Updated April 30, 2018 – In a surprising turnaround of its usual tilt toward the interests of the aviation industry, the United States House of Representatives passed, on April 27, 2018, its version of the six year budget reauthorization for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2018 (“Reauthorization Act”), a number of provisions that appear to address the long smoldering, and vociferously expressed, concerns of the flying public with, among other things, the unannounced “bumping” of passengers with reservations and paid tickets to make way for airline employees; airline employees’ difficulty in dealing with passengers in such stressful situations; the size and orientation of aircraft seats that have been radically shrinking in order to make room for more passengers; and even the absence of ground transportation accessing the airport itself.
Under federal law, airport operators that have accepted federal grants or have obligations contained in property deeds for property transferred under laws such as the Surplus Property Act generally may use airport property only for aviation-related purposes unless otherwise approved by the FAA. Specifically, the Airport and Airway Improvement Act of 1982 (AAIA) (Pub. L. 97–248), as amended and recodified at 49 United States Codes (U.S.C.) 47107(a)(1), and the contractual sponsor assurances require that the airport sponsor make the airport available for aviation use. Grant Assurance 22, Economic Nondiscrimination, requires the sponsor to make the airport available on reasonable terms without unjust discrimination for aeronautical activities, including aviation services. Grant Assurance 19, Operation and Maintenance, prohibits an airport sponsor from causing or permitting any activity that would interfere with use of airport property for airport purposes. In some cases, sponsors who have received property transfers through surplus property and nonsurplus property agreements have similar federal obligations.
On November 7, 2014, the Federal Aviation Administration (“FAA”) published its “Final Policy Amendment” (“Amendment”) to its “Policy and Procedures Concerning the Use of Airport Revenue,” first published 15 years ago in the Federal Register at 64 Fed.Reg. 7696, February 16, 1999 (“Revenue Use Policy”). The Amendment formally adopts FAA’s interpretation of the Federal requirements for use of revenue derived from taxes including sales taxes on aviation fuel imposed by both airport sponsors and governmental agencies, local and State, that are non-airport operators.
It has come to our attention that a legal colleague has authored a blog analogizing the United States Supreme Court’s recent decision upholding the Obama Administration’s health care legislation (“Obamacare”), National Federation of Independent Business, et al. v. Sebelius, et al., 567 U.S. ___ (2012), to the Federal statutes preempting state and local control of the regulation of aircraft operations and their free and open access to airports. The blog attempts to make the case that, because the Court ruled that the Commerce Clause of the United States Constitution does not justify requiring all uninsured Americans to purchase health insurance, so the Commerce Clause somehow cannot justify exclusive Federal regulation of the “safety of navigable airspace,” 49 U.S.C. § 40103(a), and airlines “rates, routes and charges,” 49 U.S.C. § 41713(b)(1). This analysis not only manifestly misapprehends the clear distinction between the two cases, but can also send a damaging message to those who justifiably seek legally supportable means of controlling airport impacts.
On March 20, 2012, in a far reaching opinion, the California Appellate Court for the Second District incurred into the territory usually occupied by the Federal Courts of Appeals, by holding that Federal Aviation Administration (“FAA”) safety standards, published in FAA Advisory Circular 150/5300-13 (“Advisory Circular”) do not preempt state tort law on the standard of care applicable to utilization of an airport’s “Runway Protection Zone” (“RPZ”).
The case, Sierra Pacific Holdings, Inc. v. County of Ventura, 2012 WL 920322 (Cal.App.2 Dist.)), concerns damage to an aircraft owned by Sierra Pacific Holdings, Inc. (“Sierra”), allegedly caused by a barrier erected within the RPZ at Camarillo Municipal Airport. The airport, owned and operated by Ventura County (“County”), erected the barrier for the apparent purpose of preventing runway incursions by police vehicles leasing space in part of the RPZ at the airport. The trial court upheld the County’s motion in limine to exclude evidence of state safety standards relating to “airport design and construction,” on the ground that Federal standards in the Advisory Circular preempt state tort law on the standard of care. The trial court’s holding was based on the Federal government’s “implied preemption” of safety standards at airports, and, thus, the foreclosure of Sierra’s negligence action based on a dangerous condition of public property under state tort law. Cal. Gov. Code § 835. The Appellate Court reversed on the ground that “Congress has not enacted an express preemption provision for FAA safety standards” and, thus, if preemption exists, it must be implied. The Appellate Court’s decision is flawed for at least two reasons.
