FAA Reauthorization Act of 2018 Gives the Nod to Passenger's Rights, Both in the Air and On the Ground

Updated April 30, 2018 - In a surprising turnaround of its usual tilt toward the interests of the aviation industry, the United States House of Representatives passed, on April 27, 2018, its version of the six year budget reauthorization for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2018 (“Reauthorization Act”), a number of provisions that appear to address the long smoldering, and vociferously expressed, concerns of the flying public with, among other things, the unannounced “bumping” of passengers with reservations and paid tickets to make way for airline employees; airline employees’ difficulty in dealing with passengers in such stressful situations; the size and orientation of aircraft seats that have been radically shrinking in order to make room for more passengers; and even the absence of ground transportation accessing the airport itself.  

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FAA Supports the Right of Airport Sponsor to Use Airport Funds in Defense of Locally Enacted Noise Restrictions

In a somewhat ironic twist on the Federal Aviation Administration’s (“FAA”) usual position, on March 26, 2018, FAA ruled in favor of the Town of East Hampton, New York (“Town”), proprietor of the East Hampton Airport, in a challenge by the National Business Aviation Association (“NBAA”) under FAA regulation 14 C.F.R. Part 16, to the expenditure of airport revenues in defense of the Town’s self-imposed airport noise and access restrictions.

The origin of that determination is equally anomalous.  In or about 2015, the Town enacted three local laws limiting aircraft noise at the airport, including restriction on: (1) access by “noisy” aircraft to only one arrival and departure per week; (2) mandatory nighttime curfew from 11:00 p.m. to 7:00 a.m.; and (3) an extended curfew from 8:00 p.m. to 9:00 a.m. on “noisy” aircraft.  
These local restrictions, however, directly contravene federal law set forth in the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq. (“ANCA”) which has, since 1990, affirmatively preempted local laws which impose: “(A) a restriction on noise levels generated on either a single event or cumulative basis; . . . (D) a restriction on hours of operation.”  49 U.S.C. § 47524(c)(A) and (D).  Predictably, East Hampton’s local regulations were successfully challenged in the U.S. Court of Appeals for the Second Circuit.  Ultimately, the Petition for Writ of Certiorari, seeking to overturn the Second Circuit’s determination, brought by the Town in the United States Supreme Court, was met with an equal lack of success, despite the Town’s powerful ally, the City of New York.  
Apparently, in a last ditch attempt to thwart any future initiatives to enact similar restrictions, the NBAA brought its fight to the FAA.  The gravamen of NBAA’s challenge was the Town’s alleged violation of its contractual obligation (as airport operator) to FAA pursuant to 49 U.S.C. § 47107(k), prohibiting “illegal diversion of airport revenue.”  That section includes, among other things, “(A) direct payments or indirect payments, other than payments reflecting the value of services and facilities provided to the airport.”  49 U.S.C. § 47107(k)(2)(A), see also 49 U.S.C. § 47017(b).  
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The First Round in Petitioners' Challenge to the SoCal Metroplex Project

Because the Federal Aviation Administration’s (“FAA’) airspace redesign projects throughout the United States have apparently negatively impacted hundreds of thousands, even millions, of people, and because we have received a number of requests for a discussion of the bases for the currently pending challenge to the FAA’s SoCal Metroplex airspace redesign project, a copy of the Opening Brief of Petitioners City of Culver City, California; Santa Monica Canyon Civic Association; Donald Vaughn; and Stephen Murray in Benedict Hills Estates Association, et al. v. FAA, et al., D.C. Circuit Court of Appeals Case No. 16-1366 (consolidated with 16-1377, 16-1378, 17-1010 and 17-1029) can be accessed by clicking here.  Also filing briefs as Amici Curiae, or friends of the court, in support of Petitioners are the City of Los Angeles and the West Adams for Clear Skies.  

Challenge to FAA's Southern California Airspace Redesign Progresses

On Friday, March 16, 2018, Petitioners in Benedict Hills Estates Association, et al. v. FAA, et al., D.C. Circuit Court of Appeals Case No. 16-1366 (consolidated with 16-1377, 16-1378, 17-1010 and 17-1029) filed an Opening Brief in their challenge to the Federal Aviation Administration (“FAA”) in its realignment of flight paths over heavily populated neighborhoods throughout Southern California.  The challengers strongly object to FAA’s emphasis on efficiency (i.e., savings in fuel consumption) by the airlines, to the exclusion of any consideration of the noise and emissions tradeoffs necessary to achieve the efficiency benefits of that tradeoff.  A more complete discussion of the basis for the challenge is set forth in an article published by Law360 on March 19, 2018, and can be accessed by clicking here.

The Privatization of Air Traffic Control Vigorously Opposed by General Aviation Groups

In an unusual divergence of opinion between aviation related organizations concerning progress in the operation and development of the national air traffic system, the Airline Owners and Pilots Association (“AOPA”), the nationwide organization of private aircraft owners, opposes the plan set forth in the 21st Century Aviation Innovation, Reform, and Reauthorization Act, H.R. 2997 (“AIRR Act”).  That plan calls for the air traffic control (“ATC”) system currently managed by the Federal Aviation Administration (“FAA”) to be removed from federal government control, and turned over to a 13 member, largely private, board, the dominant members of which are the nation’s commercial airlines.  See § 90305.  

The apparent rationale behind the shift, heavily supported by the commercial airline industry, is the consistent delays and resulting costs in fuel and efficiency that have been endemic to the ground based radar air traffic control system in effect since World War II.  The airline industry maintains that insufficient progress has been made in expediting operations to accommodate the increasing number of operations in the United States airspace.  The commercial airlines’ position is supported by the legislative purpose which is “to provide for more efficient operations and improvement of air traffic services.”  See § 201.  
AOPA, on the other hand, relies on examples of the disputed improvements in system management which it maintains undercut the airline industry rationale for pursuing privatization.  
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Buchalter's Aviation Group Wins Major Victory in Ninth Circuit

On November 1, 2017, the United States Court of Appeals for the Ninth Circuit handed down a sweeping victory for Buchalter’s client Bonner County, owner and operator of Sandpoint Airport in Sandpoint, Idaho.
The airport was sued in 2012 by real estate developer SilverWing at Sandpoint, LLC for actions the county took in order to achieve compliance with federal aviation regulations and specific safety directives from the Federal Aviation Administration.  SilverWing sought tens of millions of dollars in damages under 42 U.S.C. § 1983 for alleged inverse condemnation and violation of equal protection in addition to a state law claim for breach of the covenant of good faith and fair dealing arising from a “through-the-fence” access agreement.
After prevailing on summary judgment in the U.S. District Court for the District of Idaho, Buchalter’s Aviation Practice Group, led by attorneys Barbara Lichman and Paul Fraidenburgh, won a complete victory in the Ninth Circuit on every issue across the board, including the affirmance of an attorney fee and cost award totaling almost $800,000 (which is likely to increase after appellate fees and costs are added).
With respect to the preempted state law claim, the Ninth Circuit held: 
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Connecticut State Statute Limiting the Length of the Runway at Tweed-New Haven Airport Resists Federal Preemption Challenge

Tweed-New Haven Airport, seeking to extend its 5,600 foot runway to 7,200 feet, has run into an unexpected roadblock.  A Federal Magistrate in the United States District Court for the District of Connecticut has determined that Connecticut’s Gen. Stat. 15-120j(c) (providing, in part, that “[r]unway 2/20 of the airport shall not exceed the existing paved runway length of five thousand six hundred linear feet”), is not preempted by federal law.  Tweed-New Haven Airport Authority v. George Jepsen, in His Official Capacity as Attorney General for the State of Connecticut, Case No. 3:15cv01731(RAR).  The Magistrate concludes that the state statute “does not interfere with plaintiff's ability to comply with federal aviation safety standards,” because: (1) the “Plaintiff has failed to present evidence that the runway length in this instance is a component part of the field of airline safety,” and, thus, does not violate the Federal Aviation Act, 49 U.S.C. § 40101, et seq., Memorandum of Decision, p. 39; (2) the statute is not expressly preempted by the provision of the Airline Deregulation Act (“ADA”) (49 U.S.C. § 41713(b)(1)) that “prohibits states from enforcing any law ‘relating to rates, routes, or services’ of any air carrier,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378-79 (1992), because the Connecticut statute does not “relate[] to rates, routes or services [of airlines],” Memorandum of Decision, p. 43; and (3) the Airport and Airway Improvement Act, 49 U.S.C. § 47101, et seq. (“AAIA”), “does not impose any requirements or authorize the promulgation of federal regulations, unless funding is being sought,” Memorandum of Decision, p. 47.  

The Court’s decision contravenes the plain face of the FAA Act for the following reasons:  
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Congress' Attempt to Transfer Air Traffic Control to a Private Corporation Leaves a Great Deal to the Imagination

Up against a September 30th deadline for the passage of legislation before its recess, Congressman Bud Shuster introduced the 21st Century Aviation Innovation, Reform, and Reauthorization Act (“21st Century AIRR Act” or “Act”), H.R. 2997.  Although somewhat obscured by its name and size (in excess of 200 pages), one of the central points of the Bill is the transfer of air traffic control responsibility from the Federal Aviation Administration (“FAA”) to a private sector corporation (“Corporation), i.e., privatization of the air traffic control system.  The Bill betrays the speed of its development through its lack of specificity on a number of critical issues.

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Update Your Airport's Hangar Leases to Protect Against Non-Aeronautical Uses and Preserve AIP Funding

Under federal law, airport operators that have accepted federal grants or have obligations contained in property deeds for property transferred under laws such as the Surplus Property Act generally may use airport property only for aviation-related purposes unless otherwise approved by the FAA.  Specifically, the Airport and Airway Improvement Act of 1982 (AAIA) (Pub. L. 97–248), as amended and recodified at 49 United States Codes (U.S.C.) 47107(a)(1), and the contractual sponsor assurances require that the airport sponsor make the airport available for aviation use.  Grant Assurance 22, Economic Nondiscrimination, requires the sponsor to make the airport available on reasonable terms without unjust discrimination for aeronautical activities, including aviation services.  Grant Assurance 19, Operation and Maintenance, prohibits an airport sponsor from causing or permitting any activity that would interfere with use of airport property for airport purposes.  In some cases, sponsors who have received property transfers through surplus property and nonsurplus property agreements have similar federal obligations.

With increasing frequency, airports are allowing non-aeronautical storage or uses in hangars intended for aeronautical use, which the FAA has found to interfere with or entirely displace aeronautical use of the hangar.  Case in point: Car and Driver has recently featured articles about the superiority of airport hangars as “garages” for serious car enthusiasts.  This should be a red flag for airports, which stand to lose significant AIP funds for allowing on-airport hangars to lapse into non-aeronautical use.
There is only one solution to this problem, and it is something every federally-obligated airport should do to protect its AIP funds…
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Uber Flies High in FAA's Airspace

The Los Angeles Times reports that Uber, the ridesharing company, plans to extend its reach into the stratosphere by developing an “on-demand air transportation service.”  The plan appears to be that customers will use Uber’s surface transportation ride hailing system to hop a ride to a “vertiport” where an electrically powered aircraft will carry passengers to another vertiport at which they will be met by another phalanx of Uber drivers waiting to take otherwise stranded customers off the roofs of parking garages and into the traffic they supposedly avoided by using the proposed above ground transportation option.  

The purpose appears to be to allow customers to fly from one part of town to another.  Very creative, but shockingly absent all but one off-hand reference to the Federal Aviation Administration (“FAA”), and the federal government’s total dominance over the airspace of the United States, 49 U.S.C. § 40103(a), including the design and construction of airports, which definition includes “vertiports.” 14 C.F.R. § 157.2. 
Whether recognized or not, Uber’s scheme faces a host of questions, and potential regulatory objections, that range from the way in which such episodic operations will merge with the arrival and departure paths of conventional aircraft, to the noise of even electric aircraft operating over existing residential neighbors and pedestrians using city streets.  While these are, to a large extent, the same issues posed by the operation of unmanned aircraft, or drones, they are even more immediate in this case, because the proposed electric aircraft are larger, potentially louder, and, perhaps most importantly, impinge on conventional aircraft regulatory areas long controlled by the FAA.
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City of East Hampton May Be "A Day Late and a Dollar Short" in Challenging the Airport Noise and Capacity Act

The Town of East Hampton, Long Island has brought a challenge at the United States Supreme Court, seeking to reverse the November 4, 2016 decision of the United States Court of Appeals for the Second Circuit which invalidated East Hampton’s local ordinance prohibiting flights from East Hampton Town Airport between 11:00 p.m. and 7:00 a.m. and “noisy” aircraft flights between 8:00 p.m. and 9:00 a.m.  The Second Circuit decision was predicated on East Hampton’s purported failure to comply with 49 U.S.C. 47524(c), which limits the grounds upon which local operational restrictions may be imposed to those in which “the restriction has been agreed to by the airport proprietor and all airport operators or has been submitted to and approved by the Secretary of Transportation . . .”  In addition, Section 47524(d) contains six express exemptions from the limitations, none of which apparently applies to East Hampton. 

While East Hampton’s intent is noble, its cause is weak.  
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Two More Southern California Cities and an Airport Join Culver City in its Challenge to the FAA's Southern California Airspace Redesign

In an unusual alliance, the Southern California cities of Newport Beach and Laguna Beach, as well as Orange County, owner and operator of John Wayne Airport (“JWA”), joined with Culver City to challenge the adequacy of the Federal Aviation Administration’s (“FAA”) Environmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”) for the Southern California Metroplex OAPM (“Project”).  The Project is a redesign of the approaches and departures to and from more than a dozen Southern California airports.  Its stated purpose is to enhance “safety and efficiency” by consolidating the various flight paths to and from these airports by using area navigation (“RNAV”), instead of ground based radar, which requires the use of “waypoints” that, in turn, require dispersion of the aircraft over large areas, and, consequently, the consumption of more fuel.  

The various challenges are generally based on similar issues.  
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Culver City to Challenge SoCal Metroplex Project

Culver City has issued a Press Release announcing its intention to file a lawsuit against the Federal Aviation Administration related to aircraft overflights.  Culver City has retained Barbara E. Lichman, Ph.D. of the firm of Buchalter Nemer to represent it its challenge to the SoCal Metroplex Environmental Assessment ("EA") and Finding of No Significant Impact and Record of Decision ("FONSI/ROD").  

