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

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.

• Honeywell gets FAA okay on runway safety systems.The Federal Aviation Administration has greenlighted Honeywell International Inc.’s SmartRunway and SmartLanding, designed to prevent runway accidents at crowded airports. The systems reinforce standard operating procedures and add “situational awareness” at crowded airports by alerting pilots about runway and taxi locations, unstable approaches and long landings, and when an aircraft is landing too far down the runway to stop safely.  9/16/09, Phoenix Business Journal, http://bit.ly/C3w3B
• Regulatory abuse by airlines threatens aviation safety. Aircraft Engineers International cites that the largest single cause of the downward trend in aviation safety is the increase in the number of regulatory breaches by airlines that remain uncorrected. Engineers from all over the world will meet in Varna, Bulgaria, from September 23-26, 2009 for the Aircraft Engineers International’s 37th Annual Congress, where they will take a closer look at issues including airlines’ deliberate abuse of aviation regulations to reduce costs, and airworthiness authorities’ adopting a more “hands on” approach to regulation. 9/16/09, Aircraft Engineers International, http://bit.ly/1WQ0gm
• Feds keep little-used airports in business. Congress has directed $15 billion from an obscure federal program that raises billions of dollars a year through taxes on every airplane ticket sold in the United States to general-aviation airports. General-aviation airports have no scheduled passenger flights and operate separately from the commercial airports that handle almost all passenger flights, and comprise the world’s most expansive and expensive network of airports. Critics contend that the number of subsidized airports with no commercial flights is excessive at a time when larger airports are struggling with delays in air traffic, and that only a few private pilots are benefited. Local residents have also complained about the noise and pollution generated by the little-used airports. 9/17/09, Thomas Frank, USA Today, http://bit.ly/5icdM
• FAA announces new efforts to respond to safety concerns. Federal Aviation Administrator Randy Babbitt announced that the FAA has a new focus on improving the agency’s response to public safety complaints and whistleblower contributions, as well as renewing efforts to ensure consistent interpretation of agency regulations and policies. The FAA will also improve how it communicates and interacts with employees, the public, air carriers, and manufacturers. Administrator Babbitt stated that the FAA’s “number-one customer” is the public, and is implementing changes in communication and interpretation of safety information to maintain a safe U.S. fleet and avoid cancellations. 9/17/09, FAA Press Release, http://bit.ly/RaNXC
• FAA launches new accident prevention office. The Federal Aviation Administration’s Office of Aviation Safety launched a new Accident Investigation and Prevention Service that will integrate the work of the Offices of Accident Investigation and Safety Analytical Services. The new organization will consolidate resources and data from accident and incident investigations, historical accidents and incidents, and voluntarily submitted information from industry programs so the FAA can better understand current risks across the aviation community, and identify emerging vulnerabilities and trends. 9/17/09, FAA Press Release, http://bit.ly/Ifx2M
• DOT fines Spirit Airlines for violating bumping and other rules. The Department of Transportation has fined Spirit Airlines $375,000 for various rule violations, including bumping passengers from oversold flights without compensating them and failing to resolve baggage claims within a reasonable time. The DOT’s action is being lauded for clearly protecting airline consumers against unfair and deceptive practices, which is a stated part of the Department’s mission. 9/17/09, Official Blog of the U.S. Secretary of Transportation, http://bit.ly/1s4ru5
• Mountain Home Air Force Base wants more air space. Officials at Mountain Home Air Force Base in Idaho have asked the Federal Aviation Administration to expand the base’s air space deeper into Oregon and Nevada, saying that the expansion would double the effectiveness of the air space and training offered there and potentially making the base more attractive as a future training site for jets more modern and faster than the jets currently housed at the base. If approved, the expansion would increase the air space by nearly 30 percent from the more than 187 square miles the range complex currently covers. 9/17/09, The Associated Press, http://bit.ly/WkklS
• UAL names Jane Garvey to Board of Directors. United Airlines announced that Jane Garvey, former administrator of the Federal Aviation Administration and President Obama advisor, will be joining the company’s Board of Directors. She was the first woman appointed to the role of FAA administrator and served on the transition team for President Obama, which focused on transportation policies and related infrastructure challenges. She has also advised states on financing strategies to facilitate project delivery for state governments and served as acting administrator and deputy administrator for the Federal Highway Administration. 9/17/09, PRNewswire, http://bit.ly/Bcn5o
• FAA reauthorization bill pushed back in Senate. The Senate will not pass a Federal Aviation Administration reauthorization bill by September 30, the time the current bill will expire, and both the House and Senate will have to agree to an extension. The bill is being pushed back for an “inevitable fight” over a labor provision that FedEx adamantly opposes. Jay Rockefeller, chairman of the Senate Commerce Committee, wants final passage of the bill postponed but wants the bill considered sometime during this calendar year. 9/17/09, Bartholomew Sullivan, Memphis Commercial Appeal, http://bit.ly/Qn3sI
