PROPOSED FAA RULE
CHANGE FOR BUILDING
In 2012, the Federal Aviation Agency (FAA) released a proposed “reinterpretation” of their regulations for building heightsin thevicinity of airports. Itsmain point
was adding “one engine inoperative,” or OEI, procedures
to Federal Aviation Regulation Part 77, which establishes
standards and notification requirements for objects affecting
navigable airspace – including building heights. Under current
regulations, the FAA sets the maximum building height limit
for areas surrounding airports, and then each airline determines
their own OEI path for their planes at that airport – for those
instances when a plane that is taking off or landing has one
non-functioning engine and is thus possibly coming at a lower
height or angle than usual. These OEI procedures differ for
each airline, and are considered proprietary information, so
they are not publicly available.
Under the proposed reinterpretation, the FAA will create a
voluntary program: participating airports would have just a
single OEI path for all airlines to follow in the event of an
engine failure. Any newly planned buildings that fall within
that path will have to meet the new building height regulations
set for that area, and any existing buildings will have to ensure
that any renovations or remodeling to their buildings comply
with the new rules as well. Obviously, this is a concern to NAR,
as airports frequently are surrounded by large office parks with
tall buildings in them, and studies have found that OEI paths
frequently have lower height criteria than the current existing
federal regulations require.
WHAT IS THE ISSUE?
NAR, along with many industry groups, believes that the FAA
proposal constitutes a rule change, and not a reinterpretation.
This is important because while a reinterpretation of a rule
by an agency can be done with relatively little fanfare, an
actual rule change requires that the agency follow standard
rule-making procedures, commonly referred to a “notice-
and-comment”: they must provide notice of the proposed
rule and have a comment period open to the public, followed
by public hearings at which members of the public and the
affected business community can directly ask agency officials
questions about the changes. In this situation in particular this
is crucial, as the FAA is relying on proprietary information
from the airlines – which again, is not publicly available –
to determine the new height restrictions. Without hearings at
which we can question the FAA, there is no way for us to know
what these OEI procedures entail, or how the FAA has come to
their conclusion regarding the appropriate building height limit
in the OEI paths.
Additionally, the FAA needs to consider the economic
impact these changes would have on the areas in question.
Potential development in the paths may stall; renovations and
redevelopment of existing buildings will be put at risk. Given
the crucial link between a healthy real estate market and a
growing economy, it is important that the FAA consider the
proposed policy’s effects on local jobs and tax revenues before
they make changes to their rules.
WHAT IS NAR DOING?
NAR has been working with a coalition of industry groups to
advocate for the FAA to follow formal notice-and-comment
rulemaking procedures with this rule change, while stressing
the economic impact of creating more burdensome regulations
for building heights near airports. NAR has sent a letter to the
Secretary of the Department of Transportation and submitted
a comment letter to the FAA explaining these concerns. NAR
also supports H.R. 4126, a bill introduced by Rep. Jim Moran
of Virginia, which would require the FAA to follow the formal
rule-making procedures before including OEI procedures into
Part 77. Ensuring the safety of airlines and their passengers is
paramount, but the FAA must allow the public and the affected
businesses access to the data they are using to make these
determinations before they enact such changes.
NAR continues to monitor this issue, advocating for formal
rule-making procedures while stressing the need to include the
economic impact of such changes in their considerations. At
every available opportunity, NAR will continue to participate
in hearings, comment periods, and coalition work on this issue.
If you have any questions or would like further information
on this, please contact Erin Stackley at firstname.lastname@example.org.
By Erin Stackley