The Right to Self-Fuel (2009)

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3 THE RIGHT TO SELF-FUEL By C. Daniel Prather Prather Airport Solutions, Inc. I. INTRODUCTION The primary objective of this report is to inform aviation attorneys and other aviation personnel pre- cisely how federal and local guidelines pertaining to self-fueling have been applied under different circum- stances. This report will provide readers with a broad- based understanding regarding the Federal Aviation Administration’s (FAA’s) position on self-fueling at fed- erally-obligated airports. There is a need for aviation attorneys and aviation personnel alike to possess a broad-based understanding of the legal issues involved with the development and implementation of rules or regulations that restrict an aircraft owner’s right to “self-service.” In addition, the airport sponsor is obliged to balance the aircraft owner’s right to self-serve against the requirement to effectively control activities that may affect the safe and efficient operation of the airport and the civil aviation needs of the public. This report contains an expansive compila- tion and interpretation of related source documents including FAA administrative decisions, advisory circu- lars (ACs), and grant assurances necessary to inform concerned parties of the need to develop rules and regu- lations, as well as enforcement proceedings relating to self-fueling. However, it is important to note that the final interpretation of the United States Code, federal grant assurances, and FAA policy is ultimately the re- sponsibility of the FAA. The FAA evaluates the reason- ableness of any particular rule in the context of the cir- cumstances surrounding the imposition of the rule. Therefore, the development of rules, regulations, and policies to control self-fueling activities should be done on an airport-specific basis. The Right to Self-Fuel section will serve as a primer to introduce readers to the topic of self-fueling, as well as to the basic information vital to understanding the methodology used in determining compliance with fed- eral grant assurances. This report should provide read- ers with an understanding of how to proceed with the development of rules and regulations to effectively con- trol self-fueling activity by providing a list of non- airport-specific requirements that have been deter- mined to be in compliance with FAA policy. This section provides an in-depth discussion of topics such as secu- rity, environmental concerns, insurance requirements, exclusive rights violations, economic nondiscrimination, and the overall safe and efficient operation of the air- port. Definitions of the terms used throughout this re- port and in FAA opinions can be found in Appendix A. Appendix B summarizes significant federal grant as- surances, and AC 150/5190-6, Exclusive Rights at Fed- erally-Obligated Airports, is contained in Appendix C. Appendix D contains an index and abstracts of direc- tor’s determinations and final agency decisions, under FAA’s administrative procedures, that resolve self- fueling cases. These abstracts provide extensive insight on how particular cases have been decided. II. THE RIGHT TO SELF-FUEL A. Aircraft Owner/Operator’s Right to Self-Fuel The FAA defines self-fueling as “the fueling or ser- vicing of an aircraft…by the owner (or operator)1 of the aircraft with his or her own employees and using his or her own equipment.”2 The right to perform such ser- vices is protected at all airports in which an airport sponsor has entered into a grant agreement with the FAA (binding the sponsor to all federal airport obliga- tions). It is important to distinguish self-fueling from commercial self-service, which is defined by the FAA as “a fueling concept that enables a pilot to fuel an aircraft from a commercial fuel pump installed for that purpose by a fixed-base operator (FBO) or the airport sponsor.”3 Perhaps the most clear and concise statement re- garding the aircraft owner/operator right to self-fuel can be found in FAA AC 150/5190-6, which states the following: 2. Restrictions on Self-Service. An aircraft owner or op- erator may tie down, adjust, repair, refuel, clean, and otherwise service his/her own aircraft, provided the ser- vice is performed by the aircraft owner/operator or his/her employees with resources supplied by the aircraft owner/operator. Moreover, the service must be conducted in accordance with reasonable rules, regulations or stan- dards established by the airport sponsor. Any unreason- able restriction imposed on the owners or operators of air- craft regarding the servicing of their own aircraft may be construed as an exclusive rights violation.4 This provision describes additional circumstances under which the airport sponsor can restrict the right to self-fuel. These reasons center on airport safety and efficiency. Most of the controversy in this area focuses 1 The definitions in Appendix 1 of Advisory Circular (AC) 150/5190-6 refer only to the owner; however, the text in AC 150/5190-6 § 1.3(a)(2) refers to the “owner or operator” when referencing self-service rights. 2 AC 150/5190-6 App. 1.1(o). 3 AC 150/5190-6 App. 1.1(e). 4 AC 150/5190-6 § 1.3(a)(2), Jan. 2007. See also Grant As- surance 23, App. C.

