Operators of Small Unmanned Aircraft Uses for Recreational Purposes Will Soon Face Regulation

On or about November 16, 2017, the United States Senate acted speedily to pass the “National Defense Authorization Act for Fiscal Year 2018,” H.R. 2810 (“Defense Reauthorization Act”), originally introduced in January of 2017, and now awaiting signing by President Trump.  

The Senate’s motivation is not obscure, where it sets forth, among other things, guidelines for “Collaboration Between Federal Aviation Administration and Department of Defense on Unmanned Aircraft Systems,” or UAS, H.R. 2810, § 1092.  Most notably, that section re-imposes rules originally imposed on the operators of small, unmanned aircraft, weighing between .55 and 55 pounds, used for recreational purposes (“model” aircraft).  Those rules were set aside by the United States Court of Appeals for the District of Columbia Circuit in May, 2017, in the published opinion Taylor v. Huerta, 856 F.3d 1089, 1093 (D.C. Cir. 2017), on the ground that the FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95 (“FMRA”) specifically prohibits FAA from promulgating “any rule or regulation regarding model aircraft.”  Id. at § 336(a).  
 
Congress has now enacted a revision to FMRA’s prohibition, and thrown model aircraft back into the regulatory arena.  

Specifically, the Defense Authorization Act reinstates the original “mandatory FAA regulations,” governing all model aircraft of the specified sizes, and requiring operators to register with FAA, i.e., provide their names, physical mailing and e-mail addresses, and any other information FAA chooses to require.  Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed.Reg. 78,594 (December 16, 2015), at 78,595-96.  In addition, the FAA’s original 2015 registration rule also created an online platform for registration, established a $5.00 per individual registration fee, set compliance deadlines, and required all small unmanned aircraft to display a unique identifier number issued by the FAA.  Perhaps most onerous are the penalties faced by model aircraft owners who do not register which include civil or criminal monetary penalties and up to three years imprisonment.  Id. at 78,630.  

Other rules, including the requirement that both commercial and recreational drones stay below 400 feet above ground level, and notify an airport if intending to fly within five miles, remained in full force and effect during the period of suspension of the vast bulk of the rule, as “tied to safety.”  See Taylor, supra, 856 F.3d at 1093, quoting FMRA § 336(b).  
 
In summary, the freedom from oversight that recreational drone operators have enjoyed until now has been significantly limited through Congressional reconsideration of FAA’s limitations on the operation of model aircraft.  In reality, the restoration of the FAA rule enabled by the Defense Authorization Act, while burdensome, may serve to further enhance the safety of both UAS and conventional aircraft operations in the skies quickly filling with both. 

Congress Seeks to End Run Federal Aviation Administration on Drone Rules

Apparently impatient with the Federal Aviation Administration’s (“FAA”) slow progress in developing rules governing the commercial operation of unmanned aerial vehicles (“UAV” or “drones”), Senators Cory Booker (D-NJ) and John Hoeven (R-ND) introduced in Congress legislation to expedite implementation of rules governing the commercial operation of drones.  

Supported by a host of interest groups, ranging from the Association for Unmanned Vehicle Systems International to the National Association of Broadcasters and Information Technology and Innovation Foundation, the stated purpose of the “Commercial UAS Modernization Act,” S.1314 (“Act”) is to amend the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95), to create an interim rule providing basic guidelines for commercial use and testing of small UAS during the period within which FAA finalizes rules governing the operation of commercial UAS.  The Bill allows any person to “operate a small unmanned aircraft for commercial purposes without an airworthiness certificate within the United States, subject to the requirements under subsection (b) and the operating restrictions under subsection (c) during the period beginning on the date of the enactment of this Act and ending on the effective date of a final rule based on the Notice of Proposed Rulemaking Operation and Certification of Small Unmanned Aircraft Systems (80 Fed. Reg. 9544, February 23, 2015).” The Bill’s general requirements include: (1) liability insurance; (2) registration/certification under section 3(a) of the Act; and (3) the operator’s passing of an “aeronautical knowledge test,” Act, subsection (b)(3)(A), as prescribed by FAA in its February 2015 notice.  
 
The permission granted under the proposed legislation is not without limits, however.  
 