• FAA will stop calling airlines “customers.” In a response to complaints that the agency’s relationship with airlines was placing the industry’s economic interests above passenger safety, Federal Aviation Administrator Randy Babbitt has said that the FAA will stop calling airlines “customers.” Administrator Babbitt listed several short- and long-term actions, including making the agency’s engineers available around the clock to support safety inspectors assigned to airlines, to improve airline compliance. A spokesman for the Air Transport Association is optimistic, believing the steps will lead to more succinct instructions for incorporating safety directives and leave less chance for technical ambiguity over compliance. 9/17/09, Joan Lowy, http://bit.ly/21aGlT
• FAA OK’s first step of privatizing New Orleans airport. The Federal Aviation Administration has accepted a preliminary application to lease Louis Armstrong New Orleans International Airport, Louisiana’s largest commercial airport, to a private operator. Under a private operation program approved by Congress, an airport with a private manager could continue to receive FAA funds and grants and collect fees and charges, and the city could use lease proceeds for non-aviation purposes after money was set aside for airport debt service. Up to five public airports have been allowed to participate in the program, and Chicago’s Midway Airport is also considering a privatization plan. The program was started in 1997 to explore privatization as a way of generating private capital for airport projects.  9/17/09, The Associated Press, http://bit.ly/25Neo1
• IATA Director General asks Obama to make aviation policy a priority. International Air Transport Association Director General Giovanni Bisignani wants the Obama administration to renew its role as a leader in the global aviation industry and make aviation policy a priority. Director General Bisignani has presented several policy recommendations to help in the recovery of the U.S. aviation industry in the areas of safety, security, environment and commercial freedoms, which include putting the NextGen system on a “fast track” to reduce delays at airports and airport emissions. 9/18/09, San Francisco Foreign Policy Examiner, http://bit.ly/LpoGt
• Boston airport prepares nation’s first green runway. Boston’s Logan International Airport is nearly finished repaving the first runway in the nation with an environmentally friendly material called warm-mix asphalt. The asphalt is heated to a lower temperature than normal, and burns less fuel and emits less carbon. 9/19/09, The Associated Press, http://bit.ly/2XqAhb
• Will a bigger runway boost the local economy? Carroll County government officials argue that the new, $72 million runway at Carroll County Regional Airport “won’t hurt” in attracting new businesses. Primarily paid for by the Federal Aviation Administration, the new runway will be longer and will have wider separation between the taxiway and runway, making it safer to land there and potentially able to handle more corporate jets. A spokesman for the National Business Aviation Administration said having an airport that can handle corporate aircraft is attractive to companies thinking about where to locate some or all of their businesses, but opponents of the project remain skeptical about the economic benefits or oppose the new runway because of the cost. 9/20/09, Adam Bednar, Carroll County Times, http://bit.ly/y2dix
• Commentary from Federal Times: Charting a new path for the FAA. Dave Bowen, chief information officer for the Federal Aviation Administrator, states that the FAA’s NextGen initiative will enable digital communication, and digital weather modeling and other capabilities, while supporting a level of air traffic more safely, efficiently, and effectively than current levels. NextGen technology includes Wide Area Augmentation, which provides an additional degree of accuracy and reliability, and Traffic Information Service - Broadcast, which combine together into Automatic Dependent Surveillance-Broadcast. With ADS-B, an aircraft would broadcast its Global Positioning System position and receive the broadcasts of other similarly equipped aircraft. While the FAA is working with airlines to get them to put ADS-B equipment in their aircraft, the NextGen initiative as a whole is the “path to the future” for the FAA. 9/21/09, Dave Bowen, Federal Times, http://bit.ly/24CZjo
• FAA approves first U.S. ground based augmentation system. The Federal Aviation Administration has approved Honeywell’s Smartpath Precision Landing System, which would provide precise navigation service based on the global positioning system. The ground based augmentation system augments GPS by providing precision approach guidance to all qualifying runways at an airport by monitoring GPS signals to detect errors and improve accuracy by transmitting correction measures to aircraft. GBAS has been identified as an enabler for descent and approach operations to increase capacity at crowded airports and will be improved over the next few years. 9/21/09, FAA Press Release, http://bit.ly/10xNLl
• Senator Barbara Boxer says airline passenger bill of rights is coming. Senator Barbara Boxer says that passengers’ rights legislation is popular in Congress and likely to pass, even over airline industry objections. The senator’s bill would require airlines to provide food, water, and bathrooms to passengers stranded on flights and would force airlines to allow passengers off planes after three hours of sitting. The legislation is currently included in the Federal Aviation Administration reauthorization bill. Airlines have fought customer-service legislation for over ten years, but Senator Boxer has drawn support from former AMR Corp. and American Airlines chairman Robert Crandall, who believes new rules can be implemented without compromising safety. 9/22/09, Scott McCartney, http://bit.ly/cOau1

