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5 ACRP Legal Research Digest 21 includes the full text of FAA/U.S. DOT administrative decisions and advisory opinions through December 2012. 4.1 The Research Process The research conducted for this Guidebook was performed through ACRP. ACRP was devel- oped to address issues of direct concern to airport management and other groups with interest in the National Airspace System (NAS). The results of ACRP research efforts are intended to have practical application in the day-to-day operations and management of airports within NAS. The research involved four major elements: 1. Interviews with FAA and state block grant staff. Interviews were conducted with staff from the FAA Airport Compliance Division in the FAA headquarters, current and former compli- ance specialists from three FAA regions, and three FAA airport district offices. Interviews were also conducted with officials from four states participating in FAAâs State Block Grant Program. Under the State Block Grant Program, state aviation agencies are responsible for administer- ing AIP grants for general aviation (GA) airports and airports with low levels of scheduled airline services, including administering the AIP grant assurances. 2. Stakeholder outreach with airports and airport users. Three focus groups were conducted at industry conferences held by AAAE or ACI-NA. A webinar was conducted with one ACI-NA committee, and a survey was conducted with one AAAE committee. Participants included representatives of all categories of airports, from large hub airports, as defined by FAA, to GA airports. A focus group was conducted with staff and members of three airport-user associations. 3. Review of resource and reference materials. Resource materials identified in the ACRP work scope and identified in Elements 1 and 2 above were reviewed and catalogued. The materials that are currently available through the Internet are summarized in Appendix F in ACRP Web- Only Document 44, Volume 2. Substantial effort was devoted to reviewing individual admin- istrative determinations and legal and advisory opinions and memos compiled in ACRP Legal Research Digest 21: Compilation of Airport Legal Determinations and Opinion Letters Through December 2012; judicial decisions relating to grant assurance compliance, compiled in ACRP Legal Research Digest 13: An Index and Digest of Decisions: Compilation of Airport Law Resources; and FAA administrative decisions issued from January 1, 2013, through February 24, 2016, included in FAAâs Part 16 database. Part 16 refers to 14 Code of Federal Regulations (CFR) Part 16, which is the regulation governing procedures for investigations and reviews of complaints, regarding compliance with grant assurance requirements. 4. Technical review of grant assurance summaries. Following completion of draft versions of the contents of Chapters 1 and 2 of the Guidebook, the drafts were sent for technical review to FAA offices and state block grant offices that participated in the interview process of Step 1. Copies were also provided to the ACI-NA Legal Committee Steering Group for technical review. S e c t i o n 4 How Was the Guidebook Developed?
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)
8 Guidebook on Understanding FAA Grant Assurance obligations Of the 33 separate opinions reviewed, 12 resulted in an unambiguous finding of no viola- tion, 13 resulted in a definitive determination of a violation, and 8 had mixed outcomes or a determination could not be readily ascertained from the opinion. Figure ES-2 shows the distri- bution of these results, graphically. The higher rate of violations can be attributed to a number of factors. As shown in Figure A-5 in Appendix A in ACRP Web-Only Document 44, Volume 2, 12 of the 13 findings of violations involved Grant Assurance 25, Airport Revenues. Many opin- ions were provided to airport sponsors before they took a particular course of action. Having received a negative determination, they typically did not proceed with that course of action. This result may reflect no more than the complexity of the requirements for compliance with Grant Assurance 25. One-third of the opinions (33) were issued by OIG, with all of them addressing Grant Assurance 25 in whole or in part. OIG investigations may be started as an independent initiative of the OIG, a Congressional referral, a U.S. DOT or FAA referral, or a referral from another party. OIG, in considering the requirements of Grant Assurance 25, has in some cases applied different interpretations of Grant Assurance 25 than FAA. For example, OIG has inter- preted leasing airport land for nonaeronautical use to a third party at less than fair market value (FMV) to be a violation of Grant Assurance 25. FAA in contrast has found that leasing at less than FMV to a third party to be a violation of Grant Assurance 24, Fee and Rental Structure, but not Grant Assurance 25. When these differences arise, OIG and FAA attempt to resolve any differences through consultation. For this issue, the consultation resulted in OIG agreeing with FAAâs interpretation. If FAA and OIG cannot reach agreement, the matter may be referred to the Assistant Secretary for Administration within U.S. DOT. The opinions and memoranda included in ACRP Legal Research Digest 21 may not have included all determinations resulting from this resolution process. 4.3.3 Data from Judicial Decisions (ACRP Legal Research Digest 13) ACRP Legal Research Digest 13 contains digests of a total of 385 federal judicial decisions that were identified as related to airports. Decisions include suits brought directly in U.S. district courts, appeals of federal agency decisions brought in U.S. district courts, appeals of district No Violation 36% (12) Violation 39% (13) Uncertain/Mixed 24% (8) Figure ES-2. Distribution of determinations in opinion letters and memorandums. (Source: ACRP Legal Research Digest 21)
How Was the Guidebook Developed? 9 court decisions and agency decisions to the U.S. circuit courts of appeal, and cases brought before the Supreme Court. ACRP Legal Research Digest 13 is on a CD-ROM and includes the full text of each decision in PDF. The cases are arranged alphabetically by plaintiff or petitioner. Of the 385 decisions, 316 involved no grant assurance issues. Of the remaining 69 decisions that involved grant assurance issues, the grant assurance requirement was often at issue indi- rectly. For example, a plaintiff may be challenging an access restriction as unreasonable under the commerce clause of the Constitution or under 42 USC Â§1983 (which provides a federal remedy for violations of civil rights). The standards of unreasonableness applied in such actions (when they are considered on the merits) are similar to the standards applied by FAA in evaluat- ing claims that airport access restrictions violate Grant Assurance 22, Economic Nondiscrimina- tion. Similarly, the standards applied to a claim that a rate or fee is unreasonable, and therefore violates the Anti-Head Tax Act, 49 USC Â§40116 (when considered on the merits), are similar to the standards applied by FAA and U.S. DOT in evaluating claims that a rate or fee is unreason- able under Grant Assurance 22. Of the 64 decisions involving grant assurance issues (directly or indirectly), 27 resulted in an unambiguous finding of no violation, 14 resulted in a definitive determination of a viola- tion, and 23 did not result in definitive determinations. The latter group consisted of decisions dismissed for lack of jurisdiction or lack of standing, for the most part. Figure ES-3 shows the distribution of these results, graphically. Violation 22% (14) No violation 42% (27) Indeterminate 36% (23) Figure ES-3. Distribution of judicial decisions related to grant assurances. (Source: ACRP Legal Research Digest 13)