Congress, in Passing the Noise Control Act of 1972, Wanted FAA to Develop Enforceable Standards and Airports to Develop Programs to Protect the Public Health and Welfare

The debates and legislative history of the Noise Control Act of 1972 evidence a desire on the part of Congress to set noise standards in the “airport environment” which must be met “in order to protect the public health and welfare.”

For airports which exceed the target levels, a plan must be developed and submitted by the airport operator which could include controls on the frequency of flights, the hours of airport operation, changes in operational and flight procedures, land use, and other techniques . . .

Senate Debate on S. 3342, October 12, 1972. This system of a locally-produced but federally-enforced plans to meet a federal standard is well-known in the environmental community. Under the Clean Air Act, they are called “State Implementation Plans.” A state develops a SIP, submits it to the EPA for approval, and once approved by the EPA the SIP can be enforced either by the EPA or the state environmental agency. This was the intent of Congress in passing the Noise Control Act of 1972.  In the same debate, Sen. Edmund Muskie (D-ME), stated:

What we propose to do here is to do nothing more than we did in the Clean Air Act of 1970 or the Water Pollution Act of [1972]. We propose to set targets and to set standards which will force industry and the technological community to build the hardware necessary to deal with this problem and in the meantime permit the communities – and the FAA has a veto in the field – to take pragmatic approaches to the problem which will enable them to make at least a beginning toward reducing the noise around airports.

Id. It seems that we should honor the intent of Congress in passing the Noise Control Act of 1972 and have the FAA develop the enforceable standards and have the airports develop programs necessary to protect the public health and welfare from the deleterious effects of aviation noise.

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The FAA Has Failed to Live Up to Goals of Noise Control Act of 1972.

On October 18, 1972, in the Senate debate concerning the Noise Control Act of 1972, then-Senator John V. Tunney of California stated the purpose of the Noise Control Act:

Both the Senate and the House were most concerned with the problem of aircraft noise and, more specifically, with the need to protect public health and welfare in the vicinity of airports from the impact of noise from aircraft operations.

. . . .

Such regulations would be required to include proposed means of reducing noise in airport environments through the application of emission controls on aircraft, the regulation of flight patterns and aircraft and airport operations, and modifications in the number, frequency, or scheduling of flights.

. . . .

Again, I stress that those regulations would include, but would not be limited to, the imposition of curfews on noisy airports, the imposition of flight path alterations in areas where noise was a problem, the imposition of noise emission standards on new and existing aircraft – with the expectation of a retrofit schedule to abate noise emissions from existing aircraft – the imposition of controls to increase the load factor on commercial flights, or other reductions in the joint use of airports, and such other procedures as may be determined useful and necessary to protect public health and welfare.

. . . .

Congress intends that the reasonableness of the cost of any regulation or standard be judged in relation to the purposes of this act, which is to protect public health and welfare from aircraft noise. Costs are to be judged against that goal, not for their effect on air commerce or particular air carriers.

(Emphasis added). Here it is 43 years later and the FAA has not promulgated the regulations that Sen. Tunney stressed. Nor does the FAA judge the reasonableness of the cost of regulation against the goal of protecting public health and welfare from aircraft noise.

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Arizona Sens McCain and Flake Introduce Bill Establishing an Airspace Management Advisory Committee

Last Thursday, February 25, 2016, Arizona Senators John McCain and Jeff Flake introduced a bill (S.2585) that would establish an Airspace Management Advisory Committee. This Committee would review and provide comments on proposals that would change “regulations, policies, or guidance of the Federal Aviation Administration relating to airspace that affects airport operations, airport capacity, the environment, or communities in the vicinity of airports.” In addition, the Committee would review and offer revisions to the current practices and procedures of the FAA concern those changes. In their joint press release, the Senators explained why they introduced the Bill. “While modernizing flight paths is critical to enhancing safety for all travelers, our communities and airports deserve to have a seat at the table before the FAA implements any changes,” said Senator McCain. “Our legislation would ensure that all impacted communities, like those around Phoenix Sky Harbor International Airport, are able to voice their concerns before future changes go into effect.” Senator Flake added that “while I continue to support efforts to improve the safety and efficiency of the national airspace system, it’s clear that the FAA would greatly benefit from working with relevant stakeholders before all major airspace changes go into effect.”

While the development of such a committee is a step in the right direction, there are a few issues with the bill. First, “communities in the vicinity of airports” must be read broadly in order for it to have meaning. In the past, the FAA has concluded that any community beyond the 65 DNL contour is beyond the vicinity of the airport. The FAA’s reasoning is that beyond 65 DNL contour, aircraft noise haws no significant impact on the human environment. There are, however, many communities that are have been harmed by aircraft noise that are outside the 65 DNL contour and are located some distance from the airport. In many cases, this is the result of the creation of flight paths where there were not any before. Thus, “communities in the vicinity of airports” should include those communities where an aircraft, on approach or upon departure, is below 5,000 feet above ground level.

Second, the membership of the Committee does not include any representation from community groups. The Bill states that the Committee shall include “representatives of air carriers, airports of various sizes and types, and State aviation officials.” All of those representatives have a vested interest in the promotion of air commerce. While they may try to be pre-judge their review of FAA proposals, they all have an inherent bias toward the promotion of air commerce at the expense of those people on the ground. In order to make the Committee workable, there needs to be a diversity of opinions that reflect the entire spectrum of thought on these matters.

Senators McCain and Flake should be applauded for their efforts to protect the interests of the families living in areas harmed by aircraft noise. This bill, along with S.2406, “a bill to require the Administrator of the Federal Aviation Administration to review certain decisions to grant categorical exclusions for Next Generation flight procedures and to consult with the airports at which such procedures will be implemented,” shows their concern for the health and well-being of families on ground. With the Senate poised to take up FAA Reauthorization in the coming weeks, let us hope that the voices of the families harmed by aircraft noise are heard.

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Open Letter Regarding the Need for Enforceable Aviation Noise Standards in AIRR

February 23, 2016

Open Letter to:

Members of the U.S. House Transportation & Infrastructure Committee

Members of the U.S. Senate Commerce Committee

Members of the Quiet Skies Caucus

Re:      The Need for Enforceable Noise Standards to be Included in the Aviation Innovation, Reform and Reauthorization Act of 2016.

Dear Madams/Sirs:

After reading the Aviation Innovation, Reform and Reauthorization Act of 2016 (AIRR), I was left with one question: where is the provision that establishes enforceable aviation noise standards? The Transportation & Infrastructure Committee is to be commended for including provisions that will increase community involvement (Sec. 614), require the FAA to review the relationship between aircraft noise exposure and its effects on communities around airports (Sec. 604), revisit certain FAA actions for which a categorical exclusion was taken (Sec. 137), and require the FAA to revisit its methodology for assessing aviation noise (Sec. 138). However, without enforceable aviation noise standards, these provisions mean very little.

Currently, there are no enforceable aviation noise standards. “65 DNL” is not a standard, but rather a threshold, above which the FAA has determined that aviation noise will have a “significant” impact on the human environment. When assessing the environmental impact of a proposed project under the National Environmental Policy Act (NEPA), the FAA uses this threshold. However, even if the noise from a project has a significant impact, and a mitigation program is developed and approved by the FAA, that mitigation program is not enforceable.

Another way that the 65 DNL threshold is used is in the development of “Noise Compatibility Programs” (NCP) and “Noise Exposure Maps” under Part 150 of Title 14 of the Code of Federal Regulations. The Part 150 program, however, is voluntary. In order to entice airports to participate in the program, the statute offers the airports immunity from common law causes of action for aviation noise. See 49 U.S.C. § 47506. But both the FAA and the airports claim that once developed, the NCP is not enforceable.  That is, the FAA will not force an airport to comply with the terms of a FAA-approved NCP. This leaves the airport proprietor free to change the NCP on a whim, selectively carry out the NCP’s provisions, and exclude against certain individuals or populations from receiving the benefits of the NCP without any repercussions.

Thus, the 65 DNL threshold is not enforceable either by the FAA or by citizens affected by the noise. This leaves those citizens without standing or protect themselves and their property from the harm they suffer as a result of aviation noise.

Right now the lack of enforceable aviation noise standards is causing harm to many citizens in Phoenix, Arizona, Los Altos, California, Palo Alto, California, Santa Cruz, California, San Diego, California, Boston, Massachusetts, Chicago, Illinois, New York, New York, Minneapolis, Minnesota, Charlotte, North Carolina, and Seattle, Washington. Citizens in these cities, and the surrounding communities, are not close to the airport and outside the 65 DNL contour, but are experiencing a harmful increase in aviation noise due to shifts in flight paths. They are experiencing aviation noise when they had experienced none, or very little, before. Because the noise they experience is not deemed “significant” by the FAA, the FAA believes it has no duty to mitigate. But damages from aviation noise, even if they are not “significant” by FAA’s standards, are damages nonetheless. And because of the lack of enforceable aviation noise standards, it is much more difficult for the FAA carry out its statutory duty to protect the citizens on the ground from aviation noise.  Moreover, the citizens affected by aviation noise have little recourse against the airlines, the airports, or the FAA for failing to protect them and their families from aviation noise.