IATA goal of halving emissions by 2050 over 2005 levels. The International Air Transport Association stated its goal of cutting emissions in half by 2050 over 2005 levels, through a four-part approach of technology, operational improvements, infrastructure upgrades, and “economic measures.” The airlines plan to present plans by November 2010 to begin trading carbon credits on a global market as part of a global approach to the issue, and to improve carbon efficiency by 1.5% annually through 2020 and show carbon-neutral growth from 2020 onwards. The industry is on pace to improve carbon efficiency by 1.8% this year, but it is worth noting that with fuel being among the largest expenses at an airline, carriers have a clear and immediate incentive to pursue such gains. 9/22/09, Justin Bachman, BusinessWeek, http://bit.ly/17QP9U

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Although originally billed as a Senate hearing on FAA Reauthorization, because another continuing resolution was passed last week, the Senate Subcommittee on Aviation Operations, Safety and Security switched the focus of the hearing from Reauthorization to NextGen and "the Benefits of Modernization." 

Essentially, this hearing was a scaled-down version of the hearing that the House held last week.  (See, "U.S. House Subcommittee on Aviation Holds Hearing on FAA's NextGen and ATC Modernization Efforts,"  posted March 22, 2009). Indeed, the written testimony of Dr. Dillingham is almost word for word identical to the written testimony presented to the House Subcommittee.  Likewise, the written testimony of Dale Wright, NATCA's Director of Safety and Technology, was in most respects the same as Patrick Forrey's last week.  As Sen. John D. Rockefeller, IV, Chairman of the full Committee stated in his opening statement, this hearing was a first step to "move the U.S. past Mongolia in the ranking of air traffic control systems."

It was also Sen. Rockefeller who summed up the problems the FAA has been having not only with respect to NextGen, but many other issues as well:  "[r]ivalries in the aviation community have hampered the industry's ability to speak with one voice for far too long.  Without that one voice, you will fail."  The simmering labor disputes between the Air Traffic Controllers and the FAA; the mistrust between the Pilots and General Aviation; the airlines' position with the FAA have all made it difficult for anything to be resolved, even if everyone agrees that some form of NextGen is an absolute necessity.