4 on whether the sponsor has appropriately denied an owner/operator’s specific proposal for self-fueling. B. Airport Owner Rights and Responsibilities Grant Assurance 5, Preserving Rights and Powers, in pertinent part, requires of an airport sponsor that has entered into a grant agreement with the FAA the following: It will not take or permit any action which would operate to deprive it of any of the rights and powers necessary to perform any or all of the terms, conditions, and assur- ances in the grant agreement without the written ap- proval of the Secretary, and will act promptly to acquire, extinguish, or modify any outstanding rights claims or claims of right of others which would interfere with such performance by the sponsor.5 The right of an owner/operator to self-fuel under the rights of self-service has the potential, under many cir- cumstances, to interfere with the performance of other airport obligations. It is the responsibility of the airport sponsor to establish policies, rules, and regulations nec- essary to control any self-fueling activity in a manner conducive with preserving the public interest of aero- nautical users as well as the investment of federal funds. FAA Order 5190-6A, Airport Compliance Re- quirements,6 discusses the provisions within Grant As- surance 5 concerning the responsibilities of airport sponsors operating public-use airports that have been developed with federal assistance. One of these obliga- tions that is highly relevant to the analysis of any regu- lation or restriction of self-fueling activity is Grant As- surance 19, Operation and Maintenance, which requires, in pertinent part, the following: The airport and all facilities that are necessary to serve the aeronautical users of the airport, other than facilities owned or controlled by the United States, shall be oper- ated at all times in a safe and serviceable condition and in accordance with the minimum standards as may be re- quired or prescribed by applicable federal state and local agencies for maintenance and operation. The Airport Improvement Program (AIP)7 allows for the development of public-use airports with federal funds. Upon acceptance of federal funds from the AIP, the airport sponsor must agree to the federal grant as- surances in accordance with Title 49 U.S.C. § 47107, et seq., which results in a binding contractual agreement between the federal government and the airport spon- sor. The grant agreement, including the grant assur- ances, spells out requirements for carrying out AIP- grant-funded projects and for operating the airport. 5 Grant Assurance 5(a). 6 FAA Airport Compliance Requirements, Order 5190/6A, Oct. 1, 1989. 7 Tit. 49 U.S.C. § 47101, et seq. C. Agency’s Policy Concerning the Granting of Exclusive-Rights Leases and Permits AC 150/5190-68 contains guidance concerning the po- sition of the FAA on the existence of exclusive rights at federally-obligated airports. The AC on exclusive rights contains a broad and generalized overview of the many issues involved with self-fueling and, in pertinent part, the contractual grant obligations assumed by the opera- tors of public-use airports. However, it is important to understand that ACs are not controlling in regards to airport compliance. Rather, they are strict recommen- dations, and any determination concerning the techni- cal aspects of self-fueling would be decided on an air- port-specific basis. In Lanier Aviation v. Gainesville, GA,9 the Director stated, “Advisory Circular AC 150/5190-5 does not impose obligations on a sponsor separate from those imposed by the assurances and federal law….”10 In accordance with the Airport and Airway Im- provement Act of 198211 and the FAA, the owner or operator of any airport that has been devel- oped or improved with federal grant assistance is re- quired to operate the airport for the use and benefit of the public and to make it available for all types, kinds, and classes of aeronautical activity and without granting an exclusive right.”12 The aircraft owner’s right to self-fuel (tie down, re- pair, adjust, wash, and otherwise service) his or her own aircraft is one of the many self-service activities that is afforded to an aircraft owner or operator pro- tected under Grant Assurance 22, Economic Nondis- crimination. However, this right is subject to the au- thority of the airport sponsor to establish reasonable and not unjustly discriminatory conditions as may be necessary to assure the safe and efficient operation of the airport.13 Grant Assurance 23, Exclusive Rights, states in per- tinent part: It will permit no exclusive right for the use of the airport by any person providing, or intending to provide, aero- nautical services to the public…. It further states that it will not, either directly or indirectly, grant or permit any person, firm, or corporation, the exclusive right at the airport to conduct any aeronautical activities includ- ing…(the) sale of aviation petroleum products. In accordance with the FAA, “any unreasonable re- striction imposed on the owners or operators of aircraft regarding the servicing of their own aircraft may be construed as an exclusive rights violation.”14 The Direc- 8 App. C. 9 Director’s Determination, FAA Docket No. 16-05-03, DOT Docket No. FAA 2005-22367 (Nov. 25, 2005). 10 Id. at 11. 11 97 Pub. L. No. 248, 96 Stat. 324. 12 AC 150/5190-6 § (4). 13 Grant Assurance 22 § (h). 14 AC 150/5190-6 § 1.3(a)(2).