City of Santa Monica on Track for Confrontation with Federal Aviation Administration

Predictably, the Federal Aviation Administration (“FAA”) has weighed in strongly in opposition to the City of Santa Monica’s (“City”) plan to close the Santa Monica Airport (“Airport”) within the next two years.  The City, owner and operator of the Airport, plans to begin the process of closure, including cancellation and/or modification of leases held by various aeronautical service providers, such as providers of fuel, maintenance and hangar storage.  Those Airport incumbents are already paying rent on a month-to-month basis, subject to summary eviction. 


The apparent basis of Santa Monica’s position is that: (1) its obligation to maintain the airport is based solely on the terms of its contract with FAA for the provision of funding; and (2) according to its terms, that contract expires 20 years after the FAA’s last grant of funding.
The FAA’s position, obviously, differs dramatically.  The agency claims that, according to the terms of a $240,000 federal grant to the City in 2003, the City is obligated to keep the Airport open until at least 2023, see, e.g., FAA Order 5190.6B, Chapter 4, §§ 4.6.h(1) and (2).  Moreover, the FAA asserts that, under the terms of the transfer agreement governing the transfer of the airport property from the military back to the City after World War II, the City is obligated to keep the Airport open in perpetuity.
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FAA Releases New Commercial Drone Regulations, Section 333 Exemption Holders Get "Grandfathered" Compliance Status

Today, the Federal Aviation Administration (“FAA”) announced the finalization of its long-awaited Final Rule governing routine commercial operation of unmanned aircraft systems weighing 55 lbs. or less.  The new 14 C.F.R. Part 107 will become effective 60 days from the date of its publication in the Federal Register, which is likely to happen this week or next.

Below is an explanation of how the new Part 107 will affect entities that have already received a Section 333 exemption, followed by a summary of the new operational requirements and restrictions:
Section 333 Exemption Holders Get Best of Both Worlds: “Grandfathered” Compliance Status and the Option to Take Advantage of the New Rules
In the Final Rule, the FAA was careful to protect Section 333 exempt entities from the burden of complying with an additional layer of regulations.  Instead, Section 333 exemption holders will be “grandfathered” into compliance, as explained by the FAA below:
“The FAA clarifies that current section 333 exemptions that apply to small UAS are excluded from part 107. The FAA has already considered each of these individual operations when it considered their section 333 exemption requests and concluded that these operations do not pose a safety or national security risk.
The FAA recognizes, however, that there may be certain instances where part 107 is less restrictive than a section 333 exemption. Therefore, under this rule, a section 333 exemption holder may choose to operate in accordance with part 107 instead of operating under the section 333 exemption. This approach will provide section 333 exemption holders time to obtain a remote pilot certificate and transition to part 107. Operations that would not otherwise fall under part 107 may not take advantage of this option. For example, an operation with a section 333 exemption that does not fall under part 107, such as an operation of a UAS weighing more than 55 pounds, would not have the option of operating in accordance with part 107 rather than with its section 333 exemption.
Additionally, when section 333 exemptions come up for renewal, the FAA will consider whether renewal is necessary for those exemptions whose operations are within the operational scope of part 107, which also includes those operations that qualify for a waiver under part 107. The purpose of part 107 is to continue the FAA’s process of integrating UAS into the NAS. If a section 333 exemption is within the operational scope of part 107, there may be no need for the agency to renew an exemption under section 333. Because the FAA’s renewal considerations will be tied to the outstanding section 333 exemptions’ expiration dates, a 3-year transition period is not necessary. This will not affect those section 333 exemptions that are outside of the operational scope of part 107 or where a part 107 waiver would not be considered.”  
(Final Rule, Pages 83-84.)
Thus, for Section 333 exemption holders, the result is the best of both worlds.  On the one hand, Section 333 exempt entities are not required to modify their current commercial drone operations to comply with the new regulations.  On the other hand, if a Section 333 exempt entity identifies an opportunity to perform certain operations under less stringent restrictions promulgated in the new Part 107, it may “choose to operate in accordance with part 107 instead of operating under the section 333 exemption.”
Here is the FAA’s Summary of the new operational limitations, Pilot in Command and certification responsibilities, and aircraft requirements:
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Congressional Stalemate Persists over Air Traffic Control Privatization as FAA Reauthorization Deadline Approaches

The integration of cutting-edge aviation technology such as commercial drones and the modernization of our national airspace system are just a couple of the pressing aviation issues hanging in the balance this summer as Congress seeks common ground on FAA Reauthorization legislation.  

With the July 15, 2016 expiration of the current Federal Aviation Administration (FAA) authorization legislation rapidly approaching, congressional disagreement over a plan to privatize Air Traffic Control is preventing bicameral endorsement of a path forward.  
On April 19, 2016, the Senate passed its Federal Aviation Administration (FAA) Reauthorization legislation by an overwhelming margin of 95-3 (initially introduced as S. 2658 and later merged into H.R. 636). The Senate’s FAA legislation would reauthorize FAA programs through September 2017, and would focus billions of dollars and government resources on some of the most pressing aviation issues including the promotion of widespread commercial drone operations, bolstering airport security, and adding new safety systems in private aircraft. However, the Senate’s FAA Reauthorization legislation is arguably more notable for what it would not do than for what it would do. 
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Senate Monitors FAA Airspace Changes Through New Advisory Committee

The Federal Aviation Administration Reauthorization Act of 2016, passed by the United States Senate on April 19, 2016, and previously reported on in this publication, contains another provision that merits comment.  Section 2506, “Airspace Management Advisory Committee” was introduced by Senators McCain and Flake of Arizona, purportedly to provide a communication channel between the Federal Aviation Administration (“FAA”) and the public concerning FAA programs for redesign of regional airspace over major public airports.   

The Senators were apparently motivated by their constituents after the FAA initiated a massive redesign of the airspace over the region surrounding Phoenix International Airport, causing substantial and widespread public outcry regarding perceived altitude changes and associated aircraft noise increases, especially over neighborhoods not previously overflown.  Despite these reported impacts, FAA found that the airspace changes created no significant aircraft noise impacts, and, thus, chose to document their determination with a categorical exemption from review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”).  The City of Phoenix instituted a two-prong approach in disputing this determination.  It first filed a lawsuit to halt the airspace changes, on the ground that, among other things, a categorical exemption is inapplicable where, among other things, there is a division of an established community caused by movement of noise impacts from one area to another, while at the same time utilizing the political approach by submitting section 2506 through Senators McCain and Flake.  
Despite its apparently noble purpose, section 2506 doesn’t quite live up to its publicity.
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Senate Bill Approves Package Delivery by Drone

On April 19, 2016, the full Senate of the United States passed the “Federal Aviation Administration Reauthorization Act of 2016” (“FAA Act”), which had been previously passed by the full House of Representatives in February, 2016.  The FAA Act contains several notable provisions, the first of which, Section 2142, regarding federal preemption of local drone regulations, was approved by the Senate Commerce, Science and Transportation Committee on March 17, 2016, and reported in this publication on March 31.  

The FAA Act, as finally approved by the Senate, devotes substantial additional space to unmanned aircraft systems (“UAS”), and, most notably for this purpose, Section 2141, “Carriage of Property by Small Unmanned Aircraft Systems for Compensation or Hire.”  (Section 2141 will be codified in the main body of the legislation at Section 44812.)  That provision was clearly authored by Amazon, which has made considerable noise about the capability of UAS to deliver its products expeditiously and at low cost.  The FAA Act gives the Secretary of Transportation two years to issue a final rule authorizing the carrying of property by operations of small UAS within the United States.  
The requirement for the contents of the final rule is, however, clearly specified in the Act.  
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Senate Version of Federal Aviation Administration Reauthorization Preempts Local Drone Regulations

On March 17, 2016, the Commerce, Science and Transportation Committee of the United States Senate approved amendments to the most recent funding legislation for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2016, that, among other things, appear to preempt to preempt local and state efforts to regulate the operation of unmanned aircraft systems (“UAS” or “drones”).  

Federal preemption is the displacement of state and local laws which seek to govern some aspect of a responsibility that Congress views as assigned by the Constitution exclusively to the federal government.  Preemption by statute is not uncommon in legislation dealing with transportation, and its relationship to interstate commerce.  For example, the Airline Deregulation Act of 1978, 49 U.S.C. § 41713, specifically “preempts” local attempts to control “prices, routes and service” of commercial air carriers by local operators or jurisdictions.  Similarly, the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”) preempts local efforts to establish airport noise or access restrictions.  The Senate’s current amendments, however, appear, at the same time, broader in scope, and more constrained by exceptions than previous legislative efforts.  They also hit closer to home for the average American concerned about the impact on daily life of the proliferation of UAS for all uses, including, but not limited to, the delivery of packages.  
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Privatization of the United States Air Traffic Control System Hits Roadblock in the U.S. Senate

Less than a month ago, it seemed clear that privatization was the wave of the future for the United States Air Traffic Control System (“ATC System”).  On February 19, 2016, the United States House of Representatives Transportation and Infrastructure Committee approved the Aviation Innovation, Reform and Reauthorization Act (“H.R. 4441” or “FAA Reauthorization Act”), the centerpiece of which was the establishment of an independent, nonprofit, private corporation to modernize the U.S. ATC System and provide ongoing ATC services.  The benefits of such “privatization” were seen to include less expense, less backlog in the implementation of air traffic control revisions, in essence, greater efficiency in the development, implementation, and long-term operation of the ATC System.  Central questions still remain, however, concerning the synergy of a private corporation’s management of the ATC System with the overarching statutory regime by which it is currently governed.  

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City of Burbank Attempts to Strike Deal with FAA for Curfew at Burbank Airport

In what looks like a swap of increased capacity for reduced hours of operation, brokered by Representative Adam Schiff, the City of Burbank has offered the Federal Aviation Administration (“FAA”) a 14 gate replacement terminal at Bob Hope Airport (“Airport”) in return for which the FAA is being asked to approve a mandatory nighttime curfew from 10:00 p.m. to 7:00 a.m.  

What makes this potential deal especially unusual is that in the years since the passage of the Airport Noise and Capacity Act of 1990, 49 U.S.C. §§ 47521-47534 (“ANCA”), the FAA has never agreed to the enactment of a limitation on hours of operation at any airport.  It is true that some airports which had preexisting limitations on hours of operation, such as John Wayne Airport in Orange County, California, were allowed to retain those limitations as exceptions to the constraints of ANCA.  See 49 U.S.C. § 47524(d).  However, as recently as 2009, the FAA maintained its standard position that a mandatory curfew was not reasonable and would “create an undue burden on interstate commerce.”  However, under ANCA, § 47524(c), the FAA has the power to approve a restriction that might otherwise be regarded as violative of the Airport’s contractual obligations to the FAA.  See, e.g., City of Naples Airport Authority v. FAA, 409 F.3d 431 (2005).  Thus, given the quid pro quo of a new 14 gate passenger terminal to enhance passenger access as well aircraft mobility; and the already existing voluntary curfew of the same scope; it is not inconceivable that the FAA may take the hitherto unprecedented step of allowing a mandatory curfew, where none had previously been permitted.  
This negotiated outcome would sidestep the failure of Congressman’s Schiff’s efforts to enact a curfew at the federal level which effort made it to the floor of the House of Representatives in 2014 only to be rejected by a margin of four votes.  In the final analysis, the FAA’s willingness even to discuss a curfew may signal a reversal in attitude which could serve the interests of airport impacted communities throughout the nation. 

Airlines Will Be Affected by New Federal Ozone Standards

On October 1, 2015, the United States Environmental Protection Agency (“EPA”) adopted stricter regulation on ozone emissions that will fall heavily on California, and most particularly on the transportation sector, including airlines.  The new standard strengthens limits on ground level ozone to 70 parts per billion (“PPB”), down from 75 PPB adopted in 2008.  The EPA’s action arises from the mandate of the Clean Air Act (“CAA”), from which the EPA derives its regulatory powers, 42 U.S.C. § 7409(a)(1), and which requires that pollution levels be set so as to protect public health with an “adequate margin of safety.  42 U.S.C. § 7409(b).  

The change has inspired significant controversy throughout the country, but most particularly in Southern California which purportedly has the nation’s worst air quality and has already failed to meet previous ozone standards.  The issues arise out of the likelihood that the new standards will require steep emissions cuts falling most heavily on the transportation sector including trains, trucks, ships and, not least, aircraft.  
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Culver City and Inglewood Weigh in on SoCal Metroplex Project

On September 8 and October 8, 2015, the Cities of Culver City and Inglewood, California, filed original and supplemental comments, respectively, with the Federal Aviation Administration (“FAA”) concerning the adequacy of its Draft Environmental Assessment (“DEA”) for the Southern California Metroplex (“SoCal Metroplex”) Optimization of Airspace and Procedures in the Metroplex (“OAPM”) (“Project”).  The OAPM is one in a long line of airspace redesigns being implemented by FAA throughout the nation, for the purpose of narrowing the flight paths of approach and departure procedures around airports to facilitate use of satellite, rather than ground based, navigation, and thereby save fuel for the airlines.  The critical problem, as set forth in the attached comments, is that FAA failed to fully evaluate the noise, air quality and other impacts of these changes on communities surrounding airports.  

There is no set date, as yet, for the issuance of a Final Environmental Assessment, responding to the comments made on the DEA.  When that occurs, comments by interested parties are both important informationally and necessary in the event of further legal challenge.  

FAA Administrator Announces New "Compliance Philosophy" for the Agency

In a somewhat ambiguous announcement, Administrator of the Federal Aviation Administration (“FAA”), Michael Huerta, announced a “new” safety philosophy for the FAA.  Articulated in a speech last week to the Flight Safety Foundation in Washington, D.C., that “new” philosophy purportedly “challenges the status quo” by focusing on prevention, i.e., “finding problems in the national airspace system before they result in an incident or accident.”  Where problems do occur, the FAA foresees “using tools like training or documented improvements to procedures to ensure compliance.”  

Those would be noble goals if the public were not under the current impression that the FAA’s primary mandate of promoting safety of air transportation were not already being carried out with a primary emphasis on prevention.  What is, perhaps, more surprising is that the “new” philosophy is meant not merely to prevent accidents, but also to “prevent” operators (read “airlines”) from “hiding inadvertent mistakes because they are afraid of punishment.”  
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NTSB Faults FAA in Private Spacecraft Investigation

In a strange twist on the normal relationship between federal regulatory agencies, the National Transportation Safety Board (“NTSB”) has found the Federal Aviation Administration (“FAA”) a primary culprit in the October 31, 2014 disastrous test flight of Virgin Galactic’s SpaceShipTwo, in which one of the two pilots was killed, and debris was spread over a 33 mile area in San Bernardino County, northeast of Los Angeles.  