Thus, the hearing had Hank Krakowski, Chief Operating Officer of the Air Traffic Organization at the FAA, patting FAA on the back for getting ATC Modernization off of GAO's "High Risk List," (see, "GAO Removes FAA Air Traffic Control Modernization Program From Its High Risk List," posted January 22, 2009) and generally touting how invested the FAA is in working with all stakeholders to achieve the goals.  In counterpoint, NATCA's Wright, talked about the human cost of NextGen, and telling the Subcommittee that the "FAA  must collaborate meaningfully with stakeholders" pointing out that "to date [NATCA has] received no indication from the FAA that the Agency has any intention of meaningfully collaborating with NATCA."

Likewise, T.K. Kallenbach of Honeywell Aerospace lauded the environmental benefits of Continuous Descent, which is possible with the new NextGen technology.  Meanwhile United Airlines' Joe Kolshak understandably lobbied hard for NextGen, since the airlines anticipate a huge drop in fuel costs, although the airlines might be looking for some assistance to get the required technology installed into the cockpits.  And finally, Dr. Dillingham once again told a Congressional panel that the "FAA faces challenges in resolving human capital," research and development, and facilities issues.

So, where does that leave us? Two "foundational" and "critical" hearings in which the same people are saying essentially the same thing that they (or their agencies/organizations) have been saying for at least the past two years.  With FAA Reauthorization stalled in the House (see "User Fees Issues Probably Will Force Short-Term Extension of FAA's Authorization Instead of Full Reauthorization," posted March 16, 2009), and the Obama administrative set to present its proposal in Mid-April, it seems unlikely that anything will get rolling anytime soon.

A list of the witnesses and their written testimonies follows.

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On March 18, 2009, the U.S. House Subcommittee on Aviation held a hearing entitled "Air Traffic Control Modernization and the Next Generation Air Transportation System:  Near-Term Achievable Goals."  The Subcommittee and the FAA are placing much of their hopes and dreams on the viability and success of NextGen and Air Traffic Control Modernization.  In opening comments, it seemed that if ATC Modernization and NextGen are fully implemented all of the current ills of the FAA will be resolved and world peace will be achieved:  safety will be improved, delays will be diminished, air traffic controllers will be able to handle more operations more quickly and more efficiently, pilots will be able to fly better, and, oh, it is good for the environment, too.  While, only being a tad sarcastic, it seems that many dreams have been placed on NexGen's shoulders.

There can be no doubt that NextGen is needed.  All of the technical witnesses testified that ATC modernization and NextGen are absolutely critical to maintaining the U.S.'s airspace.  Captain Rory Kay, Executive Air Safety Chairman of ALPA, stated that:

NextGen has the potential to revolutionize the National Airspace System and our air transportation system . . . Forecasted increases in air traffic of two to three times today's traffic cannot be met in today's NAS.

So what are the problems?  First and foremost, it is a question of funding. As former FAA Administrator Marion Blakey stated, in testimony as President and CEO of Aerospace Industries Association:

Much of what is needed for NextGen falls under the category of "new starts" which, as you well know, are prohibited under funding extensions. A large number of FAA NextGen pre-implementation issues - including development and acquisition decisions, have been adversely affected.

Now that FAA Reauthorization has been put on the back burner with the passage of yet another continuing resolution, do not look for these new NextGen projects to see the light of day any time soon.

Another issue is human resources.  NextGen represents a fundamental shift in the responsibilities and practices of pilots and air traffic controllers.  As Patrick Forrey, President of National Air Traffic Controllers Association, stated:

Under the proposed system, air traffic control would shift to what the FAA is euphemistically referring to as "Trajectory Management."  Essentially, air traffic controllers would discontinue active air traffic control and shift instead to air traffic monitoring and route management.  This could have serious implications for the safety of the NAS.

NATCA worries that "air traffic managers" would rely heavily on an automated system and not how to handle an emergency situation should the automated system go down.