5 tor stated in Scott v. DuPage,15 “[W]e have taken the position that the application of any unreasonable re- quirement or any standard that is applied in an un- justly discriminatory manner may constitute the con- structive grant of an exclusive right to the entity or entities not subject to the same requirements or stan- dards.” 16 Exclusive rights can be manifested in several different ways. They can exist through unreasonable minimum standards, rules and regulations, or lease agreements, as well as written or oral contracts that contain the intentions of the involved parties, known as “express agreements.” If any of the aforementioned re- sults in channeling self-service activities to a commer- cial aeronautical service provider, the airport sponsor may be in violation of Grant Assurance 23 regardless of the airport sponsor’s intent.17 D. Exclusive Rights Violations and Exceptions to the Policy Pursuant to 49 U.S.C. § 40103(e), “A person does not have an exclusive right to use an air navigation facility (this includes airports) on which government money has been expended.” This statutory requirement is parallel to the grant assurance requirement of 49 U.S.C. § 47107(a)(4), which provides an exception to the exclu- sive rights policy if both of the following apply: (1) It would be unreasonably costly, burdensome, or im- practical for more than one fixed-based operator to pro- vide such services, and…and, (2) If allowing more than one fixed-based operator to provide such services would require the reduction of space leased pursuant to an ex- isting agreement between such single fixed-based opera- tor and such airport. 18 There are a few other exceptions to the prohibition on exclusive rights at federally-obligated airports. There are occasions when the revenue potential from a proposed aeronautical service is sufficient to make the sponsoring airport more financially self-sustaining. In these cases, airport sponsors may exercise, but not grant, an exclusive right to provide any or all of the aeronautical services (including the sale of aviation petroleum products), using its own employees and re- sources.19 Essentially, the airport itself may exercise an exclusive right for the benefit of the airport, but it may not grant that right to another user (usually an FBO). However, if an airport sponsor chooses to provide such aeronautical services exclusively, the aeronautical users 15 Director’s Determination, FAA Docket No. 16-00-19, 2002 FAA LEXIS 398, 2002 WL 31429252 (July 19, 2002). 16 Id. at 14. 17 See also Pompano Beach v. FAA, 774 F.2d 1529 (1985), unsuccessful challenge to FAA’s finding against the granting of exclusive rights as a violation of the Federal Aviation Act of 1956 (49 U.S.C.S. App. § 1349(a)). 18 Grant Assurance 23 § (a)(b). Grant Assurance 23 is avail- able in its entirety in App. B. 19 AC 150/5190-6 § 1.3(a)(2). may still choose to exercise their right to self-service, which includes self-fueling.20 Also, if an airport sponsor exercises its right to pro- vide any or all of the aeronautical services at the air- port in an effort to become more financially self- sustaining, the airport can restrict in full or in part any services of an independent FBO that it chooses to per- form exclusively. However, the airport sponsor cannot choose to allow certain FBOs the opportunity to provide a service while excluding others from offering competi- tive services. Furthermore, any limitation or prohibi- tion of service must be applied uniformly to all aeronau- tical service providers.21 E. Agency's Policy Concerning Economic Nondiscrimination (Grant Assurance 22) Grant Assurance 22, Economic Nondiscrimination, requires, in pertinent part, that the owner or sponsor of a federally-obligated airport: • Will make the airport available as an airport for public use on reasonable terms and without unjust dis- crimination to all types, kinds, and classes of aeronauti- cal activities (this includes the act of self-fueling), in- cluding commercial aeronautical activities offering services to the public at the airport. [Assurance 22(a)]. • Shall provide that each air carrier using such air- port shall