Nov. 21, 2014
The FAA recently made two determinations that, although unrelated to each other, carry ramifications for communities seeking to exert undue authority over the control of local airports.
In a final policy statement published in the Federal Register earlier this month, the FAA reaffirmed its “long-standing policy“ on the allocation of funds derived from taxes on aviation fuel, and the responsibilities of airports over funds that aren’t levied by the airports themselves, as outlined in 49 U.S.C. 47133. Generally, revenue raised by airports – including through taxation – must only be used for aviation-related purposes.
While acknowledging that state governments and local municipalities &nd and not airports – have ultimate control over the disbursement of taxes they receive, the FAA also noted “the plain language of the statute at issue, [and] the detailed legislative history, reflect strong congressional intent that aviation fuel taxes be used for airport purposes and state aviation programs.“
Attorney Jol Silversmith, a partner with Washington, DC-based Zuckert, Scoutt & Rasenberger LLP who advises NBAA, said the FAA’s determination also clarifies that the agency will not hold airports accountable for any non-aviation-related uses of those revenues outside their control.
“There previously was some uncertainty about the FAA’s ability to regulate taxes not levied directly by the airport or its owner,“ he added. “In this ruling, the FAA is asserting broad jurisdiction to take actions against state or local governments which collect fuel taxes but use those funds for purposes not related to the airport or in support of aviation.“
LAX Noise Petition Denied
The FAA also recently denied a petition by Los Angeles World Airports (LAWA) to restrict easterly departures from Los Angeles International Airport (LAX) during overnight hours on certain nights.
LAWA had requested the authority to deny easterly departures for Stage III aircraft between midnight and 6:30 a.m. on nights the airport conducts over-ocean operations, which calls for arrivals from the west and departures to the east to reduce traffic and noise over communities surrounding the airport.
These over-ocean operations procedures are in effect when the tailwind component does not exceed 10 knots. The proposed restriction potentially would have required operators to offload enough weight (cargo or passengers) to enable suitable performance for a westerly departure, or wait until after 6:30 a.m. to depart at full weight to the east.
LAWA asserted the restrictions would only impact approximately 60 operations per year, primarily long-haul commercial passenger and cargo flights to Asia. However, the FAA determined that the petition failed to meet three of the six criteria required to grant petitions submitted under the Airport Noise and Capacity Act of 1990, including that a proposed restriction was not “reasonable, non-arbitrary and non-discriminatory.”
“Although these restrictions would not directly affect business aviation operations, NBAA appreciates the FAA’s position that a high standard must be met for approval by the agency of noise-based restrictions on the scope of aviation operations, regardless of the overall scope of such proposed restrictions,” Silversmith said of the FAA’s determination in the LAWA case.
The agency also stated that LAWA failed to prove that the restriction would not “create an undue burden on interstate or foreign commerce.” The FAA also asserted that the proposed restrictions did not comply with existing federal statutes or regulations.