www.pillsburylaw.com 404666227v5

Kenneth P. Quinn

Partner

tel 202.663.8898

kenneth.quinn@pillsburylaw.com

Pillsbury Winthrop Shaw Pittman LLP

2300 N Street, NW | Washington, DC 20037-1122 | tel 202.663.8000 | fax 202.663.8007

July 24, 2014

The Honorable Michael P. Huerta

Administrator

Federal Aviation Administration

800 Independence Avenue SW

Washington, DC 20591

Re: Docket No. FAA-2014-0134

June 25, 2014 Public Meeting for Proposal to Consider the Impact of One 

Engine Inoperative (OEI) Procedures in Part 77 Hazard Determinations

Dear Administrator:

On behalf of The Real Estate Roundtable, the U.S. Chamber of Commerce,

Building Owners and Managers Association International, National Association of 

Real Estate Investment Trusts, National Association of Home Builders, 

International Council of Shopping Centers, National Multifamily Housing Council, 

National Apartment Association, National Association of REALTORS®, NAIOP,

and the Commercial Real Estate Development Association,

1 we are writing to 

 

1 The Real Estate Roundtable’s diverse membership includes real estate owners (public and private), 

asset managers, financial services (i.e., banks and insurers) and other real estate trade associations. 

The U.S. Chamber of Commerce is the world’s largest business organization representing interests 

of more than 3 million businesses of all sizes, sectors and regions, whose members include momand-pop shops and local chambers to leading industry associations and large corporations. The 

Building Owners and Managers Association (“BOMA”) International is a federation that includes 93 

BOMA U.S. associations, representing the owners and managers of all commercial property types. 

The National Association of Real Estate Investment Trusts is the representative voice for real estate 

investment trusts and publicly traded real estate companies with an interest in U.S. real estate and 

capital markets. The National Association of Home Builders is a trade federation of more than 800 

state and local home builders associations and represents more than 140,000 home building, 

remodeling, sales and marketing, financing, and manufacturing members. The International Council 

of Shopping Centers is the premier global trade association of the shopping center industry with over 

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The Honorable Michael P. Huerta 

July 24, 2014

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express serious concerns regarding the “public meeting” conducted in connection 

with the FAA’s proposed policy change regarding consideration of One Engine 

Inoperative (“OEI”) procedures into Part 77 hazard determinations.2

 

The “public meeting” was unlike other recent FAA public meetings on policy 

clarifications. It provided no meaningful opportunity for interested stakeholders to: 

(i) understand the basis and purpose of FAA’s proposed actions, (ii) find out how it 

might impact current and future real estate development; (iii) raise questions or seek 

clarification on the scope of the proposed policy; or (iv) engage in any dialogue 

with the FAA officials. We request that the FAA hold a second, in-person public 

meeting on the OEI proposed policy clarification to provide meaningful public 

participation.

As you are well aware, the FAA’s Proposed Policy is one that is of significant 

concern to local stakeholders and Congress.3

 To date, over 100 comments have 

 

(... continued)

63,000 global members. The National Multifamily Housing Council is the apartment industry’s 

premier trade association. The National Apartment Association is a federation of over 170 state and 

local affiliates, has over 63,000 members and is the leading advocate for quality rental housing. The 

National Association of REALTORS® is the largest U.S. trade association, representing 1 million 

members comprised of residential and commercial REALTORS®, who are brokers, salespeople, 

property managers, appraisers, counselors and others engaged in all aspects of the real estate 

industry. NAIOP, the Commercial Real Estate Development Association is the leading trade 

organization for developers, owners and investors of office, industrial, retail and mixed-used real 

estate. This letter is supplemental to a separate comment letter filed by real estate organizations to 

the FAA, raising our concerns with the FAA’s process more generally in changing longstanding Part 

77 criteria.

2 Proposal To Consider the Impact of One Engine Inoperative Procedures in Obstruction Evaluation 

Aeronautical Studies, 79 Fed. Reg. 23300 (Apr. 28, 2014).

