Air Trans Assn Amer v. FAA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 11, 1999 Decided March 5, 1999

No. 98-1109

Air Transport Association of America,

Petitioner

v.

Federal Aviation Administration,

United States Department of Transportation, and

United States of America,

Respondents

Port Authority of New York and New Jersey,

Intervenor

On Petition for Review of an Order of the

Federal Aviation Administration

Campbell Killefer argued the cause for petitioner. With
him on the briefs were Robert E. Cohn and David Berg.

Jacob M. Lewis, Attorney, United States Department of
Justice, argued the cause for respondents. With him on the
brief were Frank W. Hunger, Assistant Attorney General,
Barbara C. Biddle, and Howard S. Scher, Attorneys.

Arthur P. Berg argued the cause for intervenor. With him
on the brief was Carlene V. McIntyre.

Scott P. Lewis, Kenneth W. Salinger, Thomas R. Devine,
and Patricia A. Hahn were on the brief for amicus curiae
Airports Council International-North America.

Before: Silberman, Sentelle, and Garland, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge: Petitioner, an association of air
carriers, challenges the Federal Aviation Administration's
partial approval of the Port Authority of New York and New
Jersey's application to collect a passenger fee and to use the
resulting revenue to construct a light rail system providing
ground access to John F. Kennedy International Airport.
We believe the FAA reasonably interpreted the statute gov-
erning this matter, except insofar as the FAA thought itself
permitted to rely on material submitted ex parte by the Port
Authority after the notice and comment period on the applica-
tion had expired. Accordingly, we grant the petition for
review.

I.

Under a provision of the Federal Aviation Act, local public
airport authorities may apply to the FAA for authority to
impose a Passenger Facility Charge (PFC) of $1.00, $2.00, or
$3.00 on each paying air passenger in order to finance an
"eligible airport-related project," such as a project for airport
development, airport planning, or terminal development.
Each eligible airport-related project must serve one of three
purposes: the one relevant here is to preserve or enhance
capacity, safety or security of the national air transportation

system.1 After the airport authority submits its application
to the FAA, the FAA must provide notice and an opportunity
to air carriers and other interested persons to comment on
the application. The FAA does so by publishing a notice in
the Federal Register advising that it intends to rule on the
application and inviting public comment, and by requiring the
applicant to make available to the public, upon request, a copy
of the application, notice, and other germane documents.
Following review of the application and public comments, the
FAA issues a final decision on the application; if the FAA
finds, based on the application and public comments, that the
proposed project serves one of the three enumerated pur-
poses (such as enhancing capacity), that the amount and
duration of the proposed fee will not result in revenue that is
more than the amount necessary to finance the specific
project, and that "adequate justification" has been shown for
the project, the FAA may approve the application in whole or
in part. See 49 U.S.C. s 40117 (1994); 14 C.F.R. ss 158.27,
158.29 (1998).

The Port Authority filed an application requesting approval
to collect a $3.00 PFC on passengers enplaning at LaGuardia,
Newark International, and John F. Kennedy International
airports and to use the $1.248 billion in resulting revenue to
construct an 8.4 mile light rail system to connect the New
York City Transit subway and the Long Island Railroad to
JFK airport, apparently the largest single application ever
submitted to the FAA. The proposed system consists of
three interconnected components: a 3.3 mile railway from the
Howard Beach subway station to JFK; a 3.1 mile elevated
railway along the Van Wyck Expressway from the Jamaica
Long Island Railroad Station and Sutphin Boulevard subway
station to JFK; and a two-mile elevated rail loop in the
airport's terminal area. Following the FAA's publication of
notice in the Federal Register, petitioner filed comments
opposing the application, contending that the project did not

__________
1 Before submitting an application to the FAA, the airport
authority must provide notice to, and an opportunity for consulta-
tion with, air carriers operating at the airport.

meet the statutory requirements described above. Petitioner
argued, inter alia, that the Port Authority had not adequately
justified the project's stated purpose of enhancing capacity at
JFK. After the close of the 30-day comment period, and at
the agency's request, the Port Authority provided additional
information to the FAA on the project's forecasted effective-
ness in enhancing capacity. This additional information was
not disclosed to the petitioner or to any other interested
party. Shortly thereafter, the FAA issued its decision, in
which it partially approved the collection and use of PFC
revenue to finance the light rail system.