For the airlines and general aviation, the problem with NextGen is the "equipage."  NextGen relies on up-to-date technology not only on the ground, but on the aircraft.  In the early 2000's, for example, American Airlines retrofitted its fleet to install the Controller Pilot Data Link Communication system only to have FAA abandon its efforts in 2004.  Airlines probably will be reluctant to equip their fleets until the FAA is able to effectively address the legitimate concern that the technology is good investment.  And that is difficult to do when the funding for the programs to develop the technology is not in place and has not been in place for the past 2 years.

All this assumes that the FAA has in place the management infrastructure to effectively manage and implement NextGen.  Although the GAO pulled ATC Modernization off of its "High-Risk" list, NextGen, as soon as its implementation begins will land on the list.  The GAO has found that the JPDO and ATO have made progress in planning for and developing NextGen, but much is left to do.  As Calvin Scovel, the Department of Transportation Inspector General pointed out, the FAA needs to :

(1) establish[ ] priorities and Agency commitments with stakeholders and reflecting them in budget and plans; (2) manage[ ] NextGen initiatives as portfolios and establish[ ] clear lines of responsibility, authority, accountability; (3) acquire[ ] the necessary skill mix for managing and executing NextGen; and (4) examine[ ] what can reasonably be implemented in given time increments.

Transportation and Infrastructure Committee Chairman James Oberstar (D-Minn.) stated that this was a "foundational" hearing on a topic of importance.  While Congress debates FAA Reauthorization, NextGen and ATC Modernization must move forward.

Lists of Hearing Witnesses and Links to their written testimonies can be found by clicking on the "Continue Reading" link.

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On March 10, 2009, the GAO made public its response to questions submitted for the record related to the February 11, 2009, hearing concerning  the FAA Reauthorization Act of 2009.  At that hearing, Dr. Gerald Dillingham, Director, Physical Infrastructure Issues, was asked a series of questions to which he replied that he would supply written responses at later date.  This document that GAO has now made public are those responses.

Most of the questions concerned NextGen, its implementation, and potential pitfalls that the GAO believes the FAA will encounter.

1. How can the FAA provide incentives to get aircraft equipped to handle NextGen?

Answer:  Through use of some combination of mandated deadlines, operational credits or equipment investment credits.  FAA has proposed a "best-equipped, best-served" program whereby FAA would offer those aircraft operators who choose to equip their aircraft as soon as possible with various operational benefits, such as preferred airspace, routings, or runway access.  Boeing has proposed a "reverse auction" in which federal investment tax credits would be combined with operational benefits.  This program, however would cost about $750 million annually over and above the cost of the implementation of NextGen.

2. List of NextGen technology demonstration projects

Answer:  See the next page for a table of the demonstration projects.

3. Does the GAO distinguish between ATC Modernization and NextGen?

Answer:  The ATC modernization program focused primarily on the acquisition of ATC systems. NextGen is a total transformation of the air transportation system, representing a paradigm shift from air traffic control to air traffic management. It is a shift from ground based radar control of aircraft to a satellite-based, aircraft-centric national airspace system.

4. If Congress were to provide the level of funding outlined in the FAA's preliminary estimate, approximately $1 billion more through 2012 than the most recent Capital Investment Plan, would it help to accelerate the development and deployment of NextGen?

Yes, if Congress provided FAA with additional funding, that funding could be applied to a variety of projects and initiatives that would help to accelerate the development and deployment of NextGen.

5. Would additional funding help to bridge the so-called "NASA Gap?"

The NASA gap has increased in recent years from both the previous administration's cuts to NASA's aeronautics research funding and the expanded requirements of NextGen.

6. Additional research, development and deployment that could be done with funding over and above FAA's Capital Investment Plan funding levels?

GAO found that avionics development and aircraft equipage are two areas that are critical and time sensitive for the implementation of NextGen and could be candidates for increased funding. In addition, additional funding for human factors to aid in the transition from "air traffic control" to "air traffic management" could be used to elucidate the new roles for all participants.

