Airmark Corp. v. F.A.A., s. 84-1619
| Decision Date | 29 March 1985 |
| Docket Number | 84-1654 and 84-1657,Nos. 84-1619,s. 84-1619 |
| Citation | 758 F.2d 685 |
| Parties | , 244 U.S.App.D.C. 365 AIRMARK CORPORATION, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent, Transamerica Airlines, Inc., Delta Air Lines, Inc., American Airlines, Inc., Intervenors. CAREFREE VACATIONS, INC. and Worldwide Airlines, Inc., Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Respondent, Transamerica Airlines, Inc., Delta Air Lines, Inc., American Airlines, Inc., The Flying Tiger Line, Inc., National Airlines, Inc. and Air Transport International, Inc., Intervenors. TRADEWINDS AIRWAYS, LTD., Petitioner, v. DEPARTMENT OF TRANSPORTATION and Federal Aviation Administration, Respondents, Transamerica Airlines, Inc., Delta Air Lines, Inc., American Airlines, Inc., The Flying Tiger Line, Inc., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of Orders of the Federal Aviation administration.
Herbert A. Rosenthal, Washington, D.C., with whom Robert M. Hausman, Washington, D.C., was on the brief, for petitioners Airmark Corp., and Carefree Vacations, Inc., et al.
Joanne W. Young, Washington, D.C., with whom Mahlon M. Frankhauser, Washington, D.C., was on the brief, for petitioner Tradewinds Airways, Ltd.
Anne S. Almy, Atty. Dept. of Justice, Washington, D.C., with whom Peter R. Steenland, Jr., Atty. Dept. of Justice, Washington, D.C., was on the brief, for respondents.
James S. Dillman, Atty., F.A.A., Washington, D.C., was on the brief for respondent FAA.
Donald T. Bliss, Washington, D.C., with whom Carl R. Schenker, Jr., Washington, D.C., and Robert S. Harkey, Atlanta, Ga., were on the brief for intervenors Delta Air Lines, Inc. and American Airlines, Inc.
Jeffrey A. Manley, Washington, D.C., was on the brief for intervenor Transamerica Airlines, Inc.
Joel Stephen Burton, Alfred J. Eichenlaub, Robert L. Deitz, Ira T. Kasdan, Washington, D.C., and Lawrence M. Nagin, Los Angeles, Cal., were on the brief for intervenor The Flying Tiger Line, Inc. in Nos. 84-1654 and 84-1657.
Richard J. Kendall and Eileen M. Gleimer, Washington, D.C., were on the brief for intervenors Nat. Airlines, Inc., et al., in No. 84-1654.
Charles E. Doyle, Washington, D.C., was on the brief for U.S. Senator Nancy Landon Kassebaum, amicus curiae, supporting respondents.
Gary Keane, Dallas Fort Worth Airport, Tex., was on the brief for Dallas-Fort Worth Intern. Airport Bd., amicus curiae, supporting respondents.
Roy Nerenberg, George T. Volsky, Lawrence D. Wasko and Gary B. Garofalo, Washington, D.C., were on the brief for Airlift Intern., Inc., et al., amicus curiae, supporting respondents.
Before ROBINSON, Chief Judge, and TAMM and WALD, Circuit Judges.
Opinion for the court filed by Circuit Judge TAMM.
These expedited cases raise a series of related questions concerning the appropriate administration of Federal Aviation Administration (FAA) authority to grant exemptions from 14 C.F.R. Sec. 91.303 (1984), a regulation that imposes noise standards on four-engine jet aircraft in commercial operations. Petitioners Carefree, Worldwide, and Tradewinds challenge as arbitrary and capricious the FAA denials of their petitions for exemptions from these standards. Petitioner Airmark challenges its partial exemption as being overly restrictive. Intervenors Delta Air Lines, American Airlines, Transamerica Airlines, and Flying Tiger Line argue that the FAA has no authority to grant exemptions and that, even if it has the authority, it has exercised that authority arbitrarily by granting a partial exemption to Airmark. We find that the FAA does have authority to grant exemptions. The agency's complete failure to apply consistent criteria in granting or denying exemptions, however, compels us to vacate its actions and remand for proceedings consistent with this opinion.
In 1968 Congress enacted section 611 of the Federal Aviation Act, 49 U.S.C. Sec. 1431 (1982), granting the FAA broad authority to regulate aircraft noise. In response, the FAA promulgated a series of regulations addressing noise controls, in 1969, on future aircraft design, 1 in 1973, on future production of existing aircraft types, 2 and, in 1976, on aircraft currently in use. 3 The final regulations set a January 1, 1985 deadline for domestic operators to bring all four-engine aircraft into compliance with the noise controls.
