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…

Airports should update their hangar leases (including ground leases) to add terms preventing the tenant from engaging in certain non-aeronautical activities and giving the airport leverage in the event that the tenant shifts away from aeronautical use of the hangar.  Conditions to limit non-aeronautical uses and prioritize aeronautical uses should be baked directly into the lease so that the airport can make a good-faith showing that the airport has taken adequate steps to prevent on-airport hangars from lapsing into non-aeronautical use.  There are several ways to accomplish this without immediately displacing current hangar tenants, including by negotiating a limited time for the tenant to engage in non-aeronautical uses (which the FAA will permit in certain situations) and by imposing restrictions that will result in early termination of the lease if an aeronautical tenant becomes a non-aeronautical tenant. 

Although the FAA allows airport sponsors a degree of flexibility in handling hangar tenants using their hangars for non-aeronautical purposes, airport sponsors should take steps as soon as possible to update their leases so that the airport has the power to remedy this issue when remedial action becomes necessary to comply with federal law and protect AIP funds.

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.

For example, once an aircraft leaves the ground, FAA takes control, see, e.g., 49 U.S.C. § 40103(b)(1) and (2), and coordinates with other aircraft using the same airspace in order to avoid collision.  The skies in large cities which might benefit from Uber’s scheme such as New York, are already filled with numerous aircraft on approach and departure from the various airports.  Since vertiports presumably won’t have their own air traffic control towers, it is difficult to imagine the way in which this new species of aircraft, with an on-demand operating schedule, rather than one defined in advance, will be integrated into the existing system.  

 
Similarly, vertiports are not conventional airports with runways, and are, therefore, much more in the nature of heliports, which the FAA also controls.  14 C.F.R. § 157.2.  No mentioned is made in the article, or the interview which is its focus, of the way in which Uber will interface with the FAA on the “safety and efficiency” of the facilities’ design.  
 
Finally,  no mention is made of the requirement that surrounding development be made consistent with airport operations, 14 C.F.R. Part 77, since the proposed facilities are airports in everything but name, the same requirement for limiting obstructions to air navigation, 14 C.F.R. § 77.13, could potentially be imposed on the development surrounding the “vertiports,” thereby severely constraining the height, and, thus, economic return of the surrounding developments, as well as interfering with a community’s overall development plan.  
 
In short, creative ideas are what make America great, but the FAA may bring Uber down to earth and make it realize that imagination cannot operate unfettered in the airspace of the United States.  
 

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.  
 

Although its spokesman, Town Supervisor Larry Cantwell, asserts that “with the stroke of a pen, the Appeals Court decision has federalized our airport and stripped us – and the thousands of similarly situated airports – of the ability to exert local control,” in fact, the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq. (“ANCA”), containing those prohibitions did that long ago.  ANCA was originally enacted in 1990 for the express purpose of protecting against “uncoordinated and inconsistent restrictions on aviation that could impede the national air transportation system.”  49 U.S.C. § 47521(2).  It was not, therefore, the Second Circuit, but rather the United States Congress, that preempted local control of airport noise.  

East Hampton, in the long run, therefore, will have only two options for the imposition of the desired curfew.  The first, the agreement with all aircraft operators has apparently already been unsuccessful. The second is the submission of an application to the Secretary of Transportation, the format for which is set forth in 14 C.F.R. Part 161.  That option is both financially onerous and time consuming.  More ominous, no such Part 161 submission has been approved by the Federal Aviation Administration (“FAA”) in the 25 years that the regulation has existed.  
 
In short, the Supreme Court is unlikely to insert itself between the Congress and the local airport proprietor, especially where, as here, the rules are explicitly set forth in ANCA, and the only debate is over the facts (e.g., whether airport operators were sufficiently informed of the East Hampton Airport’s intent, and, in fact, concurred with it).  East Hampton would, therefore, be better served to devote its time and resources to the uphill battle of developing a Part 161 application, and making it defensible enough to be first of its kind in 25 years approved by the FAA.  
 

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.
 

FAA’s position is not unanticipated, as we pointed out in our blog of February 20, 2014.  In the first instance, it is common knowledge among airport operators that the United States Congress has attached to the acceptance of federal funds responsibilities to consumers of the improvements made with those funds.  See, e.g., 49 U.S.C. § 47107(a)(1)-(6), implemented by Grant Assurance 22 which requires, in turn, that the operator of a federally obligated airport “make [its] airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport.” See R-T 182, LLC v. Federal Aviation Administration, 519 F.3d 307, 309 (6th Cir. 2008).   

Moreover, while federal fund obligations normally last for the useful life of the facilities, or 20 years, after the grant of the funding, there are notable exceptions.  In addition to the exception that requires that real property purchased with federal funds be used for airport purposes in perpetuity, FAA Order 5190.6B, Chapter 4, §§ 4.6.h(2), there is also the parallel requirement that property transferred from the military pursuant to a surplus property agreement also be used for airport purposes indefinitely.  Both of these conditions apply in the case of the Airport, and both moot the “20 year” escape route relied upon by the City.  
 
Finally, the City plans to oppose, through legal action, FAA’s determination to stop the closure.  The City may be disappointed, however, when it arrives as it plans to do, in Federal District Court.  This is because the United States Congress, in the Federal Aviation Act, 49 U.S.C. § 40101, et seq., requires that any challenge to an FAA order be brought in a Federal Circuit Court of Appeals, either the Circuit in which the project is located, in this case the Ninth Circuit, or in the D.C. Circuit Court of Appeals.  See 49 U.S.C. § 46110(a).  Doubtlessly, City will argue that FAA’s effort to stop the closure is not the sort of agency action that falls within the strictures of that section of the statute.  That contest is inevitable, but the outcome for Santa Monica Airport is far from certain.  Stay tuned. 

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:
 
 
New Operational Limitations under Part 107:
  • Unmanned aircraft must weigh less than 55 lbs. (25 kg). 
  • Visual line-of-sight (VLOS) only; the unmanned aircraft must remain within VLOS of the remote pilot in command and the person manipulating the flight controls of the small UAS. Alternatively, the unmanned aircraft must remain within VLOS of the visual observer. 
  • At all times the small unmanned aircraft must remain close enough to the remote pilot in command and the person manipulating the flight controls of the small UAS for those people to be capable of seeing the aircraft with vision unaided by any device other than corrective lenses. 
  • Small unmanned aircraft may not operate over any persons not directly participating in the operation, not under a covered structure, and not inside a covered stationary vehicle. 
  • Daylight-only operations, or civil twilight (30 minutes before official sunrise to 30 minutes after official sunset, local time) with appropriate anti-collision lighting. 
  • Must yield right of way to other aircraft. 
  • May use visual observer (VO) but not required. 
  • First-person view camera cannot satisfy “see-and-avoid” requirement but can be used as long as requirement is satisfied in other ways. 
  • Maximum groundspeed of 100 mph (87 knots). 
  • Maximum altitude of 400 feet above ground level (AGL) or, if higher than 400 feet AGL, remain within 400 feet of a structure. 
  • Minimum weather visibility of 3 miles from control station. 
  • Operations in Class B, C, D and E airspace are allowed with the required ATC permission. 
  • Operations in Class G airspace are allowed without ATC permission. 
  • No person may act as a remote pilot in command or VO for more than one unmanned aircraft operation at one time. 
  • No operations from a moving aircraft. 
  • No operations from a moving vehicle unless the operation is over a sparsely populated area. 
  • No careless or reckless operations. 
  • No carriage of hazardous materials.
  • Requires preflight inspection by the remote pilot in command. 
  • A person may not operate a small unmanned aircraft if he or she knows or has reason to know of any physical or mental condition that would interfere with the safe operation of a small UAS. 
  • Foreign-registered small unmanned aircraft are allowed to operate under part 107 if they satisfy the requirements of part 375. 
  • External load operations are allowed if the object being carried by the unmanned aircraft is securely attached and does not adversely affect the flight characteristics or controllability of the aircraft. 
  • Transportation of property for compensation or hire allowed provided that- o The aircraft, including its attached systems, payload and cargo weigh less than 55 pounds total; 
    • The flight is conducted within visual line of sight and not from a moving vehicle or aircraft; and 
    • The flight occurs wholly within the bounds of a State and does not involve transport between (1) Hawaii and another place in Hawaii through airspace outside Hawaii; (2) the District of Columbia and another place in the District of Columbia; or (3) a territory or possession of the United States and another place in the same territory or possession. 
  • Most of the restrictions discussed above are waivable if the applicant demonstrates that his or her operation can safely be conducted under the terms of a certificate of waiver.
 
New Remote Pilot in Command Certification and Responsibilities under Part 107
 
  • Establishes a remote pilot in command position. 
  • A person operating a small UAS must either hold a remote pilot airman certificate with a small UAS rating or be under the direct supervision of a person who does hold a remote pilot certificate (remote pilot in command). 
  • To qualify for a remote pilot certificate, a person must: 
    • Demonstrate aeronautical knowledge by either: 
      • Passing an initial aeronautical knowledge test at an FAA-approved knowledge testing center; or 
      • Hold a part 61 pilot certificate other than student pilot, complete a flight review within the previous 24 months, and complete a small UAS online training course provided by the FAA. 
  • Be vetted by the Transportation Security Administration. 
  • Be at least 16 years old. 
  • Part 61 pilot certificate holders may obtain a temporary remote pilot certificate immediately upon submission of their application for a permanent certificate. Other applicants will obtain a temporary remote pilot certificate upon successful completion of TSA security vetting. The FAA anticipates that it will be able to issue a temporary remote pilot certificate within 10 business days after receiving a completed remote pilot certificate application. 
  • Until international standards are developed, foreign-certificated UAS pilots will be required to obtain an FAA-issued remote pilot certificate with a small UAS rating.
A remote pilot in command must: 
 
  • Make available to the FAA, upon request, the small UAS for inspection or testing, and any associated documents/records required to be kept under the rule. 
  • Report to the FAA within 10 days of any operation that results in at least serious injury, loss of consciousness, or property damage of at least $500. 
  • Conduct a preflight inspection, to include specific aircraft and control station systems checks, to ensure the small UAS is in a condition for safe operation. 
  • Ensure that the small unmanned aircraft complies with the existing registration requirements specified in § 91.203(a)(2). 
A remote pilot in command may deviate from the requirements of this rule in response to an in-flight emergency.
 
The finalization of the new rule marks the most significant step to date toward the implementation of the federal government’s plan to integrate safe commercial drone operations into the national airspace system.  Check in here for updates on the implementation of Part 107 in the coming months.

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. 
 

Namely, it would not privatize Air Traffic Control.  In the House of Representatives, the pending Aviation Innovation, Reform, and Reauthorization Act of 2016 would completely overhaul domestic Air Traffic Control operations by moving the operations out of the FAA to a non-profit corporation. If successful, the House bill would place approximately 38,000 Air Traffic Control employees, and the management of the safest national airspace system in the world, in the hands of a private corporation.  

Though the Senate and House bills share many commonalities, each passing day without congressional consensus brings mounting fears that the current efforts to modernize American aviation will devolve into an endless string of short-term extensions. The July 15 deadline has industry insiders calling for the House to adopt the Senate’s more measured approach to reauthorization and to table the Air Traffic Control overhaul until 2017.  

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.
 

For one thing, the legislation calls only for the establishment of an “advisory committee” to:

 (1) Review practices and procedures of the FAA with regard to “airspace [changes] that affect airport operations, airport capacity, the environment for communities in the vicinity of airports;” including
 
(A) An assessment of whether there is sufficient consultation between various FAA offices involved in the changes; and
 
(B) Between FAA and affected entities including “airports, aircraft operators, communities, and state and local governments;”
 
(2) Recommend revisions to procedures;
 
(3) Conduct a review of FAA data systems used to evaluate obstructions to air navigation, as defined in 14 C.F.R. Part 77; and
 
(4) Ensure that the data described in section 3 is made publicly accessible.  
 
The aims of the legislation may be virtuous, but the procedures used to achieve those ends may be viewed with a grain of salt.  Specifically, the “advisory committee” mandated by the legislation is composed of: (1) air carriers; (2) general aviation, including business aviation and fixed-wing aircraft and rotorcraft; (3) airports of various sizes and types; (4) air traffic controllers; and (5) state aviation officials, section 2506(c), but does not include any representative of an “affected community,” the very constituency the legislation’s purpose is to assist.  The result is that the interests of those communities will be represented by surrogates, many of whom have interests directly antithetical to those of the communities.  What can be said is that the legislation is a good start at making the FAA more accountable for its decisions with regard to airspace changes.  What is needed now is a next step, perhaps in an amendment to the existing legislation, bringing the affected communities actively into the conversation.  

 

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.  
 

On the one hand, Title II, Unmanned Aircraft Systems Reform Act, § 2142, preempts states and other political subdivisions from enacting or enforcing “any law, regulation, or other provision having the force and effect of law relating to . . . operation . . . of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology, requirements, purposes of operation. . .”  Such a broad brush approach appears to entirely displace efforts at the state level, such as proposed SB 868 in California, authorizing the California Department of Transportation (“Caltrans”) “to adopt reasonable rules and regulations governing the conditions under which remote piloted aircraft may be operated for the purpose of protecting and ensuring the general public interest and safety. . .”  SB 868 is set for hearing April 5.  See also, AB 1724 that would require “a person or public or private entity that owns or operates an unmanned aircraft, to place specific identifying information or digitally stored identifying information on the unmanned aircraft.”  

On the other hand, § 2142(b) purports not to preempt state or local authority “to enforce federal, state or local laws relating to nuisance, voyeurism, harassment, reckless endangerment, wrongful death, personal injury, property damage, or other illegal acts arising from the use of unmanned aircraft systems” with the caveat that such local enforcement is only allowable “if such laws are not specifically related to the use of an unmanned aircraft system for those illegal acts.”  See also, § 2142(c) proposing to extend the immunity from preemption to “common law or statutory causes of action,” “if such laws are not specifically related to the use of unmanned aircraft systems.”  In other words, it would seem that operators of UAS must comply with existing laws relating to “nuisance, etc.,” but cannot be subject to new laws enacted specifically to govern the misdeeds of UAS.  
 
Finally, Congress seeks to compensate for this resulting regulatory void in other sections of the legislation, although the legislation is perhaps most notable for its exceptions from those regulatory attempts.  For example, in § 2101, Congress articulates a “privacy policy” which mandates that “the operation of any unmanned aircraft or unmanned aircraft system shall be carried out in a manner that respects and protects personal privacy consistent with federal, state, and local law.”  At the same time, Congress put the responsibility for enforcement into the hands of the Federal Trade Commission, and its complex administrative procedures.  See § 2103.  
 
Further, in § 2015, the legislation establishes a convention of industry stakeholders to “facilitate the development of consensus standards for remotely identifying operators and owners of unmanned aircraft systems and associated unmanned aircraft.”  However, the impact of that mandate is somewhat diluted by the fact that the FAA will have two years to develop the required identification standards during which time UAS can operate freely and unidentified.  In addition, § 2124 of the legislation establishes “consensus aircraft safety standards” whereby the FAA is mandated to “initiate a collaborative process to develop risk based, consensus industry airworthiness standards related to the safe integration of small unmanned aircraft systems into the national airspace system.”  This section of the FAA Reauthorization is to be codified at § 44803 of the Federal Aviation Act.  However, as with other sections of the legislation, FAA is relieved of its responsibility by a time lapse of one year to “establish a process for the approval of small unmanned aircraft systems make and models based upon safety standards developed under subsection (a).”  Finally, § 2126(b), amending into the Act § 44806, goes even further by granting to the FAA Administrator the power to use his or her discretion to exempt operators from the regulations, thus allowing certain persons to operate unmanned aircraft systems “(1) without an airman certificate; (2) without an airworthiness certificate for the associated unmanned aircraft; or (3) that are not registered with the Federal Aviation Administration.”
 