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The U.S. House Committee on Transportation and Infrastructure has proposed H.R. 915, the FAA Reauthorization Act of 2009.  Since funding authorization for aviation programs and authorization for taxes and fees that provide revenue for the FAA expired at the end of fiscal year 2007 and revenue collections and FAA programs have been extended several times (until March 31, 2009), this bill is a priority item for the FAA. What follows is a summary of the provisions of the Reauthorization Bill.

Funding & Financing

• Taxes on aviation users will be increased - Passenger flight segment tax increased to $3.60; International departure and arrival taxes increased to $16.10; Alaska Hawaii facilities tax increased to $8.00.
• Provides historic funding levels for the FAA’s programs between 2009 and 2012, including $16.2 billion for AIP; $13.4 billion for Facilities and Equipment; $38.9 billion for operations; and $1.35 billion for Research, Engineering and Development.

Airports

• Makes several modifications to the current AIP distribution formula that provide significant increases in AIP funding for smaller airports, which are particularly reliant on AIP for capital financing, as well as more AIP discretionary funding.
• Increases Passenger Facility Charge from $4.50 to $7.00.  This provision was strongly supported by Jim Elwood, representing the American Association of Airport Executives.

ATC Modernization and NextGen

• Provides $13.4 billion for the FAA's Facilities and Equipment account.
• Increases the authority and visibility of the Joint Planning and Development Office.
• Requires the JPDO to develop a work plan that details, on a year-by-year basis, specific NextGen-related deliverables and milestones.
• FAA wants to emphasize "infrastructure" improvements at the nations' airports, which includes a full roll-out of NextGen.

Safety

• Includes several safety provisions, such as authorizing additional funds for runway incursion reduction programs and the acquisition and installation of runway status lights.
• Increases the number of aviation safety inspectors and requires safety inspections of foreign repair stations at least twice a year.
• Directs FAA to commence a rulemaking to ensure that covered maintenance work on air carrier aircraft is performed by part 145 repair stations or part 121 air carriers.
• Creates an independent Aviation Safety Whistleblower Investigation Office within the FAA charged with receiving safety complaints and information submitted by both FAA employees and employees of certificated entities.
• Directs FAA to modify its “customer service initiative” to remove air carriers or other entities regulated by the FAA as “customers.”
• Adds a two-year “post-service” cooling off period for FAA inspectors and requires principal maintenance inspectors to rotate between airline oversight offices every five years.

Small Communities

• Increases the total amount authorized for Essential Air Services each year from $127 million to $200 million.
• Requires 50% of over-flight fees collected in excess of $50 million be dedicated to EAS.
• Authorizes the Secretary to enter into long-term EAS contracts that would provide more stability for participating air carriers.
• Reduces local share of AIP projects from 10% to 5% for economically depressed communities.
• Includes several provisions to mitigate the effects of increases in aviation fuel costs by increasing the existing $200 per passenger subsidy cap.
• Extends the Small Community Air Service Development Program through fiscal year 2011, at the current authorized funding level of $35 million per year.

Consumer Protections

• Includes several provisions to ensure passenger needs are met including a mandate that air carriers and airports submit emergency contingency plans and detail in their plans how they allow passengers to deplane following excessive delays.
• DOT is required to publicize and maintain a hotline for consumer complaints, establish an Advisory Committee for Aviation Consumer Protection, expand consumer complaints investigated, and require air carriers to report diverted and canceled flight information monthly.
• DOT Inspector General is asked to report on the causes of air carrier flight delays and cancellations.

Environmental Provisions

• Includes several provisions related to the environment, noise mitigation and land use initiatives, including:
  • An environmental mitigation pilot program;
  • The phasing out of noisy Stage II aircraft;
  • An aircraft departure queue management pilot program;
  • Broadened AIP eligibility to include several energy saving terminal projects; and
  • Requirements for the FAA to build sustainable air traffic control facilities.
• Allows airport operators to reinvest the proceeds from the sale of land that an airport acquired for a noise compatibility purpose, but no longer needs for that purpose, giving priority, in descending order to:
  • Reinvestment in another noise compatibility project;
  • Environmentally-related project
  • Another otherwise-eligible AIP project;
  • Transfer to another public airport for a noise compatibility project; or
  • Payment to the Trust Fund.
• Provides authorization for the Continuous Lower Energy, Emissions and Noise (“CLEEN”) Engine and Airframe Technology partnership to develop, mature and certify CLEEN engine and airframe technology for aircraft over the next 10 years.