The FAA found "adequate justification" for the project
because it would enhance capacity at JFK. Although it
viewed the Port Authority's original application--which
claimed that the project would divert 134,000 air passengers
annually from LaGuardia and Newark to JFK by the year
2003--as insufficient to justify the $1.248 billion expenditure,
the FAA was persuaded by the supplemental information
provided to it ex parte by the Port Authority after the close of
the comment period. In that supplemental material, the Port
Authority calculated that road access to JFK would reach its
limiting capacity by the year 2003, at which time it could
accommodate 36 million potential air passengers annually.
The airport itself, however, would be able to handle far more
passengers--not reaching its capacity of 45 million passen-
gers until 2013. The Authority projected that this gap be-
tween landside capacity and airside capacity could be reduced
by the construction of the light rail system; it estimated that
the project would enable an additional 3.35 million annual air
passengers to get to JFK airport in 2013 than would other-
wise be able to without the rail system. The FAA found this
to be an adequate justification for the project.

The FAA also explained that it was approving the project
only in part because it had identified certain costs--such as
maintenance and storage facilities and any equipment needed
for fare collection--that would be ineligible for PFC revenue.
As the precise amount of ineligible costs could not be deter-
mined from the generalized plans submitted at this prelimi-
nary stage, the FAA approved the total cost of the project

under condition that the Port Authority submit adequate
detailed design and cost information to the FAA after design
is complete and before construction is begun to enable a
determination of ineligible costs. The Port Authority was
also required to amend its application immediately to de-
crease the amount of requested revenue to account for any
ineligible costs identified by the FAA in the future.

Petitioner also had argued in its comments that the Jamai-
ca component was not an eligible airport-related project
because it would not be part of the "airport" as defined in 49
U.S.C. ss 40117(a)(1) and 47102(2), but would instead consist
of a right-of-way along the Van Wyck Expressway. The FAA
explained, however, that airport-owned rights-of-way are
within the boundaries of the airport, and therefore, when the
Port Authority acquires the necessary rights-of-way, the Ja-
maica component will be an eligible airport facility. This
petition followed.

II.

Petitioner raises two substantive statutory challenges--that
the FAA's decision was ultra vires because the agency lacked
authority to grant a conditional approval, and that the agen-
cy's decision permitted financing of illegal off-airport im-
provements. It is also argued that the agency solicited and
accepted from the Port Authority--ex parte--critical, even
decisive information, thus illegally circumventing the statute's
notice and comment requirements. And if that were not
enough, petitioner also claims that the FAA's decision was
arbitrary and capricious. We take up the challenges in that
order.

It is undisputed that certain of the project's design ele-
ments are not eligible for PFC funding. Petitioner claims
that because the FAA approved the project, without specify-
ing at the time of the approval the exact amount of the
proposed expenditures that will be disallowed, the statute is
violated. The FAA explained in its decision, and reiterates
before us, that at this stage it is not clear just how much of
the total expenditures would be attributed to these ineligible
categories. Petitioner relies on 49 U.S.C. s 40117(b)(1),

which restricts PFC funds to "eligible airport-related pro-
jects," and 49 U.S.C. s 40117(d)(1), which allows the FAA to
approve an airport's request "only if the [FAA] finds, based
on the application, that the proposed passenger facility fee
will result in revenue ... that is not more than the amount
necessary to finance the specific project" (emphasis added).
Petitioner accordingly argues that the FAA must definitively
prune any unauthorized expenditures at the time of its ap-
proval based on information provided in the application, not in
a subsequent decision based on further information.

Although the inference petitioner would draw as to the
statute's meaning is not by any means unreasonable, it is also
not inevitable. The language does not preclude the FAA's
interpretation--that the "finding" can be a conceptual one,
subject to subsequent proceedings to insure that the actual
costs are consistent with the conceptual boundaries. The
statute thus must be thought silent or ambiguous on the
precise issue before us, and we are obliged under Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842-43 (1984), to defer to the agency's interpreta-
tion if it is a permissible one. We see nothing in the
language, structure or legislative history to suggest that it
fails that test. Nor are the FAA's regulations inconsistent
with the decision; they authorize an airport agency "to apply
for authority to impose a PFC in advance of or concurrent
with an application to use PFC revenue," 14 C.F.R.
s 158.25(a) (emphasis added), provided that if the application
to impose is made in advance of the application to use, the
applicant must include, inter alia, a "description of alterna-
tive uses of the PFC revenue to ensure such revenue will be
used only on eligible projects in the event the proposed
project is not [ultimately] approved," id. at s 158.25(b)(14)(ii).
When the applicant is ready to use the PFC funds, he must
again obtain FAA approval. Id. at s 158.25(c)(2); see North-
west Airlines, Inc. v. FAA, 14 F.3d 64, 71 (D.C. Cir. 1994).
The FAA is consistent, therefore, in concluding that a concur-
rent application for collection and use, such as the one at
issue here, may also be approved subject to future assurance
that any ineligible elements will not be funded. When the

