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Reprinted with permission from Airport Noise Report, Volume 28, Number 1, Jan. 8, 2016.

The Consolidated Appropriations Act of 2016 – passed by Congress and signed into law by President Obama on Dec. 18 – includes language requiring the Admin- istrator of the Federal Aviation Administration to improve the agency’s methods for involving communities and airports in its implementation of NextGen Perform- ance-based Navigation (PBN) procedures.

The Act requires the FAA Administrator to review and update the agency’s Community Involvement Manual as it relates to new air traffic procedures, public outreach, and community involvement no later than 60 days after enactment of the legislation.

It also requires the FAA Administrator to “complete and implement a plan which enhances community involvement techniques and proactively addresses con- cerns associated with performance based navigation projects.”

FAA must transmit the community involvement manual and plan to the House and Senate Committees on Appropriations, the House Committee on Transportation and Infrastructure, and the Senate Committee on Commerce, Science and Transportation not later than 180 days after en- actment of the Act (around mid-June).

McCain Letter to Huerta

In a Dec. 22 letter, Sen. John McCain (R-AZ) told FAA Administrator Michael Huerta that the Senate record on the Consolidated Appropriations Act explains that the intent of the language on PBN “is to improve outreach to the commu- nity and airport, providing an opportunity for notification and consultation with the operator of an affected airport and the community before making future flight path decisions.”

McCain told Huerta that the Senate record on the legisla- tion also provides that: “For [PBN airspace] changes that have already been implemented, as in the case in Phoenix, the Administrator shall review those decisions to grant a categor- ical exclusion under Section 213(c) of the FAA Moderniza- tion and Reform Act of 2012 to implement procedures in which the changed procedure has had a significant effect on the human environment in the community in which the air- port is located, if the airport can demonstrate that the imple- mentation has had such an effects.

“If this review indicates that the flight path changes have had such an impact, the FAA shall consult with the operator of the airport to identify measures to mitigate the effect of the procedure on the human environment; including considering the use of alternative flight paths.”

Sen. McCain told the FAA Administrator that he expects the agency “to promptly meet the requirements of this law, proactively working to address concerns and providing a long-awaited, much-needed opportunity for residents around Phoenix Sky Harbor International Airport negatively im- pacted by flight noise to have their voices heard.”

However, a key issue that does not appear to have been defined in the Consolidated Appropriations Act of 2016 is how airports can determine when a PBN procedure imple- mented under CatEx 1 or 2 has had “a significant effect on the human environment in the community in which the air- port is located.”

It is not yet clear whether FAA or airports – or ultimately the courts – are responsible for defining that term.

CatEx 1 and 2 Provision Not Amended

Language added by Sens. McCain and Jeff Flake (R-AZ) to the Department of Transportation, Housing and Urban De- velopment (THUD) appropriations bill but omitted from the Consolidated Appropriations Act of 2016 – which the THUD bill was rolled into – would have actually amended Section 213(c) of the FAA Modernization and Reform Act of 2012, which established the controversial CatEx 1 and CatEx 2 cat- egorical exclusions for PBN procedures that communities staunchly oppose because they allow FAA to implement PBN procedures without first preparing an environmetal assess- ment or environment impact statement.

The McCain/Flake amendment (27 ANR 157) would have amended Section 213(c) to require that “Not less than 90 days before applying a categorical exclusion under this sub- section to a new procedure at an Operational Evolution Part- nership (OEP) airport [the busiest 35 airports in the U.S.], the Administrator shall:

  • Notify and consult with the operator of the airport at which the procedure would be implemented, and
  • Consider consultations or other engagement with the community in which the airport is located to inform the pub- lic of the procedure.”

The amendment also would have required the FAA Ad- ministrator to review prior decisions to grant categorical ex- clusions to PBN procedures at OEP airports “to determine if the implementation of the procedure had a significant effect on the human environment in the community in which the airport is located, if the operator of that airport requests such a review and demonstrates that there is good cause to believe that the implementation of the procedure had such an effect.”

