509 F.3d 593 (D.C. Cir. 2007), 06-1412, Safe Extensions, Inc. v. F.A.A.

Docket Nº:06-1412.
Citation:509 F.3d 593
Party Name:SAFE EXTENSIONS, INC., Petitioner v. FEDERAL AVIATION ADMINISTRATION and Marion C. Blakey, Administrator, Respondents.
Case Date:December 11, 2007
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 593

509 F.3d 593 (D.C. Cir. 2007)

SAFE EXTENSIONS, INC., Petitioner

v.

FEDERAL AVIATION ADMINISTRATION and Marion C. Blakey, Administrator, Respondents.

No. 06-1412.

United States Court of Appeals, District of Columbia Circuit.

December 11, 2007

Argued Oct. 19, 2007.

Page 594

[Copyrighted Material Omitted]

Page 595

On Petition for Review of an Order of the Federal Aviation Administration .

David M. Hernandez argued the cause and filed the briefs for petitioner.

Peter R. Maier, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief was Robert S. Greenspan, Attorney.

Before: HENDERSON, TATEL, and KAVANAUGH, Circuit Judges.

OPINION

TATEL, Circuit Judge.

In this case, a company argues that the Federal Aviation Administration arbitrarily and capriciously imposed a strict test on its product but not on other, similar products. The FAA responds with a laundry list of reasons why this court supposedly cannot hear this challenge. The FAA then argues that even if we may hear the case, substantial evidence supports its decision. Because the FAA's jurisdictional arguments are wholly meritless and because the agency offers nothing more to justify its decision than one employee's bare assertions unsupported by any actual evidence, we grant the petition for review.

I.

Federal law authorizes the Federal Aviation Administration to "prescribe minimum safety standards for . . . operating an airport serving any passenger . . . aircraft designed for at least 31 passenger seats," 49 U.S.C. § 44701(b), and directs the agency to "promote safe flight of civil aircraft . . . by prescribing . . . regulations and minimum standards for . . . practices, methods, and procedure[s] the [agency] finds necessary for safety in air commerce," id.§ 44701(a). Invoking this authority, the FAA issues "advisory circulars" that establish testing requirements and product specifications for a range of items airports use. Private labs test products to determine whether they comply with FAA standards, and the FAA then publishes a list of approved items. To obtain federal funding, airports must agree to buy only products on this list. Thus, airports receiving federal funding--"virtually every public use airport," Resp't's Br. 3--are prohibited from buying unapproved products.

Among the many products the FAA regulates are lights that line airport runways and the metal bases in which those lights sit. Light bases used in runways must be very strong because they experience powerful forces--such as airplanes landing on them and snow plows driving over them--and must retain their original alignment to illuminate the runway properly. Also, because runways are repaved frequently, the height of the bases must be adjustable so they can remain flush with the runway's surface.

Petitioner Safe Extensions, Inc., manufactures one type of light base used in airport runways. The FAA calls the light bases Safe Extensions produces "adjustable products." Other manufacturers make a competing technology that the FAA calls "fixed products." With both technologies, the base is placed in a hole in the runway and secured with concrete or special grout. The two technologies differ in the mechanisms used to adjust their height. Adjustable products--the ones Safe Extensions manufactures--have an extension piece at

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their top; the bottom of the extension piece is threaded, as is the top of the base. To adjust the height, the extension piece is twisted upwards. By contrast, fixed products are made taller by stacking linked extensions on top of the base.

The FAA has long required runway light bases to pass a torque test, which checks whether the base can withstand a strong force without rotating. From 1970 to 2005, this torque test applied to all light bases, both adjustable and fixed, and the test was conducted on light bases installed in the concrete or grout that secured them. In April 2005, however, the FAA issued Advisory Circular 42D, which specified that torque testing would only be required for "bases that utilize a method of height adjustment that is integral to the base or extension and are designed for field adjustment." Advisory Circular 150/5345-42D: Specification for Airport Light Bases, Transformer Housings, Junction Boxes, and Accessories ¶ ¶ 3.1.3.4, 4.3. 10 (Apr. 29, 2005). The FAA apparently intended this language to mean that only adjustable products, not fixed products, had to pass the torque test. Thus, though the torque test itself remained unchanged, only adjustable products now had to pass it.

