Aviation and Airport Development Law : Aviation Lawyer & Attorney : Chevalier Allen & Lichman Law Firm : Airport Development, Environmental Law

FAA Safety Reforms Finally Going to Senate. --- Jerry Zremski, The Buffalo News, February 11, 2010
A week of the U.S. Senate floor time will be scheduled in March for the Federal Aviation Administration reauthorization bill, including its safety provisions. Several of the provisions address concerns that the National Transportation Safety Board listed last week as part of its investigation into the crash of Continental Connection Flight 3407 near Buffalo, New York, last year. The bill would raise pilot-training standards and set requirements for the airlines’ remedial training programs, as well as mandate other increased safety initiatives. Senate Majority Leader Harry Reid finally made the commitment to move the FAA bill up by six months because the Senate has passed its version of health care reform, which had kept it occupied for months, and because the latest in a series of short-term extensions of the FAA bill is set to expire March 31.
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Senate FAA Reauthorization Bill Expected to Finally Move in March! --- Rotor News, February 12, 2010
Senator Charles E. Schumer has persuaded Senate leadership to move ahead with the Federal Aviation Administration reauthorization bill in March. FAA authorization and safety reforms will be considered over the course of a week, though it is unknown if the Senate Finance Committee will mark up the bill before it goes to the Senate floor for debate.
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FAA Reauthorization and Rule Changes to See Debate in March. --- Glenn Pew, AVweb, February 12, 2010
A week of Senate floor time will be scheduled in March to address aviation safety reforms and the Federal Aviation Administration reauthorization bill. The FAA reauthorization bill has been through several short-term extensions which are set to expire March 31. The bill’s current provisions address pilot safety standards and set requirements for remedial training programs for commercial carriers, as well as call for independent study of pilot fatigue research to be considered in new flight-time and duty-time rules for pilots. The House already passed its version of the reauthorization bill but it is considered more stringent than the bill the Senate has proposed, and whatever the Senate passes will have to be merged with the House bill by a House-Senate conference committee.
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Airport to Conduct Study on Wildlife Hazards for Planes. --- Eve Byron, Independent Record, February 12, 2010
Helena Regional Airport in Montana is undertaking a wildlife hazard assessment over concerns about the potential of a devastating collision between birds and airplanes. The one-year study, paid for with $125,000 from the Federal Aviation Administration, will look at birds, deer, elk, and other wildlife that could cause problems at the 13,050-acre airport. A qualified airport wildlife biologist will be hired to complete the study and that person will also look at wildlife habitats in and around the airport, and may be able to make suggestions, like changing flight patterns if birds are a problem.
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A Year After Fatal Regional Airline Crash, Claims of Safety Progress Questioned. --- Joan Lowy, Associated Press, February 11, 2010
Little has been done in the year since the crash of a regional airliner near Buffalo, New York. The Federal Aviation Administration has failed to require improved airline safety on key fronts, like addressing the tiring long-distance commutes of many regional companies’ pilots, despite claims to the contrary. The National Transportation Safety Board, the Transportation Department’s inspector general, and even members of Congress are questioning the FAA’s so-called progress and complain that the agency has bent to industry pressure to delay or weaken new requirements before they are proposed.
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Critics Say Airline Safety Changes Coming Too Slowly. --- David Dykes, Greenville Online, February 12, 2010
The crash of Continental Connection Flight 3407 near Buffalo, New York highlighted several safety lapses, but it is unlikely that change is quickly forthcoming. Regulators in the past have taken years to adopt new regulations, and it will take federal legislation to resolve differences in pilot qualifications and airline safety management programs among commuter airlines and larger carriers to create two levels of safety for the flying public. After a thorough investigation of the crash the National Transportation Safety Board made several recommendations to the Federal Aviation Administration, but the Transportation Department’s Office of Inspector General found that the FAA’s progress in implementing any measures has been slow.
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FAA Still in Lubbock Testing ILS. --- Katie Bauer, KCBD, February 12, 2010
The Federal Aviation Administration’s technical teams have been testing the instrument landing system at Lubbock International Airport in Texas, where flights have been cancelled or delayed for more than a week, due in part to weather but mostly to the instrument landing system. The FAA is trying to pin point the problem and believe some sort of radio interference is responsible. They have made test flights and had crews on the ground from the FAA and Federal Communications Commission monitoring the approach path and surrounding area, listening for potential sources of radio or electronic interference.
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Clear Weather Helps FAA Fix ILS. --- Melinda Alvarado, Fox 34, February 13, 2010
Clear blue skies are helping the Federal Aviation Administration investigate the instrument landing system problems at LubbockInternationalAirport. The Federal Communications Commission and the City of Lubbock partnered with the FAA and found that a handful of power poles and a sub-station north of the airport were emitting intermittent but significant radio frequency energy that was causing the problems. The FAA said the ILS is now reporting properly though it is limited in service, and if weather is good, the agency is hopeful problems will be nonexistent.
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New Runway at Charlotte Douglas Could Save Travelers Valuable Time. --- WSOCTV.com, February 12, 2010
With the new runway at CharlotteDouglasInternationalAirport in Charlotte, North Carolina becoming fully operational Friday, February 12, up to three planes can now land at once. The option is valuable because it will save airlines tens of millions of dollars in substantially lowering the number of delays, and might even save time for air travelers. Another positive is that an airport that can handle more passengers as well as endure fewer delays could also entice businesses to relocate.
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Airline On-Time Performance Improves in 2009 as Rate of Mishandled Baggage Increases. --- eNews Park Forest, February 13, 2010
According to the Air Travel Consumer Report recently released by the Department of Transportation, the nation’s largest airlines had an on-time performance rate in 2009 that was their best since 2003, but the carriers’ rate of mishandled baggage last year was the lowest recorded since 2004.
