptions about the Project, found, in general, that the FAA's approach, at least with respect to NEPA, was "reasonable."  First, the GAO found that the statement of the project's purpose and need, which, according to the GAO, was to increase the efficiency and reliability of the airspace while maintaining safety and reducing delays, was reasonable.  Most importantly, the GAO concluded that the FAA "reasonably excluded noise reduction."  Second, the GAO found that the FAA developed a reasonable range of alternatives.  Third, the FAA acted reasonably in not analyzing the indirect environmental effects of potential growth, the GAO said, resulting from the redesign.  Next, the GAO opined that the FAA reasonably involved the public throughout the environmental review process.  Finally, the GAO found that the FAA satisfied environmental justice directives in Executive Order 12898 and implementing CEQ guidance and DOT Order.

The GAO did identify some limitations to the FAA's methodology, but concluded that the FAA was not required by law to address them.  These "limitations" included the fact that because the FAA assumed that traffic demand and flight operations would not increase in response to airspace system improvements, the FAA did not account for the potential effect of the system improvements in its operational analysis.  Second, the FAA did not fully assess the uncertainty associated with each alternative estimated impacts.  And when the purported benefit of the Project is only a 0.8% reduction in fuel burnt, that "limitation" becomes more important.  Finally, the GAO believed that the FAA should have undertaken an analysis of the economic impacts using both an uncertainty analysis and a benefit-cost analysis.

What the GAO Report did not take into account are two important statutory requirements that are outside of NEPA's procedural requirements.  First, the GAO failed to take into account the fact that the FAA did not perform a "conformity applicability analysis" as required by the Clean Air Act, EPA regulations, and FAA orders.  The air quality in the areas around Philadelphia and New York are subject will be affected by the Airspace Redesign and there is no analysis anywhere in the FAA's environmental review regarding air quality.  Second, the GAO did not report on the FAA's failure to properly take section 4(f) of the Department of Transportation Act into account.  Section 4(f) protects federal, state and local natural areas from the environmental effects of Federal transportation projects.  The GAO Report did not mention the FAA's failure to properly identify and account for the environmental effects of the Project on those natural areas.

In the end, then, the GAO failed to answer the first question posed by Congress:  "to what extent did FAA follow key legal procedures and requirements in conducting its environmental review?"  Without a discussion of the Clean Air Act and 4(f), the Report is incomplete.

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It is being reported by several news outlets that the FAA has suspended its auction of flight slots at Newark Airport.  The auction was slated for September 3, 2008.  According to Bloomberg News the Order, issued by FAA Chief Counsel, Kerry Long, stated that "[t]he protesters have demonstrated compelling reasons to maintain the status quo'' pending a study of their objections. 

This is just the latest in a series of events that all relate to the FAA's redesign of the airspace in the New Yor, New Jersey and Philadelphia area.  It began with the Airspace Redesign decision last September, continued through the "congestion management" rules for JFK and Newark as well as  for LaGuardia, and on the "written re-evaluation" of those rules that the FAA tied back to the Airspace Redesign.

The Order was in response to a Protest filed five major airlines, Northwest, Delta, Continental, US Air, and United, along with the Air Transport Association (ATA) with the FAA's Office of Dispute Resolution for Acquisition. Click here for the New York Times article.  Click here for the Forbes article.

The Air Transport Association issued the following statement in response to Chief Counsel Long's Order:

We are pleased that the FAA Office of Dispute Resolution Acquisition has granted our request for suspension of the September 3 auction of two slots at Newark airport and fully expect that the process will result in a determination that FAA lacks the legal authority to conduct the auction.

The Air Transport Association had previously, on August 11, 2008, filed a Petition for Review in the D.C. Circuit asking the court to overturn the FAA's decision to hold slot auctions for Newark.

Secretary of Transportation Mary Peters issued a statement through her spokeman, Brian Turmail, indicating that "[t]oday's disappointing delay means travelers will have to wait a little longer for relief from the high fares, stagnant service and limited competition."  However, the FAA "remain[s] highly confident of a speedy and favorable ruling in this matter.''

 

 

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In February, 2007, almost as an after-thought, theFAA included changes to air traffic control procedures to its Presumed to Conform rule. This last minute addition has the potential to seriously impact communities around the airports where these changes to air traffic control procedures take place. 