Three changes can be made to the aviation laws to rectify this situation, even within the context of the current DNL methodology.

  • The FAA should establish a standard for all commercial aircraft, wherever they might be flying, using the FAA’s authority under 49 U.S.C. § 40103(b)(2) and 49 U.S.C. § 44715. If an aircraft exceeds this standard, the owner of the aircraft would be subject to a fine. The penalty should increase with multiple violations. This standard would be classified as a “noise control requirement” under 42 U.S.C. § 4911(f).
  • Chapter 475 of Title 49 of the United States Code, § 47503 should be amended to read: “an airport operator shall submit to the Secretary of Transportation a noise exposure map . . .” and § 47504 to state that an airport operator “shall submit a noise compatibility program to the Secretary of Transportation . . .” The intent is to include Part 150 noise compatibility planning as part of the airport certificate process.
  • Chapter 475 of Title 49 of the United States Code, which deals with aircraft noise and sets up the statutory authority for the FAA to issue regulations that became Part 150, should be amended. In particular, § 47504 should be amended to add a subsection (b)(5) that states “A program approved by the Secretary under this section shall be deemed a ‘noise control requirement’ under 42 U.S.C. 4911(f).” This would subject the Part 150 Noise Compatibility Program to the citizen’s suit provision of the Noise Control Act.

While the provisions that have been included in AIRR are very helpful and important steps in establishing an aviation noise regulatory system that seeks to protect families and their communities from the public health hazards and risks of harmful aviation noise, they simply do not go far enough to address the problems that currently exist.

Community involvement in government is at the core of our democracy and therefore those affected by harmful aviation noise should unequivocally be included in any discussion when the federal government imposes regulations or policies on citizens. However, it is equally part of democracy that the citizens have the right to redress when the government chooses to enact regulations or policies that harm the citizens. Without enforceable aviation noise standards, citizens have extremely limited options for such redress. That needs to change.

Thank you for your time and consideration of this important issue. A more complete analysis of the situation can be found at https://airportlaw.wordpress.com/2016/02/20/enforceable-aviation-noise-standards-are-needed/

Yours very truly,

TABER LAW GROUP, P.C.

Steven M. Taber

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Enforceable Aviation Noise Standards Are Needed in the Aviation Innovation, Reform and Reauthorization Act of 2016

Recognizing that aviation noise is a public health issue that can no longer be ignored, the Aviation Innovation, Reform and Reauthorization Act of 2016 (AIRR) contains several provisions that seem to address the problem of aviation noise. Section 614, for example, will increase community involvement in processes that may increase aviation noise. Section 604 requires the FAA to review the relationship between aircraft noise exposure and its effects on communities around airports. And Sections 137 requires the FAA to revisit its methodology for assessing aviation noise, while Section 138 requires the FAA to revisit certain actions for which a categorical exclusion was taken. These are steps forward in setting up a more responsive aviation noise regulatory framework. However, without enforceable aviation noise standards, these provisions mean very little.

How We Got to Where We Are.

The Aviation Safety and Noise Abatement Act (ASNA), in conjunction with the previously enacted Noise Control Act, were intended to reduce the amount of aircraft noise experienced by residents who live near airports. The Noise Control Act contains the finding that “The Congress declares that it is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare.” 42 U.S.C. § 4901(b). The plan was to give airports a method of creating a buffer around the airport such that the airport could develop, while getting rid of “incompatible uses” near airports. These Acts gave rise to both the establishment of 65 DNL threshold (49 U.S.C. § 47502) and the “Part 150 Program” (that is, Part 150 of Title 14 of the Code of Federal Regulations).

The 65 DNL threshold is primarily used in two different ways. First, it is used when the FAA is assessing the environmental impact of a project on the human environment pursuant to the National Environmental Policy Act (NEPA). This assessment process is set in FAA Orders, primarily FAA Order 1050.1F and FAA Order 5050.4B. After establishing the current “noise contours” surrounding an airport, usually in 5 DNL increments, the FAA then determines if the project will increase noise by 1.5 DNL or more for a noise sensitive area that is exposed to noise at or above the 65 DNL noise exposure level, or that will be exposed at or above the 65 DNL level due to a 1.5 DNL or greater increase, when compared to the current situation. If the noise would increase by 1.5 DNL, then the FAA deems the increase to be “significant” and the project proponent must develop a mitigation plan. While the development of a mitigation is mandatory, the provisions of that mitigation plan, however, are not enforceable against the project proponent.

The second way the 65 DNL threshold is used is in the development of Part 150 programs. The problem here is that airports are not required to develop a Part 150 Program.  Rather, ASNA stated that airports “may” develop noise exposure maps and “may” develop noise compatibility programs (NCP) based on those noise exposure maps (NEM) that would be approved or disapproved by the FAA. See 49 U.S.C. §§ 47503 and 47504. The Environmental Protection Agency in its role as advisor to the FAA recommended that the Part 150 Program be mandatory and be included in the airport certificate program. The FAA rejected that idea and came up with a program that is voluntary.

Because of the voluntary nature of the program, the results have been mixed.  While most major airports have developed both noise exposure maps and noise compatibility programs, some have not.  For example, LaGuardia Airport, JFK International Airport and Newark International Airport are just now beginning to develop their first Part 150 noise exposure maps and noise compatibility programs. http://www.panynj.gov/press-room/press-item.cfm?headLine_id=2107. Other airports have completed one part of the program, but not the other. This is the case with Chicago O’Hare International Airport, which has noise exposure maps, but has not developed a noise compatibility program.  Finally, there are airports with noise exposure maps and noise compatibility programs, but have not updated either in long time.  Because of the failure of some airports to undertake noise compatibility planning or follow through with the plans that FAA has already approved, residents of the neighborhoods and communities surrounding airports are not treated equally. Some are afforded protection. Others are not.

Apart from the issue of the program being voluntary, Congress also failed to include any enforcement mechanism to ensure that once approved, the noise compatibility program is followed.  However, once approved by the FAA, there is no specific mechanism to ensure that the airport will take any action to implement the noise compatibility program and protect people from the substantial harm presented by aircraft noise. Atlanta Hartsfield-Jackson International Airport is a good example. When the airport wanted to build a fifth runway, the FAA required Atlanta to update its noise compatibility program. That was in September, 2001. It was not until after the fifth runway was built and operating that Atlanta got around to updating its noise compatibility program, which was finally approved by the FAA in January, 2008 – almost seven years after the FAA had stated in its Record of Decision that it must undertake the project and two years after the fifth runway was opened.  But the story does not end there. Atlanta has made only tentative steps to implement its noise compatibility program that the FAA demanded almost 14 years ago. It is Atlanta’s position that because the program is “voluntary,” if a homeowner does not accept its “take it or leave it” offer for acquisition or sound insulation, it will take the homeowner off of the list of properties to receive acquisition or sound insulation. And there is nothing the resident or homeowner can do about it.

New Research Shows Aviation Noise Is More Than Just an “Annoyance,” It Is a Public Health Risk.

In the meantime, there is mounting research showing that aircraft noise has severe physiological effects on humans.  Previously, it was only believed that noise was a “nuisance” or “annoyance,” and that the extent of the physiological effects stemmed from sleep disturbance rather than the noise itself.  However, after years of intensive research in Europe, in October, 2013, two studies on cardiovascular disease associated with aircraft noise were published in the British Medical Journal.  The first was done in the United Kingdom around Heathrow Airport in London, and the second was done in the United States as part of a multi-airport retrospective study led by researchers from Boston University and the Harvard School of Public Health as part of the Partnership for Air Transportation Noise and Emissions Reduction (PARTNER) program sponsored by the FAA. The U.S. study focused on Medicare patients and the British study was based on the total population living around Heathrow.

Both studies came to the same conclusion: aircraft noise cause physiological harm on humans.  Harm that is beyond “annoyance,” “nuisance” or sleep disturbance.  The British study concluded in part:

Main outcome measures Risk of hospital admissions for, and mortality from, stroke, coronary heart disease, and cardiovascular disease, 2001-05. (Abstract, Page 1)

 Conclusion High levels of aircraft noise were associated with increased risks of stroke, coronary heart disease, and cardiovascular disease for both hospital admissions and mortality in areas near Heathrow airport in London. As well as the possibility of causal associations, alternative explanations such as residual confounding and potential for ecological bias should be considered. (Abstract, Page 2)

Our results suggest that high levels of aircraft noise are associated with an increased risk of stroke, coronary heart disease, and cardiovascular disease. (Conclusions Section, Page 5)

Likewise, the U.S. study concluded:

 Results Averaged across all airports and using the 90th centile noise exposure metric, a zip code with 10 dB higher noise exposure had a 3.5% higher (95% confidence interval 0.2% to 7.0%) cardiovascular hospital admission rate, after controlling for covariates.

