RECONSIDERATION OF LAAHNC PETITION FAA

- 2015

- 5043

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

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

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SPECIAL FEDERAL AVIATION REGULATION (SFAR) FO R LOS ANGELES COUNTY

MEDIA HELICOPTER POOLING

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

- 2015

- 5043) for media helicopter pooling 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 1 4 CFR pertaining to media helicopter pooling 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 sc ene 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 letter states, “After rev iewing 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 prior ities” 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 helicopter noise in the Lo s Angele s 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 significant additional facts and why we did not present it in our original petition; (b) Th at 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 reconsideration and they do not a llow us to question its priorities. However, at the end of its four

- page letter the FAA also states that, “After reviewing your request based on the current priorities for the FAA an d the guidelines found in § 1 L 73, we determined the issue you raised does not meet the criteria to pursue rulemaking at this time.” The “reasons above” include a number of statements that do not seem to relate to the merits of our petition.RECONSIDERATION OF LAAHNC PETITION FAA

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Los Angeles Area Helicopter Noise Coalition (LAAHNC) 2 of 6 Accordingly, we submit the following comments in support of our request for reconsiderat ion. These comments consist of delineation of the factual errors in the FAA dismissal of our petition.

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 Review, Executive Order 12866, September 30, 1993, which requires a regulatory system that “protects and improves their health, safety, environment ...”

Executive Or der 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

respe ct 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 inte rpret 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 t o 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

r easonable assessment of the costs and benefits of the proposed Rule Change. The denial contains

numerous conclusions that a re cursory and lack foundation.

1. M r. Norek’s four

- page denial is almost entirely a repetition of submitted comments, incorporating no original assessment of costs or benefits of the proposed 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” restatement 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 struct ure and cursory comments as in the other Petitions denied.

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 helicopter noise, saf ety and helicopter media pooling is of vital interest and concern to a large segment of the Los Angeles population. Yet the FAA did not exercise diligence inRECONSIDERATION OF LAAHNC PETITION FAA

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Los Angeles Area Helicopter Noise Coalition (LAAHNC) 3 of 6 addressing this issue. The FAA did not conduct hearings on the subject of the Petition, nor did it seek important comment from the National Transportation Safety Board.

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 statem ents 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 w ould 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, media helicopter operations, 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 th is Executive order shall affect any otherwise available judicial review of agency action.” [Regulatory Plann ing and Review, Executive Order 12866, September 30, 1993]

Factual Errors

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

- 2015

- 5043. Note our discussion of the factual errors, in italics after the various statements containing those factual errors.

“Los Angeles County’ s climate is subject to wide vari ations within short distances. For example, Santa Monica Pier enjoys a normal July maximum temperature of around 75° F, while the average temperature increases to 95° F at Canoga Park in the San Fernando Valley just 15 miles to the north. Los Angeles exper iences two mai n and unique weather patterns: “June Gloom” and “the Santa Ana

winds.” The first refers to the ocean fog that keeps the beach cities (and often all of the Los Angeles Basin) overcast into early afternoon and most common in June, but can occur any time between March

and mid

- August. The middle of autumn (October

- November) often brings the Santa Ana winds, strong, hot winds from across the desert that increase brush fire danger and reverse the prevailing offshore

winds.”

LAAHNC Comment: The FAA addressed the specific issue of helicopter pooling by an irrelevant discussion of June Gloom, brush fire danger and temperatures in the San Fernando Valley. None of the statements above are responsive or relevant to the issue of media helicopter pooling ov er traffic emergency and non

- emergency, planned incidents or events involving helicopter media coverage.

“Southern California's airspace is extremely complex and has high volume air traffic due to multiple international, domestic and general aviation airpo rts in close proximity to one another, military operations, and flight training activity. Currently there are 27 airports (15 public use, 11 private use and 1 private use seaplane base) in Los Angeles County with 21 different airport sponsors. Additionally , there are 138 heliports registered with the FAA. Although some of these are owned by public entities, none are public use (i

. e. , available for use by the general public without prior approval of the owner or operator). Throughout Los Angeles County there are also numerous unregistered heliports on top of high

- rise buildings for emergency use that are regulated by Los Angeles County or municipal fire codes.”RECONSIDERATION OF LAAHNC PETITION FAA

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Los Angeles Area Helicopter Noise Coalition (LAAHNC) 4 of 6 LAAHNC Comment: The FAA failed to reach a reasoned conclusion in its discussion of the complexity of Los Angeles County airspace. In fact, Mr. Norek’s statements support the need for media helicopter pooling specifically because of the complexity of Los Angeles County airspace. Yet the FAA’s denial of the Petition flies in the face of Mr. Norek’s denia l. This is a significant factual error on the part of the FAA.

“Fixed wing aircraft and helicopters operate under VFR or IFR conditions while in flight. Aircraft under VFR are flown primarily by reference to visual cues outside the cockpit (e.g., horizon, buildings, rivers, highways, etc.) for orientation and navigation, and to maintain separation from terrain and other aircraft. Aircraft under IFR rely on instruments that allow pilots to operate them in poor visibility and at higher altitudes. Most helicop ters operate under VFR w hich means that it is the pilot’s responsibility

to “see and avoid” other traffic, terrain, or obstacles. Simply speaking, the pilot is responsible for the safe operation of the aircraft, while ATC is responsible for the overall saf ety and efficiency of the airspace. Although air traffic controllers may provide traffic advisory service to VFR flights (workload permitting) , this does not replace a pilot’s duty to “see and avoid.” Many of the helicopter operations in Los Angeles County occur in Class G Airspace.”

