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

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

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

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

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

California State Lawmakers Move to Regulate Drones

California legislators are taking advantage of the continuing absence of federal regulation of unmanned aircraft systems (“UAS” or “drones”), and the provisions of the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FMRA”), allowing state and local governments to regulate drone operation in the absence of federal regulation.  Between the start of the new California legislative session, through February 27, 2015, the last day for Bills to be submitted, legislators introduced five Bills.  The most comprehensive of these is AB37, introduced by Assemblymember Campos, and referred to the Assembly Committee of Public Safety, Civil Procedure and Privacy.

AB37 would prohibit most public agencies from using drones, with the exception of law enforcement agencies using them to achieve the core mission of the agency, as long as the purpose is unrelated to the gathering of criminal intelligence.  In addition, even where permitted, the agency would be required to give notice of its intent to use a drone; would generally be prohibited from dissemination under the California Public Records Act, Cal. Gov. Code § 6250, et seq., of images, footage and/or data collected, if disclosure would endanger the safety of a person involved in the investigation; and would be further required to permanently destroy the records within one year.   Finally, unless authorized by federal law, AB37 would prohibit a person or entity, including a public agency, from equipping or arming a drone with a weapon or other device that may be carried by, or launched from, a drone that is intended to cause bodily injury, death, or damage to real or personal property.  (A largely identical Bill, except for a provision prohibiting reimbursement of costs to a local agency or school district, was introduced by Assemblymember Quirk and referred to the same Committee. )

While AB37 is largely aimed at regulating the use of drones by public agencies, complimentary legislation, SB142, introduced by Senator Jackson and referred to the Senate Judiciary Committee, and SB271, introduced by Senator Gaines and referred to the Committee on Public Safety, seek to supplement existing law governing private conduct.  SB142 extends the existing liability imposed for physical invasion of privacy, where a person knowingly enters onto the land of another without permission or otherwise commits a trespass in order to capture any image or recording of the plaintiff engaging in a private activity, and the invasion is offensive to a reasonable person.  In addition, SB142 would define intentional entry upon the land of another also to include operation of a drone below the navigable airspace overlaying the property, and would extend liability for wrongful occupation of real property and damages to a person who, without permission, operates a drone below the navigable airspace.  
 
SB271, in turn, would create a new violation of law for the operation of a drone on or above the grounds of a public school providing instruction in Kindergarten or grades 1-12, inclusive, and would provide for a fine of no more than $150 for the first violation, and no more than $500 for each subsequent violation.  
 
Finally, apparently recognizing the need for a more comprehensive approach, AB14, introduced by Assemblymember Waldron and referred to the Assembly Committee on Transportation, would create an “Unmanned Aircraft Task Force.”  Its purpose would be to formulate a comprehensive plan for state regulation of drones.  The Task Force would be required to submit, among other things, a comprehensive policy draft and suggested legislation pertaining to drones to the Legislature and the Governor on or before January 1, 2018.  The Bill would also provide that these provisions are repealed on January 1, 2022.  
 
While distinguishable, each of these pieces of legislation appears to have the same basic rationale – to ensure that drone operation does not violate Constitutional privacy or self-incrimination protections, and to protect the public from indirect use of deadly force through the use of a drone.  The “jury” remains out on whether any or all of these measures will be enacted in their original forms; or, if they are, whether they will ultimately be in conflict with the terms of yet to be completed federal regulation, thus triggering a battle over the preemptive authority of federal law.  Stay tuned.  
 

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.