design is complete, the Port Authority must submit its
amended application for FAA approval as noted in the FAA's
decision. And the statute, see 49 U.S.C. s 40117(h)(2), and
regulations, see 14 C.F.R. ss 158.25(c)(2)(i); 158.27, indicate
that this revision process would include additional consulta-
tion with the airlines and a new round of notice and comment.
In sum, the FAA's interpretation passes muster.

Petitioner next contends that the FAA exceeded its statuto-
ry authority in approving the project because the Jamaica
component of the project does not qualify as an "airport"
facility. Section 47102(2)(A) defines airport as

(i) an area of land or water used or intended to be used
for the landing or taking off of aircraft;

(ii) an appurtenant area used or intended to be used for
airport buildings or other airport facilities or rights of
way; and

(iii) airport buildings and facilities located in any of those
areas.

49 U.S.C. s 47102(2)(A) (emphasis added).2 Petitioner ar-
gues that because the Port Authority does not currently own
the necessary rights-of-way to construct the Jamaica compo-
nent, that component cannot be thought part of the "airport."
The FAA acknowledged that the Port Authority does not yet
own those rights-of-way, but believed that for the purposes of
approving the application, the Port Authority's certification
that it would take ownership before use of PFC funds on that
component is adequate. Again the statute is silent as to
whether the airport authority must also own the rights-of-way
prior to the approval of the application. As with the FAA's
decision to approve the application subject to amended cost
data, we think it is a permissible interpretation under Chev-
ron for the FAA to approve the application on the assurance

__________
2 The statutory provision governing PFCs, 49 U.S.C.
s 40117(a)(1), defines "airport" by reference to the definition of
"airport" found in 49 U.S.C. s 47102. The parties appear to
assume that an eligible airport-related project must be on the
"airport" as defined under s 47102.

that the necessary rights-of-way will be acquired. Indeed, it
would be unreasonable, because likely unworkable, to require
airport authorities to expend large sums of money to acquire
tracts of land before a project was even partially approved.

Alternatively, petitioner contends that even if the Port
Authority did own the rights-of-way now, the Jamaica compo-
nent would still not meet the eligibility requirements. Peti-
tioner's reading of the statute is that "rights of way" is one
type of "an appurtenant area," 49 U.S.C. s 47102(2)(A)(ii),
which in turn modifies "an area ... used or intended to be
used for the landing or taking off of aircraft," id. at
s 47102(2)(A)(i), meaning that for a right-of-way to be "on-
airport," it must be attached to the landing area along its
entire length. As the Jamaica component of the light rail
system would only be attached to JFK airport at its terminus,
petitioner argues that this component does not fall within the
meaning of "airport." Petitioner would support its interpre-
tation by pointing to another part of the statute which notes
that terminal development costs are allowable for "moving
passengers ... within the airport," id. at s 47110(d)(1)(B)
(1994); see also id. at s 40117(a)(3)(B), from which petitioner
concludes that the entire right-of-way must be within the
airport. The FAA, on the other hand, not surprisingly reads
the statute as requiring only that the right-of-way be at-
tached to the airport landing area at some point, but not
necessarily along the entire length of the right-of-way. The
FAA responds to petitioner's emphasis on the words "within
the airport," id. s 47110(d)(1)(B), by pointing out that once
the Port Authority owns the right-of-way, that strip of land is
by definition airport-owned and therefore "within the air-
port." This interpretation is at least reasonable, and it is
consistent with the FAA's own regulations and past practice.
See, e.g., 56 Fed. Reg. 24,254, 24,258 (1991) (preamble to
current regulations, noting that "ground transportation pro-
jects are eligible if the public agency acquires the right-of-
way"); Applications to Use Passenger Facility Charge Reve-
nue, No. 98-03-U-00-EWR, et al., at 7 (November 6, 1996)
(FAA approval for use of PFC funds to construct a transit
link between an AMTRAK rail station and the Newark

International Airport monorail on to-be-acquired rights-of-
way).