3 Legislation has been introduced raising concerns over the FAA process for promulgating the 

proposed policy. See H.R. 4623, 113th Congress, 2d Session, introduced May 9, 2014. Several 

members of Congress have raised concerns regarding the on-going policy change process. See

Letter from Hon. Paul Gosar, Hon. David Schweikert, Hon. Matt Salmon, and Hon. Trent Franks, 

Members of Congress to Hon. Michael P. Huerta, Administrator, U.S. Department of Transportation 

(July 14, 2014) (“[W]e urge the FAA to retract the proposed policy and instead engage in the open 

rulemaking process, subject to notice-and-comment under the Administrative Procedure Act with a

full Office of Management and Budget cost-benefit and federalism analysis under Executive Order 

12866.”); H.R. Rep. No. 113-464 at 18 (2014) (“The Committee directs the FAA to “carefully 

consider all comments that are submitted on this proposed policy and to work with relevant 

stakeholders to preserve safety and efficiency while balancing the important needs of communities, 

airports and airport users. The Committee urges FAA to consider whether a cost benefit analysis 

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The Honorable Michael P. Huerta 

July 24, 2014

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been submitted in the docket (prior to the deadline). We understand that over 500 

individuals registered for the Public Meeting, and approximately 120 attendees 

logged into the online webinar that FAA billed as a public meeting.4

 Parties had a 

reasonable expectation that participation in the Public Meeting would be 

meaningful and interactive, and in accordance with the Notice, FAA past practice, 

and the Administrative Procedures Act (“APA”).5 Yet, the Public Meeting was 

deficient in all of these respects. 

First, the meeting was not conducted in accordance with the Notice, and more 

specifically: 

• It did not give the public an opportunity to interactively participate in the FAA’s 

policy change, as suggested in the notice, which indicated the purpose of the 

meeting would be to “explain the proposal and respond to questions seeking 

clarification of the proposed policy.” Instead, the Public Meeting was 

conducted through an online meeting tool and teleconference,6 with no two-way 

interaction capabilities. 

• Unlike other recent public meetings that were scheduled for an entire day 

(twice), this OEI online webinar was scheduled for two (2) hours,7 but started 

approximately fifteen (15) minutes late due to “technical complications,” 

included a twenty (20) minute break, and abruptly ended after one (1) hour—in 

essence running for twenty-five (25) minutes;

• The FAA “presentation” amounted to nineteen (19) brief slides, with no chance 

to orally ask questions;

 

(... continued)

should be required in the final policy on obstruction evaluation aeronautical studies.”); Press 

Release, Rep. Moran Welcomes FAA Extension (June 9, 2014). 

4 Attachment 1 includes a screen shot of the online meeting tool field showing the number of 

attendees and participants.

5 5 U.S.C. § 551 et seq.

6 Proposal To Consider the Impact of One Engine Inoperative Procedures in Obstruction Evaluation 

Aeronautical Studies, 79 Fed. Reg. 33145 (June 10, 2014) (Action: Proposed Policy; notice of public 

meeting and extension of comment period) (hereinafter “Public Meeting Notice”).

7 The Notice scheduled the Public Meeting from 2:00 PM to 4:00 PM. Public Meeting Notice at 

33145. Although the FAA left the online meeting tool active after the presentation and questionand-answer session ended, no further communication from the FAA was received.
The Honorable Michael P. Huerta 

July 24, 2014

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• Multiple attendees appeared under duplicate names in the online meeting tool;8

• The online meeting tool was not interactive in any way;

• Participants could not view other questions submitted or confirm their questions 

had been received successfully;