Thirteen months later, the FAA issued Advisory Circular 42E (AC-42E), which made the required torque test far more stringent. Advisory Circular 150/5345-42E: Specification for Airport Light Bases, Transformer Housings, Junction Boxes, and Accessories (May 8, 2006). AC-42E specified that torque testing of adjustable products now had to be conducted on freestanding light bases, i.e., light bases not yet embedded in concrete or grout the way they would be in the field. Id. at note after ¶ 4.1.7, ¶ 4.3.10. According to Safe Extensions, this caused an outcry among companies that install adjustable products, with several complaining to the FAA that the new test "simply won't work" and "essentially eliminates the use of" adjustable products. Oral Arg. at 3:25. After talking to the FAA, some of these companies were left with the impression that the agency would address their concerns by issuing a revised advisory circular. Id. at 2:04, 3:34.

Just two months after issuing AC-42E, the FAA emailed a draft Advisory Circular 42F to a few companies that make or install runway light bases, though not Safe Extensions. Email from David Evans de Maria, FAA Airport Engineering Division, to David Edwards et al. (Aug. 2, 2006). The torque testing requirements in the draft circular, however, were identical to those in AC-42E; that is, the draft required freestanding torque tests for adjustable products but no torque test for fixed products. Draft Advisory Circular 150/5345-42F: Specification for Airport Light Bases, Transformer Housings, Junction Boxes, and Accessories ¶ ¶ 4.1.7, 4.3. 10 (July 31, 2006).

Two companies offered comments criticizing the draft of AC-42F. Olson Industries, which installs both adjustable and fixed products, argued that adjustable products could never pass the freestanding torque test and that the circular was unfair because fixed products, if subjected to the test, couldn't pass it either. Email from Ted Olson, Jr., President, Olson Industries, to David Evans de Maria, FAA Airport Engineering Division (Aug. 16, 2006). The company also complained that the revised test was unjustified because it had never seen a problem with an installed adjustable product in its twenty years of experience. Id. Another installer of runway lights, Siemens Airfield Solutions, made exactly the same points. Email from Willis Trainor, Certification Test Engineer, Siemens Airfield Solutions, to David Evans de Maria, FAA Airport Engineering Division (Aug. 16, 2006).

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At some point before the FAA issued the final version of AC-42F, an agency employee prepared a response to these comments. Because this response is the only justification the agency has provided for its decision, we quote it in full:

REJECTED - -Fixed [products] have anti-rotational devices inherent to the physical structure of the device itself that act in bearing against the surrounding grade. Adjustable [products] in known currently available designs have no physical features inherent to the device itself to prevent rotation, and rely on a chemical bond acting in shear. There are known examples where this bond has failed in actual application following exposure to real world loading and environmental conditions. Torque testing of specimens prepared in laboratory conditions may be able to pass torque tests simulating being mounted in surrounding grade, but experience has shown that the same care and attention is not possible to control in the field. Experience has also shown that required production testing of in situ torque tests designed to give a certain level of confidence are not performed. As adjustable height extensions have no inherent anti-rotational physical feature that bears against the surrounding grade it must demonstrate its anti-rotational capability free standing so that the uncontrollable quality of its installation is not relied upon for public safety.

Comment Resolutions for Draft Advisory Circular 150/5345-42F: Specification for Airport Light Bases, Transformer Housings, Junction Boxes, and Accessories 1-2 (Sept. 5, 2006). This response appears on a plain sheet of paper in the agency's appendix to its brief. The response says nothing about when or even if the FAA shared it with anyone. At oral argument, Safe Extensions's counsel told us that the FAA emailed the response to selected companies at approximately the same time the agency published the final version of AC-42F. Oral Arg. at 7:40, 8:15. According to Safe Extensions, it never received the response directly from the FAA and had no opportunity to address it before the final circular was published. Id. at 7:40. The FAA's counsel disputed none of this.

The FAA issued the final version of AC-42F on October 17, 2006, making no changes from the draft circular regarding the torque testing required for adjustable products used in runways. Advisory Circular 150/5345-42F: Specification for Airport Light Bases, Transformer Housings, Junction Boxes, and Accessories ¶ 4.3. 10 (Oct. 17, 2006). Thus, adjustable products remained subject to a freestanding torque test fixed products did not have to pass. On December 15, Safe Extensions filed a petition for review of AC-42F pursuant...

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