Petitioner's citation to legislative history indicating that
"off-airport" uses of PFC revenue are prohibited begs the
question. The FAA has simply said that airport-owned
rights-of-way are not off-airport because they are within the
boundaries of the airport. Petitioner's reliance on the FAA's
interpretive guidelines for evaluating PFC-eligible projects,
moreover, is quite unpersuasive. Petitioner points to the
FAA's Airport Improvement Program Handbook3 describing
the eligibility criteria for "rapid transit facilities" and "access
roads" differently. It states that rapid transit facilities "lo-
cated within the airport boundary that are necessary to
provide a connection to a rapid transit system may be eligible
if they will primarily serve the airport," Airport Improvement
Program Handbook, FAA Order 5100.38A, at p 555 (Oct. 24,
1989) (emphasis added), whereas access roads "must be locat-
ed on the airport or within a right-of-way acquired by the
airport," id. at p 553(a)(2) (emphasis added). Petitioner thus
claims that rapid transit facilities using PFC funds such as
this light rail system cannot be constructed on rights-of-way.
But there is nothing in the Handbook or the statute or
regulations that indicates that airport-owned rights-of-way
are outside the "airport boundary," and the FAA is reason-
able in construing its own interpretive guidelines to mean
that rights-of-way are within the airport boundary. See
Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579,
584 (D.C. Cir. 1997) (citing Auer v. Robbins, 117 S. Ct. 905,
911 (1997)), cert. denied sub nom. Pollin v. Paralyzed Veter-
ans of Am., 118 S. Ct. 1184 (1998).

III.

Petitioner's procedural argument fares better. The statute
requires the FAA to "provide notice and an opportunity to air

__________
3 The type of "eligible airport-related project" at issue here, for
airport development, is defined by reference to 49 U.S.C.
s 47102(3), a provision of the Airport Improvement Program stat-
ute. See 49 U.S.C. s 40117(a)(3)(A).

carriers ... and other interested persons to comment on the
application." 49 U.S.C. s 40117(c)(3). This provision is simi-
lar to the notice and comment procedure for informal rule-
making under the Administrative Procedure Act, 5 U.S.C.
s 553 (1994). Here the airport's application is analogous to a
notice of proposed rulemaking.4 In the rulemaking context,
an agency's notice must "fairly apprise interested persons of
the 'subjects and issues' " involved in the rulemaking, Small
Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506,
547 (D.C. Cir. 1983) (quoting American Iron & Steel Inst. v.
EPA, 568 F.2d 284, 293 (3d Cir. 1977)), but even if the final
rule deviates from the proposed rule, "[s]o long as the final
rule promulgated by the agency is a 'logical outgrowth' of the
proposed rule[,] ... 'the purposes of notice and comment
have been adequately served' [and] we will find no procedural
violation," Appalachian Power Co. v. EPA, 135 F.3d 791, 804
n.22 (D.C. Cir. 1998) (quoting Fertilizer Inst. v. EPA, 935
F.2d 1303, 1311 (D.C. Cir. 1991)); see also National Black
Media Coalition v. FCC, 791 F.2d 1016, 1022 (2d Cir. 1986).

The government argues that the supplementary informa-
tion which the Port Authority provided similarly merely
clarified and expanded upon information in the application.
After all, an agency itself can rely on such supplemental data
not disclosed in a proposed rule. See Solite Corp. v. EPA,
952 F.2d 473, 485 (D.C. Cir. 1991) (no procedural error where
agency used supplementary data, not disclosed during the
notice and comment period, which expanded on and confirmed
information in the proposed rulemaking); Air Transp. Ass'n
of Am. v. CAB, 732 F.2d 219, 224 (D.C. Cir. 1984) (no
procedural error where agency relied on internal staff stud-
ies, not disclosed during the notice and comment period,

__________
4 Whereas the APA requires that a notice of proposed rulemak-
ing be published in the Federal Register, 5 U.S.C. s 553(b), the
PFC statute does not mandate a specific sort of notice or publica-
tion. The FAA's regulations provide for publication in the Federal
Register of a notice of a pending application, which includes a
summary description of the application, see 14 C.F.R. s 158.27(c)(2),
(e)(2), and require the applicant to make the application available,
upon request, to the public for inspection, see id. s 158.27(c)(3)(i).