• The FAA acknowledged receipt of approximately thirty-five (35) questions, 

which could not be verified, and have still not been released; they refused to 

answer all but fourteen (14) questions, then referred one-half of those 

“addressed” by saying they will be addressed in the docket at some point; and

• The FAA did not acknowledge or answer all of the questions submitted by the 

attendees.9

Second, this Public Meeting was inconsistent with FAA’s past practices on public 

meetings in connection with policy changes. For example, the FAA held two public 

meetings to clarify the proposed policy for the registration of aircraft by non-citizen 

trusts (NCTs).10 There, the public meetings were scheduled for a full day, held inperson (allowing all attendees to see who attended and participated), attended by the 

FAA’s Chief Counsel and senior staff, allowed any attendee to speak in the 

microphone, and opened a discussion between the FAA and participants.11

Third, the FAA has not furthered the aims of meaningful participation and informed 

decision-making by limiting interested parties’ ability to fully comment and 

respond to the Proposed Policy.12 A reversal of nearly seven decades of agency 

practice in evaluating OEI warrants a full legislative-type rulemaking, involving a 

coordinated impact analysis under Executive Order 12866 and the Office of 

Management and Budget (“OMB”), Office of Information and Regulatory Affairs 

 

8 The screen shots included in Attachment 1 show multiple attendees under duplicate names.

9 Attachment 2 is a list of some questions submitted during the Public Meeting, most of which were 

not answered by the FAA.

10 See Public Meeting: U.S. Registration of Aircraft in the Name of Owner Trustees, 76 Fed. Reg. 

23353 (Apr. 26, 2011)

11 See Id.; Letter from Jeffrey Wool, Secretary General, Aviation Working Group, to Kathryn 

Thomson, Chief Counsel, Fed. Aviation Admin. (Aug. 17, 2012).

12 Horsehead Res. Dev. Co., Inc. v. Browner, 16 F.3d 1246, 1268 (D.C. Cir. 1994). 
The Honorable Michael P. Huerta 

July 24, 2014

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(“OIRA”).13 In response to questions about why FAA believe it could make a 

fundamental change to a rule via a policy clarification, FAA officials simply stated 

that “we’ve determined we do not need to proceed via rulemaking change as we are 

just changing an internal agency order.” We believe not only that the proposed 

policy clarification is unwise and not justified (lacking any safety purpose),14 but 

that the FAA must afford interested persons a meaningful opportunity to participate 

in the FAA’s rulemaking process.15 

In sum, we respectfully submit that the FAA should remedy the deficiencies in this 

so-called Public Meeting by holding a customary in-person public meeting, as FAA 

has done many times before, to allow interested persons to participate meaningfully 

in the public process. Finally, we request that the FAA immediately release all the 

names of all registrants and participants in the Public Meeting, reveal all questions 

asked by participants, and provide a transcript of the meeting in the public docket.

Thank you for your consideration.

Sincerely,

Kenneth P. Quinn

CC: The Honorable Michael Whitaker, Deputy Administrator

Jerry M. Mellody, Acting Chief Counsel

Teri Bristol, Chief Operating Officer

Eduardo Angeles, Associate Administrator for Airports

Enclosures

 

13 See Alaska Professional Hungers Ass’n, Inc. v. Fed. Aviation Admin., 177 F.3d 1030 (D.C. Cir. 

1990); 1 Charles H. Koch, Jr. ADMINISTRATIVE LAW AND PROCEDURE § 4:15 (3d ed. 2010); Exec. 

Order No. 12,866 (1993).

14 During the Public Meeting the FAA acknowledged that the Proposed Policy was not based upon any 

safety issues.

15 1 Charles H. Koch, Jr., ADMINISTRATIVE LAW AND PROCEDURE §§ 4:32 – 33 (2014). 
Attachment 1
Meetingattendees 6-25.docx
2 

Meetingattendees 6-25.docx 
Attachment 2
Questions for FAA Public Meeting – June 25, 2014 

1. According to the FAA’s proposed One Engine Inoperative (“OEI”) Policy, “the FAA has 

held that [air carrier planning for One Engine Inoperative procedures] is an economic 

issue rather than a capacity issue.” To be clear, this is an economic issue, not a safety or 

capacity issue, right? 

