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6 Guidebook on Understanding FAA Grant Assurance obligations 4.2 Research Results: Stakeholder Outreach The outreach efforts in Elements 1 and 2 of the research efforts listed above addressed a number of subjects, including structure of the Guidebook and information to be included. The organization and content of the Guidebook reflect this input. A major focus of the outreach effort was obtaining participantsâ opinions on the grant assurance requirements that were the most complex, on the basis of either the substance of the requirement, the frequency with which the requirement was the subject of questions or discussions, or the fre- quency with which the requirement was included in an informal or formal administrative com- plaint. Although there was not complete unanimity, the following grant assurances (in numerical order) were generally identified as complex by participants in the outreach phase of the research: Grant Assurance 5. Preserving Rights and Powers, Grant Assurance 19. Operation and Maintenance, Grant Assurance 21. Compatible Land Use, Grant Assurance 22. Economic Nondiscrimination, Grant Assurance 23. Exclusive Rights, Grant Assurance 24. Fee and Rental Structure, and Grant Assurance 25. Airport Revenues. 4.3 Understanding Grant Assurance Requirements: Scope of the Problem Substantial time and effort was devoted to reviewing individual FAA/U.S. DOT administra- tive determinations, advisory and legal opinions and memoranda, and judicial decisions. This exercise was conducted to gauge the extent that difficulty in understanding grant assurance requirements translated into problems in operation and management of the airport in the form of complaints, investigations, and findings of violation. The documents reviewed were also the source of many common questions and examples included in the grant assurance summaries and the expanded list of questions and answers included in Appendix E in ACRP Web-Only Document 44, Volume 2. For a sponsor that is the subject of a complaint or investigation, a lack of understanding of the grant assurance requirements is a serious problem; however, considering that there are more than 3,000 obligated airports and that the documents reviewed covered the period from the late 1990s through February 2016, the data resulting from the review of these resources do not indi- cate that a lack of understanding of the grant assurances presents a problem for most airports, at least not in the form of complaints or investigations. Similarly, the data do not indicate that violations are widespread or frequent. The figures and text below show the number of determinations or opinions, sorted by type, that involve questions of grant assurance compliance and the number of times when a deter- mination found that a violation had occurred. Figures and tables included in Appendix A in ACRP Web-Only Document 44, Volume 2, show the frequency that specific grant assurances were addressed in a determination, opinion or memorandum, and the frequency that violations were found. 4.3.1 Data from Administrative Determinations The data from FAA and U.S. DOT determinations include the 245 determinations appearing in ACRP Legal Research Digest 21 and the 17 FAA dockets reviewed in the FAA Part 16 database. The number of cases (complaints or investigations) considered by FAA and U.S. DOT is, however, substantially lower. Under Part 16 (and in earlier cases decided under Part 13, which
How Was the Guidebook Developed? 7 governed investigations of formal complaints of grant assurance violations before adoption of Part 16), FAAâs initial determination is a directorâs determination (DD), issued by the Direc- tor, Office Airport Compliance and Management Analysis, in most cases. For grant assurances relating to compliance with requirements for DBE participation (including airport concession DBE) and compliance with requirements of Title VI of the Civil Rights Act of 1964, 42 U.S. Code (USC) Â§Â§2000d-2000d-4, the DD is issued by the Associate Administrator for Civil Rights. Part 16 provides that a party can appeal an adverse determination to the Associate Administrator for Airports (Associate Administrator), who issues the Final Agency Decision (FAD). In addi- tion, if the DD finds that a violation of the grant assurances is occurring, the airport sponsor has the option to request an oral evidentiary hearing, in lieu of a direct appeal to the Associate Administrator. Similarly, for those disputes over airport charges to air carriers decided under 14 CFR Part 302, Subpart F, an initial determination will be made by an administrative law judge (ALJ), subject to appeal to the Secretary of Transportation. The 245 determinations included in ACRP Legal Research Digest 21 include DDs, FADs issued on appeal in the same proceedings (with or without oral evidentiary hearings), hearing officer and ALJ decisions, and final decisions under 14 CFR Part 302, Subpart F. Therefore, although ACRP Legal Research Digest 21 includes 245 separate determinations, the number of cases (complaints or investigations) considered by FAA and U.S. DOT is substantially less. The data presented below are based on the number of cases considered by FAA and U.S. DOT. A total of 179 cases, from both ACRP Legal Research Digest 21 and the Part 16 database, were reviewed. A finding of a violation resulted in 45 cases. A total of 134 cases ended in a finding of no violation or were dismissed on procedural grounds. Figure ES-1 presents the data graphically. 4.3.2 Data from Opinions and Memoranda ACRP Legal Research Digest 21 includes 51 records of opinions issued by FAA, U.S. DOT, or the U.S. DOT Office of the Inspector General (OIG); however, some of these records were summaries or digests of other individual opinions included in ACRP Legal Research Digest 21 or otherwise represented duplications. Therefore, only 33 records involved specific individual issues considered by these agencies. Of this total, 11, or one-third, were issued by OIG. Twelve of the 13 findings of violations in opinions involved Grant Assurance 25, Airport Revenues. No Violation 75% (134) Violation 25% (45) Figure ES-1. Distribution of cases with and without violation. (Source: ACRP Legal Research Digest 21 and FAA Part 16 database)