In short, the breadth of the legislation is too vast to be fully evaluated here.  Suffice it to say, that, given the exclusion of state and local authorities from the arena of drone regulation, and the long delays inherent in the rulemaking set forth in the proposed legislation, it will be some time before cognizable regulations exist to manage the rapidly growing UAS traffic in the United States.  
 

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.  

H.R. 4441 does not directly address the issues of: (1) whether the Federal Aviation Administration (“FAA”) still have the final determination as to whether a change in the ATC System recommended by the corporation is “safe,” or will that determination also be left in private hands; (2) will the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”), applicable to the analysis of the environmental impacts of projects sponsored by a federal agency, still apply to changes in the ATC System effectuated by a private corporation; and (3) will federal preemption of local airport noise and access restrictions, conclusively established in the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”), apply to determinations by a private corporation?  While many questions are left to be clarified, H.R. 4441 does explicitly answer at least one – it provides that federal preemption of local regulation of airline “prices, routes, and service,” originally established in the Airline Deregulation Act of 1978, 49 U.S.C. 41713(b), will remain in place.  Finally, judicial review under the Act is applied differentially, depending on whether a challenge is to FAA’s grant of a proposal, or its denial.  FAA’s approval of a proposal made by the corporation would be subject to the “abuse of discretion” standard, and the deference normally accorded to a governmental entity charged with the administration of a program established by Congress, which is difficult to overcome.  FAA’s denial of such a proposal, however, likely to be challenged only by the corporation, would not be subject to such deference, making the path to a reversal and ultimate approval of the corporation’s recommendations smoother.  

Apparently, the Senate Commerce Committee recognized H.R. 4441’s many unanswered questions, as did the full House of Representatives which has held up approval and caused the House to enact an extension of the FAA’s funding reauthorization to July 15, 2016.  The Senate reacted by passing its version of H.R. 4441 without the privatization provision.  This means that passage of the FAA Reauthorization must wait first until the issue is resolved internally in the House of Representatives.  Even if H.R. 4441 should emerge from the full House including the privatization provision, unless the full Senate should see fit to agree, a Conference Committee will be required and funding for the FAA could be delayed well past the current July 15, 2016 deadline.  
 

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. 

Los Angeles City Council at Long Last Agrees to Transfer Ontario International Airport to the City of Ontario and Ontario International Airport Authority

In an anticipated, but no less surprising move, the City Council of the City of Los Angeles (“Los Angeles”) agreed to transfer Ontario International Airport (“ONT”), currently owned and operated by Los Angeles, to the Ontario International Airport Authority (“OIAA”) and its members which include the City of Ontario (“Ontario”).  The transfer occurs in settlement of a currently pending lawsuit in the Riverside County Superior Court in which Ontario, the OIAA, and other parties challenged the legal right of Los Angeles to ownership and operation of ONT.  

 
The major provisions of the Settlement Agreement include the following:
 

(1) An immediate release of all of Ontario’s damage claims that were the subject of the litigation in the Riverside Superior Court;

(2) Upon satisfaction of certain conditions, including payment of certain bonds to Los Angeles World Airports (“LAWA”), the Los Angeles agency that operates its various airports, and approval by the Federal Aviation Administration (“FAA”), ONT will be transferred to the OIAA;

(3) If the FAA approves the transfer of ONT, the following payments must be made to LAWA before ONT is transferred:

(a) Reimbursement to Los Angeles of all outstanding ONT bonds, currently approximately $60 million;

(b) Payment by OIAA to Los Angeles of $30 million in cash;

(c) Transfer by LAWA of $40 million from ONT’s unrestricted cash accounts to the cash account for Los Angeles International Airport (“LAX”);

(4) After transfer of ONT, the OIAA will make the following additional payments to LAWA:

(a) No later than five years after transfer, OIAA will pay LAWA $50 million;

(b) No later than ten years after transfer, OIAA will pay LAWA an additional $70 million;

(5) OIAA must provide commercially reasonable assurances of these post-transfer payments before ONT is transferred;

(6) The Settlement Agreement’s Appendix F provides protections for LAWA and other ONT employees;

(7) When the transfer is completed, the pending litigation will be dismissed with prejudice.  

 
Clearly, there are hurdles of be crossed before the transfer is complete, not the least of which is obtaining approval from the FAA.  As FAA has provided most of the funding for the development of ONT, it has a “dog in the fight” with respect to the potential operator.  The transaction is made even more complex by its uniqueness.  While Los Angeles and Ontario are currently members of a Joint Powers Agency that has operated ONT nominally, it has been Los Angeles that has been directing the development and operation of ONT for the past 20 years.  Moreover, the transfer of an operating airport is almost unheard of in the annals of airport operation throughout the nation.  In the final analysis, only time will tell if the transaction will gain FAA approval and all the benchmarks to enforcement of the Settlement Agreement achieved.  

 

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.  

On the one hand, representatives of manufacturers and of the transportation industry such as the National Association of Manufacturers take the position that the higher level of restrictions “inflict pain on companies that build things in America.”  Supporting this position is the reality that the new ozone limits cannot be attained in Southern California without tougher emissions standards for, among other things, aircraft engines.  The standards for aircraft engines are, however, solely within the combined jurisdiction of the Federal Aviation Administration (“FAA”) and EPA, 42 U.S.C. § 7571(a)(2)(B)(i), and, thus, are outside the jurisdiction of local agencies such as the Southern California Air Quality Management District (“SCAQMD”).  Nor is the EPA tasked with considering costs when establishing ozone and other limits, but can factor in costs which determining the way in which states carry out the rules. 

On the other side of the argument, environmentalists, who were hoping for an even more restrictive standard of 60 PPB, point out that, during the almost five decades that ozone limits have been in effect, air pollution has declined by 70% while gross domestic product has increased threefold.
 
The bottom line is that, ultimately, the responsibility for compliance by aircraft engine manufacturers belongs jointly to the FAA and EPA, but the responsibility for the as yet uncalculated costs, as well as the timeframes required for compliance, belong solely to the manufacturers.  The verdict is still out as to the potential cost to the public health if the prescribed limits were not to be implemented.  

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.”  
 

The “new” policy is purportedly derived from 10 years of contemplation by the Commercial Aviation Safety Team (“CAST”), and is aimed at an allegedly “new” focus on preemption, i.e., finding a problem, fixing a problem, and making sure it stays fixed.  For those citizens who assume that FAA was already using “critical thinking to work smarter and more efficiently to get to the bottom of safety problems,” the announcement was somewhat troubling.  The FAA never misses an opportunity to justify airspace changes over established communities on the grounds of its primary responsibility for promoting safety in the national airspace system.  With this announcement, FAA has admitted that it has not, in fact, engaged in forethought on safety issues, but has, instead, focused on “intentional reckless behavior, inappropriate risk taking, repeated failures, falsification, failure to fulfill commitments, or deviation from regulatory standards.”  Presumably, the FAA will now focus on fulfilling its full statutory mission of anticipating safety problems as well as belatedly punishing them.  

 
 

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.  
 

FAA safety engineers attribute the agency lapses to a struggle between a duty to protect the public, usually implemented through complex regulations governing everything from aircraft construction to pilot qualification, and its congressionally mandated mission to “encourage, facilitate and promote” American commercial space travel.  In the case of the latter, however, FAA has not been granted the same broad powers as it has over conventional air travel, or as its stated mission would seem to indicate.  To compensate for this absence of oversight, any person flying on a commercial spacecraft must sign a waiver of liability, stating that the passenger has been advised of the risks and accepts them.  

 
Predictably, the fur has started to fly between Scaled and FAA.  FAA asserts that it told Scaled it was not meeting the regulations.  Scaled executives claim that FAA led them to believe that the company was complying with all applicable regulations.  In 2013, however, FAA granted Scaled a waiver from the rules, even though the company claims it never asked for one.  
 
In summary, the ongoing debate is not good for FAA’s persistent position that “safety is our business, our only business.”  Perhaps to stem the erosion of its position caused by the recent spacecraft crashes, FAA plans to issue an official response to Scaled’s accusations and the NTSB’s report by November 21.  
 

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.  

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”).  
 

In Phoenix, for example, the community is up in arms over the narrowing of flight tracks that result from the PBN procedures.  The consolidation of flight tracks places the full complement of aircraft over a much smaller geographic area, thus moving and geometrically increasing the noise over those areas, some of which were never previously overflown.  The next place for the controversy to play out will be in Southern California.  FAA intends to launch the environmental review for its soon to be initiated Optimization of Airspace & Procedures in the Southern California Metroplex (“SoCal Metroplex”) project which will realign the airspace over eight airports in the Southern California Region.  The new AEDT 2b methodology will arguably apply to these new environmental analyses which are being commenced after its May 29th initiation date of applicability.  The impact of the new methodology on analytic results, and the way in which those results compare to those that would have been generated by INM and EDMS remain to be seen.  What is certain is that impacted populations and their noise and air quality consultants should make that determination at the earliest time in order to be able to adequately evaluate the true analytic impacts of FAA’s new model AEDT 2b.  

Buchalter Wins Historic Grant of Exemption for Client Picture Factory, Inc.'s Drone Filming and Photography Operations - First Ever in Midwest

In a landmark decision for film and production companies, the Midwest of the United States, and the unmanned aircraft systems industry, Buchalter Nemer’s Aviation and Aerospace Practice Group made history last week when it secured a Grant of Exemption issued by the Federal Aviation Administration authorizing film and production company Picture Factory, Inc. to operate camera-mounted drones for the purpose of aerial filming and photography.  Picture Factory, Inc. is the first production company in the Midwest to receive a Grant of Exemption allowing commercial filming operations using drones in U.S. airspace.

“We’re proud to offer yet another cutting-edge way to give our clients unique perspectives and moving camera shots from places otherwise impossible to reach,” said Craig Peterschmidt, co-founder of Picture Factory.
 
The FAA’s Grant of Exemption was issued in response to Picture Factory’s Petition for Exemption under Section 333 of the FAA Modernization and Reform Act of 2012, which provides a procedure for expedited authorization of commercial operations using unmanned aircraft systems weighing no more than 55 pounds.  Picture Factory was represented by attorney Paul Fraidenburgh in Buchalter’s Orange County, California office.  Mr. Fraidenburgh has gained a national reputation for his representation of clients in the unmanned aircraft systems industry.  The Wall Street Journal, Los Angeles Times, and several other publications have quoted Mr. Fraidenburgh on the topic of unmanned aircraft systems, and his clients are among the most cutting-edge aerial filmmakers and aviation companies in the world.  He can be reached at (949) 224-6247 or pfraidenburgh@buchalter.com.
 

FAA Releases Proposed Rules for Commercial Drones; White House Launches Drone Privacy Policy

On February 15, 2015, the Federal Aviation Administration published its highly anticipated Notice of Proposed Rulemaking (NPRM) on the Operation and Certification of Small Unmanned Aircraft Systems (applicable to UAS weighing 55 lbs. and less).  The proposed rules would add a new Part 107 to Title 14 Code of Federal Regulations to allow for routine civil operation of small UAS in the National Airspace System (NAS).  Although a lengthy comment and revision period is expected to delay finalization of the regulations for another 18-24 months, Section 333 of the FAA Modernization and Reform Act of 2012 will continue to provide a procedure for expedited authorization of commercial small UAS operations in the interim.  The final Part 107 will serve as the foundation for a multi-billion dollar UAS industry in the United States. 

Highlights of the New UAS Rules

UAS Operator Certification – No Pilot’s License Required.  Unlike commercial UAS operations conducted today under Section 333, manned aircraft pilots will no longer enjoy a regulatory monopoly under the proposed rules.  Instead, the FAA has announced an Operator Certification program that would require operators to pass an initial aeronautical knowledge test at an FAA-approved testing center, be over the age of 17, be vetted by TSA, and obtain an unmanned aircraft operator certificate with a small UAS rating.  Similar to existing pilot airman certificates, this certification would never expire so long as the operator passes a recurrent aeronautical knowledge test every 24 months.  Although this significant policy shift was expected, it is a welcome sigh of relief for the UAS community, which has broadcasted a consistent message to the FAA that the skills required to pilot manned aircraft are not the same skills needed for the safe operation of UAS.  The FAA expressly agreed, stating that the existing operator restrictions “impose an unnecessary burden for many small UAS operations.”
 
Operational Parameters – No Preapproval for Operations in Class G Airspace.  Under the proposed rule, small UAS would be prohibited from operating in Class A airspace and would require prior approval from Air Traffic Control to operate in Class B, C, or D airspace, or within the lateral boundaries of the surface area of Class E airspace designated for an airport.  Significantly, no preapproval would be required for operations in uncontrolled (Class G) airspace.  Additionally, operations will be limited to a maximum airspeed of 87 knots (100 mph) at a maximum altitude of 500 feet above ground level, and within the visual line of sight of the operator.
 
Commercial Package Delivery and Amazon Prime Air.  The FAA is well-aware of Amazon’s plans to use UAS to deliver packages to the consumer’s doorstep within 30 minutes of receiving an online order.  The knee-jerk analyzers of the proposed Part 107 widely perceived the new rules as a serious blow to Amazon’s Prime Air program because it prohibits the use of UAS to transport people or property “for compensation.”  However, a more careful analysis of the FAA’s 195 page NPRM reveals that Amazon is inching closer to its goal.  Specifically, the NPRM states that it would not prohibit “operations by corporations transporting their own property within their business under the other provisions of this proposed rule,” and requests comments on “whether UAS should be permitted to transport property for payment within the other proposed constraints of the rule, e.g., the ban on flights over uninvolved persons, the requirements for line of sight, and the intent to limit operations to a constrained area.”  This means that a factory, for example, could be fully-automated with UAS lifting packages off of conveyor belts and loading them onto trucks.  It also begs the question: what if Amazon takes an end-run around the prohibition on delivering packages “for compensation” by offering free delivery?  Look for a more thorough exploration of this issue during the 60 day rulemaking comment period.
 
No Airworthiness Certification.  In a victory for UAS manufacturers, the FAA will not require preapproval of the UAS design prior to the use of the aircraft in flight operations.  This will promote innovation in the industry and remove what might have become a significant barrier to entry for small/startup UAS manufacturers.
 
Micro UAS Classification.  The FAA is considering adopting a separate set of operational parameters for a “Micro UAS,” class of aircraft, which the FAA has preliminarily defined as aircraft weighing no more than 4.4 lbs., composed of frangible materials that yield on impact so as to present a minimal hazard to any person or object that the aircraft collides with, that will not exceed a speed of 30 knots, and that will be limited entirely to class G airspace away from an airport.  According to the FAA, “No knowledge test would be required in order to obtain an unmanned aircraft operator certificate with a micro UAS rating; instead, the applicant would simply submit a signed statement to the FAA stating that he or she has familiarized him or herself with all of the areas of knowledge that are tested on the initial aeronautical knowledge test.”  Significantly, the Micro UAS would be permitted to fly directly over people not involved in the flight operation.
 
No Visual Observer Required.  The proposed rules would allow the UAS operator to conduct solo operations without the aid of a Visual Observer (VO).  This is a welcome departure from the FAA’s previous requirement of including a VO in operations conducted under Section 333 exemptions.
 
International Operations Excluded to Reduce Operational Limitations.  The International Civil Aviation Organization (ICAO) has issued strict standards and recommended practices (SARPS) directed at UAS operations.  The FAA has limited the scope of Part 107 to apply only to UAS operations conducted entirely within the United States as a way to avoid the imposition of ICAO’s strict standards on domestic UAS operations.  “While we embrace the basic principle that UAS operations should minimize hazards to persons, property or other aircraft, we believe that it is possible to achieve this goal with respect to certain small UAS operations in a much less restrictive manner than current ICAO standards require,” states the FAA’s summary of the proposed rule.  Look for the FAA to address international UAS operations in a future rulemaking.
 