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Algae to Solve Pentagon’s Jet Fuel Problem. --- 2012 Changes are Now, February 14, 2010
The Defense Advanced Research Projects Agency (DARPA) at the Pentagon says it is just months away from producing a jet fuel made from algae. DARPA’s research projects have extracted oil from algal ponds at a cost of $2 per gallon, and it is now on track to begin large-scale refining of that oil into jet fuel at a cost of less than $3 a gallon. Unlike corn-based ethanol algal farms do not threaten food supplies, and the innovation represents a boon for the military, the nation’s single largest consumer of energy, as well as holding the promise of low-carbon driving and flying for all.
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MichiganRegionalAirport Radar Merger Draws Fuss. --- Associated Press, February 14, 2010
The Federal Aviation Administration is looking to consolidate radar operations at four regional airports at Kalamazoo/Battle Creek International Airport, but the decision is being questioned by the National Air Traffic Controllers Association. An NATCA spokesperson told the Grand Rapids Press that representatives of the air controllers group met with pilots at GeraldFordInternationalAirport in Grand Rapids, saying they want to pressure lawmakers to give them a say in discussions on the consolidation, which is expected to occur about a year from now.
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Alternative Plans Made for Airport. --- Cassandra Shofar, The News-Herald, February 15, 2010
Cuyahoga County, Ohio commissioners are working on runway extension alternatives more than a year after the Cuyahoga County Airport master plan was approved. The Federal Aviation Administration asked the airport to come up with an immediate alternative that addresses runway safety area issues, but the airport continues to support and believe that it has the justification for an extension as part of a long-term plan. Proponents argue the extension would make the airport safer for pilots and note that the plan would not require any residential land to be acquired, but critics fear increased air traffic and decreased safety, home values, and standards of living.
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Airlines Invest in Biofuel Companies. --- All Things Aviation, February 15, 2010
Driven more by higher fuel costs than a desire to reduce emissions from jet aircraft, some 14 airlines have been working with biofuel companies to develop a camelina-based jet fuel. Camelina is a crop that can be grown on marginal land and does not compete with food crops, requiring little water or nitrogen. The International Air Transport Association and Airbus are calling for governments to support the aviation industry’s efforts to gain access to biofuels, but aviation accounts for little more than 12% of transportation fuels so it is unlikely the industry will receive much support.
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Bird Strikes Plane, Forces Landing at FortLauderdale-HollywoodInternationalAirport. --- Juan Ortega and Ken Kaye, Sun Sentinel, February 16, 2010
A Spirit Airlines plane made an unscheduled return to Fort Lauderdale-Hollywood International Airport in Florida on Monday, February 15 after a bird struck the jet’s nose after takeoff. No one was hurt and an inspection found no damage to the plane, and the passengers were placed on other flights. U.S. airplanes collide with birds more than 2,500 times a year, with bird strikes causing an average of $400 million in damage.
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$6 Million Dayton Airport Project Delayed by Compiling of Buy-American Data. --- John Nolan, Dayton Daily News, February 16, 2010
The Federal Aviation Administration will not release the funding for a $6.1 million project to install a new electronic security system at Dayton International Airport in Ohio until the contractor provides information that shows the project complies with a law requiring the use of steel and manufactured goods produced in the U.S. The airport must give the FAA the buy-American information, or request a waiver. Officials of the airport expect to complete the project by 2010, even with the delay caused by securing the data.
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Passengers Rights Groups Give Airlines Failing Grades for Tarmac Delays. --- Alison Grant, The Plain Dealer, February 16, 2010
FlyersRights.org, a passenger rights group, issued an air travel consumer report card on Tuesday, February 16, and gave Continental Airlines and five other carriers an F grade for tarmac delays of two hours or more. The group claims the carriers trapped fliers in “metal tubes” during weather delays without food, water, or medical assistance, and with overflowing toilets. The report was optimistic about some form of legislation being passed this year, as a passenger bill of rights was included in the Federal Aviation Administration reauthorization bill pending in Congress.
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FAA Administrator Discusses Aviation Safety With Rockefeller. --- West Virginia Media, February 17, 2010
Federal Aviation Administration Administrator Randy Babbitt and aviation officials from YeagerAirport in West Virginia met with U.S. Senator Jay Rockefeller to discuss the importance of airport safety, particularly as it applied to a January incident at YeagerAirport that required the use of the airport’s Engineered Material Arresting System. Senator Rockefeller and Mr. Babbitt viewed the work being done to fix the EMAS system, which was funded through the FAA’s Airport Improvement Program.
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American Airlines Union Moves Toward Strike. --- World Travel Service, February 18, 2010
The Transport Workers Union said it will ask federal mediators to let the employees walk away from contract talks if there is no deal by March 8. Strikes have become very rare in the airline industry, but if federal mediators agree, it could be the start of a countdown toward a strike. An American Airlines spokeswoman said the talk of ending mediation was premature, however.
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Watchdog Finds Aircraft Maintenance Problems at American Airlines, Calls FAA Oversight Weak. --- Joan Lowy, Associated Press, February 18, 2010
According to a report released Thursday by the Department of Transportation’s Office of Inspector General, the Federal Aviation Administration’s lax oversight of aircraft maintenance at American Airlines raises concerns about the agency’s ability to regulate aircraft maintenance in general. At least four maintenance-related allegations made two years ago have “potential safety implications,” and despite a significant increase in maintenance problems at American, the FAA did little to address the issues. The report questions the FAA’s effectiveness and notes that the FAA only ever took action after the department had briefed agency officials on the need for them.
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A summary review of Aviation and Airport Development related news and information that was made public during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber. Trisha Ton-Nu also contributed to this post. If you would like to receive this update in an e-mail delivered to your inbox every Monday, please send an e-mail to subscribe@calairlaw.com with the word “subscribe” in the subject line.

