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ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix A, Data From Determinations, Opinions, Judicial Decisions A-1 A P P E N D I X A , D A T A F R O M A D M I N I S T R A T I V E D E T E R M I N A T I O N S , O P I N I O N S A N D M E M O R A N D A , A N D J U D I C I A L D E C I S I O N S The research effort included a review of individual administrative and judicial determinations interpreting Grant Assurance Requirements. Appendix A provides data from that review to supplement the information included in the Executive Summary of the Guidebook. The data is presented in three sections. Section A.1 presents data from administrative determinations in response to complaints or agency-initiated investigations. Section A.2 presents data from agency advisory opinions, including legal opinions. Section A.3 presents data from judicial determinations. Section A.1 Summary of Data from the Review of Administrative Determinations Two sources of administrative determinations were reviewed. The first was ACRP Legal Research Digest (LRD) 21, Compilation of DOT and FAA Airport Legal Determinations and Opinion Letters Through December 2012. This document includes a digest of FAA and U.S.DOT legal determinations issued through the end of 2012. The second source was the FAAâs Part 16 database. This database was used to identify and review legal determinations issued by the FAA from January 2013 through March 2016. Legal determinations issued after this date are not reflected in the results. The data from FAA and DOT determinations includes the 245 determinations appearing in LRD 21 and the 17 FAA dockets reviewed in the FAA Part 16 database. However, the number of cases (complaints or investigations) considered by the FAA and DOT is substantially lower. Under Part 16 (and in some cases, decided under Part 13), the FAAâs initial determination is a Directorâs Determination (DD) in most cases, issued by the Director of Office Airport Compliance and Management Analysis. For Grant Assurances relating to compliance with requirements for disadvantaged business enterprise (DBE) participation (including airport concession disadvantaged business enterprises (ACDBEs)) and compliance with the requirements of Title VI of the Civil Rights Act of 1964, 42 USC §§2000d-2000d7, 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 addition, if it is found in the DD 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 LRD 21 include DDs, FADs issued on appeal in the same proceedings (with or without oral evidentiary hearings), hearing officer decisions issued under Part 16 and ALJ decisions and final decisions under 14 CFR Part 302, Subpart F. Therefore, although LRD 21 includes 245 separate determinations, the number of cases (complaints or investigations) considered by
ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix A, Data From Determinations, Opinions, Judicial Decisions A-2 FAA and DOT is substantially less. The data presented below are based on the number of cases considered by FAA and DOT. A total of 179 cases from both LRD 21 and the Part 16 database were reviewed. A total of 45 resulted in a finding of violations; 134 cases resulted in a finding of no violation or were dismissed on procedural grounds. Figure A-1 presents this data graphically. Sources: LRD 21; FAA Part 16 database Figure A-1, Distribution of Cases With and Without Violations These statistics should be placed in the context of the universe of grant-obligated airports. Over 3,000 airports in the United States are subject to Grant Assurance obligations. In addition, the time period covered by LRD 21 ranges from the 1990s through the end of 2012. While understanding and complying with the Grant Assurance obligations may have been difficult for those Airport Sponsors involved in complaints or investigations, the data themselves do not indicate widespread misunderstanding or lack of compliance. Figure A-2 shows the distribution of the specific Grant Assurance requirements at issue in each complaint or investigation. Complaints or investigations typically involve multiple Grant Assurance requirements; therefore, the total exceeds the 179 cases referenced above. Issues included in the âOtherâ category arose less than 10 times each, with a range of eight occurrences to one occurrence. Twenty-nine different requirements are included in the âOtherâ category. As shown in Figure A-2, Grant Assurance 23, Exclusive Rights, was the specific issue that rose most often, followed by issues of whether refusals to lease or terminations of leases violated one of the requirements of Grant Assurance 22, Economic Nondiscrimination. Grant Assurance 22 includes many particularized requirements and can be implicated in a variety of situations. Thus, the combined count for all of the most frequently raised issues under Grant Assurance 22 was 186, or twice the number of occurrences for Grant Assurance 23. No Violation 75% (134) Violation 25% (45)
ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix A, Data From Determinations, Opinions, Judicial Decisions A-3 Sources: LRD 21; FAA Part 16 database Figure A-2, Distribution of Specific Grant Assurance Requirements in Complaints/Investigations Figure A-3 shows the distribution of instances in which the FAA or DOT found violations of specific Grant Assurance Requirements, the same requirements shown in Figure A-2. The specific requirements included in the âOtherâ category in each figure are the same. The chart shows both the number of cases when a violation of a specific assurance was found and also the percentage of findings of violation in relation to the total number of cases in which that assurance was at issue. As shown in Figure A-3, the FAA found a violation of Grant Assurance 23, Exclusive Rights most often, with 17 cases. However, taking into account all of the separate issues under Grant Assurance 22, Economic Nondiscrimination, this assurance rated highest on a percentage basis, with the FAA finding a violation in 45% of the cases. The combined count for the individual issues under Grant Assurance 22 where a violation was found is 36, which represents 19% of the total instances where some aspect of Grant Assurance 22 was considered. 91 58 48 44 26 25 22 20 15 14 11 10 75
ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix A, Data From Determinations, Opinions, Judicial Decisions A-4 Sources: LRD 21; FAA Part 16 database Figure A-3, Distribution of Findings of Violations of Specific Grant Assurance Requirements Figures A-2 and A-3 are based on the data depicted in Table A-1 below. This table includes data on the individual Grant Assurances included in the âOtherâ category in the two figures. Table A-1 includes a listing for the Anti-Head Tax Act (AHTA), 49 USC §40116. The AHTA establishes requirements and restrictions that are independent of the Grant Assurances. However, the standards used for determining whether an airportâs fee and rental structure violates the AHTA are similar to the standards used to determine whether an airport fee and rental structure violates Grant Assurance 22, Economic Nondiscrimination and Grant Assurance 24, Fee and Rental Structure. Therefore, determinations of compliance with the AHTA by an Airport Sponsor were included in the review and data set. 17 11 9 7 7 5 4 4 4 3 2 2 3 19% 25% 19% 12% 28% 45% 18% 20% 27% 30% 8% 14% 4%
ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix A, Data From Determinations, Opinions, Judicial Decisions A-5 Table A-1, Tally of Issues and Violations in Administrative Decisions Sources: LRD 21; FAA Part 16 database Total Cases Violation % of Cases With Violation #23 Exclusive Rights 91 17 19% #22 Minimum Standards 44 11 25% #22 Rates and Charges 48 9 19% #22 Terminate/Refuse Lease 58 7 12% #22 SelfâService/Fueling 25 7 28% #22 Access Restrictions 11 5 45% #22 Lease Terms 22 4 18% #5 Preserving Rights and Powers 20 4 20% #29 Airport Layout Plan 15 4 27% #25 Airport Revenues 10 3 30% #24 SelfâSustainability 26 2 8% #19 Operation & Maintenance 14 2 14% Other total 75 6 8% #5 Preserving Rights and Powers (throughâtheâfence operations) 8 1 13% #37 Disadvantaged Business Enterprises 8 0 0% #1 49 CFR Part 23 6 0 0% #6 Consistency with Local Plans 5 0 0% #7 Consideration of Local Interests 5 0 0% #30 Civil Rights 5 0 0% #8 Consultation With Users 4 0 0% #21 Compatible Land Use 4 1 25% #1 49 CFR Part 26 3 0 0% #20 Hazard Removal & Mitigation 3 0 0% #34 Policies, Standards & Specifications 3 0 0% #1 Generally 2 0 0% #16 Conformity to Plans and Specifications 2 0 0% #35 Relocation Assistance 2 0 0% #1 49 CFR Part 24 1 0 0% #2 Legal Authority 1 0 0% #10 Air and Water Quality Standards 1 0 0% #13 Accounting System, Audit & Recordkeeping 1 0 0% #18 Planning Projects 1 0 0% #22 Economic NonâDiscrimination (Flying Clubs) 1 1 100% #22 Economic nonâdiscrimination (incentive programs) 1 0 0% #27 Use by government aircraft 1 0 0% #26 Reports and Inspections 1 0 0% #31 Disposal of Land 1 1 100% #32 Engineering & Designed Services 1 0 0% #38 Hangar Construction 1 0 0% #39 Competitive Access 1 0 0% B.1 Duration and Applicability 1 1 100% AntiâHead Tax Act 1 1 100%
ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendix Understanding FAA Grant Assurance Obligations Appendix A, Data From Determinations, Opinions, Judicial Decisions A-6 Section A.2 FAA and DOT Opinion Letters and Memoranda LRD 21 includes 51 records of opinions issued by the FAA, the U.S.DOT or the U.S.DOT Office of Inspector General (OIG). However, some of these records were summaries or digests of other individual opinions included in LRD 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 the OIG. Of the 33 separate opinions reviewed, 12 resulted in an unambiguous finding of no violation; 13 resulted in a definitive determination of a violation; 11 had mixed outcomes or a determination could not be readily ascertained from the opinion. Figure A-4 shows the distribution of these results graphically. The