In addition, during the relevant period, the UAV operated for commercial purposes: (1) may be operated only under visual line of sight rules, Act, subsection (c)(1) and (5); (2) may not be operated higher than 500 feet above ground level, Act, subsection (c)(2); (3) may not be operated unless the operator has prior authorization from the Air Traffic Control facility having jurisdiction over that airspace, Act, subsection (c)(3)(A) and (B); (4) shall yield to all other users of the national airspace system, Act, subsection (c)(6); (5) shall comply with model aircraft operating standards set forth in FAA Advisory Circular 91-57, June 1981, as revised, Act, subsection (c)(4); (6) may only be operated after a preflight inspection, Act, subsection (c)(8); and, finally, (7) “may not be operated by a person with any physical or mental condition that the individual knows, or has reason to know, would interfere with the safe operation of aircraft.,” Act, subsection (c)(7).  Clearly, the legislation omits several protections that have, until now, been applicable to the operation of UAVs.  First, it does not require that UAVs be operated by licensed pilots.  Second, it appears to leave the determination of whether the operator is competent to operate the aircraft in a safe manner in the hands of the same operator who may or may not have the self-knowledge to make that determination.  

S.1314 has now been referred to the Senate Committee on Commerce, Science and Transportation where it remains as of this date.  

Pirker Reversed: NTSB Confirms FAA Has Jurisdiction Over Drones

Earlier today, in a landmark decision for the unmanned aircraft systems industry, the National Transportation Safety Board reversed the Administrative Law Judge Patrick Geraghty’s order in the Pirker case and held that unmanned aircraft systems fall squarely within the definition of “aircraft” under the Federal Aviation Regulations.  This is the most significant legal opinion issued to date on the issue of drones in the United States. 

In a twelve page opinion reversing the ALJ’s March 7, 2014 decisional order, the NTSB stated:
“This case calls upon us to ascertain a clear, reasonable definition of ‘aircraft’ for purposes of the prohibition on careless and reckless operation in 14 C.F.R. § 91.13(a). We must look no further than the clear, unambiguous plain language of 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1: an ‘aircraft’ is any ‘device’ ‘used for flight in the air.’ This definition includes any aircraft, manned or unmanned, large or small. The prohibition on careless and reckless operation in § 91.13(a) applies with respect to the operation of any ‘aircraft’ other than those subject to parts 101 and 103. We therefore remand to the law judge for a full factual hearing to determine whether respondent operated the aircraft ‘in a careless or reckless manner so as to endanger the life or property of another,’ contrary to § 91.13(a).”
The Federal Aviation Administration’s success on appeal comes as no surprise to most members of the UAS industry, many of whom have already tacitly recognized the FAA’s jurisdiction over unmanned aircraft by specifically requesting regulatory exemptions to conduct commercial UAS operations under Section 333 of the FAA Modernization and Reform Act of 2012.
 

The overturned decision, which had held that Respondent Raphael Pirker was entitled to dismissal of a $10,000 FAA enforcement action arising out of Mr. Pirker’s UAS operations in the vicinity of the University of Virginia’s campus, condemned the FAA for adopting an “overreaching interpretation” of the definition of “aircraft” under the Federal Aviation Regulations.  The order even went so far as to state that adopting the FAA’s interpretation “would result in reductio ad obsurdum in assertion of FAR regulatory authority over any device/object used or capable of flight in the air, regardless of method of propulsion or duration of flight.”  The NTSB’s appellate panel unanimously disagreed.

Today’s decision will maintain lasting significance as the FAA moves forward with developing comprehensive UAS regulations and exercising its jurisdiction over this bourgeoning technology – jurisdiction which the FAA impliedly promised in its appellate brief that it would not abuse.
 

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.
 

Specifically, the NAC recommended the “Net Noise Reduction Method,” which would “[p]rovide[] for the computation of the number of people who would experience a reduction in noise and the number of people who would experience an increase in noise with a proposed PBN procedure as compared with the existing instrument procedure, at noise levels of DNL [average] 45 dB and higher.”  79 Fed. Reg. 49142.  FAA concluded that this proposal needs further evaluation because it “would introduce a new method for assessing noise … that is different in a number of respects from current noise analysis methodologies,” Id., and because it “does not produce a quantity of noise on a per flight basis,” 79 Fed.Reg. 49143, (i.e., a single event, or SENEL basis), as mandated by Congress, but instead “allows for averaging [of] noise impact on a representative basis,” (closer to the DNL or average noise level), 79 Fed.Reg. 49142, fn. 3.  