 Conclusions Despite limitations related to potential misclassification of exposure, we found a statistically significant association between exposure to aircraft noise and risk of hospitalization for cardiovascular diseases among older people living near airports. (Abstract, Page 1)

 Conclusions and future research We found that aircraft noise, particularly characterized by the 90th centile of noise exposure among census blocks within zip codes, is statistically significantly associated with higher relative rate of hospitalization for cardiovascular disease among older people residing near airports.  This relation remained after controlling for individual data, zip code level socioeconomic status and demographics, air pollution, and roadway proximity variables. Our results provide evidence of a statistically significant association between exposure to aircraft noise and cardiovascular health, particularly at higher exposure levels.  (Conclusions and Future Research Section, Page 6).

These very recent British and U.S. studies provide more correlation linking aircraft noise to cardiovascular disease. The studies follow a series of reports from Europe that support the hypothesis that cardiovascular effects are linked to noise exposure.  Because the evidence shows that aircraft noise is deleterious to human health and safety, its mitigation and ensuring that U.S. residents do not live in affected areas ought not to “voluntary,” but mandatory.  Moreover, because those health effects residents and landowners should have recourse to ensure that their health and property are protected or compensated for the effects of aircraft noise on their lives and property.

Issues Created by the Lack of Enforceable Aviation Noise Standards.

Lack of Aviation Noise Standards Damage People and Their Property Away from Airports.

Right now the lack of enforceable aviation noise standards is causing harm to many citizens in Phoenix, Arizona, Los Altos, California, Palo Alto, California, Santa Cruz, California, San Diego, California, Boston, Massachusetts, Chicago, Illinois, New York, New York, Minneapolis, Minnesota, Charlotte, North Carolina, and Seattle, Washington. Citizens in these cities, and the surrounding communities, are not close to the airport and are outside the 65 DNL contour, but are experiencing a harmful increase in aviation noise due to shifts in flight paths. They are experiencing aviation noise when they had experienced none, or very little, before.

The cities listed above provide examples of the problems experienced by citizens on the ground and the failure of the FAA to account for the damage done by their poor planning. In Charlotte, one of the primary issues is the fact that new “RNAV” (area navigation using satellite technology) flight paths concentrated flights into a narrower corridor. Previously, the flight path corridor was three to six nautical miles wide. The RNAV corridor is approximately 0.5 nautical miles wide. Thus, you have the same number of flight operations in a much smaller airspace that concentrates the noise over the ground.

In other cases, this has been due to unintended consequences of the implementation of NextGen in general, and the institution of Performance Based Navigation. Because the FAA rushed through the implementation of new flight paths, it used “categorical exclusions” instead of performing a complete environmental assessment failing to take into account the effect on the surrounding community. Or, if an environmental assessment has been completed, the flight paths chosen are drawn to reduce CO2 emissions and reduce fuel burn while not raising the noise over 1.5 DNL within the 65 DNL contour. This is the case in Santa Cruz, San Diego, Phoenix, Boston, Seattle and Minneapolis. These changes, however, often come at the expense of increasing noise over areas that have not experienced noise before (or experienced very little). In examining the economics of the situation, the FAA has concluded that because there is no “significant” increase in noise as a result of the changed flight paths, or because a categorical exclusion was used, there is no economic impact on the citizens below the changed flight path. This position ignores the reality of the situation.

Finally, there flight paths that have been changed to accommodate changes in runways. This is the case in Chicago. Historically, the primary runways at O’Hare ran northwest to southeast. As the airport developed and the surrounding area developed, the areas to the northwest and southeast of the airport were primarily commercial and industrial. Then Chicago built new runways that run east-west in order, among other things, to provide less interference with other airports to the north and south of O’Hare. The neighborhoods to the east and west of the airport, where airport had been less, are primarily residential. Thus, there was a substantial increase in aviation noise in these neighborhoods. Because the levels were below 65 DNL, however, they were deemed not significant and therefore no mitigation was proposed.

In all of these cases, the FAA told the residents that because the noise they experience is not deemed “significant,” the FAA believes it has no duty to mitigate. But damages from aviation noise, even if they are not “significant” by FAA’s standards, are damages nonetheless. And because of the lack of enforceable aviation noise standards, it is much more difficult for the FAA carry out its statutory duty to protect the citizens on the ground from aviation noise.  Moreover, the citizens affected by aviation noise have little or no recourse against the airlines, the airports, or the FAA for failing to protect them and their families from aviation noise.

Because of the “Voluntary” Nature of Part 150 Programs, Thousands of People Are Left Unprotected from Aviation Noise Through No Fault of Their Own.

As a result of the Noise Control Act, the EPA proposed the creation of mandatory noise abatement programs. Pursuant to the Noise Control Act, the EPA submitted its proposed regulation to the FAA in September, 1979. About a month afterwards, the Aircraft Transportation Association submitted a Petition for Rulemaking to the FAA with its proposed regulation.  Instead of making noise abatement programs mandatory, the ATA sought to have existing and future noise abatement programs be approved by the FAA.  However, before the FAA took any action with regard to either the EPA’s or the ATA’s proposed regulation, the Congress passed ASNA (signed by the President on February 18, 1980), which included the permissive language rather than the mandatory language sought by the EPA.

When the FAA drafted its interim rules for Part 150, it explained its use of permissive language instead of mandatory language by stating:

The EPA recommended that submission of those plans be mandatory by means of requiring them for new or continued certification of the airport. This interim rule, in consonance with the ASNA Act, makes voluntary the development and submission of noise compatibility programs but prescribes the standardized methodology for those programs that are developed for submission to the FAA under the program prescribed in the regulation.

46 Fed.Reg. 8316 (Jan. 26, 1981).  In essence, the FAA stated when it first developed the Part 150 Program that its hands were tied by Congress when it enacted ASNA: “[t]hus, in many respects, the ASNA Act dictates, or significantly influences, the substantive response to both the EPA’s recommended rule and the ATA’s petition for rulemaking.”  Id.

However, there has been one major change since the promulgation of the Part 150 program.  When the Part 150 Program was first proposed, “the statutory duty of the FAA to promote, encourage and develop civil aeronautics” and not to protect the residents and landowners near airports from the ill-effects of aircraft noise.  Since noise abatement would not allow airports to expand as much as they want, the Part 150 Program was made voluntary.  There is no requirement anywhere in federal, state or local law that mandates an airport owner/operator must address the aircraft noise created by the airport. Although the statutes have shifted the focus somewhat from developing air commerce to promoting aviation safety (cf. Federal Aviation Act of 1958 § 102, with 49 U.S.C. § 40101), it still emphasizes the economic aspects of aviation, rather than the protection of lives and property of people on the ground.  The FAA still believes that its mission is to develop, promote and encourages civil aeronautics, even at the expense of the lives and property of people on the ground.

The sole provision referring to the FAA’s duties with respect to people and property on the ground comes in 49 U.S.C. § 40103 which states that the FAA shall prescribe regulations governing air traffic that protect “individuals and property on the ground.”  49 U.S.C. § 40103(b)(2).  This provision, however, refers more generally to protecting the public from aircraft crashes than it does mitigating the harm created by aviation.  See e.g. Ditto v. American Airlines, 1995 U.S. LEXIS 4425, 10 I.E.R. Cas. BNA 1628 (N.D. Ill., April 6, 1996)(“[a]s many courts have already recognized the whole purpose in creating the Federal Aviation Act was to promote safe air travel and to protect the lives and property of people on the ground as well as air travelers”) citing National Organization For Reform of Marijuana Laws (NORML) v. Mullen, 608 F. Supp. 945 (D.C. Cal. 1985), remanded on other grounds, 796 F.2d 276 (9th Cir. 1986); Seiler v. U.S., 655 F. Supp. 452, 454 (D.D.C. 1987); Himmler v. U.S., 474 F. Supp. 914, 916 (D.C. Pa. 1979); In Re Crash Disaster near Silver Plume, Colorado, on October 2, 1970, 445 F. Supp. 384, 400 (D. Kan. 1977).

the FAA needs to take the lead in protecting the lives and property of people on the ground who are severely impacted by the presence of airports, or Congress needs to give that power to another agency who will.  The Part 150 Program needs to be made mandatory for all certificated airports.

Lack of Enforceable Aviation Noise Standards Has Stopped the FAA From Carrying Out Its Statutory Duty to Protect People on the Ground.

The FAA has claimed that it cannot enforce the noise compatibility programs that it approves because they are “voluntary” in the sense that what is and is not included in the noise compatibility program is up to the airport, not the FAA.  FAA’s approval of a Noise Compatibility Program does not, according to the FAA, carry any authority to ensure that the FAA-approved provisions of the Noise Compatibility Program are carried out by the airport.

FAA claims that it can only enforce noise standards through its enforcement of grant assurances.  Specifically, Grant Assurance 21:

21. Compatible Land Use.

It will take appropriate action, to the extent reasonable, including the adoption of zoning laws, to restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with normal airport operations, including landing and takeoff of aircraft. In addition, if the project is for noise compatibility program implementation, it will not cause or permit any change in land use, within its jurisdiction, that will reduce its compatibility, with respect to the airport, of the noise compatibility program measures upon which Federal funds have been expended.