Labor

• Modifies the dispute resolution process for proposed changes to the FAA personnel management system, and replaces it with a new dispute resolution process.
• Applies the new dispute resolution process to the ongoing dispute between NATCA and the FAA. That is the changes implemented by the FAA on and after July 10, 2005, would be null and void and the parties will be governed by their last mutual agreement.
• Amends the Railway Labor Act to clarify that employees of an “express carrier” shall only be covered by the RLA if they are employed in a position that is eligible for certification under FAA’s rules and they are actually performing that type of work for the express carrier.
• Requires an assessment of training programs for controllers and air traffic technicians.
• Requires that FAA include employee unions as stakeholders in the development and planning for NextGen.
• Requires the establishment of a Task Force on Air Traffic Control Facility Conditions to determine whether employees are exposed to dangerous environmental conditions in their work place.
• Requires the Secretary to establish within the FAA a working group to develop criteria and make recommendations for the realignment and consolidation of services and facilities.

Aviation Insurance

• Extends requirement until September 30, 2012, that the FAA provide U.S. airlines’ aviation insurance from the first dollar of loss at capped premium rates, after which the requirement becomes discretionary until September 30, 2019.
• After December 31, 2019, such insurance must be provided instead by airline industry-sponsored risk-sharing arrangement approved by the Secretary.

Next Article: Summary of Comments regarding Safety Provisions.

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The U.S. Government Accountability Office today removed FAA air traffic control modernization program in its biennial update of its list of federal programs, policies, and operations that are at "high risk' for waste, fraud, abuse, and mismanagement or in need of broad-based transformation.  See, High Risk Series:  An Update, issued January 22, 2009.

The GAO added FAA air traffic control modernization to the High-Risk List in 1995 due to cost overruns, schedule delays, and performance shortfalls in the FAA attempts to modernize its air traffic control system.  However, the GAO has found that the FAA is making progress in "addressing most of the root cause of its past problems."  The GAO concluded that the FAA's efforts "have yielded results, including deploying new systems across the country and incurring fewer cost overruns." 

That being said, the GAO warned the FAA that it "will be closely monitoring FAA’s efforts because the modernization program is still technically complex and costly, and FAA needs to place a high priority on efficient and effective management."  Moreover, because FAA has now extended its modernization efforts to plan for a next-generation air transportation system that is to transform the current radar-based system to an aircraft-centered, satellite-based system, it must fall into the same pitfalls "that have plagued it in the past."

One thing missing from the GAO report is any discussion about how resolving the labor issues with the Air Traffic Controllers would affect the modernization effort currently underway.  With the emphasis in the GAO Report on equipment and deployment of that upgraded equipment, one wonders about making sure that the humans operating that equipment are well-trained and well-paid.

Other information regarding this document:

• GAO's 2009 High-Risk Series in a list format
• Summary of the GAO Report "High-Risk Series:  An Update"
• Highlights of the GAO Report "High-Risk Series:  An Update"

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In a speech given yesterday to the Department of Transportation, President Bush stated that in:

an age when teenage drivers use GPS systems in their cars, air traffic controllers still use World War II-era radar to guide modern jumbo jets.  That doesn't seem to make any sense to me, and I know it doesn't make sense to the Secretary [of Transportation] and a lot of folks in this audience. Modernizing our aviation system is an urgent challenge.  So today, I'm signing an executive order that makes this task a leading priority for agencies across the federal government.

Since implementation and funding for the "Next Generation Air Transportation System" (NextGen) is contained in the FAA Reauthorization bill, which is stalled in Congress over issues like Acting FAA Administrator Bobby Sturgell's appointment to a full term, the East Coast Airspace Redesign, and Climate Change, Pres. Bush sought to take matters into his own hands by issuing an Executive Order.