2. The Notice goes on to state that, “The last forty years have shown economic activity and 

structures only accelerating around airports—creating an ever increasing risk.” I don’t 

know why you state this proposition as if it’s a bad thing. Communities build airports to 

bring economic development. Why is it now being condemned? 

3. Cities value airports because they bring jobs and economic activity, yet the FAA proposal 

on OEI is designed to harm the very thing cities are trying attract. Why? 

4. What empirical data exists to support the FAA’s assertion that this is a real problem 

deserving of upsetting longstanding rules and interpretations? 

5. The FAA claims that adding OEI procedures to Part 77 considerations will increase 

capacity for airlines. Has the FAA conducted any analysis to support this conclusion? 

6. Airlines often object to projects on the basis of OEI, but refuse to share their OEI 

procedures with the FAA or the public. How does the FAA propose to ensure that future 

OEI surfaces take into account the actual OEI procedures of the airlines? Will airlines be 

required to share their procedures? 

7. OEI procedures are proprietary to airlines themselves, and are not shared publicly. Has 

the FAA reviewed this information in supporting its assertion that applying OEI to Part 

77 will increase capacity? 

8. I understand that airlines, which already establish and abide by OEI procedures for all 

flights, do not share the proprietary calculations they use publicly. How can the FAA 

proceed with this proposed change without this information? Will stakeholders have 

access to this information as part of the process to develop OEI surfaces around airports? 

9. Has the FAA conducted any empirical assessment of any kind regarding the potential 

economic impact on local communities and tax bases resulting from this proposed 

change? 

10. Has the FAA consulted with communities in developing its proposed procedures? How 

does it envision local communities and landowners will be involved in the process of 

establishing OEI surfaces? 

11. I understand that FAA Part 77 determinations are valid for a limited 18 month period, 

with only one option for a single 18-month extension, provided no changes in 

circumstances exist at the time of the renewal. Because many local governments and 

planning agencies require determinations well in advance of construction, many 

developers rely on extensions to complete a project. If an OEI policy is established for 

an airport prior to renewal, will the extension be subject to the new OEI policy? 
Questions for FAA Public Meeting – June 25, 2014 

12. As with extensions on single building projects, which could be impacted by the OEI 

policy, will the FAA take into consideration long range development projects – e.g. 

multi-building projects spanning 5-10 years – when developing OEI procedures at a 

given airport? 

13. I understand that for over 70 years (since the beginning of Part 77), the FAA has not 

considered OEI procedures in Part 77. Given the significant change, isn’t the FAA 

required to amend Part 77 and go through a formal rulemaking process under the 

Administrative Procedure Act? If not, why? 

14. I thought that if you wanted to change a rule, you had to do a rulemaking, not issue a 

policy clarification that upends 70 years of established rules and interpretations. How is 

this possible? 

15. The proposed policy says that each airport should develop OEI surfaces “with input from 

users/operators and communities” in coordination with the FAA, but then goes on to say 

that any airport experiencing “encroachment” should work with its users during the 

Master Planning Process to propose a dedicated OEI surface on the ALP. 

a. How will communities and landowners be incorporated into the process? 

b. Once an OEI surface is developed, will it be revised/revisited from time to time to 

account for changes in airport/aircraft use? 

c. What does the FAA mean by “encroachment” and at what point will 

“encroachment” support an OEI surface? What safeguards are in place to protect 

local communities’ authority over land use planning? 

16. The FAA says its new policy will “recognize the right of developers to erect structures 

near airports and air navigation facilities.” How will these rights be recognized? 

17. As the FAA has acknowledged (and as has been confirmed by several courts), the FAA 

has no authority over local land use planning or zoning, yet the proposed policy would 

limit heights at which buildings near airports could be constructed based on airlines’ 

asserted needs and proprietary procedures. What is the FAA’s legal authority to 

influence this change? 

