Aviation and Airport Development Law : Aviation Lawyer & Attorney : Dr. Barbara E. Lichman : Airport Development, Environmental Law

May 8, 2010 - A summary review of Aviation and Airport Development related news and information that was made public during the past ten days.  Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every week, please send an e-mail to subscribe@calairlaw.com with the word “subscribe” in the subject line.

Statement of Victoria Cox, Senior Vice-President for NextGen and Operations Planning. --- Federal Aviation Administration, May 5, 2010
Volcanic ash is extremely damaging to aircraft, resulting in the impairment of engine operation and contamination or erosion of other parts. The Federal Aviation Administration’s primary method of dealing with volcanic ash events is operator avoidance, and under NextGen volcanic ash information is treated like significant weather information. NextGen will enable the publication of the same weather information for all airspace users.
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City, Airlines Stumbling Toward Deal to Finish O’Hare Expansion. ‑-- Greg Hinz, Chicago Business, May 5, 2010
Chicago has been successful in building a second new runway at O’Hare International Airport and legal wars on O’Hare’s expansion continue to go the city’s way, but the city has yet to reach a resolution with United and American Airlines about who will pay to build a new $2 billion terminal on the airport’s west end. Rosemarie Andolino, Chicago aviation commissioner, has been insisting that the carriers pay, but in response United and American have been firm in saying the western terminal is not needed and would only help potential competitors.
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FAA Issues Passenger Facility Charge Monthly Report for April 2010. --- Federal Aviation Administration, May 4, 2010
The Federal Aviation Administration has issued its monthly report on Passenger Facility Charges for April, 2010.
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FAA Adds Airport Improvement Program Grant/Apportionment Data Entitlements for Fiscal Year 2010. --- Federal Aviation Administration, May 5, 2010
The Federal Aviation Administration issued grant and apportionment data entitlements for fiscal year 2010.
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FAA Picks Preferred Philadelphia Airport Plan. --- Jonathan Starkey, The News Journal, May 6, 2010
The Federal Aviation Administration has selected a $5.2 billion construction project that will add capacity to Philadelphia Airport in Pennsylvania by extending two runways and building a third. The FAA has selected this alternative construction plan out of a final three options because it is required to name a preference by federal law, but it may not be the alternative that is ultimately approved.
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More articles on this topic:

