Airports and airlines across the nation last week welcomed the introduction of two bills aimed at alleviating mounting congestion in airport security lines by increasing TSA efficiency and reallocating billions of dollars in security fees paid by passengers.
 
The FASTER Act (H.R. 5340) is aimed at ensuring passenger security fees are used for aviation

The Federal Aviation Administration Reauthorization Act of 2016, passed by the United States Senate on April 19, 2016, and previously reported on in this publication, contains another provision that merits comment.  Section 2506, “Airspace Management Advisory Committee” was introduced by Senators McCain and Flake of Arizona, purportedly to provide a communication channel between the Federal Aviation Administration (“FAA”) and the public concerning FAA programs for redesign of regional airspace over major public airports.   

The Senators were apparently motivated by their constituents after the FAA initiated a massive redesign of the airspace over the region surrounding Phoenix International Airport, causing substantial and widespread public outcry regarding perceived altitude changes and associated aircraft noise increases, especially over neighborhoods not previously overflown.  Despite these reported impacts, FAA found that the airspace changes created no significant aircraft noise impacts, and, thus, chose to document their determination with a categorical exemption from review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”).  The City of Phoenix instituted a two-prong approach in disputing this determination.  It first filed a lawsuit to halt the airspace changes, on the ground that, among other things, a categorical exemption is inapplicable where, among other things, there is a division of an established community caused by movement of noise impacts from one area to another, while at the same time utilizing the political approach by submitting section 2506 through Senators McCain and Flake.  
 
Despite its apparently noble purpose, section 2506 doesn’t quite live up to its publicity.
 


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On August 19, 2014, the Federal Aviation Administration (“FAA”) published a proposed rule regarding “Implementation of Legislative Categorical Exclusion for Environmental Review of Performance Based Navigation  Procedures,” 79 Fed.Reg. 49141 (“CATEX Rule”) to implement the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FRMA”), § 213, directing FAA “to issue and file a categorical exclusion for any navigation performance or other performance based  navigation (PBN) procedure that would result in measureable reductions in fuel consumption, carbon  dioxide emissions, and noise on a per flight basis as compared to aircraft operations that follow existing instrument flight rule procedures in the same airspace.”  79 Fed.Reg. 41941.

FAA was motivated to request public review of the CATEX Rule by the exceptions in FMRA that limits the change in the environmental review requirements to: (1) PBN procedures (excluding conventional operational procedures and projects involving a mix of both), FMRA § 213(c)(2); and (2) those in which there are measurable reductions in fuel consumption, carbon dioxide emissions and noise on a per flight basis, Id., see also, 79 Fed.Reg. 49142, citing FMRA § 213(c)(1).  In addition, FAA feels it necessary to further explore the consequent recommendations of the industry group appointed to develop a metric to capture the new requirement, the NextGen Advisory Committee (“NAC”), made up of 28 members from the “airlines, airports, manufacturers, aviation associations, consultants, and community interests.”  Id.
 


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Responding to the concerns of pilots and the California Energy Commission (“CEC”) regarding the impact of exhaust plumes from power plants on overflying aircraft, the Federal Aviation Administration’s (“FAA”) Airport Obstruction Standard Committee (“AOSC”) completed a Supplement to FAA’s 2006 guidance [“Safety Risk Analysis of Aircraft Overflight of Industrial Exhaust Plumes”].  The purpose of the Supplement is to enhance current FAA regulations which only address standards for the physical height of the smoke stacks, and omit regulation of the impacts of the smoke plume emitted from the stacks, or the emissions contained in them. 

The Supplement is also aimed at obtaining definitive answers to the questions: (1) how much turbulence is created by exhaust plumes; (2) is this turbulence great enough to cause loss of pilot control; (3) if so, what size aircraft are impacted; (4) is there a lack of oxygen causing loss of engine power or danger to pilots/passengers; and, if so, (5) what is the harm to those pilots and passengers?

For two years, from 2008 to 2010, the AOSC conducted a Plume Report Study, which was ultimately determined to need further verification and validation.  In 2011, FAA retained the Federally funded Research and Development Center, operated by Mitre Corporation to answer the questions specified in the earlier Plume Report.  The Mitre Study was completed in September 2012 and verified both FAA’s model and what the earlier FAA reports and studies had concluded.
 


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