FAA Fails to Address Crucial Problems In Implementing “CatEx2”

On August 3, 2015, the Federal Aviation Administration published its Final Notice to Announce Implementation of Section 213(c)(2) CATEX and Disposition of Public Comments in the Federal Register. http://1.usa.gov/1Kc2Eql.  This Categorical Exclusion was included in the FAA Reauthorization and Reform Act of 2012 and has been the subject of much controversy, particularly in light of the rather heavy-handed way the FAA has implemented “Performance Based Procedures” (PBN) and “Regional Navigation Procedures” as part of its “NextGen” roll-out.  For those new to the issue, here is the legislatively mandated categorical exclusion:

NextGen Procedures.—Any navigation performance or other performance based navigation procedure developed, certified, published, or implemented that, in the determination of the Administrator, would result in measurable reductions in fuel consumption, carbon dioxide emissions, and noise, on a per flight basis, as compared to aircraft operations that follow existing instrument flight rules procedures in the same airspace, shall be presumed to have no significant affect [sic] on the quality of the human environment and the Administrator shall issue and file a categorical exclusion for the new procedure.

On previous occasions, this blog has expressed issues with the categorical exclusion.  See RTCA’s Paper on “CatEx2” for NextGen Implementation Is Legally Indefensible.  These comments focus on the FAA’s proposed implementation of that CatEx.

First, the idea of using categorical exclusions for instituting PBN procedures is not a good one.  One of the primary problems that the FAA is currently having in dealing with PBN procedures is the lack of transparency.  That is, the affected communities do not feel like they have a stake in the decision about whether there will be aircraft flying over their heads.  Yet, the FAA continues to use “categorical exclusions” when instituting RNAV and other PBN procedures.  This avoids public scrutiny, since no public participation is required.  Thus, oftentimes the only notice affected residents have that the flight paths have changed is when they hear the aircraft rumbling overhead.  In response to a comment regarding the lack of transparency, the FAA brushed off the concern by stating that “the FAA and NAC are currently giving increased attention to improving airport operator and community involvement in PBN implementation.”  While that is a step in the right direction, it still does not resolve the current problem for communities that have already been affected.

Second, the FAA’s new proposal for implementation does not resolve the legal issues raised by the NAC’s “Net Noise Reduction” proposal.  The FAA claims that by focusing on aggregate noise instead of the number of the affected population, its version of net noise reduction will be “more consistent with the statute.”  However, changing to a system that aggregates noise instead of counting the number of people affected by the PBN procedure does not get around the statutory mandate that the “measurable reduction” of noise be on “a per flight basis.”  Since the system to be implemented by the FAA still employs an average, it is out of compliance with the statute.  In its recent Notice, the FAA shrugged off these concerns by stating because “the FAA cannot directly apply the CATEX as written due to technical challenges associated with the language used by Congress in creating the CATEX” it will ignore the precise statutory language and implement a CatEx that is technically feasible, but runs contrary to the statute.  The problem here is that the FAA’s and the NAC’s technical staff are not used to dealing with statutes, they are used to drafting and implementing regulations.  When dealing with regulations, they can mold the wording of the regulations to fit the technical parameters. But they cannot, at least from a legal perspective, change or ignore statutory language to fit their technical needs.

Third, the FAA’s new proposal states that the “CATEX would not be used if any noise increases would be significant.”  This statement is rather perplexing, since the statute specifically states that the CatEx can only be used if there is a “measurable reduction” of noise.  It does not say “significant,” nor does it allow for an increase.  How is it that the FAA can state with straight face that the statute will allow it to use the CatEx in instances where there is an increase in noise?

Fourth, the FAA and the NAC seem to be unwilling to be creative from a technical standpoint.  For example, the FAA states that “noise depends not only on the varying noise levels of an aircraft as it flies, but also on the position of the aircraft in relation to noise sensitive receivers on the ground.”  However, the statute does not mention anything about measuring the amount of noise on the ground over noise sensitive receptors.  It would seem that the Congress is asking for a measurable reduction of noise produced by the aircraft and the aircraft engines.  That is measurable in the same manner that carbon dioxide emissions and fuel emissions are measurable.  For example, an aircraft using a continuous descent arrival produces less noise than an aircraft using the standard procedure.  Is that not what the Congress intended?

Finally, it should be pointed out that “CatEx2” is less a “categorical exclusion” and more of an amendment of NEPA’s requirements.  It is a grant of an exemption from the environmental impact process required under NEPA, which includes no requirement for public input.  Categorical exclusions were intended to be used as broad categories of administrative tasks undertaken by a federal agency that do not have a discernible impact on the environment.  The CEQ installed an escape hatch by stating that an activity that normally would be covered by a categorical exclusion could still have to go through the full NEPA environmental process if there were “extraordinary circumstances.”