White House Launches Drone Privacy Policy
 
No sooner did the FAA announce its proposed Part 107 than the White House’s issuance of a Presidential Memorandum titled, “Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems.”  The memorandum announces a new federal privacy initiative aimed at taking steps to ensure that the integration of UAS into the NAS is completed with an eye toward limiting and protecting the information gathered by federal agencies using UAS technology.
 
Continuing Importance of Section 333
 
As drone technology continues to disrupt new industries, the importance of Section 333 petitions as the sole avenue for conducting commercial operations has become increasingly clear.  Though the FAA’s release of its comprehensive set of regulations is a significant landmark for the industry, the rules are not expected to be finalized before 2016 (and more likely 2017).  Until then, Section 333 will remain the holy grail for drone operators who plan to conduct commercial operations in the foreseeable future.
 
Attorney Paul Fraidenburgh has gained a national reputation for his representation of clients in the unmanned aircraft systems industry.  The Wall Street Journal, Los Angeles Times, and several other publications have quoted Mr. Fraidenburgh on the topic of unmanned aircraft systems, and his clients are among the most cutting-edge aerial filmmakers and aviation companies in the world.  He can be reached at (949) 224-6247 or pfraidenburgh@buchalter.com.

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.  

In August, 2014, the Federal Aviation Administration (“FAA”) approved a new Airport Layout Plan (“ALP”) for the Mammoth Yosemite Airport (“Airport”) which includes proposed runway and associated parallel taxiway extensions, land acquisition for those improvements, as well as a terminal expansion.  MMSA believes that “the combination of the Mammoth Mountain land trade and the FAA approval of an expanded commercial airport in Mammoth Lakes is a game changer. . .,” “now, for the first time, the mountain owns the land it resides on and can make improvements it can own.  Plus the new airport will allow for flights from around the country.”

Environmental groups, not unexpectedly, deplore the new events.  Mammoth Mountain is located on the east side of the Sierra Nevada, surrounded by valuable natural resources, including the Owens and Walker Rivers, which are home to a variety of species fast losing habitat elsewhere.  The debate over the expansion will be more clearly articulated during the environmental review process for the land exchange, pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”), which will start upon the signing of the Bill authorizing the land exchange.  
 
Moreover, the FAA’s approval of the ALP was based on the satisfaction of certain conditions including that: (1) the proposed runway, taxiway extensions and land acquisition are not approved for short term developments; (2) FAA approve a terminal study that includes acceptable forecasts for use of the terminal; and (3) all development must comply with NEPA.  Therefore, development depends not only on the success of the contemplated land purchases, but also upon satisfaction of environmental requirements.  In California, those requirements involve not only NEPA, but also the California Environmental Quality Act, Cal. Pub. Res. Code § 21000, et seq. (“CEQA”) as well, with its much more rigorous analytic requirements.
 
In summary, although the land trade and associated airport expansion may be seen as a long term benefit to real estate development and the skiing public from outside California, the environmental controversy over the protection of the Eastern Sierra Wilderness will rage for many years to come. 
 

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.
 

On the one hand, the article fails to grasp that the imposition of FAA’s authority to control noise and access restrictions at any airport does not arise solely out of the constraints of the required grant assurances set forth in 49 U.S.C. § 47107.  Rather, that power is derived from ANCA’s wholly separate statutory provisions.  In fact, the courts have long recognized that  

“On its face, [ANCA] gives the FAA considerably more power than it had when reviewing an airport operator’s Stage 3 restriction at the grant stage.  For one thing, the Stage 3 restriction cannot go into effect without the FAA’s say-so.  For another thing, [ANCA’s] subsection (c)’s requirement of FAA approval is not tied to grants; grants or not, no airport operator can impose a Stage 3 restriction unless the FAA gives its approval.”  

City of Naples Airport Authority v. Federal Aviation Administration, 409 F.3d 431, 432 (D.C. Cir. 2005).  

On the other hand, the newspaper article’s global conclusion fails to articulate the differences in FAA’s authority applicable to aircraft of differing noise levels.  In the case of East Hampton, much of the local unrest arises out of helicopter overflights from John F. Kennedy International Airport (“JFK”) to the beach cities on the far reaches of Long Island, a longtime summer vacation mecca for overcrowded New Yorkers.  Helicopters are generally categorized under 14 C.F.R. Part 36(h)(3) and (4) (“Federal Aviation Regulation” or “FAR”), the ANCA implementing regulations, as no quieter than “Stage 2” noise levels.  FAA’s jurisdiction over the imposition of noise and access restrictions on Stage 2 aircraft, 49 U.S.C. § 47524(b), is substantially less stringent than that applicable to its quieter cousin, Stage 3 aircraft, under 49 U.S.C. § 47524(c).  Restrictions on Stage 3 operations, unlike those on Stage 2 aircraft, including curfews, or restriction on hours of operation, and bans on certain types of aircraft, must be approved by FAA in accordance with six extremely restrictive conditions:  
“(A) the restriction is reasonable, nonarbitrary, and nondiscriminatory;  
 
 (B) the restriction does not create an unreasonable burden on interstate or foreign commerce;  
 
 (C) the restriction is not inconsistent with maintaining the safe and efficient use of the navigable airspace;  
 
 (D) the restriction does not conflict with a law or regulation of the United States;  
 
 (E) an adequate opportunity has been provided for public comment on the restriction; and  
 
 (F) the restriction does not create an unreasonable burden on the national aviation system.”
Therefore, if, as indicated in the newspaper article, the focus of the town’s efforts is the imposition of restrictions on Stage 2 helicopters, it is possible that such a restriction might be implemented where, as here, it is imposed after compliance with the conditions set forth in 49 U.S.C. § 47524(b) including a study of the economic impact of the regulation.  If, however, the airport were to seek a more general set of restrictions, such as curfews and/or bans of certain types of aircraft, encompassing Stage 3 as well as Stage 2 aircraft, as the article implies, then the likelihood of success is slim to none.  In fact, only weeks ago, FAA rejected a restriction on Stage 3 operations between 12:00 midnight and 6:00 a.m. at LAX which had been in effect informally for more than 15 years.  In short, because of the lack of specificity and clarity of this newspaper article, it is ill-advised for any jurisdiction or impacted organization to rely on its discussion as a panacea for its own problems.  
 

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.  

With respect to Condition No. 1, FAA found that LAWA had arbitrarily defined the LAX noise problem as one of night noise associated with departures to the east that do not conform to over-ocean procedures.  FAA found that LAWA’s proposed ban on such departures would benefit less than 0.2% of the population within the defined noise impact area, and, thus, would not contribute to a meaningful solution of LAX’s noise problem, although even that small percentage translates into a substantial number of citizens residing within the dense urban areas to the east of LAX.  

In addition, FAA paid substantial attention to Condition No. 2, and found that LAWA’s required cost/benefit analysis does not demonstrate that the estimated potential benefits of the proposed procedure outweigh the regulatory costs of: (1) the 1.9 million annual lost profits due to compensation paid to passengers required to be offloaded as a result of the restriction; (2) delay of crews from “delayed” aircraft; and (3) the cost of Auxiliary Power Unit operation during offloading “delay.”  
 
Finally, with respect to Condition No. 4, FAA found that LAWA had failed to demonstrate that the proposed restriction does not conflict with existing federal statutes and regulations where the Application does not take into account the effect on the authority of pilots to judge safe operations.  In other words, the FAA views the proposed restriction as a usurpation of pilot discretion.  
 
FAA’s determination to deny any application for a restriction under Part 161 is evidenced by the history of the statute and its implementing regulations under which, in the almost 25 years since ANCA’s passage, and the promulgation of 14 C.F.R. Part 161 implementing ANCA’s provisions, not a single exemption has been granted.  What is unexpected in this case is FAA’s reluctance to sanction an existing procedure, of long duration, and of already proven benefit to affected communities such as Inglewood, located immediately to the east.  The purpose of Part 161, and the integrity of FAA’s interpretation of it, must apparently await another opportunity for resolution.  
 

FAA Reports Increasing Conflict Between Drones and Civil Aviation

The Federal Aviation Administration (“FAA”) reports that close calls between conventional aircraft and unmanned aircraft systems (“UAS” or “drones”) have increased during 2014 to more than 40 per month over earlier reports of 10 such incidents in the months of March and April.  Some of these incidents have occurred in the busy airspace surrounding Los Angeles, California, Washington, D.C., and John F. Kennedy Airport in New York.  Some of these conflicts have arisen because untrained operators of recreational drones are unaware of FAA’s guidelines governing such use.  Those guidelines ask, among other things, that “hobby” drones stay away from civil aviation, below 400 feet AGL, and at least 5 miles from airports.  However, as FAA prepares to release its highly anticipated Notice of Proposed Rulemaking for small unmanned aircraft systems, the focus is not on hobbyists, but on commercial operators.

Operators of commercial drones, unlike “hobby” drones, are currently required to obtain FAA preapproval prior to operating.  This requires commercial UAS operators to submit Petitions for Regulatory Exemption under the FAA Modernization and Reform Act of 2012, § 333 (“FMRA”).  The parameters of the proposed small UAS regulations, due to be released later this month, must be in accordance with the express provisions of FMRA, and will contain provisions requiring, among other things, that drones stay outside of the established perimeters of commercial airports.  A recent decision of the National Transportation Safety Board (“NTSB”) confirmed FAA’s authority to implement such regulations (as if such confirmation, in addition to a Congressional mandate, were necessary), by overturning the decision of an Administrative Law Judge in Pirker v. Huerta.  In that case, the Administrative Law Judge held that FAA did not have the regulatory authority to fine commercial UAS operators for violation of FAA regulations until such regulations are formalized, a position with which NTSB vehemently disagreed.  

Until the Proposed Small UAS Regulations become final, which may take quite some time following a notice and comment period, the only path to operation of commercial UAS is through the approximately 120 day process of requesting exemptions from current regulations pertaining to manned aircraft which FAA is construing as applying equally to drones. Several exemptions for companies in the film and oil drilling industries have already been granted, along with almost pro forma exemptions for law enforcement and Customs and Border Patrol operations.  A number of additional petitions are currently pending.

In summary, no serious accidents have yet occurred in the United States as a result of a drone interfering with manned aircraft operations.  However, as the number of unmanned aircraft systems operators continues to grow, it is clear that a comprehensive set of well-defined UAS regulations is necessary to facilitate Congress’ ultimate goal of integrating UAS into the national airspace system.

 

Bonner County Wins Major Victory in Property Owner's "Takings" Lawsuit

The decision of the Federal District Court for the Northern District of Idaho in SilverWing at Sandpoint, LLC v. Bonner County, a case that has been “hanging fire” for almost two years, was worth the wait.  On Friday, November 21, 2014, the Court granted Defendant Bonner County (“Bonner County”) summary judgment on all Plaintiff SilverWing at Sandpoint, LLC’s (“SilverWing”) federal claims for inverse condemnation, or “taking,” of private property by a public entity without just compensation, in violation of the 5th Amendment to the United States Constitution, and 42 U.S.C. § 1983, or violation of a plaintiff’s constitutional or other federal rights by a person acting under color of state law.  See, e.g., Monell v. Department of Social Servs., 436 U.S. 658, 690 (1978).  In addition, the Court granted summary judgment on SilverWing’s state law contract claim for breach of the covenant of good faith and fair dealing.   

In this case, SilverWing claimed that Bonner County had taken its property by implementing a plan for the airport, an Airport Layout Plan (“ALP”) approved in accordance with the regulations promulgated by the Federal Aviation Administration (“FAA”), that showed the single runway at Sandpoint Airport moving 60 feet to the west, toward SilverWing’s property.  SilverWing argued that forcing the movement of a taxiway that already been constructed to service the “hangar homes” in the development, and thus causing it to incur upon the five lots closest to the runway, making them unbuildable, caused a loss to SilverWing of $26 million.  The Court ruled that implementation of the requirements of the ALP was a federal requirement arising out of federal responsibility for aviation safety and not within the discretion of Bonner County.  
 

The Court’s ruling was substantially based on the concept of federal preemption.  Preemption of state or local law occurs under one of three scenarios: (1) where the federal government affirmatively expresses an intent to preempt (express preemption); (2) where it has enacted laws which so substantially occupy the specified field that they leave no room for state or local law (field preemption); or (3) state or local law directly conflicts with federal law, or state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress (conflict preemption).  See, e.g., Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007).  In this case, therefore, the Court held that Bonner County was acting properly and in accordance with federal law that it had no power to contradict, and, therefore, could not be held responsible for the impacts. 

The Court’s ruling left intact SilverWing’s single claim for promissory estoppel, based on the argument that it had been misled by promises made by Bonner County’s former Airport Commission and former Airport Director.  The Court has given the parties the option of conferring as to whether to take this single claim to mediation, arbitration, judicially sponsored settlement, or trial.  No decision has as yet been made.  
 
A copy of the Court’s Memorandum Decision and Order can be found here.

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). 
 

FAA interprets § 46301 as specifically authorizing the imposition of civil penalties for a violation of § 47133 and does not exclude non-sponsors from its coverage.  Moreover, it views 49 U.S.C. § 47111(f) as inclusive of non-sponsor entities because “Congress did not limit FAA’s enforcement authority in 49 U.S.C. § 47111(f) to just airport sponsors, but rather permitted judicial enforcement to restrain ‘any violation’ of chapter 471 – that includes the requirements of § 47133 – by any person for a violation.  ‘Any violation’ encompasses violations by non-sponsors as well as airport sponsors.”  79 Fed.Reg. 66285 [emphasis in original].

Finally, a number of commenters raised the issue of “federalism,” or the distribution of power between the States and Federal government mandated by the United States Constitution, and the Amendment’s lack of compliance with Executive Order 13132 on federalism, on the ground, among others, that the Amendment was not required by statute.  In response, FAA argues that, although a formal federalism analysis is unnecessary due to the clear applicability of the cited statutes, it closely consulted with “States, local governments, political subdivisions, and interested trade groups,” 79 Fed.Reg. 66287, and thereby satisfied any lingering federalism concerns.  
 
Less predictably, FAA agrees with the majority of commenters that it would be unfair to penalize airport sponsors for taxes imposed by another entity.  79 Fed.Reg. 66284.  Therefore, FAA has also agreed to revise Revenue Use Policy paragraph IV.D.2 to acknowledge the differences in taxes that are and are not controlled by the airport sponsor for purposes of grant compliance.  For taxes within the airport sponsor’s direct control, the airport sponsor must comply with the revenue use requirements of §§ 47107(b) and 47133.  For taxes imposed by non-sponsor States and local governments, however, the airport sponsor is expected to advise those entities of Federal requirements for use of aviation fuel tax revenues, and to take action reasonably within the sponsor’s power to tailor State and local taxation to conform to the requirements of those statutes.  79 Fed.Reg. 66284.  
 
Perhaps most important, however, FAA will not relinquish its power to pursue enforcement action under 49 U.S.C. §§ 46301 or 47111(f) against a non-sponsor State or local government that violates the revenue use policy or the limitations in 49 U.S.C. § 47133.  Id.  Because of that crucial caveat on FAA’s self-imposed limitation on its own authority, jurisdictions with taxing power that include airport uses should be as aware of FAA’s intentions as the airports themselves, and work closely with the relevant airport during the grant application and project approval processes to ensure that the disposition of resulting tax revenues from aviation fuel do not run afoul of FAA’s enforcement intentions.
 