higher rate of violations can be attributed to a number of factors. First, as shown in Figure A-5 below, 12 of the 13 of the findings of violations involved Grant Assurance 25, Airport Revenue. Many of the opinions 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. Second, one- third of the opinions were issued by the 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 DOT or FAA referral, or a referral from another party. The OIG, in considering the requirements of Grant Assurance 25, has in some cases applied different interpretations of Grant Assurance 25 than the FAA. For example, the OIG has interpreted Grant Assurance 25 to prohibit 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. The 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, the OIG and the FAA attempt to resolve any differences through consultation. For this issue, the consultation resulted in the OIG agreeing with the FAAâs interpretation. If the FAA and OIG cannot reach agreement, the matter may be referred to the Assistant Secretary for Administration within the U.S.DOT. The opinions and memoranda included in LRD 21 may not have included all of the determinations resulting from this resolution process. Source: LRD 21 Figure A-4, Distribution of Determinations in Opinion Letters and Memoranda No Violation 36% (12) Violation 40% (13) Uncertain/Mixed 24% (8)
ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendix Understanding FAA Grant Assurance Obligations Appendix A, Data From Determinations, Opinions, Judicial Decisions A-7 Figure A-5 shows the distribution of Specific Grant Assurance requirements at issue in each opinion. As was the case with the administrative determinations, some opinions involved multiple Grant Assurance requirements. Therefore, the total number of specific requirements at issue exceeds the total of 33 opinions. Grant Assurance 25, Airport Revenues, was by far the most frequently considered, with 29 instances. The related subjects of rates and charges under Grant Assurance 22, Economic Non- Discrimination and Grant Assurance 24, Fee and Rental Structure combined were the second most frequently considered with a total of six instances (three each). Source: LRD 21 Figure A-5, Distribution of Specific Grant Assurance Requirements Considered in Opinions 29 3 3 2 2 1 1 1 1
ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix A, Data From Determinations, Opinions, Judicial Decisions A-8 Figure A-6 shows the frequency with which a violation of the specific Grant Assurance Requirements included in Figure A-5 was found in an opinion letter or memoranda. Only two of the nine requirements or issues as shown in Figure A-5 were the subject of definite findings of violations. Also, 12 out of the 13 findings involved Grant Assurance 25. Source: LRD 21 Figure A-6, Distribution of Findings of Violations of Specific Grant Assurances in Opinions
ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix A, Data From Determinations, Opinions, Judicial Decisions A-9 Opinions classified as mixed involve situations where the FAA, DOT or OIG found some issues that were potential violations and some that were not. In opinions classified as unknown, the FAA, DOT or OIG typically identified the facts or circumstances that could lead to a negative outcome, but did not have sufficient information to make a definitive determination. Figure A-7 shows the distribution of these opinions among the specific issues included in Figure A-5. Source: LRD 21 Figure A-7, Distribution of Uncertain/Mixed Opinions Regarding Specific Grant Assurances As shown in Figure A-7, Grant Assurance 25, Airport Revenues, had the highest number of mixed or uncertain opinions, but the lowest percentage of total opinions for a specific Grant Assurance. The high number is consistent with the fact that Grant Assurance 25 had the highest number of total opinions by a substantial margin. Figures A-5 through A-7 are based on the data included in the Table A-2 below. 6 3 1 1 1 1 21% 100% 100% 100% 100% 33%
ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix A, Data From Determinations, Opinions, Judicial Decisions A-10 Table A-2, Tally of Issues and Violations in Opinions and Memoranda Source: LRD 21 Section A.3 Judicial Decisions (LRD 13) The data on judicial decisions is based on the review of ACRP LRD 13, An Index and Digest of Decisions: Compilation of Airport Law Resources, which contains digests of a total of 385 federal judicial decisions that were identified as related to airports. Decisions include decisions on suits brought directly in a U.S District Court, appeals of federal agency decisions brought in a U.S. District Court, appeals of district court decisions and agency decisions brought in a U.S Court of Appeal, and cases brought before the Supreme Court. In LRD 13, the full text of each decision is included in PDF format, and the cases are arranged alphabetically by plaintiff or petitioner. Of the 385 decisions, 316 involved no grant assurance issues. The most common