There have been several regulatory developments in the first half of 2012. FAA Reauthorization was enacted in February, although many in the airport industry were disappointed that the law did not address recognized problems with how airports are funded and regulated. (For a summary of changes, see our Airport Law Special Alert.) The FAA has been working to meet deadlines imposed by the new law, while continuing with several preexisting policy initiatives. This section provides a brief summary of several important initiatives, including links to source documents where available.
On April 13, 2012, the FAA published a Notice of Proposed Rulemaking to amend 14 CFR Part 16, which contains the procedures by which the FAA adjudicates airport sponsor compliance with the Grant Assurances, deed restrictions in conveyances under the Surplus Property Act, and related federal obligations. The FAA promulgated FAR Part 16 in 1996, and has issued over 100 decisions to date under the rule.
The proposed amendments are extensive and cover a variety of subjects, including: motions for summary judgment or dismissal, complainant standing, optional electronic filing, civil rights claims filed pursuant to 49 CFR Part 26, intervention, corrective action plans, and many other topics. In the NPRM, the FAA indicated that it proposed the reforms to simplify and streamline Part 16.
Airports Council International – North America (ACI-NA) and the American Association of Airport Executives (AAAE) were among those who submitted comments on the NPRM. In its detailed comments, ACI-NA commended the FAA for several changes but also raised several concerns. In particular, ACI-NA questioned the implication of the NPRM that dispositive motions should be granted only when complaints are frivolous. AAAE expressed similar sentiments. AAAE also argued that the FAA should lengthen the deadlines for filing pleadings under Part 16.
Interested parties can read these and other comments and follow the rulemaking by searching for Docket No. FAA-2012-0176 at www.regulations.gov.
In April 2012, the FAA circulated for limited review Program Guidance Letter 12-xx: AIP Eligibility and Justification Requirements for Noise Insulation Projects. The Draft PGL includes replacement language for Section 812 (Noise Insulation Projects) in FAA Order 5100.38C, Airport Improvement Program Handbook. The Draft PGL and new Section 812 prescribe a two-part eligibility requirement for sound insulation projects: 1) the structure must be located in the day-night average (DNL) 65 decibel (dB) noise contour, and 2) the existing interior noise level must be above 45 dB with the windows closed. The Draft PGL reaffirmed that structures must have been built prior to October 1, 1998 to be eligible. The Draft PGL also identifies a process for reviewing noise insulation programs that are currently underway, and specifically requires all programs to meet the two-part eligibility requirement beginning October 1, 2015.
On May 31, 2012, Airports Council International – North America submitted comments to the FAA on the Draft PGL. ACI-NA took issue with the FAA’s assertion that the two-part eligibility test has always been in effect, and argued that the AIP Handbook does not impose this requirement and that the FAA itself admitted that it had not imposed this test for every sound insulation program. ACI-NA also advised that airports might face legal exposure under the False Claims Act or other authorities if the FAA states or implies that airport sponsors have been using AIP grant funds impermissibly. ACI-NA stated that airports almost certainly will face opposition from communities expecting that all dwellings within the DNL 65 dB contour would be eligible to receive sound insulation.
The FAA has not announced whether and when it will issue a final Program Guidance Letter.
On June 29, 2012, the FAA released Draft Advisory Circular No. 150/5200-37A, Safety Management Systems for Airports. This Advisory Circular provides background information on SMS and detailed guidance on creating an SMS at airports. The Advisory Circular is connected to a FAA rulemaking that would require all airports certificated under FAR Part 139 to develop and implement an SMS. The FAA will be accepting comments from airports on the draft Advisory Circular until August 31, 2012.
On June 1, 2012, the FAA released the Safety Management System Desk Reference. The Desk Reference supplements FAA Order 5200.11, FAA Airports (ARP) Safety Management System, released in August 2010. The Desk Reference includes guidance on procedures for complying with the Safety Risk Management (SRM) component of the SMS, and guidance on evaluating the ARP SMS through the Safety Assurance process. The Desk Reference is primarily intended for ARP personnel; however, it also explains the role of airport sponsors and state aviation organizations and may be useful to consultants and others within the airport industry.