The permanent closure or “deactivation” of an underutilized public use airport has gained increasing traction among revenue starved airport sponsors, as well as disparate responses from affected parties. Operators seek to save the drain on diminishing budgets; residential communities surrounding the airport hope for relief from the airport’s impacts; and the pilot community sees its access to the dwindling number of general aviation facilities shrinking further. Whatever the rationale, the operator seeking to close and reuse an airport for non-aviation purposes, that has at any time accepted funds from the Federal Aviation Administration (“FAA”), faces substantial regulatory hurdles and complex procedural requirements.
A summary review of Aviation and Airport Development related news and information that was made public during the past week.
- FAA Administrator Babbitt’s Pilot Fatigue Advisory Committee delivers its recommendations. An advisory committee on pilot fatigue,convened by Administrator Babbitt, delivered its recommendations to the Federal Aviation Administration late Tuesday, September 1, 2009. Committee members said the FAA had asked them not to make their recommendations public. Although FAA Administrator Randy Babbitt has promised to vet the recommendations swiftly and turn them into a formal proposal by the FAA, the process will take months to complete. 09/02/09, Denver Post, http://bit.ly/4wAugf
- FAA gives Southwest until December 24, 2009, to replace unapproved parts. The FAA will require Southwest Airlines to replace unapproved parts associated with hinge fittings for the exhaust gate assembly–and which help protect aircraft flaps from engine heat–by December 24, 2009. All other unapproved parts made by the same vendor must also be located and disposed of, and results of aircraft inspections must be sent to the FAA daily. 09/01/09, FAA Press Release, http://bit.ly/5PAe6
- FAA tells Haines, Alaska, it cannot designate flight paths for helicopters. Haines Borough, Alaska, is looking to eliminate flight-path restrictions and expand the number of clients that companies are permitted for commercial helicopter and heli-skiing activities. The FAA has told the borough that it does not have the authority to regulate airspace, but borough leaders respond that they are only designating flight paths as a condition of a borough permit. 08/27/09, Chilkat Valley News, http://bit.ly/CmFqj
- Connecticut Governor furious about low-flying F-18s. Connecticut Governor Jodi Rell was incensed about a low-flying F-18 when neither the state of Connecticut nor the FAA had received advance notice about its flight. A spokesman for Naval Air Force Atlantic stated that the aircraft operated in accordance with all FAA-approved visual flight rules and remained within speed and altitude restrictions. 08/29/09, Hartford Courant, http://bit.ly/P4waO.
- Expansion of Aero Country Airport in McKinney, Texas Causes Problems. McKinney City Council in Texas has approved development on the east side of the Aero Country Airport that could double its size; nearby residents oppose the expansion plans. City By laws state that the City Council cannot reverse its decision, and Mayor Pro Tem Pete Huff seems unconcerned about homeowners who say they will move if the city does not halt the expansion, citing that the airport is part of the town. 08/27/09, NBCDFW.com, http://bit.ly/3vk14h.
- FAA Announces $2.5M grant to soundproof homes in Key West. The Federal Aviation Administration this week approved a $2.5 million grant to soundproof 38 homes impacted by noise at Key West International Airport. 08/29/09, KeysNet.com, http://bit.ly/phcK7
- FAA gives Miami-Dade $4.2M to extend main runway at Kendall-Tamiami Executive Airport. The FAA gave Miami-Dade $4.2 million to extend the main runway at Kendall-Tamiami Executive Airport, which would allow heavier planes to use the airport to travel to and from destinations in Central America, South America, and the Caribbean. With an extended runway Kendall-Tamiami would be able to receive flights that would normally go to Miami International Airport. 08/28/09, South Florida Business Journal, http://bit.ly/sqmn5.