have the right to service itself or to use any fixed-base operator that is authorized or permitted by the airport to serve any air carrier at such airport. [As- surance 22(d)]. • Will not exercise or grant any right or privilege that operates to prevent any person, firm, or corpora- tion operating aircraft on the airport from performing any services on its own aircraft with its own employees [including but not limited to maintenance, repair, and fueling] that it may choose to perform. [Assurance 22(f)]. • May establish such reasonable, and not unjustly discriminatory, conditions to be met by all users of the airport as may be necessary for the safe and efficient operation of the airport. [Assurance 22(h)]. • May prohibit or limit any given type, kind, or class of aeronautical use of the airport if such action is neces- sary for the safe operation of the airport or necessary to serve the civil aviation needs of the public. [Assurance 22(i)]. Subsection (i) represents an exception to subsection (a) to allow the airport owner or sponsor to exercise the necessary discretion required to eliminate conditions that would be deemed unsafe or inefficient or would be injurious to the civil aviation needs of the public aero- nautical users. This indicates that an airport sponsor is 20 The position of the FAA concerning the existence of exclu- sive rights as it relates to single activity is discussed in detail within AC 150/5190-6 § [b.(1)(2)(3)(4)], as well as Grant Assur- ance 23, which contains similar language. 21 Grant Assurances 22 and 23.

6 under no obligation to allow airport tenants to dictate any one preferred method for conducting self-fueling. Rather, an airport sponsor is only obligated to provide an opportunity for self-fueling in a manner that is in the best interest of the public users, not unjustly dis- criminatory, and without creating an exclusive right.22 In Monaco Coach Corp. v. Eugene Airport, the Direc- tor states: The Order describes the responsibilities under Assurance 22 assumed by the owners of public use airports devel- oped with Federal assistance. Among these is the obliga- tion to treat in a uniform manner those users making the same or similar use of the airport and to make all airport facilities and services available on reasonable terms without unjust discrimination. [Order, Secs. 4-14(a)(2) and 3-1]. The FAA considers it inappropriate to provide Federal assistance for improvements to airports where the benefits of such improvements will not be fully real- ized due to inherent restrictions on aeronautical activi- ties. [Order Sec. 3-8(a)].23 As applied to the right to self-fueling, the grant as- surances require any rules or regulations on self-fueling to be applied on a uniform basis. Additionally: In all cases involving restrictions on airport use imposed by airport owners for safety and efficiency reasons, the FAA will make the final determination on the reason- ableness of such restrictions when those restrictions deny or limit access to, or use of, the airport. [FAA Order, Sec. 4-8]. … In regard to self-fueling, the Order states that aircraft owners should be permitted to fuel and otherwise take care of their own aircraft. [Order, Sec. 3-9(e)(1)]. How- ever, an airport owner is under no obligation to permit aircraft owners to introduce on the airport practices that would be unsafe, unsightly, detrimental to the public wel- fare or that would affect the efficient use of airport facili- ties. [Order, Sec. 3-9(e)(3)] [].24 F. Minimum Standards, Rules, Regulations, and Lease Agreements Airports generally use minimum standards to con- trol commercial activity on the airfield. But if an air- craft owner or operator is fueling his or her aircraft using his or her own employees and equipment, this act is considered to be self-fueling.25 Self-fueling is not con- sidered to be commercial activity.26 The FAA recom- mends that all noncommercial activities be controlled 22 Monaco Coach Corp. v. Eugene Airport, Final Agency De- cision (FAD), FAA Docket No. 16-03-17, DOT Docket No. FAA- 2004-17366, 2005 FAA LEXIS 195, 2005 WL 82555 (Mar. 4, 2005), at 18; Airborne Flying Serv. Inc. v. City of Hot Springs, Ark., Director’ Determination, FAA Docket No. 16-07-06, DOT Docket No. FAA-2008-0189 (Dec. 18, 2007), at 18; Federal Grant Assurance 22 is available in its entirety in App. B. 23 Monaco, FAD 16-03-17, at 9. 