Currently, certain FAA approvals and determinations at large hub primary commercial service airports require an SRM Safety Assessment. Triggering actions may include Airport Layout Plan approvals, construction project review, and modifications of standards. Airport sponsors play an important role in the SRM Safety Assessment and ultimately must sign the SRM documentation and be responsible for certain identified risk mitigation.
In FAA Reauthorization Section 310, Congress exempted from disclosure, under the Freedom of Information Act, reports, data and information produced or collected as part of a Safety Management System.
In FAA Reauthorization, Congress authorized the sponsors of General Aviation airports to use revenue from mineral extraction activities, such as royalties and rent, for certain non-airport purposes. Under Section 813, the FAA is authorized to exempt a defined portion of revenue generated from mineral extraction activities at GA airports from the statutory and Grant Assurance prohibition on revenue diversion.
This exemption is strictly conditioned. The exempted revenue must be surplus to the 5-year capital and operating costs of the airport. The exempted revenues may be used for only “Federal, State, or local transportation infrastructure projects carried out by the airport sponsor or by a governing body within the geographical limits of the airport sponsor’s jurisdiction.” The FAA must decide on the airport sponsor’s application within 90 days.
To implement Section 813, the FAA has (1) amended Grant Assurance No. 25 (Airport Revenues), and (2) published Compliance Guidance Letter 2012-01: FAA Implementation of Public Law 112-95 Section 813, Use of Mineral Revenue at Certain Airports (May 16, 2012).
In FAA Reauthorization, Congress directed the FAA to establish a program to integrate civil unmanned aircraft systems (UAS) into the national airspace system (NAS) by the year 2015. The process will begin with the designation of six test ranges throughout the nation. On March 9, 2012, the FAA published a request for comments in the Federal Register seeking the public’s input on its selection process for these sites. At the close of the public comment period on May 8, the FAA had received more than 200 comments.
The FAA plans to use the feedback received to help develop UAS test site “requirements, designation standards, and oversight activity.” The law requires that, in selecting the sites, the FAA must consider “geographic and climatic diversity” and the “location of ground infrastructure and research needs.” The sites, which the FAA plans to select in December, will be used to safely and efficiently integrate UAS into the NAS.
By the end of this year, the FAA expects to issue a proposed rule establishing “policies, procedures and standards” for a range of users in the small UAS community. Because small UAS are versatile and relatively inexpensive to operate, they are expected to experience the earliest and greatest growth in civil and commercial operations.
On May 16, 2012, the U.S. Environmental Protection Agency (EPA) promulgated a final rule governing the discharge of effluent in connection with deicing of aircraft and airfield pavements. The rule as promulgated was less burdensome than originally proposed, in large part due to the efforts of ACI-NA, AAAE, and other aviation interests. The rule establishes technology-based effluent limitations guidelines (ELGs) and new source performance standards (NSPS) under the Clean Water Act (CWA) for deicing operations.
Existing and new primary airports with 1,000 or more annual jet departures that generate wastewater from airfield pavement deicing must either use pavement deicers that do not contain urea, or meet a numeric effluent limitation for ammonia. New airports with 10,000 annual departures located in cold climate zones must collect 60% of aircraft deicing fluid after deicing. The rule does not establish uniform, national requirements for aircraft deicing discharges at existing airports. Such requirements will continue to be established in general or individual permits.
In the EPA’s estimation, compliance with this regulation should reduce the discharge of deicing-related pollutants by 16 million pounds per year. The annual nationwide cost of the rule is estimated at $3.5 million.
On July 6, 2012, the FAA published notice in the Federal Register of mandatory routes for helicopters operating visual flight rules (VFR) over the North Shore of Long Island. The North Shore Helicopter Route is located approximately one mile offshore to avoid helicopters flying over populated areas. Pilots can deviate from the route and altitude requirements when necessary for safety, weather conditions, or transitioning to a destination or landing area. The FAA made repeated statements in the notice that the mandatory rule is based on the unique circumstances associated with helicopter flights around Long Island.
Part 16 Litigation. In Paskar v. FAA, Case No. 11-2720 (2d Cir., June 12, 2012), the Court of Appeals for the Second Circuit denied plaintiffs’ petition for review of an FAA order dismissing the City of New York from an action brought under FAR Part 16 against the City and the Port Authority of New York and New Jersey. Petitioners alleged that the City and the Port Authority violated the Grant Assurances in connection with a waste transfer station near LaGuardia Airport. The court held that the City was not a proper respondent under Part 16 because mere ownership of the airport land does not qualify the City as a “sponsor, proprietor, or operator” of the airport.