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:
 
November 18, 2014 - Ventura, CA
E.P. Foster Library - The Elizabeth R. Topping Room
651 East Main St., Ventura, CA 93001
10:30 a.m. - 12:30 p.m.
 
November 19, 2014 - Los Angeles, CA
Pico Union Library- Meeting Room
1030 S. Alvarado St., Los Angeles, CA 90006
10:30 a.m. - 12:30 p.m.
 
November 20, 2014 - Burbank, CA
Buena Vista Branch Library - Meeting Room
300 N. Buena Vista St., Burbank, CA 91505
10:30 a.m. - 12:30 p.m.
 
December 9, 2014 - San Diego, CA
Airport Noise Mitigation/Quieter Home Program Offices
San Diego County Regional Airport Authority - Conference Room
2722 Truxtun Rd., San Diego, CA 92106
10:30 a.m. -12:00 p.m.
 
December 10, 2014 - Palm Desert, CA
Palm Desert Library - Community Room
73-300 Fred Waring Dr., Palm Desert, CA 92260
10:30 a.m. - 12:00 p.m.
 
December 11, 2014 - Costa Mesa, CA
John Wayne Airport
Eddie Martin Administration Building - Airport Commission Hearing Room
3160 Airway Ave., Costa Mesa, CA 92626
10:00 a.m. - 12:00 p.m.
 
Questions should be addressed to Ryan Weller at (425)203-4544; or email at 9-ANM-SoCalOAMP@faa.gov; or facsimile at (425)203-4505.
 

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.
 

Since, and partially as a result of, the 1986 settlement and the restrictions it contained, the United States Congress enacted the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521-45733 (“ANCA”).  While ANCA clearly expressed the intent of Congress to preempt the imposition of local airport noise restrictions (“noise policy must be carried out at the national level,” 49 U.S.C. § 47521(3)), it provides two avenues to circumvent that comprehensive preemption.  First, ANCA provides seven express exceptions under which the prohibition on local enactment of airport noise restrictions does not apply.  49 U.S.C. § 47524(d).  The extension of the JWA noise restrictions qualifies under 49 U.S.C. § 47524(d)(4), as “a subsequent amendment to an airport noise or access agreement or restriction in effect on November 5, 1990, that does not reduce or limit aircraft operations or affect aircraft safety.”   

However, even where an existing or planned local restriction does not fit neatly into any one of the specific categories of exception, ANCA provides for a process whereby a proposed restriction may either: (a) be agreed to by the airport proprietor and all aircraft operators (i.e., airlines); or (b) may be submitted to the Secretary of Transportation, through his/her designee, the Administrator of the Federal Aviation Administration (“FAA”), for approval.  49 U.S.C. § 47524(c).  
 
The standards of review specified in the statute for application by the Secretary are admittedly both vague and draconian.  See, e.g., 49 U.S.C. § 47524(c)(2)(B) [“the restriction does not create an unreasonable burden on interstate or foreign commerce”].  Nevertheless, in some rare instances, such as Los Angeles International Airport’s nighttime over-ocean arrival and departure procedures, which is a local restriction long in effect, and, because of fewer night operations, not uniquely burdensome, the restriction may be able to meet ANCA’s difficult standard.  
 
In short, the currently required process under ANCA, and its implementing regulation, 14 C.F.R. Part 161, for approval of airport noise and access restrictions may not be a guarantee of success, but it is a dramatic illustration of the ancient adage, “if you don’t ask, you don’t get.”
 

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. 

In proposing its new supplement to the Part 77 obstruction regulations, FAA invokes its authority to regulate the safe and efficient use of airspace, 49 U.S.C. § 40103(a), and to issue air traffic rules to govern the flight, navigation, protection and identification of aircraft for the protection of persons and property on the ground and for the efficient use of the navigable airspace.  49 U.S.C. § 40103(b).  It should be noted that FAA’s statutory mandate does not include governance of property outside the airport, 79 Fed.Reg. 23302.  Land use authority is vested entirely in surrounding local governments.  What FAA regulations attempt to accomplish, however, is to provide “guidance” to local jurisdictions to identify obstacles that may have an adverse impact on the navigable airspace within certain geographic parameters around airports.  The closer to the airport, the lower the advisable height of structures.  See 14 C.F.R. Part 77.17. 

In general, FAA’s regulations require that a developer of a structure that meets or exceeds FAA’s notice requirements submit a “Notice of Proposed Construction or Alteration,” Form 7460-1, within a certain time period before commencing construction.  14 C.F.R. Part 77.7.  The FAA may then find the structure an obstruction, and if it interferes with terminal procedures (“TERPS”), a hazard to air navigation.  Until now, however, these regulations did not include an algorithm that addressed the impact of arrival or departure of an aircraft that has unexpectedly lost an engine during either one of these operations. 

The addition to existing Part 77 of such a restriction is a dramatic example of the law of unintended consequences.  First, it would significantly extend the geographic scope of FAA’s obstruction regulation to as much as 10 miles from an airport runway, and, at the same time, lower the permissible height of buildings to remain consistent with OEI operations.  For example, some analyses anticipate that changing the way FAA assesses proposals to build new structures or modify existing structures to incorporate OEI procedures would lower the permissible height of a building as far as 10,000 feet from the end of a runway at a commercial airport from 250 feet to 160 feet, thus simultaneously lowering the building’s utility and value. 

These changes would have significant consequences not only for building owners but also for the public entities within which developments are located.  While FAA cannot dictate land use to a local jurisdiction, a finding that a proposed structure interferes with OEI procedures, and, thus, constitutes a hazard to air navigation, 79 Fed.Reg. 23303, might strongly influence a jurisdiction to amend long standing plans for development.  Such changes could have dramatic impacts on property tax potential and, therefore, the economic future of the community. 

Finally, FAA proposes to make these changes without a formal rulemaking process, 79 Fed.Reg. 23302, although it is working with affected public entities, airlines and other involved parties to address the proposal’s potential impacts by designating a single flight path at each airport to be used for OEI procedures, thus simultaneously lessening the potential impact on other surrounding land uses.  In addition, FAA has extended the period for public comment on the OEI proposal to July 28, 2014.
 

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.
 

The principal constraint on the EPA’s authority is the requirement that it consult with the Federal Aviation Administration (“FAA”), 42 U.S.C. § 7571(a)(2)(B)(i), [“Any regulation prescribed under this section (and any revision thereof) shall take effect after such period as the Administrator finds necessary (after consultation with the Secretary of Transportation) to permit the development and application of the requisite technology . . .,” 42 U.S.C. § 7571(b)].  Only the President of the United States has the authority to change or veto regulations promulgated by EPA, also after consultation with FAA.  [“Any regulations . . . or amendments thereto, with respect to aircraft shall not apply if disapproved by the President, after notice and opportunity for public hearing, on the basis of a finding by the Secretary of Transportation that any such regulation would create a hazard to aircraft safety,” 42 U.S.C. § 7571(c)].

Finally, the law explicitly forecloses any action such as that proposed by the City of Santa Monica to adopt and enforce emissions regulations different from those established by the EPA.  “No State or political subdivision thereof may adopt or attempt to enforce any standard respecting emissions of any air pollutant from any aircraft or engine thereof unless such standard is identical to a standard applicable to such aircraft under this part.”  42 U.S.C. § 7573.  [Emphasis added.]

In summary, it is not necessary to go beyond the face of the statute to determine that the establishment and enforcement of regulations governing aircraft engines is wholly within the jurisdiction of the federal government.  Therefore, any attempt by the City of Santa Monica to adopt or enforce different regulations requiring certain aircraft to create lower emissions that those established by the EPA, or sacrifice access to Santa Monica Airport, would be void from the outset.  Given the above statutory and regulatory framework, the City of Santa Monica clearly needs to look further for a solution to its problems. 
 

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.
 

Technological solutions such as geofencing may solve many of the problems related to airport regulation of TNCs because car sharing and ride sharing companies typically connect with consumers through smartphones.  Geofencing would allow airports to set up a virtual perimeter around the airport that would trigger a notification (and corresponding fee payment) every time a TNC driver arrives at the airport to pick up or drop off a passenger.  Additionally, airports could coordinate with car sharing companies to designate paid parking areas for vehicles within the car sharing network.  By tapping into the technological platforms TNCs have already developed, airports would have the benefit of adding streamlined sources of revenue without the burden of developing their own monitoring and networking solutions.

There is another reason why airports may want to take advantage of such innovative solutions rather than “killing the cow.”  The fact that airports are predominantly government entities means legal pressures could also play a significant role in the efforts by car sharing and ride sharing companies to break into the airport market.  Unlike private actors, government entities like airports owe constitutional rights to businesses.  Airports that maintain outright bans on car sharing and ride sharing services may face challenges under the Dormant Commerce Clause and the Equal Protection Clause of the Fourteenth Amendment, among other sources of law.  The federal statute 42 U.S.C. § 1983 provides litigants with a private right of action for damages resulting from a deprivation of federal constitutional or statutory rights.

Thus, airports may profit by shifting focus away from how to exclude car sharing and ride sharing services and towards how to include and regulate these companies.
 

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.”
 

Additionally, the FAA was not required to prepare an environmental impact statement (“EIS”) because the U.S. Department of the Interior had already prepared one for the project and “[n]o hazard determinations generally do not require preparation of an environmental impact statement because they are not legally binding.”

The FAA’s no hazard determination was a precondition to the Department of the Interior’s approval of the lease needed to begin construction of the offshore wind farm in Nantucket Sound.
 

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.
 

First, the parties continue to debate the factual issue of whether Santa Monica’s contractual relationship with the federal government extends only to the year 2015, or as far out as 2023.  The FAA’s reliance on the latter date arises from the fact that Santa Monica took its final federal grant in 2003, and its contract with the federal government is presumed to extend for the “useful life” of the facilities purchased with the most recent grant, or 20 years.  See, e.g., FAA Order 5190.6B, Chapter 4, §§ 4.6.h(1) and (2).  There is also the issue of real property purchased for the airport with federal funds.  In the case of Santa Monica Airport, the then existing Works Progress Administration (“WPA”) and Civil Aeronautics Authority (“CAA”) used eminent domain to acquire additional land in order to replace two runways with a modern 5,000 foot long runway.  As that section was purchased with federal funds, the obligation to keep that portion of the property, at least, in aviation use arguably remains in perpetuity.  Id. at § 4.6.h(2). 

Finally, there is the legal issue of whether the 5th Amendment’s “takings” clause applies to make whole a City like Santa Monica.  The 5th Amendment specifically states: “. . . nor shall private property be taken for public use, without just compensation.”  [Emphasis added.]

Therefore, there may be a strong argument that the 5th Amendment does not apply where one public entity is alleged to have “taken” the property of another public entity without paying for it. 

For all those reasons, and others, not the least of which is the preemptive authority of the Interstate Commerce Clause of the United States Constitution which militates against the closure of aviation resources, especially where options are as severely constrained as they are in the Los Angeles region, it is doubtful that Santa Monica will prevail in closing its airport.  A more fruitful approach might be an application to the FAA under 14 C.F.R. Part 161 for mitigation measures that can relieve the surrounding population to some extent of the impacts of noise and pollution which were so instrumental in precipitating the lawsuit requesting closure in the first instance.
 

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. 
 

To the extent that the Resolution purports to control the Airport’s airfield configuration, and because the Airport is owned and operated by another jurisdiction, the City of Colorado Springs, the Resolution runs into the brick wall of federal preemption.  “Under the doctrine of preemption, federal law prevails over state law if Congress has expressed an intent to occupy a given field in which federal law is supreme.”  Bethman v. Ukiah, 216 Cal.App.3d 1395, 1405 (1989).  By virtue of Congress’ clearly expressed intent in the Federal Aviation Act, 49 U.S.C. § 40101, et seq., to occupy the field of aircraft safety, federal law expressly preempts state law in those areas enumerated in Federal Aviation Act § 40103(b). 

Under Federal Aviation Act § 40103(b), the FAA Administrator is exclusively tasked with developing “plans and policies for the use of navigable airspace and assign[ing] by regulation or order the use of the airspace necessary to ensure the safety of aircraft and efficient use of airspace.”  Federal Aviation Act § 40103(b)(1).  The scope of the mandated air traffic regulations is broad, including, but not limited to, “(B) protecting individuals and property on the ground; (C) using the navigable airspace efficiently; and (D) preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.”  Federal Aviation Act § 40103(b)(2)(B)-(D).  Toward that end, FAA also mandates the airfield dimensions necessary to safely accommodate the arrival and departure of aircraft, including runway and taxiway dimensions and certain zones around airports such as the Runway Protection Zone that airports must keep free of obstructions both on the ground and in the air.  See, e.g., 14 C.F.R. Part 77; FAA Order 5190.6B, Part IV, Chapter 21, § 21.6(f)(6), p. 21-9.  The United States Supreme Court has also recognized the supremacy of federal law governing aviation safety. 

“The Federal Aviation Act requires a delicate balance between safety and efficiency, [cites omitted] and the protection of persons on the ground.  [Cites omitted] . . .  The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled.  [Cites omitted].”

City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 638-639 (1973). 

While the Resolution purports to be exclusively aimed at protecting nearby land uses; and while it is true that the Congress did not bestow upon FAA authority to regulate off-airport land uses, see, e.g., FAA Order 7400.2J, § 5-1-2.a, to the extent that the Resolution aims at controlling airport operations (which are the source of off-airport noise), or configuration (e.g., runway alignments), the Resolution falls squarely into the area of authority assigned exclusively to the federal government.

The Colorado Springs City Attorney’s Office agrees that the rules are vaguely drafted and in some conflict with federal regulations.  That opinion does not, however, go far enough.  The City should find guidance in the experience of the State of California’s Department of Transportation’s (“Caltrans”) attempt to impose a curfew upon operators at San Diego International Airport.  San Diego Unified Port District v. Gianturco, 651 F.2nd 1306, 1317 (9th Cir. 1981).  That case teaches that the local land use jurisdiction surrounding an airport should seek to control airport impacts by controlling proximate sensitive land uses, including residential uses, within their jurisdictions, not by controlling airport operations and physical development located outside it. 
 

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:
 

First, from a technical perspective, helicopters are obviously different in their operational capabilities from fixed-wing aircraft.  Their flight paths are somewhat flexible, both with respect to direction and altitude (depending on the approach and departure paths to proximate airports).  The flight paths of fixed-wing aircraft on approach and departure from airports, the time of maximum impact on surrounding communities, are, on the other hand, determined to a large extent by runway orientation, an inflexible determinant.  Thus, while it is conceivable that the FAA could obtain some voluntary adjustment to helicopter flight paths, the same adjustment is much more difficult to accomplish with fixed-wing aircraft, as is demonstrated by the number of years it has taken the FAA to enact regulations governing satellite guided approach and departure operations. 

Second, from a legislative perspective, the Appropriations Act, like most legislation establishes broad purposes, but suggests no measures by which to judge the FAA’s success in accomplishing those purposes.  For example, while the FAA is required to “evaluate” whether a specific route adjustment would “lessen impacts on residential areas,” the Bill does not define what constitutes “lessening” and, thus, leaves the door open to the utilization of FAA’s standard measure of noise significance, i.e., whether average noise over a 24 hour period has increased or decreased.  It is therefore conceivable, that FAA could, on the basis of that “average” measure, find that voluntary initiatives are sufficient, thus obviating the need for the regulations sought by impacted communities.