24 Id. 25 AC 150/5190-6 § 1.3(a)(2). 26 AC 150/5190-7 § 1.3(c). by separate documentation such as rules and regula- tions or by using specific language within lease agree- ments.27 However, it is noted that the term “minimum standards” is often referred to in a generic sense by airports to include any regulatory documents. G. Restrictions and Requirements on Self-Service Airport sponsors should not, under any circum- stances, impose restrictions that serve to prevent a spe- cific aircraft from fueling at the airport. Rather, the airport sponsor should control such activity through rules and regulations or through specific language within lease agreements. Any and all controls placed on self-fueling should be applied in a uniform manner to all aeronautical users of the airport so as not to create economic discrimination and violation of Grant Assur- ance 22. Furthermore, the controlling of any such activ- ity must be done without directly or constructively granting an exclusive right to any aeronautical service provider.28 An airport sponsor is so obligated by Grant Assurance 23 (Exclusive Rights), as interpreted by the FAA in AC 150/5190-6, which provides that, “[A]ny un- reasonable restriction imposed on the owners or opera- tors of aircraft regarding the servicing of their own air- craft may be construed as an exclusive rights violation.”29 The primary obligation of the airport sponsor is to ensure the welfare of its collective aeronautical users and to protect the investment of federal funds. A spon- sor is, therefore, under no obligation to consider any preferred method of self-fueling or level of service to accommodate the interest of a specific aeronautical user. Rather, the airport is responsible for providing an opportunity for self-fueling conducive with protecting the collective interest of its aeronautical users, includ- ing the safe and efficient operation of the airport.30 1. Advisory Circular Guidelines The FAA has published general guidelines for impos- ing restrictions on self-service within AC 150/5190-6 as not to infringe on aircraft owner operator rights estab- lished within the Federal Grant Assurances (Assur- ances 22 and 23). These guidelines are listed as follows: • An airport sponsor may not prevent an owner or operator of an aircraft from performing services on his/her own aircraft with his/her own employees and equipment. Restrictions imposed by an airport sponsor that have the effect of channeling self-service activities to a commercial aeronautical service provider may be an exclusive rights violation; • An airport sponsor must reasonably provide for self-servicing activity, but is not obligated to lease air- port facilities and land for such activity. That is, the 27 AC 150/5190-7 § 1.3(c). 28 Grant Assurance 23. 29 AC 150/5190-6 § 1.3(a)(2). 30 Grant Assurance 22(h).

7 airport sponsor is not required to encumber the airport with leases and facilities for self-servicing activity; and • An airport sponsor is under no obligation to permit aircraft owners or operators to introduce equipment, personnel, or practices on the airport that would be un- safe, unsightly, or detrimental to the public welfare or that would affect the efficient use of airport facilities by the public.31 2. Restrictions Upheld by Case Precedent The following is a list of general requirements im- posed by airport sponsors on self-fueling operations that the FAA has determined to be reasonable.32 • Proof of ownership of the aircraft being fueled. • Proof of ownership of the fuel truck being used to transport fuel. • Requirement that the fuel truck being used be equipped with a certified meter used to measure gallons pumped. • Requirement that all fuel trucks be licensed with the Department of Transportation. • A plan (complying with all federal, state, and local regulations) for the containment of any spills. • All licenses and permits required by federal, state, or local