Reagan National Slots. In Republic Airline, Inc. v. USDOT, No. 11-1018 (D.C. Cir., Jan. 6, 2012), the U.S. Court of Appeals for the D.C. Circuit vacated a DOT order reallocating slot exemptions at the Reagan National Airport from Republic Airlines to Sun Country Airlines. Prior to the DOT’s reallocation, Republic had merged with Midwest Airlines and gained Midwest’s two slot exemptions in the process. The court held the transfer of slot exemptions in the course of an airline merger was permitted and that the DOT order to reallocate the slot exemptions to Sun Country was arbitrary and capricious because it required the DOT to depart from its precedent of allowing such slot exemption transfers.
Sightseeing Tours. In American Aviation, Inc. et al. v. FAA, No. 10-72772 (9th Cir., Feb. 14, 2012), the U.S. Court of Appeals for the Ninth Circuit denied American Aviation’s petition for review of an FAA order. The order granted American Aviation Interim Operating Authority (IOA) to conduct 462 annual sightseeing flights over the Glen Canyon Recreation Area. The court held that the FAA did not err in granting American Aviation the 462 flights, finding that the airline had abandoned its previous claim to over 4,000 flights in the administrative fact-finding hearing and thus waived its right to raise the issue of its IOA allocation on review.
Paskar v. US DOT, Case No. 10-4612 (2d Cir). Petitioners seek review of an FAA letter transmitting the report of a blueribbon panel evaluating a planned enclosed waste transfer facility near LaGuardia Airport. The report concluded that the facility would be compatible with safe air operations if constructed and operated as recommended in the report. Petitioners claim that the report’s conclusion is arbitrary and capricious and request that the evaluation be remanded to the agency. DOT argues that the report does not constitute a final order, that Petitioners lack standing, and that the report is supported by substantial evidence. Oral arguments were heard on January 6, 2012.
Spirit Airlines v. DOT, Case No. 11-1219 (D.C. Cir.). Spirit Airlines is seeking review of the Department of Transportation’s “Enhancing Airline Passenger Protections” (also known as the Airline Passengers’ Bill of Rights). The Airlines contend that these provisions interfere with airline pricing and services and impermissibly re-regulate airline business practices. DOT’s rules were issued in April 2011. The parties have filed their briefs.
BMI Salvage Corp. v. FAA, Case No. 11-12583 (11th Cir.). BMI is challenging the FAA’s 2011 decision affirming that Miami-Dade County, Florida, was not in violation of Grant Assurance 22 in its operation of Opa-Locka Executive Airport. BMI initially alleged violation of the Grant Assurances due to the County’s refusal to provide the company with salvage and FBO leases, despite the fact that it was providing long-term leases for similarly situated tenants. Oral argument was heard on May 22, 2012.
Town of Stratford v. FAA, Case No. 11-5042 (3d Cir.). Stratford is challenging the FAA’s 2011 Record of Decision approving a new Runway Safety Area (RSA) project for Sikorsky Memorial Airport. Stratford petitioned for review of a 1999 ROD, and its petition was denied on the grounds that it lacked prudential standing to challenge the FAA’s EIS under NEPA. The original project was never completed. The new RSA project has less environmental impacts than the 1999 approved project. Stratford’s opening brief was filed in April 2012, and the case is still in the early stages.
In Hawaii Inspection Fee Proceeding, Docket DOT-OST-2010-0243 (January 23, 2012), the DOT issued a declaratory order finding that a Hawaiian inspection statute was preempted by the Airline Deregulation Act (ADA) and the Anti-Head Tax Act (AHTA). The statute at issue had allowed the State of Hawaii to maintain an independent invasive species inspection program funded by a fee imposed on air shippers. Air carriers will be reimbursed for the fees that the State collected under the statute.