Finally, from a purely political perspective, it is notable that the vehicle used to enact § 119D is an “omnibus” spending bill which includes all of the 12 individual annual spending bills that cover the largest portion of the federal government’s annual discretionary spending (except Social Security and Medicare).  The Appropriations Act gained partisan support in the Congress, largely because it protects against another catastrophic government shutdown.  Outside of a similar vehicle with similar justification, and given the active interest of the aviation community in such legislation, it is highly unlikely that passage of mandates such as that contained in § 119D will be a regular occurrence.  Nevertheless, its passage gives confidence to noise impacted communities that federal legislators are not deaf to their issues. 
 

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. 
 

ONT, located in San Bernardino County, California was developed by the City of Los Angeles (which entered into a Joint Powers Agreement with the City of Ontario, California, its original owner, in 1969) to serve travelers in Eastern Los Angeles County and Northern Orange County, and to take the pressure off Los Angeles International Airport (“LAX”) which, until 2007, was fast approaching its airfield constrained level of operations of 78.9 million air passengers (“MAP”) a year. 

To enhance ridership, the City of Los Angeles invested hundreds of millions of dollars in new terminals and parking lots and other facilities at ONT.  With the 2007 recession and subsequent economic downturn, however, LAX management came to see the use of ONT as competitive with LAX for scant passengers and made affirmative attempts, including reduction in ONT’s marketing budget, to lure airlines to LAX and away from ONT to reduce the competition and perceived drain on LAX resources.  As a consequence, ONT has lost 9.27% of its revenue producing passengers over the last year alone, and is now on the verge of closure as a result.  The City of Ontario has taken legal action against the City of Los Angeles to reclaim ownership of ONT, based on, among other things, Los Angeles’ alleged breach of their 1969 Joint Powers Agreement. 

A similar syndrome has impacted an airport 3,000 miles across the country in Long Island, New York.  Between 2009 and 2012, MacArthur Airport, in Suffolk County, went from a $758,448 annual profit to a $2,068,017 annual loss.  MacArthur’s woes are due not as much to its competition with the major New York airports, LaGuardia and Kennedy which are closer to New York, but to bad bargains with Southwest Airlines (whereby MacArthur paid for the building of eight new gates for Southwest that are now sitting largely idle), and a parking lot operation whose contract with the airport is draining 25% of the airport’s potential profits from concessions.  MacArthur’s management sees privatization, i.e., sale to a private airport operating company, as a possible fix.  That, however, is a difficult road because MacArthur has received millions of dollars in airport development funds from the FAA over the years, which may have to be paid back in its entirety by the private operator as a condition of sale. 

Finally, some frustrated airport operators are attempting to take the drastic step of closure.  The City of Santa Monica, operator of Santa Monica Municipal Airport (“SMO”), is now challenging on constitutional grounds the rule promulgated by FAA which requires, as a precondition of closure, not only the repayment of funds paid by FAA for development of airport facilities, but also reimbursement to FAA of the current fair market value of the property upon which the airport is located, if any portion of the property was purchased with federal funds.  See, City of Santa Monica v. United States of America, et al., U.S.D.C. Case No. CV13-08046.

Of course, there are exceptions to every rule.  Southern California’s John Wayne Airport (“SNA”) and Palm Springs Airport (“PSP”) have increased in ridership even during the economic downturn, largely because of the relative economic viability of local markets in those locations.  These, however, are anomalies in the larger picture of reliever airport economic deterioration. 

Understanding that there is no problem to which there is no solution, however, remedies can be found, not only in the independent upturn in economic viability of target markets, but also in conversion to local control of those reliever airports which are jointly controlled with major airports, such as LAX, to remove the inherent conflicts and competitive interests, and to allow local authorities most benefited by the airports to develop innovative methods to support them. 
 

"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. 
 

First, new aircraft type designs are already required to meet Stage 4 standards in or after 2006.  70 Fed.Reg. 38742.  Therefore, the legislation duplicates, to some extent, existing mandates.  Second, and perhaps dispositive, is the expected opposition from the legislation’s target, commercial airlines.  The Act requires conversion not merely of new engines, but also of existing aircraft in the fleet.  That, of course, might also require replacement of currently operational and relatively modern aircraft at substantial, even prohibitive expense.  Replacement of the existing fleet is not required by the current rule.  70 Fed.Reg. 38742.  Given the substantial weight wielded by the airline community, it is more than merely likely that the Silent Skies Act will either never reach the floor of the Congress; or will be watered down to a point at which it merely reflects the current rule.

In summary, the responsiveness of the Congresspersons involved is to be commended.  Their efforts would be better spent, however, at a Statement of Congressional Intent directed at influencing the Federal Aviation Administration’s (“FAA”) interpretation and application of the regulations implementing the Airport Noise and Capacity Act of 1990, 49 U.S.C. 47521, et seq., which preempts to the federal government all airport noise and access restrictions at local airports, and which is the primary constraint on new noise restrictions.
 

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. 
 

First, in this case, the City remains the owner of the underlying fee simple property which was never owned by the federal government before it was leased in 1941 to facilitate the ongoing war effort.  It is, in this case, the lease with the federal government that contains the “reverter” clause allowing the airport to revert to federal ownership upon cessation of aviation use, upon which FAA depends in restraining the City’s efforts to close the airport.  In the typical case, however, such as in military base conversions, the federal government is the deed holder to the underlying property, and the local jurisdiction receives fee simple property in return for perpetual aviation use. 

Second, the City is in the unique position of having accepted its last airport improvement program (“AIP”) grant from the FAA in 1994.  Even though such grants carry with them contractual obligations (“Grant Assurances”) including a requirement for the continuing operation of the airport, those Grant Assurances last, in most cases, for 20 years.  Therefore, the City’s obligation will expire at the end of 2014.  FAA may, therefore, be precluded from relying on the Grant Assurances to keep the City from closing the airport.

In short, for reasons both of the tenuous legal strength of the City’s claim, and the uniqueness of the governing facts, it is suggested that other jurisdictions contemplating the same path, and local organizations advocating such action, think carefully about embarking on the stormy and expensive sea of airport closure, especially where the unique conditions applicable to the City do not apply.

$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.
 

Given the $900 million total cost of the three year program, its critics believe that it should be more effective than other TSA efforts the failures of which have been documented by repeated government tests, including one by the Federal Aviation Administration (“FAA”) in which TSA agents missed critical incursions by weapons of all types, including guns and knives in passenger carry-on bags.  However, even in the face of an extensive array of criticism, the TSA itself refuses to acknowledge the program’s deficiencies.  Inconceivably, the American Federation of Government Employees, the union that represents TSA workers, offers to solve the problem by giving TSA employees law enforcement responsibility, including the carrying of weapons and the power to arrest.  This is despite clear indications that TSA officers are not properly vetted on hiring, and not properly trained afterwards, as illustrated by the actions of the TSA employee at LAX last month who sent threatening messages to various airport representatives. 

In short, TSA needs to put its own house in order, and stop spending billions of taxpayer dollars on programs of questionable effect, when their existing programs are fraught with policy and personnel failures.  There is a fine line between the search for security and a useless interference with both the privacy of individual passengers specifically, and interstate commerce in general.  To date, TSA, with its long lines, ill-trained agents, and antiquated methods (e.g., limiting liquids to quart bags and forcing passengers to disrobe at checkpoints) has failed to find that balance.
 

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.
 

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. 

The issue first came to public attention when one of the 787s caught fire while on the tarmac in Boston, and yet another experienced an unexplained fuel leak.  FAA preliminarily attributes the problem to the new technology employed in the aircraft’s construction.  Specifically, the hydraulically powered systems utilized in most passenger aircraft are replaced in the 787 by electrically powered systems using lithium ion batteries.  While, on the one hand, Boeing maintains that the use of electrically powered brakes reduces the incidence of leaks in hydraulic systems and resultant delays, allowing the 787 to burn 20% less fuel than other comparable aircraft, the potential for electrical fire or failure of the systems has opened a whole new universe of questions for FAA. 

Finally, the grounding will certainly cause a domino effect in economic terms.  Boeing planned to assemble five Dreamliners per month, rising to 10 later this year, to meet its 848 orders worldwide.  The delay of that planned assembly will not only affect American manufacturing, and specifically that in Southern California and Washington State, but also the economies in those countries and regions involved in the manufacture of component parts and assembly, such as Russia, Japan and Italy. 

Boeing maintains that the “glitch” is short lived, but the electrical problems such as those discovered recently on Japan Airlines, United Airlines and Qatar Airways’ 787s are not new for lithium ion batteries and do not bode well for the near term future of the 787, or of its parent, the Boeing Company.
 

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.
 

Early information released by FAA indicates that the Plume Report determined that: (1) exhaust plumes can create hazards for aircraft by turbulence caused by the plume’s upward motion and reduced oxygen inside in the plume, but only in a limited area above the stacks; (2) reduced oxygen is not a danger to pilots, but could adversely affect helicopter engines hovering over the plume; and (3) the most dangerous conditions include calm winds, low temperatures, and neutral or unstable stratification of the atmosphere. 

Despite the importance of these findings, not only to the general public but also to utilities and others in the business of constructing and operating power plants, rather than sharing the detailed results with those interest groups, FAA will host an “Invitation Only” meeting of aviation interest groups to “ensure their concerns are fully understood.”  Neither the public nor affected utility operators will be able to access the final Plume Report until FAA has consulted with its aviation interest groups.  Consequently, the result of the study may not reflect the interests and concerns of the utility industry, and may result in a significant impact on that industry segment’s ability to locate and operate power generation facilities throughout the country.

Hopefully, the latest version of the Plume Report will be based on quantitative analysis, and not diverted by the qualitative impressions of members of FAA’s aviation constituency.
 

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.
 

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. 

Specifically, the argument that the decision on Obamacare somehow lends support to local regulation of airports turns the Sebelius decision on its head.  In the Obamacare decision, the Court held, regarding the universal mandate to purchase insurance, that the Commerce Clause could not be used as a pretext to force the uninsured, who have not chosen to voluntarily engage in interstate commerce through the purchase of health insurance, to engage in commerce involuntarily by mandating such a purchase. 

In the context of Federal regulation of airports, however, the Commerce Clause has been applied to ensure that voluntary entrants into interstate commerce, i.e., the airlines and passengers, will not be obstructed by a web of disparate local regulations.  In upholding this application of the Commerce Clause to voluntary entrants into the air transportation system, as it has done consistently since the passage of the Federal Aviation Act in 1958, 49 U.S.C. § 40101, et seq., as amended, the Court held:

“The Federal Aviation Act requires a delicate balance between safety and efficiency, [cite omitted], and the protection of persons on the ground. . . The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled.” 

City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 638-639 (1973).

In fact, the airline/airport industry, which developed for the express purpose of facilitating business between states, and the United States and other countries (witness the impact of Lindbergh’s transatlantic flight in 1927), is the quintessential “voluntary” participant that our Founding Fathers authored the Commerce Clause to protect. 

In short, it is important to correct any false impression about the applicability of the Sebelius decision in the airline context, in order to save those readers looking for solutions to the widespread problem of airport impacts from wasting resources attempting to bring the national aviation system under local control.  Such time could be far better spent on the employment of other more effective strategies based on environmental and other statutes for working toward a better balance of commerce and its impacts.
 

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. 
 

On the need for a mandatory rule, FAA asserts that such a rule will “help further decrease levels of noise that have already been voluntarily achieved.”  In support, FAA offers that its noise analysis indicates not too surprisingly that, even though cumulative noise levels may be low when averaged across the year (as low as 45 dB DNL), helicopter overflights could be more disturbing on certain days when they are experienced several times over a period of several hours or the course of a day.  FAA then claims that maximizing the utilization of the existing voluntary route by making it mandatory will somehow secure and improve the decreased levels of noise that have been voluntarily achieved. 

Of course, many of the 900 commenters, including the Town of East Hampton, disagree that significant improvement in noise levels have already been achieved by the voluntary rule, and further object to FAA’s refusal to conduct environmental review of the new procedure, instead invoking its power under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., and FAA Order 1050.1E, § 312f to categorically exclude the new rule from environmental review. 

Perhaps the most surprising aspect of FAA’s rationale, however, is that it would apply equally to current voluntary noise abatement procedures at airports such as O’Hare (e.g., the “Fly Quiet Rule”) which FAA has, up to now, refused to consider upgrading to a mandatory status. 

Finally, FAA took the public by surprise by including in the “Final Rule” a sunset provision that FAA had, apparently, not contemplated when it published the Draft Rule.  Under the sunset provision, the “Final Rule” will independently expire “if the FAA determines there is no meaningful improvement in the effect of helicopter noise on quality of life . . .”  However, the notice is not specific to the metric FAA will use to define “meaningful improvement,” when it contends that noise is already as low as 45 dB DNL in affected areas.  If the only indicator of adverse impact leading to the promulgation of the Rule was public complaints, the only conclusion as to the indicator for “meaningful improvement” is a reduction in public complaints.  Thus, the sunset provision constitutes a canny way for a public agency to discourage public and political pressure.  Whether making the rule mandatory while, of necessity, still permitting helicopter overflights over land will accomplish FAA’s ultimate purpose of further reducing noise, or simply silence some complaints, remains to be seen. 
 

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.
 

The first two provisions involve new NOx emissions standards for newly certified-engine models.  The first standard, Tier 6, which takes effect when the rule becomes effective, represents approximately a 12% reduction from current levels.  The second standard, Tier 8, takes effect in 2014, and represents approximately a 15% reduction from current levels.  The third major provision is a production cutoff for newly manufactured engines (as opposed to newly certified engines) which basically requires that after December 31, 2012, all newly manufactured engines must meet at least Tier 6 NOx emissions standards.  (EPA opines that the production cutoff is needed to ensure that the emissions reductions envisioned by the emissions standards are achieved on new production engines.)  The fourth major provision is related to potential exemptions or exceptions to the production cutoff requirement, including provisions allowing manufacturers to request that the Federal Aviation Administration (“FAA”), in consultation with EPA, grant exemptions from the production cutoff for a designated number of engines within a prescribed timeframe.  The sixth and final set of provisions address such matters as spare engines, derivative engine models, test procedure specifications and reporting requirements. 

EPA’s authority to make these changes is not independent of the authority of other agencies.  The Clean Air Act, 42 U.S.C. § 7571(a)(2)(A), while allowing the EPA Administrator to propose aircraft engine emissions standards applicable to the emission of any air pollutant which, in his/her judgment causes or contributes to pollution that may endanger public health or welfare, also directs EPA to consult with the Administrator of the FAA on such standards, 42 U.S.C. § 7571(a)(2)(B), and prohibits EPA from changing aircraft emissions standards if such a change would significantly increase noise and adversely affect safety, 42 U.S.C. § 7571(a)(2)(B)(i)-(ii).  In a recent case, the U.S. Court of Appeals for the D.C. Circuit held that these provisions confer an unusually broad degree of discretion on EPA to adopt such aircraft engine emissions standards as the agency determines are reasonable.  NACAA v. EPA, 489 F.3d 1221 (D.C. Cir. 2007). 

While the new rule originally caused some consternation among aircraft manufacturers, EPA is relying on the fact that engine manufacturers participated in the deliberations leading up to aircraft engine NOx emissions standards adopted by ICAO, and after the adoption of those standards, incorporated engine technology changes into their products as needed to meet those standards, thus ensuring the worldwide acceptability of their products.  As all the required production changes are now complete, there will be no further significant direct cost to manufacturers created by EPA’s adoption of the previous ICAO requirements into new U.S. regulations.  The apparent goal of these regulations is eventual reductions in some of the most pervasive emissions suffered by communities around airports, as well as in ozone precursors and, thus, the greenhouse gases to which they are a significant contributor.  The Final Rule will become effective on July 18, 2012.
 

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. 