- FAA signs ROD for Columbus (OH) Regional Airport Authority’s plan to move Columbus Airport’s runway farther south. Columbus Regional Airport Authority’s plans to relocate Port Columbus International Airport’s runway farther south along with other improvements has been approved by the FAA, contingent upon environmental remediation in the area. The next issue for the airport is a decision from the FAA on the level it will be funding the project; the government’s intent to fund only a smaller portion might require the airport authority to reapply. 08/28/09, Columbus Business First, http://bit.ly/flHYd.
- NTSB suggests to FAA new altitudes for Hudson Corridor. The NTSB recommended new altitudes to the FAA for helicopters and planes over the Hudson Corridor to prevent something like the Aug. 8 midair collision that killed nine people from reoccurring. In the past, the FAA has often failed to heed NTSB suggestions, with many outstanding recommendations up to 10-15 years old. 08/27/09, The New York Times, http://bit.ly/rFOqg
- Connecticut Attorney General Blumenthal says he will take Airspace Redesign fight to Supreme Court. Connecticut Attorney General Richard Blumenthal is disappointed that the U.S. Court of Appeals for the D.C. Circuit has denied an Aug. 19 request to reconsider its refusal to halt the new FAA airspace redesign project. Mr. Blumenthal is preparing an appeal to the U.S. Supreme Court asking it to overturn the ruling and override the FAA, since the FAA used defective data on noise and traffic and failed to follow its own rules and procedures. 08/26/09, acorn-online.com, http://bit.ly/2UUXRs
- FAA investigates Southwest regarding use of unauthorized parts. FAA air-safety regulators are investigating unauthorized parts installed on at least 42 Southwest Airlines jets and why the carrier’s maintenance-control procedures failed to identify the problem. The suspect parts do not pose an “immediate safety issue” but planes were temporarily grounded. The controversy exemplifies continuing friction between airlines and federal regulators on how to deal with minor maintenance lapses. 08/26/09, Wall Street Journal, http://bit.ly/4n2Srj.
- Houston receives $8.8 million in grants from the FAA. The City of Houston Dept. of Aviation received $8.8 million in grants from the FAA to install new state-of-the-art equipment at George Bush Intercontinental Airport (IAH). The grants, awarded through the FAA’s Airport Improvement Program (AIP) and Voluntary Airport Low Emission (VALE) program, will allow the purchase of equipment and vehicles that are expected to reduce emissions by up to 60 percent. 08/25/09, PRNewswire, http://bit.ly/4hcaM9.
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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
On September 8, 2008, the FAA published a notice in the Federal Register (73 Fed.Reg. 52074) that it is proposing to modify the standard grant application requirements that are required of a sponsor of a non-primary airport before receiving a grant under the Airport Improvement Program (AIP). This modification would require that a sponsor of a nonprimary airport submit a list of the aircraft (both fixed wing and rotary wing) that are based on the airport. The FAA invites public comments on this proposed modification. Comments must be submitted on or before October 8, 2008.
FAA believes that this information is necessary because "accurate information on based aircraft is an important element of justification for many proposed AIP projects at nonprimary airports." In addition, the FAA posits that the information regarding based aircraft "supports the airport’s importance in the biennial Report to Congress – The National Plan of Integrated Airport Systems (NPIAS) and in the Airport Master Record."
FAA defines "based aircraft" as an "operational aircraft that is registered in the FAA Aircraft Registry that is at the airport the majority of the year." The proposal is that the FAA may require a sponsor for a nonprimary airport to include the "N-number" for each based aircraft or to update the list of based aircraft submitted with the most recent Form 5010 inspection. Unfortunately, the Notice does not provide definition of how airports are to determine which aircraft are "based aircraft." The FAA concludes the Notice by stating that it will consider a failure to provide the information "as a factor when considering a request from the airport for discretionary funding."
Comments can be sent or delivered to FAA, Airports Financial Assistance Division, APP-500, Room 619, 800 Independence Avenue, SW., Washington D.C. 20591. Comments can also be submitted electronically by clicking here and then clicking on "Send a Comment or Submission." This will take you to the Regulations.gov page for docket number FAA-2008-0972-0001.