However, categorical exclusions have been used by the FAA to “streamline” the NEPA process, particularly in the case of NextGen implementation, in order to avoid having to develop an Environmental Assessment or an Environmental Impact Statement.  They are used increasingly by federal agencies in instances where an Environmental Assessment is the more appropriate alternative.  This has had the effect of freezing a primary stakeholder – the affected public – out of the process.  This is particularly evident from the fact that there is no provision for “extraordinary circumstances” in CatEx2 which, in a usual CatEx, would augur against the use of a CatEx.  Under CatEx2, if the “measurable reductions” components are met, the “CatEx” can be used and the FAA can proceed to bypass NEPA requirements without regard to any extraordinary circumstances.

In the end, if the FAA is going to move with the implementation of this CatEx (one that the FAA admits it will use infrequently), that it include in its interpretative guidance a requirement that the public be involved before the CatEx is approved.  The FAA should take note that this piece of legislation is discretionary on the part of the FAA.  If the FAA cannot implement the statutory language, it is under no requirement to use the categorical exclusion.  If the FAA sincerely believes that an average is the right choice and the intent of Congress, then the FAA should seek to have the statute changed during the upcoming FAA reauthorization process instead of implementing a program that is legally suspect.

Posted in Aircraft, Airport, Congress, FAA | Tagged , , , , | 2 Comments

FAA is serious when it comes to enforcing hazardous materials regulations

Are you shipping hazardous materials by air?  Are you sure you are not?  Ever since ValuJet Flight 592 crashed in the Florida Everglades due to a fire in the cargo hold caused by a chemical oxygen generator, the The Federal Aviation Administration (FAA) has been serious about ensuring compliance with the Department of Transportation Hazardous Material Regulations.

Shippers and carriers of hazardous materials sent via aircraft in the United States are subject to the commercial transportation Hazardous Materials Regulations contained in 49 CFR Parts 171-179. Under these rules, shippers must properly classify, mark, label and pack hazardous goods before shipping by air.  Because of the complexity of the regulations and the small amounts of “hazardous materials” it take to incur a large fine, many companies unknowingly run afoul of these regulations.  It is the responsibility of the shipper, that is, the business, organization or individual sending the material, to know whether the package is properly classified.

Hazardous materials are not just industrial products.  Many items classified as “hazardous materials” by the FAA are everyday products, such as paints, spray adhesives and aerosols, batteries, skin care products, alcohol, weapons cartridges, cleaning solvents, disinfectants, dry ice, cooking oils, pesticides, compressed gasses, oily rags, salts and nail polish removers.

Since 2000, the FAA penalized over 2,000 air carriers, shippers and individuals for hazardous materials violations totaling more than $30 million in civil penalties.  See http://bit.ly/1fumSUG As you might expect, at the top of this list are the large shippers, such as FedEx and UPS, as well as many airlines.  However, many smaller companies shipping have been caught unaware of that the regulations applied to them.  For example, between 2000 and 2014, many shippers were penalized $50,000 or more, often for first-time or small quantity violations.

How does the FAA find out about these shipments?  Usually from a third -party source. For example, in a recent matter, an aircraft repair station shipped the overhead panel to another repair station to fix the reading light.  However, because an oxygen generator was attached to the panel (although there was no chemicals included in the shipment), the second repair station reported it to the FAA.  Other examples include a third-party notifications when the material leaks after handling, or an inspection reveals a mislabeled package or hazardous material being transported in an employee’s checked luggage.

Once notified, the FAA will investigate.  Sometimes, the FAA will send a “Letter of Investigation” to the target company or individual asking for information about the alleged incident.  If you or your company receives one of these, you should contact a lawyer experienced with this type of matter to assist in your response.  After the close of the investigation, if it finds a violation, the FAA will typically issue a “Notice of Proposed Civil Penalty” detailing the facts alleged and a proposed penalty amount. Many times these Notices of Proposed Civil Penalties are then released to the public through press release. Examples from the last few months:

