RECONSIDERATION OF LAAHNC PETITION FAA

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– Special Federal Aviation Regulation ( SFAR) f or Los Angeles County Helicopter Hovering

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Los Angeles Area Helicopter Noise Coalition (LAAHNC) 1 of 6 Los Angeles Area Helicopter Noise Coalition (LAAHNC)

Post Office Box 571448 Tarzana, CA 91357

- 1448

Please provide all replies and communications regard this matter to:

Gerald A. Silver

, (818) 990

- 2757 , email: gerald.silver@sbcglobal.net

June 29 , 2016

US Department of Transportation

– Document Operations 1200 New Jersey Avenue, SE West Building Ground Floor

Room W12

- 140 Washington, DC 20590

RECONSIDERATION OF LAAHNC PETITION FAA

- 2015

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SPECIAL FEDERAL AVIATION REGULATION (SFAR) FOR LOS ANGELES COUNTY

HELICOPTER HOVERING

- ORBITING

On May 20, 2016, the Federal Aviation Administration (FAA) notified the Los Angeles Area Helicopter Noise Coalition (LAAHNC) that it was dismissing our petiti on (FAA

- 2015

- 5042) for helicopter hovering and orbiting restrictions for Los Angeles County. The purpose of this letter is to petition the FAA to reconsider its dismissal.

The initial Petition filed on October 20, 2015 requested to amend Section 91.119 of Part 91 of 14 CFR pertaining to helicopter hovering and orbiting over congested, urban areas in Los Angeles County. It requested restrictions involving media and other helicopter coverage of emergency or other events that involve a major freeway incident, significant crime scene investigation, fire, earthquake, flood, disaster or other broad scale infrastructure failure or other events. It also requested restrictions involving tour helicopter operators operated in Los Angeles County.

The FAA dismissal lette r states, “After reviewing your request based on the current priorities for the FAA and the guidelines found in §11.73, we determined the issue you raised does not meet the criteria to pursue rulemaking at this time.” There is no discussion as to what the FAA’s “current priorities” are or where the issue of helicopter noise stands on the priority list. There is also no mention of lack of resources. But, it seems the main reason for the dismissal is that the FAA does not consider the issue of reducing helico pter noise in the Los Angeles County to be a high priority.

Under 14 CFR § 11.101, for the FAA to accept this petition for reconsiderati on, we must show the following: (a) That we have a significant additional fact and why we did not present it in our orig inal petition; (b) That the FAA made an important factual error in its denial of our original petition; or (c) That the FAA did not correctly interpret a law, regulation, or precedent.

The FAA has very narrow grounds for accepting a request for reconsidera tion and they do not allow us to question its priorities. However, at the end of its four

- page letter the FAA also states that, “For the reasons above, we are dismissing your petition for rulemaking in accordance with 14 CFR §11.73.”

The “reasons above” in clude a number of statements that seem to relate to the merits of our petition. Accordingly, we submit the following comments in support of our request for reconsideration. These

comments consist of delineation of the factual errors in the FAA dismissal of our petition.RECONSIDERATION OF LAAHNC PETITION FAA

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Los Angeles Area Helicopter Noise Coalition (LAAHNC) 2 of 6 Failure To Do A Reasoned Determination

The denial of May 20, 2016 by Gary A. Norek, Acting Director of Airspace Services, failed to do a reasoned determination of the facts and issues in the Petition, as mandated by Regulatory Planning and

R eview, Executive Order 12866, September 30, 1993, which requires a regulatory system that “protects and improves the ir health, safety, environment ...”

Executive Order 12866 of September 30, 1993

Regulatory Planning and Review

– “The American people deserve a regulatory system that works for them, not against them: a regulatory system that protects and improves their health, safety, environment, and well

- being and improves the performance of the economy without imposing unacceptable or unreasonable costs on society; regulatory policies that recognize that the private sector and private markets are the best engine for economic growth; regulatory approaches that respect the role of State, local, and tribal governments; and regulations that are effective, consistent, sensible, and understandable.” [Emphasis added]

“Federal agencies should promulgate only such regulations as are required by law that are necessary to interpret the law, or are made necessary by compelling public need, such as material failures of private markets to protect or improve the health and safety of the public , the environment, or the

well

- being of the American people. In deciding whether and how to regulate, agencies should assess

all costs and benefits of available regulatory alternatives, including the alternative of not regulating. Costs and benefits shall be understood to include both quantifiable measures (to the fullest extent that these can be usefully estimated) and qualitative measures of costs and benefits that are difficult to quantify, but nevertheless essential to consider.” [Emphasis added]

Mr. Norek’s denial is conclusory and lacks documentation and specific facts and failed to do a reasonable assessment of the costs and benefits of the pr oposed Rule Change. The denial contains numerous conclusions that are cursory and lack foundation.