Which has its basis in statute 49 U.S.C. § 47107(a):

(10)      appropriate action, including the adoption of zoning laws, has been or will be taken to the extent reasonable to restrict the use of land next to or near the airport to uses that are compatible with normal airport operations;

49 U.S.C. § 47107(a).  This, according to the FAA, is the only way it can enforce the noise standards in Part 150 and the mitigation programs that an airport agreed to perform in its Noise Compatibility Program. However, the FAA believes that the airport has completed its duty under this grant assurance if the airport simply develops a Noise Compatibility Program.  The FAA believes that the airport has not violated the grant assurance if the airport fails to implement the provisions of the Noise Compatibility Program.

It is not our intent to give more work to the FAA to do.  However, the FAA is unwilling or unable to ensure that the Noise Compatibility Programs that it has approved for airports are carried out. By making Part 150 programs mandatory, it would be clear that Congress’ intent is that the FAA ensure that the Noise Compatibility Programs are implemented.  And, if the FAA fails to carry out its statutory duty, the power should be given to the citizens – to the people and landowners who are severely affected by aircraft noise – ensure that their rights are protected.  Although we would argue that there is already a mechanism in place that gives citizens the right to ensure that airport operators are complying with federally approved noise standards, this method of enforcement already exists, it is implicit and is subject to the scrutiny of the courts.  Thus, the law needs to be changed so that there is no doubt that citizens can enforce federally approved noise compatibility programs in order to get some relief from airport noise.

This type of program is not without precedent in the United States.  Under the Clean Air Act, State Implementation Plans (SIP) are developed by the state and local air quality management agencies as to how they will meet a National Ambient Air Quality Standard. These SIPs are then submitted to the EPA for approval.  Once approved by the EPA, they become enforceable federal law and subject to the citizen’s suit provision of the Clean Air Act. The Part 150 Program could use the SIP program as an example on how programs developed locally can still be enforced federally.

Proposed Legislation.

Standards for Communities Away from Airports, But Still Impacted by Aviation Noise.       

The FAA should establish a standard for all commercial aircraft, wherever they might be flying, using the FAA’s authority under 49 U.S.C. § 40103(b)(2) and 49 U.S.C. § 44715. If an aircraft exceeds this standard, the owner of the aircraft would be subject to a fine. The penalty should increase with multiple violations.  This standard would be classified as a “noise control requirement” under 42 U.S.C. § 4911(f).

Make Part 150 Noise Exposure Maps and Noise Compatibility Programs Required as Part of the Airport Certificate Process.

Amend Chapter 475 of Title 49 of the United States Code, section 47503 to read: “an airport operator shall submit to the Secretary of Transportation a noise exposure map . . .” and section 47504 to state that an airport operator “shall submit a noise compatibility program to the Secretary of Transportation . . .”  The intent is to include Part 150 noise compatibility planning as part of the airport certificate process.

Ensure that Both the Standards Set for Aviation Noise Away from Airports and in Noise Compatibility Programs Are Enforceable by Both the FAA and Affected Citizens.

Amend Chapter 475 of Title 49 of the United States Code, which deals with aircraft noise and sets up the statutory authority for the FAA to issue regulations that became Part 150. In particular, amend § 47504 to add subsection (b)(5) that states “A program approved by the Secretary under this section shall be deemed a ‘noise control requirement’ under 42 U.S.C. § 4911(f).” 42 U.S.C. § 4911 is the citizen’s suit provision of the Noise Control Act.  What this would do is make that section explicitly apply to Part 150 Noise Compatibility Programs.

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Drones Figure Prominently in New FAA Reauthorization Bill

The newly announced H.R. 4441, the “Aviation Innovation, Reform and Reauthroization Act of 2016” (#AIRR) contained a lengthy section relating to “unmanned aircraft systems,” or drones, as most people know them.  Most of the legislation concerned codifying existing law.  That is, sections that concerned drones in the FAA Reauthorization and Reform Act of 2012 have been given their own chapter (Chapter 455 – Unmanned Aircraft Systems) within title 49 of the United States Code.

Although Congress wants the FAA to keep track of its registration process that it put online on December 21, 2016 (see Sec. 441), AIRR codifies the provision that exempts model aircraft, which includes drones flown for hobby or recreational use, from FAA regulation (Sec. 432, § 45507).  This provision is currently the subject of a Petition for Review filed in the United States Court of Appeals for the District of Columbia Circuit.  John Taylor v. Michael Huerta, Case No. 15-1495 (D.C. Cir.).

AIRR also sets up several review boards and requires reports to Congress on FAA’s progress with integrating drones into civil airspace.

Subtitle B—Unmanned Aircraft Systems

SEC. 431. DEFINITIONS.

Except as otherwise provided, the definitions contained in section 45501 of title 49, United States Code  (as added by this Act), shall apply to this subtitle.

SEC. 432. CODIFICATION OF EXISTING LAW; ADDITIONAL PROVISIONS.

(a) IN GENERAL.—Subtitle VII of title 49, United States Code, is amended by inserting after chapter 453 the following:

‘‘CHAPTER 455—UNMANNED AIRCRAFT SYSTEMS

‘‘Sec.

“45501. Definitions.

‘‘45502. Integration of civil unmanned aircraft systems into national airspace system.

‘‘45503. Risk-based permitting of unmanned aircraft systems.

‘‘45504. Public unmanned aircraft systems.

‘‘45505. Special rules for certain unmanned aircraft systems.

‘‘45506. Operation of small unmanned aircraft.

‘‘45507. Special rules for model aircraft.

‘‘45508. Safety information for operation of covered unmanned aircraft.

‘‘§ 45501. Definitions

‘‘In this chapter, the following definitions apply:

‘‘(1) AERIAL DATA COLLECTION.—The term

‘aerial data collection’ means the gathering of data by a device aboard an unmanned aircraft during flight, including imagery, sensing, and measurement by such device.

‘‘(2) ARCTIC.—The term ‘Arctic’ means the United States zone of the Chukchi Sea, Beaufort Sea, and Bering Sea north of the Aleutian chain.

‘‘(3) CERTIFICATE OF WAIVER; CERTIFICATE OF AUTHORIZATION.—The terms ‘certificate of waiver’ and ‘certificate of authorization’ mean a Federal Aviation Administration grant of approval for a specific flight operation.

‘‘(4) MODEL AIRCRAFT.—the term ‘model aircraft’ means an unmanned aircraft that is—

‘‘(A) capable of sustained flight in the atmosphere;

‘‘(B) flown within visual line of sight of the person operating the aircraft; and

‘‘(C) flown for hobby or recreational purposes.

‘‘(5) PERMANENT AREAS.—The term ‘permanent areas’ means areas on land or water that provide for launch, recovery, and operation of small un-manned aircraft.

‘‘(6) PUBLIC UNMANNED AIRCRAFT SYSTEM.—The term ‘public unmanned aircraft system’ means an unmanned aircraft system that meets the qualifications and conditions required for operation of a public aircraft (as defined in section 40102(a)).

‘‘(7) SENSE-AND-AVOID CAPABILITY.—The term ‘sense-and-avoid capability’ means the capability of an unmanned aircraft to remain a safe distance from and to avoid collisions with other airborne aircraft.

‘‘(8) SMALL UNMANNED AIRCRAFT.—The term ‘small unmanned aircraft’ means an unmanned aircraft weighing less than 55 pounds, including everything that is on board the aircraft.

‘‘(9) UNMANNED AIRCRAFT.—The term ‘unmanned aircraft’ means an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.

‘‘(10) UNMANNED AIRCRAFT SYSTEM.—The term ‘unmanned aircraft system’ means an unmanned aircraft and associated elements (including communication links and the components that control the unmanned aircraft) that are required for the pilot in command to operate safely and efficiently in the national airspace system.

‘‘§ 45502. Integration of civil unmanned aircraft systems into national airspace system

‘‘(a) REQUIRED PLANNING FOR INTEGRATION.—

‘‘(1) COMPREHENSIVE PLAN.—Not later than November 10, 2012, the Secretary of Transportation, in consultation with representatives of the aviation industry, Federal agencies that employ unmanned aircraft systems technology in the national airspace system, and the unmanned aircraft systems industry, shall develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.