  • $81,669 against DGI Menard Inc. The FAA alleges that on Jan. 12, 2015, DGI Menard knowingly offered an undeclared hazardous material shipment to FedEx for air transport from Carnegie, Penn., to Crystal Lake, Ill. The shipment included eight one-pint cans of Lubemaster’s Fire Up, which is a flammable liquid, and six bottles of Diesel Mate All Seasons, which is a flammable petroleum distillate.
  • $54,000 against Aqua-Chem, Inc. of Knoxville, Tenn. The FAA alleges that on April 3, 2013, Aqua-Chem offered UPS an undeclared shipment containing six, one-pint plastic containers of corrosive phosphoric acid solution. Workers at the UPS package sort facility in Louisville, Ky., discovered the shipment.
  • $54,000 against Rust-Oleum Corp. of Vernon Hills, Ill. The FAA alleges that on Jan. 5, 2015, Rust-Oleum offered four containers of spray paint to FedEx for shipment by air from Vernon Hills to Huntington Beach, Calif. Employees at the FedEx sort facility in Northbrook, Ill., discovered the flammable paint and notified the FAA.
  • $63,000 civil penalty against CTC Battery Inc. of Hayward, Calif. The FAA alleges that on April 25, 2013, CTC Battery offered an undeclared shipment of four 12.8V rechargeable lithium ion phosphate batteries to UPS for air transportation to Tampa, Fla.

See http://1.usa.gov/1L35Jge and http://1.usa.gov/1BHywjg

If you receive a Letter of Investigation or a Notice of Proposed Civil Penalty – or any other communication from the FAA – you need to act quickly! The FAA wants to communicate with companies and individuals who are shipping items to ensure that they are aware of the law.  FAA enforcement actions, as with all federal agency enforcement actions, require attention from personnel that are experienced in these matters.

Taber Law Group, P.C.’s primary attorney is a former FAA attorney, who has represented clients in numerous FAA enforcement matters, negotiated settlements with the agency. In addition, Taber Law Group, P.C. can review and revise your company’s FAA compliance procedures, train employees to avoid violations and represent you in the event you receive a notice.

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FAA Whiffs Again on “CatEx2,” Proposes Underwhelming Replacement to NAC’s “Net Noise Reduction.”

After the Congress put an aviation industry-friendly categorical exclusion into the FAA Reauthorization of 2012, the FAA could not figure out how to implement the provision that stated that in order for it to use the categorical exclusion, there had to be a “measurable reduction” in noise “on a per flight basis.”  So it handed the matter over to the NextGen Advisory Committee.  They came up with a solution that, although innovative in its approach, assumed away the biggest legal challenge – that the noise was not reduced on a “per flight basis” but over an average using the FAA’s standard DNL metric. See http://bit.ly/1DPORoB.  The FAA was not totally happy with that approach, so it put it out for comments.  And now, at U.C. Davis’ annual Aviation Noise and Air Quality Symposium, the FAA unveiled its underwhelming response to the comments by proposing a third, even more deficient proposal. FAA Presentation to Symposium on 03/03/2015: http://bit.ly/1zEWKby FAA Presentation to NAC (02/27/2015): http://1.usa.gov/1ACFd47

Here, in a nutshell, is the FAA’s decision:  “The noise determination for Catex2 will be met if proposed PBN procedures, when compared to existing procedures they replace, would result in a net noise reduction based on average DNL changes and would not significantly increase noise.”

First, the whole idea of using categorical exclusions for instituting RNAV procedures is not a good one.  One of the primary problems that the FAA and airports have in dealing with RNAV procedures is the lack of transparency.  That is, the affected communities do not feel like they have a stake in the decision about whether there will be aircraft flying over their heads.  Yet, the FAA continues to use “categorical exclusions” when instituting RNAV and other PBN procedures, which avoids public scrutiny since no public participation is required.  Thus, oftentimes the only notice affected residents have that the flight paths have changed is when they hear the aircraft rumbling overhead.

Second, the FAA’s new proposal does not resolve the legal issues raised by the NAC’s “Net Noise Reduction” proposal.  Although the FAA claims that by focusing on aggregate noise instead of the number of the affected population, its version of net noise reduction will be “more consistent with the statute.”  However, changing to a system that aggregates noise instead of counting the number of people affected by the PBN procedure does not get around the statutory mandate that the “measurable reduction” of noise be on “a per flight basis.”  Since the system to be implemented by the FAA still employs an average, it is still out of compliance with the statute.

Finally, it should be pointed out that “CatEx2” is less a “categorical exclusion” and more of an amendment of NEPA’s requirements.  It is a grant of an exemption from the environmental assessment process required under NEPA, which includes no requirement for public input.  Categorical exclusions were intended to be used as broad categories of administrative tasks undertaken by a federal agency that do not have a discernible impact on the environment.  The CEQ installed an escape hatch by stating that an activity that normally would be covered by a categorical exclusion could still have to go through the full NEPA environmental process if there were “extraordinary circumstances.”

