Bird Strikes During Aircraft Takeoff and Landing Still a Major Issue

Bird strikes during takeoff and landing at airports is a major issue that affects safety in both the commercial and business aviation sectors. According to a recently released audit by the Department of Transportation Inspector General, the Federal Aviation Administration (“FAA”) has not been sufficiently implementing its program to monitor these hazards.

The report suggests that the FAA’s oversight and enforcement of the Wildlife Hazard Mitigation Program has not done enough to stop strikes. The Program requires airports to conduct wildlife hazard assessments when strikes occur or could occur. The assessments must be approved by the FAA Administrator and may result in the implementation of a wildlife hazard management plan, which includes wildlife population management, habitat modification, and land use changes that have been identified in the assessment. 

The audit report challenges the Program’s effectiveness. Bird strikes have increased by 500 percent between 1990 and 2011. According to a study of 40 randomly selected airports, including a dozen regional airports, bird strikes have caused approximately $123 million in damage each year, and 23 deaths in the U.S. (229 worldwide) since 1988.  

Further, airports are not required to report these incidents; which mean data could be insufficient and costs could be much greater. A 2009 FAA study found that only 39 percent of bird strikes were reported and 21 percent of strikes in airport logs were not reported to the FAA database.

The FAA offers grants through the Airport Improvement Program to implement wildlife management plans, and airports are inspected by FAA-contracted wildlife biologists. However, the audit found that current spending and oversight is insufficient to address the issue and further found that inspectors do not have the technical expertise to conduct proper wildlife hazard assessments.

The Inspector General suggests that the FAA develop better performance metrics and coordinate with the Department of Agriculture and the Fish and Wildlife Service to obtain the technical assistance required to limit bird strikes to business and commercial aircraft.  

 Special thanks to Sullivan & Worcester’s Alexandra Campbell-Ferrari for assistance in preparing this post.

FAA's No Hazard to Air Navigation Determinations Challenged

As we discussed earlier in our post entitled "Offshore Wind Energy Turbines Pose No Threat to Air Navigation and Traffic Operations According to the FAA," the Federal Aviation Administration (“FAA”) issued No Hazard to Air Navigation determinations for the Cape Wind offshore wind energy project located in the Nantucket Sound. The determinations mean that the project’s 130 wind turbines pose no threat to air navigation and traffic operations in the area.

Shortly after the FAA’s determinations were issued, the Alliance to Protect Nantucket Sound asked the United States Court of Appeals for the District of Columbia to review the FAA’s aeronautical studies that led to the no hazard determinations. According to the Petition for Review, the Alliance questions whether the FAA complied with the court’s October 2011 decision in Town of Barnstable v. FAA, 659 F.3d 28 (D.C. Cir. 2011), which vacated the FAA’s earlier no hazard determinations for the Cape Wind project, and remanded the matter back to the FAA for further study and analysis.

The case is pending in the United States Court of Appeals for the District of Columbia Circuit, Alliance to Protect Nantucket Sound v. FAA (Civil No. 12-cv-1363). This review will be closely watched by the wind energy industry and the states. If the FAA’s determinations stand, the Cape Wind project and offshore wind energy will move one step closer to development and operation.

Offshore Wind Energy Turbines Pose No Threat to Air Navigation and Traffic Operations According to the FAA

The Federal Aviation Administration affirmed its previous decisions that the Cape Wind offshore wind energy project poses no threat to air navigation and traffic operations. This is the fourth time the FAA’s aeronautical study has concluded that the 130 wind-turbine farm would not present a hazard since the project was first reviewed in 2002. The agency must evaluate the project and make a determination every 18 months. This latest determination expires in February 2014.

The same decision was made last year by the FAA; however, the D.C. Circuit Court concluded that the agency had not properly applied its handbook to the project’s evaluation. The court required the agency to go back and analyze whether the project adversely affected visual flight procedures. This latest study showed no adverse effect.