FAA: 2 Planes Came Within 90 Feet on Ground at LAX. --- Associated Press, October 28, 2009.
The Federal Aviation Administration determined that a runway incursion at Los Angeles International Airport brought two passenger planes within 90 feet of each other on Sunday, October 25, 2009. A Midwest Express jet taxied toward a runway on which a Northwest Airlines Boeing 757 was taking off, though the jet was supposed to stop. The pilots of both planes will be questioned.
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FAA Issues Notice of ROD for FEIS Concerning Proposed Improvement Activities at Rocky GutierrezAirport in Sitka, AK. --- Federal Register, October 29, 2009.
The Federal Aviation Administration gave notice that it had issued a Record of Decision for the Final Environmental Impact Statement and Alaska National Interest Lands Conservation Act Section 810 Evaluation for Proposed Improvement Activities at Rocky Gutierrez Airport in Sitka, Alaska. The ROD included descriptions of the projects proposed by the Airport Sponsor and evaluation of the projects, as well as federal, state, and local actions that are needed prior to the implementation of the projects. The ROD also identified several of the FAA’s preferred and environmentally preferred alternatives, and alternatives selected by the FAA for implementation.
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Military Says Fighters Should Have Been Launched When Northwest Flight Overshot Airport. --- Lolita C. Baldor, Associated Press, October 29, 2009.
A top commander said the military would have launched fighter jets to track down the Northwest Airlines flight that overshot its destination if officials had been notified sooner. General Gene Renuart, head of U.S. Northern Command, learned of the incident only minutes before the Federal Aviation Administration regained contact with the pilots. He said delays must be corrected, and Northern Command is doing an internal review of the incident.
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FAA Finds Proposed Chiofaro Towers a Hazard. --- Casey Ross, Boston Globe, October 29, 2009.
Preliminary Federal Aviation Administration findings indicate that developer Don Chiofaro’s proposed towers near the New England Aquarium will have to be cut in half, because the tower complex with its proposed heights of nearly 800 feet would pose a hazard to planes taking off and landing at nearby Logan International Airport in Boston, Massachusetts. A principal at Chiofaro’s development firm said that the ruling was expected and the company still plans to pursue high-rise development on the property.
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Atlanta Airport Project Gets Stimulus Funds. --- LexisNexis, October 30, 2009.
Hartsfield-Jackson Atlanta International Airport in Georgia was awarded almost $34 million in stimulus funds through the Federal Aviation Administration’s Airport Improvement Program, to help pay for construction of a new terminal. The total cost of the terminal, expected to be completed by spring 2012, is $1.35 billion, and the 12-gate facility will connect to the existing international Concourse E, creating a 40-gate international air travel complex.
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Air Transport Association Urges U.S. Climate Negotiators to Oppose Climate Change Tax Targeting International Air Passengers. --- PRNewswire, October 30, 2009.
The Air Transport Association of America urged climate negotiators to oppose the “International Air Passenger Adaption Levy,” which would single out aviation to raise $10 billion per year for climate-change projects to be built in developing countries, and would likely take the form of an exorbitant climate change tax imposed on airlines and their passengers. In a letter to Todd Stern, the U.S. Special Envoy for Climate Change, the ATA impelled the United States to oppose the tax and instead support the industry’s proactive proposal for a global and sectoral approach to aviation and climate change.
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FAA Issues Intent to Rule on OAK’s Request for a PFC to Connect OAK to BART. --- Federal Register, November 2, 2009.
The Federal Aviation Administration plans to rule on and invited public comment on a proposed Passenger Facility Charge at Metropolitan Oakland International Airport, which would go toward providing a direct people mover connection between the Coliseum Bay Area Rapid Transit station and the airport.
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Federal Officials Reject Restrictions on Night Flights at BobHopeAirport. --- L.A. Now, November 2, 2009.
A request by the Burbank-Glendale-Pasadena Airport Authority for a curfew at Bob Hope Airport in Burbank, California was rejected by the Federal Aviation Administration for being unreasonable because it would create an “undue burden on commerce” and negatively affect the national air transportation system. The FAA found that the airport failed to meet four of the six conditions required of a restriction proposal, and several major cargo companies including Fed Ex and United Parcel Service opposed the implementation of a curfew.
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Hawaii Airport Getting New Control Tower. --- Associated Press, November 2, 2009.
Construction on a new $39 million air traffic control tower at Keahole-Kona International Airport in Hawaii is to begin in December, and is expected to be put into use in May 2012. The current 51-foot tower was built in 1970 to control a 6,500-foot runway, but after it was extended to 11,000 feet in 1993, it was more difficult for controllers to see the north end. The new tower should provide controllers better views of the airfield.
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Small Airports Land Big Money. --- Thomas Frank, USA TODAY, November 2, 2009.
A USA TODAY analysis shows that Congress has steered $1.1 billion since 2001 to “pet projects” at airports that cater to private planes, with approximately $100 million being allocated to low-priority projects. These “earmarks” projects have been criticized for potentially detracting from federal aid that could be used for projects to ease flight delays at the nation’s busiest airports, but a Federal Aviation Administration spokeswoman said that the earmarks account for only 5% of airport grants.
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Stealth-Mode Wind Turbines. --- Peter Fairley, Technology Review, November 2, 2009.