1. Mr. Norek ’s four

- page denial is almost entirely a repetition of submitted comments, incorporating no original assessment of costs or benefits of the propo sed rule change. The lack of a reasoned analysis denies the petitioner the ability to understand and challenge the conclusions reached by

Mr. Norek.

2. Mr. Norek’s denial which took over six months to pre pare and is little more than a “boiler plate”

restat ement of the denial issued in the three other Petitions filed by Los Angeles Area Helicopter Noise Coalition (LAAHNC) on May 20, 2015. The language in the denial uses the same wording, sentence structure and cursory comments as in the other Petitions denie d.

3. The FAA is bound to consider factual differences between the four Petitions. Clearly there are differences in impacts on noise, safety and environmental issues. It is painfully obvious that the FAA avoided its mandated responsibility to do a careful assessment and instead used a word processor to simply generate a pro forma denial. No considered reasoning, logic or determinations

were evident in the denial.

4. The issue of helic opter noise, safety and helicop ter media hovering and orbiting is of vital interest and concern to a large segment of the Los Angeles population. Yet the FAA did not exercise diligence in addressing the issue. The FAA did not conduct hearings on the subject of the Petition, nor did it seek important comment from the Nation al Tra nsportation Safety Board.RECONSIDERATION OF LAAHNC PETITION FAA

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Los Angeles Area Helicopter Noise Coalition (LAAHNC) 3 of 6 The Denial Was Unresponsive To Petitioner’s Request

1. The FAA’s denial did not include explicit facts, evidence or the results of accepted research or safety studies. Since few statements of fact were made or conclusions reached that can be verified, Petitioner is therefore unable to challenge the validity of the denial.

2. Upon close scrutiny of the denial issued by the FAA, there is a high probability that a Federal District Court would issue a writ of mandamus directing the FAA to prepare a more thoughtful response, including the required reasoned analysis. More importantly, should there be an air disaster resulting from unregulated, unofficial helicopter hovering/orbiting, this public petition will service as evidence of prior knowledge or notice of such hazard. To avoid any unnecessary legal challenge, it is reasonable that the FAA reconsider the matter and resolve it through the administrative process.

“Sec. 10. Judicial Review. Nothing in this Executive order shall affect any otherwise available judicial review of agency action.” [Regulatory Planning and Review, Executive Order 12866, September 30, 1993]

3. The FAA addressed the specific issue of helicopter hovering and orbiting by an irrelevant

discussion of the “differences in elevation between the Los Angeles Civic Center and the surrounding mountains is greater than between the City of Denver and its sur rounding mountains

. ” [Letter May 20, 2016 from Gary A. Norek]

Factual Errors

The Los Angeles Area Helicopter Noise Coaliti on believes that the FAA has made a number of important factual errors in its denial of our Petition FAA

- 2015

- 5042. Note our discussion of the factual errors, in italics

, after the various statements containing those factual errors.

“The majority of helico pter operations in Los Angeles County operate under visual flight rules where the pilot in command chooses a safe altitude to “see and avoid” other aircraft and ground obstacles. Helicopters inherently operate at slower speeds than faster moving fixed wing aircraft and safety requires helicopters to be segregated from the faster moving aircraft. Requiring helicopters to fly at higher altitudes would negatively impact the safety of the National Airspace System (NAS) by placing helicopters in conflict with ot her aircraft and would increase the chance of a mid

- air collision.”