Why will this obscure regulatory change affect communities? First, a little background on the subject will be helpful. Air quality and noise are the primary concerns of communities around airports. Since Federal law severely limits the ability of communities to affect the amount of noise produced at airports, many communities have focused on protecting their air quality. The conformity provisions of the Clean Air Act provide a useful tool in that regard. They require that all Federal agencies ensure that their projects will not affect the State Implementation Plan (SIP), which is a plan drafted by the state and approved by the EPA in order to come into compliance with other provisions of the Clean Air Act. This “conformity determination” provides communities around airports with needed data concerning the effect the agency’s action will have on the air quality. Moreover, if the Federal agency fails to perform a conformity determination or fails to do it properly, then that it is grounds for the community to object to the Federal agency’s action as a whole.

 

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During July, the Government Accounting Office issued several reports regarding various aviation topics.  One of the topics not covered was the East Coast Airspace Redesign, which was supposed to be issued at the end of July, but now probably will not be issued until the end of August.

Of particular interest was the issuance, on July 15, 2008, of the testimony of Ms. Susan Fleming, the GAO Director of Physical Infrastructure, National Airspace System: DOT and FAA Actions Will Likely Have a Limited Effect on Reducing Delays during Summer 2008 Travel Season given to the U.S. Senate Subcommittee on Aviation Operations, Safety, and Security.  Over the past decade, there has been a steady increase in flight delays and cancellations, such that a delay at O'Hare or Hartsfield would have a ripple effect across the National Airspace System. The DOT estimated that more than one in four flights either arrived late or was canceled in 2007, making it one of the worst years for delays in the last decade. As a result of the East Coast Airspace Redesign, the delays and cancellations evident at the three New York metropolitan commercial passenger airports--Newark Liberty International (Newark), John F. Kennedy International (JFK), and LaGuardia caused the FAA to propose and promulgate several actions in attempt to reduce congestion and delays. 

Ms. Fleming's testimony addresses (1) the trends in the extent and principal sources of flight delays and cancellations over the last 10 years, (2) the status of federal government actions to reduce flight delays and cancellations, and (3) the extent to which these actions may reduce delays and cancellations for the summer 2008 travel season. This statement is based on an analysis of DOT data on airline on-time performance, a review of relevant documents and reports, and interviews with officials from DOT, FAA, airport operators, and airlines, as well as aviation industry experts and associations. DOT and FAA provided technical comments which were incorporated as appropriate.

Of particular interest is the fact that Ms. Fleming's testimony states that "to reduce delays and congestion beginning in summer 2008, DOT and FAA are implementing several actions that for the purposes of this review GAO is characterizing as capacity-enhancing initiatives and demand management policies." Some of these actions are already in effect, such as 11 of the 17 short-term initiatives designed to improve capacity at the airport or system level and the hourly schedule caps on operations at the New York area airports.  

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In a rather odd, unusual statement, the FAA issued on July 31, 2008, a "Record of Decision and Written Re-Evaluation of the New York\New Jersey\Philadelphia Metropolitan Area Airspace Redesign Final Environmental Impact Statement."  In response to several requests for supplemental EIS to deal with the congestion management orders for JFK, LaGuardia and Newark, the FAA prepared the "Written-Re-Evaluation" "to consider whether these Orders Limiting Scheduled Operations and the new rates and charges amendments, either affected the purpose and need for the Airspace Redesign project, or altered the reported environmental impacts."  To no one's surprise, the FAA concluded that there is no "significant new information warranting preparation of a new or supplemental EIS for the Airspace Redesign project."  Since this strange document, coming 11 months after the initial Record of Decision and 29 days before the Petitioners' Brief in the Airspace Redesign litigation is due, is a "Record of Decision," anyone objecting to the ROD may file a Petition for Review within sixty days of July 31, 2008.

What remains to be seen is what effect this document will have on the on-going litigation, the GAO report (which was due out July 31, 2008, but probably will not be issued until the end of August), and the increasing political pressure that is being put on the FAA to reconsider the entire project.

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Yesterday, June, 11, 2008, the House Aviation Subcommittee heard testimony (click on link for video the hearing) on a situation that is becoming more dire as every day passes - Air Traffic Controllers are retiring, leaving a dearth of qualified, trained controllers to take their places.  The House Aviation Subcommittee convened the hearing to find out what can be done about the situation.