Danish wind turbine company Vestas and United Kingdom defense contractor Qinetiq believe they may have the solution to the wind-turbine-related aviation radar interference problem: the first “stealth” wind-turbine blade. Turbines can interfere with radar by reflecting radar systems’ microwave signals and creating shadows that erase planes from radar operators’ screens and clutter those screens with the turbines’ signature. The stealth blade is constructed of material that absorbs radar, and the blade produces a markedly smaller signature in comparison to conventional blades.
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Congressman Sherman Proposes Legislation to Allow Nighttime Curfews at Valley Airports. --- California Chronicle, November 3, 2009.
In the wake of the Federal Aviation Administration’s rejection of the Burbank-Glendale-Pasadena Airport Authority’s application for a waiver to impose nighttime curfews at Bob Hope Airport in Burbank, California, Congressman Brad Sherman is proposing legislation that would allow Bob Hope and Van Nuys Airport to implement mandatory nighttime curfews from 10 p.m. to 7 a.m.
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FAA Issues Airworthiness Directive for ATR Model ATR42 and ATR72 to Correct “An Unsafe Condition.” --- Federal Register, November 3, 2009.
The Federal Aviation Administration adopted a new Airworthiness Directive for ATR Model ATR42 and ATR72 airplanes requiring action to address an unsafe condition related to the “unacceptable” probability of ignition risk.
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Safer Standards Urged After North Las Vegas Crashes. --- Keith Rogers, Las Vegas Review-Journal, November 2, 2009.
A Clark County Aviation Department report found that 75 percent of the accidents involving experimental and other aircraft at North Las Vegas Airport in Nevada were caused by pilot error. The report gave several recommendations for the Federal Aviation Administration, which the agency is reviewing and considering, barring those recommendations that have already been implemented.
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IG Report Faults NY Delay Initiative. --- Adrian Schofield, Aviation Week, October 30, 2009.
The Department of Transportation’s Inspector General found that benefits have been seen in just five of the Federal Aviation Administration’s 30 completed New York airport and airspace initiatives. Most of the completed initiatives were either not used or used infrequently, and the IG questioned their viability as “effective delay-reduction solutions.” The IG’s report also found that the FAA lacks an effective process for evaluating the usefulness of the individual initiatives, thereby preventing it from determining if the initiatives provide any benefits.
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Lawmakers Seek Ban on Laptops in Airline Cockpits. --- Joan Lowy, Associated Press, November 3, 2009.
Senator Byron Dorgan, chairman of the aviation subcommittee, said he is planning on introducing a bill that will ban the use of computer laptops and other personal electronic devices in airline cockpits, to prevent an incident like the Northwest Airlines plane that overshot its destination from occurring again. Currently the Federal Aviation Administration does not prohibit pilots from using such devices, except below 10,000 feet when the plane is taking off or landing. Other lawmakers have also indicated that they would support such legislation.
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Acadia to Develop Air Tour Regulations. --- Heather Seavey, WCSH, November 4, 2009.
Acadia National Park in Maine and the Federal Aviation Administration are working together to develop new regulations for scenic air tours that fly over the park. The new regulations would be designed to limit noise for park visitors and wildlife, and would extend to a ½ mile perimeter around the park boundaries and up to 5,000 feet above ground level.
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Northwest Pilots Appeal License Revocation. --- Joan Lowy, Associated Press, November 5, 2009.
The Northwest Airlines pilots who overshot their Minneapolis destination by 150 miles and had their licenses revoked by the Federal Aviation Administration are appealing the revocation with the National Transportation Safety Board. The FAA revoked the pilots’ licenses because they said the pilots put the 144 passengers of the flight in serious danger, and highlighted the incident as an example of the “erosion of professionalism” among commercial pilots.
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FAA Proposes Millions in Penalties Against United Airlines. --- Business and Legal Resources, November 5, 2009.
The Federal Aviation Administration is proposing a $3.8 million civil penalty against United Airlines for operating one of its Boeing 737 aircraft on more than 200 flights in a less-than-airworthy condition. The airline had violated its own maintenance procedures on one of the plane’s engines—two shop towels, and not the required protective caps, had been used to cover openings in the oil sump area.
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FAA Tracking Planes That Flew Over House Hit By Ice. --- ChicagoBreakingNewsCenter, November 5, 2009.
The Federal Aviation Administration is investigating an incident wherein a large piece of ice fell from the sky and hit a home in Chicago, Illinois on Wednesday, November 4, 2009. The house lies under one of O’Hare International Airport’s flight paths, and FAA investigators will seek to identify which planes were overhead at the time of the incident, and if any may have reported a leak, which could then be the source of the ice.
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Are Some Airlines Just Too Dangerous to Fly? --- Richard Korman, Miller-McCune, November 4, 2009.
A recently-conducted study found that certain old planes operated from Latin America, the Middle East, and Africa have more accidents. Developing countries are more likely to use old planes beyond their “designed economic life,” and maintenance of these planes may fall short of international standards, though it is difficult to establish global standardization. The European Union launched an airline blacklist in 2006, and passengers should avoid those carriers or carriers from Federal Aviation Administration-downgraded countries, though international maintenance standards should be implemented and enforced.
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Photos Show AA Plane at Center of Safety Investigation. --- Scott Friedman, NBC DallasFort Worth, November 4, 2009.
American Airlines is being investigated by the Federal Aviation Administration after the airline voluntarily self-disclosed a discrepancy in several of the screwheads used to hold AA plane #279’s skin. The screws appear to be ordinary and unlike the rivets generally used, but the carrier insists that they are aerospace quality and were only installed just before the plane was moved to the New Mexico desert and retired. The FAA is investigating whether the plane carried any passengers with the changed screws, and whether the plane was deliberately moved to the desert graveyard to keep it out of sight of inspectors.