LAAHNC Comment: These general statements sound plausible on the surface, but under closer scrutiny they are questionable. First, Helicopters are not “required” to be segregated from other aircraft. If it were really unsafe for helicopters to fly in the same airspace as planes, there would be a regulation prohibiting them from doing so. But, there is no such regulation. Helicopters can and do fly in the same airspace as planes at lower altitudes (especially under 2,500 feet). Second, helicopter speeds are comparable to many popular planes used in general aviation. The most common plane in use for general aviation in this area is most likely the Cessna 172, which has a cruise speed of 140 mph. Note that the Cessna 172 is not the slowest plane. For example, cruise speeds of other popular planes are: Beechcraft Muskateer 117 mph, Grumman American AA

- 5 125 mph, and Piper Cherokee PA

- 28 124 mph. The most common helicopter in use in this area is most likely the Robinson R44, which has a cruise speed of 130 mph; the Robinson R 44 is not the fastest helicopter. The cruise speeds of helicopters are not that different from the cruise speeds of slower planes. Yet, we do not hear anyone saying t he Cessna 172, or any of the other slow flying planes, cannot fly at 2,000 feet above ground level. In addition, common sense would indicate that, in general, flying slower should be more likely to reduce the chance of a mid

- air collision rather thanRECONSIDERATION OF LAAHNC PETITION FAA

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Los Angeles Area Helicopter Noise Coalition (LAAHNC) 4 of 6 flyin g faster. In keeping with that principle, the FAA has maximum speed limits in airspace near airports.

“The FAA and the stakeholder working groups have made significant progress on each of the six actions specified in the 2014 Consolidated Appropriations Act, Public Law No. 113

- 76 (January 3, 2014).”

LAAHNC Comment: Under any objective reading of the Act, significant progress has not been made. The Act stated, “The Secretary shall (1) evaluate and adjust existing helicopter routes above Los Angeles, and ma ke adjustments to such routes if the adjustments would lessen impacts on

residential areas and noise

- sensitive landmarks ...” Under the Act, significant progress on this action was to have been made by January, 2015. Now, almost a year and one

- half after the deadline for progress, no routes or altitudes have been adjusted and no actual reduction in helicopter noise

has been achieved.

“In your petition, you request an amendment to 14 CFR § 91.119 pertaining to minimum safe altitudes over congested, urban areas in Los Angeles County, California. Specifically, you request certain limitations on media and tour helicopter hovering including a limitation (5 minutes during any one

hour period) on the amount of time a helicopter may hover or orbit at one location.”

LA AHNC Comment: The first sentence talks about altitudes, not ho vering, and is inappropriate.

T

his specific requirement was actually based on collaborative discussions with the pilots and FAA at several Best Practices Working Group meetings and overall meeti ngs with the FAA.

“The FAA and industry organizations strongly encourage helicopter operators to limit hovering over populated and other noise

- sensitive areas when possible. Industry recommends turning in the direction

of the main rotor rotation when hover ing to minimize the noise generated by the anti

- torque system and keeping the turn rate as low as practical.”

LAAHNC Comment: The Helicopter Association International ( HAI ) Fly Neighborly guidelines have proven to be ineffective. Helicopter pilots rarely a bide by them. The document serves more of

PR statement t han the application of reality.

“The FAA has had success issuing advisory Notices to Airmen (NOTAMs) for planned events where helicopter activity is likely to occur. Advisory NOTAMs have minimized hel icopter operations which in turn have alleviated noise complaints during Los Angeles County events such as Carmageddon II and concerts at the Hollywood Bowl. The FAA will continue to issue advisory NOTAMs for large events as appropriate.”

LAAHNC Comment: W hile some attempt has been made by the two primary helicopter operator organizations (PHPA and LAAHOA), the results have been ineffective since:

Those “best practices” were unilaterally developed by a few members of the helicopter industry and

do not corre spond to the parameters of the Best Practices Working Group, to FAA Advisory

Circular AC 91.36D or to the suggestions of the HAI, the international pilot association. All of these suggest flying at least 2

, 000 feet above ground level unless there is a reas on to do otherwise such as weather or airport ingress and egress traffic;

Those two organizations (PHPA and LAAHOA) represent less than half of the helicopter pilots flying in the county; and

Only a subset of the two organizations have attended those meeti ngs or been advised of the “voluntary” measures unilaterally devel oped by the pilot organizations, and t he suggestedRECONSIDERATION OF LAAHNC PETITION FAA

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Los Angeles Area Helicopter Noise Coalition (LAAHNC) 5 of 6 measures are extremely fragmented and do not cover the county. When asked about some of the suggested altitudes, Chuck Street, the primary pilot representative, did not seem to either be aware of the suggestions or know how they were developed.