First up in Panel 1, were the bureaucrats.  Hank Krakowski from the FAA, Patrick Forrey from the National Air Traffic Controllers Association, along with Dr. Gerald Dillingham from the GAO, Calvin Scovey from the Department of Transportation Office of the Inspector General and David Conley of the FAA Managers Association.  Predictably, Mr. Krakowski downplayed any crisis, stating in his prepared remarks that the FAA was on top of the situation:  hiring 2000 controllers this year, seeking ways to retain retirement-eligible controllers, and working on a contract with NATCA.  

Mr. Forrey, had a different view.  He stated that “this country is facing an air traffic control staffing crisis” leading to “an unacceptable compromise in safety.”  First and foremost, to him, the FAA needs to return to the bargaining table with the NATCA to work on a contract.  That will lead to a higher retention rate of both experienced controllers and new hires.

Subcommittee members in their questioning sought to resolve the differences between the FAA and NATCA and implored the GAO and DOT-IG to assist in that effort.  Both the FAA and NATCA say they want a contract, but how they are going to get there is the open question.

The second panel was where the rubber hit the road.  Three air traffic controllers, Don Chapman from Philadelphia, Steven Wallace from Miami and Melvin S. Davis from Los Angeles testified about the problems they are facing at each of their facilities.  Although each mentioned specific challenges their facilities faced, they all came back to three major issues:  inadequate staffing (which raises safety concerns); inadequate training of new hires (which also raises safety concerns); and controller fatigue because the first two issues.  The Subcommittee seemed to take to these men and their "view from the front line."

(It should be mentioned that the Blog, "The Potomac Current and Undertow," offered an e-mail sent to FAA Air Traffic District Managers to find Air Traffic Controllers who would support the FAA's position that things are headed in the right direction.  Since only Messrs. Chapman, Wallace and Davis were the only controllers who appeared as witnesses, their effort seemed to fall short.)

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The Government Accountability Office published the testimony that Dr. Gerald Dilllingham gave to the  House Subcommittee on Aviation regarding the FAA's efforts to hire and train more air traffic controllers. 

The Dr. Dillingham's testimony, entitled "FAA's Efforts to Hire, Staff and Train More Air Traffic Controllers Are Generally on Track, but Challenges Remain" addresses the FAA's efforts to hire and train nearly 17,000 controllers over the next decade to replace over 15,000 current controllers, most of whom will be retiring. The challenge to the FAA is assuring that the Air Traffic Control facilities are adequately staffed with a proper mix of new trainees and fully certified controllers.  Dr. Dillingham, as well as the NTSB, strongly believe that having controllers work more overtime will lead to serious consequences.

Moreover, this massive hiring effort will occur as FAA begins to implement the next generation air transportation system (NextGen), which will integrate new technologies and procedures into air traffic operations and fundamentally change the role of air traffic controllers from controlling individual aircraft to managing air traffic flow. Hence, FAA will need to train experienced controllers to use the new technologies at the same time that it hires and trains new controllers to operate both the current and the new technologies.

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Here are a few court  decisions that have come down recently regarding aviation and airport development law:

