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.
 


Continue Reading FAA Seeks Comments on Exemption from Environmental Review for New Airspace Procedures

On June 25, 2014, the Federal Aviation Administration (“FAA”) published in the Federal Register, 79 Fed.Reg. 36172, its “Interpretation of the Special Rule for Model Aircraft” (“Interpretation”) established by Congress in the FAA Modernization and Reform Act of 2012, Pub.L. 112-95, § 336 (“FMRA”).  Despite its name, FAA’s interpretation goes far beyond mere definitional clarification.  It is, instead, the first step in establishing FAA’s preemptive authority over Unmanned Aircraft Systems (“UAS”) as “aircraft” utilizing the National Airspace System (“NAS”), even where the operator of an UAS chooses to denominate it a “model aircraft.” 

As a first step in asserting its regulatory authority, FAA takes the position that Congress’ rule in the FMRA is nothing new, but, instead, relies heavily on the long standing statutory and regulatory definition of model aircraft as “aircraft,” i.e., mechanisms that are “invented, used or designed to navigate or fly in the air,” 49 U.S.C. § 40102; 14 C.F.R. § 1.1.  FAA also applies its own 2007 guidelines regarding UAS operating in the NAS, which recognizes that UAS fall within the statutory and regulatory definition of “aircraft” as “devices that are used or intended to be used for flight in the air with no onboard pilot.”  72 Fed.Reg. 6689 (February 13, 2007). 

FAA’s Interpretation, however, goes far beyond the simple inclusion of “model aircraft” in the category of “aircraft.”  The Interpretation expands even further upon FMRA’s three part test defining a “model aircraft” as an “unmanned aircraft” that is: “(1) capable of sustained flight in the atmosphere; (2) flown within the visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”  FMRA, § 336(d). 
 
With regard to FMRA’s second factor, the requirement that the model aircraft stay within the “visual line of sight” of the user, FAA interprets that requirement consistent with FMRA, § 336(c)(2) to mean that: (1) the aircraft must be visible at all times to the operator; (2) that the operator must use his or her own natural vision (including corrective lenses) and not goggles or other vision enhancing devices; and (3) people other than the operator may not be used to maintain the line of sight.  In other words, to maintain the identity as a “model aircraft,” the aircraft cannot be “remotely controlled” from a location other than that at which it is being flown.

The third factor, the definition of what constitutes “hobby or recreational use” is perhaps the thornier. 
 


Continue Reading FAA Weighs in on the Regulation of “Model Aircraft”

While many members of the growing community of developers, manufacturers and operators of Unmanned Aircraft Systems (“UAS”) have expressed enthusiasm at the National Transportation Safety Board Administrative Decision in the Pirker case, Administrator v. Pirker, NTSB Docket CP-217, July 18, 2013, their reaction should be tempered by the law of unintended consequences.  The outcome of the administrative action, which the Federal Aviation Administration (“FAA”) has since appealed, acknowledges not only the FAA regulation that is certain to arise as a result of the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub. L. 112-95, § 334 (“FMRA”), but also opens the door to unrestricted local regulation. 

Specifically, Pirker’s argument is based on the assumption that the UAS at issue is a “five-pound radio-controlled model airplane constructed of styrofoam [sic],” Motion to Dismiss, p. 1.  He does not cite, or even refer to, any operant statutory or regulatory definition of “model aircraft.”  On that basis, Pirker alleges that his operation of the “model airplane” cannot be regulated because FAA has “fallen far behind its own schedule, as well the scheduled mandated by Congress,” Motion to Dismiss, p. 1, for enacting regulations.  Pirker again fails to refer the Court to the full extent of the Congressional mandate in FMRA which effectively disposes of his fundamental argument. 
 


Continue Reading Decision in Pirker Case Invokes Specter of Local Regulation of Unmanned Aircraft Systems

Inspired by Congressional intervention, the Federal Aviation Administration (“FAA”) has begun the process of revising and reorganizing FAA Order 1050.1E, “Environmental Impact: Policies and Procedures” in a new Order, 1050.1F (by the same name).  78 Fed.Reg. 49596-49600 (August 14, 2013).  That in itself would not be particularly notable, except for the importance of the changes that are being made, and their significance for both airport operators and the communities around airports that are the direct recipients of both the disbenefit of the environmental impacts of airport projects, and the potential benefit of the adequate environmental review of those impacts.

The most important of the potential revisions to Order 1050.1E involves FAA’s relief from the burdens of environmental review granted by Congress in the FAA Modernization and Reform Act of 2012, H.R. 658 (112th) (“FMRA”).  Specifically, two legislatively created categorical exclusions are added in 1050.1F, paragraphs 5-6.5q and 5-6.5r, Exemption from NEPA Review which basically give a free pass to changes to air traffic procedures throughout the country.
 


Continue Reading FAA Changes the Rules for National Environmental Policy Act Review

The Federal Aviation Administration (“FAA”) has published in the Federal Register an “Invitation to Comment on Draft FAA Order 5100-38, Airport Improvement Program Handbook” (“Draft AIP Handbook”). 