The FAA is further concerned about the extent “to which the Net Noise Reduction Method’s reliance on a net reduction in the number of people exposed to noise constitutes a net reduction in noise, since the two reductions are not the same.”  79 Fed.Reg. 49143.  Ironically, communities exposed to high levels of airport noise have been making the same objection to the DNL metric, the 24 hour average noise metric, for decades, on the ground that while such average is the conventional method of establishing noise impact, individuals do not hear “averages” but rather experience noise on a per flight basis, as has now been recognized by Congress.  

Finally, and despite FAA’s disclaimer that “[a] CATEX is not an exemption or waiver of NEPA review,” a categorical exemption is exactly what it purports to be: an exclusion from the normally applicable requirement to perform review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”).  Apparently recognizing this, Congress enacted the caveat that a categorical exemption will not apply where “the Administrator determines that extraordinary circumstances exist with respect to the procedure.”  FMRA § 213(c)(1), although what precisely constitutes an “extraordinary circumstance” is not explained in the proposed rule.  

In summary, Congress has now mandated the development of a per flight noise metric for PBN procedures, and FAA will be required to adjust its traditional metric to conform.  FAA is giving the public, including affected communities, their first opportunity to weigh in on this important regulatory distinction by September 18, 2014.  Comments identified by ‘‘Docket Number FAA–2014–0510’’ may be sent either by mail to Docket Operations, M–30, U.S.  Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room W12–140, West Building Ground Floor, Washington, DC 20590–0001 or electronically to the Federal eRulemaking Portal at http://www.regulations.gov.  

Update:  On September 11, 2014, FAA extended the comment period to October 20, 2014 (79 Fed. Reg. 54342).  

 

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.

 

 

Drone Filmmaking and the Technological Power Shift

By Paul Fraidenburgh on August 13, 2014
 
There is something stirring in the skies, and it’s about to turn the independent filmmaking world upside down. With this year’s arrival of accessible, affordable, and—most importantly—legal unmanned aircraft systems (UAS, or “drones”), aerial cinematography is no longer out of reach for small-scale independent moviemakers. Recent shifts in the technological and regulatory circumstances surrounding small UAS may soon disrupt the filmmaking landscape.
 
Earlier this summer, after extensive back-and-forth with the Federal Aviation Administration, several cinematographers filed petitions for regulatory exemption to operate small UAS (55 lbs and less) mounted with cameras. It now appears highly likely that the FAA will approve the first of these petitions, following a final review of public comments that concluded last month. The petitions were filed pursuant to Section 333 of the FAA Modernization and Reform Act of 2012, which outlines a procedure for expedited authorization for commercial operations using small UAS.
 
The key here is recognizing the difference between “commercial” operations and “recreational” operations. According to the FAA’s recently published “Interpretation of the Special Rule for Model Aircraft,” unless you intend to operate your UAS purely for hobby or recreational purposes, you must obtain an FAA exemption to conduct commercial operations.
 
While that sounds like bad news to some, it is actually great news for independent filmmakers: Section 333 may serve as the great equalizer. By providing a simple and straightforward mechanism for obtaining approval of commercial drone operations, Congress and the FAA have put independent filmmakers on a level playing field with large motion picture companies when it comes to aerial cinematography. With new models of affordable and reliable UAS on the market this year, the technological barriers to entry have already evaporated, and with the FAA finally taking Section 333 seriously, the legal barriers just became far less intimidating.
 
The importance of Section 333 has become increasingly clear over the last several weeks. The Office of Inspector General’s June 26, 2014 Audit Report to the Department of Transportation concluded that the “FAA faces significant barriers” to safely integrating unmanned aircraft systems into the national airspace system on time to meet the FAA’s goal of September 2015. The Audit Report notes that the “FAA’s delays are due to unresolved technological, regulatory, and privacy issues….” In other words, it will be a very long time before we see a comprehensive set of regulations for commercial UAS operations.
 