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Barclay Urges Senate to Pass FAA Bill; Eliminate AMT Penalty. --- Aviation News, November 4, 2009.
Charles Barclay, president of the American Association of Airline Executives, is urging the Senate to pass the Federal Aviation Administration reauthorization bill quickly and permanently eliminate the AMT penalty on airport private activity bonds.
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Director of Singapore Firm Sentenced for Illegally Exporting Controlled Aircraft Components to Iran. --- Department of Justice, November 5, 2009.
Laura Wang-Woodford, one of the directors of Singapore-based Monarch Aviation Pte Ltd., was sentenced in federal court in Brooklyn to 46 months in prison for conspiring to violate the U.S. trade embargo by exporting controlled aircraft components to Iran. Along with her husband, Brian D. Woodford, who served as chairman and managing director of Monarch and who remains a fugitive, Ms. Wang-Woodford illegally exported aircraft parts and U.S. military aircraft components. At the time of her December 23, 2007 arrest in San Francisco, she was also in possession of catalogues from a Chinese company from which all U.S. citizens and entities are prohibited from engaging in business.
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FAA Chief: Pilots Must Refocus on Professionalism. --- Joan Lowy, Associated Press, November 4, 2009.
Federal Aviation Administrator Randy Babbitt told an aviation club that pilots must refocus on professionalism, and that recent incidents like Northwest Flight 188, which overshot its destination by 150 miles, and the Buffalo, New York crash that killed 50 people, were caused because the pilots forgot their first job was to focus on flying the plane. Babbitt has been stressing a need for stronger professionalism among airline pilots, and he has urged veteran pilots to mentor less experienced pilots.
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$3.7 Million to Study O’Hare Terminal Airlines Don’t Want. --- Fran Spielman, Chicago Sun-Times, November 4, 2009.
Consulting firm Landrum & Brown was awarded a $3.7 million contract to plan for a new western terminal project at O’Hare International Airport in Chicago, Illinois that the major airlines are refusing to fund and consider ill-conceived. The Federal Aviation Administration, which provided the funding for the study, believes the Western Terminal Planning Study is an “important and necessary tool” to help the agency coordinate with the state to provide regional and local roadways for western access to O’Hare.
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Airport Weight Debate Goes to Commissioners. --- Kurt Hildebrand, The Record-Courier, November 4, 2009.
Douglas County, Nevada commissioners will look at a proposal analyzing what might happen if Minden-Tahoe Airport loses federal funding. The Federal Aviation Administration has already withheld some funding due to the county’s failure to alter the airport’s entry in federal publications, and the FAA would be less likely to continue to provide funding if the airport does not comply with assurances representatives made that the airport would be maintained. The county is analyzing potential options for maintaining the airport without federal funding if the county is held in non-compliance and does not receive federal funds.
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How to Keep Planes From Colliding with Lasers. --- Physics Today, November 5, 2009.
Researchers have created a radio-tracking device that can detect aircraft entering the vicinity of a laser beamed into the sky, which would greatly aid in the prevention of plane-laser collisions. The current method involves using human observers to watch for planes flying with 25 degrees of the laser beams, but the new device would have none of the potential for human error.
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FAA Investigates Clem’s Airport Lease Deal. --- Alan Gustafson, Statesman Journal, November 6, 2009.
The Federal Aviation Administration is investigating a controversial lease awarded by former aviation director Dan Clem to a developer at Aurora State Airport in Oregon. The inquiry concerns whether the lease complied with federal grant conditions for airports that receive FAA funding for improvements, and the Oregon Department of Justice is conducting its own investigation into Clem’s handling of the lease. Mr. Clem resigned as state aviation director on October 19 of this year.
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MontanaAirport Hopes to Build Control Tower Soon. --- Associated Press, November 6, 2009.
Missoula International Airport, Montana airport administrators hope to begin building a new control tower in spring, after the Federal Aviation Administration approved about $6.7 million in funding for the tower. The new tower will likely be about 120 feet tall, approximately double the height of the current tower, which was built in the early 1960s.
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Noise Pollution Control. --- Save the Earth!, November 6, 2009.
Noise pollution is displeasing human-, animal-, or machine-created sounds, damaging to physiological and psychological health. In the early 1970s the Environmental Protection Agency developed federal noise-emission standards, and the Federal Aviation Administration adopted Ldn (day-night equivalent level) as the noise descriptor in assessing land-use compatibility with various levels of aircraft noise. The EPA, FAA, and other government agencies work to identify major noise sources in the United States and craft measures to curb noise pollution.
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Notice of Availability of a Record of Decision for Streamlining the Process of Experimental Permit Applications. --- Federal Register, November 6, 2009.
The Federal Aviation Administration announced the availability of a Record of Decision for streamlining the environmental review of experimental permit applications for the launch and/or reentry of reusable suborbital rockets. The ROD provides a description of the Proposed Action—the FAA’s Preferred Alternative and the environmentally preferable alternative—and includes a discussion of environmental impacts associated with the Proposed Action for each resource area.
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ExhaustConeFalls Off Jet Onto NY Home’s Lawn. --- David B. Caruso, Associated Press, November 6, 2009.
