United States Court of Appeals,
Eleventh Circuit.
No. 94-5314.
FINE AIRLINES, INC., Petitioner,
v.
FEDERAL AVIATION ADMINISTRATION, Respondent.
May 10, 1995.
Review of a Final Order of the FAA Denying Waiver from Interim
Compliance with Noise Level Standards of the Airport Noise and
Capacity Act of 1990 (Florida Case).
Before ANDERSON and BIRCH, Circuit Judges, and JOHNSON, Senior
Circuit Judge.
PER CURIAM:
The issue on this appeal is whether the Federal Aviation
Administration ("FAA") acted arbitrarily and capriciously in
denying the application of Fine Airlines, Inc. for a waiver of the
December 31, 1994, interim compliance date established by 14 C.F.R.
§ 91.867 pursuant to the Airport Noise and Capacity Act of 1990
("ANCA"), 49 U.S.C. §§ 47521, et seq. Aircraft are categorized by
the noise level ranging from a stage 1, the noisiest, to stage 3,
the quietest. The ANCA provided for the phasing out of stage 2
aircraft in favor of stage 3 aircraft by the year 2000, and
delegated to the FAA authority to promulgate regulations
establishing a schedule of phased-in compliance, including interim
compliance dates. Air carriers could comply with the noise
requirements by purchasing stage 3 aircraft or, through hushkit,
adapting their stage 1 or 2 aircraft to stage 3 noise levels.
Pursuant to § 91.867(a)(2), a new entrant United States air
carrier, like Fine Airlines, must by the initial compliance date of
December 31, 1994, have at least 25% of its fleet in compliance
with stage 3 noise levels. However, 14 C.F.R. § 91.871 permits a
waiver of the interim compliance requirements under certain
specified circumstances.
In 1992, Fine Airlines began its cargo service operations
between the United States and numerous Central American, South
American and Caribbean countries. By the end of 1992, it had four
stage 2 aircraft. It added five stage 2 aircraft in 1993. By
September 1, 1994, it had added another stage 2 aircraft, and in
the instant petition for a waiver filed September 1, 1994, it
indicated an intention to acquire two more stage 2 aircraft before
the end of 1994. In May, 1992, Fine Airlines began working with a
manufacturer to develop a hushkit which could convert its stage 2
aircraft in order to meet the stage 3 noise levels.
On September 1, 1994, Fine Airlines petitioned the FAA for a
waiver of the December 31, 1994, interim compliance date, pursuant
to 14 C.F.R. § 91.871. The FAA denied the waiver on December 8,
1994. On December 16, 1994, Fine Airlines filed a petition for
reconsideration, which was denied by the FAA on December 20, 1994.
The regulation governing the instant application for waiver
provides in relevant part as follows:
Section 91.871 Waivers from interim compliance requirements.
(a) Any U.S. operator ... subject to the requirements of ...
[section] 91.867 of this subpart may request a waiver from any
individual compliance requirement.
(b) Applications must be filed with the Secretary of
Transportation at least 120 days prior to the compliance date
from which the waiver is requested.
(c) Applicants must show that a grant of waiver would be in
the public interest, and must include in its application its
plans and activities for modifying its fleet, including
evidence of good faith efforts to comply with the requirements
of ... § 91.867....
(d) Waivers will be granted only upon a showing by the
applicant that compliance with the requirements of ...
[section] 91.867 at a particular interim compliance date is
financially onerous, physically impossible, or technologically
infeasible, or that it would have an adverse effect on
competition or on service to small communities.
14 C.F.R. § 91.871. The regulation clearly requires a showing of
good faith efforts to comply with the interim compliance dates of
§ 91.867, including the December 31, 1994, interim compliance
date.1 The issue in this case is whether the FAA acted arbitrarily
and capriciously in finding that Fine Airlines did not satisfy the
good faith criterion.
The crux of the FAA decision denying the waiver was that Fine
Airlines had failed to demonstrate that it had "established a
timely, achievable plan for compliance and made reasonable efforts
to keep that plan current and follow it." Thus, the FAA concluded
that the actions of Fine Airlines did not constitute a good faith
effort to comply with the interim compliance requirements. Fine
Airlines, Inc., FAA Docket No. 27898 (Dec. 8, 1994), at 5. The
agency opinion pointed out that Fine Airlines began operations in
1992, and that its 1992 report to the FAA indicated that it would
be in compliance. Fine Airlines' 1993 report indicated that it
would not meet the first compliance deadline, December 31, 1994,
that the expected date of certification for its hushkit project was
1
We find no merit in Fine Airlines' argument that its
demonstration of technological infeasibility as of the December
31, 1994, compliance date was sufficient in and of itself without
any showing of good faith.
in early 1995, and that it intended to apply for a waiver of the
December 31, 1994 deadline. The agency opinion also noted:
It is important to note that this does not appear to be a case
in which an operator had a plan to hushkit its aircraft before
the compliance date and at some late hour, was unable to
follow through with that plan and needs extra time. None of
the materials submitted by Fine Air indicates, nor does the
petitioner argue, that it thought the hushkit would be ready
in time to meet the first compliance date.
Id. at 7. Fine Airlines filed a petition for emergency
reconsideration on December 16, 1994. Among other things, that
petition purported to explain the delays causing its failure to
meet the December 31, 1994, compliance date, proffering additional
evidence for that purpose. The FAA denied reconsideration on
December 20, 1994.