However, categorical exclusions have been used by the FAA to “streamline” the NEPA process, particularly in the case of NextGen implementation, in order to avoid having to develop an Environmental Assessment or an Environmental Impact Statement.  This has had the effect of freezing a primary stakeholder – the affected public – out of the process.  This is particularly evident from the fact that there is no provision for “extraordinary circumstances” in CatEx2 which, in an usual CatEx, would augur against the use of a CatEx.  Under CatEx2, if the “measurable reductions” components are met, the “CatEx” can be used and the FAA can proceed to bypass NEPA requirements without regard to any extraordinary circumstances.

In the end, the FAA should not implement CatEx2 as it is currently proposed.  This invites legal challenges based on sound legal precedent of statutory interpretation.  Even if the FAA does decide to move forward with the implementation of CatEx2, it should do so only after ensuring that the affected public has had an opportunity to weigh-in on the proposed project for which CatEx2 is being used.

Posted in Aircraft, Aviation, Congress, FAA, Regulatory | Tagged , , , | 2 Comments

Aircraft Noise Regulation Must Be Revised to Protect the Public Health and Welfare

On February 6, 2015, an aviation industry trade group published a letter (http://bit.ly/1zLsrzR ) it had sent to the Secretary of Transportation and the FAA Administrator regarding, among other things, the recent events in Phoenix and exhorted the FAA in its “commitment to science and fact based regulations.”  For many, what has happened in Phoenix has crystalized a growing opposition to the way the FAA handles aircraft noise.

Aircraft Noise Is a Public Health Issue

First, it is time to stop talking about aircraft noise as “merely” an “annoyance” or “nuisance.”  Aircraft noise, like other forms of pollution, is a public health risk.  This is something that the Trade Group letter fails to recognize.  The letter continues to talk about noise as an “annoyance,” rather than noise as a public health issue.

This is an increasingly anachronistic point of view in light of the recent Harvard Study http://bmj.co/1yRF6kK and the London study http://bmj.co/1E1R2qF showing a correlation between aircraft noise and an increase risk of cardiovascular disease and stroke.  These studies corroborate earlier findings, like the Greiser study in Germany in the late 2000’s, that show a statistically significant correlation between aircraft noise and a deleterious effect on human health and welfare.  This fact is increasingly irksome to the FAA’s current regulatory scheme.  Noise as an “annoyance” is more easily handled in the public eye than noise as “public health risk.”  Annoyance is subjective, whereas public health is much more objective.  Despite the growing body of evidence that aircraft noise is a public health issue, the FAA seems to hold

tight to the notion that it is an “annoyance.”

You can see this dichotomy in the Trade Group letter.  In the third paragraph they talk about a “particular person experiencing aircraft sound may have a negative experience.”  In the last sentence of that same paragraph, they state that “ASNA appropriately map the subjective experience of noise into a system that can be applied on an objective basis.”  Almost all Environmental Impact Statements, Environmental Assessments and Part 150 Noise Compatibility Programs echo this theme of “noise as being subjective.”  The implication being that what is “noise” and what is “music” depends on the listener.  The policy impact of aircraft noise shifts, though, if you can show that aircraft noise has an actual effect on public health.  The discussion is no longer about the perception of noise and how to protect the “sensitive receptors,” but focuses instead on how to best protect the public from an increased risk of cardiovascular disease and stroke.  As an aside, the EPA has been much, much better at protecting public health and welfare than the FAA since the FAA view part of its mission as being to promote air commerce, and only secondarily to protect the health of the public living and working on the ground.

Obviously, the Trade Group wants the FAA to continue the way it has because it has developed their business model to work within the FAA’s system, which, conversely, was set up with them in mind.  Moreover, a change to a more public health-based approach would leave them on the outside looking in.  Which brings me to my second point.

Focus of Noise Mitigation Should Be Flight Paths and Airports

The discussion about aircraft noise needs to switch from aircraft to airports and flight paths.  The Trade Group letter is absolutely correct in stating that the aircraft that are flying now are much quieter than the aircraft that were flying in the last part of the 20th Century.  And the next generation of aircraft will be even quieter still.  However, aircraft themselves are no longer the problem – and the FAA and the Trade Group know it.  The problems are (1) changes in departure and arrival flight paths (Phoenix, John Wayne Airport, Charlotte Douglas, JFK); (2) constant expansion of airports (Atlanta, Chicago O’Hare, LAX); and (3) more operations at existing airports (Dallas Love Field).