governments for the transportation of fuel must be secured and kept current; copies of all required cer- tificates, permits, or licenses shall be submitted to the airport sponsor. • Insurance coverage in the amount necessary to adequately protect the airport sponsor from any and all environmental damages incurred as a result of self- fueling operations. • Insurance coverage for any vehicle involved in self- fueling in an amount necessary to adequately protect the airport sponsor from damages incurred as a result of the vehicles used in self-fueling operations. • A deposit or bond in the amount necessary to cover the deductible of the environmental and vehicle insur- ance to be held by the airport sponsor. • A daily log illustrating the quantity of fuel pumped by individual aircraft. • Notification to the airport sponsor prior to the self- fueling operation, to allow the airport the opportunity to observe before and after readings on the flow meter.33 It may be necessary for an airport sponsor to estab- lish further requirements or restrictions to adequately provide for the safe and efficient operation of the air- port and the protection of public interest. 31 AC 150/5190-6 § (a)(2)(1-3). 32 See Scott Aviation, Inc. v. DuPage Airport Auth., Direc- tor’s Determination, FAA Docket No. 16-00-19, 2002 FAA LEXIS 398, 2002 WL 31429252 (July 19, 2002). 33 Id. at 8–9. 3. FAA Involvement It is vital to note that the development of rules, regu- lations, and policies necessary to control self-fueling activity should be airport-specific. It is advisable for an airport sponsor to consult with the FAA before attempt- ing to directly apply the rules, regulations, or policies of precedent involving another airport to the sponsor’s airport. 4. Fuel Storage Tanks and Environmental Contamination There are many additional circumstances under which it would be prudent for an airport sponsor to im- pose restrictions on self-fueling activity. These include situations in which the introduction of “equipment, per- sonnel, or practices, on the airport would be unsafe, unsightly, or detrimental to the public welfare or that would affect the efficient use of airport facilities by the public.”34 There are cases in which an airport tenant has proposed the installation of fuel storage tanks on pri- vate leaseholds for the purposes of self-fueling. The in- stallation of private fuel farms is subject to the imposi- tion of restrictions by the airport sponsor on several grounds. If the fuel storage tanks are below ground, the airport sponsor should carefully examine environmental concerns. Environmental contamination resulting from underground fuel storage tanks remains a central con- cern for all airport managers today. The removal of pe- troleum contaminants from soil and groundwater can result in a tremendous financial burden for the airport sponsor. Contracts alone have largely proven ineffective in insuring that an airport tenant is the solvent respon- sible party for the environmental contamination caused by fueling activity. In many instances, airport tenants have filed bankruptcy, leaving the entire cost of cleanup to the airport as the only solvent responsible party. Furthermore, even if the tenant covers the cleanup cost, the removal of contaminants unavoidably involves air- port resources and staff, resulting in a reduction of effi- ciency and the welfare of the airport’s aeronautical us- ers.35 If the proposed fuel storage tanks are to be above ground, the airport sponsor must reasonably determine and assess all safety concerns, especially if the proposed location is at or near aircraft movement areas. The air- port sponsor must also consider that the implementa- tion of private fuel farms would require an inspection and monitoring program and, in many circumstances, additional personnel. All of these requirements could be financially burdensome to the airport.36 34 AC 150/5190-6 § 1.3(a)2(3). 35 See, e.g., Monaco Coach Corp. v Eugene Airport, Director’s Determination, FAA Docket No. 16-03-17, DOT Docket No. FAA-2004-17366 (July 27, 2004), at 7; aff’d by Final Agency Decision dated Mar. 4, 2005, 2005 WL 825551. 36 Id. at 8.

