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 Bill Approves Package Delivery by Drone

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

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

First, each carrier of property will be required to obtain a “Small Unmanned Aircraft System Air Carrier Certificate” which must include:  

A. Consideration the unique characteristics of highly automated unmanned aircraft systems; and
 
B. Minimum requirements for safe operations, including
 
(i) Confirmation of airworthiness;
 
(ii) Qualifications of operators; and
 
(iii) Operating specifications.
 
In addition, the FAA Act requires a process for issuance “that is performance based and ensures required safety levels are met.”  Section 44812(b)(2).  Specifically, the Bill requires the certification process to consider:
 
A. The safety risks of operating UAS around other UAS and over persons and property on the ground;
 
B. Competencies and compliance” of manufacturers, operators, and parts manufacturers of UAS; and
 
C. Compliance with requirements established in other sections of the legislation.
 
Finally, the legislation establishes a “small unmanned aircraft system air carrier classification” to “establish economic authority for the carriage of property,” Section 44812(b)(3), which only requires registration with the Department of Transportation, and a valid Small Unmanned Aircraft System Air Carrier Certificate issued pursuant to the legislation.  
 
Clearly, there is much more involved in assessing the readiness of UAS to transport packages over inhabited areas.  Only the final rule will reveal the full scope of the regulation that may be necessary to monitor and control a proliferating industry.