“The FAA and industry organizations strongly encourage helicopter operators to limit hovering over populated and other noise

- sensitive areas when poss ible. Industry recommends turning in the direction of the main rotor rotation when hovering to minimize the noise generated by the anti

- torque system and keeping the turn rate as low as practical.”

LAAHNC Comment: The FAA and the industry say they strongly encourage helicopter operators to limit hovering, implying that this has a material effect on the problem. The reality is that their “encouragement” has little or no effect on actual helicopter operations. Hovering continues unabated at the discretion of the news media. Their helicopters hover at will whenever the news media determines that it wants a story. Frequently, the coverage has no vital public service purpose,

bu t merely provides entertainment (see example below of the bear i n La Canada)

. This is clear evidence that voluntary efforts to limit hovering are completely ineffective and that mandatory regulations are needed to actually reduce noise on the ground.

Example: On June 8, 2016, an arm y of media helicopters circled at length for TV coverage of a bear taking a dip in a pool in La Canada. This demonstrates just how insensitive helicopter pilots can be toward humans on the ground, and just as much to the bear! To interfere with a wild animal’s safe return to its natural habitat should be the ultimate badge of disgrace for media outlets, but it’s not. The exact same thing happened last fall when famous Griffith Park mountain lion, P

- 22, found a cozy basement near the park to lay low during the warm day.

“Industry recommends turnin g in the direction of the main rotor rotation when hovering to minimize the noise generated by the anti

- torque system and keeping the turn rate as low as practical.”

LAAHNC Comment: While this statement is true

, it gives a false perception that hovering in this manner materially reduces noise impacts. The FAA provides no data on the resulting noise reduction on the ground. In fact, it would be miniscule compared to the noise reduction that would be achieved by limiting hovering in the first place or flying higher. Studies have shown that changes in noise levels of three decibels or less are not typically detectable by the average human ear. Hovering in the manner described does virtually nothing to mitigate the level of public annoyance.

Conclusions That Wer e Without Necessary Applicable Precedent, or Departures From FAA Rules And Precedent

The FAA is charged with both safety and environmental concerns, including noise. The exclusion of

this fact is a material error in the denial Letter of May 20, 2 016, becau se it ignores the FAA’ s own stated policy and practice.

1. Mr. Norek’ s denial is seriously flawed in the statement that “After reviewing your request ... we determined the issue you raised does not meet the criteria to pursue rulemaking at this time.” There is no definitive statement as to what the FAA’s “current priorities” a re or where the issue of helicopter noise stands on its priority list. There is no discussion of lack of resources. Petitioner believes that it is not only proper, but necessary that the FAA take immediate action on this matter,

add ressing noise as one of its jus tifications for the proposed Rule Change.

2. The FAA clearly has the authority to address noise related issues involving helicopters. The following paragraphs quoted from the ANPRM regarding helicopter over

- flights [Docket no. 27643;

Notice No. 94

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Los Angeles Area Helicopter Noise Coalition (LAAHNC) 6 of 6 The FAA has broad authority and responsibility to regulate the operation of aircraft and the use of the navigable airspace, and to establish safety standards for and regulate the certification of airmen, aircraft, and air carr iers. [ Federal Aviation Act of 1958, as amended (FAAct), Se ction 307(a) and (c); title VI.] The FAAct provides guidance to the Administrator in carrying out this responsibility.

Section 102 of the FAAct states that the Administrator will consider the publi c interest to include among other things, regulation for safety and efficiency of both civil and military operations, promotion of the development of civil aviation, fulfillment of the requirements of national defense, and operation of a common system of a ir traffic control for civil and military aircraft.

3. The FAA’ s authority is not limited to regulation for aviation safety, efficiency, and development. Subsection 307(c) of the FAAct provides that FAA air traffic rules and fli ght regulations may be adopt ed “ for the protection of pers ons and property on the ground. ” The FAA considers this protection to extend to environmental values on the surface as well as to the safety of persons and property on the surface.

Se ction 611 of the FAAct, states “ in order to afford present and future relief to the public health a nd welfare from aircraft noise,” and directs the Administrator to ad opt regulations “ as the FAA may find necessary for the control a nd abatement of aircraft noise.”

The foregoing constitutes the summa ry that may be published in the Federal Register as provided under Subpart B.

Executed at Encino, California on June 29 , 2016.

Gerald A. Silver Board Member, Los Angeles Area Helicopter Noise Coalition (LAAHNC)