The issue with Phoenix and the new RNAV procedures is not a new one.  The same problem exists in Laguna Beach (John Wayne Airport), Charlotte NC (Charlotte Douglas) and JFK and LaGuardia.  As a result of the 2012 FAA Reauthorization and Reform Act, the FAA was required to institute Area Navigation (RNAV) and Required Navigation Performance wherever feasible.  For the most part, the FAA instituted these changes using a “categorical exclusion” that did not require a noise study be completed before implementing the RNAV procedure.  RNAV procedures, however, concentrated more flights at lower altitudes in a much narrower flight path.  While the number of operations may not have changed, the level of noise directly under the flight paths have increased substantially.  Or, as in case with Phoenix, instead of flying 5 – 6 miles out, the aircraft now are turning to the north 2 – 3 miles out, thus flying over a neighborhood that never experienced any aircraft noise before.  Likewise, in Laguna Beach, California, the RNAV departure DUUKE, had aircraft turning back over land at lower altitudes and further north than previously, causing aircraft to fly over neighborhoods that had not previously experienced aircraft noise.

Sometimes the change in flight paths and noise levels is due to expansion of the airport.  This is one of the issues facing O’Hare and the O’Hare Modernization Program.  By constructing four runways with a predominately East-West flow, they changed the traffic flow from Northwest-Southeast, to more of an East-West flow.  This substantially enhanced safety since traffic in and out of O’Hare were not in direct conflict with Midway to the south and Chicago Executive and Milwaukee to the north.  The problem is that the development around O’Hare had grown up so that there were more residential areas to the east and west of O’Hare and commercial developments to the SE and NW of O’Hare.  With 4 E/W runways, neighborhoods that had never experienced high levels of aircraft noise were now in the middle of it.  A similar situation presented itself in Atlanta, where the addition of a fifth runway caused additional noise issues to west of the airport over residences that had not yet experienced aircraft noise at levels that the FAA deemed “significant.”

The problem for these communities, though, is that the noise levels oftentimes did not reach 65 DNL so therefore the FAA could argue that the noise the residents were experiencing is not significant, therefore, the FAA has either refused to take any action or claimed that it cannot legally take any action.  However, the legal landscape with respect to this aspect may have changed a bit with the decision in Helicopter Association International v. FAA (see http://wp.me/pX5ZF-f2 ) where the D.C. Circuit Court of Appeals held that even though the noise levels were below 45 DNL, the FAA could regulate air traffic to protect people and property from increased aircraft noise. This case may become significant in Phoenix’s battle with the FAA about the change in the flight paths.

The DNL Metric Is Outdated

Finally, the time to move on from DNL has come.  The “Day Night Average Sound Level” or DNL was adopted by the FAA as its primary metric for to evaluate cumulative noise effects on people due to aviation activities in 1981 – 33 years ago – and is long overdue for an overhaul. The science of noise has substantially changed since DNL was first rolled out.  DNL does not take into account variables that are becoming increasingly important.  Moreover, it is a predictive tool and not an accurate assessment of the noise environment.  It predicts an average noise level based on certain inputs.  It cannot take into account the teacher that has to stop her lesson every 5 minutes to wait for an airplane to pass, for example.  When the FAA and trade groups start talking about “well-established” noise metrics and policy, what should be read is “out-dated.”  As Sir A. Bradford Hill wrote in 1962:

 All scientific work is incomplete-whether it be observational or experimental. All scientific work is liable to be upset or modified by advancing knowledge. That does not confer upon us freedom to lower the knowledge we already have, or to postpone the action that it appears to demand at a given time. The lessons of the past in general health and safety practices are easy to read. They are characterized by empirical decisions, by eternally persistent reappraisal of public health standards against available knowledge of causation, by consistently giving the public the benefit of the doubt, and by ever striving for improved environmental quality with the accompanying reduction in disease morbidity and mortality. The day of precise quantitative measurement of health and welfare effects has not yet arrived. Until such measurement is possible, action must be based upon limited knowledge, guided by the principal of the enhancement of the quality of human life. Such action is based on a philosophy of preventive medicine.