The issue appears to be the grant of a waiver by FAA from the existing rules governing safety of interplanetary vehicles, despite FAA’s own safety consultant’s warning that Virgin Galactic was violating those rules.  The claim is that, while Congress did not delegate to FAA the authority to implement regulations as stringent as those applicable to commercial aircraft, FAA managers specifically ignored the repeated advice of safety engineers that Virgin Galactic had not fully complied with the regulations that do exist.  Specifically, FAA safety personnel claim that FAA managers based their decision to grant the waiver on the remoteness of the Town of Mojave where the aircraft’s launch company, Scaled, is based, and on the surrounding area where the company planned its test flights.  
In the end, the NTSB found that, although the co-pilot had erred by prematurely unlocking the rocketship’s movable tail, the FAA and the launch company bear a disproportionate share of the responsibility.  On the one hand, the launch company had failed to ascertain that a single error by an operator could lead to the ship’s destruction.  On the other hand, the FAA, acceding to pressure to approve the permit quickly, had failed to ensure that the company took this lack of redundancy into account.  Exacerbating the issue is the fact that SpaceShipTwo is one of three commercial rockets to crash in the span of eight months.  
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FAA Requires New Integrated Model for Noise and Air Quality Impact Analysis

In a marked change in longtime Federal Aviation Administration (“FAA”) policy regarding analysis of noise and air quality impacts from FAA initiated, directed or funded projects, FAA has substituted a single new model for the long mandated Integrated Noise Model (“INM”) and Emissions and Dispersion Modeling System (“EDMS”).  Beginning May 29, 2015, FAA policy “requires” the use of the Aviation Environmental Design Tool version 2b (“AEDT 2b”), which integrates analysis of aircraft noise, air pollutant emissions, and fuel burn.  These impacts, according to FAA are “interdependent and occur simultaneously throughout all phases of flight.”  80 Fed.Reg. 27853.  

The FAA policy provides for differential displacement of existing analytic models.  For air traffic and airspace procedural changes, AEDT 2b replaces AEDT 2a, already in use.  For other, ground based projects, AEDT 2b replaces both the INM, for analyzing aircraft noise, and EDMS for developing emissions inventories and modeling emissions dispersion.  The change was presaged by FAA Administrator Michael Huerta who announced in April that FAA was undertaking an “ambitious project” to revamp its approach to measuring noise.  The “ambitious project” was apparently inspired by the vocal objections to the results of the analysis using current methodologies, voiced by citizens of locals that have experienced the effects of FAA’s current, nationwide reorganization of airspace around major airports to institute procedures based on Performance Based Navigation (“PBN”).  
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Town of East Hampton Explores Limits of Aircraft Noise Regulation

In an unprecedented action aimed at limiting or eliminating noisy helicopters and fixed-wing aircraft from use of the East Hampton Airport, in East Hampton, Long Island, New York (“Airport”), on April 6, 2015, the East Hampton Town Board, operator of the airport, imposed strict noise limits, including a curfew, on the hitherto largely unregulated Airport.  The greatest source of the problem that has generated a flood of local noise complaints appears to be the increasing helicopter traffic that ferries well-to-do city dwellers and LaGuardia and Kennedy passengers who live on Long Island to the beach community.  The noise has apparently increased with the imposition of a new rule by the FAA requiring helicopters to fly off the North Shore of Long Island, and cross Long Island at, and into, East Hampton on the South Shore.  The proposed regulatory protocol is dramatic.  

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Land Trade and Airport Expansion Expected to Put Mammoth Mountain on "Must Ski" Map

Usually regarded as a local ski area for ski buffs in Northern and Southern California, to which it is readily accessible by car, Mammoth Mountain Ski Area (“MMSA”) is preparing to come into the 21st Century with a new lodge, updated lifts, and, perhaps most important to proponents of the development, an expanded airport.  The expected transformation will be accomplished by the December 12, 2014 passage of the National Defense Authorization Act to which was attached an amendment specifically targeted at the MMSA.  The amendment provides for a land trade of over 1,500 acres of public and private property in proximate counties, for approximately 21 acres of United States Forest Service (“USFS”) land surrounding Mammoth Mountain Inn, which is currently leasing that property as the center of ski operations of the MMSA.  In addition, the Bill allows for a “cash equalization option” to facilitate the exchange, by which MMSA can make up any deficiency in the value of the property conveyed to the USFS with a cash equivalent.  
Most important in MMSA’s view is the expansion of the airport.  
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East Hampton Airport Still Subject to FAA Oversight of Noise Restrictions Despite Absence of FAA Funding Constraints

An article of December 23, 2014 in a local East Hampton, New York newspaper, now circulated to a wider audience throughout the nation, gives the impression that, upon expiration of its contractual relationship on January 1, 2015, “East Hampton Town will be free of Federal Aviation Administration oversight and able to set access restrictions at the East Hampton Airport, essentially opening the door for relief from often loud, and sometimes rattling, aircraft noise.”  The article apparently misapprehends, and consequently, vastly overstates the impact of the expiration of the town’s contractual commitments to FAA, in return for funding of airport improvements.  The fact is that, with or without the constraints of such contractual commitments or “grant assurances,” the application of noise and access restrictions will depend entirely upon FAA’s determination concerning the applicability of a parallel set of constraints set forth in the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”), which, in turn, will depend on the noise levels of the specific types of aircraft the airport wishes to control or eliminate.  

The newspaper article errs in at least two ways.
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FAA Denies LAX Request for Approval of Longtime, "Over-Ocean," Noise Mitigation Measure

In an unexpected turn of events, the Federal Aviation Administration (“FAA”) has denied an application by Los Angeles World Airports (“LAWA”), under 14 C.F.R. Part 161 (“Part 161”), for approval of the nighttime noise mitigation procedure that requires both arrivals and departures to the west and over the Pacific Ocean from 12:00 midnight to 6:00 a.m. (“Application”).  The FAA’s decision was unexpected because the procedure has been in effect on an informal basis for almost 15 years.  LAWA sought FAA approval, pursuant to the requirements of the Airport Noise and Capacity Act of 1990, as amended, 49 U.S.C. § 47521, et seq., (“ANCA”) which requires, among other things, that any restriction on noise or access be approved by FAA or, in the alternative, all the airlines operating at the airport.  In addition, the filing of the Application was required by LAWA’s 2006 settlement with surrounding communities Inglewood, Culver City, El Segundo and the environmental group Alliance for a Regional Solution to Airport Congestion.  

FAA’s denial was based on the Application’s purported noncompliance with three of the six conditions required by ANCA for approval of restrictions on Stage 3, “quieter” aircraft.  These include: (1) the restriction be reasonable, nonarbitrary, and nondiscriminatory; (2) the restriction not create an undue burden on interstate or foreign commerce; (3) the restriction not be inconsistent with maintaining the safe and efficient use of the navigable airspace; (4) the restriction not be in conflict with a law or regulation of the United States; (5) an adequate opportunity be provided for public comment on the restriction; and (6) the restriction not create an undue burden on the national aviation system.  49 U.S.C. § 47524.  
FAA’s decision comports with what appears to be its general policy of denying exemptions from ANCA’s stringent restrictions.  
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FAA Loosens Regulation of Taxes on Aviation Fuel

On November 7, 2014, the Federal Aviation Administration (“FAA”) published its “Final Policy Amendment” (“Amendment”) to its “Policy and Procedures Concerning the Use of Airport Revenue,” first published 15 years ago in the Federal Register at 64 Fed.Reg. 7696, February 16, 1999 (“Revenue Use Policy”).  The Amendment formally adopts FAA’s interpretation of the Federal requirements for use of revenue derived from taxes including sales taxes on aviation fuel imposed by both airport sponsors and governmental agencies, local and State, that are non-airport operators. 

In brief, the FAA concludes that “an airport operator or State government submitting an application under the Airport Improvement Program must provide assurance that revenues from State and local government taxes on aviation fuel will be used for certain aviation-related purposes.”  79 Fed.Reg. 66283.  Predictably, FAA received 25 substantive comments from a diverse group of interested parties, including airport operators, industry and nonprofit associations representing airports, air carriers, business aviation and airport service businesses, air carriers, state government agencies, and private citizens.  For example, in response to the airports’ and governments’ comments that airport sponsors would find it impossible to provide assurance that other governmental agencies would comply with the revenue use statutes for the life of the Airport Improvement Program (“AIP”) grant, and that airports should not be required to agree to a condition compliance with which they have no control, FAA takes the position that Federal statute 49 U.S.C. §§ 47107(b) and 47133 already require this level of control from local proprietors.  This is because “[t]he grant assurances provided by airport sponsors include Grant Assurance 25, which provides, in relevant part: ‘All revenues generated by the airport and any local taxes on aviation fuel established after December 30, 1987, will be expended by it for the capital or operating costs of the airport; the local airport system; or other facilities which are owned and operated by the owner and operator of the airport. . .’” 79 Fed.Reg. 66284.  The FAA further concludes that airport sponsors often have influence on the taxation of aviation activities in their States and localities, and the FAA expects airport sponsors to use that influence to shape State and non-sponsor local taxation to conform to these Federal laws.  Id.  Moreover, FAA asserts its power to pursue enforcement action against non-sponsor entities for the purposes of limiting the use of aviation tax revenues under 49 U.S.C. §§ 46301, 47133 and 47111(f). 
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FAA Seeks Input from Governmental Entities Concerning Revised Air Traffic Routes Over Southern California

The Federal Aviation Administration (“FAA”) has scheduled six “briefings” with governmental jurisdictions potentially impacted by the planned “Southern California Optimization of Airspace and Procedures in the Metroplex (SoCal OAPM)” (“Project”).  The Project is expected to involve changes in aircraft flight paths and/or altitudes in areas surrounding Bob Hope (Burbank) Airport (BUR), Camarillo Airport (CMA), Gillespie Field (SEE), McClellan-Palomar Airport (Carlsbad) (CRQ), Montgomery Field (MYF), Los Angeles International Airport (LAX), Long Beach Airport (LGB), Point Magu Naval Air Station (NTD), North Island Naval Air Station (NZY), Ontario International Airport (ONT), Oxnard Airport (OXR), Palm Springs International Airport (PSP), San Diego International Airport (SAN), Santa Barbara Municipal Airport (SBA), Brown Field Municipal Airport (SDM), Santa Monica Municipal Airport (SMO), John Wayne-Orange County Airport (SNA), Jacqueline Cochran Regional Airport (TRM), Bermuda Dunes (UDD), Miramar Marine Corps Air Station (NKX) and Van Nuys Airport (VNY).   
These meetings are targeted at “key governmental officials/agencies” for the purpose of soliciting their views on the Environmental Assessment being prepared for the Project pursuant to the requirements of the National Environmental Policy Act, 42 U.S.C. 4321.  The meetings will not be open to the public, although public meetings will be scheduled as well.  
It is important to note the regional scope of the planned airspace changes, and that they may redistribute noise, air quality, and other impacts over affected communities, thus implicating new populations, and simultaneously raising citizen ire in newly impacted communities.  It is therefore doubly important that governmental entities participate at the initiation of the process to ensure protection at its culmination.  
The governmental meetings are planned for the following locations and times:
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One Community Gets Relief from Aircraft Noise

In a rare showing of unanimity between airport operator and noise impacted community, on September 30, 2014 the Board of Supervisors of Orange County, California (“Board”) approved the extension, for an additional 15 years, of a long-standing set of noise restrictions on the operation of John Wayne Airport (“Airport”), of which the Board is also the operator.  Those restrictions include: (1) limitation on the number of the noisiest aircraft that can operate at the Airport; (2) limitation on the number of passengers that can use the Airport annually; (3) limitation on the number of aircraft loading bridges; and, perhaps most important, (4) limitation on the hours of aircraft operation (10:00 p.m. to 7:00 a.m. on weekdays and 8:00 a.m. on Sundays).   

The restrictions were originally imposed in settlement of a lawsuit in 1986, between the Board, the neighboring City of Newport Beach and two environmental organizations, the Airport Working Group of Orange County, Inc. and Stop Polluting Our Newport.  The obvious question is whether similar restrictions might be achieved at other airports today. The not so obvious answer is that such a resolution is far more difficult now, but not impossible.
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FAA Grants Exemptions for Filming with Unmanned Aircraft Systems

In a landmark decision for the UAS (aka drone) industry and for the aviation industry as a whole, the Federal Aviation Administration announced today that it has granted 6 petitions for regulatory exemptions to operate unmanned aircraft systems for commercial filming operations.  The exemptions will allow the 6 petitioners to operate unmanned aircraft systems for closed set filming in both populated and unpopulated areas.  This highly anticipated decision paves the way not only for other filmmakers who wish to seek exemptions, but for potential future UAS operations in other industries including energy, agriculture, and telecommunications.

FAA Seeks Comments on Exemption from Environmental Review for New Airspace Procedures

On August 19, 2014, the Federal Aviation Administration (“FAA”) published a proposed rule regarding “Implementation of Legislative Categorical Exclusion for Environmental Review of Performance Based Navigation  Procedures,” 79 Fed.Reg. 49141 (“CATEX Rule”) to implement the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FRMA”), § 213, directing FAA “to issue and file a categorical exclusion for any navigation performance or other performance based  navigation (PBN) procedure that would result in measureable reductions in fuel consumption, carbon  dioxide emissions, and noise on a per flight basis as compared to aircraft operations that follow existing instrument flight rule procedures in the same airspace.”  79 Fed.Reg. 41941.

FAA was motivated to request public review of the CATEX Rule by the exceptions in FMRA that limits the change in the environmental review requirements to: (1) PBN procedures (excluding conventional operational procedures and projects involving a mix of both), FMRA § 213(c)(2); and (2) those in which there are measurable reductions in fuel consumption, carbon dioxide emissions and noise on a per flight basis, Id., see also, 79 Fed.Reg. 49142, citing FMRA § 213(c)(1).  In addition, FAA feels it necessary to further explore the consequent recommendations of the industry group appointed to develop a metric to capture the new requirement, the NextGen Advisory Committee (“NAC”), made up of 28 members from the “airlines, airports, manufacturers, aviation associations, consultants, and community interests.”  Id.
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Drone Filmmaking and the Technological Power Shift

MovieMaker Magazine published an article titled “Drone Filmmaking and the Technological Power Shift” by our blog’s co-author Paul Fraidenburgh.  The full text of the article is reprinted after the jump.

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Amazon Prime Air

Amazon has announced it will use unmanned aircraft systems to deliver packages.  But how soon?  Westlaw Journal Aviation quoted Barbara Lichman and Paul Fraidenburgh today in an article entitled “The FAA’s recent notice and Amazon drone delivery.”  