‘‘(2) CONTENTS OF PLAN.—The plan required under paragraph (1) shall contain, at a minimum, recommendations or projections on—

‘‘(A) the rulemaking to be conducted under subsection (b), with specific recommendations on how the rulemaking will—

‘‘(i) define the acceptable standards for operation and certification of civil unmanned aircraft systems;

‘‘(ii) ensure that any civil unmanned aircraft system includes a sense-and-avoid capability; and

‘‘(iii) establish standards and requirements for the operator and pilot of a civil unmanned aircraft system, including standards and requirements for registration and licensing;

‘‘(B) the best methods to enhance the technologies and subsystems necessary to achieve the safe and routine operation of civil unmanned aircraft systems in the national airspace system;

‘‘(C) a phased-in approach to the integration of civil unmanned aircraft systems into the national airspace system;

‘‘(D) a timeline for the phased-in approach described under subparagraph (C);

‘‘(E) creation of a safe airspace designation for cooperative manned and unmanned flight operations in the national airspace system;

‘‘(F) establishment of a process to develop certification, flight standards, and air traffic requirements for civil unmanned aircraft systems at test ranges where such systems are subject to testing;

‘‘(G) the best methods to ensure the safe operation of civil unmanned aircraft systems and public unmanned aircraft systems simultaneously in the national airspace system; and

‘‘(H) incorporation of the plan into the annual NextGen Implementation Plan document (or any successor document) of the Federal Aviation Administration.

‘‘(3) DEADLINE.—The plan required under paragraph (1) shall provide for the safe integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than September 30, 2015.

‘‘(4) REPORT TO CONGRESS.—Not later than February 14, 2013, the Secretary shall submit to Congress a copy of the plan required under paragraph (1).

‘‘(5) ROADMAP.—Not later than February 14, 2013, the Secretary shall approve and make available in print and on the Administration’s Internet Web site a 5-year roadmap for the introduction of civil unmanned aircraft systems into the national airspace system, as coordinated by the Unmanned Aircraft Program Office of the Administration. The Secretary shall update the roadmap annually.

‘‘(b) RULEMAKING.—Not later than 18 months after the date on which the plan required under subsection (a)(1) is submitted to Congress under subsection (a)(4), the Secretary shall publish in the Federal Register—

‘‘(1) a final rule on small unmanned aircraft systems that will allow for civil operation of such systems in the national airspace system, to the extent the systems do not meet the requirements for expedited operational authorization under section 45506;

‘‘(2) a notice of proposed rulemaking to implement the recommendations of the plan required under subsection (a)(1), with the final rule to be published not later than 16 months after the date of publication of the notice; and

‘‘(3) an update to the Administration’s most recent policy statement on unmanned aircraft systems, contained in Docket No. FAA–2006–25714.

‘‘(c) EXPANDING USE OF UNMANNED AIRCRAFT SYSTEMS IN ARCTIC.—

‘‘(1) IN GENERAL.—Not later than August 12, 2012, the Secretary shall develop a plan and initiate a process to work with relevant Federal agencies and national and international communities to designate permanent areas in the Arctic where small unmanned aircraft may operate 24 hours per day for research and commercial purposes. The plan for operations in these permanent areas shall include the development of processes to facilitate the safe operation of unmanned aircraft beyond line of sight. Such areas shall enable over-water flights from the surface to at least 2,000 feet in altitude, with ingress and egress routes from selected coastal launch sites.

‘‘(2) AGREEMENTS.—To implement the plan under paragraph (1), the Secretary may enter into an agreement with relevant national and international communities.

‘‘(3) AIRCRAFT APPROVAL.—Not later than 1 year after the entry into force of an agreement necessary to effectuate the purposes of this subsection, the Secretary shall work with relevant national and international communities to establish and implement a process, or may apply an applicable process already established, for approving the use of unmanned aircraft in the designated permanent areas in the Arctic without regard to whether an unmanned aircraft is used as a public aircraft, a civil aircraft, or a model aircraft.

‘‘§ 45503. Risk-based permitting of unmanned aircraft systems

‘‘(a) IN GENERAL.—Not later than 120 days after the date of enactment of this section, the Administrator of the Federal Aviation Administration shall establish procedures for issuing permits under this section with respect to certain unmanned aircraft systems and operations thereof.

‘‘(b) PERMITTING STANDARDS.—Upon the submission of an application in accordance with subsection (d), the Administrator shall issue a permit with respect to the proposed operation of an unmanned aircraft system if the Administrator determines that—

‘‘(1) the unmanned aircraft system and the proposed operation achieve a level of safety that is equivalent to—

‘‘(A) other unmanned aircraft systems and operations permitted under regulation, exemption, or other authority granted by the Administrator; or

‘‘(B) any other aircraft operation approved by the Administrator with similar risk characteristics or profiles; and

‘‘(2) the applicant for the permit has adequate liability insurance based on the criteria specified in subsection (c).

‘‘(c) SAFETY CRITERIA FOR CONSIDERATION.—In determining whether a proposed operation meets the  standards described in subsection (b), the Administrator shall consider the following safety criteria:

‘‘(1) The kinetic energy of the unmanned aircraft system.

‘‘(2) The location of the proposed operation, including the proximity to—

‘‘(A) structures;

‘‘(B) congested areas;

‘‘(C) special-use airspace; and

‘‘(D) persons on the ground.

‘‘(3) The nature of the operation, including any proposed risk mitigation.

‘‘(4) Any known hazard of the proposed operation and the severity and likelihood of such hazard.

‘‘(5) Any known failure modes of the unmanned aircraft system, failure mode effects and criticality, and any mitigating features or capabilities.

‘‘(6) The operational history of relevant technologies, if available.

‘‘(7) Any history of civil penalties or certificate actions by the Administrator against the applicant seeking the permit.

‘‘(8) Any other safety criteria the Administrator considers appropriate.

‘‘(d) APPLICATION.—An application under this section shall include evidence that the unmanned aircraft system and the proposed operation thereof meet the standards described in subsection (b) based on the criteria described in subsection (c).

‘‘(e) SCOPE OF PERMIT.—A permit issued under this section shall—

‘‘(1) be valid for 5 years;

‘‘(2) constitute approval of both the airworthiness of the unmanned aircraft system and the proposed operation of such system;

‘‘(3) be renewable for additional 5-year periods; and

‘‘(4) contain any terms necessary to ensure aviation safety.

‘‘(f) NOTICE.—Not later than 120 days after the Administrator receives a complete application under subsection (d), the Administrator shall provide the applicant written notice of a decision to approve, disapprove, or request a modification of the application.

‘‘(g) PERMITTING PROCESS.—The Administrator hall issue a permit under this section without regard to subsections (b) through (d) of section 553 of title 5 and chapter 35 of title 44 if the Administrator determines that the operation permitted will not occur near a congested area.

‘‘(h) EXEMPTION FROM CERTAIN REQUIREMENTS.—To the extent consistent with aviation safety, the Administrator may exempt applicants under this section from paragraphs (1) through (3) of section 44711(a).

‘‘(i) WITHDRAWAL.—The Administrator may, at any time, modify or withdraw a permit issued under this section.

‘‘(j) APPLICABILITY.—This section shall not apply to small unmanned aircraft systems and operations addressed by the proposed rule on small unmanned aircraft systems issued pursuant to section 45502(b)(1) or any final rule based on such proposed rule.

‘‘(k) EXPEDITED REVIEW.—The Administrator shall review and act upon applications under this section on an expedited basis for unmanned aircraft systems and operations thereof to be used primarily in, or primarily in direct support of, emergency preparedness, response, or disaster recovery.

‘‘§ 45504. Public unmanned aircraft systems

‘‘(a) GUIDANCE.—Not later than November 10, 2012, the Secretary of Transportation shall issue guidance regarding the operation of public unmanned aircraft systems to—

‘‘(1) expedite the issuance of a certificate of authorization process;

‘‘(2) provide for a collaborative process with public agencies to allow for an incremental expansion of access to the national airspace system as technology matures and the necessary safety analysis and data become available, and until standards are completed and technology issues are resolved;

‘‘(3) facilitate the capability of public agencies to develop and use test ranges, subject to operating restrictions required by the Federal Aviation Administration, to test and operate unmanned aircraft systems; and

‘‘(4) provide guidance on a public entity’s responsibility when operating an unmanned aircraft without a civil airworthiness certificate issued by the Administration.

‘‘(b) STANDARDS FOR OPERATION AND CERTIFICATION.—Not later than December 31, 2015, the Administrator shall develop and implement operational and certification requirements for the operation of public unmanned aircraft systems in the national airspace system.

‘‘(c) AGREEMENTS WITH GOVERNMENT AGENCIES.—

‘‘(1) IN GENERAL.—Not later than May 14, 2012, the Secretary shall enter into agreements with appropriate government agencies to simplify the process for issuing certificates of waiver or authorization with respect to applications seeking authorization to operate public unmanned aircraft systems in the national airspace system.

‘‘(2) CONTENTS.—The agreements shall—

‘‘(A) with respect to an application described in paragraph (1)—

‘‘(i) provide for an expedited review of the application;

‘‘(ii) require a decision by the Administrator on approval or disapproval within 60 business days of the date of submission of the application; and

‘‘(iii) allow for an expedited appeal if the application is disapproved;

‘‘(B) allow for a one-time approval of similar operations carried out during a fixed period of time; and

‘‘(C) allow a government public safety agency to operate unmanned aircraft weighing 4.4 pounds or less, if operated—

‘‘(i) within the line of sight of the operator;

‘‘(ii) less than 400 feet above the ground;

‘‘(iii) during daylight conditions;

‘‘(iv) within Class G airspace; and

‘‘(v) outside of 5 statute miles from any airport, heliport, seaplane base, spaceport, or other location with aviation activities.