1. Nadal v. FAA, Case No. 08-9509 (10th Cir., April 30, 2008).  Petitioner sought review of a NTSB order affirming the forty-day suspension of his pilot certificate.  The court concluded that his petition for review was not timely filed and he did not show reasonable grounds for the failure, so it dismiss the petition for lack of jurisdiction.
2. Clark County v. FAA, Case No. 06-1377 (D.C. Cir., April 18, 2008).  County petitioned for review of FAA's decision that a proposed windfarm would not obstruct airspace near the proposed Ivanpah Valley airport by interfering with radar systems at the new airport.  The court held that the FAA did not have sufficient evidence in the record to support its conclusion in its order and therefore did not satisfy the reasoned decionsmaking requirement.  To the contrary, the court pointed out that the only evidence in the record supported conclusion that the windfarm turbines would exceed the FAA's obstruction standards and would interfere with radar systems at the new airport.
3.  BMI Salvage Corp. v. FAA, Case No. 07-12058 (11th Cir., April 8, 2008).  Tenant and sublessee filed complaint alleging that airport unjustly discriminated against it in violation of the airport's grant assurances by awarding long-term development leases to other tenants, but not to it.  The court held that there was insufficient evidence in the FAA's record to support a finding that differences between aircraft demolition business and aircraft repair business justified airport's disparate treatment and that there was insufficient evidence to support FAA's finding that aeronautical service providers were not "similarly situated."
4. St. John's United Church of Christ v. FAA, Case No. 06-1386 (D.C. Cir., March 21, 2008).  FAA gave the City of Chicago a grant under the Airport Improvement Project for Chicago's expansion of O'Hare airport.  A group of villages and other entities in the surrounding area petitioned for review of the FAA's grant.  The court held that the petitioners lacked standing to challenge the grant, since they failed to show that the grant had caused their injuries or that the court redress any injuries that they might incur, since the the federal money played a "minor role."
5. R/T 182, LLC v. FAA, Case no. 07-3678 (6th Cir., March 11, 2008).  The owner of an airplane appealed the decision of the FAA that allowed a local airport to charge maintenance fee for based aircraft, but did not charge the fee to transient users.  The court decided that there was substantial evidence to support the FAA's determination that airport's based-users were not similarly situated to transient users and that since the process resulting in the FAA's order was adjudicatory in nature, it was not subject to notice -and-comment procedures under the Administrative Procedures Act.

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Here are quick takes on recent news items concerning aviation and airport development during the past week.

• FAA Bans Pilots and Air Traffic Controllers From Using the Anti-Smoking Drug Chantix.  Apparently, the smoking cessation drug may cause serious side effects, including psychiatric disorders, including suicide.  FAA felt that they were serious enough to ban pilots and air traffic controllers from using the drug.  Many bloggers picked up the story.  Here are just a sample of the many blogs that picked up this story:
  • Airline Pilot Forum
  • InjuryBoard.com
  • BernieHund:  The Political Watchdog
• FAA Tests New Systems For Detecting Ground Debris.  The FAA has begun to test several different systems around the country to ensure that the runways are debris-free.  Debris, if sucked into jet engines can cause severe damage.  Whether this is separate and apart from the NextGen technology, remains to be seen.
  
• In the Good News/Bad News department:  Flight Delays Cost $41billion in 2007 to the industry and to passengers; and New Air Traffic Software is proven to save $27 million in delays. The disparity between the two numbers is astounding!  Granted, the new software is only one portion of the "new technology" effort to cut down on delays.  Blogs:
  
  • chisblassternardone
  • iTravelnet Travel Directory
  • Aircraft Maintenance Technology
• Citing lessons learned from reports submitted by the Federal Aviation Administration and American Airlines in response to last month’s grounding of hundreds of MD-80 aircraft, the U.S. Secretary of Transportation called on the FAA and airlines to better ensure mutual understanding of what constitutes compliance with an Aviation Directive.  Blogs:
  • Aviation Safety Network
  • ATW Daily News
• American Airlines and FAA differ about April groundings.  The finger-pointing has begun.  American claims that although the maintenance shortcomings did not justify canceling all of the flights, they were told by a FAA inspector to keep the planes on the ground.  FAA says the decision to cancel the flights was solely American's.  Interesting story to watch as the FAA and the airlines develop a new relationship post-MD80 Wiring debacle.  Blogs:
  • New York Times
    
  • US News - Videos
• FAA declares proposed Boston Tower too tall.  FAA declares that 1000 foot tower in downtown Boston might be an obstruction, possibly in the flight path of a plane aborting a landing at Logan and unexpectedly veering off over downtown Boston at low altitude.  As property near airports becomes more and more desirable, this sort of problem will only increase.  Blogs:
  • WBZ Radio Boston. 
    
  • ansoncfit - Anson Stewart's Website. 
    
  • Eco-Friendly Housing. 
    
• FAA Misses Deadline in Mechanic's Probe.  The FAA has failed for the third time to provide records to federal investigators conducting a probe into how the agency tracked falsely certified airplane mechanics.  This comes at a time when the FAA has little or no political capital to spend on Capitol Hill to straighten things out.  Blogs:
  • Crosswalk.com.
  • azzblog - airline info.