The delay has broad implications for the UAS industry and for independent filmmakers. First, the delay means Section 333 will remain the holy grail for UAS operators who plan to conduct commercial operations in the foreseeable future. As the sole mechanism by which any person or business can legally use commercial drones in the United States, the importance of Section 333 cannot be overstated.
 
Second, since the FAA considers petitions on a first come, first served basis, the delay means independent filmmakers can position themselves advantageously by seeking FAA approval before the floodgates open. Being amongst the first to conduct domestic UAS filming operations may allow indies to shoot footage that rivals the studios, who have the resources to conduct UAS filming overseas.
 
Nimble artists need nimble technology. The increasing viability of drone photography will allow independent moviemakers to get a bird’s eye view of the next generation of their craft.
 

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. 
 

First, the term “model aircraft” is explicitly defined in FMRA, § 336(c)(1)-(3), as, among other things, “unmanned aircraft that is . . . (3) flown for hobby or recreational purposes.”  While Pirker does not explicitly state what has since come to light, i.e., that he was operating the aircraft for compensation, he does acknowledge that he “operated the model for the purpose of supplying aerial video and photographs of the University of Virginia campus to an advertising agency.”  Motion, p. 3.  Consequently, Pirker’s activities fall outside the scope of Congress’ definition of “model aircraft.”  See, Chevron, U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837, 842-43 (1984) [“If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency, must give effect to the unambiguously expressed intent of Congress.”].  

Second, even if, for argument’s sake, Pirker were correct that UAS are “model” aircraft, which he is not, then regulation of UAS would be thrown open to “a community based set of safety guidelines,” i.e., local regulation.  FMRA, § 336(a)(2).  The result could be a diverse and inconsistent set of regulations enacted by local communities throughout the country who may not be knowledgeable about the beneficial purposes to which UAS can be put, but are justifiably concerned about their careless, or potentially dangerous operation.

In the final analysis, under the incontestable mandates of FMRA, UAS operated for commercial purposes are engaged in interstate commerce and are, thus, subject to regulation by FAA.  [See, e.g., 49 U.S.C. 40103(a)(1) re: “Sovereignty and the Right of Public Transit – (1) The United States Government has exclusive sovereignty of airspace of the United States.”]  That regulations specific to UAS have not been finalized, and that FAA acknowledges the inapplicability of some current regulations to UAS, does not exempt UAS operated for commercial purposes from complying with those regulations that can reasonably be applied.  Which regulations may be applicable, and the extent to which they can reasonably be applied, must be, like the development of new regulations, the subject of ongoing conversations with FAA as it works its way through the revolutionary new processes and accompanying new issues presented by the exploding operations of UAS throughout the United States. 
 

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.
 

These are: (1) Area Navigation/Required Navigation Performance (“RNP”) procedures proposed for “core” (large hub) airports, or any medium or small hub airports located in the same metroplex, and for RNP procedures proposed at 35 non-core airports to be selected by the Administrator; and (2) for any navigation performance or other performance based navigational procedure “developed, certified, published or implemented that in the determination of the Administrator would result in unreasonable reductions in fuel consumption, carbon dioxide emissions and noise on a per flight basis as compared to aircraft operations that following existing instrument flight rules . . . in the same airspace irrespective of the altitude.”  78 Fed.Reg. 49599 [emphasis added].

In other words, Congress has exempted FAA from the responsibility to review the environmental impacts, and specifically those of noise and air quality, of the new GPS based procedures being implemented throughout the United States.  The rationale for this exemption is clearly to pave the way for the modernization of the air traffic system with satellite based technology.  The result, however, is less benign.  To the extent these procedures allow for the increasing geographical focus of arrivals and departures, their impacts are also increasingly focused over certain communities.  This means that specific populations are, or will, experience far more intense noise and air quality effects from arrivals and departures, while others will be relieved.  Ironically, this is the very change in the distribution of impacts that the National Environmental Policy Act (“NEPA”) was enacted to disclose. 

Finally, the good news is that, aside from excusing the RNP projects from environmental review, new Order 1050.1F also elevates certain additional categories of projects to EIS status.  For example, Order 1050.1F requires an EIS for, among other things: (1) location of a new commercial service airport in a MSA; (2) a new runway to accommodate air carrier aircraft at a commercial service airport in a MSA; and (3) major runway extensions. 