The Fact Sheet that accompanied Pres. Bush's speech, claims that the Executive Order

. . . strengthens DOT's coordination with other Federal agencies. The EO will help transform the national air transportation system and effectively implement the NextGen Initiative (Next Generation Air Transportation System) that utilizes satellite-based guidance technology, which is safer, more secure, affordable, and environmentally friendly.

Although the Executive Order does set up a "Senior Policy Committee," and involves the Secretaries of Defense, Commerce and Homeland Security as well as the Secretary of Transportation, the Executive Order seems to be toothless without funding, which can only be supplied (to the extent that NextGen requires it) by Congress.  In essence, the Executive Order simply states that the Secretary of Transportation will take appropriate action to implement NextGen (as stated in Section 709 of Vision 100-Century of Aviation Reauthorization Act) and recommend action for the President to take.

As reported by AvWebBiz, according to Doug Church, spokesman for the National Air Traffic Controllers Association, "[The executive order] certainly appears like yet another new red bow on the same old box, which remains empty. Is the administration now saying modernizing our aviation system was NOT a leading priority up until today?"

President Bush also addressed several other aviation topics in speech:

• Mentioned that the FAA will "start auctioning takeoff and landing slots at New York airports"in January, thus siding with the FAA over the GAO in the intra-governmental spat;
• Suggested giving airlines incentives to "boost efficiency" and encourage them to use larger planes out of the New York area.
• Mentioned that three new runways would be opening up this week at Seattle-Tacoma, Washington-Dulles, and Chicago O'Hare.
• Completion of regulations that provide increased protection for consumers, specifically a measure that will require airlines to provide greater compensation for lost bags as well as tougher penalties when airlines fail to notify travelers of hidden fees.

Related articles:

• "President Bush Orders Priority Action on ATC Modernization." AvWeb, November 19, 2008.
• "President Bush Signs Executive Order To Make Modernization of Aviation System a Top Priority."  RTT News, November 18, 2008.
• "Executive order focuses on NextGen."  AOPA Online, November 19, 2008.
• "Bush Unveils Operational Initiatives."  Aviation Week online, November 19, 2008.

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On October 28, 2008, Acting FAA Administrator Bobby Sturgell rolled out the FAA's 2009-20013 "Flight Plan" at a speech in Oklahoma City, Oklahoma.  The "Flight Plan," in which FAA sets goals for itself, is "the strategic plan for the agency, the plan to help [the agency] prepare for the future."  In the past year, for example, as Acting Administrator Sturgell pointed out, the FAA "reached 25 out of 29 goals," with the remaining goals "probably" being achieved by November 20, 2008.  In other words, the goals set in the Flight Plan are projects and issues that the FAA has good reason to believe it can achieve over the stated planning horizon.

Priority one, according to the Flight Plan, is "dealing with congestion and delays . . . both in the air and on the ground.  Toward that end, the FAA plans to "identify and address capacity-constrained airports and metropolitan areas."  The FAA has identified Atlanta, Chicago Midway, Fort Lauderdale, John Wayne Orange County (CA), Las Vegas, Long Beach, Oakland, Phoenix, San Diego and San Francisco as being "capacity constrained" and provided these airports with a "toolbox" which includes "technological, procedural, and infrastructure improvements to be considered for implementation at airports based on additional capacity needs in the future."

In addition, in FY 2009, the FAA plans to "increase aviation capacity and reduce congestion in the 7 metro areas and corridors that most affect total system delay."  Those areas are:  San Francisco, Los Angeles, Las Vegas, Chicago, Charlotte, New York and Philadelphia.  Apart from continuing the controversial airspace redesign for the New York/New Jersey/Philadelphia Metropolitan area, and the slot auctions for JFK, Newark and LaGuardia, which all spawned lawsuits, the FAA plans on moving forward with the redesign of the airspace for the remaining 7 metro areas.

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