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The FAA first proposed limiting scheduled operations at Newark Liberty in a proposed order that was published in March 18, 2008, Federal Register.  The FAA has now, on May 21, 2008, issued its Order limiting scheduled operations at Newark Liberty Airport.  In the Order states:

• Takes effect at 6:00a.m. on June 20, 2008;
  
• Total air carrier operations will not exceed 81 per hour between the hours of 6:00 a.m. and 11:00 p.m.;
  
• The order sunsets on October 24, 2009;
  
• Air carriers have been assigned "Operating Authorizations," for specific time slots and operations (i.e., departure or arrival);
  
• In order to maintain the Operating Authorizations, the air carrier must use them at least 80% of the time;
  
• The Operating Authorizations can be sold and traded, so long as the air carrier has maintained the 80% usage prior to selling or trading. 
  

The FAA hopes that this will alleviate congestion and delays at Newark Liberty.

Secretary of Transportation Mary Peters told FAA’s Aviation Forecast Conference in March, 2008, that she believed that the caps at Newark will actually result in an increase in operations at Newark Liberty. She stated that “overall, the caps at Newark allow 30 more operations per day than were offered last summer – just more reasonably spaced."  The question remains, however, whether caps will achieve the goals of reducing delays and congestion without an economic impact on the airlines and quality of life impact on the surrounding communties. 

Alfred Kahn, the Chairman of the Civil Aeronautics Board under President Carter, in a recent working paper, stated his belief that congestion pricing would be a better approach.  He argues that the allocation of scarce airport resources is an economic problem and should be treated as such, therefore, air carriers should pay for the privilege of taking-off or landing at particular times.

With the summer travel season almost here, we will see what effect the caps at Newark and JFK will have on delays at the airport and noise in the community.

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In the May 21, 2008, issue of the Federal Register, the Federal Aviation Administration (FAA) proposed a new rule affecting two airports that are a part of the East Coast Airspace Redesign.  The FAA proposes to establish procedures to address congestion in the New York City area by assigning slots at JFK and Newark Liberty Airports in a way that allows carriers to respond to market forces to drive efficient airline behavior.

• The FAA's proposed rule is similar in many respects to its proposal for LaGuardia airport. 
  
• This proposal, however, takes into account the fact that both JFK and Newark have a large number of international flights, which implicates FAA's international obligations. 
  
• The FAA proposes to
  
  • extend the caps on the operations at the two airports,
    
  • assign to existing operators the majority of slots at the airports, and
    
  • create a market by annually auctioning off a limited number of slots in each of the first five years of this rule.

The proposed rule offers two alternatives in the method of assigning slots at the airport. Under the first alternative:

• the assignment of slots at JFK and Newark would be conducted through a uniform mechanism.
  
• The FAA would auction off a portion of the slots and would use the proceeds to mitigate congestion and delay in the New York City area.
  

Under the second alternative, the same auction procedure would apply at Newark as under the first alternative but at JFK the auction proceeds would go to the carrier holding the slot rather than to the FAA.

For both alternatives, this proposal also contains:

• provisions for minimum usage,
  
• capping unscheduled operations, and
  
• withdrawal for operational need.
  

The FAA proposes to sunset the rule in ten years. Continue Reading...

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At a May 6, 2008, hearing of the U.S. House Subcommittee on Aviation, the FAA sought to dispel several "myths" concerning the effect that aircraft emissions of greenhouse gases have on the environment.  Coming a little over one month after the EPA announced its plans to issue an Advance Notice of Proposed Rulemaking for aircraft emissions of GHG (see, "EPA Plans to Release an Advance Notice of Proposed Rulemaking Emissions" below),  Daniel K. Elwell, Assistant Administrator, Office of Aviation Policy, Planning and Environment, testified that there were three myths that needed to be put to rest.  First, Mr. Elwell stated that aircraft emissions account for only 3% of GHG emissions, and “the largest aviation market in the world is burning less fuel today than in 2000.”  Indeed, Mr. Elwell, said, aviation in general and aircraft in particular are becoming more fuel efficient, now outstripping automobiles in terms of energy intensity - that is automobiles burn more BTUs per passenger mile than aircraft.  This increase in fuel efficiency and the attend reduction in GHG emissions was one of the primary themes of several other witnesses as well:

• Bill Glover, Managing Director, Environmental Strategy, Boeing Commercial Airplanes;
• James C. May, President and CEO, Air Transport Association of America, Inc.;
  
• Douglas E. Lavin, Regional Vice-President (North America), International Air Transport Association; and
  
• James K. Coyne, President, National Air Transportation Association.