The changes include, but are not limited to: (1) changes to 14 C.F.R. Part 16.26 to allow motions for summary judgment or dismissal to be filed by the airport before the date for its formal answer to the Part 16 complaint in order to eliminate duplication of effort in answering the complaint and challenging its legal adequacy at the same time; (2) termination of complainant’s standing to appeal pursuant to 14 C.F.R. Part 16.109, where FAA has already found the airport noncompliant thus achieving the complainant’s initial objective; (3) clarification of the requirement in Part 16.207 for a written motion to intervene by a party in any proceeding, and broadening of the current standard for intervention, which now requires a property or financial interest “that may not be adequately addressed by the parties,” with a less restrictive standard, i.e., “if the person has an interest that will benefit the proceedings;” (4) addition of new sections 16.33(e) and (f) and 16.245(e) and (f) to limit the grounds for appeal to issues that were before the court in the underlying action; and (5) addition of a new requirement in proposed section 215(e) that would allow deposition of FAA employees only “with the specific written permission of the Chief Counsel.” 

Of the major proposed changes, the last appears most questionable from a due process perspective.  As parties are entitled to obtain a broad range of information from FAA, including technical information, through the Freedom of Information Act, there does not appear to be any reason for the change, other than FAA’s alleged concern that, by deposing agency officials, parties are obtaining technical information they might otherwise have to obtain through expert witnesses.  As FAA officials are often the closest observers and most knowledgeable parties about the controlling regulation and grant assurances, as well as observance of them or lack thereof at a particular airport, it seems contrary to normal judicial procedure, as well as government’s obligations under the Constitution to provide a fair hearing, to require approval of FAA employees’ testimony by the FAA, the adjudicating agency. 

The comment period which officially ended May 4, 2012, is now extended to June 7, 2012.
 

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. 

(1) Grant Assurance 5, “through the fence” arrangements, whereby proximate, off-airport, aviation-related development, either residential or commercial, is now allowed access to airport property through the airport’s security fence under specified circumstances.  FMRA has restored the opportunity for “through the fence” arrangements which, after 9/11, were prohibited due to security concerns.  Consequently, Grant Assurance 5, subsection g, was revised to provide the terms under which “through the fence” arrangements may operate. 
 
(2) Grant Assurance 15, “Veteran’s Preference,” which previously included only “Vietnam era veterans,” now includes “Persian Gulf veterans, Afghanistan-Iraq war veterans, disabled veterans” and business owned and operated by disabled veterans from those conflicts;

(3) Grant Assurance 25, governing use of airport revenues, to add two new exceptions to the general rule that “[a]ll 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 local facilities which are owned or operated by the owner or operator of the airport and which are directly and substantially related to the actual air transportation of passengers or property; or for noise mitigation purposes on or off the airport.”  Grant Assurance 25.a.  The first exception, set forth in new section a.(2) deals with the FAA’s financing of the sale of a “privately owned airport to a public sponsor.”  It provides that the limitation set forth above on the uses of revenue will not apply under certain specified conditions applicable to the prior owner of the private airport.  Those conditions require, among other things, that, in the event of a sale to a public airport, the prior owner will repay FAA “an amount equal to the unamortized portion of any airport improvement grant made to the private owner for use other than land acquisition after October, 1996 plus an amount equal to the Federal share of the current market value of any airport land acquired with an airport improvement grant,” made after October 1, 1996.  A second revision also exempts revenues derived from mineral extraction, production or lease at a general aviation airport;

(4) Grant Assurance 29, also dealing with the new rules governing “through the fence” access, requiring amendment to airport layout plans (“ALP”) to include “all proposed and existing access points used to taxi aircraft across the airport’s property boundary;” and

(5) Grant Assurance 31, governing use of proceeds from disposal of real property.  Previously, proceeds from the disposal of airport real property which equal the “portion of the proceeds of such disposition which is proportionate to the United States’ share of the cost of acquisition of such land” were limited, with the permission of the Secretary, to reinvestment in another eligible airport improvement project at the airport or within the national airport system, or repayment into the aviation trust fund.  The amendment now prescribes certain criteria by which the Secretary shall make the determination on the use of funds, including, in descending order: (1) reinvestment in an approved noise compatibility project; (2) reinvestment in an approved project that is eligible for grant funding under 49 U.S.C. § 47117(e); (3) reinvestment in an approved airport development project that is eligible for grant funding under 49 U.S.C. §§ 47114, 47115 or 47117; (4) transfer to an eligible sponsor of another public airport to be reinvested in an approved noise compatibility project at that airport; and (5) paid to the Secretary for deposit in the Airport and Airway Trust Fund.  77 Fed.Reg. 22376, 22378 (the criteria prescribed for allocation of proceeds from the sale of land for noise compatibility purposes under Grant Assurance 31, subsection a, are substantially similar). 

Comments on the proposed revisions are due no later than May 14, 2012. 
 

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. 
 

First, the Court ignored an explicit statement of Congressional purpose to preempt state safety standards set forth in 49 U.S.C. § 40103.  In that section, Congress stated unequivocally that “the United States government has exclusive sovereignty of airspace of the United States,” § 40103(a)(1).  Congress delegated that sovereignty to the FAA Administrator, including the right to “prescribe air traffic regulations on the flight of aircraft,” § 40103(b)(2), which are required to include traffic regulations “protecting people and property on the ground” § 40103(b)(2)(B), and, most notably, “preventing collisions between aircraft and land or water vehicles . . .,” § 40103(b)(2)(D) [emphasis added].  As the barrier at issue was erected by the County to exclude vehicles from the RPZ and runway, and, thus, “prevent collision between aircraft and land . . . vehicles” using the runway and/or RPZ, its regulation falls directly within the Federal government’s express preemptive power under § 40103. 

Second, even if for argument’s sake, an implied preemption analysis were required, the Appellate Court misconstrued the scope of Advisory Circular 150/5300-13.  Relying on a portion of the Advisory Circular’s introduction (“[U]se of this AC is mandatory for all projects funded with federal grant monies through the Airport Improvement Program (AIP) and with revenue from the Passenger Facility Charges (PFC) Program.”  Advisory Circular, Introduction, § 3), the Court found that the Advisory Circular only becomes mandatory where Federal funding is accepted for the specific project at issue in the litigation, here the barrier allegedly causing the damage.

The Court failed to recognize, however, that the RPZ and associated safety surfaces were Federally funded with AIP and/or PFCs, and, consequently, are safety surfaces to which the Advisory Circular’s standards apply.  The barrier, far from being a project eligible for Federal funding, is precisely the sort of incursion meant to be excluded by the statute and associated regulations.  Thus, the Advisory Circular is mandatory with respect to the prevention of safety hazards within and upon the RPZ, and, under the Court’s reasoning, should preempt state law with respect to those safety standards. 

In short, and despite its holding, the approach taken by the 2nd District Appellate Court leaves open the question of whether the preemption provision of Federal Aviation Act § 40103 governing the scope of FAA jurisdiction over operation of aircraft and associated airport safety facilities expressly or impliedly preempts state tort law challenges.
 

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.

First, closure of an airport requires a “release” from Federal grant obligations.  A “release” “is defined as the formal written authorization discharging and relinquishing the FAA’s right to enforce an airport’s contractual obligations,” FAA Order 5190.6B, § 22.2 (all references will be to FAA Order 5190.6B).  These may either be a release from a particular grant assurance or Federal contractual obligation, or may affirmatively permit disposal of some or all of the airport’s property, § 22.2.  The airport sponsor’s obligation to the FAA for personal property ends with the physical useful life of the property.  However, airport land acquired with Federal funds is federally obligated in perpetuity, § 22.3.

In considering whether to grant a release, the FAA will generally determine whether the release, including that of an entire airport, will have the “potential to protect, advance or benefit the public interest in aviation,” § 22.4.a.  More specifically, it will determine: “(1) the reasonableness and practicality of the sponsor’s request; (2) the effect of the request on needed aeronautical facilities; (3) the net benefit to civil aviation; (4) the compatibility of the proposals with needs of civil aviation,” § 22.4.a(1)-(4). 

The standards imposed also differ markedly for the disposal of personal and real property.  While the FAA may grant a release that permits the sponsor to abandon, demolish, or convert the personal property before its useful life expires, it will do so only when one of the following applies: (1) the facility is no longer needed for the purpose for which it was developed; (2) normal maintenance will no longer sustain the facility’s serviceability; or (3) the facility requires major reconstruction, rehabilitation, or repair, § 22.15.b.  The FAA may require the sponsor, as a condition of the release, to reimburse the Federal government or reinvest in an improved Airport Improvement Program (“AIP”) eligible project, § 22.15.d. 

The standards for releasing real property are far more restrictive.  FAA consent “shall be granted only if it is determined that the property is not needed for present or foreseeable public airport purposes,” § 22.16.  Most notably, the airport account must receive fair market value compensation for all deletions of airport real property from the airport even if the sponsor does not sell the property or sells the property below fair market value, § 22.16.  In addition, a total release permitting sale or disposal of federally obligated land must specify that the sponsor is obligated to include in any conveyance of a property interest a reservation assuring the continued right of flight and the ability to cause aircraft noise at unlimited levels over the land released, § 22.16.a.  Moreover, the conveyance must also “(1) prohibit the erection of structures or growth of natural objects that would constitute an obstruction to air navigation; [and] (2) prohibit any activity on the land that would interfere with or be a hazard to the flight of aircraft over the land or to and from the airport, or that interferes with air navigation and communications facilities serving the airport,” § 22.16. 

Finally, the requirements of release for the sale or disposal of real property differ according to the date of the Federal grant.  If no grant was received after December 30, 1987, “a sponsor’s request [for release] must assure that the Federal government shall be reimbursed or the Federal share of the net proceeds will be reinvested (a) in the airport, (b) in a replacement airport, or (c) in another operating airport,” § 22.19.a(1).  Where a grant was received after December 30, 1987 for land other than for noise compatibility purposes, an airport sponsor must dispose of the land at fair market value and deposit the Federal share of the sales proceeds into the Trust Fund, § 22.19.b(1).  In other words, for an airport that has received a grant after December 30, 1987, the flexibility on the disposition of any sales proceeds is eliminated. 

Whether an airport can be closed and/or transferred for non-aviation purposes depends almost entirely on the discretion of the FAA Associate Administrator for Airports whose discretion may not be delegated, § 22.20.  It is, therefore, critically important to follow all the procedural steps in obtaining a release, as well as the substantive requirements discussed here.  It should also be noted that where an airport was acquired as Federal surplus property from the military, different and even more restrictive regulation of transfer may exist.
 

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.
 

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.
 

Citizens appear to have at least three remaining means to obtain relief.  First, H.R. 658 is set for Congressional consideration at 5:30 p.m., Monday, February 6, 2012.  However, if communities around airports throughout the United States weigh in en masse with their Senators and Congressmen, between now and then, by e-mail, the legislation’s summary consideration may be considerably lengthened.  With enough vocal opposition from the public, it is even possible, though not probable, that the offending § 213 may be deleted. 

Another strategy for overcoming the obstacle to environmental relief being established by Congress involves response to the solicitation of comments on proposed changes to FAA regulations, 14 Code of Federal Regulations § 91, 121, 125, 129 and 135, 76 Fed.Reg. 77,939 (December 15, 2011), adding regulations governing NextGen.  The Congressional exemption from NEPA allows for the Administrator to exercise discretion in deciding whether “extraordinary circumstances exist with respect to the procedure,” such that the presumption of no significant environmental effect may be abrogated.  § 213(c)(1) and (2).  Thus, relevant comments on the new regulations would include an exhortation to the Administrator to expand the parameters of the “extraordinary circumstances,” from the already existing factors of increased fuel consumption, carbon dioxide emissions and noise, to include revision in flight paths that bring aircraft over communities not previously overflown, and which substantially lower altitudes over communities that are currently overflown.

Finally, and hopefully as a last resort, there remains recourse to other Federal statutes as a basis for court action.  A categorical exclusion under NEPA does not excuse FAA from complying with its obligations under other environmental statutes.

In short, what is critically important in the short run is: (1) a massive and focused campaign to convince our Congressional representatives that the public health and welfare should be as well protected as administrative “efficiencies;” and (2) a well-orchestrated set of comments on the regulatory revisions governing NextGen to take advantage of the loopholes in the Federal legislation.

California Airport Land Use Planning Handbook, October 2011, Hits the Streets

The California Airport Land Use Planning Handbook, October 2011 (“2011 Handbook”) was released this week. It supersedes the 2002 Handbook edition. The Handbook constitutes “guidance,” Cal. Pub. Util. Code § 21674.7, for Airport Land Use Commissions (“ALUCs”) in the determination of the scope of their jurisdiction over off-airport land uses as well as in the formulation of noise, overflight, safety and airspace protection policies, as mandated by Cal. Pub. Util. Code § 21670, et seq.

It is important to note at the outset, however, what a Handbook cannot do. First, it cannot grant to ALUCs the power to regulate airports, either in the air or on the ground. Those powers lie exclusively with the Federal Aviation Administration (“FAA”) and the local airport proprietor. Second, it cannot grant to ALUCs the final decision making power over off-airport land uses either. That power lies exclusively with local land use jurisdictions. What the Handbook can do is provide guidelines for the formulation of policies that bring to the attention of local land use policy makers the importance of “ensuring compatible land uses in the vicinity of . . . all new airport and in the vicinity of existing airports to the extent that the land in the vicinity of those airports is not already devoted to incompatible uses.” Cal. Pub. Util. Code § 21674(a).

As the 2011 Handbook’s girth exceeds 400 pages, and was issued only this week, the specific ways in which the 2011 Handbook addresses that charge will be the subject of a blog to appear shortly.
 

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”).
 

The first issue, that of standing, is jurisdictional in the Federal Appellate Courts. That is, if the petitioner cannot show, at the most basic level, that the challenged action caused injury to its own interests; that “the injury is fairly traceable to the challenged action,” Id. at * 2; and that a favorable decision by the court could likely redress, or remedy, that injury, the court does not have jurisdiction to hear the case.

The FAA disclaimed both causation and redressability. The Court held, however, that, while “FAA’s hazard determinations, by themselves, have ‘no enforceable legal effect,’” Id., quoting BFI Waste Systems v. FAA, 293 F.3d 527, 530 (D.C. Cir. 2002), in this case, the Department of Interior (“DOI”), the ultimate arbiter of whether the wind farm receives government approval, had “repeatedly assigned the FAA a significant role in the decision making process,” Id., by, among other things: (1) requiring Cape Wind Associates, the project sponsor, not begin construction until receipt of FAA’s final hazard determination; and (2) requiring that Cape Wind comply with all FAA proposed mitigation measures, even those imposed after the signing of the lease for the required property with DOI.

Ultimately, the Court held that “given Interior’s incorporation in the lease of all past and prospective mitigation measures proposed by FAA, its conditioning of initial construction on the final FAA decision, and its persistent attention to the safety mandate in its authorizing statute . . . we find it likely, as opposed to merely speculative that the Interior Department would rethink the project if faced with a FAA determination that the project posed an unmitigatable hazard.” Id. at * 5. Thus, the Court found the FAA’s action redressable by an order of the Court sending the project back to FAA for reanalysis using correct procedures, even if the results of the reanalysis were within the FAA’s discretion and might not be different than the original no hazard determination.

Perhaps most surprising is the Court’s analysis on the second issue. Using as a benchmark the FAA’s own Handbook, the Court found that the FAA had improperly relied on only one standard in the Handbook for determining a hazard, that set forth in § 6-3-8(c)1 which states: “A structure would have an adverse [aeronautical] effect upon VFR air navigation if its height is greater than 500 feet above the surface at its site, and within two statute miles of any regularly used VFR route.”