Congress addressed the aircraft noise problem again in the 1979 Aviation Safety and Noise Abatement Act ("ASNA"), Pub.L. No. 96-193, 94 Stat. 50 (1979). ASNA provided that the January 1, 1985 compliance date set by the FAA for domestic aircraft would also apply to foreign aircraft operating in the United States unless the International Civil Aviation Organization ("ICAO") adopted noise standards substantially compatible with the FAA regulations. 49 U.S.C. Sec. 2122 (1982). In the report accompanying ASNA, the Conference Committee encouraged the FAA to consider granting exemptions from the noise control compliance deadline in certain "hardship" situations:
[T]he FAA is urged to give consideration to hardship situations involving smaller carriers where the carrier is making a good faith compliance effort but needed technology is either delayed or unavailable and rigid adherence to compliance deadlines could work financial havoc and deprive the public of valuable airline service. 4
In November 1980, after determining that the ICAO had not adopted standards similar to those in effect for domestic airlines, the FAA amended the noise regulations to apply the January 1, 1985 compliance date to aircraft in foreign commerce. 45 Fed.Reg. 79302, 79304 (Nov. 28, 1980). The FAA found that the language in the Committee Report provided the criteria that should be applied to exemptions from the 1985 compliance deadline. See id. at 79312. The FAA divides these criteria into five constituent factors: 1) the carrier's small size; 2) unavailability of technology for noise abatement; 3) the carrier's demonstrated good faith compliance effort; 4) financial havoc to the carrier if the regulation is strictly enforced; and 5) loss of valuable air service in the absence of an exemption.
Air carriers have had three ways in which to comply with the noise rules: (1) replacing noncompliant aircraft with compliant aircraft; (2) reengining noncompliant aircraft with newer, quieter engines; or (3) retrofitting engine nacelles and fan ducts with sound absorbing materials, or "hush kits." Most larger carriers chose to replace their noncompliant aircraft. The smaller air carriers now seeking exemptions chose instead to fit their aircraft with hush kits. Although Boeing Corporation developed the technology for hush kits in the early 1970s, it dropped the program in 1978 due to lack of carrier demand. The impending noise deadlines reawakened the hush kit industry in 1984; delivery on FAA certified kits, however, is not expected until later this year. Unable to comply with the noise regulations before the deadline, small carriers, including petitioners in this case, sought exemptions from the FAA. As of February 1985, the FAA had received 145 petitions seeking exemptions for 300 aircraft. The FAA has granted 15 exemptions under its general rulemaking authority, 5 all but two 6 on or after December 28, 1984.
Carefree has served as a charter tour operator based in Chicago for over ten years. From April through June 1984 Carefree acquired three noncompliant Boeing 707-331B aircraft. Worldwide Airlines, Inc., a subsidiary formed primarily to operate flights for Carefree, leases these aircraft from its parent. On December 31, 1984, one day before the January 1 deadline, Carefree entered into a contract to purchase a hush kit for one of its aircraft. Carefree also took an option for delivery of two other kits. Installation of the hush kits is expected in late 1985.
On March 30, 1984, Carefree and Worldwide (hereinafter "Carefree") petitioned the FAA for an exemption from the January 1985 deadline. In a June 5, 1984 order, the FAA denied the exemption, finding that it would be unfair to compliant airlines to grant Carefree an exemption since Carefree had acquired its aircraft knowing that it could not comply with the noise rules by January 1985. The FAA found that delay in the availability of hush kits did not justify granting an exemption because hush kit technology had been available for more than ten years. The FAA also saw no way to distinguish Carefree's financial burden in securing compliant aircraft from that of other operators who had expended the sums necessary to comply with the regulation. 7 On December 18, 1984, the FAA denied Carefree's petition for reconsideration.
Tradewinds Airways, a United Kingdom carrier, has provided all-cargo charter service, primarily to Chicago, since 1971 and has offered scheduled service since 1983. Tradewinds began operating its three noncompliant Boeing B-707 aircraft in 1978. 8 Tradewinds executed binding contracts for the purchase of two hush kits on September 7, 1984, and expects that the kits will be installed in April 1985.
On April 3, 1984, Tradewinds petitioned the FAA for an exemption. On August 9, 1984, the FAA denied the exemption in an order that in large part mirrored the Carefree denial. The FAA noted that Tradewinds' increased domestic schedule began in 1983, long after the noise restrictions were made applicable to foreign carriers. Since the technology for hush kits had been available for ten years, the FAA was unmoved by Tradewinds' inability to have hush kits installed until April 1985. 9 On December 27, 1984, the FAA denied Tradewinds' petition for reconsideration.
Airmark is a United States charter carrier, operating a Boeing B-707 specially configured for use by...
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