issues were compliance with the National Environmental Policy Act (NEPA) by FAA or DOT; challenges to access restrictions or access fees charged to ground transportation providers, such as taxis, limousine services, or courtesy shuttle operators; and First Amendment challenges to regulations on advertising or soliciting for non-commercial purposes. Of the remaining 69 decisions that did involve grant assurance issues, the Grant Assurance requirement is often at issue indirectly. For example, a plaintiff may be challenging an access restriction as unreasonable under the commerce clause of the Constitution or under 42 USC §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 the FAA in evaluating claims that airport access restrictions violate Grant Assurance 22, Economic Non-Discrimination. Similarly, the standards applied to a claim that a rate or fee is unreasonable and therefore violates the AHTA, (when considered on the merits) are similar to the standards applied by the FAA or DOT in evaluating claims that a rate or fee is unreasonable under Grant Assurance 22, or Grant Assurance 24, Fee and Rental Structure. Of the 69 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 violation; and 23 did not result in definitive determinations. For the most part, the latter group consisted of decisions dismissed for lack of jurisdiction or lack of standing. Figure A-8 shows the distribution of these results graphically. Total No Violation Violation Unknown / Mixed OIG Audit / Request #25 Airport Revenues 29 11 12 6 11 #22 Rates and Charges 3 3 #24 Fee and Rental Structure 3 2 1 1 #22 Lease Terms 2 2 #23 Exclusive Rights 2 2 #5 Preserving Rights and Powers 1 1 #19 Operation and Maintenance 1 1 #22 incentive Programs 1 1 Admininstrative Procedures 1 1 1
ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix A, Data From Determinations, Opinions, Judicial Decisions A-11 Source: LRD 13 Figure A-8, Distribution of Judicial Decisions Related to Grant Assurances A total of 14 specific Grant Assurance requirements were considered in the judicial decisions. As noted, in many opinions the Grant Assurance itself was not directly at issue, but a requirement corresponding to a Grant Assurance was considered. Some decisions involved multiple requirements. Therefore, the total number of specific requirements at issue exceeded the total of 69 decisions. Figure A-9 shows the distribution of specific Grant Assurance requirements at issue in each decision. A total of eight requirements that were considered less than five times are included in the âOtherâ category. The requirement for reasonable rates and charges included in Grant Assurance 22, Economic Non- Discrimination was the most frequently considered, with 21 instances, followed by the prohibition on unreasonable access restrictions included in the same Grant Assurance, with 19 instances.
ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix A, Data From Determinations, Opinions, Judicial Decisions A-12 Source: LRD 13 Figure A-9, Distribution of Specific Grant Assurance Requirements Considered in Decisions Figure A-10 shows the frequency with which a violation of the specific Grant Assurance Requirements included in Figure A-9 was found in a decision. Only four requirements were considered in decisions where a violation was found. As shown, access restrictions were the most common violation measured both on an absolute basis (10) and on a percentage basis (53%). Unreasonable rates and charges was the second most frequent requirement in absolute terms (5), while unreasonable lease refusals or terminations (another violation of Grant Assurance 22) was the second most frequent on a percentage basis (40%). 21 19 16 11 5 5 10
ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix A, Data From Determinations, Opinions, Judicial Decisions A-13 Source: LRD 13 Figure A-10, Distribution of Findings of Violations of Specific Grant Assurances in Decisions Figures A-8 through A-10 are based on data included in Table A-3 below. The tables include information on the individual Grant Assurance requirements included in the âOtherâ category. 10 5 3 2 53% 24% 19% 40%
ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix A, Data From Determinations, Opinions, Judicial Decisions A-14 Table A-3, Tally of Issues and Violations in Judicial Decisions Related to Grant Assurances Source: LRD 13 Total Violation No violation Indefinite* #22 Rates & Charges 21 5 11 5 #22 Access Restrictions 19 10 3 6 #23 Exclusive Rights 16 3 6 7 #22 Economic NonâDiscrimination 11 0 8 3 #22 Lease Refusal/Termination 5 2 2 1 #37 Disadvantaged Business Enterprises 5 0 4 1 Other Total 10 0 1 9 #22 Selfâfueling/Service 2 0 0 2 #24 Fee & Rental Structure 2 0 1 1 #4 Good Title 1 0 0 1 #7 Consideration of Local Interest 1 0 0 1 #19 Operation & Maintenance 1 0 0 1 #21 Hazard Removal & Mitigation 1 0 0 1 #25 Airport Revenue 1 0 0 1 #29 Airport Layout Plan 1 0 0 1 * Either no decision on merits or a mixed finding of violation and no violation
