The hearings meet the APA
Rep. Zeldman comment requirement is where solutions are likely to be found
On behalf of my constituents, I [Rep. Lee Zeldman R- 1st District NY] introduced a bipartisan legislative proposal that became law requiring the FAA to reassess the North Shore Helicopter Route to address the noise impact on affected communities, improve altitude enforcement and assess alternative routes, including an all water route over the Atlantic Ocean. Additionally, it would require the FAA to hold a public hearing on the NSR in impacted communities and open a public comment period.
With the enactment of this legislation, the FAA was now required to hold a public hearing and open a public comment period for my constituents affected by this route, and, in a failed effort to comply with this new legislation, recently held a series of “workshops” across Long Island.
Although the FAA is now forced to listen as enshrined in federal law, these “workshops” have given Long Islanders a bad case of deja vu. These “workshops” fail to comply with the public hearing mandated in this new law, and many strongly believe they were seemingly formatted to stifle the true negative impact of this route.
Here is the text of the FAA Reauthorization Act of 2018 cited by the Representative:
[enacted October 5,2018]
SEC. 182. MANDATORY USE OF THE NEW YORK NORTH SHORE HELICOPTER ROUTE.
(a) PUBLIC COMMENT PERIOD. —
(1) IN GENERAL. —The Administrator shall pro-vide notice of, and an opportunity for, at least 60
days of public comment with respect to the regulations in subpart H of part 93 of title 14, Code of
(2) TIMING. —The public comment period required under paragraph (1) shall begin not later than 30 days after the date of enactment of this Act.
(b) PUBLIC HEARING. —Not later than 30 days after the date of enactment of this Act, the Administrator shall hold a public hearing in the communities impacted by the regulations described in subsection (a)(1) to solicit feedback with respect to the regulations.
(c) REVIEW. —Not later than 30 days after the date of enactment of this Act, the Administrator shall initiate a review of the regulations described in subsection (a) (1) that assesses the—
(1) noise impacts of the regulations for communities, including communities in locations where aircraft are transitioning to or from a destination or point of landing;
(2) enforcement of applicable flight standards, including requirements for helicopters operating on the relevant route to remain at or above 2,500 feet
mean sea level;
(3) availability of alternative or supplemental routes to reduce the noise impacts of the regulations, including the institution of an all water route over the Atlantic Ocean.
Administrative Procedure Act has been interpreted to define what constitutes a “hearing”:
“In the process of adjudication, an agency decides on present and future rights and liabilities of parties to an administrative proceeding. Agencies apply relevant law and policies for adjudicating contested cases. Administrative proceedings need not contain all the formalities of ordinary judicial proceedings. [i] The Federal Administrative Procedure Act does not impose on any agency the requirement of holding a formal adversary hearing. [ii] However, the 1961 Revised Model State Administrative Procedure Act prescribes a single type of adjudicative hearing in the contested cases. Formal hearing involves presentation of evidence, cross-examination and rebuttal. Decision in formal hearing will be based solely on evidence of record.
Administrative agencies are outside the purview of the technical procedures followed in trial courts. Rules governing trial before courts do not apply to agency proceedings. [iii] Agencies are also empowered to prescribe rules of practice and procedure governing proceedings before the agency in the absence of statutory provision. In making procedural rules, agencies are given wide discretion. However, agencies cannot assume the power of legislature in making procedural rules.
Agency’s jurisdiction is the power given by the law to decide controversies. Jurisdiction in administrative law has three aspects: personal jurisdiction, subject matter jurisdiction and agency’s authority under statute. An agency is without subject matter jurisdiction when it lacks statutory power to consider a matter.[iv]
Proceedings followed in agency adjudication differ with the character of action. Generally, proceedings are instituted by simple ex parte application, such as an application for license or permit. Some proceedings are instituted by the filing of a charge or complaint by an aggrieved person. When formal complaint is filed, notice of hearing will be issued. The presiding officer should give all parties full opportunity to file pleadings and motions. Parties are permitted to file notice pleadings also. Additionally, agencies can require responsive pleadings as well.
There is no substantive right or constitutional right to hearing in agency adjudication. However, the Administrative Procedure Act describes the procedure to be followed in conducting adjudication hearing when statute or constitutional law compels such a hearing. Accordingly, the type of hearing differs from case to case. A contested case can be disposed of by stipulation, agreed settlement, consent order, or default. [v]
Generally, all interested parties may participate in adjudication before an agency. A party includes a person or agency named or admitted as a party. [vi] An interested party is a person to whom the agency action is specifically directed, or a person named as a party in an agency proceeding or allowed to intervene or participate in an agency proceeding.
General rules of evidence applicable in trial courts do not apply in administrative hearings.
The burden of proof in agency adjudication is on the proponent of a rule or order.