FAA Proposes to Increase its Authority Over Off-Airport Development

The Federal Aviation Administration (“FAA”) has added another arrow to its quiver in its ongoing campaign to limit residential and commercial development in even the remotest vicinity of airports.  In late April, FAA originally published a “Proposal to Consider the Impact of One Engine Inoperative Procedures in Obstruction Evaluation Aeronautical Studies” (“Proposal”) which seeks to supplement existing procedures for analyzing the obstruction impact of new structures or modifications to existing structures on aircraft operations within certain distances around airports (see 14 C.F.R. Part 77), with consideration of the impact of structures on one engine inoperative (“OEI”) emergency procedures.  OEI procedures are not currently included in FAA’s obstruction regulations which advise local land use jurisdictions on appropriate limits to building heights within specified geographic zones around airports to accommodate the takeoff and landing clearance needed by aircraft with their full complement of operating engines.  From an aeronautical perspective, FAA’s initiative sounds desirable and long overdue, even though the occurrence of engine loss is rare.  From the perspective of local jurisdictions, landowners and developers, however, the proposal is anathema, potentially leading to dramatically lower allowable building heights and concomitantly reduced property values, even far from the airport. 

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UAS Update Interview with LXBN TV

2014 has been the year of the unmanned aircraft systems (also known as drones).  Recently, we had the opportunity to sit down with LXBN TV to discuss the state of the UAS industry and what to expect in the coming months.  The interview is available here: LXBN 

FAA Weighs in on the Regulation of "Model Aircraft"

On June 25, 2014, the Federal Aviation Administration (“FAA”) published in the Federal Register, 79 Fed.Reg. 36172, its “Interpretation of the Special Rule for Model Aircraft” (“Interpretation”) established by Congress in the FAA Modernization and Reform Act of 2012, Pub.L. 112-95, § 336 (“FMRA”).  Despite its name, FAA’s interpretation goes far beyond mere definitional clarification.  It is, instead, the first step in establishing FAA’s preemptive authority over Unmanned Aircraft Systems (“UAS”) as “aircraft” utilizing the National Airspace System (“NAS”), even where the operator of an UAS chooses to denominate it a “model aircraft.” 

As a first step in asserting its regulatory authority, FAA takes the position that Congress’ rule in the FMRA is nothing new, but, instead, relies heavily on the long standing statutory and regulatory definition of model aircraft as “aircraft,” i.e., mechanisms that are “invented, used or designed to navigate or fly in the air,” 49 U.S.C. § 40102; 14 C.F.R. § 1.1.  FAA also applies its own 2007 guidelines regarding UAS operating in the NAS, which recognizes that UAS fall within the statutory and regulatory definition of “aircraft” as “devices that are used or intended to be used for flight in the air with no onboard pilot.”  72 Fed.Reg. 6689 (February 13, 2007). 

FAA’s Interpretation, however, goes far beyond the simple inclusion of “model aircraft” in the category of “aircraft.”  The Interpretation expands even further upon FMRA’s three part test defining a “model aircraft” as an “unmanned aircraft” that is: “(1) capable of sustained flight in the atmosphere; (2) flown within the visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”  FMRA, § 336(d). 
With regard to FMRA’s second factor, the requirement that the model aircraft stay within the “visual line of sight” of the user, FAA interprets that requirement consistent with FMRA, § 336(c)(2) to mean that: (1) the aircraft must be visible at all times to the operator; (2) that the operator must use his or her own natural vision (including corrective lenses) and not goggles or other vision enhancing devices; and (3) people other than the operator may not be used to maintain the line of sight.  In other words, to maintain the identity as a “model aircraft,” the aircraft cannot be “remotely controlled” from a location other than that at which it is being flown.

The third factor, the definition of what constitutes “hobby or recreational use” is perhaps the thornier. 

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Commercial vs. Recreational Drones: Are Existing Regulations Backwards?

A problem with the regulatory philosophy towards unmanned aircraft systems is quickly coming into view.  While foreign and domestic governments are investing time and money developing strict standards for commercial drone use, the more pressing threat of recreational use has largely escaped the regulatory spotlight.

The Australian Transport Safety Bureau (ATSB) finalized two reports last week that shed some light on the perils of recreational drone use.  The first report describes a near collision of a passenger plane with an unmanned aerial vehicle (UAV) near Perth Airport in Western Australia.  While approaching the airport for landing, the crew “sighted a bright strobe light directly in front of the aircraft,” reports the ATSB.  The UAV tracked towards the aircraft and the pilot was forced to take evasive action, dodging the UAV by about 20 meters.  The ATSB has been unable to locate or identify the operator of the UAV, which was flying in restricted airspace at the time of the incident.
The second report describes another near collision with a recreational drone just three days later in the airspace over Newcastle, the second most populated city in the Australian state of New South Wales.  In that incident, the crew of a rescue helicopter spotted a UAV hovering over Hunter Stadium during an Australian football match.  The UAV tracked towards the helicopter as the helicopter began its descent.  The ATSB’s report was supplemented with a comment by Australia’s Civil Aviation Safety Authority (CASA), which explained that the UAV appeared to be a “first person view” vehicle that was transmitting a live video feed back to its operator.  In other words, the operator was watching the game.  Neither the venue nor the official broadcaster took or authorized any aerial footage of the game.  CASA noted that over 90% of complaints received about UAVs relate to incidents caused by first person view drones.
Though these reports come from halfway around the world, they highlight a flaw in the Federal Aviation Administration’s (FAA) approach to the use of drones in American airspace.  The FAA subjects commercial drone users to strict regulations arising from traditional “aircraft used in commerce” standards while applying the more liberal “model aircraft” standards to recreational drone users.  (See 14 C.F.R. § 91.119 [requiring aircraft used in commerce to stay at 500 feet or more in altitude above rural areas and 1,000 feet above urban areas].)  The FAA staunchly defended this system in its appeal of the Pirker case, in which the FAA seeks to overturn the decision of an administrative law judge who ruled the FAA had no regulatory authority when it fined the operator of a drone used for commercial photography.  So does it make sense for the FAA to take a hard stance towards commercial drones and a more liberal stance towards recreational drone users?
Probably not.  Here’s why:
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Santa Monica Airport Commission's Proposal to Limit Aircraft Access by Limiting Emissions is Foreclosed by Federal Law

The Santa Monica Airport Commission has recently made a proposal to limit access of certain aircraft to Santa Monica Airport by limiting emissions allowable from those aircraft.  The proposal may be public spirited in its intent, but shocking in its naiveté with respect to the preemptive authority of federal law and specifically the federal authority over emissions from aircraft engines. 

The Administrator of the Environmental Protection Agency (“EPA”) is granted by Congress exclusive jurisdiction over the creation and enforcement of regulations governing emissions from aircraft engines.  “The Administrator shall, from time to time, issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health and welfare.”  42 U.S.C. § 7571(a)(2)(A) and (a)(3).  There are, however, some limits on EPA’s authority.

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Decision in Pirker Case Invokes Specter of Local Regulation of Unmanned Aircraft Systems

While many members of the growing community of developers, manufacturers and operators of Unmanned Aircraft Systems (“UAS”) have expressed enthusiasm at the National Transportation Safety Board Administrative Decision in the Pirker case, Administrator v. Pirker, NTSB Docket CP-217, July 18, 2013, their reaction should be tempered by the law of unintended consequences.  The outcome of the administrative action, which the Federal Aviation Administration (“FAA”) has since appealed, acknowledges not only the FAA regulation that is certain to arise as a result of the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub. L. 112-95, § 334 (“FMRA”), but also opens the door to unrestricted local regulation. 

Specifically, Pirker’s argument is based on the assumption that the UAS at issue is a “five-pound radio-controlled model airplane constructed of styrofoam [sic],” Motion to Dismiss, p. 1.  He does not cite, or even refer to, any operant statutory or regulatory definition of “model aircraft.”  On that basis, Pirker alleges that his operation of the “model airplane” cannot be regulated because FAA has “fallen far behind its own schedule, as well the scheduled mandated by Congress,” Motion to Dismiss, p. 1, for enacting regulations.  Pirker again fails to refer the Court to the full extent of the Congressional mandate in FMRA which effectively disposes of his fundamental argument. 

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FAA Pushes Back Against Advocates of Unregulated Drone Operations

The Federal Aviation Administration (“FAA”) has appealed a recent National Transportation Safety Board administrative decision, Administrator v. Pirker, NTSB Docket CP-217, July 18, 2013, in which Administrative Law Judge Patrick Geraghty ruled that FAA had no regulatory authority when it fined the operator of an Unmanned Aircraft System (“UAS”) (otherwise known as “drone”) used for commercial photography, for operating a UAS at an altitude below that approved for commercial manned aircraft.  It would do well for developers, manufacturers and operators of UAS to listen carefully to FAA’s views because the decision, while preliminary, and subject to appeal through many levels of the Federal Court system, has opened the proverbial Pandora’s Box in the relationship of manned and unmanned aircraft and their joint, or separate regulatory frameworks. 

First, it is important for the UAS community to recognize that, while Administrative Law Judge Geraghty found an absence of regulatory authority in the FAA, the Opinion did not acknowledge the seminal issue of “the federal government’s pervasive regulation of aircraft, airspace and aviation safety,” see, Montalvo v. Spirit Airlines, 508 F.3d 464, 472-74 (9th Cir. 2007).  That pervasive control arises under the Federal Aviation Act, 49 U.S.C. § 40101 in which Congress expressly granted to the Secretary of Transportation, through his/her designee, the FAA, the tasks of, among other things, “controlling the use of the navigable airspace and regulating civil and military operations in that airspace in the interest of the safety and efficiency of both . . .,” 49 U.S.C. § 40101(d)(4), as well as “encouraging and developing civil aeronautics, including new aviation technology.”  49 U.S.C. § 40101(d)(3).  That express assignment of responsibility alone gives FAA “skin in the game.” 

FAA’s response more specifically addresses what it believes to be misapprehensions about the extent of its power and authority. 

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Sustainable Airport Policies for Car Sharing and Ride Sharing Companies

“Disruption” has become the buzzword of the decade for technology startups.  Entrepreneurs take aim at existing markets every day with ideas designed to uproot and redefine their industries.  But some of the most innovative disrupters are having trouble bringing their ideas to a place where disruption is generally unwelcome: the airport.

Car sharing services such as Zipcar, Car2Go, and Getaround and ride sharing services such as UberX, Lyft, and Zimride are changing the game in ground transportation.  By using smartphone apps to connect drivers who have open seats in their vehicles with passengers who need rides, the ride sharing movement is reducing traffic and fuel usage.  Similarly, by planting a network of available cars throughout a city and allowing consumers to access the vehicles for a fee, car sharing makes it more practical for consumers to forego vehicle ownership altogether.  In 2014 alone, these companies have amassed hundreds of millions of dollars in venture capital financing.  Many consumers prefer these services to taxi cabs or other traditional methods of ground transportation because they are more convenient, affordable, and in some cases more environmentally friendly.  As with taxi cabs, airports are natural hubs of activity for car sharing and ride sharing services.

Notwithstanding the rising tidal wave of demand, most airports have yet to develop a workable approach to the unique legal and logistical challenges presented by car sharing and ride sharing services.  Instead, airports are prohibiting these companies from picking up or dropping off passengers at their terminals.  At a recent conference of in-house airport lawyers, several representatives from some of North America’s largest aviation hubs expressed serious concerns about these services.  One attendee suggested setting up “stings” by using the popular ride sharing apps to order rides from the airport and arresting the drivers for lack of taxi cab certification when they arrive.

However, non-airport regulators are beginning to appreciate that ride sharing services are not cab companies and should not be subject to the same regulations.  In September of 2013, California became the first state to provide a regulatory framework for Transportation Network Companies (“TNCs”), defined by the California Public Utilities Commission (“CPUC”) as any organization that “provides prearranged transportation services for compensation using an online-enabled application (app) or platform to connect passengers with drivers using their personal vehicles.”  (See CPUC Decision 13-09-045.)  The Illinois House of Representatives followed suit last week when it passed HB 4075, which seeks to implement a set of regulations specific to ride sharing services.

With mounting political and consumer support for car sharing and ride sharing, airports are under increased pressure to adopt policies regulating these services instead of prohibiting them.  Developing practical, sustainable policies that address issues such as airport congestion, service monitoring, and revenue sharing may prove to be a more profitable and efficient solution than denying airport access to car sharing and ride sharing companies.

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D.C. Circuit Upholds FAA's "No Hazard" Determinations Regarding Electromagnetic Radiation from Nantucket Sound Wind Turbines

After protracted litigation challenging plans to build 130 wind turbines, each 440 feet tall, in a 25 square mile area of Nantucket Sound, the D.C. Circuit last month denied petitions for review of the Federal Aviation Administration's (“FAA”) determination that the turbines would pose no hazard to air navigation.

The petitioners, the Town of Barnstable, Massachusetts and a non-profit group of pilots and others, challenged the no hazard determinations based on the FAA’s failure to analyze the safety risks posed by the project and to perform an environmental review required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332.  The D.C. Circuit had previously vacated a 2010 no hazard determination based on the FAA’s failure to consider potential adverse effects of the turbines on pilots operating under visual flight rules (“VFR”) and the potential that electromagnetic radiation from the turbines would interfere with radar systems in nearby air navigation facilities.

Noting the circumstances had changed after the FAA upgraded the radar and beacon at Otis Airfield, the circuit court’s January 22, 2014 opinion upheld the FAA’s 2012 no hazard determinations.  The court concluded that the FAA properly based its determinations on aeronautical studies conducted according to the FAA Handbook, Procedures for Handling Airspace Matters, FAA Order JO 7400.2J (February 9, 2012), of which Section 3 on identifying and evaluating aeronautical effect was applicable.  According to the court, the FAA could reasonably view its Handbook procedures implementing the Secretary of Transportation’s regulations as requiring a threshold finding before triggering the need for a more advanced “adverse effects” analysis under Handbook Section 6–3–3 which states that “[a] structure is considered to have an adverse effect if it first ... is found to have physical or electromagnetic radiation effect on the operation of air navigation facilities.”

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Judge Blocks City of Santa Monica's Latest Effort to Close the Santa Monica Airport

Predictably, Judge John Walter of the Los Angeles Federal District Court summarily dismissed a lawsuit brought by the City of Santa Monica (“Santa Monica”) aimed at closing the Santa Monica Airport, based on, among other things, unconstitutional taking of property without just compensation.  The court’s decision was made on the procedural grounds that, among other things, the lawsuit was brought too late and in the wrong court.