The Court then pointed to various other standards for determining whether a project would have an “adverse effect,” including those articulated in § 6-3-3. Finally, the Court found that the record was replete with evidence that the wind farm would have an “adverse effect” on Visual Flight Rule (“VFR”) operations, causing them to be re-routed, or to fly in closer proximity to the wind farm structures than the minimum 500 foot distance permitted by FAA regulation 14 C.F.R. § 91.119.

What distinguishes this case from most of its predecessors is the Court’s deviation from the traditional deference accorded to determinations by a government agency acting within the course and scope of its authority. The reason why the issue of deference did not arise is that, cannily, the petitioners did not pit their own experts’ opinions against those of the FAA, or engage in a “battle of the experts.” Instead, petitioners turned the Court’s attention to the FAA’s misapplication of its own guidance, and the study conducted by its own consultant, Mitre Corporation, for the proposition that numerous flights would be at an altitude of 1,000 feet or less over the area in which the turbines would be built, Id. at * 6, and that, once built, the flights would be at less than the 500 foot minimum altitude over the structures.

In summary, while the Court offered no guarantees that the FAA or DOI would eventually reach different conclusions, it opined that the evidence in the record showed “the project may very well be such a hazard,” Id. at * 7, and held the FAA to the “standard requirement of reasoned decisionmaking,” rather than “catapulting over the real issues and the analytic work required by the Handbook.” Id. Prospective petitioners can only hope that this analysis by the Court will guide it when faced with similar FAA deviations from its own guidance in the future.
 

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.
 

The concept behind the Whispertrack system is simple: to “give airports an intuitive, web based tool to manage and update their noise abatement procedures” (Esaassoc.com/Airports, Summer 2011 Aviation Rising), as well as to distribute the various noise abatement procedures to flight crews and aircraft operators throughout the entire national air transportation system.

 

The Whispertrack system distributes noise abatement procedures in much the same way as Instrument Flight Rule procedures are distributed today: through flight planning/dispatch services developed by companies such as Honeywell, Universal, flightplan.com, AIRNAV and others. In essence, Whispertrack establishes a technical process extending across all categories of noise abatement procedure, and is intended to transmit this information universally, so that noise abatement procedures developed painstakingly by cooperative processes between aircraft and airport operators, air traffic controllers, and communities won’t be ignored by failure to integrate them into the normal flight planning system.

Whether Whispertrack will remedy the frequent divergence of aircraft from established noise abatement procedures is yet to be established by the year old process. What is certain is that Whispertrack is a step toward eliminating the “nobody told me” defense that so often accompanies divergence from established noise abatement procedures, observance of which is so heavily relied upon by noise impacted communities.
 

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).

In Barnes, petitioners challenge the FAA’s environmental review of the proposed addition of a runway at Hillsboro Airport (“HIO”), a general aviation reliever airport for Portland International Airport (“PDX”), operated by the Port of Portland, and located in the adjacent City of Hillsboro, Oregon (“Project”). Specifically, petitioners challenged, among other things, the FAA’s decision to prepare only an Environmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”) not a full Environmental Impact Statement (“EIS”), which petitioners claim was necessary due to the potential environmental impacts of increased demand for HIO resulting from the addition of the runway.

First, expressing a view in contradiction with that a number of other Circuits, the court took issue with FAA’s consistent argument that “[T]he project will not have growth inducing effects on aviation activity.” Barnes, at 16285. The court pointed to the absence of any analysis in the EA of the new runway’s growth-inducing impacts. “The agencies are unable to point to anything in the record showing that they in fact considered the possibility that expanding HIO would lead to increased demand and increased airport operations,” Barnes, at 16281. The court, therefore, relied on FAA’s statement in the administrative record that “a new runway is ‘the most effective capacity enhancing feature an airfield can provide.’” Barnes, at 16281. In the absence of hard analysis establishing the lack of growth inducing impact, the court declined to take FAA’s “word for it and not question their conclusory assertion in the EA that a new runway would not increase demand.” Barnes, at 16285.

Second, the court declined to grant the “significant deference that courts give aviation activity forecasts actually performed by the FAA.” Barnes, at 16285-86. While the court agreed that “when it comes to airport runways, it is not necessarily true that ‘if you build it they will come,’” Barnes, at 16286, quoting National Parks and Conservation Association v. United States Department of Transportation, 222 F.3d 677, 680 (9th Cir. 2000), it would not grant deference because FAA “failed to conduct a demand forecast based on three, rather than two, runways.” Barnes, at 16287.

The court, apparently realizing the groundbreaking nature of its decision, then proceeded to narrow the decision’s scope. It reconciled seemingly contradictory opinions in Seattle Community Federation v. FAA, 961 F.2d 829, 835 (9th Cir. 1992) [“[R]emand to the FAA was unnecessary although the FAA did not consider the impacts of an expected increase in air traffic after changes in flight patterns were implemented,” Barnes, at 16288], and Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 580 (9th Cir. 1998), [“[T]he FAA did not have to consider the impacts of an increase in air traffic resulting from a new flight arrival path because ‘the project was implemented in order to deal with existing problems . . .’”, Barnes, at 16288]. The court rationalized that unlike the flight patterns and flight arrival path at issue in Morongo and Seattle Community Council Federation, “this case involves a major ground capacity expansion project.” Barnes, at 16288.

The court then went on to further narrow the definition of “major ground capacity expansion project” and, thus, its ruling, by excluding “terminal improvement project[s],” City of Los Angeles, supra, 138 F.3d at 808; taxiway construction, Town of Winthrop v. FAA, 535 F.3d 1, 5 (1st Cir. 2008); and “improvements to an existing runway,” City of Olmsted Falls, Ohio v. FAA, 292 F.3d 261, 272 (D.C. Cir. 2002).

In summary, the Ninth Circuit has carved out a new, exclusive niche for projects that include construction of additional runways, because “our cases have consistently noted that a new runway has a unique potential to spur demand which sets it apart from other airport improvements like changing flight paths, improving a terminal or adding a taxiway . . .” Barnes, at 16288. Therefore, in the case of a runway addition, “[E]ven if the stated purpose of the project is to increase safety and efficiency, the agencies must analyze the impacts of the increased demand attributable to the additional runway as growth inducing effects . . .” Barnes, at 16289.

While we believe the court may have drawn a bright line demarcation between types of “major ground capacity expansion projects” where none exists in reality, Barnes constitutes a significant step toward recognition of the full complement of airport expansion impacts often ignored in FAA’s environmental analyses.
 

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).

The conventional wisdom is that the legislative proposal will meet stiff resistance in the House of Representatives, with a predominance of members wary of increased government regulation, and from helicopter trade groups such as the Helicopter Association International which has already expressed skepticism for such a “legislative fix.”

However, the legislative road may be less bumpy in the Senate, where only earlier this year Senator Charles Schumer of New York gained approval of an amendment to an FAA bill which would require the agency to adopt rules limiting helicopter noise over residential areas on Long Island.

Schumer’s, and now Berman’s, legislation may serve as the proverbial “camel’s nose under the tent” for communities subjected to frequent helicopter overflights. While both are geographically specific, and targeted at their own constituencies, both pieces of legislation may set a precedent for increased regulation of currently substantially uncontrolled helicopter overflight.
 

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.
 

Currently, to escape from these requirements, the project proponent must perform a “Conformity Applicability Analysis” to determine if the project’s emissions will fall below the de minimis emissions levels established in Environmental Protection Agency (“EPA”) regulation 93.153(c).

The FAA Reauthorization, if enacted, will allow FAA to avoid all of its Clean Air Act responsibilities, and implement airspace redesign procedures that, even if they meet the state goal of reducing delay and thereby reducing aircraft emissions alone, will also increase airport capacity. Increased capacity, or increased number of operations passing through the airport, will potentially give rise to increased emissions impacts not offset by the initial calculation of emissions savings from delay reduction permitted by the Amendment.

In short, FAA is determined to avoid the same legal hurdle it faced in implementing the massive East Coast Airspace Redesign (which is currently being partially redesigned as ineffective). In a challenge to that action, County of Rockland, New York, et al. v. Federal Aviation Administration, et al., United States Court of Appeals for the District of Columbia Circuit, Case No. 07-1363, numerous public and private entities, including Delaware County, Pennsylvania and the State of Connecticut contested, among other deficiencies, FAA’s total absence of compliance with the Clean Air Act’s conformity provision. The District of Columbia Circuit Court of Appeals confirmed the absence of compliance, but found it to be a “nonprejudicial error,” because FAA had, in the Final EIS, performed an analysis of purported emissions reductions resulting from alleged delay reductions from the project.

FAA does not want to take the chance that another court may view complete failure to comply with Congress’ detailed enactment in the Clean Air Act as nonprejudicial error, and may require, instead, scrupulous compliance. The most effective avenue at this point is to contact your Senatorial representative and ask them to delete the onerous earmark from the House version of the Reauthorization.
 

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.

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.

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.

The Administrator may exempt the sponsor from some or all of the requirements to: (1) use airport revenues only for airport related purposes; (2) pay back a portion of Federal grants upon the sale of the airport; (3) return airport property deeded by the Federal Government upon transfer of the airport. The Administrator is also authorized to exempt the private purchaser or lessee from the requirement to use all airport revenue for airport related purposes, to the extent necessary to permit the purchaser or lessee to realize a profit from operation of the airport.

In establishing the Pilot Program, Congress also placed limitations on the number and types of airports eligible to participate. Section 47134(d)(1) provides that if the applications of five airports are approved, at least one must be a general aviation airport. Section 47134(d)(2) provides that no more than one of the airports approved may be a large-hub airport (an airport with more than one percent of revenue passenger boardings in the U. S. in the prior calendar year on an aircraft in service in air commerce, as defined in 49 U.S.C. section 47102(10)).

FAA final approval of a privatization application is based on a number of conditions, including the private operator’s ability to ensure continued access to the airport on reasonable terms, continued safe operations, ensure continued maintenance and improvements, adequate security, mitigation of noise and environmental impacts, and to provide for the continued operation of the airport in case of the private operator’s bankruptcy or other default. Privatization must be approved by at least 65% of the air carriers serving the airport and air carriers whose aircraft landing at the airport during the preceding calendar year had a total landed weight of at least 65% of the total landed weight of all aircraft landing at the airport during that year.

Since the Pilot Program was implemented, nine airports have applied for privatization. Five have withdrawn or terminated their application. The four active applicants are: MDW; Gwinnett County Briscoe Field (Lawrenceville, GA); Louis Armstrong New Orleans International Airport (LA); and Louis Munoz Marin International Airport (San Juan, PR). With the approval of Chicago’s preliminary application, all applications from other large-hub airports will be placed on a standby list. One slot remains available for a non-large-hub or general aviation airport.

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%.

FAA may have pulled the trigger too quickly, however. On May 10, 2010, the Los Angeles City Council approved a motion to study the transfer of Ontario International Airport to the control of the City of Ontario (control that shifted to Los Angeles in 1967). As the City of Ontario has a strong interest in growth of Ontario International Airport as an economic engine for the currently economically moribund Inland Empire, the jury is still out as to whether Ontario will steal those passengers FAA now projects for LAX and John Wayne Airport. Stay tuned.

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.”

Notification

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

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

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

Contents of Notification

In particular, § 77.13 provides when the FAA needs to be notified of the “construction or alteration” of an object:

  • Any construction or alteration exceeding 200 ft above ground level
  • Any construction or alteration
    • within 20,000 ft of a public use or military airport which exceeds a 100:1 surface from any point on the runway of each airport with at least one runway more than 3,200 ft.
    • within 10,000 ft of a public use or military airport which exceeds a 50:1 surface from any point on the runway of each airport with its longest runway no more than 3,200 ft.
    • within 5,000 ft of a public use heliport which exceeds a 25:1 surface
  • Any highway, railroad or other traverse way whose prescribed adjusted height would exceed that above noted standards
  • When requested by the FAA
  • Any construction or alteration located on a public use airport or heliport regardless of height or location

Persons failing to comply with the provisions of FAR Part 77 are subject to Civil Penalty under Section 902 of the Federal Aviation Act of 1958, as amended and pursuant to 49 U.S.C. Section 46301(a).

FAA Determination

Once the FAA has completed an aeronautical study, a determination is made regarding the impact to air navigation. One of three responses is typically issued:

  1. No Objection - The subject construction did not exceed obstruction standards and marking/lighting is not required.
  2. Conditional Determination - The proposed construction/alteration would be acceptable contingent upon implementing mitigating measures (Marking & Lighting, etc.)
  3. Objectionable - The proposed construction/alteration is determined to be a hazard and is thus objectionable. The reasons for this determination are outlined to the proponent.

If at any time during the aeronautical study, the proposed alteration is determined to be a hazard, the study is halted with no further consideration and an objectionable determination is issued.

After the Determination, Then What?

The real issue comes after the FAA has made its determination. By congressional mandate, the FAA cannotprohibit any construction activities. Instead, the FAA evaluates the proposed construction, and as necessary, works with the proponent to mitigate any impact that may result, even if it finds the obstruction to be a hazard and to be objectionable. A good case in point, again, comes from Las Vegas, where the Stratosphere Tower, completed in 1996, and the second-tallest structure west of the Mississippi River. When the Stratosphere was proposed, the FAA said it would present a hazard for air traffic control. But the tower was built anyway. And now, air traffic controllers account for the Stratosphere when guiding incoming and outbound traffic using Las Vegas McCarran’s north-south runway.

Instead, to make up for the lack of veto power, the FAA depends on collaboration with local jurisdictions to reduce conflicts between new structures and airspace. However, many local jurisdictions are loathe to enact laws that would restrict the height of buildings, even around airports due to fear of a “takings” lawsuit.

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.

 

 

The Grant Assurances primarily relevant to a proposed Airport closing or “deactivation” and reuse for non-aviation purposes are as follows. First, you, the airport sponsor, may not “sell, lease, encumber, or otherwise transfer or dispose of any part of its title or other interests in the property ... for the duration of the terms, conditions, and assurances in the grant agreement without approval by the Secretary [of Transportation].” See, e.g., Grant Assurance C.5.b. FAA regulations expand on this requirement. All of the land shown on Exhibit A to each grant constitutes the airport property obligated for compliance under the terms and covenants of the grant agreements. FAA Order 5190.6B. The airport sponsor is obligated to obtain FAA consent to delete any land so described and shown. Id. FAA consent shall be granted only if it is determined that the property is not needed for present or foreseeable public airport purposes. Id. Accordingly, if the airport sponsor’s Airport deactivation planning includes the sale, lease, encumbrance, or other transfer or disposition of its interests in the Federally obligated property, it: (1) must first obtain approval from the Secretary; by (2) establishing that the land to be alienated is no longer “needed” for public airport purposes.

Second, the airport sponsor is obligated to “suitably operate and maintain the airport and facilities. . . Any proposal to temporarily close the airport for nonaeronautical purposes must first be approved by the Secretary . . . [the Sponsor] will not cause or permit any activity or action thereon which would interfere with its use for airport purposes.” See, e.g., Grant Assurance C.19.a. This obligation to maintain the Airport includes the responsibility to operate the aeronautical facilities and common use areas for the benefit of the public. FAA Order 5190.6B, p. 2-15. Therefore, the airport sponsor “is more than a passive landlord of specialized real estate,” and has a continuing obligation to operate and maintain the Airport facilities. Id. For this reason, the airport sponsor may not cease to operate the airport prior to obtaining a release of its Grant Assurances from the FAA.

