Another Example of FAA Misdirecting Its Abundant Resources

(click on image to view original article at AOPA.org)

(click on image to view original article at AOPA.org)

In early 2012, within the same congressional legislation that enabled FAA to impose impactful NextGen routes without meaningful environmental review, FAA was directed to accelerate ‘integration of unmanned aerial vehicles’ into the National Airspace System. Deadlines were set, and FAA has consistently failed these deadlines, but FAA did eventually get around to creating some rules. FAA also created an exemption process, enabling so-called ‘commercial operators’ to proceed without compliance to the new rules.

FAA has since granted more than a thousand exemptions (searchable list of 1,451 exemption entries, with links to PDF copies). Each exemption has required dozens of hours of work on both ends of the process: the applicant (or their well-paid attorney) has to create typically 20-50 pages of documentation, and FAA lawyers and others then spend dozens of hours reviewing the application and drafting a ‘decision’ filled with boilerplate that typically runs 8-10 pages long. Generally, the exemptions require flight no higher than 400-feet above ground level, and the operator must have earned a costly FAA pilot certification. In many cases, FAA has also submitted the exemption applications for publication in the Federal Register, in accordance with the NPRM rulemaking process.

One of the latest FAA exemption approvals goes to Peter Sachs, a Connecticut attorney developing a specialty in unmanned flight. Here, he was granted approval to fly a paper airplane with a tiny propeller … so long as he uses an FAA-licensed pilot to perform the flight and flies low to the ground. Just a paper airplane, which clearly could have no significant impact on any real aircraft.

Perhaps a more intelligent FAA rule (and one that would provide lots of relief from aviation noise) would be to mandate all manned aircraft minimize flight time below say 2,500-feet above ground level (AGL), and do all level cruising flights at no less than 2,500-feet AGL.

For the record, FAA’s current helicopter rules essentially allow helicopter pilots to cruise right at ground level, and fixed-wing planes are legal at just 500-feet above ‘uncongested’ terrain and 1,000-feet above ‘congested terrain’ (whatever those terms mean). Furthermore, the rules promulgated by FAA at FAR 91.119 are loaded with loopholes that render them entirely unenforceable; for example, ANY pilot can justify low flying, simply by claiming he or she needed to be at that altitude to transition to or from their cruising altitude.

It seems rather incredible that this much busywork should go into creating rules, yet the rules are so arbitrary that the agency quickly grants rule exemptions to well over a thousand applicants. And all of this fuss over objects (radio-control models, and even paper airplanes now!) that just four years ago were considered ‘recreational’. One has to question just how intelligent a rule is, when thousands of exemptions are promptly issued. Imagine if our state DMV’s arbitrarily issued 30mph maximum speed limits for our cars, then granted tens of thousands of waivers, each accompanied with a tiny decal to go onto our cars. Yes, it would be absurd and expensive, but it sure would keep lots of state DMV employees busy.

The same appears to be the case at FAA. Wouldn’t it be nice if FAA redirected their personnel resources, aiming them instead at…

  • … resolving noise issues,
  • … reducing GA accident rates,
  • … improving helicopter fuel tank ruptures (and other serious airworthiness problems), and
  • … correcting the employee fatigue issues that continue to haunt pilots and controllers?

FAA could do so much more, if it chose to serve the People, not just the industry players.

How FAA is Sabotaging the Citizen Involvement Process on ‘OAPMs’

Suppose you live in Southern California, maybe near the airport in Santa Monica. And, suppose you are highly responsible, the kind of person who doesn’t just take the time to vote but also sacrifices even more of your precious personal time to participate in important decisions by your government. You make it a habit to stay informed and involved.

One day, a news item announces that FAA has a big airspace redesign project: the SoCal Metroplex OAPM.**OAPM = ‘Optimization of Airspace & Procedures in the Metroplex’. You read the article and see that FAA has posted documents online and will have public ‘open houses’ at libraries and other locations, to answer questions and to enable citizen awareness of the proposals. At the end of the ‘open houses’, FAA has set a deadline for you to offer your concerns, suggestions, etc.

You are a busy person, with a job and a home and a family, but you nonetheless make time to do what you feel is your civic duty. You go online and find a slick webpage (created by a contractor for FAA) with an overview and more links. You click on the ‘Documents’ link and find another slick page, this one with links to 57 documents totaling 793 megabytes. Some of the links point to PDF files so large (the largest three are 70MB, 83MB, and 84MB) that you cannot even bear the long wait time to finish a download. You nonetheless wait through the slow downloads and open a few of the links.