In Evergreen International Airlines v. Port Authority of New York and New Jersey, FAA Docket No. 16-10-04 (April 2, 2012), the Director found that the Respondent, Port Authority of New York and New Jersey, was not in violation of Grant Assurance 22 (Economic Nondiscrimination) or 23 (Exclusive Rights) because the Respondent did not engage in economic discrimination against the Complainant, Evergreen International Airlines, nor did the Respondent unreasonably prohibit the Complainant from exercising its option to selfservice its own aircraft.
Kaplan Kirsch & Rockwell represents two airport sponsors in pending proceedings under FAR Part 16:
Moore v. City of Creswell, FAA Docket No. 16-11-13. Moore filed a complaint alleging that the City of Creswell, sponsor of the Creswell Municipal Airport, violated the Grant Assurances for failing to make a portion of the Airport available for a parachute landing area. The City answered that it had never authorized an on-Airport parachute landing area and that the area proposed for use by Complainant is inconsistent with current FAA standards. The matter has been fully briefed and is awaiting a Director’s Determination.
Northern Air v. County of Kent, FAA Docket No. 16-11-10. Northern Air and KEM Aviation filed a complaint alleging that Kent County, sponsor of the Gerald R. Ford International Airport, violated the Grant Assurances in approving a lease for a new FBO, Executive Air. Kent County has denied that it unjustly discriminated against Complainants or otherwise violated the Grant Assurances. The matter has been fully briefed and is awaiting a Director’s Determination.
Synthesis 33: Airport Climate Adaptation and Resilience (June 2012).
Report 66 – Considering and Evaluating Airport Privatization (May 2012).
Legal Research Digest 14 – Achieving Airport-Compatible Land Uses and Minimizing Hazardous Obstructions in Navigable Airspace (April 2012).
Report 65 – Guidebook for Airport Irregular Operations (IROPS) Contingency Planning (Feb. 2012).
Report 60 – Guidelines for Integrating Alternative Jet Fuel into the Airport Setting (Feb. 2012).
Transportation: National Mediation Board Mandates in the FAA Modernization and Reform Act of 2012, GAO-12-835R, (June 27, 2012).
Transportation: Delayed-Baggage Trends and Options for Compensating Passengers, GAO-12-804R (June 14, 2012).
Aviation Security: Actions Needed to Address Challenges and Potential Vulnerabilities Related to Securing Inbound Air Cargo, GAO-12-632 (May 10, 2012).
Checked Baggage Screening: TSA Has Deployed Optimal Systems at the Majority of TSA-Regulated Airports, but Could Strengthen Cost Estimates, GAO-12-266 (April 27, 2012).
Aviation Safety: FAA Is Taking Steps to Improve Data, but Challenges for Managing Safety Risks Remain, GAO-12-660T (April 25, 2012).
Transportation: Key Issues and Management Challenges, GAO-12-581T (March 29, 2012).
Transportation Security Administration: Progress and Challenges Faced in Strengthening Three Key Security Programs, GAO-12-541T (March 26, 2012).
Aviation Safety: FAA Has An Opportunity to Enhance Safety and Improve Oversight of Initial Pilot Training, GAO-12-537T (March 20, 2012).
Air Traffic Control Modernization: Management Challenges Associated with Program Costs and Schedules Could Hinder NextGen Implementation, GAO-12-223 (Feb. 16, 2012).
Airport and Airway Trust Fund: Factors Affecting Revenue Forecast Accuracy and Realizing Future FAA Expenditures, GAO-12-222 (Jan. 23, 2012).
Interim Response Letter to Congressmen Wolf and Latham Regarding MWAA (May 2012).
K. Andrus, Beyond Airport Emissions: The European Court of Justice’s Decision May Have Far-Reaching Implications, 24 Air & Space Lawyer, No. 4 (2012) (subscription required).
J. Ellison and M. Pilcher, Advanced Imaging Technology (AIT) Deployment: Legal Challenges and Responses, 24 Air & Space Lawyer, No. 4 (2012) (subscription required).
J. Silversmith, Federal Preemption over Air Carrier Prices, Routes, and Services: Recent Developments, 24 Air & Space Lawyer, No. 3 (2012) (subscription required).