Third, “[f]or land purchased under a grant for airport development purposes (other than noise compatibility), [the airport sponsor] will, when the land is no longer needed for airport purposes, dispose of such land at fair market value or make available to the Secretary [of Transportation] an amount equal to the United States’ proportionate share of the fair market value of the land.” See, e.g., Grant Assurance 31.b.1. The United States’ share will either be reinvested in the national airport system or be deposited in the Aviation Trust Fund. Accordingly, the airport sponsor must either dispose of the land obtained with Federal grant funds at fair market value, paying a proportionate share to the Secretary, or make that proportionate share available to the United States without disposing of the property. Therefore, whether the airport sponsor chooses to dispose of the property purchased with Federal funds, maintain it for a public purpose other than aviation, or use it for non-public purposes, the airport sponsor must repay a proportionate share of the current fair market value of the land to the Federal government. There is no longer any limit on the duration of the terms, conditions, and assurances regarding real property acquired with Federal funds. [See, Grant Assurance B.1; FAA Order 5190.6B, p. 2-14] 

Federal regulations distinguish between the treatment of grants for the purchase of real property and those for airport development or improvement purposes. With respect to facilities developed or equipment obtained with Federal funds, the Assurances remain in effect for the useful life of the facilities developed or equipment acquired [See Grant Assurance B.1; FAA Order 5190.6B, p. 2-13], although this period may not exceed twenty (20) years from the date the grant offer was accepted. Id. 

In summary, deactivation of the Airport would require approval by the Secretary of Transportation and payment of the FAA’s proportionate share of the FMV of all real property acquired with Federal funds, as well as coordination with the FAA with respect to the disposition of grants made for airport development or improvement.

2.            Federal Regulations Allow the Release of the Airport Sponsor’s Obligations under the Grant Assurances.

Despite the seemingly unequivocal requirements of the Grant Assurances, the FAA has established procedures that allow the release, modification, reformation or amendment of airport agreements, including grant agreements, under certain prescribed circumstances. Specifically, “[w]ithin the specific authority conferred upon the Administrator by law, the FAA will, when requested, act to release, modify, reform, or amend any airport agreement to the extent that such action will protect, advance, or benefit the public interest in civil aviation.” FAA Order 5190.6B Section 22.31 (emphasis added). The FAA may grant relief from specific limitations or covenants of an agreement, or grant a complete and total release which authorizes the subsequent disposal of obligated airport property. Id. The FAA’s release may apply to specific facilities and parcels of land acquired with Federal assistance, which ultimately results in a partial airport closure, or disposal of an entire airport.

                a.            Deactivation, or Permanent Closure of the EntireAirport.

An airport sponsor may request the release of obligations for an entire airport. FAA Order 5190.6B, Section 22.20. ARP-1's concurrence is required before granting any release that would enable the disposal of an entire airport for non-aviation purposes. Moreover, each request to release an entire airport is considered by ARP-1 on a “case-by-case” basis without limitation to the guidance in FAA Order 5190.6B. In other words, the terms under which deactivation is allowed are expressly left to the complete discretion of ARP-1.

                                1.            Constraints on ARP-1' s Discretion.

Clearly, however, ARP-1's discretion is not unlimited. It will be guided, at least to some extent, not merely by the Grant Assurances, as set forth above, but also by applicable parallel Federal regulations and procedures. For example, where a release is sought to permit sale and disposal of land purchased with grant funds, apparently including deactivation, it must be demonstrated at minimum that (1) the land is no longer “needed” for airport purposes; and (2) the airport will repay that portion of the property’s FMV proportionate to the Federal Government’s share of the cost of the acquisition of such land, which sum is to be deposited in the Aviation Trust Fund. FAA Order 5190.6B, Section 22-19.

                                2.            Procedural Requirements.

Generally, the request for release must: (1) be in writing and signed by a duly authorized official of the airport owner [FAA Order 5190.6B, Section 22.23]; and (2) be specific, including the facts and circumstances justifying the request [FAA Order 5190.6B, Section 22.24]. The FAA will take into consideration factors such as: (1) the past and present owner’s compliance record under all its airport agreements and its actions to make available a safe and usable airport for maximum aeronautical use by the public; (2) evidence that the owner has taken or agreed to take all actions possible to correct noncompliance situations at the airport, if applicable; (3) the reasonableness and practicality of the owner’s request in terms of aeronautical facilities which are needed and the priority of need; (4) the net benefit to be derived by civil aviation and the compatibility of the proposal with the needs of civil aviation; and (5) consistency with the guidelines for specific types of releases. FAA Order 5190.6B, Section 22.27.

                                3.            Applicable Policy Determinations.

Moreover, the FAA must also make at least one of several policy determination, those potentially applicable here include that: (1) the public purpose which a term, condition, or covenant of an agreement, or the agreement itself, was intended to serve is no longer applicable; or (2) the release, modification, reformation, or amendment of an applicable agreement will not prevent accomplishment of the public purposes for which the airport or its facilities were obligated, and such action is necessary to protect or advance the interest of the United States in civil aviation; or (3) the release, modification, reformation or amendment will conform the rights and obligations of the owner to the statutes of the United States and the intent of Congress consistent with applicable law. FAA Order 5190.6B, Section 22.28.

                b.            Treatment of Airport Improvements Other than Land.

Finally, where a release is sought to abandon, demolish or convert grant-funded improvements, other than land, the FAA must find that: (1) the grant agreement involved has expired; or (2) the facility in question is no longer needed for the purpose for which it was developed; or (3) the useful life of the facility in question has expired

Despite the inherently discretionary nature of FAA regulations governing deactivation, it seems clear that, for real property they require, at a minimum: (1) repayment of a sum (some proportion of the current FMV of the real property purchased with FAA funds) which is substantially in excess of the original amount of the FAA Grants, but which can theoretically be obtained through resale or development of the Airport property; and (2) successful argument that the deactivation will benefit the National Air Transportation System, which can be based upon the substantial benefit to be derived from the airport sponsor’s deposit in the Aviation Trust Fund of the sum required to compensate the FAA for deactivation, which can then be used for the development and improvement of other airports in the system.

3.            Conclusion

The deactivation of an airport is not impossible, but it is tricky and complex due to the fact that most airports have accepted federal funds to keep the airport operating safely. This post should not be used as an exhaustive “how-to” on closing an airport, and it would behoove airport sponsors contemplating closure to consult with an attorney who is cognizant of the complex and often confusing regulations surrounding airports and grant assurances.

 

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.

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.

 

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.

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:

 

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:

 

 

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.
 

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:

 

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.

 

Integrated Next Generation Air Transportation Implementation Plan

Revises section 202, which requires the FAA’s Joint Program Development Office (“JPDO”) to develop an Integrated Work Plan that will outline the activities required by partner agencies to achieve Next Generation Air Transportation System (“NextGen”). The manager’s amendment requires the JPDO to include “a description of potentially significant operational or workforce changes” resulting from NextGen as part of the Integrated Work Plan.

DOT IG Review of Operational and Approach Procedures by a Third Party

Revises section 208, which requires the Department of Transportation Inspector General (“DOT IG”) to assess the FAA’s reliance on third parties (as opposed to FAA Aviation Safety System technicians) for development of new operational and approach procedures and determine the FAA’s ability to provide oversight. The manager’s amendment clarifies that the DOT IG is to examine third party developed “public use” (developed by FAA for use by all users) procedures in addition to special use (customized proprietary procedures for the use of one user or shared among several users) procedures. In addition, the manager’s amendment requires the DOT IG to assess whether sufficient mechanisms and staffing are in place to provide safety oversight functions that may include: “quality assurance processes, flight checks, integration of procedures into the NAS and operational assessment of procedures developed by third parties.”

Flight Attendant Fatigue Study

Revises section 306(e) regarding the flight attendant fatigue study to clarify the scope of the study.

Improved Voluntary Disclosure Reporting (“VDRP”) System

New section 336 requires the FAA to modify the VDRP system to require inspectors to verify that air carriers have implemented comprehensive solutions to correct underlying causes of voluntarily disclosed violations, and confirm, before approving a final report of a violation, that the violation or another violation occurring under the same circumstances has not been previously discovered by an inspector or self disclosed by an air carrier. This section also requires the Comptroller General to study the effectiveness of the VDRP program.

Airport Plans for International Flights

This provision revises section 406, which requires airports to create an emergency plan to assist in deplanement of passengers following excessive delays. The manager’s amendment adds an additional requirement that an airport used by an air carrier or foreign air carrier for flights in foreign air transportation provide for use of the airport’s terminal, to the maximum extent practicable, for the processing of passengers arriving at the airport on such a flight in the case of an excessive tarmac delay.

Passenger Rights Enhancement

Revises section 406 to require air carriers to include on internet websites and electronic tickets or boarding passes the hotline number established by section 42303, and the email, phone number and address for the Department of Transportation’s (“DOT”) Aviation Consumer Protection Division and the air carrier.

Use of Insecticides in Passenger Aircraft

Revises section 406 to require the Secretary under subsection (a) to establish and make available to the public a list of countries that require an air carrier to treat aircraft passenger cabins with insecticides prior to the flight or to apply an aerosol insecticide when the cabin is occupied with passengers. Subsection (b) requires an air carrier, foreign air carrier, or ticket agent selling in the United States, air transportation for a flight to a country listed on the website created under subsection (a) to disclose, on its own website or through other means, that the destination country may require the air carrier or foreign air carrier to treat aircraft passenger cabins with insecticides prior to the flight or to apply an aerosol insecticide when the cabin is occupied with passengers, and refer purchasers to the website specified in subsection (a) for additional information.

Advisory Committee for Aviation Consumer Protection Extension

Revises section 419, which requires the Secretary to establish an advisory committee for aviation consumer protection. The manager’s amendment requires the Advisory Committee to report annually on its recommendations. Current law only requires a report in each of the first two calendar years of establishment of the Advisory Committee.

Compensation for Delayed Baggage

New section 421 directs the Comptroller General to study delays in the delivery of checked baggage to air carrier passengers and making recommendations for establishing minimum standards to compensate a passenger in the case of unreasonable delays, taking into consideration that many carriers are charging additional fees for checked baggage. The report must be submitted within 180 days of the date of enactment.

Antitrust Exemptions

New section 424 requires the Comptroller General to conduct a study of the legal requirements and policies followed by the DOT in deciding whether to approve international alliances and grant exemptions from the antitrust law in connection with alliances. Details the issues that the Comptroller General should examine in the study including whether granting exemptions in connection with international alliances has resulted in: public benefits, reduced competition, increased prices in markets, or other adverse effects. The report is due one year after the date of enactment. This section sunsets existing grants of antitrust immunity related to international alliances on or before the last day of the three-year period beginning on the date of enactment unless the exemption is renewed by the Secretary. The Secretary may not renew an exemption before the date on which the Secretary issues a written determination under subsection (d); any such renewal will be based on the policies in effect at that time.

Airport Noise Compatibility Planning Study, Port Authority of New York and New Jersey

Revises section 513 to add Newark Liberty Airport to the Sense of the House of Representatives that the Port Authority of New York and New Jersey should undertake an airport noise compatibility planning study for LaGuardia and JFK Airports.

GAO Report on Record of Decision

New section 514 requires the Comptroller General to conduct a study to determine whether the FAA and the Massachusetts Port Authority are complying with the requirements of the FAA’s record of decision dated August 2, 2002, involving the construction of runway 14/32 at Logan International Airport.

FAA Technical Training and Staffing Study

Revises section 603 to ensure that the National Academy of Sciences consults with the exclusive bargaining representative of the FAA systems specialist employees when conducting the study.

Designee Program

Revises section 604 to require the Comptroller General to also provide an assessment of the FAA’s organizational delegation/designee programs and determine whether the FAA has sufficient monitoring and surveillance programs in place to properly oversee them.

Safety Critical Staffing

Revises section 606 to broaden the provision to apply to the FAA’s Aircraft Certification Service, as well as the FAA’s Flight Standards Service. The amendment also specifies the funding levels authorized in subsection (b) for staffing cost increases, and to allow for the same level of staffing over FYs 2010-2012. Also, “safety critical positions” are defined to include aviation safety inspectors, safety technical specialists, and operations support, manufacturing safety inspectors, and pilots.

Consolidation and Realignment of FAA Facilities

Revises section 807 to modify the membership of the working group to include only the Administrator of the FAA and 2 representatives from: air carriers; general aviation community; labor; and the airport community.

Helicopter Operations over Long Island, New York

Revises section 818 to include Staten Island, New York, in the study of helicopter noise.

Impact of Wind Turbines on Radar Signals

Revises section 823 to include the Department of Agriculture in the list of agencies to consult, and to direct the Administrator to consider the impact of the operation of wind turbines, individually and in collections, on radar signals and evaluate the feasibility of providing quantifiable measures of numbers of turbines and distance from radars that are acceptable. The manager’s amendment also requires that a final report be sent to the House Agriculture Committee and the Senate Committee on Agriculture, Nutrition and Forestry as well as the other committees listed in section 823.

Wind Turbine Lighting

New section 824 directs the Administrator to study: the effect of wind turbine lighting on residential areas; safety issues of alternative lighting strategies, technologies, or regulations; potential energy savings; feasibility of implementing alternative lighting strategies or technologies; and any other wind turbine lighting issues. The FAA is responsible for evaluating the effect structures over 200 feet have on the National Airspace System. In the past, considerable research was done to determine the minimum marking and lighting options that ensured an acceptable level of safety in air navigation. In recent years, new technologies and environmental considerations have changed, supporting the need for a new study to evaluate marking and lighting systems. The report is due to Congress within 180 days of the date of enactment.

Limiting Access to Flight Decks of All Cargo Aircraft

New section 825 requires the FAA, within 180 days of the date of enactment, to identify a physical means, or a combination of physical and procedural means, of limiting access to the flight decks of all-cargo aircraft to only authorized flight crew-members. The final report must be submitted to Congress within one year of the date of enactment. Many all-cargo aircraft do not have a fortified cockpit door or other barrier that limits access to the flight deck, and have limited ground security procedures.

U.S. House Transportation & Infrastructure Committee Holds Hearings on FAA Reauthorization Bill

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.

Written Testimonies:

Panel 1:

  • The Honorable Mike Thompson M.C., California 1st District (no written testimony provided)

Panel 2:

Panel 3:

Panel 4:

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:

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.


Although the Federal Register notice states that the ROD is available on the FAA's website, as of the posting of the article it was not.  The Airport's website does have a copy of the unsigned, undated ROD, along with the appendices, which includes responses to the comments that the FAA received.  N.b., since the ROD on the Broward County site is unsigned and undated, we calculated the 60 days based on the letter sent from the FAA to Broward County that indicates that the FAA does not consider the ROD "published" until the announcement appears in the Federal Register.

 

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:

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.

 

The FAA notes that are eleven projects in the planning or environmental stage at the largest airports including:

In addition, the FAA states that three airport proprietors have planning studies underway to examine how their metropolitan areas will accommodate future demand for aviation.  They include (1) Chicago, (2) Atlanta, and (3) San Francisco.  Thus, expanding airports play a large role in the FAA's Flight Plan to increase capacity.

The FAA also plans on addressing the environmental issues associated with capacity enhancements.  It targets two issues in this area:  (1) reducing the number of people exposed to significant noise by 4 % through FY 2013, as measured by a three-year moving average; and (2) improve aviation fuel efficiency by another 1% over FY 2008 level through FY 2009, and 1% each subsequent year through FY 2013 to 11%.  While these goals are laudable, the FAA does not offer much in terms of specific programs to reach the goals.  The only specific program it mentions is working with several airports (Los Angeles, San Diego, Louisville, Charleston, and Atlanta) to implement Continuous Descent Arrival for night operations.  The rest of the FAA's initiatives center around research, developing standards, and "implementing management systems."

In the end, FAA is relying heavily on its rollout of the NextGen system to meets its goals, especially with regard to safety.  The FAA believes that NextGen will allow it to transition "from air traffic control to air traffic management."

Other new articles about the FAA's Flight Plan:

 

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.