[ii]5 USCS § 554
[iii]Penn Cent. Corp. v. Consolidated Rail Corp., 56 N.Y.2d 120 (N.Y. 1982)
[iv]Golden v. Joseph, 307 N.Y. 62 (N.Y. 1954)
[v]The 1961 Model State Administrative Procedure Act
[vi]5 USCS § 551§[viii]The Federal Administrative Procedure Act and the 1981 Model State Administrative Procedure Act
[ix]The 1981 Model State Administrative Procedure Act
As a lawyer and a Member of Congress, Representative Zeldman knew or is imputed to have known the difference between an adversarial hearing and a hearing which meets the APA requirements. Yet, here is the letter that he wrote to FAA Regional Administrator Jennifer Solomon excoriating her for “failure” to comply with the above cited §182:
The relevant language of the Representative’s letter to Ms. Solomon is as follows:
What did Ms. Solomon do that was so egregious?
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
55134 Federal Register/Vol. 83, No. 213/Friday, November 2, 2018/Proposed Rules
Notification of Public Meetings on Requirement for Helicopters To Use the New York North Shore Helicopter Route
AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notification of public meetings.
SUMMARY: The FAA announces three public meetings to solicit feedback concerning the New York North Shore Helicopter Rule (‘‘the Rule’’). These meetings are being held pursuant to Section 182 of the FAA Reauthorization Act of 2018. The Rule requires civil helicopter pilots operating under Visual Flight Rules (VFR), whose route of flight takes them over the north shore of Long Island between the Visual Point Lloyd Harbor (VPLYD) waypoint and Orient Point (VPOLT), to use the North Shore Helicopter Route.
DATES: The public meetings will be held on November 13, November 14, and November 15, 2018.
ADDRESSES: The public meetings will be held at the following sites:
November 13, 2018, 7–9 p.m.—Cradle of Aviation Museum, Charles Lindbergh Blvd., Garden City, NY 11530.
November 14, 2018, 7–9 p.m.— Riverhead Middle School, 600 Harrison Avenue, Riverhead, NY 11901.
November 15, 2018, 7–9 p.m.— Vaughn College, 8601 23rd Ave, Flushing, NY 11369. FOR FURTHER INFORMATION CONTACT: Christopher Bailey, Office of Rulemaking, Federal Aviation Administration; telephone (202) 267– 4158; email Christopher.email@example.com.
Purpose of the Public Meetings
The purpose of the public meetings is for the FAA to obtain feedback relevant to the Rule at subpart H of part 93, which requires civil helicopter pilots operating under VFR, whose route of flight takes them over the north shore of Long Island between the VPLYD waypoint and VPOLT, to use the North Shore Helicopter Route. The FAA will consider comments made at the public meetings in its review of the Rule.
Public Participation and Meeting Procedures
The meetings will use a workshop format. FAA will have several stations covering a number of relevant aspects of the Rule. Each station will be staffed by a representative of the FAA who is able to answer questions regarding that subject. There will also be a station where the public can submit a written statement or have their oral comment transcribed. No formal presentations will be made.
Section 182 of the FAA Reauthorization Act of 2018 also calls for a written comment period on the North Shore Helicopter Rule. See the document published elsewhere in this issue of the Federal Register, titled Request for Comments on Requirement for Helicopters to Use the New York North Shore Helicopter Route, under docket number FAA–2018–0954, for information regarding submitting written comments on the Rule to the Federal Register.
This notice may not be the adversarial confrontation between the FAA and the 1st District’s constituents which the Representative anticipated would generate headlines favorable to him. However, workshops meet the requirements of the APA and provide a useful forum for problem resolution.
Shouting at 30 paces may satisfy some primal need to vent frustration, but it is not a useful methodology to derive a compromise which balances the FAA’s statutory safety and efficiency MANDATES while addressing the very real considerations of the citizens who live close to these helicopter tracks. Recent successes in dealing with the FAA about flight paths are attributable to community groups who have hired experts who are both able to communicate the sensitivities of impacted neighborhoods but also able to provide viable alternatives acceptable to the FAA mandates.
Perhaps the most effective forum for seeking a balanced solution is the public comment process which Representative Zeldman and Senator Schumer inserted in §182: submission of comments. Those documents are infinitely more effective to convey the technical parameters which would articulate a win/win solution– the metes and bounds of the flight paths and altitudes that are acceptable to the citizens as well as meeting the FAA’s requirements.
The FAA has requested COMMENTS:
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
Request for Comments on Requirement for Helicopters To Use the New York North Shore Helicopter Route
AGENCY: Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
ACTION: Request for comments
DATES: Written comments must be received on or before January 2, 2019.
The FAA is inviting comments that may assist the agency in assessing and understanding the impacts of the Rule and any potential implications of modifying the Rule. In particular, we invite responses to the following questions:
1. Did implementation of the Rule result in more or less helicopter noise in your community compared to levels you experienced prior to implementation of the Rule?
2.How and when do helicopter operators deviate from the Rule?
3.Are there alternative or supplemental routes that you believe will reduce the noise impacts without jeopardizing the safe operation of aircraft?
4.Should the Rule be extended, modified, or allowed to expire in 2020?
This docket is the place to capture the conscience of the FAA
Rep. Zeldman, you may have wanted an adversarial confrontation to be the result of §182, but your compulsory comment process is the most effective process for improving the NSR for your constituents.
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