First, the court found that Santa Monica had brought the suit after the applicable 12 year statute of limitations had expired.  28 U.S.C. § 2409(a)(g).  The court’s rationale was that Santa Monica knew as long ago as 1948 that the Federal Aviation Administration (“FAA”) had a residual claim to the property arising from the Deed of Transfer of the federal government’s lease back to the City of Santa Monica.  That residual claim, therefore, required that Santa Monica’s suit be brought no later than the early 1960s. 

In addition, the court found that, even if a claim for unconstitutional taking could be sustained under the applicable statute of limitations, it was improperly brought in the District Court, as the Tucker Act, 28 U.S.C. § 1491(a)(1) vests exclusive subject matter jurisdiction over monetary claims against the federal government exceeding $10,000 with the Court of Federal Claims.  Santa Monica does not, of course, dispute that the value of the airport property that it wishes to recover and use for other purposes exceeds $10,000. 

Although the court chose the procedural route in making its decision, there appear to be relevant substantive grounds as well.

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El Paso County Seeks Control Over Colorado Springs Airport

In an exercise of regulatory zeal, El Paso County, Colorado (“County”) now requires that City owned Colorado Springs Airport (“Airport”) obtain a permit from the County for any changes in airport physical development or operations that might affect nearby property located in the County. 

Purportedly under the authority of the Colorado Areas and Activities of State Interest Act, § 24-65-101, et seq., the Board of County Commissioners (“Board”) “has specific authority to consider and designate matters of state interest . . . and to adopt guidelines and regulations for administration of areas and activities of state interest. . .”  Pursuant to that purported authority, by Resolution No. 13-267, June 6, 2013, and recorded at Reception No. 213077196 of the El Paso County Clerk and Recorder’s Office, “the Board designated certain areas and activities of state interest” and established “a permit process for development in certain areas of state interest,” Resolution No. 13-530, Resolution Amending Guidelines and Regulations for Areas and Activities of State Interest of El Paso County, and designating additional matters of state interest.  December 17, 2013.  The new areas of state interest designated in the Resolution include: “site selection and expansion of airports,” Resolution, p. 3, § 1.  The County has interpreted the permit process to extend to “runway extension, noise and other impacts that might affect property owners . . .,” Gazette, January 17, 2014, quoting Mark Gebhart, Deputy Director of County Development Services Department. 

Therein lies the rub. 

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California Legislators Successful in Obtaining Relief from Helicopter Noise

California Legislators Senator Dianne Feinstein and Representative Adam Schiff of Burbank achieved the seemingly impossible in Congress’ January 14 passage of the $1.012 trillion Omnibus Spending Bill, the Consolidated Appropriations Act, 2014, H.R. 3547 (“Appropriations Act”).  The Appropriations Act contains a provision, § 119D, requiring the Federal Aviation Administration (“FAA”) to achieve reductions in helicopter noise throughout the Los Angeles Basin by 2015.  That section specifies certain voluntary measures, which, if unsuccessful in achieving the desired reductions within one year, must give way to FAA regulations to achieve the stated purposes. 

Specifically, § 119D mandates that:

“The Secretary shall (1) evaluate and adjust existing helicopter routes above Los Angeles, and make adjustments to such routes if the adjustments would lessen impacts on residential areas and noise-sensitive landmarks; (2) analyze whether helicopters could safely fly at higher altitudes in certain areas above Los Angeles County; (3) develop and promote best practices for helicopter hovering and electronic news gathering; (4) conduct outreach to helicopter pilots to inform them of voluntary policies and to increase awareness of noise sensitive areas and events; (5) work with local stakeholders to develop a more comprehensive noise complaint system; and (6) continue to participate in collaborative engagement between community representatives and helicopter operators:  Provided, That not later than one year after enactment of this Act, the Secretary shall begin a regulatory process related to the impact of helicopter use on the quality of life and safety of the people of Los Angeles County unless the Secretary can demonstrate significant progress in undertaking the actions required under the previous proviso.”

Although a seeming triumph for noise impacted communities, the Appropriations Act is neither an unalloyed victory nor does it set a precedent for future legislative initiatives for the following reasons:

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Reliever Airports Face Increasing and Competitive Woes

Reliever airports, once touted as the solution to major metropolitan airport congestion and its environmental impacts on surrounding communities are now facing daunting financial and competitive challenges from the very same airports they were supposed to relieve.

Reliever airports, defined as “general aviation airports in major metropolitan areas that provide pilots with attractive alternatives to using congested hub airports,” Federal Aviation Administration (“FAA”) Advisory Circular 150/5070-6B, Appendix A, Glossary, were typically developed to occupy a market niche in their local regions.  For years, they succeeded in their task.  Since 2009, however, reliever airports throughout the country have lost substantial proportions of their passengers to the major urban airports.  In Southern California alone, reliever airports such as Ontario International Airport (“ONT”) and Long Beach Airport (“LGB”) have seen massive reductions in their passenger counts.  Now these airports are forced to take drastic steps to remain viable. 

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"Silent Skies Act" is a Nobel Effort Unlikely to Succeed

On December 4, 2013, Representative Joseph Crowley of a district in the Bronx and Queens, New York, heavily impacted by operations at LaGuardia Airport, introduced the “Quiet Skies Act” (H.R. 3650).  Supported by a variety of Congresspersons from other similarly impacted districts, the Act requires passenger airlines to replace or retrofit 25% of their fleets every five years until 2035 to meet a “Stage 4” standard, approximately 10 decibels lower than currently approved “Stage 3” engines. 

The conversion mandated by the Act might seem to result in significant relief to populations impacted by frequent overflights of Stage 3 aircraft.  There are, however, at least two conditions significantly vitiating the Act’s impacts. 

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Santa Monica Sues for Closure of Airport

The internet has been abuzz lately with talk about the latest legal action filed by the City of Santa Monica (“City”) against the Federal Aviation Administration (“FAA”), on October 31, 2013, seeking to avoid FAA’s refusal to allow the closure of Santa Monica Airport, see City of Santa Monica v. United States of America, et al., U.S.D.C. Case No. CV13-08046, an active general aviation airport surrounded by residential neighborhoods.

More specifically, the suit seeks to: (1) quiet title to the real property upon which the airport is now located, pursuant to 28 U.S.C. § 2409a, as having been owned in fee simple by the City since approximately 1926; (2) obtain a judicial declaration that any attempt by FAA to prevent closure interferes with the City’s constitutional obligations to protect the public health, safety and welfare and, thus, constitutes a “taking” without just compensation in violation of the Fifth Amendment to the United States Constitution.  The City bases this claim on its ownership of the airport property in fee simple, and any constraint on closure is “constructive confiscation of airport property, and, thus, a violation of the prohibition on takings with just compensation in the Fifth Amendment to the United States Constitution;” (3) establish violation of the Tenth Amendment to the United States Constitution brought about by FAA’s stepping outside the rights given to the federal government under Constitution, and incurring on the powers of protection of the public health, safety and welfare left to the states; and (4) establish violation of the Due Process Clause in the Fifth Amendment to the United States Constitution arising from FAA’s contravention of its own regulatory guidance, which limits FAA’s power to restrict closure to those instances where FAA owned the property upon which the airport to be closed is located. 

Leaving aside: (1) the difficulty of maintaining a case for inverse condemnation, or “taking” by one public entity against another where the express language of the Fifth Amendment provides that “private property [shall not] be taken for public use without just compensation,” see, e.g., Complaint, ¶ 106 [emphasis added]; and (2) the hurdle of obtaining declaratory and injunctive relief as a remedy for unconstitutional taking, where the law is clear that monetary damages are the exclusive remedy, there are several attributes that make this case unique, and, thus, not a precedent for action by others seeking to close airports. 

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$900 Million TSA SPOT Program Found Useless

The Transportation Security Agency’s (“TSA”) Screening of Passengers Through Observation Techniques (“SPOT”) program, aimed at revealing potential security issues at airports, was roundly criticized by the Government Accountability Office (“GAO”) in a report released Friday, November 15, 2013.  The report found that the results of the three year old program, employing approximately 3,000 “behavior detection officers” at 146 of the 450 TSA regulated U.S. airports are unvalidated, that the model used to confirm the program’s efficacy was flawed and inconclusive, and that the report used improper control data and methodology and, thus, lacks scientific proof that the program could identify potential assailants. 

The program’s critics include Steven Maland, a GAO Managing Director, Representative Benny Thompson of Mississippi, ranking Democrat on the House of Representative’s Homeland Security Committee, and the Chairman of that Committee, Michael McCall of Texas, all of whom take the position that “the proof is in the pudding.”  They cite the recent attack by a gunman at LAX during which TSA officers at the security checkpoint failed to push the panic button to alert local authorities, but instead used an abandoned landline, giving the gunman the opportunity of four minutes and 150 rounds of ammunition before he was stopped.

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FAA Changes the Rules for National Environmental Policy Act Review

Inspired by Congressional intervention, the Federal Aviation Administration (“FAA”) has begun the process of revising and reorganizing FAA Order 1050.1E, “Environmental Impact: Policies and Procedures” in a new Order, 1050.1F (by the same name).  78 Fed.Reg. 49596-49600 (August 14, 2013).  That in itself would not be particularly notable, except for the importance of the changes that are being made, and their significance for both airport operators and the communities around airports that are the direct recipients of both the disbenefit of the environmental impacts of airport projects, and the potential benefit of the adequate environmental review of those impacts.

The most important of the potential revisions to Order 1050.1E involves FAA’s relief from the burdens of environmental review granted by Congress in the FAA Modernization and Reform Act of 2012, H.R. 658 (112th) (“FMRA”).  Specifically, two legislatively created categorical exclusions are added in 1050.1F, paragraphs 5-6.5q and 5-6.5r, Exemption from NEPA Review which basically give a free pass to changes to air traffic procedures throughout the country.

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FAA Takes Two Important Steps During the Week of April 20

During the past week, the Federal Aviation Administration (“FAA”) has taken two actions likely to elicit “equal and opposite reactions” from the aviation community specifically, and the American public in general.  On the positive end of the spectrum lies FAA’s approval of a presumed cure for the dramatic malfunctions of the lithium ion batteries installed by the Boeing Company in place of the hydraulic system in the company’s 787 Dreamliner passenger jet.  This “fix” will allow Boeing to begin deliveries of the aircraft again after an FAA mandated hiatus since January 16, 2013.  At the extreme opposite end of the spectrum lies FAA’s decision to begin the furloughing of air traffic controllers, a move that has already precipitated the filing of petitions with the United States Court of Appeals for the District of Columbia Circuit by, among others, the aviation trade group for the nation’s airlines, Airlines for America, the Airline Pilots Association, and the Regional Airline Association.

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FAA Issues Draft Revisions to the Airport Improvement Program Handbook

The Federal Aviation Administration (“FAA”) has published in the Federal Register an “Invitation to Comment on Draft FAA Order 5100-38, Airport Improvement Program Handbook” (“Draft AIP Handbook”). 

The Airport Improvement Program (“AIP”) is an airport grant program, pursuant to Airport and Airway Improvement Act of 1982, as amended, 49 U.S.C. § 47101, et seq. (“AAIA”).  The Draft AIP Handbook contains regulations implementing the AIP.  This updated version incorporates substantial changes to the governing statutes, including the recently enacted FAA Modernization and Reform Act of 2012. 

While FAA usually does not solicit comments on what it calls “internal orders” (claiming that the Draft AIP Handbook “contains instructions to FAA employees on implementing the AIP”), FAA recognizes the broad impacts of the Draft AIP Handbook, and the impact on all segments of the airport community of its implementation.  Therefore, FAA is accepting comments until March 18, 2013. 

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U.S. Aircraft Manufacturing Industry Takes a Hit with Federal Aviation Administration Grounding of Boeing 787 Aircraft

The competitive position of the United States aircraft manufacturing industry was dealt a blow, beginning on January 19, 2013, with the order by the Federal Aviation Administration (“FAA”) for the grounding of Boeing’s “Dreamliner,” the Boeing 787.  The order, occurring just 17 months after the FAA’s final approval of the aircraft’s formal entry into the market, effectively shuts Boeing out, at least temporarily, of the New Large Aircraft (“NLA”) market.  Several countries around the world, including Japan and Singapore, had already taken that step independently.  Boeing has now ordered the cessation of all 787 manufacturing activities, pending further investigation of the source of the problem. 

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FAA Finally Issues Guidance on Plume Hazards to Aircraft from Power Plants - Or Does It?

Responding to the concerns of pilots and the California Energy Commission (“CEC”) regarding the impact of exhaust plumes from power plants on overflying aircraft, the Federal Aviation Administration’s (“FAA”) Airport Obstruction Standard Committee (“AOSC”) completed a Supplement to FAA’s 2006 guidance [“Safety Risk Analysis of Aircraft Overflight of Industrial Exhaust Plumes”].  The purpose of the Supplement is to enhance current FAA regulations which only address standards for the physical height of the smoke stacks, and omit regulation of the impacts of the smoke plume emitted from the stacks, or the emissions contained in them. 

The Supplement is also aimed at obtaining definitive answers to the questions: (1) how much turbulence is created by exhaust plumes; (2) is this turbulence great enough to cause loss of pilot control; (3) if so, what size aircraft are impacted; (4) is there a lack of oxygen causing loss of engine power or danger to pilots/passengers; and, if so, (5) what is the harm to those pilots and passengers?

For two years, from 2008 to 2010, the AOSC conducted a Plume Report Study, which was ultimately determined to need further verification and validation.  In 2011, FAA retained the Federally funded Research and Development Center, operated by Mitre Corporation to answer the questions specified in the earlier Plume Report.  The Mitre Study was completed in September 2012 and verified both FAA’s model and what the earlier FAA reports and studies had concluded.

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FAA Again Changes its Position on "Through-the-Fence" Agreements with Owners of Residential Property

Spurred on by Congress, FAA has issued a proposed policy revising its current position “concerning through-the-fence access to a federally obligated airport from an adjacent or nearby property, when that property is used as a residence.”  77 Fed.Reg. 44515, Monday, July 30, 2012.  FAA’s current position, set forth in its previously published interim policy of March 18, 2011, 76 Fed.Reg. 15028, prohibited new residential “through-the-fence” access to Federally obligated airports. 

The change came in response to Congress’ passage of the FAA Modernization and Reform Act of 2012 (“FMRA”) on February 14, 2012.  Section 136 of FMRA permits general aviation (“GA”) airports, defined by the statute as “a public airport . . . that does not have commercial service or has scheduled service with less than 2,500 passenger boardings each year,” to extend or enter into residential through-the-fence agreements with property owners, or associations representing property owners, under specified conditions.  77 Fed.Reg. 44516.  Sponsors of commercial service airports, however, are treated quite differently. 