 

FAA Weighs in on the Regulation of "Model Aircraft"

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

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

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

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

FAA has defined the terms in accordance with the ordinary meaning reflected in the Merriam-Webster Dictionary definition of “hobby” [“pursuit outside one’s regular occupation engaged in especially for relaxation”], and “recreation” [“refreshment of strength or spirit after work”] [emphasis added].  On that basis, FAA unequivocally asserts that neither “commercial operations” [an aircraft operated by a “person who for compensation or hire engages in the carriage by aircraft in air commerce of persons or property,” 14 C.F.R. § 1.1], nor flights that are in furtherance or are incidental to a business, are for hobby or recreational purposes, and, thus, fall outside the definition of “model aircraft.”  FAA asserts its authority under 14 C.F.R. Part 91 to govern those flights that are for business purposes but do not involve common carriage.  Obviously, the FAA’s interpretation would foreclose from the definition of “model aircraft” any aircraft used in return for compensation or the prospect of compensation.

Even if a model aircraft meets the definition in FMRA § 336(d), it will not automatically be exempt from FAA regulation.  In addition, it must meet the following five factors set forth in FMRA § 336(a)(1)-(5): (1) the aircraft is flown strictly for hobby or recreational use (the same factor as contained in the underlying definition); (2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization; (3) the aircraft is limited to not more than 55 lbs. unless otherwise certified through a design, construction, inspection, flight test and operational safety program administered by a community-based organization; (4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and (5) when flown within five miles of an airport, the operator of the aircraft provides the airport operator and airport traffic control tower with prior notice of the operation. 

FAA interprets the “community-based” set of standards requirement, consistently with the Congressional history of FMRA, to include a “comprehensive set of safety guidelines” established by a “membership based association that represents the aeromodeling community within the United States; [and] provides its members a comprehensive set of safety guidelines that underscores safe aeromodeling operations within the National Airspace System and the protection and safety of the general public on the ground.”  U.S. House of Representatives, FAA Modernization and Reform Act, Conference Report (to Accompany H.R. 658), 112 H. Rpt. 381 (Feb. 1, 2012). 

The requirement that the model aircraft weigh 55 lbs. or less refers to the weight of the aircraft at the time of the operation, not the weight of the aircraft alone.  This limitation is for the purpose of avoiding the situation in which an aircraft could be weighted down with equipment and still meet the 55 lbs. standard.  79 Fed.Reg. 36174 (although the 55 lbs. standard may be exceeded if it meets certain requirements set forth in § 336(a)(3)). 

Finally, FAA is not merely a paper tiger with respect to enforcement of these rules, even where model aircraft meet all the requirements for an exemption, and even where an exemption is applicable.  FAA interprets FMRA to require compliance by model aircraft of rules applicable to all aircraft in general, incorporating: (1) how the aircraft is operated (including the dropping of objects so as to create a hazard to persons or property, 14 C.F.R. § 91.13-15); (2) operating rules for designated airspace (to minimize risk of collisions, 14 C.F.R. § 91.126-35); and (3) special restrictions such as temporary flight restrictions and notices to airmen (NOTAMs) (to accommodate unique and unexpected obstacles to operation, 14 C.F.R. § 91.137). 

FAA interprets its enforcement power to derive not only from FMRA § 336 itself [“Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system,” § 336(b)], but also from its existing statutory authority “to prescribe regulations to protect people and property on the ground,” 49 U.S.C. § 40103(b)(2); see also 14 C.F.R. § 91.119 governing the altitude of aircraft over populated areas.

In short, there can be no mistake that both the Congress and the FAA regard “model aircraft” as “aircraft,” potentially exempt from specific operating rules under specified circumstances, but not exempt from the safety rules governing all “aircraft” using the NAS.  UAS operators seeking to take refuge behind the denomination of “model aircraft” will do well to seek an exemption under FMRA § 336(a)(1)-(5), and to operate in a manner consistent with FAA general rules governing aircraft safety and the protection of the airspace system and people and property on the ground, or expose themselves to lengthy and expensive enforcement actions that can be avoided with careful scrutiny and understanding of operant law and regulation. 

The public may submit comments identified by Docket No. FAA-2014-0396 on or before July 25, 2014 as set forth in 79 Fed.Reg. 36172.

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

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

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

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

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

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

FAA Changes the Rules for National Environmental Policy Act Review

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

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

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

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

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

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

FAA 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.
 

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.