An engine tailcone fell off a Delta Air Lines Boeing 777 and landed on a lawn in a Long Island, New York residential neighborhood, though neither pilots nor anyone on the ground immediately noticed the mishap. The aircraft does not need the part to fly, and carried on safely to its destination in Tokyo, where Delta personnel reported the engine part missing following an inspection after the plane landed. Delta is conducting an investigation to determine what went wrong.
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FAA Streamlines Experimental Space Flight Access. --- Michael Cooney, Network World, November 6, 2009.
The Federal Aviation Administration says it will streamline the environmental review part of permit applications for the launch and/or reentry of reusable suborbital rockets to help bolster a young commercial space market. The Processing of Experimental Permit Applications (PEIS) is the central and important document of the ruling, because it presents information and analysis common to reusable, suborbital rockets and effectively focuses on environmental impacts specific to an applicant’s proposed experimental operations.
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Van Nuys Would Like To Be Paid Back For All That Soundproofing. --- Curbed LA, November 6, 2009.
The Van Nuys Airport Citizens Advisory Council is seeking reimbursement from the City of Los Angeles for the cost of installing insulation in homes near Van Nuys Airport in California, after the Federal Aviation Administration rejected plans to enforce a curfew at Burbank’s Bob Hope Airport which would have resulted in the diversion of planes to airports like Van Nuys. The figure is in the $10 million range, but will likely increase when the cost of noise consultants is factored in.
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NBAA Welcomes FAA Ruling Against Curfew Proposal. --- Charter X News, November 7, 2009.
The National Business Aviation Association applauded the Federal Aviation Administration’s decision to deny a proposed ban on nighttime operations at Bob Hope Airport in Burbank, California. The NBAA had submitted an extensive legal filing in opposition to the curfew proposal, one of the documents cited by the FAA in support of its decision.
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Buzzing of Santa Monica Pier Leads to Questions About Aviation Safety. --- Dan Weikel, Los Angeles Times, November 8, 2009.
A November 2008 incident at Santa Monica Pier involving a low-flying military jet has focused attention on the use of high-performance military jets by civilian pilots and the hazard they can pose to people in the air and on the ground. In the Western Pacific region of California, Nevada, Arizona, and Hawaii there are about 5,600 experimental exhibition planes that are restricted by the government to air shows, flight demonstrations, or training flights over sparsely populated areas, but there is little to stop those who own or operate those planes from using them in unapproved and dangerous ways. David G. Riggs, the pilot and owner of the jet involved in the Santa Monica Pier incident, may have illegally sold rides in such unapproved planes and may even have failed to adhere to proper maintenance standards for the planes.
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FAA Gives Hope to Cargo. --- Aircargo Asia Pacific, November 9, 2009.
The air cargo industry praised the Federal Aviation Administration’s decision to reject BobHopeAirport’s request for a ban on nighttime operations at the Burbank, California airport. Daniel Fernandez, director of the International Air Cargo Association, said that the decision sends a clear message to other airports that may have been considering similar restrictive actions.
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City Council Committee Approves Delta-Airport Lease. --- Kelly Yamanouchi, The Atlanta Journal-Constitution, November 9, 2009.
The Atlanta, Georgia city council transportation committee approved the proposed lease between Hartsfield-JacksonInternationalAirport and Delta Air Lines after the Federal Aviation Administration wrote in a memo that most of its concerns about the deal had been addressed. Key issues involved potentially anti-competitive provisions in the lease, including the restriction of gate usage—a representative for American, Continental, US Airways, and United told the transportation committee that the agreement will restrict those carriers because they will lose five of their gates. The full council will take up the measure at its November 16, 2009 meeting.
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Aircraft Owner Group spent $770,000 Lobbying in 3Q. --- Associated Press, November 9, 2009.
The Aircraft Owners and Pilots Association, representative of private pilots, spent $770,000 lobbying on issues related to small aircraft, security, and airport fees, in the third quarter. The group lobbied for legislation that would require the Homeland Security secretary to go through a negotiated rulemaking process before issuing rules aimed at general aviation aircraft, as well as issues like greenhouse emissions, fuel, reauthorization for the Federal Aviation Administration, and authorization for the Transportation Security Administration.
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US Airways Spent $410K Lobbying Government in 3Q. --- Associated Press, November 9, 2009.
US Airways Group Inc. spent $410,000 lobbying in the third quarter. The carrier lobbied on the cap-and-trade energy proposal and aviation regulation issues, and on bills aimed at curbing speculation in the energy markets. US Airways also lobbied on reauthorization for the Federal Aviation Administration and air cargo security issues, aircraft engineering, flight operations, and maintenance issues.
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Senators Call for Passage of FAA Bill. --- Aviation News Today, November 9, 2009.
A group of lawmakers called on Senate leaders to pass the Federal Aviation Administration reauthorization bill. The Senate Commerce Committee approved the FAA Air Transportation and Modernization Act of 2009, S. 1451 on July 21, 2009, but the bill has stalled in the Finance Committee, which has yet to consider the tax portion of the bill.
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Airbus A319 Drops Parts on Dallas. --- Associated Press, November 10, 2009.
A left overwing emergency slide and the door over the compartment in which the slide was stowed fell from an Airbus A319 jet making a test flight in Dallas, Texas. The jet was undergoing maintenance when the incident occurred, and no injuries were reported and the plane was able to land safely.
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Analysis of Legal Issues Regarding Slot Auctions, Part Two.