At the very least, the 65 DNL level of significance must be changed.  The 65 DNL level significance developed out of the Federal Interagency Committee on Urban Noise’s June, 1980 Guidelines for Considering Noise in Land Use Planning and Control (http://bit.ly/1FXIAIb )The FAA then enshrined that number in its land use compatibility chart for Noise Compatibility Programs under 14 C.F.R. Part 150.  Even though the science has progressed exponentially since 1980, that level has remained the same.  The court in Helicopter Association International stated that the FAA has the authority under 49 U.S.C. 40103(b)(2) to regulate any and all aircraft noise to protect people and property on the ground regardless of noise level.  One could also argue that FAA is required to regulate aircraft noise to protect people and property on the ground under both 49 U.S.C. 40103(b)(2) and 49 U.S.C. 44715.

But the FAA has failed to provide any relief to the residents who lives are impacted by aircraft noise.  The Part 150 Noise Compatibility Program is voluntary and even once it is approved by the FAA, an airport can willy-nilly change its mind and not provide any relief to any of the residents.  In addition, the FAA recently said that about the quickest a Noise Compatibility Program can be implemented is 4 years.  That means that residents have to wait for over 4 years while their lives are being affected by aircraft noise.  For example, the fifth runway at Jackson-Hartsfield in Atlanta was approved by the FAA in 2001, and Atlanta was required to mitigate the noise caused by the new runway.  The Fifth Runway opened in 2006, but Atlanta had not even begun the study to figure who was impacted by the Fifth Runway.  The NCP was updated to include the Fifth Runway 2008.  Now in 2014, Atlanta has yet to purchase a property or sound insulate a house under that program even though it has been almost nine years after opening the Fifth Runway.

And the FAA has said there is nothing it can do to hurry things along – it claims it cannot force the airport to mitigate the noise problem and it has not taken any action to mitigate the problem on its own.  Yet, ASNA states that (49 USC 44715) that “[[t]o relieve and protect the public health and welfare from aircraft noise and sonic boom, the Administrator of the Federal Aviation Administration, as he deems necessary, shall prescribe– . . . (ii) regulations to control and abate aircraft noise and sonic boom. ” If Part 150 are those “regulations” then the FAA has utterly failed in its statutory mission to “relieve and protect the public health and welfare from aircraft noise.”  It is ridiculous to think that the federal government would allow airports to develop in such a manner that subjects U.S. citizens to a significant increase in risk of cardiovascular disease and stroke and do nothing about it.  The statutory authority is there, the FAA needs to step up to the plate.

The Trade Group and the FAA should keep in mind what Thomas Jefferson told the Maryland Republicans in an 1809 letter:

“The care of human life and happiness and not their destruction is the first and only legitimate object of good government.”

Posted in Aircraft, Airlines, Aviation, Congress, Environmental, FAA, Litigation, Regulatory | Tagged , , , , , , | Leave a comment

FAA Announces New Small Unmanned Aircraft Systems Regulations

Secretary of Transportation Anthony Foxx and FAA Administrator Michael Huerta announced on a Sunday, February 15, 2015, conference call that the FAA would publish its long-awaited proposed regulations for commercial use of small drones. Copy of NPRM: http://1.usa.gov/1yGVSD5 Copy of Press Release: http://1.usa.gov/1DuDxiz The basics: non-pilot drone operators will be allowed to fly small drones (less than 55 lbs) for commercial purposes so long as the airspeed is less than 100 mph, below 500 ft above ground level, and away from flight paths.  The operator must also have a certificate issued by the FAA, but the drone itself need not have an airworthiness certificate. http://1.usa.gov/1FOLy1z

How this all came about was interesting in and of itself.  On Saturday, February 14, 2015, Forbes reported that a drone user who had applied for an exemption accidentally got his hands on the Federal Aviation Administration’s economic analysis for its soon-to-be-published small drone regulations.  Forbes article:  http://onforb.es/1zVit3D Economic Analysis: http://bit.ly/1FN8MoB AP article: http://apne.ws/1uXA8Ya After many people inquired about whether the economic analysis was legitimate, it appeared that the Department of Transportation and the FAA hastily issued a media advisory to announce the proposal of the small drone regulations.  http://1.usa.gov/1KYdi4S That conference call would take place on the morning of Sunday, February 15, 2015.  After a few technical glitches were resolved, the conference call got underway.

Secretary Foxx explained that DOT and FAA had been working on these regulations for some time now.  There were two overriding concerns: (1) safety in the air; (2) safety on the ground.  Administrator Huerta went over the basics of the regulations and invited comments on a couple of areas, like whether there should be a separate class for “micro-drones,” that is drones of less than 4.5 lbs.  He also stressed that the old regime of illegality of flying small drones commercially is still in place and will continue in place until the rules are finalized, which may take some time due to the predicted volume of comments these regulations are likely to generate.  The FAA’s goal, he said, was to create a “flexible regime” that allows for future updates in technology without having to constantly update the regulations.