On July 6, 2012, the U.S. Court of Appeals for the Third Circuit rejected challenges to the FAA’s Record of Decision approving firm client City of Philadelphia’s Capacity Enhancement Project (CEP) for Philadelphia International Airport. The CEP includes a new runway and significant improvements to the terminal area, along with other capital projects. The Township of Tinicum and Delaware County argued that the FAA’s air quality analysis for the CEP was inadequate based on five discrete issues raised by the U.S. Environmental Protection Agency in comment letters. In Tinicum Township v. DOT, the court held that the EPA’s comments were not entitled to deference, that the FAA had given proper consideration to the EPA’s comments, and that the air quality analysis satisfied the FAA’s legal obligations under NEPA. The court also ruled that a supplemental EIS was not necessary to address post-ROD air quality studies that confirmed the results of the pre-ROD studies. The court largely adopted the arguments of the FAA and the City of Philadelphia, which had intervened in the case in support of the FAA
The U.S. Court of Appeals for the D.C. Circuit has granted a motion by the FAA to reopen the rulemaking for pilot duty and rest time, and to stay a pending petition for review of the rule.
The FAA published a final rule to address pilot fatigue on December 21, 2011. Firm client Independent Pilots Association (IPA) petitioned for review of the final rule to the D.C. Circuit on the basis that the final rule improperly excluded all-cargo operations. The FAA declared in its proposed rule that factors affecting fatigue are universal and warrant one set of standards for all air carrier operations, but then carved out all-cargo operations in the final rule based on a cost-benefit analysis, without the opportunity for public comment. In Independent Pilots Association v. FAA, No. 11-1483 (D.C. Cir.), IPA specifically alleged: 1) the Airline Safety and Federal Aviation Administration Extension Act of 2010 does not permit the FAA to consider costs in promulgating the regulations; 2) the FAA’s cost-benefit analysis did not justify its decision; and 3) the FAA did not provide adequate notice and an opportunity to comment on its cost-benefit analysis. IPA did not request the court to overturn the final rule as it relates to passenger operations, but rather to have the court order the FAA to reconsider inclusion of all-cargo operations.
On May 17, 2012, the FAA filed a motion requesting that the appeal be held in abeyance and the record remanded to the FAA for review. The FAA said that it had reviewed the administrative record and discovered errors in its cost calculations and requested that it be allowed to reopen the record by issuing a supplemental regulatory evaluation, which will be limited in scope to only the decision to exclude all-cargo operations and will be made available for public comment. The FAA also stated that IPA will be allowed to raise all issues it raised in its appeal in the supplemental rulemaking. The court granted the motion. The FAA declared its intent to act expeditiously, but no deadlines have been set.
On March 26, 2012, the Transportation Research Board published Legal Research Digest 13: An Index and Digest of Decisions: Compilation of Airport Law Resources. The digest contains summaries and links to more than 400 federal court cases on the subject of airport law. The cases are organized by keywords, airports, and courts to help users find relevant court opinions without having to rely on fee- or subscription-based services. Kaplan Kirsch & Rockwell prepared the digest under contract to TRB.
Firm partner Eric Pilsk prepared an article, Airport Noise Litigation in the 21st Century: A Survey of Current Issues, 11 Issues in Aviation Law & Policy, No. 3 (Spring 2012), for the DePaul University International Aviation Law Institute’s journal. The article surveys the historical decisions that continue to influence airport noise litigation today. First, the article explains the basic principles of liability for noise damages caused by aircraft overflights established in Causby v. United States, 328 U.S. 256 (1946), and Griggs v. Allegany County, 369 U.S. 84 (1962). The article then builds on these basic principles to analyze changes in policy in recent decisions, with a focus on changes to the scope of liability, statute of limitations, class actions and community claims, and the secondary effects of noise mitigation and airport planning. The article also evaluates federal regulatory changes that have modified the scope of liability, and created incentives to proactively address the problems created by aircraft noise.
Mr. Pilsk’s overarching conclusion is that this area of law has evolved considerably from its historic roots of protecting landowners from noise impacts that could make the property unfit for human habitation. Today, many of these historical impacts have been mitigated by a mandatory nationwide conversion to a quieter aircraft fleet, and by proactive measures by airports to protect and educate current and potential property owners about aircraft noise. Courts today appear less sympathetic to noise impacts that merely impair the lifestyle preferences of homeowners. At the same time, however, courts are showing a greater willingness protect the economic interests of property owners when the impacts of aircraft overflights impair future development potential.
A PDF of this Airport Law Alert is available.