Having established previously that the FAA does not have specific authority to lease or otherwise dispose of slots, FAA turns to its general power to dispose of property in order to justify its auctioning of the slots.  Under 49 U.S.C. 106 FAA is authorized to:

acquire, construct, improve, repair, operate, and maintain . . . real and personal property . . . and to lease to others such real and personal property . . .” as well as to enter into “such contracts, leases, cooperative agreements, or other transactions as may be necessary to carry out the functions of FAA.

49 U.S.C. 106(l).  In addition 49 U.S.C. 40110 authorizes FAA “[to] dispose of an interest in property for adequate compensation . . .”  Thus, the FAA theorizes, if a slot is “property,” then by virtue of these three provisions it has all the authority it needs to dispose of the “property.”  

Leaving aside the statutory construction arguments that the FAA’s property disposition authority does not extend to such evanescent and intangible property rights as “slots,” the real legal question comes down to this:  Are slots a property right owned by the FAA?  

The controversy turns an interpretation of Cleveland v. United States, 531 U.S. 12 (2000), which was mentioned in the GAO Legal Opinion, IATA’s comments and ATA’s comments.  Cleveland stands for the proposition that the government’s regulatory powers to issue licenses to do something which otherwise would not be permitted does not create a property right for the government.  It only becomes a property right to the licensee after the issuance of the license.  In Cleveland, Louisiana claimed that licenses it issued to run video poker devices were its “property.”  The U.S. Supreme Court saw it a little differently:

Without doubt, Louisiana has a substantial economic stake in the video poker industry.  The State collects an upfront “processing fee” for each new license application . . ., a separate “processing fee” for each renewal application . . ., an “annual fee” from each device owner . . ., an additional “device operation” fee . . ., and, most importantly, a fixed percentage of net revenue from each video poker device . . . It is hardly evident, however, why these tolls should make video poker licenses “property” in the hands of the State.  The State receives the lion share of its expected revenue not while the licenses remain in its own hands, but only after they have been issued to licensees.  Licenses pre-issuance do not generate an ongoing stream of revenue.  At most, they entitle the State to collect a processing fee from applicants for new licenses.  Were an entitlement of this order sufficient to establish a state property right, one could scarcely avoid the conclusion that States have property rights in any license or permit requiring an up front fee, including drivers’ licenses, medical licenses, and fishing and hunting licenses.  Such licenses, as the Government itself concedes, are “purely regulatory.”

531 U.S. at 22. In other words, absent a statutory provision, so long as the “property” (the license in Cleveland) is the product of the Government’s regulatory power, or its police powers, it is not property while it is in the Government’s hands.  In this case, it would seem, based on Cleveland, that since the FAA derives its authority to assign slots from its regulatory authority over “navigable airspace,” slots are not property rights in the hands of the FAA.

FAA attempts to get around Cleveland by asserting that “Section 40110(a)(2) does not speak to whether the FAA actually owns property that is being disposed of.  It only speaks to the disposal of a property interest.  Only the FAA has authority to assign the use of navigable airspace under section 40103.”  73 Fed.Reg. at 60549.  The FAA concludes that even though the property right is created “at the time of transference” of the slot, it still falls within its property disposition power under 40110(a)(2) since it is “disposing of” a “property right.”  This however, ignores the fact that the FAA has no property interest to “dispose of,” and that in assigning slots it carrying out its regulatory duties with respect to the airspace.

Similar to the FAA, in Cleveland, Louisiana tried to compare its interest in video poker licenses to a patent holder’s interest in a patent that she has not yet licensed.  The court rejected that argument:

Louisiana does not conduct gaming operations itself, it does not hold video poker licenses to reserve that prerogative, and it does not “sell” video poker licenses in the ordinary commercial sense.  Furthermore, while a patent holder may sell her patent . . ., the State may not sell its licensing authority.  Instead of patent holder’s interest in an unlicensed patent, the better analogy is to the Federal Government’s interest in an unissued patent.  That interest, like the State’s interest in licensing video poker operations, surely implicates the Government’s role as sovereign, not as property holder.

531 U.S. at 23-24.  In other words, if it is not a property right until after it is sold or licensed, you do not have a “property right” to “dispose of.”  The FAA’s assigning use of navigable airspace “implicates the Government’s role as sovereign, not as property holder.”  Thus, it seems that since the Supreme Court has spoken on this issue, the FAA will be hard pressed to successfully argue that it can auction slots by virtue of its property disposition authority.

Next Post: Even if slots are FAA property, does the FAA violate the IOAA by accepting money for them?

 

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Pt. 1: Setting The Stage

When the FAA adopted its slot auction rules for LaGuardia, JFK  and Newark Airports, it did so despite the fact that the GAO had issued a legal opinion stating that it believed that the FAA did not have a legal basis to conduct auctions of slots at the airports. 

Needless to say, the FAA's decision brought some criticism from Congress.  Rep. James Oberstar (D-Minn.) and Rep. Patty Murray (D-Wash.) sent a letter to the FAA Inspector General, Hon. Calvin Scovel, requesting that he look into the matter and assess whether the FAA's actions were "potential willful violations of the Purpose Statute [31 U.S.C. 1301(a)] and the Antideficiency Act [31 U.S.C. 1341(a)(1)(A)]." 

The stakes got higher when, on October 10, 2008, the Port Authority of New York and New Jersey filed a Petition for Review in the U.S. Court of Appeals for the District of Columbia.  That Petition was followed on October 14, 2008, by similar Petitions for Review filed by the International Air Transport Association and the Air Transport Association of America.  All of the Petitions for Review were consolidated by the Court on October 27, 2008.

There seems to be agreement among all of the parties that the FAA has the regulatory authority to impose caps on hourly arrival and departure slots based on its authority under 49 U.S.C. 40103(b)(1) and (2), which allows the FAA to "ensure efficient use of the airspace."  The issue that separates the FAA from GAO, IATA, ATA and PANYNJ is whether the FAA may raise funds in connection with its assignment of slots through a slot auction, imposing a user fee, assessing a tax, or by some other mechanism.

In analyzing this fundamental disagreement some consensus emerges.  It is agreed that Congress has granted FAA explicit statutory authority to collect fees in several different situations, but that FAA has no explicit authority to impose fees related to the assignment of slots.  Indeed, the FAA has long sought such explicit authorization from Congress, which Congress has not yet granted.  See, e.g., 71 Fed.Reg. 51362 (Aug. 29, 2006) ( ". . . the FAA currently does not have the statutory authority to assess market-clearing charges for a landing or departure authorization").  It is FAA's efforts to get around the fact that it lacks explicit authority that is at the heart of the matter.

In order to claim authority to collect funds in connection with its assignment of slots, FAA makes two connected arguments.  First, FAA claims that a "slot" is an "intangible" form of property that it may lease pursuant to its "property disposition" power granted to it by Congress under 49 U.S.C. 106(l)(6) and (n) and 40110(a)(2).  Second, since the slot is a property right being leased, it is not an "user fee" or "tax."  Therefore, it is not subject to the Independent Offices Appropriations Act (IOAA), 31 U.S.C. 9701 et seq.  The opposing parties have claimed that the FAA is wrong on both counts.