As we discussed in our July 2011 post entitled, “Wind Turbines Effect on Radar Systems and Aviaiton Security,” wind turbines affect the safety of the general and business aviation sector because wind towers may be constructed along routes typically flown by smaller aircrafts. The Cape Cod and Nantucket Sound area, where the Cape Wind project is located, is served by several public use airports, including Barnstable Municipal Airport-Boardman/Polando Field (HYA), Nantucket Memorial Airport (ACK), and Martha’s Vineyard Airport (MVY), as well as one military airport, Falmouth Cape Cod Coast Guard Air Station (FMH). According to the FAA’s determination, the Cape Wind project poses no hazard to flight operations in and out of these airports.

Attention will now turn to the litigation pending in the United States District Court for the District of Columbia (Civil No. 10-cv-01067). In this matter, several community groups and one Native American tribe brought a consolidated action against the U.S. Department of Interior. The action alleges that in approving the Cape Wind project, the agency did not conform to law and perform the due diligence required in evaluating the potential impact the project would have on the environment and the cultural and historical resources of the tribe.

Sullivan & Worcester represents the Conservation Law Foundation, a non-profit environmental group with offices throughout New England, in the matter. CLF is an amicus curiae party supporting the U.S. Department of Interior’s approval of the project.

White House Completes Review of Effluent Limitation Guidelines Governing Discharges From Airport Deicing Operations

Recently the White House Office of Management and Budget (“OMB”) completed its review of the Environmental Protection Agency’s (“EPA”) Effluent Limitation Guidelines governing discharges from airport deicing operations. The guidelines, which will be implemented under the National Pollutant Discharge Elimination System (“NPDES”), require airports within the scope of the rules to collect spent deicing/anti-icing fluid and treat the associated wastewater. According to EPA’s website, the Agency projects the Final Rule to be published in the Federal Register in May 2012. 

The Federal Aviation Administration (“FAA”) requires airlines to remove frozen precipitation from an aircraft and airfield pavement to protect the safety of the passengers and cargo. Airlines use anti-icing/deicing (“ADF”) because it is economical and effective. According to EPA, during typical wet weather conditions, it can take an estimated 150-1,000 gallons of ADF to deice smaller corporate or business size aircrafts and 1,000-4,000 gallons to deice a large commercial aircraft. The concerns raised by environmentalists and residents living close to airports are that chemicals within ADF discharges may affect nearby surface and ground water quality, including reductions in dissolved oxygen, fish kills and contamination of drinking water sources. After more than a decade of research, EPA agreed.

The proposed Effluent Limitation Guidelines require airlines to use the best available technology to control direct discharges of toxic and non-conventional pollutants. Factors considered in assessing the best available technology include the cost of achieving effluent reductions, the age of the equipment and facilities involved, the process employed and potential energy impacts.

The use of best available technology and the amount of ADF required to be captured depends on the number of annual departures and the gallons of ADF used. According to the guidelines, an airport using more than 460,000 gallons of ADF annually, with more than 1,000 annual commercial jet departures and more than 10,000 departures of all aircraft must use best available technology to capture 60 percent of used ADF. Airports using less than 460,000 gallons of ADF annually must use best available technology to capture 20 percent of used ADF, meet the effluent limit for chemical oxygen and certify use of non-urea based pavement deicers or meet the effluent limit for ammonia. Additionally, airports with more than 1,000 annual jet departures and fewer than 10,000 annual departures must certify use of non-urea based pavement deicers or meet the effluent limit for ammonia.

This begs the question, who’s paying the bill for the purchase and maintenance of the best available technology; airports, airlines or customers? EPA’s proposed guidelines state that historically, most or all airport costs are eventually paid by airlines and passed through to airline customers. However, due to severe financial distress experienced by the airlines after 9/11 and the recent economic recession, cost pass through percentages by airports are significantly lower than a decade ago when the rate was 100 percent. For large airline operations and airports, the effect of the regulation won’t disrupt their bottom line; by contrast, for many small operators and airports, the cost of this regulation may be more than they can bear. 

Some airports have decided to reduce or eliminate their use of ADF altogether. For example, according to a WINGS Magazine article, New York’s John F. Kennedy Airport and New Jersey’s Newark International Airport invested in an Infrared Deicer technology designed and built by Radiant Aviation Services, Inc. The airports employing this new technology as an alternative to ADF, have found it to be reliable and cost-effective.

