On May 17, 2012, FAA published in the Federal Register a “Notice of Proposed Rulemaking (NPRM); Reopening of Comment Period” for “Rules of Practice for Federally Assisted Airport Enforcement Proceedings (Retrospective Regulatory Review)” first published in March, 2012.  In plain language, FAA is making substantial changes to the procedures for bringing a challenge to airports’ compliance with FAA grant assurances under 14 C.F.R. Part 16.  “Grant assurances” are those commitments made by airport sponsors in return for receipt of federal funding of airport projects, as required by 49 U.S.C. § 47107.  Any changes in the procedures for enforcing grant assurances are of significant interest not only to the airports, which may benefit from a relaxation in the procedures for challenging their actions, but also to airport users, such as fixed-base operators (“FBO”), airlines, and other airport related businesses.  The proposed changes are broad in scope and purportedly made for the purpose of, among other things, becoming consistent with the Federal Rules of Civil Procedure. 

The changes include, but are not limited to: (1) changes to 14 C.F.R. Part 16.26 to allow motions for summary judgment or dismissal to be filed by the airport before the date for its formal answer to the Part 16 complaint in order to eliminate duplication of effort in answering the complaint and challenging its legal adequacy at the same time; (2) termination of complainant’s standing to appeal pursuant to 14 C.F.R. Part 16.109, where FAA has already found the airport noncompliant thus achieving the complainant’s initial objective; (3) clarification of the requirement in Part 16.207 for a written motion to intervene by a party in any proceeding, and broadening of the current standard for intervention, which now requires a property or financial interest “that may not be adequately addressed by the parties,” with a less restrictive standard, i.e., “if the person has an interest that will benefit the proceedings;” (4) addition of new sections 16.33(e) and (f) and 16.245(e) and (f) to limit the grounds for appeal to issues that were before the court in the underlying action; and (5) addition of a new requirement in proposed section 215(e) that would allow deposition of FAA employees only “with the specific written permission of the Chief Counsel.” 

Of the major proposed changes, the last appears most questionable from a due process perspective.  As parties are entitled to obtain a broad range of information from FAA, including technical information, through the Freedom of Information Act, there does not appear to be any reason for the change, other than FAA’s alleged concern that, by deposing agency officials, parties are obtaining technical information they might otherwise have to obtain through expert witnesses.  As FAA officials are often the closest observers and most knowledgeable parties about the controlling regulation and grant assurances, as well as observance of them or lack thereof at a particular airport, it seems contrary to normal judicial procedure, as well as government’s obligations under the Constitution to provide a fair hearing, to require approval of FAA employees’ testimony by the FAA, the adjudicating agency. 

The comment period which officially ended May 4, 2012, is now extended to June 7, 2012.