You then wade through hundreds of pages, filled with aviation acronyms and other gobbledygook. You are bright and curious, and try your damnedest to make sense of what you are reading, and yet many pages are filled with information that appears to be completely irrelevant. Not just irrelevant to your small area of concern (how will these changes impact my home and my family, here in Santa Monica?), but even for the larger area of focus identified in FAA’s 57 online documents (the entire SoCal Metroplex, spanning from the Salton Sea to Solvang, and from Victorville to Tijuana).

You plow ahead and formulate a few questions. You attend a local Open House, where you find a team of FAA employees and aviation professionals awaits, ready to answer your questions. They eagerly focus on the claimed benefits, especially the claimed reduction in fuel consumption, but they grow quiet on some of your questions. You become perplexed when you realize: they are refusing to answer any questions related to the environmental impacts of their proposed changes. It is as if the proposal is all about enhancing capacity while blindly ignoring the environment. You depart the Open House and maybe, just MAYBE, you still have enough energy left to write and submit a comment before the deadline. Or, perhaps more likely, you simply shake your head and wonder: Why is this such a broken process?

The Laws…

Rest assured: it was never intended that the process would evolve as it has, to narrowly serve only the regulator and the regulated, at the expense of the much larger Public. And it is not you; it is the process that has gone nuts.

In the big picture, there are two fundamental elements needed for the effective functioning of Democracy and representative government:

  1. maximum informational transparency (in the timely release of quality reports and draft documents),
  2. and the assurance that individual citizens have an opportunity to meaningfully participate in the decision-making process.

To protect the people against agency regulatory capture, many federal laws have been deliberated and passed by Congress. Not least of these laws is the Administrative Procedures Act (APA). The APA was passed in the 1940’s, aimed at bringing the evolving over-reach of numerous federal agencies back under control. Aimed at ensuring, no matter how simple or complex a proposed new rule was, agencies were not allowed to operate in a vacuum, and citizens were empowered to make meaningful contributions. Essentially, it is a check-and-balance; our past Congress’ passed laws that empowered our federal employees to create changes, but to protect our rights and ensure an effective process, Congress also passed laws requiring an open process engaging the public.

Wonderful concept, isn’t it? The problem, though, is this is only a ‘concept’, because in reality FAA (and more than a few other federal agencies) have slowly developed strategies for subverting the process. FAA is the regulatory agency with the authority to regulate airlines, manufacturers, and other aviation entities. But, FAA is a captured agency, and as such routinely serves the interests of the airlines and others FAA is supposed to be regulating.

…And How FAA is Subverting the Laws

FAA is knowingly ‘fixing’ the outcome of the reviews for changes in airport procedures and airspace design, by using the following strategies:

  • overwhelm the individual citizen with documentation, so that it is impossible for a responsible citizen to dedicate enough of their personal time to completing a thorough review. For example, a typical airport Master Plan, even for a very insignificant rural airport with little traffic, commonly measures 300-500 pages; it is hard for even a very intelligent citizen to sort through the document, even just to establish which pages are relevant and which pages are irrelevant.
  • further overwhelm the individual citizen by expanding the scope of the changes being proposed. By doing this, even the sharpest citizen (and what are the odds they are also blessed with limitless time and obsessive research skills?) will find it impossible to produce any kind of focused, specific comments. In the example of the current SoCal OAPM, the only people who MIGHT be able to process all the data are the FAA contractors who earned millions in public funds creating that webpage with 57 links to 793 MB’s of PDF files. And, don’t forget: FAA and its contractors are all biased toward approving the proposals!
  • be selective with FAA’s answers to citizen questions. By routinely ignoring the environmental questions, the agency (and, also, the aviation professionals who are ‘collaborating ‘ with FAA in this selective ‘non-answering’ policy) will nudge concerned citizens toward self-doubt. Some may even begin to question whether they are too sensitive about a problem the so-called experts cannot even recognize.
  • drag it all out forever. Delay, and delay some more, so that the process cannot possibly engage the ongoing attention of a concerned citizen. They can come to a long series of presentations, and hear the same garbage. Each time, the citizen is allowed to express his or her concern. After doing so a few times, they may just get the intended message: “WE ARE NOT REALLY LISTENING! So, move along and shut up, and accept we will do what we want at this airport!”
  • Divide and conquer. The larger Public is horribly disserved, but FAA does their job very well (that is, their REAL job, which clearly is ‘serving aviation interests’) when they find ways to get those who question airport projects to instead fight among themselves. Even good, smart and dedicated people have their limits. Stress them with noise and leaded exhaust and jet fumes, then do little to mitigate the problems; eventually, passions will flare and more citizens will give up.