The Airport Improvement Program (“AIP”) is an airport grant program, pursuant to Airport and Airway Improvement Act of 1982, as amended, 49 U.S.C. § 47101, et seq. (“AAIA”).  The Draft AIP Handbook contains regulations implementing the AIP.  This updated version incorporates substantial changes to the governing statutes, including the recently enacted FAA Modernization and Reform Act of 2012. 

While FAA usually does not solicit comments on what it calls “internal orders” (claiming that the Draft AIP Handbook “contains instructions to FAA employees on implementing the AIP”), FAA recognizes the broad impacts of the Draft AIP Handbook, and the impact on all segments of the airport community of its implementation.  Therefore, FAA is accepting comments until March 18, 2013. 
 


Continue Reading FAA Issues Draft Revisions to the Airport Improvement Program Handbook

Spurred on by Congress, FAA has issued a proposed policy revising its current position “concerning through-the-fence access to a federally obligated airport from an adjacent or nearby property, when that property is used as a residence.”  77 Fed.Reg. 44515, Monday, July 30, 2012.  FAA’s current position, set forth in its previously published interim policy of March 18, 2011, 76 Fed.Reg. 15028, prohibited new residential “through-the-fence” access to Federally obligated airports. 

The change came in response to Congress’ passage of the FAA Modernization and Reform Act of 2012 (“FMRA”) on February 14, 2012.  Section 136 of FMRA permits general aviation (“GA”) airports, defined by the statute as “a public airport . . . that does not have commercial service or has scheduled service with less than 2,500 passenger boardings each year,” to extend or enter into residential through-the-fence agreements with property owners, or associations representing property owners, under specified conditions.  77 Fed.Reg. 44516.  Sponsors of commercial service airports, however, are treated quite differently. 


Continue Reading FAA Again Changes its Position on “Through-the-Fence” Agreements with Owners of Residential Property

While its zeal to protect its citizens from the noise and emissions of aircraft arriving and departing Santa Monica Airport is commendable and understandable, the Santa Monica Airport Commission’s method is questionable.  That is because its recently proposed proportional limitation on aircraft operations (i.e., a limit on future operations at some percent of current operations) appears to be contrary to Federal law.

More specifically, in a Memorandum of on or about August 2, 2012, the Airport Commission proposed a hypothetical restriction whereby “the number of daily operations would be limited to [approximately] 53% of the daily operations from prior years . . . For example, if there were 100 operations on June 6, 2012, then no more than 53 operations would be allowed on June 6, 2013.”  The Vice Chairman of the Airport Commission argues that, because the proposed restriction does not discriminate between aircraft types (as a prior proposed Santa Monica ordinance limiting operations by jet aircraft did), it would withstand judicial scrutiny.  The Commission has apparently forgotten about the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq., (“ANCA”), and its prohibition on the imposition of noise or access restrictions without approval by the Federal Aviation Administration (“FAA”). 
 


Continue Reading Santa Monica Airport Commission Needs to Look Harder at Federal Law in Proposing Aircraft Access Restrictions

On April 13, 2012, as a result of the February 14, 2012 passage of the Federal Aviation Administration Modernization and Reform Act of 2012 (“FMRA”), the Federal Aviation Administration (“FAA”) proposed modifications to the “grant assurances” incorporated into FAA’s contracts with airports that receive FAA funding for physical improvements and/or noise compatibility purposes.  These changes were made in order to ensure the consistency of the grant contracts with the changes arising out of FMRA.  The revisions primarily address three categories of actions: (1) permission for “through the fence” operations under specified conditions; (2) exceptions to current restrictions on use of airport revenues; and (3) revision to rules governing use of revenues gained from disposal of airport property subsidized by FAA. 


Continue Reading The FAA Proposes Changes to its Funding Contracts with Airports

As we reported yesterday in our blog titled “FAA Reauthorization Act Exempts Next Generation Airspace Redesign Projects from Environmental Review,” Congress is set to act on the conference version of H.R. 658 (“Act”), a Bill the nominal purpose of which is to fund the Federal Aviation Administration (“FAA”) for 2011-2014, a task Congress has been unable or unwilling to accomplish for the last two years. 

The legislation goes far beyond funding, however.  Toward another stated purpose – to “streamline programs” – the Act sets out the parameters for establishment and operation of FAA’s Next Generation Transportation System (“NextGen”).  Not stopping there, it also “creates efficiencies” by exempting the NextGen program from environmental review under the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”), Act, § 213.  Thus, whole communities around at least 30 “core” airports might be newly impacted by aircraft overflights seemingly without the opportunity for public review and comment before the NextGen project is implemented, and without an avenue of leverage in the courts afterwards.  All is not yet lost, however.
 


Continue Reading There May Still Be Time to Weigh in on the Congressional Action to Exempt the NextGen Technologies from NEPA Review