We cannot conclude that the FAA decision in this case was
arbitrary or capricious. After oral argument and a careful review
of the briefs and record in this case, we are satisfied that Fine
Airlines has failed to demonstrate that its plan to comply through
the vehicle of its hushkit project was a timely and achievable plan
for compliance. As the agency opinion so clearly articulates:
"None of the material submitted by Fine Air indicates, nor does the
petitioner argue, that it thought the hushkit would be ready in
time to meet the first compliance date." Id. at 7. The agency
also pointed out that Fine Airlines' 1992 report indicated a plan
to comply, but provided no facts to support its expectation of
compliance. The 1993 report acknowledged a lack of
compliance—i.e., that the expected date of certification for its
hushkit was not until early 1995—and indicated an intent to apply
for a waiver. Although it began working with the hushkit
manufacturer in May, 1992, a contract with the manufacturer was not
entered until May, 1993. Significantly, the contract contained no
date for delivery. In an attempt to pinpoint the source of its
evidence of good faith, Fine Airlines at oral argument pointed to
the May 1994 report of its manufacturer. However, nothing in that
report demonstrates that the hushkit project was a timely and
achievable plan for compliance. Indeed, the report contemplated
delivery dates only in 1995. The report contained little or no
explanation relating to the reasonableness of the hushkit plan or
the reasons for delay.
Fine Airlines' petition for agency reconsideration was
apparently an attempt to rectify the obvious deficiency in its
prior submissions, i.e. its failure to demonstrate that its hushkit
project was a reasonable plan for compliance within the interim
compliance dates. For this purpose, Fine Airlines submitted
additional information2 with its petition for reconsideration, in
the form a December 16, 1994, update from the manufacturer,
updating its previously-submitted May, 1994, report. The December
16, 1994, update purported to explain production delays. We are in
full agreement with FAA that the additional information falls far
short of satisfying the deficiency in Fine Airlines' showing. The
four delays described in that document are woefully vague, and
provide very little assistance to the factfinder with respect to
its determination whether Fine Airlines' hushkit project
2
Fine Airlines' argument that the FAA had a duty to ask for
additional information is frivolous. The burden was on Fine
Airlines to present evidence in support of its waiver
application.
constituted a reasonable plan of compliance. For example, there is
no indication at all of chronology, i.e., the timing of the delay
or the effect of the delay on compliance with the compliance
deadline dates. Moreover, the update document undermines Fine
Airlines' position in that it indicates that delays have been
experienced only with respect to one major component and that the
delays being encountered are relatively minor and minimal in
comparison with those that have been encountered in previous
hushkit programs. Rather than supporting Fine Airlines' position,
the update document suggests that there have been fewer delays than
usual, and thus that the hushkit project was never a plan
reasonably calculated to permit compliance.
We readily conclude that Fine Airlines failed to demonstrate
that its hushkit project constituted a "good faith effort[ ] to
comply with the requirements of ... § 91.867." 14 C.F.R. §
91.871(c).3 Accordingly, the order of the FAA denying the instant
3
We decline to address Fine Airlines' argument that the FAA
acted arbitrarily and capriciously in departing from the
standards previously applied in evaluating good faith compliance
efforts. The prior standards to which Fine Airlines points
relate to the phase-out of stage 1 airplanes in 1985. In
particular Fine Airlines points to the guidance provided in In
Re: Lineas Aereas del Caribe, S.A., 50 Fed.Reg. 19,102 (May 6,
1985). We decline to address this argument for two reasons.
First, Fine Airlines' argument is, with one exception mentioned
below, a mere repetition of the bald statement that a different
standard was applied. We decline to address such a vague
argument.
Second, the only specific assertion by Fine Airlines is
that the FAA failed to recognize that the Caribe guideline,
id., suggested that a good faith effort would include a firm
contract with the earliest possible delivery date. Assuming
arguendo, but expressly not deciding, that good faith would
be satisfied by a firm contract with the earliest possible
delivery date, it is clear in this case that Fine Airlines
has not satisfied that standard. Its contract contains no
waiver is
AFFIRMED.
delivery date at all. Moreover, Fine Airlines has made no
showing at all that the instant circumstances relevant to
good faith compliance are sufficiently similar to the
circumstances addressed in Caribe, id., to require
application of the same criteria. We note that the Caribe
guidelines set forth on May 6, 1985, followed a period of
inconsistent application of the standards by the FAA. See
Airmark Corp. v. FAA, 758 F.2d 685 (D.C.Cir.1985). We note
that the Caribe guidelines required that the firm contract
referred to therein be entered as of a particular date,
which would obviously have no relevance to the instant
circumstances. We note further that the instant
circumstances derive from subsequent legislation, i.e., the
1990 Airport Noise and Capacity Act, that the regulations
pursuant to that Act were published in final form on
September 25, 1991, and thus that Fine Airlines has been on
notice of these regulations since at least September 25,
1991. As noted in the text of this opinion, Fine Airlines
has failed to adduce evidence to demonstrate its entitlement
to a waiver under the clear language of those 1991
regulations. In light of the foregoing, we cannot conclude
that the instant circumstances are obviously similar to
those extant in 1985, and in the absence of a showing on the
part of Fine Airlines that the instant circumstances are in
fact similar to those addressed in the 1985 Caribe
guidelines, we decline to address the issue.