8 5. Reasonable Opportunity for Self-Fueling The airport sponsor may reasonably restrict self- fueling activities in a way commensurate with protect- ing the public interest. In the case of Monaco Coach Corporation v. Eugene Airport and the City of Eugene, Oregon,37 Monaco Coach Corporation (complainant) was denied its request to install an aircraft hangar fueling station. Eugene Airport (respondent) contended that the proliferation of private fuel storage facilities would affect the safe and efficient operation of the airport. The airport offered an alternate proposal involving the con- struction of a fueling area within the vicinity of the ex- isting centralized fuel farm, fulfilling their obligation to provide an opportunity for self-fueling. 6. Airport Layout Plan Restrictions Eugene Airport also argued that the installation of private fuel farms was not part of the approved Airport Layout Plan (ALP). Grant Assurance 29 requires that all airports have an ALP illustrating all current facili- ties and future development plans that will be approved by the FAA before any federal funding is granted for airport improvements. Any airport sponsor desiring an improvement, modification, or construction contradic- tory to the approved ALP would require a revision and approval of the current ALP by the FAA. The Director’s Determination stated: An airport operator does have limited proprietary powers to impose reasonable and non-discriminatory restrictions on the use of an airport…. One element of this proprie- tary power is to plan and develop the airport. The segre- gation of airport users and support facilities (fuel farms) by function is a reasonable and relevant means of devel- oping a consistent plan for the growth and development of the airport.38 The Director further states, “Since the Complainant’s [Monaco Coach Corp.] proposal does not conform to the City’s plan for the development of the Airport, the City has no further obligation to review it.”39 7. Obligation to Regulate It is essential for all parties concerned with self- fueling activities to understand that an airport sponsor is obligated to reasonably restrict all aeronautical ac- tivities (including self-fueling) that pose a threat to the public interest and the investment of federal funds. It would be advisable for all airports to be proactive in their efforts to establish a self-fueling program (includ- ing the adoption and enforcement of rules, regulations, and policies) to maintain compliance with federal obli- gations. However, it would not be appropriate for an airport sponsor to rely purely on an AC as a means of denying aeronautical activity, and any attempt to do so 37 Director’s Determination, Docket No. 16-03-17, DOT Docket No. FAA-2004-17366, 2004 WL 3198205 (July 27, 2004). 38 Id. at 20. 39 Id. could render the airport noncompliant with FAA policy. But any party preparing a complaint regarding airport standards for compliance must fully understand the method in which the FAA determines an airport spon- sor's compliance with its federal obligations: It is the FAA’s position that the airport owner meets commitments when: (a) the obligations are fully under- stood, (b) a program (preventive maintenance, leasing policies, operating regulations, etc.) is in place, which in the FAA’s judgment is adequate to reasonably carry out these commitments, and (c) the owner satisfactorily demonstrates that such a program is being carried out. [FAA Order 5190.6A, Sec. 5-6(a)(2)].40 8. Issues of Noncompliance In the case of Cedarhurst Air Charter, Inc. v. County of Waukesha, Wisconsin,41 the airport sponsor (County of Waukesha) did not have any formal rules, regula- tions, or policies in place regarding self-fueling opera- tions. Cedarhurst issued a request to perform self- fueling, which was indefinitely tabled by the sponsor. On September 30, 1999, Cedarhurst filed with the FAA a formal complaint against the county pursuant to the Rules of Practice under 14 C.F.R. Part 16. On April 6, 2000, the FAA issued a Director’s Determination find- ing the County of Waukesha in violation of Grant As- surances 22 and 23. The Director stated in his Deter- mination: [T]he Sponsor's actions and lack of action over several years in this matter effectively have prevented tenants or potential tenants, including the Complainant, from mak- ing reasonable judgments about the appropriate proce- dures to exercise and equipment to purchase, in order to conduct safe and efficient self-fueling on the Airport; and the Respondent’s (Waukesha) vague and unreliable posi- tion regarding self-fueling, in itself, constitutes the exer- cise of a privilege (to set policy on the safe and efficient use of the Airport) which operates to prevent self-fueling at the Airport. 42 Cedarhurst clearly illustrates the importance of estab- lishing programs (airport rules, regulations, minimum standards, express agreements) necessary to allow safe and efficient self-fueling at the airport. The develop- ment of any such programs should be handled by ex- perienced personnel with the necessary expertise or under close contact with the FAA Airport District Office having jurisdiction over the airport involved.43 40 Ashton v. City of Concord, N.C., Director’s Determination, FAA Docket No. 16-99-09, 2000 FAA LEXIS 150, 2000 WL 132770 (Jan. 28, 2000), at 26. (Ashton filed a complaint against the City of Concord, sponsor of the Concord Regional Airport, alleging that the city, in operating the airport, engaged in ac- tivity contrary to its federal obligations. 41 Director’s Determination, FAA Docket No. 16-99-14, 2000 FAA LEXIS 751, 2000 WL 1130495 (Apr. 6, 2000): aff’d, Final Decision and Order dated Aug. 7, 2000, 2000 FAA LEXIS 806, 2000 WL 1642462. 42 Id. at 16. 43 All contact information for the FAA regional and district offices is located at the FAA Web site, http://www.faa.gov.