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Santa Monica Airport Commission Needs to Look Harder at Federal Law in Proposing Aircraft Access Restrictions

While its zeal to protect its citizens from the noise and emissions of aircraft arriving and departing Santa Monica Airport is commendable and understandable, the Santa Monica Airport Commission’s method is questionable.  That is because its recently proposed proportional limitation on aircraft operations (i.e., a limit on future operations at some percent of current operations) appears to be contrary to Federal law.

More specifically, in a Memorandum of on or about August 2, 2012, the Airport Commission proposed a hypothetical restriction whereby “the number of daily operations would be limited to [approximately] 53% of the daily operations from prior years . . . For example, if there were 100 operations on June 6, 2012, then no more than 53 operations would be allowed on June 6, 2013.”  The Vice Chairman of the Airport Commission argues that, because the proposed restriction does not discriminate between aircraft types (as a prior proposed Santa Monica ordinance limiting operations by jet aircraft did), it would withstand judicial scrutiny.  The Commission has apparently forgotten about the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq., (“ANCA”), and its prohibition on the imposition of noise or access restrictions without approval by the Federal Aviation Administration (“FAA”). 

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Make No Mistake: The Supreme Court's Decision on Obamacare Has No Impact on Applicable Aviation and Airport Law

It has come to our attention that a legal colleague has authored a blog analogizing the United States Supreme Court’s recent decision upholding the Obama Administration’s health care legislation (“Obamacare”), National Federation of Independent Business, et al. v. Sebelius, et al., 567 U.S. ___ (2012), to the Federal statutes preempting state and local control of the regulation of aircraft operations and their free and open access to airports.  The blog attempts to make the case that, because the Court ruled that the Commerce Clause of the United States Constitution does not justify requiring all uninsured Americans to purchase health insurance, so the Commerce Clause somehow cannot justify exclusive Federal regulation of the “safety of navigable airspace,” 49 U.S.C. § 40103(a), and airlines “rates, routes and charges,” 49 U.S.C. § 41713(b)(1).  This analysis not only manifestly misapprehends the clear distinction between the two cases, but can also send a damaging message to those who justifiably seek legally supportable means of controlling airport impacts. 

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FAA Issues Temporary "Final Rule" for the New York North Shore Helicopter Route

In a surprising climax to the long controversy concerning helicopter flights and attendant noise impacts on the North Shore communities of New York’s Suffolk County, the FAA, on July 6, issued a “Final Rule,” making mandatory the current voluntary flight path for helicopters one mile offshore, but allowing the “Final Rule” to sunset on August 6, 2014, two years from the effective date, “unless the FAA determines a permanent rule is merited.”  The route commences 20 miles northeast of LaGuardia, near Huntington, New York, and remains approximately one mile offshore until reaching Orient Point, near the eastern end of Long Island, with deviations allowed for safety reasons, and to allow helicopters to transit over land to reach their ultimate destinations. 

The FAA discloses that its decision to promulgate the original voluntary rule arose from the numerous complaints of noise from helicopter overflights brought to its attention by Senator Charles Schumer of New York and Representative Tim Bishop of Long Island’s North Shore in October, 2007.  The subsequent mandatory rule apparently resulted from continued political pressure by residents who are “unbearably and negatively” impacted, particularly during the summer months when the number of helicopters, as well as deviations from the voluntary routing, seem to increase dramatically.  The real surprises in the “Final Rule,” however, are FAA’s rationale for: (1) making the route mandatory, a rationale which seems to apply equally to currently voluntarily procedures at other airports; and (2) the Rule’s sunset provision. 

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EPA Adopts Final Rule Further Restricting NOx Emissions from New Aircraft Engines

On June 18, 2012, the Environmental Protection Agency (“EPA”) posted in the Federal Register, Vol. 77, No. 117, 36342, its Final Rule adopting several new aircraft engine emission standards for oxides of nitrogen (“NOx”) for aircraft turbofan or turbojet engines with rated thrusts greater than 26.7 kilonewtons (kN), or in common parlance, commercial passenger and freighter aircraft normally used at airports across the United States.  The rule applies only to the manufacture of new aircraft engines, not to retrofit of existing aircraft engines. 

The EPA’s stated purpose in enacting the new rule is two-fold.  First, NOx is strongly correlated with nitrogen dioxide (“NO2”) which is a “criteria pollutant” under the EPA’s National Ambient Air Quality Standards (“NAAQS”), and is an important precursor gas in the formation of ozone and secondary particulate matter (“PM2.5”) which are common air pollutants in urban areas where airports are often located.  Second, the new rule will bring United States’ emissions standards into consistency with those established by the International Civil Aviation Organization (“ICAO”), see ICAO Annex 16, Vol. II, 2010 that the U.S. helped to develop and supports as part of the international process. 

The rule contains six major provisions.

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FAA Reopens Comment Period on Massive Changes to the Part 16 Adjudication Process

On May 17, 2012, FAA published in the Federal Register a “Notice of Proposed Rulemaking (NPRM); Reopening of Comment Period” for “Rules of Practice for Federally Assisted Airport Enforcement Proceedings (Retrospective Regulatory Review)” first published in March, 2012.  In plain language, FAA is making substantial changes to the procedures for bringing a challenge to airports’ compliance with FAA grant assurances under 14 C.F.R. Part 16.  “Grant assurances” are those commitments made by airport sponsors in return for receipt of federal funding of airport projects, as required by 49 U.S.C. § 47107.  Any changes in the procedures for enforcing grant assurances are of significant interest not only to the airports, which may benefit from a relaxation in the procedures for challenging their actions, but also to airport users, such as fixed-base operators (“FBO”), airlines, and other airport related businesses.  The proposed changes are broad in scope and purportedly made for the purpose of, among other things, becoming consistent with the Federal Rules of Civil Procedure. 

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Federal Aviation Administration Aims at Simplifying Its Airport Design Standards

On Monday, May 7, 2012, the Federal Aviation Administration (“FAA”) issued a revision to Advisory Circular 150/5300-13A which provides standards and recommendations for airport design.  While Advisory Circulars are typically considered non-regulatory, and, thus, merely “advisory,” use of the Advisory Circulars is mandatory on all projects funded by the FAA under the Federal Airport Improvement Program. 

The principal changes include: (1) a new introduction of the Runway Reference Code and Runway Design Code; (2) an expanded discussion on “declared distances;” (3) a clarified discussion on the Runway Protection Zone; (4) the introduction of a Taxiway Design Group concept; (5) the establishment of more specific guidelines for the separation between non-intersecting runways and intersecting runways; (6) the inclusion of runway incursion prevention geometry for taxiway to taxiway intersections and taxiway to runway interface; and (7) the consolidation of numerous design tables into one Runway Design Standards Matrix, Table 3-5. 

Comments must be received on or before July 6, 2012 by either hand delivery to Federal Aviation Administration, 800 Independence Avenue S.W., AAS-100, Room 621, Washington, DC  20590, or by fax to (202)267-3688.

The FAA Proposes Changes to its Funding Contracts with Airports

On April 13, 2012, as a result of the February 14, 2012 passage of the Federal Aviation Administration Modernization and Reform Act of 2012 (“FMRA”), the Federal Aviation Administration (“FAA”) proposed modifications to the “grant assurances” incorporated into FAA’s contracts with airports that receive FAA funding for physical improvements and/or noise compatibility purposes.  These changes were made in order to ensure the consistency of the grant contracts with the changes arising out of FMRA.  The revisions primarily address three categories of actions: (1) permission for “through the fence” operations under specified conditions; (2) exceptions to current restrictions on use of airport revenues; and (3) revision to rules governing use of revenues gained from disposal of airport property subsidized by FAA. 

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A California Appellate Court Puts a Fence Around Federal Preemption of Airport Safety Standards

On March 20, 2012, in a far reaching opinion, the California Appellate Court for the Second District incurred into the territory usually occupied by the Federal Courts of Appeals, by holding that Federal Aviation Administration (“FAA”) safety standards, published in FAA Advisory Circular 150/5300-13 (“Advisory Circular”) do not preempt state tort law on the standard of care applicable to utilization of an airport’s “Runway Protection Zone” (“RPZ”). 

The case, Sierra Pacific Holdings, Inc. v. County of Ventura, 2012 WL 920322 (Cal.App.2 Dist.)), concerns damage to an aircraft owned by Sierra Pacific Holdings, Inc. (“Sierra”), allegedly caused by a barrier erected within the RPZ at Camarillo Municipal Airport.  The airport, owned and operated by Ventura County (“County”), erected the barrier for the apparent purpose of preventing runway incursions by police vehicles leasing space in part of the RPZ at the airport.  The trial court upheld the County’s motion in limine to exclude evidence of state safety standards relating to “airport design and construction,” on the ground that Federal standards in the Advisory Circular preempt state tort law on the standard of care.  The trial court’s holding was based on the Federal government’s “implied preemption” of safety standards at airports, and, thus, the foreclosure of Sierra’s negligence action based on a dangerous condition of public property under state tort law.  Cal. Gov. Code § 835.  The Appellate Court reversed on the ground that “Congress has not enacted an express preemption provision for FAA safety standards” and, thus, if preemption exists, it must be implied.  The Appellate Court’s decision is flawed for at least two reasons. 

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Operators Seeking to Close Airports Navigate Difficult Regulatory Shoals

The permanent closure or “deactivation” of an underutilized public use airport has gained increasing traction among revenue starved airport sponsors, as well as disparate responses from affected parties.  Operators seek to save the drain on diminishing budgets; residential communities surrounding the airport hope for relief from the airport’s impacts; and the pilot community sees its access to the dwindling number of general aviation facilities shrinking further.  Whatever the rationale, the operator seeking to close and reuse an airport for non-aviation purposes, that has at any time accepted funds from the Federal Aviation Administration (“FAA”), faces substantial regulatory hurdles and complex procedural requirements.

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Tinicum Township, Pennsylvania's Challenge to the Philadelphia International Airport Expansion Project Goes to Court

On Tuesday, March 6, 2012, Tinicum Township, Pennsylvania and its partners County of Delaware, Pennsylvania; Thomas J. Giancristoforo; and David McCann (“Petitioners”) took their grievances with the ongoing expansion project at Philadelphia International Airport (“PHL”) to the 3rd Circuit Federal Court of Appeals in Philadelphia.  Petitioners, made up of communities and residents surrounding the airport, expressed their concern with the Federal Aviation Administration’s (“FAA”) often-ignored failure to adequately disclose and analyze the project’s air quality and land use impacts. 

Relying most heavily on consistent objections to the project by the Environmental Protection Agency (“EPA”) the Federal agency delegated by Congress with the power to promulgate and enforce regulations governing Clean Air Act compliance, Petitioners asserted that their claims are based on: (1) FAA’s failure to comply with the disclosure and analysis requirements of the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (“NEPA”); (2) the EPA’s right to receive deference from the Court to its negative views of the project because, in the 3rd Circuit, “deference follows delegation,” see, e.g., Chao v. Community Trust Company, 474 F.3d 75, 85 (3rd Cir. 2007); and (3) FAA’s violation of the Airport Airway Improvement Act, 49 U.S.C. § 47101, et seq., (“AAIA”) requirement that airport projects be reasonably consistent with the existing plans of jurisdictions authorized by the State in which the airport is located to plan for the development of the area surrounding the airport.  49 U.S.C. § 47106(a)(1).  FAA disagreed with Petitioners’ assertions of deference and claimed that they had complied with the AAIA by relying on the plans of the Delaware Valley Regional Planning Commission.  (See Philadelphia Inquirer, March 6, 2012 and Delaware County Daily Times, March 7, 2012 for catalog of FAA arguments.)

The three judge panel expressed satisfaction with the scope of the oral argument, but is not subject to any specific time period within which to render its decision.

FAA Reauthorization Act Changes Rules for Valuation of Residential Properties

Exemption of NextGen procedures from environmental review is not the only issue raised by the FAA Reauthorization legislation set to be approved by the United States Senate on Monday, February 6 at 5:30 p.m. EST.  Section 505 of the Conference Version of the Bill allows a public entity taking private residential properties by eminent domain for airport purposes to pay the value of the property after its value has been diminished by the pendency of the project itself, and by any delay by the public entity in purchasing the property.  In other words, the Congress is overriding the long held judicial precept that “temporary takings are as protected by the Constitution as are permanent ones.”  See, e.g., First Evangelical Lutheran Church of Glendale v. Los Angeles County, California, 482 U.S. 304, 318 (1987).

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There May Still Be Time to Weigh in on the Congressional Action to Exempt the NextGen Technologies from NEPA Review

As we reported yesterday in our blog titled “FAA Reauthorization Act Exempts Next Generation Airspace Redesign Projects from Environmental Review,” Congress is set to act on the conference version of H.R. 658 (“Act”), a Bill the nominal purpose of which is to fund the Federal Aviation Administration (“FAA”) for 2011-2014, a task Congress has been unable or unwilling to accomplish for the last two years. 

The legislation goes far beyond funding, however.  Toward another stated purpose - to “streamline programs” - the Act sets out the parameters for establishment and operation of FAA’s Next Generation Transportation System (“NextGen”).  Not stopping there, it also “creates efficiencies” by exempting the NextGen program from environmental review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”), Act, § 213.  Thus, whole communities around at least 30 “core” airports might be newly impacted by aircraft overflights seemingly without the opportunity for public review and comment before the NextGen project is implemented, and without an avenue of leverage in the courts afterwards.  All is not yet lost, however.

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FAA Reauthorization Act Exempts Next Generation Airspace Redesign Projects from Environmental Review

In a monument to political deal making, the United States Congress is today considering, in the House and Senate Aviation Committees, the "FAA Modernization and Reform Act of 2012," H.R. 658 ("Act") to, among other things, "authorize appropriations to the Federal Aviation Administration for fiscal years 2011-2014 . . ." It is, however, the other provisions of the legislation which most profoundly affect the public.   

Purportedly to "streamline programs, create efficiencies, reduce waste and improve safety and capacity," the most recent version of the Act to emerge from the House-Senate Conference Committee exempts all new area navigation ("RNAV") and required navigation performance ("RNP") procedures, which collectively comprise the "Next Generation Air Transportation System" ("NextGen"), Act § 201, Definitions, from environmental review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. ("NEPA"). 

The Act, generally, mandates that all "navigation performance and area navigation procedures developed, certified, published or implemented under this section [Section 213] shall be presumed to be covered by a categorical exclusion (as defined in § 1508.4 of Title 40, C.F.R.) under Chapter 3 of FAA Order 1050.1E, unless the Administrator determines that extraordinary circumstances exist with respect to the procedure." Act, § 213(c)(1).   