‘‘§ 45505. Special rules for certain unmanned aircraft systems

‘‘(a) IN GENERAL.—Notwithstanding any other requirement of this subtitle, and not later than August 12, 2012, the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system before completion of the plan and rulemaking required by section 45502 or the guidance required under section 45504.

‘‘(b) ASSESSMENT OF UNMANNED AIRCRAFT SYSTEMS.—In making the determination under subsection (a), the Secretary shall determine, at a minimum—

‘‘(1) which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security; and

‘‘(2) whether a certificate of waiver, certificate of authorization, or airworthiness certification under section 44704 is required for the operation of unmanned aircraft systems identified under paragraph (1).

‘‘(c) REQUIREMENTS FOR SAFE OPERATION.—If the Secretary determines under this section that certain unmanned aircraft systems may operate safely in the national airspace system, the Secretary shall establish requirements for the safe operation of such aircraft systems in the national airspace system.

‘‘§ 45506. Operation of small unmanned aircraft

‘‘(a) EXEMPTION AND CERTIFICATE OF WAIVER OR AUTHORIZATION FOR CERTAIN OPERATIONS.—Not later than 270 days after the date of enactment of this section, the Administrator of the Federal Aviation Administration shall establish a procedure for granting an exemption and issuing a certificate of waiver or authorization for the operation of a small unmanned aircraft system in United States airspace for the purposes described in section 45501(1).

‘‘(b) OPERATION OF EXEMPTION AND CERTIFICATE OF WAIVER OR AUTHORIZATION.—

‘‘(1) EXEMPTION.—An exemption granted under this section shall—

‘‘(A) exempt the operator of a small unmanned aircraft from the provisions of title 14, Code of Federal Regulations, that are exempted in Exemption No. 11687, issued on May 26, 2015, Regulatory Docket Number FAA–2015–24 0117, or in a subsequent exemption; and

‘‘(B) contain conditions and limitations described in paragraphs 3 through 31 of such Exemption No. 11687, or conditions and limitations of a subsequent exemption.

‘‘(2) CERTIFICATE OF WAIVER OR AUTHORIZATION.—A certificate of waiver or authorization issued under this section shall allow the operation of small unmanned aircraft according to—

‘‘(A) the standard provisions and air traffic control special provisions of the certificate of waiver or authorization FAA Form 7711–1 (7–12 74); or

‘‘(B) the standard and special provisions of a subsequent certificate of waiver or authorization.

‘‘(c) NOTICE TO ADMINISTRATOR.—Before operating a small unmanned aircraft pursuant to a certificate of waiver or authorization granted under this section, the operator shall provide written notice to the Administrator, in a form and manner specified by the Administrator, that contains such information and assurances as the Administrator determines necessary in the interest of aviation safety and the efficiency of the national airspace system, including a certification that the operator has read, understands, and will comply with all terms, conditions, and limitations of the certificate of waiver or authorization.

‘‘(d) WAIVER OF AIRWORTHINESS CERTIFICATE.— Notwithstanding section 44711(a)(1), the holder of a certificate of waiver or authorization granted under this section may operate a small unmanned aircraft under the terms, conditions, and limitations of such certificate without an airworthiness certificate.

‘‘(e) PROCEDURE.—The granting of an exemption or the issuance of a certificate of waiver or authorization, or any other action authorized by this section, shall be made without regard to—

‘‘(1) section 553 of title 5; or

‘‘(2) chapter 35 of title 44.

‘‘(f) STATUTORY CONSTRUCTION.—Nothing in this section may be construed to—

‘‘(1) affect the issuance of a rule by or any other activity of the Secretary of Transportation or the Administrator under any other provision of law; or

‘‘(2) invalidate an exemption or certificate of waiver or authorization issued by the Administrator before the date of enactment of this section.

‘‘(g) EFFECTIVE PERIODS.—An exemption or certificate of waiver or authorization issued under this section, or an amendment of such exemption or certificate, shall cease to be valid on the effective date of a final rule on small unmanned aircraft systems issued under section 45502(b)(1).

‘‘(h) APPLICABILITY.—

‘‘(1) DEFAULT.—The requirements of this section shall apply beginning on the date that is 270 days after the date of enactment of this Act unless the Administrator issues, before such date, a final rule based on the notice of proposed rulemaking issued on February 23, 2015, entitled ‘Operation and Certification of Small Unmanned Aircraft Systems’ (80 Fed. Reg. 9543).

‘‘(2) EXPIRATION.—The requirements of this section shall not be effective beginning on the date on which the Administrator issues a final rule based on the notice of proposed rulemaking issued on February 23, 2015, entitled ‘Operation and Certification of Small Unmanned Aircraft Systems’ (80 Fed. Reg. 20 9543).

‘‘§ 45507. Special rules for model aircraft

‘‘(a) IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if—

‘‘(1) the aircraft is flown strictly for hobby or recreational use;

‘‘(2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a community-based organization;

‘‘(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;

‘‘(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and

‘‘(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air  traffic facility is located at the airport)).

‘‘(b) COMMERCIAL OPERATION FOR INSTRUCTIONAL 5 OR EDUCATIONAL PURPOSES.—A flight of an unmanned aircraft shall be treated as a flight of a model aircraft for purposes of subsection (a) (regardless of any compensation, reimbursement, or other consideration exchanged or incidental economic benefit gained in the course of planning, operating, or supervising the flight), if the flight is—

‘‘(1) conducted for instructional or educational purposes; and

‘‘(2) operated or supervised by an eligible not-for-profit organization.

‘‘(c) STATUTORY CONSTRUCTION.—Nothing in this section may be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.

‘‘(d) ELIGIBLE NOT-FOR-PROFIT ORGANIZATION DEFINED.—In this section, the term ‘eligible not-for-profit organization’ means an entity that—

‘‘(1) is described in section 501(c)(3) of the Internal Revenue Code of 1986;

‘‘(2) is exempt from tax under section 501(a) of the Internal Revenue Code of 1986;

‘‘(3) the mission of which is demonstrably the furtherance of model aviation;

‘‘(4) provides a comprehensive set of safety guidelines for all aspects of model aviation addressing the assembly and operation of model aircraft and that emphasize safe aeromodeling operations within the national airspace system and the protection and safety of individuals and property on the ground;

‘‘(5) provides programming and support for any local charter organizations, affiliates, or clubs; and

‘‘(6) provides assistance and support in the development and operation of locally designated model aircraft flying sites.

‘‘§ 45508. Safety information for operation of covered unmanned aircraft

“Beginning not later than 120 days after the date of enactment of this section, the Administrator of the Federal Aviation Administration shall make available to the public, through electronic or other suitable means, information developed jointly by the Federal Aviation Administration and appropriate non-governmental organizations relating to the safe operation of unmanned aircraft in United States airspace that includes—

‘‘(1) notice of the existence of airspace boundaries, designated navigational routes, and navigable airspace;

‘‘(2) the requirements for entry into and operation within class A, B, C, D, and E airspace, as defined in subparts A through E of part 71 of title 14, Code of Federal Regulations (or any successor provisions);

‘‘(3) notice of the existence and a description of Federal aviation regulations applicable to the flight of unmanned aircraft, including regulations prohibiting careless and reckless operation and operation of unairworthy aircraft in part 91 of such title (or any successor provisions);

‘‘(4) notice of sources of aeronautical information and applicable regulations, including publicly available resources for determining the locations of airports, designated navigational routes, and controlled airspace;

‘‘(5) notice of criminal and civil penalties that may result from unlawful operation of unmanned aircraft; and

‘‘(6) examples of the hazards associated with the operation of an unmanned aircraft—

‘‘(A) in a careless or reckless manner;

‘‘(B) in an unairworthy condition; and

‘‘(C) in proximity to other aircraft.’’.

(b) CONFORMING AMENDMENTS.—

(1) REPEALS.—

(A) IN GENERAL.—Sections 332(a), 332(b), 332(d), 333, 334, and 336 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) are repealed.

(B) CLERICAL AMENDMENT.—The items relating to sections 333, 334, and 336 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) in the table of contents contained in section 1(b) of that Act are repealed.

(2) PENALTIES.—Section 46301 of title 49, United States Code, is amended—

(A) in subsection (a)—

(i) in paragraph (1)(A) by inserting ‘‘chapter 455,’’ after ‘‘chapter 451,’’; and

(ii) in paragraph (5)(A)(i) by striking ‘‘or chapter 451,’’ and inserting ‘‘chapter 451, chapter 455,’’;

(B) in subsection (d)(2) by inserting ‘‘chapter 455,’’ after ‘‘chapter 451,’’; and

(C) in subsection (f)(1)(A)(i) by striking ‘‘or chapter 451’’ and inserting ‘‘chapter 451, or chapter 455’’.