Second, Mr. Elwell stated that CO2 emissions by aircraft at altitude do not have any more (or any Continue Reading...

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At a April 2, 2008, hearing entitled "From the Wright Brothers to the Right Solutions:  Curbing Soaring Aviation Emissions," the EPA indicated its plans to release an advance notice of proposed rulemaking (ANPRM) soon to solicit comments regarding curbing greenhouse gas (GHG) emissions from aircraft engines.  Robert Meyers, principal deputy assistant administrator for the EPA Office of Air and Radiation, testified before the House Select Committee on Energy Independence and Global Warming that the agency had received petitions urging EPA to determine that aircraft emissions cause or contribute to air pollution and endanger public health. The petitions further urge EPA to adopt regulations to control emissions.  The FAA also presented its thought at the Hearing.  Daniel K. Elwell, Assistant Administrator, Office of Aviation Policy, Planning and Environment, testified that the FAA believed that strides were already being made toward reducing GHG emitted from aircraft and counseled patience, since aircraft emissions account for only 3% of GHG in the United States.

Also testifying were:

• James C. May, President and CEO, Air Transport Association of America
  
• Deron Lovaas, Transportation and Energy Project Co-Director, Natual Resources Defense Council and
• Thomas S. Windmuller, Senior Vice President, International Air Transport Association
  

Continue Reading...

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As is well known, the FAA's Record of Decision on September 5, 2007 (and subsequently amended on October 5, 2007) regarding the NY/NJ/PA Airspace Redesign generated a host of litigation.  Twelve Petitions for Review were filed in three different Federal Circuit Courts of Appeal. Seven petitions from counties, municipalities and organizations in Pennsylvania, Delaware and New Jersey were filed in the Third Circuit, located in Philadelphia. Three petitions from the State of Connecticut as well as towns and groups of towns in Connecticut were filed in Second Circuit, located in New York. And two petitions from one county in New York and a New York organization were filed in the D.C. Circuit. Because the first petition filed was in the D.C. Circuit, the Court, by  orders on February 14, 2008 and on March 10, 2008, consolidated all of the petitions in the D.C. Circuit.

Since all of the petitions were consolidated, the D.C. Circuit requested that all of the petitioners devise a proposal as to the format for briefing on this matter. Pursuant to the D.C. Circuit Court of Appeals' March 18, 2008, Order, on April 17, 2008, all of the Petitioners filed a Joint Proposal for Briefing with the court.  Following the court's strict guidelines, the Petitioners suggested to the court that they file one brief covering all of the issues presented by all of the Petitioners that is substantially longer than a normal brief.  Contained in the one brief, however, will be the specific complaints of each of the petitioners. In addition, the Petitioners set out a briefing schedule that took into account the fact that twelve groups of attorneys would be working on a single brief. Thus, the Petitioners suggested that their brief be due on August 1, 2008, the FAA’s brief to be due on October 31, 2008, and the Petitioners’ Reply brief be due on December 19, 2008. These dates and the format of the briefs were agreed to by the Department of Justice, who is representing the FAA in all of the matters.

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The Federal Aviation Administration’s recent paroxysm of safety concern-- forcing airlines to immediately cancel thousands of MD-80 flights because of a 1/4 inch deviation in the location of an electrical bundle in the wheel well -- reveals at least two “inconvenient truths”: (1) despite it repeated use of the safety rationale to justify repeated violations of Congressional mandates such as compliance with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et. seq., and the Clean Air Act, 42 U.S.C. 7401 et.seq., the FAA has long been neglecting its primary responsibility of ensuring the safety of airline travel; and (2) FAA is willing to sacrifice the welfare and convenience of air travelers and even the sacrosanct protection of  Interstate Commerce ensured by the Bill of Rights to cover up its own past non-feasance.

Whenever FAA wants to approve an airport development project, or, more recently, an airspace redesign, despite those projects patent potential for creating significant environmental impacts, FAA falls back on the time worn mantra of its safety mandate. This is happening even now in the FAA’s sponsorship of a relocation of Runway 24R, the northern most runway  at Los Angeles International Airport, much closer to surrounding communities, with concomitantly increased adverse noise and air quality impacts, and even though other reasonable and patently safe alternatives exist.