Next Post:  Analysis of FAA's claims that it possesses a property interest in slots at airports.

 

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Rep. Jerry Costello (D-IL), Chairman of the Aviation Subcommittee remarked in his opening statement that it is: “inexcusable and unacceptable to ignore rules, regulations and standard practices to accommodate those you have responsibility to regulate especially when you have people’s lives in your hands.”   With that in mind, the Subcommittee heard testimony from the Office of the Inspector General (OIG) that the FAA had “alarming problems” and “severe lapses” in judgment in its certification process for the Eclipse EA-500, a Very Light Jet (VLJ). VLJs have been heavily promoted as a potential solution to congestion around larger airports, and as a means tobring a convenient, fast transportation alternative to smaller communities that cannot support network commercial air service.

In particular, the OIG made three findings concerning the EA-500 certification process. First, OIG found that the FAA permitted exceptions to its usual design certification process. For example, the FAA accepted an “IOU” from Eclipse that it would meet accepted standard at a later date for the avionics software. For an aircraft that relies heavily on software, the OIG would have expected the FAA to perform rigorous analysis and testing. Second, the OIG found that the FAA awarded Eclipse a production certificate even though the company failed to demonstrate the ability to replicate the approved design. This was despite that fact that Eclipse encountered numerous problems replicating its won aircraft design on the assembly floor both before and after receiving its certificate. Finally, Senior FAA management identified Eclipse as a priority certification and appeared to be lenient with the manufacturer.

 

Nicholas Sabatini, Associate Administrator for Safety, and John J. Hickey, Director of the Aircraft Certification Service, offered excuses for the Eclipse EA-500 certification process. Mr. Sabatini told the Subcommittee that he assembled a “Special Certification Review” team, headed by Jerry Mack, a former Boeing executive. That team concluded, according to Mr. Sabatini, that the FAA’s certification was appropriate because it did meet the required standards. That being said, what was not mentioned in Mr. Sabatini’s remarks were the SCR’s criticisms of the process and what changes he believes need to be made to the process.

At its core, the Committee seemed to have the FAA’s “Customer Service Initiative” in its sights. That Initiative, whereby the airlines and aircraft manufacturers are treated more as the FAA’s “customers” as opposed to regulated entities have become firmly rooted in recent FAA culture, has come under scrutiny with respect to the safety inspections conducted on the airlines. In the end, the investigation and hearing is less about Eclipse, and more about the regulatory failure of the FAA, once again, to adhere to its primary mission of safety and protection of the flying public.

Also testifying were:

Clyde R. Kizer, Retired Aerospace Executive

Peg Billson, President and General Manager, Manufacturing Division, Eclipse Aviation Corporation

Thomas Haueter, Director, Office of Aviation Safety, National Transportation Safety Board

Maryetta Broyles, Technical Program Management Specialist, Federal Aviation Administration, Aircraft Certification Service, SW Region Rotorcraft Directorate, Manufacturing Inspection Office

Ford J. Lauer III, Manager, Federal Aviation Administration, Manufacturing Inspection District Office

Dennis Wallace, Federal Aviation Administration, Software Engineer,

David A. Downey, Vice President, Flight Safety, Bell Helicopter – Textron, formerly Manager of the FAA Rotorcraft Directorate.

For a video of the full hearing, click here.

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Yesterday, June, 11, 2008, the House Aviation Subcommittee heard testimony (click on link for video the hearing) on a situation that is becoming more dire as every day passes - Air Traffic Controllers are retiring, leaving a dearth of qualified, trained controllers to take their places.  The House Aviation Subcommittee convened the hearing to find out what can be done about the situation.

First up in Panel 1, were the bureaucrats.  Hank Krakowski from the FAA, Patrick Forrey from the National Air Traffic Controllers Association, along with Dr. Gerald Dillingham from the GAO, Calvin Scovey from the Department of Transportation Office of the Inspector General and David Conley of the FAA Managers Association.  Predictably, Mr. Krakowski downplayed any crisis, stating in his prepared remarks that the FAA was on top of the situation:  hiring 2000 controllers this year, seeking ways to retain retirement-eligible controllers, and working on a contract with NATCA.  

Mr. Forrey, had a different view.  He stated that “this country is facing an air traffic control staffing crisis” leading to “an unacceptable compromise in safety.”  First and foremost, to him, the FAA needs to return to the bargaining table with the NATCA to work on a contract.  That will lead to a higher retention rate of both experienced controllers and new hires.

Subcommittee members in their questioning sought to resolve the differences between the FAA and NATCA and implored the GAO and DOT-IG to assist in that effort.  Both the FAA and NATCA say they want a contract, but how they are going to get there is the open question.

The second panel was where the rubber hit the road.  Three air traffic controllers, Don Chapman from Philadelphia, Steven Wallace from Miami and Melvin S. Davis from Los Angeles testified about the problems they are facing at each of their facilities.  Although each mentioned specific challenges their facilities faced, they all came back to three major issues:  inadequate staffing (which raises safety concerns); inadequate training of new hires (which also raises safety concerns); and controller fatigue because the first two issues.  The Subcommittee seemed to take to these men and their "view from the front line."

(It should be mentioned that the Blog, "The Potomac Current and Undertow," offered an e-mail sent to FAA Air Traffic District Managers to find Air Traffic Controllers who would support the FAA's position that things are headed in the right direction.  Since only Messrs. Chapman, Wallace and Davis were the only controllers who appeared as witnesses, their effort seemed to fall short.)

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