(3) CLERICAL AMENDMENT.—The analysis for subtitle VII of title 49, United States Code, is amended by inserting after the item relating to chapter 453 the following:

‘‘455. Unmanned aircraft systems ……………………………………….45501’’.

 

SEC. 433. UNMANNED AIRCRAFT TEST RANGES.

 

(a) EXTENSION OF PROGRAM.—Section 332(c)(1) of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 40101 note) is amended by striking ‘‘5 years after the date of enactment of this Act’’ and inserting ‘‘5 years after the date of enactment of the Aviation Innovation, Reform, and Reauthorization Act of 2016’’.

(b) SENSE-AND-AVOID TECHNOLOGIES AT TEST RANGES.—

(1) IN GENERAL.—To the extent consistent with aviation safety, the Administrator of the Federal Aviation Administration shall permit and encourage flights of unmanned aircraft systems equipped with sense-and-avoid technologies at the 6 test ranges designated under section 332(c) of the FAA Modernization and Reform Act of 2012.

(2) WAIVERS.—In carrying out paragraph (1), the Administrator may waive the requirements of section 44711 of title 49, United States Code, including related regulations, to the extent consistent with aviation safety.

(c) PROVISIONAL CIVIL OPERATION OF SMALL UNMANNED AIRCRAFT SYSTEMS AT TEST RANGES.—

(1) IN GENERAL.—In carrying out the program established under section 332(c) of the FAA Modernization and Reform Act of 2012, and subject to the requirements of paragraph (2), the Secretary shall allow civil operation of small unmanned aircraft systems at the 6 test ranges designated pursuant to that section.

(2) REQUIREMENTS.—The Secretary shall provide that—

(A) operations of small unmanned aircraft systems occur exclusively within airspace designated in an applicable certificate of authorization or waiver; and

(B) notwithstanding section 44711 of title 49, United States Code, operations are conducted, to the extent practicable, pursuant to the proposed rule on small unmanned aircraft systems issued pursuant to section 45502(b)(1) of such title, or any final rule issued based on that proposed rule, except that a passing grade on the aeronautical knowledge test required for a sport pilot certificate described in part 61 of title 14, Code of Federal Regulations, or more advanced aeronautical knowledge test under uch part, shall be treated as satisfying the aeronautical knowledge testing requirement contained in such proposed rule.

(3) SUNSET.—This subsection shall cease to be effective on the date that is the earlier of—

(A) 5 years after the date of enactment of this Act; and

(B) the date of publication of a final rule based on the proposed rule described under paragraph (2)(B).

(d) DEFINITION OF TEST RANGE.—In this section, the term ‘‘test range’’ means a defined geographic area where research and development are conducted.

 

SEC. 434. UNMANNED AIRCRAFT SYSTEMS SENIOR LEADERSHIP AND STAFFING.

 

(a) INTRA-AGENCY LEADERSHIP.—

(1) UNMANNED AIRCRAFT SYSTEMS INTEGRATION OFFICE.—There is in the Federal Aviation Administration an Unmanned Aircraft Systems Integration Office (in this section referred to as the ‘‘Office’’).

(2) CHIEF UNMANNED AIRCRAFT SYSTEMS INTEGRATION OFFICER.—

(A) DESIGNATION.—Not later than 30 days after the date of enactment of this Act, the Administrator of the Federal Aviation Administration shall designate an individual to serve as the head of the Office, to be known as the Chief Unmanned Aircraft Systems Integration Officer.

(B) DUTIES; REPORTING.—The Chief Unmanned Aircraft Systems Integration Officer shall—

(i) report directly to the Associate Administrator for Aviation Safety (or a successor position);

(ii) have the duties and functions of the position of the Director of the UAS Integration Office, as of the date of enactment of this section; and

(iii) optimize intra-agency efforts to establish a sound technical and safety methodology for the integration of unmanned aircraft systems into the national airspace system.

(b) INTERAGENCY LEADERSHIP.—

(1) DIRECTOR OF UAS EXTERNAL AFFAIRS.— Not later than 30 days after the date of enactment of this Act, the Administrator shall designate an individual to serve as the head of interagency efforts on unmanned aircraft systems integration for the Administration, to be known as the Director of UAS External Affairs.

(2) DUTIES; REPORTING.—The individual designated under paragraph (1) shall—

(A) report directly to the Deputy Administrator;

(B) have the duties and functions of the position of Senior Advisor on UAS Integration, as of the date of enactment of this section; and

(C) focus on external outreach, education, and interagency initiatives consistent with the Administration’s management of unmanned aircraft systems integration efforts.

(c) STAFFING.—The Administrator shall designate a sufficient number of safety inspectors to focus on the safety oversight of unmanned aircraft systems into the national airspace system, taking into consideration the current and anticipated—

(1) budgetary environment; and

(2) volume of unmanned aircraft system operations.

 

SEC. 435. SENSE OF CONGRESS REGARDING UNMANNED AIRCRAFT SAFETY.

 

It is the sense of Congress that—

(1) the unauthorized operation of unmanned aircraft near airports presents a serious hazard to aviation safety;

(2) with increasing regularity, pilots are reporting near misses with unmanned aircraft at low altitudes during critical phases of flight, either on final approach or shortly after takeoff;

(3) a collision between an unmanned aircraft and a conventional aircraft in flight could jeopardize the safety of persons aboard aircraft and on the ground;

(4) Federal aviation regulations, including sections 91.126 through 91.131 of title 14, Code of Federal Regulations, prohibit unauthorized operation of an aircraft in controlled airspace near an airport;

(5) Federal aviation regulations, including section 91.13 of title 14, Code of Federal Regulations, prohibit the operation of an aircraft in a careless or reckless manner so as to endanger the life or property of another;

(6) the Administrator of the Federal Aviation Administration should pursue all available civil and administrative remedies available to the Administrator, including referrals to other government agencies for criminal investigations, with respect to persons who operate unmanned aircraft in an unauthorized manner;

(7) the Administrator should place particular priority on continuing measures, including partnerships with nongovernmental organizations, to educate the public about the dangers to the public safety of operating unmanned aircraft near airports without the appropriate approvals or authorizations; and

(8) manufacturers and retail sellers of small unmanned aircraft systems should take steps to educate consumers about the safe and lawful operation of such systems.

 

SEC. 436. UAS PRIVACY REVIEW.

 

(a) REVIEW.—The Secretary of Transportation, in consultation with the heads of appropriate Federal agencies, appropriate State and local officials, and subject-matter experts and in consideration of relevant efforts led by the National Telecommunications and Information Administration, shall carry out a review to identify any potential reduction of privacy specifically caused by integration of unmanned aircraft systems into the national airspace system.

(b) CONSULTATION.—In carrying out the review, the Secretary shall consult with the National Telecommunications and Information Administration of the Department of Commerce on its ongoing efforts responsive to the presidential memorandum titled ‘‘Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems’’ and dated February 15, 2015.

(c) REPORT.—Not later than 180 days after the date of enactment of this Act, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report on the results of the review required under subsection (a).

 

SEC. 437. PUBLIC UAS OPERATIONS BY TRIBAL GOVERNMENTS.

 

(a) PUBLIC UAS OPERATIONS BY TRIBAL GOVERNMENTS.—Section 40102(a)(41) of title 49, United States Code, is amended by adding at the end the following:

‘‘(F) An unmanned aircraft that is owned and operated by, or exclusively leased for at least 90 continuous days by, an Indian tribal government, as defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122), except as provided in section 40125(b).’’.

(b) CONFORMING AMENDMENT.—Section 40125(b) of title 49, United States Code, is amended by striking ‘‘or (D)’’ and inserting ‘‘(D), or (F)’’.

 

SEC. 438. FACILITATING UNMANNED AIRCRAFT AUTHORIZATION IN SUPPORT OF FIREFIGHTING OPERATIONS.

 

The Administrator of the Federal Aviation Administration shall enter into agreements with the Secretary of the Interior and the Secretary of Agriculture as necessary to continue the expeditious authorization of safe unmanned aircraft system operations in support of firefighting operations consistent with the requirements of section 45504(c) of title 49, United States Code.

SEC. 439. LOW ALTITUDE UNMANNED AIRCRAFT SYSTEM TRAFFIC MANAGEMENT.

(a) ESTABLISHMENT OF ADVISORY COMMITTEE.—

Not later than 90 days after the date of enactment of this Act, the Administrator of the Federal Aviation Administration shall establish an advisory committee comprised of government representatives and appropriate industry representatives to—

(1) assess the necessity, feasibility, and benefits of establishing unmanned aircraft traffic management systems for airspace between the surface and 400 feet above ground level;

(2) develop recommendations for government oversight of such systems; and

(3) address any other issues the advisory panel considers necessary and appropriate.

(b) REPORT.—Not later than 1 year after the establishment of the advisory committee under subsection (a), the Administrator shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report on the findings of the advisory committee.

(c) SUNSET.—The advisory committee shall terminate upon transmission of the report pursuant to subsection (b).