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). Sec ond, 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 sl owest 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 the 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 than flying faster. In keeping with that principle, the F AA has maximum speed limits in airspace near airports.

“As a best practice or as a voluntary measure for the news media, FAA fully supports this effort. In recent history two Los Angeles County events showcase the viability of this measure and the potentia l success that can be achieved through advanced planning and cooperation amongst the news media. These events were "Carmageddon II" and the ground transport of space shuttle Endeavor from Los Angeles International Airport to its destination at the Californ ia Science Center”

LAAHNC Comment: The FAA cites only two examples of success, while ignoring the scores of examples of unplanned events where the media ignored the best practice of volun tary pooling of coverage (see n ews media coverage of the car chase on Ma y 30, 2016 which lasted for 2

- 1⁄2 hours

and was co vered by four media helicopters )

. This underscores the fact that industry best practices and voluntary measures established unilaterally by the industry have proven to be ineffective.

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

- 16 (January 3, 2014). The FAA is committed to working with stakeholders as they further mature andRECONSIDERATION OF LAAHNC PETITION FAA

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Los Angeles Area Helicopter Noise Coalition (LAAHNC) 5 of 6 fo rmulate additional voluntary measures. Significant resources have been expended to analyze how helicopters integrate into the complex airspace of Los Angeles County, including developing new methodology and tools to identify helicopter flight tracks. Gaini ng a better understanding of existing helicopter operations was a necessary first step in evaluating existing helicopter routes and altitudes,

and the FAA shared its work

- in

- progress with stakeholders through detailed briefings and working group sessions. With this foundation, the FAA and stakeholders have made progress in identifying route adjustments that could lessen impacts on residential areas and noise

- sensitive landmarks while avoiding shifting noise from one residential neighborhood to anothe r. ”

LAA HNC Comment: The FAA voluntary measures described by the FAA have clearly been ineffective and have not resulted in diminution of helicopter noise or complaints. The FAA and the stakeholder working groups have not made significant progress.

“The FAA has im plemented a dedicated helicopter noise complaint system for Los Angeles County which consists of a dedicated web portal, radar flight tracking, and a brokering system that can route complaints associated with a specific airport to that airport's noise offi ce and forward helicopter noise complaints received by airports to the centralized helicopter noise portal. This system has the potential

to form the basis of an on

- going helicopter noise program. Monthly complaint review committee meetings are taking plac e between industry and your organization to discuss complaint system results and help make informed decisions about modifications to helicopter routes and operations.”

LAAHNC Comment: The FAA’s dedicated helicopter noise complaint system for Los Angeles

C

ounty has done little or nothing to actually reduce helicopter noise. The FAA’s position is erroneous in that it fails to understand the difference between reporting helicopter noise and the implementation regulations such as pooling that actually reduce h elicopter noise.

“The FAA has collaborated with community representatives and helicopter operators to identify and promote existing best practices to reduce noise. It continues to issue Advisory NOTAMs for large events and encourage helicopter operators an d news organizations to employ practices that reduce noise. The FAA and helicopter groups have taken advantage of opportunities to educate pilots and encourage best practices.”

LAAHNC Comment: While some attempt has been made by the two primary helicopter operator organizations (PHPA and LAAHOA), the results have been ineffective. The “best practices” were unilaterally developed by a few members of the helicopter industry and do not correspond to the parameters of the Best Practices Working Group, to FAA Ad visory Circular AC 91.36D or to the suggestions of the Helicopter Association International ( HAI ) , the international pilot association. Those two organizations (PHPA and LAAHOA) represent less than half of the helicopter pilots flying in the county. Only a subset of the two organizations have attended those meetings or been advised of the “voluntary” measures unilaterally developed by the pilot organizations; and the suggested measures are extremely fragmented and do not cover the county.

Conclusions That Were 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 its denial Letter of May 20, 2 016, be cause 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.” T hereRECONSIDERATION OF LAAHNC PETITION FAA

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Los Angeles Area Helicopter Noise Coalition (LAAHNC) 6 of 6 is no definitive statement as to what the FAA’s “current priorities” are 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 tha t 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

- 5] are clear and to the point:

The FAA has broad authority and responsibility to regulate the operation of aircraft and the use of the navigable airspace, and to establish safety sta ndards for and regulate the certification of airmen, aircraft, and air carriers. [Federal Aviation Act of 1958, as amended (FAAct), Section 307(a) and (c); title VI.] The FAAct provides guidance to the Administrator in carrying out this responsibility.

Se ction 102 of the FAAct states that the Administrator will consider the public 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 air 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 adopted “ 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 perso ns 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 Admi nistrator to adopt regulations “ as the FAA may find necessary for the control and abatement of aircraft no ise”.

The foregoing constitutes the summary 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)