The portion of the proposed regulations that brought the most scrutiny was the line-of-sight rule.  Since ranchers, for example, want to use drones to keep an eye on their herds, the drones may be out of the line of sight of the operator. Administrator Huerta said the key to the line-of-sight rule was safety and the FAA’s belief that if the operator can see the drone, it is more apt to be operated safely.  Although the Administrator did state that the rule would allow for additional observers allowing the drone to be out of sight of the operator, but not out of sight of an observer.

In general, there is a feeling that the proposed regulations are much more generous to the commercial operation of drones that expected.  The FAA has recognized that this is a growth industry and wants it to grow, but wants it to grow safely.  The NPRM has been posted:  http://1.usa.gov/1yGVSD5

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Judge Dismisses the City of Santa Monica’s Action Regarding the Santa Monica Municipal Airport.

Judge John F. Walter of the Central District of California granted the Federal Aviation Administration’s Motion to Dismiss the City of Santa Monica’s lawsuit regarding whether the City had to continue to operate the airport as an airport.  (Download a copy of the decision here).  As is typical of rulings granting Motions to Dismiss, although the Court ruled in the FAA’s favor, it did so without addressing the fundamental issue raised by the Complaint: when the 1984 Settlement Agreement expires may the City close the Airport?

Instead, the Court dismissed the lawsuit on three separate grounds.  First, and most importantly, the Court stated that the City’s action to quiet title was barred by the statute of limitations. The Court said that the City knew or should have known that the United States claimed an interest in the Airport Property in 1948 and that even if the City did know about the U.S.’s interest, the U.S. did not abandon its interest in the Airport. This count was dismissed with prejudice, meaning that the City could not bring this argument again. This is a serious blow to the City’s suit since the Quiet Title action was probably its strongest argument.

Second, the Court granted the FAA’s Motion to Dismiss with respect to the City’s “takings” claim on the basis that they were premature.  The Court states in its Order that the City must first ask the U.S. for compensation before a takings lawsuit will lie. The Court relied on Williamson County v. Regional Planning Comm’n, 473 U.S. 172, 195 (1985) which states that “takings claims against the Federal Government are premature until the property owner has availed itself of the process provided by the Tucker Act.”  Therefore, the Court granted the Motion to Dismiss, but this time without prejudice.

Finally, the Court found the City’s claims of violation of the 10th Amendment and the Due Process clause of the 5th Amendment by requiring the City to operate the Airport in perpetuity not to be ripe for review.  In essence, the Court concludes that because the City has not yet decided or even declared its intention to cease operations at the Airport, the Court cannot decide whether the 10th and 5th Amendments have been violated. As the Court explains, it “recognizes that a decision would be helpful to the City in evaluating the future of SMO, and as much as the Court would like to address the merits of the City’s claims, the Court reluctantly concludes that it would be constitutionally impermissible to do so.”  As such, the Court dismissed the City’s Fourth and Fifth Claims for Relief, also without prejudice.

While the Quiet Title action was put to rest, (unless the City decides to appeal) all other actions remain open to the City to pursue – just not right now.  For now, Round One goes to the FAA.

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Aviation/Airport Stories We Are Following for the Week of September 9 – 13, 2013

Monday, September 9, 2013

Sequester and Budget Cuts Loom Over Aviation. With the end of the fiscal year approaching (Sept 30), and no new budget for DOT in sight stories are beginning to appear concerning the effects of the sequester and what will happen if no agreement is reached.  DHS Secy Napolitano warns of the long security lines at airports because of budget cuts. http://usat.ly/19ArqjF Airline execs warn of the disruptive effect that air traffic tower closures will have as the next round of sequester cuts loom in October. http://reut.rs/1evTOaj Stay tuned, there certainly will be more to this story.

Failing to Execute a “Go-Around” Leading Cause of Accidents. Bloomberg is reporting this morning that the three recent U.S. air crashes could have been avoided if the pilots had aborted their landings at the first sign of trouble and done a “go-around.” According to the article, airline rules state that if an approach is “unstablized” at 1000 ft in poor visibility or 500 ft in clear conditions, the pilot should go around. But this does not happen. Pilots say the criteria are unrealistic and want stds that require aborted landings only in dangerous situations. http://bloom.bg/16ePW9X

