By Cynthia Shultz and Sandy Murdock
Airports constitute an attractive nuisance with noise being the negative and the economic engine being the magnet. The below ↓ notice deals with the phenomena of planes flying close to an airport as depicted in the above ↑ photograph. The policy, which the FAA has proposed, has been lambasted by real estate interests as limiting potential development with seeming disinterest in the safety aspects. The FAA’s unusual authority over “airspace”, 14 CFR Part 77 SAFE, EFFICIENT USE, AND PRESERVATION OF THE NAVIGABLE AIRSPACE, is complex and generally misunderstood. The labeling of this process is ill advised. More importantly, the FAA should sponsor the airport studies in that the solution will have to be adopted by its tower controllers.
The basis for its proposed policy is well articulated in the Notice; aircraft on take-off face the risk (albeit minimal) of losing power in one of its engines (One Engine Inoperative). Under such circumstances, a preferred option is to immediately go around and attempt a landing. The power and controls needed to gain altitude are not advisable for a number of reasons; so it is preferable to preserve a course near the airport which allows a low level pattern.
The power of the FAA under Part 77 (which derives from 49 USC § 40103(a)) is unusual. The Administrator has established standards and imaginary surfaces which are intended to protect the safety of flights, particularly operations near an airport. The metes and bounds of those protected dimensions are defined in Part 77 and the accompanying advisory materials. Even with all of those definitions, the application of the geometry and the analysis of the efficiency of the air traffic routes involve considerable discretion.
Part 77 is really without teeth and the Notice recognizes this. A Determination of Hazard does not, cannot, preclude the building’s construction. The agency document is merely an expression of the FAA’s opinion which a local zoning authority may or may not accept. If the FAA judgment is concurred by the governmental authority over zoning, that decision denying the necessary permits and refusing to allow construction is the legal action blocking the building.
The Notice of Proposed Policy states that it is “desirable for airport owners, with input from users/operators and communities, to define an OEI departure area for each runway end supporting commercial service operations in coordination with the FAA.” The use of the term “desirable” and the further statement that such an OEI study is voluntary suggest a ruse to claim that this Notice does not fall within the Administrative Procedure Act. By such a weak “construct, the FAA need follow the legal protections of a Notice of Proposed Rule Making. That’s suspect law and not a wise tactic.
It is appropriate to note that this FAA action is one of a series of recent efforts to circumvent the NPRM procedures. The most notable was the FAA Flight Surgeon’s sleep apnea policy proposal which engendered considerable industry and Congressional criticism. While it is understood that the FAA faces almost insurmountable hurdles to get from regulatory idea to final rule, bills have been introduced to compel the prior attempt and the instant Notice to follow the NPRM requirements.
This policy should be framed in terms of a requirement. If OEI poses a safety risk, then should not the identification of low level flight procedures be mandated? It seems contrary to risk-based management to make such an exercise voluntary.
Then, there is the question of what entity should sponsor the OEI risk analysis. The airport sponsor is responsible for deciding where the airport and any future ground infrastructure are located. The FAA’s authority is to manage the surrounding airspace. That distinction would seem to suggest that the OEI process should be sponsored by the FAA. The Notice sets the federal agency as being a coordinated party, but that status seems inappropriate.
For example, assume that the airport owner sponsors a study, hires the consultants, schedules the local process, works with the relevant zoning authority (ies), and includes the airlines’ views. It is quite possible that the recommendation from the owner-initiated OEI review is good, but not great—from an FAA perspective, particularly from the view of the controllers. That would be a political disaster.
Since the OEI poses the risks described in the Notice, the right approach would appear to be for the FAA to manage this process. Its staff should prioritize the airports requiring such studies. Then, they should work with the owners to define a process which would provide the necessary local input. It is possible that the FAA recognizes that its current budget would not provide for such a costly endeavor, but the substance of the risk should cause Congress to budget the dollars.
That would be a better process with the right leader.
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