Airport Planning $5.2 Billion Expansion. --- Linda Loyd, The Philadelphia Inquirer, May 7, 2010
The Federal Aviation Administration's recently-released proposal for Philadelphia International Airport is designed to accommodate dramatic growth and help alleviate delays. The agency chose this plan after conducting environmental impact studies and holding public meetings from 2003 to 2008, but it still has to issue a final environmental impact statement by late summer, and a "record of decision" for the project by year's end. Airport chief executive officer Mark Gale says expansion is vitally critical to the airport's economic and business development in this city and region to alleviate continued delay problems.
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Obama Administration Turning Out to Be Quite Expensive for Airlines. --- Meg Marco, The Consumerist, May 6, 2010
During the Obama administration fines at the Department of Transportation and Federal Aviation Administration have skyrocketed in comparison to the Bush administration, clearly demonstrating the current administration's more interventionist philosophy on behalf of consumers and other constituencies. In 2009 the DOT levied $2.6 million in fines against the airlines, compared to the $1.2 million levied during the Bush administration in 2008. Additionally, the FAA's fines in 2009 nearly doubled those of 2008.
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FAA Rejects Bid to Revoke Licenses of 2 American Pilots Involved in 2006 Brazil Plane Crash. --- Karen Matthews, Associated Press, May 6, 2010
The Federal Aviation Administration has rejected a request by two Brazilian congressmen to revoke the licenses of two American pilots involved in a 2006 plane crash in Brazil, saying there was insufficient evidence to take action. The American pilots' Embraer Legacy jet collided over the Amazon with a Boeing 737, and the 737 crashed in the jungle, killing all aboard. The U.S. National Transportation Safety Board blames the collision mostly on shortcomings in Brazil's air traffic control system, but a Brazilian Air Force report found the two pilots may have contributed to the collision by inadvertently turning off the plane's transponder and collision-avoidance system.
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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 recommendations.  An advisory committee on pilot fatigue,convened by Administrator Babbitt, delivered its recommendations to the Federal Aviation Administration late Tuesday, September 1, 2009.  Committee members said the FAA had asked them not to make their recommendations public. Although FAA Administrator Randy Babbitt has promised to vet the recommendations swiftly and turn them into a formal proposal by the FAA, the process will take months to complete.  09/02/09, Denver Post,  http://bit.ly/4wAugf 
• FAA gives Southwest until December 24, 2009,  to replace unapproved parts. The FAA will require Southwest Airlines to replace unapproved parts associated with hinge fittings for the exhaust gate assembly--and which help protect aircraft flaps from engine heat--by December 24, 2009.  All other unapproved parts made by the same vendor must also be located and disposed of, and results of aircraft inspections must be sent to the FAA daily.  09/01/09, FAA Press Release,  http://bit.ly/5PAe6
• FAA tells Haines, Alaska, it cannot designate flight paths for helicopters.  Haines Borough, Alaska, is looking to eliminate flight-path restrictions and expand the number of clients that companies are permitted for commercial helicopter and heli-skiing activities.  The FAA has told the borough that it does not have the authority to regulate airspace, but borough leaders respond that they are only designating flight paths as a condition of a borough permit.  08/27/09, Chilkat Valley News, http://bit.ly/CmFqj
• Connecticut Governor furious about low-flying F-18s. Connecticut Governor Jodi Rell was incensed about a low-flying F-18 when neither the state of Connecticut nor the FAA had received advance notice about its flight.  A spokesman for Naval Air Force Atlantic stated that the aircraft operated in accordance with all FAA-approved visual flight rules and remained within speed and altitude restrictions.  08/29/09, Hartford Courant, http://bit.ly/P4waO.
• Expansion of Aero Country Airport in McKinney, Texas Causes Problems. McKinney City Council in Texas has approved development on the east side of the Aero Country Airport that could double its size; nearby residents oppose the expansion plans.  City By laws state that the City Council cannot reverse its decision, and Mayor Pro Tem Pete Huff seems unconcerned about homeowners who say they will move if the city does not halt the expansion, citing that the airport is part of the town.  08/27/09, NBCDFW.com, http://bit.ly/3vk14h.
• FAA Announces $2.5M grant to soundproof homes in Key West.  The Federal Aviation Administration this week approved a $2.5 million grant to soundproof 38 homes impacted by noise at Key West International Airport.  08/29/09, KeysNet.com, http://bit.ly/phcK7
• FAA gives Miami-Dade $4.2M to extend main runway at Kendall-Tamiami Executive Airport. The FAA gave Miami-Dade $4.2 million to extend the main runway at Kendall-Tamiami Executive Airport, which would allow heavier planes to use the airport to travel to and from destinations in Central America, South America, and the Caribbean. With an extended runway Kendall-Tamiami would be able to receive flights that would normally go to Miami International Airport. 08/28/09, South Florida Business Journal, http://bit.ly/sqmn5.
• FAA signs ROD for Columbus (OH) Regional Airport Authority’s plan to move Columbus Airport’s runway farther south. Columbus Regional Airport Authority’s plans to relocate Port Columbus International Airport’s runway farther south along with other improvements has been approved by the FAA, contingent upon environmental remediation in the area. The next issue for the airport is a decision from the FAA on the level it will be funding the project; the government’s intent to fund only a smaller portion might require the airport authority to reapply.  08/28/09, Columbus Business First, http://bit.ly/flHYd.
• NTSB suggests to FAA new altitudes for Hudson Corridor.  The NTSB recommended new altitudes to the FAA for helicopters and planes over the Hudson Corridor to prevent something like the Aug. 8 midair collision that killed nine people from reoccurring. In the past, the FAA has often failed to heed NTSB suggestions, with many outstanding recommendations up to 10-15 years old.  08/27/09, The New York Times, http://bit.ly/rFOqg
• Connecticut Attorney General Blumenthal says he will take Airspace Redesign fight to Supreme Court.  Connecticut Attorney General Richard Blumenthal is disappointed that the U.S. Court of Appeals for the D.C. Circuit has denied an Aug. 19 request to reconsider its refusal to halt the new FAA airspace redesign project. Mr. Blumenthal is preparing an appeal to the U.S. Supreme Court asking it to overturn the ruling and override the FAA, since the FAA used defective data on noise and traffic and failed to follow its own rules and procedures. 08/26/09, acorn-online.com, http://bit.ly/2UUXRs
• FAA investigates Southwest regarding use of unauthorized parts.  FAA air-safety regulators are investigating unauthorized parts installed on at least 42 Southwest Airlines jets and why the carrier’s maintenance-control procedures failed to identify the problem. The suspect parts do not pose an “immediate safety issue” but planes were temporarily grounded. The controversy exemplifies continuing friction between airlines and federal regulators on how to deal with minor maintenance lapses.  08/26/09, Wall Street Journal, http://bit.ly/4n2Srj.
• Houston receives $8.8 million in grants from the FAA. The City of Houston Dept. of Aviation received $8.8 million in grants from the FAA to install new state-of-the-art equipment at George Bush Intercontinental Airport (IAH). The grants, awarded through the FAA’s Airport Improvement Program (AIP) and Voluntary Airport Low Emission (VALE) program, will allow the purchase of equipment and vehicles that are expected to reduce emissions by up to 60 percent. 08/25/09, PRNewswire, http://bit.ly/4hcaM9.

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

Funding & Financing

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

Airports

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

ATC Modernization and NextGen

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

Safety

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

Small Communities

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

Consumer Protections

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

Environmental Provisions

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

Labor

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

Aviation Insurance

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

Next Article: Summary of Comments regarding Safety Provisions.

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On September 8, 2008, the FAA published a notice in the Federal Register (73 Fed.Reg. 52074) that it is proposing to modify the standard grant application requirements that are required of a sponsor of a non-primary airport before receiving a grant under the Airport Improvement Program (AIP).  This modification would require that a sponsor of a nonprimary airport submit a list of the aircraft (both fixed wing and rotary wing) that are based on the airport.  The FAA invites public comments on this proposed modification.  Comments must be submitted on or before October 8, 2008.

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

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

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

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