18. In a congressional hearing before the Aviation Subcommittee of the House 

Transportation and Infrastructure Committee on February 27, 2013, FAA Administrator 

Michael Huerta was asked how many OEI takeoff incidents have resulted in fatal crashes 

in the past few years. He replied, “None have resulted in fatal crashes.” On what data, 

therefore, is the FAA’s assertion that structures around airports provide a “risk” to air 

navigation based? 

19. Aircraft design changes continually, with more efficient and powerful aircraft continuing 

to enter service. How does the FAA propose to accommodate future aircraft designs (and 

associated OEI procedures, which will almost certainly be less restrictive) in the 
Questions for FAA Public Meeting – June 25, 2014 

proposed OEI procedures? If they are not taken into consideration, on what basis would 

the FAA continue to apply the more restrictive procedures? 

20. Doesn’t the FAA’s incorporation of these OEI procedures discourage the development of 

more efficient aircraft designs? In other words, by shifting the economic burden of 

compliance with OEI from the airlines (where it has rested for decades) onto local 

communities, isn’t the FAA dis-incentivizing the development of more efficient aircraft? 

21. I understand that the FAA has heard repeated concerns about the plan, and the procedure 

by which it is implementing the plan, from a bipartisan group of lawmakers from across 

the country. Indeed, a bill (H.R. 4623) currently pending before the House of 

Representatives would require the FAA to proceed with its proposed changes via a 

rulemaking process. I further understand that the FAA has heard repeatedly from a 

number of outside organizations and individual entities who are concerned about the 

proposed changes. Is the FAA aware of these concerns? What is the agency’s response 

to these concerns? 

22. Notwithstanding the significant policy change – which ordinarily would be subject to 

formal rulemaking, the FAA is proceeding by a “policy change” which carries no legal 

obligation to address or even consider the comments it receives in response to this Notice 

of Proposed Policy, correct? How will the FAA consider the comments it receives? 

23. What studies has the FAA done to conclude that efficiency is actually being impacted? 

At what airports? Which structures? 

24. Given the potentially far-reaching impacts of the OEI policy, why isn’t the FAA 

conducting a cost-benefit analysis to assess the impacts of the policy on local 

communities? Surely the Office of Management and Budget could easily assess the 

impacts of this proposed change. 

25. It appears that the FAA has not conducted any analysis of the impacts of this policy on 

local communities, despite its far-reaching effects. In the FAA’s absence, the Weitzman 

Group, a group of independent consultants and economists, has conducted such a study, 

and found that the proposed policy would affect thousands of buildings nationwide - 

which would, of course, have enormous ramifications for local tax bases and jobs. Has 

the FAA reviewed this study? What is the agency’s response to this study? 

26. How is the FAA going to compensate us after taking away our investment-backed 

expectations for high-rise buildings? You could lop off whole floors from a building and 

ruin the economics of that building—each floor taken away can represent millions of 

dollars in revenue and rent lost. Who is going to pay for all of this? 

27. Does the Air Traffic Organization fully support this proposed change and deem it 

necessary, or is this being done at the behest of the FAA’s airports organization? 

28. Doesn’t this constitute an assault on private property by the Federal government? Has 

there been a Federalism analysis of this proposal, and if so, by whom? 
Questions for FAA Public Meeting – June 25, 2014 

29. I thought the Feds wished to stay away from causing conflict with local zoning powers, 

but this seems designed to cause a Federal, State, and local government clash, and it is 

anti-economic development and anti-jobs. Why are you doing this? Where is the 

documented problem? 

30. What are the next steps? How can we ensure that our voices are being heard? 

31. Is air travel unsafe as a result of the current OEI practice? 

32. Can you quantify/explain what the economic benefits will be to airlines if the policy is 

changed? 

33. What has the FAA concluded the economic impact will be to local jurisdictions and 

property owners if the policy is changed? 

34. Given the far-reaching economic impacts, why is the FAA not seeking a rulemaking to 

ensure all parties and interests are equally represented?