In summary, new FAA Order 1050.1F appears to follow in the footsteps of its predecessor in smoothing FAA’s path to project approval by eliminating the hard bumps in the process of environmental review.  Interested parties may submit comments by September 30, 2013 by internet at http://www.regulations.gov; by mail at U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC  20590-0001; and by fax at (202)493-2251.
 

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. 
 

An electronic copy of the Draft AIP Handbook and comment form may be obtained at the FAA Airports Website at http://www.faa.gov/airports/

Comments may be submitted by:

Electronic Submittal - by following in the instructions provided at
http://www.faa.gov/airports/

Mail - FAA Office of Airports, Airport Planning and Programming, Routing Symbol APP-501, 800 Independence Avenue SW, Room 619, Washington, DC  20591

Fax – 1-202-267-5302

Hand Delivery – FAA Office of Airports, Airport Planning and Programming, Routing Symbol APP-501, 800 Independence Avenue SW, Room 619, Washington, DC  20591 between 9:00 a.m. and 4:00 p.m., Monday through Friday, except Federal holidays.
 

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. 

GA airports must meet the following conditions established by Congress in § 136:

(1) The property owner must pay access charges that the sponsor determines to be comparable to those fees charged to tenants and operators on-airport making similar use of the airport;

(2) The property owner must bear the cost of building and maintaining the infrastructure that the sponsor determines is necessary to provide access to the airfield from property located adjacent to or near the airport;

(3) The property owner must maintain the property for residential, noncommercial use for the duration of the agreement;

(4) The property owner must prohibit access to the airport from other properties through the property of the property owner; and

(5) The property owner must not provide aircraft refueling on the property. 

GA airports with existing through-the-fence agreements will be given until September 30, 2013 to establish that their agreements meet the standards set forth in § 136, 77 Fed.Reg. 44517, and will be evaluated on a case by case basis.  GA airports proposing new agreements will be asked to establish compliance prior to executing an agreement.  Id.  This difference arises from FAA’s acknowledgement of the legal enforceability of some forms of “through-the-fence” agreements (e.g., easements in some forms) under state land use law. 

The proposed policy is less conclusive, and less tolerant, with respect to commercial service airports.  It applies to commercial service airports with existing “through-the-fence” agreements, but continues to prohibit commercial service airports that do not have such agreements from entering into them.  See also, Revised Sponsor Grant Assurances, Assurance 5g, 77 Fed.Reg. 22576, April 13, 2012, which clarifies that sponsors of commercial service airports are not permitted to enter into residential through-the-fence arrangements. 

In addition to the standards set forth in FMRA § 136, commercial service airports with existing agreements must meet the following standards proposed by FAA:

(1) The sponsor must have sufficient control of access points and operations across airport boundaries to maintain safe operations, and to make changes in airport land use to meet future needs;

(2) By rule, or by agreement with the sponsor, through-the-fence users are obligated to comply with the airport’s rules and standards;

(3) The sponsor can and does collect fees from through-the-fence users comparable to those charged to airport tenants;

(4) Sponsors must be assured that operations at the airport will not be affected by hangars and residences on the airport boundary, at present or in the future;

(5) The potential for noncompatible land use adjacent to the airport boundary must be minimized consistent with Grant Assurance 21, Compatible Land Use. 

Finally, the extension of existing “through-the-fence” agreements is held to an even higher standard.  Sponsors must ensure not only that the agreement complies with § 136, and, at minimum, Grant Assurances 5 and 21, but also includes, but is not limited to, the following:

(1) The term of the access does not exceed 20 years;

(2) The residential development will not interfere with future airport expansion plans, as submitted in a current Airport Master Plan;

(3) The sponsor will impose and enforce safety and operating rules on through the fence residents utilizing the access while on the airport identical to those imposed on airport tenant and transient users;

(4) Through-the-fence residents will grant the sponsor a perpetual avigation easement for overflight, including unobstructed flight through the airspace necessary for takeoff and landing at the airport;

(5) Through-the-fence residents will waive any right to bring an action against the sponsor for existing and future operations and activities at the airport associated with aircraft noise and emissions;