where the methodology was disclosed and no major changes
in the final rule occurred). As has been often observed, an
agency engaged in informal rulemaking is not obliged to
consider only record evidence, see, e.g., Vermont Yankee
Nuclear Power Corp. v. NRDC, 435 U.S. 519, 547-48 (1978);
Association of Data Processing Service Organizations, Inc. v.
Board of Governors of the Federal Reserve System, 745 F.2d
677, 684-85 (D.C. Cir. 1984). But even in the informal
rulemaking context, we have cautioned that the most critical
factual material that is used to support the agency's position
on review must have been made public in the proceeding and
exposed to refutation. Association of Data Processing Serv.
Orgs., 745 F.2d at 677 (emphasis added). Still, the focus in
our rulemaking cases is primarily on whether the final rule
changes critically from the proposed rule rather than on
whether the agency relies on supporting material not publish-
ed for comment.5 The question is typically whether the
agency's final rule so departs from its proposed rule as to
constitute more surprise than notice. See Air Transp. Ass'n
of Am., 732 F.2d at 225 n.12.

Here, the application itself--including the submitted justi-
fication--is the analogy to the proposed rule. See 14 C.F.R.
s 158.25(b)(7) (requiring the application to include justifica-

__________
5 Petitioner suggests that the Port Authority's ex parte con-
tacts with the FAA per se rendered the decision unlawful. Al-
though we once held that an agency's receipt of ex parte informa-
tion in an informal rulemaking is itself a violation of law, see Home
Box Office, Inc. v. FCC, 567 F.2d 9, 57-58 (D.C. Cir. 1977), we have
since interpreted Home Box Office as applying only in the APA
informal rulemaking context, see Elcon Enterprises, Inc. v. Wash-
ington Metropolitan Area Transit Authority, 977 F.2d 1472, 1481
(D.C. Cir. 1992); but see United States Lines, Inc. v. FMC, 584
F.2d 519, 539-40 (D.C. Cir. 1978) (applying the reasoning of Home
Box Office in a quasi-adjudicatory proceeding). Home Box Office,
which was sharply limited by Sierra Club v. Costle, 657 F.2d 298,
401-02 (D.C. Cir. 1981), could be thought to be undermined by
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 546

tion for the project). So, the question in this case is whether
the supplemental material provided by the Port Authority ex
parte as justification for its application critically deviated
from the justification presented in the application itself.
There seems little doubt that the answer is yes because the
FAA itself said so; its own decision explained that but for the
new information it would have rejected the application:

In examining the Port Authority's application, the FAA
was concerned that the addition of 134,000 annual air
passengers ... in 2003 ... was not a sufficient basis for
an informed judgment that the $1.5 billion [light rail
system] project was adequately justified on the basis of
this measured effect on airport capacity or competition.
No other measured effect on airport capacity or competi-
tion was provided in the PFC application as submitted.6

Recall that the Port Authority's original application set forth
as the benefit of the expenditure an increase of JFK air
passengers of only 134,000 annually by 2003. And that was a
measure of how many passengers would be diverted from the
two other airports operated by the Port Authority. The
supplemental information--that a 3.35 million air passenger
capacity increase would be obtainable at JFK by 2013--is an
order of magnitude greater, and is a measure of something
entirely different--the light rail system's ability to increase
capacity at JFK (and possibly increase net capacity of all
three airports) by closing the gap between airside capacity
and landside capacity at JFK. The important point is that
because the transmission of this information--in effect a
fundamental amendment of the application--was never public,
petitioner did not have a fair opportunity to comment on it.
See Independent U.S. Tanker Owners Comm. v. Lewis, 690
F.2d 908, 926 (D.C. Cir. 1982) ("[W]here an agency's analytic
task begins rather than ends with a set of forecasts, sound
practice would seem to dictate disclosure of those forecasts so
that interested parties can comment upon the conclusions
properly to be drawn from them.").

__________
(1978). If ex parte material were to lead to an unanticipatable
change in the final rule, that would be, of course, objectionable.