The Act expands on this mandate in § (c)(2). "NEXTGEN PROCEDURES - Any navigation performance or other performance based navigation procedure developed, certified, published or implemented that, in the determination of the Administrator, would result in measurable reductions in fuel consumption, carbon dioxide emissions, and noise, on a per flight basis, as compared to aircraft operations that follow existing instrument flight rule procedures in the same airspace, shall be presumed to have no significant effect on the quality of the human environment and the Administrator shall issue and file a categorical exclusion for the new procedure."

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SCAG's Regional Transportation Plan Falls Down Hard on Aviation Policy

The recently published Southern California Association of Governments (“SCAG”) Draft Regional Transportation Plan 2012-2035, Sustainable Communities Strategy (“Draft RTP”) is a study in contrasts. The Draft RTP is meant to be a roadmap to “increasing mobility for the region’s residents and visitors.” Draft RTP, p. 1. Its “vision” purportedly “encompasses three principles that collectively work as the key to our region’s future: mobility, economy and sustainability.” Draft RTP, p. 1. SCAG’s jurisdiction falls largely into compartments: (1) surface transportation such as roadways and rail; and (2) aviation. SCAG has funding authority over the former, but none over the latter.

The purpose of the Draft RTP is to portray transportation from a broader regional, rather than merely local, perspective. On the one hand, the Draft RTP’s analysis of surface transportation growth estimates, trends and proposed policies for the Southern California Region to the year 2035 contains relatively sophisticated and substantially complete analysis and projections that meet its goals. On the other hand, the Draft RTP’s analysis of aviation trends and policies for meeting airport demand is reminiscent of a high school science project.

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D.C. Circuit Court of Appeals Takes FAA to the Woodshed in Cape Cod Wind Farm Case

The proposed location of the first offshore wind farm, 130 wind turbines, each 440 feet tall, in a 25 square mile in Nantucket Sound, has been controversial from the start. The controversy has arisen partially because of Cape Cod’s high profile residents who would be visually impacted (such as the Kennedy family), and partly because of the proximity of the Town of Barnstable which is owner and operator of a municipal airport.

Now the courts have weighed into the controversy. In Town of Barnstable, Massachusetts v. Federal Aviation Administration, 2011 W.L. 5110119 (C.A.D.C.), decided on October 28, 2011, the D.C. Circuit Court of Appeals held that: (1) the petitioners in two consolidated cases, Barnstable and Alliance to Protect Nantucket Sound, had standing to challenge the Federal Aviation Administration’s (“FAA”) determination that the wind farm would not pose a hazard to air navigation under FAA regulation 14 C.F.R. Part 77; and (2) FAA’s finding of “no hazard” to air navigation under that section was a result of the agency’s failure to properly apply its own regulations and the guidance in its own Order JO 7400.2G (April 10, 2008) (“Handbook”).

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A New Technological Fix Hopes to Make Airport Noise a "Whisper"

Noise abatement procedures are only effective if they are used. Noise impacted communities are frequently heard to complain that, despite the complex, time consuming and expensive process needed to develop and implement noise abatement procedures at airports, either through the FAA’s Part 150 process, or through other airport specific processes, airlines seem to ignore them. The rationale often provided is that each airline is entitled to develop and implement its own flight procedures, some, but not all of which incorporate the specified noise abatement procedures. This situation was exacerbated in 1990 when the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq., took noise abatement policy making out of the hands of local airports and placed approval authority exclusively in the hands of the FAA.

A deceptively simple solution to this pervasive problem of airlines non-uniform observance of airport specific noise abatement policies has been developed by a small, new company in Truckee, California, Whispertrack.

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Ninth Circuit Calls FAA to Task on Environmental Impacts of New Runway

In what might be a surprising decision in any other Circuit, the United States Court of Appeals for the Ninth Circuit issued a ruling in Barnes v. U.S. Dept. of Transportation, United States Court of Appeals for the Ninth Circuit, Case No. 10-70718, August 25, 2011, which, while narrow, begins the process of eroding both the Federal Aviation Administration’s (“FAA”) long held position that “aviation activity . . . will increase at the same rate regardless of whether a new runway is built or not,” Barnes, at 16285, and the Federal Court’s traditional deference to it. City of Los Angeles v. FAA, 138 F.3d 806, 807-08, n. 2 (9th Cir. 1998).

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Proposed Legislation Would Grant Noise Relief from Helicopter Overflights

Representative Howard Berman of Los Angeles’ San Fernando Valley has been getting an earful lately from constituents disgruntled by constant, low level overflights from sightseeing, paparazzi and media helicopters from nearby Burbank Airport. In response, Berman introduced the Los Angeles Residential Helicopter Noise Relief Act which would require the Federal Aviation Administration (“FAA”) to establish rules on flight paths and minimum altitudes for helicopter operations above residential neighborhoods within one year of the bill having been signed into law. The bill would contain exemptions for emergency responders and the military. Surprisingly, while FAA regulation 14 C.F.R. section 91.119 establishes minimum altitudes for fixed-wing aircraft, it exempts helicopters from such requirements. “A helicopter may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section, provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA.” 14 C.F.R. section 91.119(d)(1).

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FAA Moves to Insulate Itself from Challenges to Clean Air Act Compliance in Airspace Redesigns

The Federal Aviation Administration (“FAA”) Reauthorization includes what can only be called an “earmark” that would allow the FAA to escape from compliance with the Clean Air Act on airspace redesign projects.

A proposed Amendment to the Reauthorization would allow FAA to categorically exclude from environmental review any NEXTGEN airspace redesign that will “measurably reduce aircraft emissions and result in an absolute reduction or no net increase in noise levels.” The Clean Air Act’s conformity provision, 42 U.S.C. section 7506, however, requires more for compliance than simply a “reduction in aircraft emissions.” Instead, the conformity rule provides, in pertinent part, that “[n]o department, agency or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated [in a State Implementation Plan].” A determination of compliance with a State Implementation Plan (“SIP”) in turn, requires: (1) an inventory of all emissions from an existing airport and surrounding emission sources, including stationary sources, such as auxiliary power units and generating facilities, and mobile sources other than aircraft such as ground support equipment and automobiles; and (2) a comparison of the project’s emissions with the “baseline” established by the inventory. That comparison will determine if the project will result in an exceedance of the benchmark emissions levels established in the SIP.

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TSA Threats of Retaliation for Refusal of Intrusive Body Searches are Empty Rhetoric

The controversy over the invasive body scans and pat-downs by the Transportation Security Agency (TSA) seems to have temporarily blown over. However, with Christmas vacation on the way, they are certain to arise again. When they do, it is important that the public, and particularly that segment of the public with an interest in, or connection to, airports and aviation, be aware of the full scope of the constitutional and legal rights and restrictions governing these searches.


As a threshold matter, it should be understood that the searches by TSA, an agency of the United States government, are of the sort of governmental action covered by the Fourth Amendment to the United States Constitution. The Fourth Amendment contains a prohibition on “unreasonable search and seizure.” Under the case law that has developed over more than 200 years, a search is “reasonable” under only two circumstances: (1) if there is “probable cause” to believe a criminal act has been committed by the person being searched; or (2) absent such “probable cause,” if a party has given consent to the search. If there is no probable cause, or consent is not given or it is withdrawn, an American citizen may not be searched by an agent of the government constitutionally.

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Here We Go Again - Another Airspace Redesign for the East Coast

As if seven years of wrangling were not enough, the Federal Aviation Administration (FAA) is now proposing changes to the current airspace utilization at Kennedy and Philadelphia International Airports.


From 2002 to 2009, governmental and private entities from Connecticut to Pennsylvania, including the State of Connecticut, various local jurisdictions in New York State, environmental organizations in New Jersey, and the County of Delaware, Pennsylvania negotiated with, and ultimately challenged, a comprehensive redesign of the airspace affecting approaches and departures to every airport in the North Eastern United States. Of greatest concern, were new flight paths over dense populations and numerous parks and nature preserves without even a cursory nod to required noise or air quality analysis.

After much contention, FAA got its way. Apparently, however, the East Coast Airspace Redesign didn’t quite work out, because FAA is at it again. First, ostensibly because of persistent delays at Newark, JFK and LaGuardia that were supposed to have been remedied by the panacea of the East Coast Airspace Redesign, hundreds of additional flights will be rerouted from JFK over residential areas in Northern and Central New Jersey. To add insult to injury, the changes will be made through an FAA rulemaking process, and not through the formal processes that characterized the first round of redesigns.

Similarly, the FAA is proposing a modification of the Class B airspace surrounding Philadelphia International Airport that will expand areas impacted by overflight to an even greater extent than did the East Coast Airspace Redesign.

In short, those who are looking down the barrel of these changes should take the opportunity to comment on FAA’s proposals, not only to foster dialogue with FAA concerning the ongoing, increasing and apparently inadequately studied procedures and their impacts, but also to exhaust administrative remedies for a legal challenge should FAA continue to “gild the lily” of the East Coast Airspace Redesign with additional enhancements, to the detriment of already impacted residents and businesses on the ground.

National Environmental Policy Act (NEPA) Review of the Federal Aviation Administration's Next Generation Air Transportation System (NextGen)

In a recent report entitled Civil Aviation Growth in the 21st Century, the Aerospace Industries Association (AIA) recommended that the Federal Aviation Administration (FAA) develop strategies to integrate National Environmental Policy Act (NEPA) review into the FAA’s Next Generation Air Transportation System (NextGen) implementation planning process in a way that would make NextGen environmental reviews less costly and time-consuming.


In the report, the AIA acknowledges that: (1) redesign of terminal airspace by the FAA requires compliance with NEPA; (2) airspace redesign typically has potentially negative environmental impacts and does not qualify as a “categorical exclusion”; and (3) most often, airspace redesigns require an Environmental Assessment (EA). Every EA must result in either a ‘finding of no significant impact” (FONSI) or a more detailed “environmental impact statement” (EIS). Citing the historical duration and cost of FAA actions involving EAs and EISs, the AIA reports that industry stakeholders in NextGen are frustrated with the time-consuming and costly nature of the NEPA review process, consider it a major impediment to the timely rollout of the system, and would like to see additional efforts to expedite the NEPA process. Although the report does not expressly state that all NextGen EAs should result in a FONSI, it could reasonably be read to suggest that approach in order to save costs and fast-track the NEPA review process.

While it is true that NEPA review is costly and time-consuming, there should be no different, attenuated NEPA review process for NextGen than for any other Federally sponsored or funded project. To subject some arbitrarily chosen Federal projects to less stringent review than NEPA prescribes would require an amendment of NEPA (a highly unlikely eventuality). NextGen is no different than any other Federal effort, and the Congress has clearly spoken about the precise protocols that must be followed. Any initiative to the contrary, without a NEPA amendment, would be contrary to law.

Preemption Rears its Head Again in Federal Common Law and Nuisance Climate Change Challenge

A Federal Court has recently thrown open the door to potential civil challenges to both private and governmental sources of greenhouse gas emissions, based on the Federal common law of nuisance. For those who believe the Environmental Protection Agency (EPA) has acted too slowly in promulgating greenhouse gas regulation, civil actions are now possible at least in the Second Circuit. However, the Supreme Court may now scrutinize the Second Circuit’s decision. Based on a recent Fourth Circuit decision on a similar issue, the “Nine” may be tempted to follow in Moses’ footsteps and pare down the Second Circuit decision to apply only to greenhouse gas emissions from Federal projects.


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Los Angeles World Airports Safety Justification for Relocating the Los Angeles International Airport (LAX) North Airfield Complex Closer to Westchester Homes Once Again Proven a Myth

It's a good thing that Los Angeles World Airports (LAWA) has finally begun to pull the mask of safety from its plan to move Runway 24R in the Los Angeles International Airport (LAX) North Airfield Complex closer to Westchester Homes. According to the Federal Aviation Administration (FAA), only three of the total twelve runway incursions reported at LAX during FY 2010 occurred on the North Airfield. This follows a long pattern of imbalance of incursions preponderantly occurring on the South Airfield.


On Friday, October 8, 2010, the FAA announced that the number of minor runway incursions at LAX increased from eight in FY 2009 to twelve during the fiscal year that ended September 30, 2010. No serious incursions that could endanger aircraft or passengers were reported at LAX during FY 2010. Nationwide, the number of serious runway incursions dropped from twelve in FY 2009 to eight in FY 2010. According to FAA officials, ten of the LAX incursions were caused by pilots who strayed across “hold lines,” while two were caused by air traffic controllers. Three of the incursions occurred on the North Airfield and nine were reported on the South Airfield, where LAX officials recently spent $83 million to further separate two parallel runways and add a centerline taxiway in an effort to reduce incursions on the South Airfield.

The FAA comparison of North and South Airfield runway incursions, showing three times as many incursions on the South Airfield as on the North Airfield, follows the recent LAX North Airfield Safety Study which found that the North Airfield is safe as presently configured, and that LAX officials’ plans to further separate the North Airfield runways and add a parallel center taxiway cannot be based on increased safety reasons.

FAA Aircraft Re-Registration and Registration Renewal Rule Becomes Effective October 1, 2010

In response to requests by law enforcement and other government agencies to provide more accurate, up-to-date aircraft registration information, the Federal Aviation Administration (FAA) has amended its aircraft registration regulations. The FAA estimates that approximately one-third of the 357,000 registered aircraft records it maintains are inaccurate, and that many of the aircraft listed in its Civil Aviation Registry database are likely ineligible for U. S. registration. Those inaccuracies result from failures by aircraft owners to report aircraft status and address changes under the current voluntary compliance based system. The FAA Final Rule, published in the July 20, 2010 Federal Register, will become effective on October 1, 2010. The re-registration or renewal fee will be $5.00. (See 47 CFR Sec. 47.17).


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Eastern Long Island (NY) Awaits Federal Aviation Administration Final Rule on North Shore Helicopter Route

Residents of Eastern Long Island are awaiting the Federal Aviation Administration (FAA) Final Rule regarding the New York North Shore Helicopter Route. If the Final Rule tracks the FAA’s Notice of Proposed Rulemaking (NPRM), helicopters flying along Long Island’s northern shoreline will be required to use the North Shore Helicopter Route. Pilots may deviate from the route only if necessary for safety or when required by weather conditions. The North Shore Route was added to the New York Helicopter Chart in 2008. However the route was developed for visual flight rules (VFR), and use of the route has been voluntary. The new rule would direct pilots to fly at an altitude of 2,500 feet, one mile offshore, and require that when crossing overland they overfly the least populated areas.