Despite the FAA’s lip service to safety, FAA has apparently been giving short shrift to it in practice.  Even though its directive requiring inspection of MD-80s’ purported  wiring problem was issued in 2006, FAA did nothing to ensure compliance until last week, when 2 FAA safety inspectors/whistle blowers revealed FAA’s cavalier attitude toward safety to a Congressional committee.

Overnight, FAA changed its stripes.  Instead of allowing aircraft to be inspected in groups, over time, FAA required that they be instantly taken off-line for inspection; and if so much as a 1/4 inch deviation was found, taken off-line immediately for repair. Sounds good, except that hundreds of thousands of paying passengers have been delayed and displaced, through no fault of their own and at great cost to them in terms of time and money expended for overnight accommodations, food, and even additional costs of seats on other airlines, victims of the FAA’s new-found sense of responsibility.

In short, if those aircraft were dangerous, the FAA knew it, and  the planes should have been taken out of service two years ago when FAA first found out about the problem.  If  the planes are not dangerous, a reasoned, gradual approach to inspection and repair would have been appropriate.  Instead of those rational alternatives, FAA chose a path that does not remedy its nonfeasance, but, rather, calls it to the attention of the public, and , hopefully to their Congressional overseers.

Please be sure to tell your Congressman and the Committee Chairs how you feel.  The Chair of the Commerce, Science and Transportation Committee is Sen. Daniel K. Inouye (dinouye@senate.gov) and the Chair of the Aviation Operations, Safety and Security is Sen. John D. Rockefeller IV (jrockefeller@senate.gov).  On the House side, Rep. James L. Oberstar (joberstar@house.gov) is the Chair of the Transportation and Infrastructure Committee and Rep. Jerry F. Costello (jcostello@house.gov) is the Chair of the Aviation Subcommittee.

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When the FAA sought approval of the "STAAV4" or "Right Turn" Departure Procedure at McCarran International Airport in Las Vegas, Nevada, it opined that the new route would decrease delays dramatically at McCarran.  Indeed, the FAA stated that reduction of delays was one of the primary purposes of instituting the departure procedure, which routes aircraft over thousands more people than the old departure route.

It has now been a year since the FAA first implemented the departure procedure.  And the results are?  Judging from the statistics that the FAA keeps and makes available to the public on its "OPSNET" system, the new departure procedure is a flop:

• Total number of delays at McCarran increased by 1,083 in the year since implementation of the procedure, representing a 7.0% increase over the prior year;
• Over the year since implementation, aircraft spent an additional 101,934 minutes in delay, representing a 23.3% increase over the prior year;

(For a complete comparison of the numbers click here).  The explanation for an increase in delays cannot be that there was a large increase in operations, since operations increased by only 1,868, which represents a 0.3% increase in operations. Nor can bad weather explain the increase in delays, since weather related delays dropped by 808 during the year.  About the only bright spot for the FAA was a decrease in "runway" delays of 155 (a decrease of 1.65%).  But this is more than offset by whopping increases in "terminal volume" delays of 1,565 (an increase of 327%) and "Other" delays of 545 (a 229% increase).


If there was no decrease in delays, why was a procedure instituted that routed aircraft over thousands more people than before, subjecting them to an increase in noise and air pollution?

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In both the Record of Decision (ROD) and the Final Environmental Impact Statement (FEIS) for the New York/New Jersey/Philadelphia Airspace Redesign, the FAA states that there will be a decrease in emissions from aircraft as a result of the airspace redesign because the aircraft will burn less fuel.  To support this theory, the FAA relies upon a cobbled-together "Fuel Burn Analysis" that is nowhere to be found in any of the FAA's orders or procedures.

However, even with the ginned-up fuel burn analysis, it is now becoming apparent that there may be no savings in fuel to be derived from instituting the Airspace Redesign's preferred alternative.  Using the information provided in the Appendix R of the Final Environmental Impact Statement and the TAAM output files that were included in the Administrative Record as document 9285, Clean Air Act consultant Dan Meszler, of Meszler Engineering Services, concluded that the "Preferred Alternative" would seemingly increase fuel consumption.

On the following page is an excerpt from Mr. Meszler's Report, along with a table showing the differences between fuel consumption reported in the FEIS and fuel consumption based on the TAAM data that was included in the Administrative Record.

Continue Reading...

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