For airports with deicing operations, requirements for capture and mitigation of ADF will soon become a reality as EPA works toward finalizing and implementing its Effluent Limitation Guidelines. Airports meeting the criteria outlined in the proposed guidelines should begin preparing to meet these standards. As this issue progresses, please check back to this blog for future posts.

Special thanks to Sullivan & Worcester’s Legal Research and Business Development Intern, Reginald McKoy II, for assistance in preparing this post.

Proposed FAA Interpretation Would Relax Reimbursement Prohibition for Personal Use Under Part 91

There have not been a lot of positive developments concerning the business aviation community in the recent past. So it was welcome news when, on June 30, 2010, the Federal Aviation Administration announced that it was considering a relaxation of its so-called (and long established) “Schwab Interpretation” under Part 91.501(b)(5) of Federal Aviation Regulations (the “FARs”).

Most business aircraft are operated under one of two regulatory regimes under the FARs – FAR Part 91 or FAR Part 135. Part 91 is applicable to general aviation not involving operations for compensation or hire, and is a less onerous regulatory regime than that applicable to air taxi or chartering operations (Part 135). The more relaxed rules applicable to Part 91 come with certain conditions, however. The underlying premise of Part 91 is that the need for regulatory oversight is reduced where an operator of an aircraft is using its aircraft for its own use or for the use of its guests, and not for compensation or hire. Available exclusions from the “no reimbursement” rule are narrow. 

One of the exclusions – referred to as the “intercompany exclusion” (FAR Part 91.501(b)(5)) – permits all costs of ownership, operation and maintenance to be reimbursed. However, a condition of the intercompany exclusion is that “the carriage must be within the scope of, and incidental to, the business of the company [i.e., the operator] (other than transportation by air).”   Moreover, the FAA has historically taken a narrow view of the meaning of this two‑part “scope of” and “incidental to” test.  In 1992, Charles Schwab & Co., Inc. requested an interpretation of Part 91.501(b)(5) that would have permitted Charles Schwab to reimburse the company for flight costs related to certain vacation trips made by Mr. Schwab. The request stressed the need for the company to maintain prompt communications with Mr. Schwab. The FAA was not, as it turned out, at all receptive to this request. It responded (more than a year after the request) that Mr. Schwab was travelling for pleasure and that this sort of carriage was not within the scope of or incidental to the business of Charles Schwab & Co. Reimbursement of these flight costs was not permitted under Part 91.501(b)(5).

Seventeen years later, with the encouragement of the National Business Aircraft Association, the FAA announced it was considering revising the Schwab Interpretation. In its June 30 announcement, the FAA stated that it had tentatively determined that a company could be reimbursed for the pro rata cost of owning, operating and maintaining an aircraft when used for routine personal travel by certain highly-placed officers and employees.  The FAA stated that it recognized that these individuals might be unable to reliably schedule personal travel due to the nature of their employment. For such an individual, it might make more sense for the company to provide the company aircraft than to reimburse the individual for the cost of the cancelled commercial airfare. The FAA reasoned that the ability of the company to modify travel plans on very short notice could render a particular flight both within the scope of and incidental to the company’s business.

The proposed interpretation addressed, without getting specific, the criteria that should be used to determine who is a “highly-placed officer or employee.” The FAA stated that a company that expects to take advantage of this interpretation should maintain and regularly update a list of individuals whose positions may require them to change travel plans on very short notice. The FAA indicated that this list may draw from the set of officers, directors and more‑than‑10% owners of a company, but that not all the officers and directors are likely to be subject to the high level of company interference with personal travel plans that is required. The FAA suggested that the company’s board (or equivalent body) decide who belongs on the list.

The proposed interpretation represents a substantial modification to the Schwab Interpretation – and, if ultimately adopted, could be of considerable help to members of the business aviation community.

You may ask why a highly-placed officer or director would seek the privilege of reimbursing his or her company for flight costs. Financial reporting is the principal reason. For public companies, the personal use of corporate aircraft may have to be disclosed in reporting executive compensation (at aggregate incremental cost). That is a disclosure that is likely to attract attention – usually not a good thing where personal use is involved. However, generally no compensation element needs to be reported where the individual is fully reimbursing the company for the cost of the flight – which the FAA’s proposed interpretation would permit. 

Comments on the FAA’s proposed interpretation are due by August 9, 2010.