6 Applications to Impose a Passenger Facility Charge, No.
97-04-C-00-EWR, et al. at 22 (Feb. 9, 1998).

Still, the FAA argues that any procedural error stemming
from its failure to provide adequate notice and an opportunity
to comment was harmless. See 5 U.S.C. s 706 (1994). The
FAA claims that petitioner was not prejudiced by the lack of
notice because petitioner did not rebut the Port Authority's
supplemental information. It is true that to show prejudice, a
"petitioner objecting to the ... late submission of documents
must indicate with 'reasonable specificity' what portions of the
documents it objects to and how it might have responded if
given the opportunity," Air Transport Association v. CAB,
732 F.2d 219, 224 n.11 (D.C. Cir. 1984) (quoting Small
Refiner, 705 F.2d at 540-41 (in turn quoting 42 U.S.C.
s 7607(d)(7)(B))). But here petitioner had no knowledge of
the new information until the final decision was made and had
no subsequent opportunity to provide comments.7 Compare
National Ass'n of Regulatory Utility Comm'rs v. FCC, 737
F.2d 1095, 1121 (D.C. Cir. 1984) (agency's failure to release
staff study in time for comments during an initial comment
period rendered harmless where agency subsequently allowed
interested parties ample opportunity to comment and where
agency addressed those comments in a reconsideration deci-
sion). Petitioner's reply brief does include the nature of its
objection to the Port Authority's supplemental information,
and it seems rather specific to us.

* * * *

As noted, petitioner also challenges the agency's decision as
arbitrary and capricious. See 5 U.S.C. s 706(2)(A). Petition-
er claims that the forecasted benefits are based on erroneous
assumptions; petitioner submits, for example, that the real
constraints on JFK's capacity derive not from limited ground
access, but rather from airline "slot" limitations. In other
words, air capacity limitations will be reached long prior to
any ground capacity constraints. We think it appropriate, in

__________
7 The FAA counters that petitioner could have sought reconsid-
eration to rebut the FAA's conclusions. But the regulations rele-
vant here make no provision for reconsideration. Cf. Darby v.
Cisneros, 509 U.S. 137, 146 (1993).

light of the necessity to remand this proceeding to allow the
airlines adequate opportunity to comment on the application,
that we not decide this issue on the artificially restricted
record before us. By the same token, we defer dealing with
petitioner's claims that the FAA did not adequately weigh the
costs of this project against the benefits. We do think it
appropriate now to definitively reject petitioner's assertion
that any such process is governed by Executive Order No.
12,893, 59 Fed. Reg. 4233 (1994), which requires a "systematic
analysis of expected benefits and costs," id. s 2(a), for infra-
structure investments of federal agencies. Section 7 of the
Order (not reproduced in petitioner's brief) provides that it is
"intended only to improve the internal management of the
executive branch and does not create any right ... enforce-
able against the United States." As such, this Executive
Order is not subject to judicial review. See Meyer v. Bush,
981 F.2d 1288, 1296 n.8 (D.C. Cir. 1993) (citing cases). Al-
though petitioner indicated that it does not seek to assert
rights under the order but is merely referencing it to provide
evidence of the arbitrary and capricious nature of the FAA's
decision, such an argument is nothing more than an indi-
rect--and impermissible--attempt to enforce private rights
under the order.

Petitioner also claims to find support for its argument that
the FAA must conduct a cost/benefit analysis from an interim
FAA policy guidance that requires cost/benefit analysis for
certain grants under the Airport Improvement Program
(AIP). See 62 Fed. Reg. 34,108, 34,109 (June 24, 1997).
Petitioner thinks that the PFC statute "incorporates" the AIP
statute, 49 U.S.C. ss 47101-47131, so PFC funds should be
treated like AIP funds. To be sure, the PFC statute defines
"eligible airport-related project" as, inter alia, a project "for
airport development or airport planning under subchapter I
of Chapter 471 of this title [Airport Improvement Program
Statute]," which means that PFC funded projects must meet
the same definition for "airport development or airport plan-
ning" as do projects funded by AIP monies, see 49 U.S.C.
s 47102(3), (5). But it is only those definitions that are
incorporated from the AIP statute into the PFC statute, not

the provision of the AIP statute setting forth the standards
for approval of an AIP discretionary fund project (or any
other provision of the AIP statute for that matter). The
interim policy guidance mandating cost/benefit analysis for
AIP projects specifically cites that discretionary fund provi-
sion as its authorizing statute, see 62 Fed. Reg. at 34109, and
so it is clear that this interim policy guidance has no bearing
on the PFC statute.

* * * *

Accordingly, we grant the petition for review, vacate the
FAA's decision, and remand the case to the FAA for further
proceedings not inconsistent with this opinion.

So ordered.