Tuesday, September 10, 2013

Hearing on Control of Ontario CA Airport Set for Later This Month. In one of two high-profile disputes over control of airports (Charlotte NC being the other), a Riverside County CA Superior Court judge set a hearing on Sept 25 of LA’s Motion to Dismiss, which claims that there is “no sound, legal or factual basis” the City of Ontario to reclaim control of ONT. The dispute, which has been brewing for years, centers around the fact that the number of passengers at ONT is declining rapidly, while LAX’s passengers are growing.  Ontario claims that LA, which owns ONT, has not promoted ONT and is siphoning off passengers.  Ontario filed a lawsuit on June 4, 2013, seeking to reclaim control of ONT. http://bit.ly/17U7p6j

Forget Ticket Sales, Airlines Now Make Lots of Money on Fees. According to a new report published yesterday, extra fees generated $27.1B in revenue for airlines in 2012. This is up from $22.6B in 2012. http://bit.ly/14IYm5T Although legacy carriers like United ($5.4B), Delta ($2.6B), and American ($2B) led the way in terms of total dollars, low-cost carriers counted on ancillary fees for a larger percentage of their revenues. Ancillary fees accounted for 38.5% of Spirit’s revenues, 30% of Allegiant’s and 27% of Britain’s Jet2.  One advantage for the airlines: fees are not subject to the same tax requirements as tickets. http://politi.co/14CsW6H

Wednesday, September 11, 2013

Will DOT/FAA Continuing Resolution Stop Furloughs? The House came out with its Continuing Resolution yesterday, and, while not addressing the furlough issue head-on, it does seem to provide the FAA with some wiggle room http://1.usa.gov/1eeSHxT. It stipulates that the FAA may use money “for operations necessary to avoid furloughs” so long as the agency has “taken all necessary actions to reduce or defer nonpersonnel-related administrative expenses.” The CR will run through Dec 15. However, WHERE that money will come from to avoid furloughs and tower closures is another question.  As reported here last week, the FAAMA wants it to come from the Airport Improvement Program http://bit.ly/17EHvBd,  but Politico is reporting that ACI-NA and AAAE are now opposing that move.http://politi.co/18Um5Bm

Noise From New Flight Procedures Still An Issue In Queens. Even after the New York State Assembly passed legislation last year requiring the Port Authority of New York and New Jersey to conduct a “Part 150” Noise Compatibility Program for LaGuardia and JFK airports, Community Board 11 (#CB11) in Northeast Queens passed a resolution that calls on NY Governor Cuomo to approve a bill requiring the PANYNJ to conduct noise studies. Residents are upset that Congress gave the FAA a pass on conducting environmental studies last year when developing new flight procedures, despite the fact that the new procedures may have significant impacts on residents. http://bit.ly/15WhhcR

Thursday, September 12, 2013

American/USAirways Merger Still In The News. DOJ filed an Amended Complaint last week, adding MI as a Plaintiff and cutting 29 routes from the list that will have allegedly high levels of concentration post-merger. http://1.usa.gov/1aEYMSS  American and USAirways filed their responses on Tuesday, claiming that the merger would increase competition and is in line with the previous airline mega-mergers to which DOJ did not object. http://bit.ly/15WRNwX And the airlines are seeking approval to delay the original Dec 17 deadline for completion of the merger. http://bit.ly/16nfaDf No surprises here.

UPDATE: Judge Sean H. Lane of the United States Bankruptcy Court in Manhattan approved American Airlines’ bankruptcy plan on Thursday but ruled that the decision was contingent on Justice Department approval of the carrier’s merger with US Airways. http://1.usa.gov/17UBbdb

LA County Recommends LAX Operators “Give Consideration” To Alternatives. LA County Planning officials – the Airport Land Use Commission – recommended Wednesday that the Los Angeles World Airports (LAWA) “give consideration” to alternatives to the controversial moving of the North Runway at LAX. However, the Commissioners made it clear that the recommendation does not carry consequences if not complied with. The ALUC also rejected a request to issue an order requiring LA City Council to reconsider its approval of the entire LAX package of improvements. http://lat.ms/1aF288x

Friday, September 13, 2013

Increase In In-Air Mistakes, FAA Reports.

FAA’s yearly report on air safety, issued yesterday, stated that aircraft flew too close to each other 4,394 times last year, more than double the number from the previous year.  http://1.usa.gov/1e9mY0c Of those near misses, 41 were classified as “high risk,” and 7 could have ended in a catastrophe.  FAA chalked the increase off to the use of a new electronic monitoring system now in use. The DOT IG challenged that notion in an Audit Report issued Feb 27 stating that “the increase in reported errors was linked, in part, to a rise in actual errors rather than increased reporting.” http://1.usa.gov/14RKFSp

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