The FAA’s first use of CatEx 1 was at Phoenix Sky Har- bor International Airport in September 2014 when the agency implemented RNAV departure procedures that caused wide- spread noise complaints and resulted in lawsuits being filed by the City of Phoenix and several historic neighborhood as- sociations challenging the FAA’s approval of the procedures.

In addition to taking the FAA to court over its implemen- tation of the RNAV departures, the City of Phoenix also hired the Holland & Knight lobbying firm in Washington, DC, to find a legislative fix to their problem.

The firm has been working closely with Sens. McCain and Flake and others on Capitol Hill and in aviation trade groups to move the senators’ amendment.

The outcome of that effort – at least to this point – ap- pears to be that many of the requirements of the McCain/ Flake amendment were included in the Senate’s legislative record on the omnibus funding bill but were not included in the legislative language itself.

Gallego Amendment Omitted Also

Also omitted from the final omnibus funding bill was lan- guage added to the THUD bill passed by the House by Rep. Ruben Gallego (D-AZ) that would have barred FAA from re- ceiving funding to redesign the Phoenix Metroplex airspace while serious noise issues resulting from last September’s changes to departure paths at Phoenix Sky Harbor Interna- tional Airport remain unresolved (27 ANR 86).

However, last November Rep. Gallego introduced the FAA Community Accountability Act of 2015 (H.R. 3965), which now has 20 co-sponsors and would give local commu- nities a say in the FAA’s decison making process regarding NextGen flight paths (27 ANR 152).

It also would establish a new process to compel FAA to reconsider existing PBN flight routes that are exposing resi- dents to unacceptably high levels of aviation noise and would allow FAA to give preference to overlays of existing flight paths or preceudres to ensure compatibility with land use in the vicinity of an affected airports.

H.R. 3965 was referred to the House Aviation Subcom- mittee and is not likely to move forward unless somehow at- tached to FAA’s new reauthorization bill which is still under development and expected to propose privatizing the FAA’s air traffic organization.

Phoenix Officials’ Letter

The mayor and City Council of Phoenix and mayors of nine cities and towns surrounding Phoenix urged the Chairs and Ranking Members of the Senate Appropriations Commit- tee and its THUD Subcommittee in an Nov. 23 letter to retain the McCain/Flake amendment in the final 2016 Omnibus funding bill.

“This amendment will help ensure that affected commu- nities, nationwide, including the Phoenix-Mesa region, have the opportunity to be heard – to have a voice – on proposed flight-path changes being considered by the FAA within the framework of its existing categorical exclusion authority. It is imperative that this language be included as part of the final THUD appropriations, whether it be a freestanding bill or as part of an omnibus,” the mayors wrote.

Some members of the House Quiet Skies Caucus praised the requirement that FAA update its Community Involvement Manual. Rep. Steve Israel (D-NY) said he helped secure the language requiring FAA to update its Community Involve- ment Manual.

Rep. Stephen F. Lynch (D-MA) said, “The families who live in the neighborhoods and towns surrounding Logan Air- port have struggled to have their concerns about airplane noise heard by the FAA for a long time.

“Thanks to the efforts of our Congressional Quiet Skies Caucus, Congress is trying to hold the FAA accountable by mandating that the FAA update their community involvement strategy and report back to Congress on these important changes.

“The lack of public outreach from the FAA has been a significant issue for residents of the 8th Congressional Dis- trict and communities across the country. This new provision will ensure that the FAA is more responsive. It gives us more leverage in dealing with the FAA.”

FAA Funding

The Consolidated Appropriations Act of 2016 funds the FAA at a level of $16.03 billion. This funding level is $270 million more than the Senate Committee markup, $426 mil- lion more than the House bill, and $563 million more than appropriated in fiscal year 2015, said Sen. Barbara Mikulski (D-MD), Ranking Member of the Senate Appropriations Committee.

The Act funds FAA NextGen and operations planning ac- tivities at a level of $60.08 billion; funds grant-in-aid for air- ports at $3.6 billion; and funds the Airport Cooperative Research Program managed by the Transportation Research Board at a level of $31 million.