 The FAA cites 49 U.S.C. sections 40103 and 44715 as authority for the rule. Under section 40103(b)(2), the FAA Administrator has authority to “prescribe traffic regulations on the flight of aircraft (including regulations on safe altitudes) for . . . (B) protecting individuals and property on the ground.” Section 44715(a) provides that to “relieve and protect the public health and welfare from aircraft noise” the Administrator, “as he deems necessary, shall prescribe . . . (ii) regulations to control and abate aircraft noise . . .” If implemented, the Rule would establish the first-ever mandatory regulations that will set minimum altitudes and establish flight patterns for helicopters on Long Island based on noise abatement, rather than on safety or efficient airspace management. The FAA acknowledges in the NPRM that the rule is in response to complaints from, among others, New York Senator Charles Schumer and former senator Hillary Clinton.

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Recent Development in FAA Airport Privatization Program

The Federal Aviation Administration (FAA) has accepted the preliminary application by Gwinnett County Airport Briscoe Field (Airport) to participate in the FAA Airport Privatization Program. The airport sponsor, Gwinnett County, may now negotiate an agreement with a private company to operate the Airport. Gwinnett County may then submit a final application to the FAA for approval. If the final application is approved, the Airport would qualify as the one general aviation airport required by the Pilot Program, and be eligible to receive exemptions from certain Federal statutory and regulatory requirements.


The FAA published notice of the preliminary application in the July 7, 2010, Federal Register. The FAA will be required to publish notice of receipt of the final application in the Federal Register and allow a 60-day period for public review and comment.

An update on the Airport Privatization Program was posted by Chevalier, Allen & Lichman, LLP on this Aviation & Airport Development Law Blog on July 6, 2010.

Update on the Federal Aviation Administration Airport Privatization Pilot Program

Many in the aviation community have been monitoring the progress of Chicago's efforts to privatize Midway International Airport (MDW) under the Federal Aviation Administration’s (FAA) Airport Privatization Pilot Program. The City faces a July 31, 2010 deadline to either select a private operator for MDW or seek an extension of the City’s slot in the Program from the FAA. Chicago is the only approved applicant for the Program’s only large-hub slot. If the application is approved, MDW would be the first privatized large-hub airport in the U.S. 


The Airport Privatization Pilot Program was established in 1996 by Section 149 of the Federal Aviation Administration Authorization Act, which added a new Section 47134 to Title 49 of the U.S. Code. Section 47134 authorizes the Secretary of Transportation and, through delegation, the FAA Administrator, to exempt a sponsor of a public use airport that has received Federal assistance from certain Federal requirements in connection with the privatization of the airport by sale or lease to a private party.

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FAA's Most Recent Forecast Sees Massive Increase in Passengers at Region's Airports

The Federal Aviation Administration's most recent forecast of future airline passengers at the region's airports is an eye opener. In the forecast year 2030, FAA is projecting 49.3 million enplanements (98.6 million total passengers) at Los Angeles International Airport; 3 million enplanements (6 million total passengers) at Ontario International Airport; and 6.6 million enplanements (13.2 million air passengers) for John Wayne Airport. This compares to current figures for LAX of approximately 58 million air passengers a year; Ontario, 4.5 million air passengers a year; and John Wayne Airport, 9.8 million air passengers a year.

Of course, 2030 is 20 years away and much can happen between now and then. Therefore, the real eye opener is the comparatively low projected growth of Ontario. Despite the fact that Ontario has new terminals, runways thousands of feet longer than those at John Wayne Airport, and convenient freeway access to all of the Inland Empire as well as northeast Orange County, FAA does not expect it to grow more than 33%, compared to John Wayne Airport’s 38% and LAX’s whopping approximately 60%.

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Federal Aviation Administration Increases Protections for Airline Passengers

On June 2, 2010, the Federal Aviation Administration issued a proposed rule that calls for a new level of protection for airline passengers, including compensation for involuntary "bumping;" permission to cancel reservations within 24 hours without penalty; and prohibition on airline ticket price increases after purchase.


This most recent proposal is in addition to the Final Rule promulgated last month which bans lengthy tarmac delays and the imposition of other inconveniences as well as questionable health practices by the airlines.

Interested parties may submit comments on the proposal to the FAA within 60 days. It is a certainty that the airlines will do so, as the proposal appears to have a potential impact on their bottom lines. Further discussion of the proposal can be found at www.dot.gov/affairs/2010/dot11010.html

Airport Cooperative Research Program Publication Regarding "Enhancing Airport Land Use Compatibility"

On April 26, 2010, the Transportation Research Board published a three volume Airport Cooperative Research Program (“ACRP”) report on “Enhancing Airport Land Use Compatibility.”  The authors’ mandate was “to investigate and present the current breadth and depth of knowledge surrounding land uses around airports and to develop guidance to protect airports from incompatible land uses that impair current and future airport and aircraft operations and safety and constrain airport development.”  Report, Forward.  

It should be emphasized that this publication provides guidance only to local jurisdictions.  It is not regulatory, because the FAA cannot control land use planning in jurisdictions around airports.  As FAA has often acknowledged, land use planning is a purely local function.  If FAA were to presume to control land use planning off airport, it would also be subject to legal and constitutional constraints on land use planning such as the deprivation of a landowners’ reasonable use and enjoyment of property (“nuisance”) and/or the taking of property without just compensation (“inverse condemnation”), a result FAA wants to avoid at all costs.  

Consequently, research concerning land use planning around airports should include, and, in fact, be targeted at, local land use ordinances and regulations such as the airport land use planning statutes in California (Public Utilities Code § 21670, et seq.). 

FAA to Announce Conformity Determination for Philadelphia's CEP Project

UPDATED May 5, 2010

The Federal Aviation Administration (FAA) announced in the April 23, 2010 Federal Register that it will release the Draft General Conformity Determination for the Preferred Alternative (Alternative A) for the Philadelphia International Airport (PHL) Capacity Enhancement Program (CEP) for public comment on April 27, 2010.  Ordinarily, the public has 30 days to submit comments on the Conformity Determination.  [We will update this BLOG when the comment due date in made public.]

The Preferred Alternative would extend PHL Runways 8/26 and 9R/27L to the east, and add a third parallel east-west runway.  Alternative A would also reconstruct and enlarge the terminal complex, increasing it from 120 to approximately 150 gates.

Federal law prohibits Federal agencies from approving or funding any project that is either: (1) not expressly exempt from the Environmental Protection Agency (EPA) General Conformity Rule; or (2) presumed to conform, until agencies have determined that the proposed project conforms to a State [Air Quality] Implementation Plan (SIP).

If you are concerned about the impacts the CEP Project might have on air quality in the PHL area, the Conformity Determination comment period provides both an opportunity and the means by which to express those concerns to the FAA.  The Final Environmental Impact Statement (FEIS) for the CEP Project is expected to be released in late August, 2010.

ADDED May 5, 2010:

Comments on the General Conformity Determination for the Philadelphia International Airport (PHL) Capacity Enhancement Program must be postmarked to Sue McDonald, Environmental Protection Specialist, Federal Aviation Administration, Harrisburg Airports District Office (ADO), 3905 Hartzdale Drive, Suite 508, Camp Hill, PA  17011 no later than May 27, 2010.  The General Conformity Determination is available at http://www.phl-cep-eis.com.

Wind Farms Run Into Turbulence with the FAA

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. FAAThere, 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.”


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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Considering Closing an Airport? Be Careful! The FAA Has Set Many Pitfalls to Trap You.


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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DOT's 3-Hour Limit on Tarmac Delay Holds - Does It Help or Will Just Make Things Worse?

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.

"Safety" and the FAA

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.

It is Official! The FAA Rescinds Slot Auction Rule


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...


FAA Proposes Rescission of Congestion Management Rules for JFK, LaGuardia and Newark 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...

FAA Amends Its December 12, 2006 Order Regarding Operating Limitations at LaGuardia 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...

D.C. Circuit Court of Appeals Stays Slot Auctions at JFK, LaGuardia and Newark 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...

Legal Analysis of the FAA's Slot Auction Rule for JFK and Newark Part 2 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...

Legal Analysis of the FAA's Slot Auction Rule for JFK and Newark Part 1 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...

Despite GAO Ruling FAA Issues Congestion Management Rules for JFK, Newark and LaGuardia 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...

GAO Declares FAA Does Not Have Legal Authority to Auction Slots 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...

FAA Suspends Auction of Flight Slot at Newark Airport 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,...

FAA Issues Order Limiting Scheduled Operations at Newark Liberty 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...

FAA Proposes Congestion Management Rule for JFK and Newark Liberty 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...


Why the Airports and the Aviation Industry Need to Be Concerned About Climate Change: Part One, Facts about Aviation and Climate Change

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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Aviation and Airport Development Updates - September 16, 2009

A summary review of Aviation and Airport Development related news and information that was made public during the past week. 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.

Aviation and Airport Development Updates - September 9, 2009

A summary review of Aviation and Airport Development related news and information that was made public during the past week.  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


Aviation and Airport Development Updates

A summary review of Aviation and Airport Development related news and information that was made public during the past week. 

  • FAA Administrator Babbitt’s Pilot Fatigue Advisory Committee delivers its recommendationsAn 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.


Pilot Safety Rule Focus of New FAA Administrator Babbitt

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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U.S. House Transportation Committee Introduce Aviation Safety BIll

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.

D.C. Circuit Court of Appeals Decides Against Challenge to East Coast Airspace Redesign

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:

Other posts on this blog about the Airspace Redesign:

U.S. Senate Subcommittee on Aviation Holds Hearing on FAA's Role in the Oversight of Air Carriers

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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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 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:


House Passes FAA Reauthorization Bill; Senate Confirms Babbit as Administrator

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:

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:


East Coast Airspace Redesign Challenge Heard at D.C. Circuit Court of Appeals

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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U.S. Senate Committee Holds Hearing on FAA Reauthorization

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.


Witness List

Panel 1

Panel 2



FAA Proposes Rescission of Congestion Management Rules for JFK, LaGuardia and Newark

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:



User Fees Continue To Be A Sticking Point To FAA Reauthorization

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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Non-Aeronautical Use Of Airport Land Raises Significant New Issues

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.

President Obama Officially Nominates Capt. Randy Babbitt For FAA Administrator

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.

FAA Reauthorization, NextGen and ATC Modernization Are theTopics Discussed at U.S. Senate Subcommittee on Aviation Hearing

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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U.S. House Subcommittee on Aviation Holds Hearing on FAA's NextGen and ATC Modernization Efforts

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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User Fees Issues Probably Will Force Short-Term Extension of FAA's Authorization Instead of Full Reauthorization

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:

See also:


FAA, NASA, and Transport Canada Sponsor New Website for Information on Aviation Noise

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

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:


GAO Supplies Responses to Questions Posed at FAA Reauthorization Act Hearing

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?
  2. 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.

  3. List of NextGen technology demonstration projects
  4. Answer:  See the next page for a table of the demonstration projects.

  5. Does the GAO distinguish between ATC Modernization and NextGen?
  6. 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.

  7. 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?
  8. 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.

  9. Would additional funding help to bridge the so-called "NASA Gap?"
  10. 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.

  11. Additional research, development and deployment that could be done with funding over and above FAA's Capital Investment Plan funding levels?
  12. 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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Petitioners File Reply Brief in East Airspace Redesign Case

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:


Several Amendments Made to H.R. 915, FAA Reauthorization Act of 2009

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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D.C. Circuit Court of Appeals Denies Petition for Review of FAA's "Presumed to Conform" Rule

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:

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:

GAO Removes FAA Air Traffic Control Modernization Program to Its 2009 "High-Risk" List

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:


FAA Files Its Brief In The East Coast Airspace Redesign Lawsuit

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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FAA Issues ROD Approving Expansion of Ft. Lauderdale Airport

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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New Acting Administrator for the FAA: Lynne A. Osmus

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.

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.

D.C. Circuit Court of Appeals Stays Slot Auctions at JFK, LaGuardia and Newark

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:

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:

Other news articles:

President Bush Issues Executive Order Pushing NextGen Forward

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:


FAA's 2009-2013 Flight Plan Includes 5 More Airports Due for an Airspace Redesign

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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Legal Analysis of the FAA's Slot Auction Rule for JFK and Newark Part 2

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 commentsCleveland 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?


Legal Analysis of the FAA's Slot Auction Rule for JFK and Newark Part 1

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.


FAA Publishes a Draft Environmental Impact Statement for Palm Beach International Airport's Airfield Enhancement Project

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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Draft Environmental Impact Statement for the "Capacity Enhancement Project" at Philadelphia International Airport is Published

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.


Despite GAO Ruling FAA Issues Congestion Management Rules for JFK, Newark and LaGuardia

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.

GAO Declares FAA Does Not Have Legal Authority to Auction Slots

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)

GAO Issues Report To House Committee on Transportation Regarding FAA's Issuance of Medical Certification Decisions

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.”

House Aviation Subcommittee Conducts Hearing on Runway Safety

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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FAA Proposes to Have Airports Include a List of Based Aircraft On All AIP Grant Applications

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.

The "Tragedy of the Commons" and Airport Congestion Management

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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U.S. House Subcommittee Investigates Alleged Regulatory Lapses in the Certification and Manufacture of the Eclipse EA-500

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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Plan Now, If You Plan to Sell Later: Restrictions on Use of Airport Revenues

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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Sens. Specter and Dodd file a Joint Amicus Brief in East Coast Airspace Redesign Litigation

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.

Recent Court Decisions Since April, 2008, Regarding Aviation and Airport Development Law

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


GAO Issues Report On The FAA's East Coast Airspace Redesign

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.

FAA Suspends Auction of Flight Slot at Newark Airport

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 articleClick 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.''



FAA's Presumed to Conform Rule Will Affect Communities Around Airports

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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GAO Testifies That The FAA's Congestion Management Program Will Have Limited Effect on Reducing Delays

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.  

FAA Issues "Written Re-Evaluation" of East Coast Airspace Redesign Record of Decision

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.

House Aviation Subcommittee Hears Testimony About the Air Traffic Controller Situation

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 issuesinadequate 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.)

GAO Tells House Subcommittee That FAA Has Many Challenges Ahead of it In Its Effort to Hire Air Traffic Controllers

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.

Recent Court Decisions Regarding Aviation and Airport Development Law

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.

Quick Takes On Aviation and Airport Development News

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

FAA Issues Order Limiting Scheduled Operations at Newark Liberty

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.

FAA Proposes Congestion Management Rule for JFK and Newark Liberty

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...

House Subcommittee on Aviation Hears FAA Testimony on Aircraft Emissions of Greenhouse Gases

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

EPA Plans To Release An Advance Notice of Proposed Rulemaking on Aircraft Emissions

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:
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