Development Law News
In a Press Release issued on Friday, March 27, 2009, announcing selections for several positions in his Administration, President Obama nominated J. Randolph Babbitt to be the Administrator of the Federal Aviation Administration. This nomination has been expected for some time since Capt. Babbitt emerged as a "compromise" candidate.
The Press Release gave the…
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.Continue Reading FAA Reauthorization, NextGen and ATC Modernization Are theTopics Discussed at U.S. Senate Subcommittee on Aviation Hearing
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.
Update 3/30/2009: President Obama has signed HR 1512 the "Federal Aviation Administration Extension Act of 2009," which extends through September 30, 2009, FAA authority to: collect taxes that fund the Airport and Airway Trust Fund; make expenditures from the Airport and Airway Trust Fund; and make grants to airports under the Airport Improvement Program.…
With little fanfare, (FAA announced it through a line item buried deep in its website on its "airport noise" page), PARTNER (Partnership for AiR Transportation Noise and Emissions Reduction) began a new website: NoiseQuest: Aviation Noise Information & Resources. PARTNER, which is "an FAA/NASA/Transport Canada-sponsored Center of Excellence," has lined…
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.
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.
Answer: See the next page for a table of the demonstration projects.
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.
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.
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.
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.
Continue Reading GAO Supplies Responses to Questions Posed at FAA Reauthorization Act Hearing
On Friday, March 6, 2009, the Joint Petitioners in the East Coast Airspace Redesign case now pending in the D.C. Circuit Court of Appeals, filed their Reply Brief, arguing that the FAA failed to comply with 4(f) of the Department of Transportation Act, the Clean Air Act and NEPA.
The Reply Brief takes the…
On March 4, 2009, Rep. James Oberstar (D. Minn.), the Chairman of the House Transportation and Infrastructure Committee offered several amendments to H.R. 915, The “FAA Reauthorization Act of 2009." The following summary of the changes was provided:
Funding of FAA Programs
Revises sections 101, 102, and 104 of H.R. 915 to better align the Federal Aviation Administration’s (“FAA”) Airport Improvement Program (“AIP”) and Facilities & Equipment (“F&E”) funding provisions with the account structure outlined in the FAA’s National Aviation Research Plan. The manager’s amendment moves the Airport Cooperative Research Program and Airports Technology Research funding from the Research, Engineering and Development (“RE&D”) account to the AIP. Similarly, the manager’s amendment shifts funding for the Center for Advanced Aviation System Development from the RE&D account to the F&E account. The manager’s amendment also reduces total funding for RE&D by the same amount as the programs shifted to AIP and F&E.
Authorized Expenditures
Revises section 106(k) to improve safety for medical helicopters by reauthorizing funding for the development and maintenance of approach procedures for heliports that support all-weather, emergency services. This provision was originally included in Title 49 by AIR 21 (P.L. 106-181).
Revises section 106(k) to reauthorize funding for the Alaska aviation safety project with respect to three-dimensional terrain mapping of Alaska’s main aviation corridors for pilot training. This program was originally included in Title 49 by Vision 100 (P.L. 108-176).
Funding for Aviation Programs
Revises section 105 to change the amount initially made available from the Airport and Airway Trust Fund (“Trust Fund”) to support FAA’s budget from 95 percent of the estimated Trust Fund revenues, to 90 percent. This change would provide greater room for error in revenue estimates until the actual level of revenues received for that year is known, and an adjustment is made to reconcile actual amounts deposited to the Trust Fund with actual amounts appropriated from it. Given recent revenue estimates, a 10 percent margin of error is necessary. A year ago, fiscal year (“FY”) 2009 revenues were estimated to be $13.04 billion, but are now estimated to be $11.68 billion, a decrease of approximately 10 percent.
Qualifications-Based Selection
New section 113 requires Qualifications Based Selection (“QBS”) to be used to select planning, architectural and engineering contracts for any airside project funded by Passenger Facility Charges (“PFC”). QBS is an open, competitive procurement process where firms compete on the basis of qualifications, past experience, and the specific expertise they can bring to the project. QBS is currently applicable to planning, architectural, and engineering contracts that utilize AIP funding. Many airports use a mixture of PFC and AIP funds for airside projects.
Solid Waste Recycling Plans
New section 150 requires that airport master plans address the feasibility of solid waste recycling. The Secretary of Transportation may approve a grant for an airport project only if he is satisfied that the airport has a master plan that addresses the feasibility of solid waste recycling at the airport and minimizing the generation of solid waste at the airport. This provision also clarifies that solid waste recycling plans at airports are AIP-eligible by broadening the definition of airport planning.
Personal Net Worth Test for Disadvantage Business Enterprise Programs
New section 137 adjusts the personal net worth (“PNW”) cap for the Disadvantaged Business Enterprise (“DBE”) program as it relates to airport construction projects and airport concessions. To be certified as a DBE (for airport contracting) or an airport concession DBE (“ACDBE”) an individual business owner must be economically disadvantaged. Currently, to be considered economically disadvantaged, a business owner must, among other requirements, have a PNW that does not exceed $750,000, excluding the equity in the individual’s primary residence and the value of their ownership interest in the firm seeking certification. Individuals seeking an ACDBE certification may exclude other assets that the individual can document, which are necessary to obtain financing or a franchise agreement for the initiation or expansion of his or her ACDBE firm (or have in fact been encumbered to support existing financing for the individual’s ACDBE business), up to a maximum of $3 million. This provision would adjust the personal net worth cap for inflation for both programs, making an initial adjustment to correct for the impact of inflation since the cap was originally imposed by the Small Business Administration in 1989, and then making annual adjustments thereafter.
Airport Security Program
Revises section 144 of H.R. 915. The manager’s amendment amends 49 U.S.C. 47137 to allow FAA more flexibility to award contracts, cooperative or other agreements in addition to grants, to a consortium composed of public and private persons including an airport sponsor. The provision also reiterates the DOT’s and other agencies’ obligation to cooperate and provide technical expertise as needed to administer the program, while the DOT retains overall program oversight and funding responsibility. The provision specifies that the award designee be a nonprofit consortium with at least ten years of demonstrated experience in testing and evaluating anti-terrorist technologies at airports. The annual authorization for this program is increased from $5 million to $8.5 million. This provision was originally included in Title 49 by AIR 21 (P.L. 106-181) and amended by Vision 100 (P.L. 108-176).
Airport Master Plans
New section 151 requires the Secretary of Transportation (“Secretary”) to encourage airports to consider customer convenience, airport ground access, and access to airport facilities in airport master plans.Continue Reading Several Amendments Made to H.R. 915, FAA Reauthorization Act of 2009
On February 3, 2009, the U.S. Court of Appeals for the District of Columbia Circuit denied a petition for review of the Federal Aviation Administration’s (FAA) “presumed to conform rule.” 72 Fed.Reg. 41565 (July 30, 2007).
Under the “presumed to conform rule” the FAA can avoid its obligation under the Clean Air Act…
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.…