 

SEC. 440. UAS DETECTION SYSTEMS PILOT PROGRAM.

 

(a) ESTABLISHMENT.—Not later than 180 days after the date of enactment of this Act, the Secretary of Transportation shall establish a pilot program to deploy and evaluate the effectiveness of unmanned aircraft detection systems in maintaining the safety of air commerce and navigable airspace in light of aviation safety hazards posed by unauthorized operations of unmanned aircraft in proximity to airports.

(b) PARTICIPATING AIRPORTS.—The Secretary shall select not fewer than 3 airports in the United States with scheduled commercial air service that the Secretary determines to be suitable locations for participation in the pilot program.

(c) DETECTION CAPABILITIES.—In carrying out the pilot program under subsection (a), the Secretary may utilize unmanned aircraft detection systems to—

(1) detect, locate, and track unmanned aircraft;

(2) detect, locate, and track operators of unmanned aircraft; and

(3) mitigate unauthorized operations of unmanned aircraft in any airspace in which they may pose an aviation safety risk.

(d) LIMITATION.—The Secretary shall ensure that the unmanned aircraft detection systems used in carrying out the pilot program do not interfere with or harm airport operations, essential navigation systems, wireless communications, or the general public.

(e) REPORT.—

(1) IN GENERAL.—Not later than 18 months after the date of enactment of this Act, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report on the results of the pilot program established under subsection (a).

(2) CONTENTS.—The report submitted under paragraph (1) shall include the following:

(A) The number of unauthorized unmanned aircraft operations detected at each participating airport, together with a description of such operations.

(B) The number of instances in which unauthorized unmanned aircraft were mitigated pursuant to subsection (c)(3), together with a description of such instances.

(C) The number of enforcement cases brought by the Federal Aviation Administration for unauthorized operation of unmanned aircraft detected through the pilot program, together with a description of such cases.

(D) The number of any technical failures in the pilot program, together with a description of such failures.

(E) Recommendations for safety and operational standards for unmanned aircraft detection systems.

(F) The feasibility of deployment of the systems at other airports.

(3) FORMAT.—To the extent practicable, the report prepared under paragraph (1) shall be submitted in an unclassified format. If necessary, the report may include a classified annex.

(f) UNMANNED AIRCRAFT DETECTION SYSTEM DEFINED.—In this section, the term ‘‘unmanned aircraft detection system’’ means a system that can carry out the activities described in subsection (c).

(g) SUNSET.—The pilot program established under subsection (a) shall cease to be effective on the earlier of—

(1) the date that is 18 months after the date of enactment of this Act; and

(2) the date of the submission of the report under subsection (e).

(h) AUTHORITY.—After the pilot program ceases to be effective, the Secretary may use unmanned aircraft detection systems to detect and mitigate the unauthorized operation of unmanned aircraft that pose a risk to aviation safety.

 

SEC. 441. EVALUATION OF AIRCRAFT REGISTRATION FOR SMALL UNMANNED AIRCRAFT.

 

(a) METRICS.—Beginning not later than 180 days after the date of enactment of this Act, the Administrator of the Federal Aviation Administration shall develop and track metrics to assess compliance with and effectiveness of the registration of small unmanned aircraft systems by the Federal Aviation Administration pursuant to the interim final rule issued on December 16, 2015, entitled ‘‘Registration and Marking Requirements for Small Unmanned Aircraft’’ (80 Fed. Reg. 78593) and any subsequent final rule, including metrics with respect to—

(1) the levels of compliance with the interim final rule and any subsequent final rule;

(2) the number of enforcement actions taken by the Administration for violations of or noncompliance with the interim final rule and any subsequent final rule, together with a description of the actions; and

(3) the effect of the interim final rule and any subsequent final rule on compliance with any fees associated with the use of small unmanned aircraft systems.

(b) EVALUATION.—The Inspector General of the Department of Transportation shall evaluate—

(1) the Administration’s progress in developing and tracking the metrics set forth in subsection (a); and

(2) the reliability, effectiveness, and efficiency of the Administration’s registration program for small unmanned aircraft.

(c) REPORT.—Not later than 1 year after the date of enactment of this Act, the Inspector General of the Department of Transportation shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report containing—

(1) the results of the evaluation required under subsection (b); and

(2) recommendations to the Administrator and Congress for improvements to the registration process for small unmanned aircraft.

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Privatization of Air Traffic Control System Heats Up in Advance of FAA Reauthorization Bill

House Republicans have promised to unveil their bill to reauthorize the FAA in a coming weeks. A proposal to privatize the air traffic control system of the United States as well as stern words about the failure of the FAA to implement NextGen in timely and organized fashion is expected to be included. To add fuel to the fire, the Department of Transportation Office of Inspector General issued two reports calling the FAA’s management in general into question and its management of air traffic control operations in particular. On January 15, 2016, OIG issued a 33-page report, entitled “FAA Reforms Have not Achieved Expected Cost, Efficiency, and Modernization Outcomes.” The OIG notes that “costs continue to rise … operational productivity has declined … disappointing reform outcomes … resistant to change … unclear and inconsistent reporting … NextGen-critical programs remain over budget and behind schedule … unreliable cost and schedule estimates …” Characterizing the OIG Report as “scathing,” the House Transportation & Infrastructure Committee Chairman Bill Shuster saw the report as indicative of the need for extensive changes to the FAA. “This report shows that the FAA simply isn’t suited to successfully modernize our nation’s antiquated air traffic control system,” Shuster said. “The FAA remains a vast government bureaucracy, not a high-tech service provider. I’s clear from the DOT IG’s findings that we need transformational FAA reform if we are going to have a safe, efficient, 21st century aviation system.”

This is not a new issue. Whether the nation’s air traffic control system should be privatized has long been on the House T&I Committee’s To Do List. See, Has the Time Come to Privatize Air Traffic Control?
Moreover, on January 11, 2016, the OIG dropped another report “FAA Continues to Face Challenges in Ensuring Enough Fully Trained Controllers at Critical Facilities.” In that report, OIG concludes that the FAA is failing to ensure enough controllers are trained to fill vacancies left by retirees, costs have ballooned and air traffic control productivity has declined.

This is not to say that the FAA and its current Air Traffic Organization does not have its supporters. This past Monday, a new organization calling itself Americans Against Air Traffic Privatization (AAATP) held a press conference. The leaders of the new coalition believed that a move toward privatization would “lead to ‘increased safety risks,’ be ‘bad for workers and bad for consumers’ and is a ‘misguided ploy to disrupt a system that’s working well for the American people.'” At the press conference Rep. Elijah Cummings (D-MD) and Del. Eleanor Holmes Norton (D- DC), who are both on the House T&I Committee, also answered questions. Del. Holmes Norton made it clear that while she is generally opposed to privatization of the Air Traffic Organization, “My basic complaint has been [there have been] no discussions [with Shuster] and thus no sense of what a bill would be,” she said. “I can’t tell you I’m opposed to X or Y.” Rep. Cummings was less sanguine, stating that the “system that we have now … has been a very strong, effective and efficient system.”

In response to the OIG’s withering criticism, the FAA stated that “The agency is now centrally managing staffing at the national level to maximize the overall benefits for all facilities. As part of that process, the FAA is expediting employee transfers from well-staffed facilities to those needing additional personnel.”

One must also ask whether the issue of management of the air traffic control system is a management issue or a technical issue related to the NextGen roll-out. For example, the OIG report advises that the FAA must “bring costs and schedules under control.” Thus, the implicit conclusion is that due to the FAA’s long term inability to attain its performance goals, air traffic control is ripe for privatization. However, what seems to be missing in the debate is how we got here in the first place. That is, the question that needs to be asked before there is any discussion about privatization of air traffic control is why has FAA been chronically late in implementing NextGen and other development programs. The answer may lie not in the lack of management, but in lack of technical insight and how programs are conceived and designed.

Since early roll out of new technology is one of the primary reasons why privatization is viewed as beneficial, it might be instructive to examine one of the foundations of NextGen program. Wide Area Augmentation System (WAAS) or the effort to provide signal integrity for GPS (satellite based navigation) with ADS-B operations. WAAS was conceived to provide signal integrity and enhance accuracy of GPS signals. The majority of the faults that degrade signal integrity come from the satellite segment of GPS, not the ground-based WAAS. These are systemic faults. The issue that the FAA has been dealing with is trying alleviate a systemic problem downstream from the source, that is on ground, which is difficult and might be impossible. This is a technical deficiency due to an incomplete conceptual design. This might be one reason for the many delays. According to GAO reports, it was 169 months behind schedule and $2,000,000,000.00 over costs. See also, Management Processes in U.S. Air Traffic Management Modernization: a Study of Global Navigation Satellite System Development. The point is that failures pointed out by the OIG may be better (and easier) addressed by strengthening the technical and engineering functions, without going through a radical restructuring or the air traffic system.

There are many factors to consider before radical changes to the existing structure are considered. Looking to the source of the issues raised by the OIG would seem to be the best strategy.

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