(6) The sponsor will have a mechanism for ensuring that through-the-fence residents building houses or other structures will file FAA Form 7460-1, Notice of Proposed Construction or Alternation, to comply with FAA’s Part 77 obstruction requirements;

(7) The sponsor has a mechanism for ensuring through-the-fence residents do not create or permit conditions or engage in practices that could result in airport hazards, including wildlife attractants;

(8) Sponsors will impose future limits on the “through-the-fence” properties to aviation related uses such as “hangar homes,” through such mechanisms as zoning or mandatory deed restrictions, where legally tenable;

(9) The access agreement will be subordinate to the sponsor’s current and future grant assurances; and

(10) The sponsor has or will develop a process for educating “through-the-fence” residents about their rights and responsibilities.

Comments on the proposed policy will accepted until August 29, 2012.

** Update:  On Tuesday, August 28, 2012, a "Correction" was issued relating to an inadvertent omission in the Addresses paragraph in the Proposed Policy and the comment period has been extended to September 14, 2012 [77 Fed.Reg. 51948-51949]. 

 


 

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”). 
 

In enacting ANCA, Congress found that, among other things, “(2) community noise concerns have led to uncoordinated and inconsistent restrictions on aviation that could impede the national air transportation system; [and] (3) a noise policy must be carried out at the national level . . .,” ANCA § 47521(2) and (3).  To implement ANCA’s purpose of creating such a coordinated noise policy at the Federal level, Congress mandated that: “Except as provided in subsection (d) of this section, an airport noise or access restriction on the operation of stage 3 aircraft not in effect on October 1, 1990, may become effective only if the restriction has been agreed to by the airport proprietor and all aircraft operators or has been submitted to and approved by the Secretary of Transportation . . .  Restrictions to which this paragraph applies include -- (B) a restriction on the total number of stage 3 aircraft operations; . . . (E) any other restriction on stage 3 aircraft.”  ANCA § 47524(c)(1)(B) and (E).  Restrictions on stage 2 aircraft (the noisiest aircraft in operation in 1990) are easier to enact and require only “(1) an analysis of the anticipated or actual costs and benefits of the existing or proposed restriction; (2) a description of alternative restrictions; (3) a description of the alternative measures considered that do not involve aircraft restrictions; and (4) a comparison of the costs and benefits of the alternative measures to the costs and benefits of the proposed restriction.”  ANCA § 47524(b)(1)-(4).  These restrictions have been interpreted to apply to general, as well as commercial, aircraft.

The Act also mandates that stage 2 aircraft over 75,000 pounds then in operation be phased out by December 31, 1999, and none be added to the fleet (see, e.g., ANCA § 47529) (“Nonaddition rule”).  The only exception to that mandate was a temporary one for stage 2 aircraft under 75,000 pounds (i.e., principally General Aviation).  Even that exception was limited, however, where the Secretary retained the discretion to “conduct a study and decide on the application of section 47524(A)-(D)” to stage 2 aircraft under 75,000 pounds at a later date.  ANCA § 47525.  The Secretary has now made that determination and applied the statute to the previously exempted stage 2 aircraft under 75,000 pounds (most of which have already exceeded their useful lives in any event), in the FAA Modernization and Reform Act of 2012 (“FMRA”). 

In summary, ANCA seems to say that neither Santa Monica nor any other airport can limit the operations of stage 3 aircraft, commercial or general aviation, without Federal approval.  The penalty is loss of FAA funding.  ANCA § 47526.  Granted there is some ambiguity in certain sections of ANCA with respect to applicability to private stage 3 aircraft (see § 47528 [“Prohibition on operating certain aircraft not complying with stage 3 noise levels”]).  Moreover, one or more of the exemptions set forth in ANCA § 47524(d) may apply to Santa Monica Airport.  However, the Airport Commissioners’ Memorandum did not rely upon those potentially applicable exemptions. 

Therefore, despite the Commission’s best intentions, absent an in-depth analysis of ANCA’s applicability not yet in evidence, the Airport Commission’s optimism concerning the sustainability of its proposal, and, ultimately, its ability to withstand administrative and/or judicial scrutiny is in serious question.