9 H. Aircraft Owner/Operator Rights Regarding Self-Fueling For many purposes, the right of an aircraft owner to self-service (which includes self-fueling) has been ex- tended to operators by the FAA. The term “owner/operator” allows for the owner’s right to self- fuel, and otherwise service his or her own aircraft using his or her own employees, to be extended to the opera- tor. The operator would include, but may not be limited to, airlines, charter companies, flight schools, and flying clubs that possess owner-like powers by demonstrating complete operational control, exclusive use of the air- craft, and long-term lease of the aircraft. It is unclear if the FAA uses additional criteria in determining whether a particular operator possesses owner-like powers. However, it is clear that the FAA is required by the statutory provision implemented by Grant Assur- ances 22(d) and (f) to consider an operator’s right to self-service. Each air carrier using the airport shall have the right to service itself or the use of an FBO that is authorized or permitted by the airport to serve any air carrier at such airport.44 This frequently occurs with airlines who do not own, but rather lease, aircraft un- der terms that result in the airline (operator) having owner-like powers.45 The FAA has not issued any formal methodology for determining if a specific operator would possess owner-like powers for the purposes of the right to self-fuel; however, AC 150/5190-6 does offer the general criteria that must be satisfied. Airlines, charter companies, flight schools, and flying clubs may possess owner-like powers without owning the aircraft operated if they meet the following conditions: • Complete operational control. • Exclusive use of the aircraft. • Aircraft leased under long-term contract.46 In any case, concerned parties are advised by the FAA to contact their local Airport District Office if there is any doubt concerning the rights of a particular operator in regards to performing self-fueling. The question of whether an operator has the right to self-fuel is also discussed within the language of Grant Assurance 22, Economic Nondiscrimination. An airport sponsor “will not exercise or grant any right or privilege which operates to prevent any person, firm, or corpora- tion operating aircraft on the airport from performing any services on its own aircraft with its own employees [including, but not limited to maintenance, repair, and fueling] that it may choose to perform.”47 It would be necessary for any party preparing a complaint regard- ing the violation of Grant Assurance 22(f) to provide evidence verifying which of the vehicles to be self-fueled 44 49 U.S.C. § 47107(a)(6), Grant Assurance 22(d), See AmAv v. Md. Aviation Admin., Docket No. 16-05-12, at 10. 45 AC 150/5190-6 (n.8). 46 AC 150/5190-6, at 4 (footnote). 47 Assurance 22(f). are owned and which it merely operates. In the case of AmAv, Inc. v. Maryland Aviation Administration,48 such a complaint was filed with the FAA. AmAv is a Part 135 air charter service49 that operates several business jets, as well as several turboprop aircraft. The record estab- lishes that at least some of the aircraft used in the scope of its charter service were not owned by AmAv, nor did it provide any evidence to the contrary. The Director stated in his Determination that the Maryland Aviation Administration was not required by Grant Assurance 22(f) to allow AmAv to self-fuel these air- craft.50 However, the Director did find cause under Grant Assurance 22(d) to consider AmAv's self-fueling interest as an air carrier and further reviewed it on that basis.51 Just as with the owner, “An aircraft…operator may tie down, adjust, repair, refuel, clean, and otherwise service his/her own aircraft, provided the service is per- formed by the aircraft owner/operator or his/her em- ployees with resources supplied by the aircraft owner or operator.”52 It is important for those involved in self- fueling activity to distinguish between employees and independent contractors. The FAA does not offer guid- ance on the status of an “employee” as opposed to an independent contractor. However, airports commonly consider the status of an employee (for the purposes of self-fueling) consistent with the definition provided by the U.S. Internal Revenue Service rules and regula- tions.53 Independent contractors perform work inde- pendently, and this work is not subject to the control of a supervisor with regard to the methods used to provide services. Independent contractors are usually paid a prearranged fee for fulfilling a specific scope of work within a set period of time. Independent contractors are not employees and are not permitted to perform self- fueling. Aircraft owner/operators who are self-fueling must use their own employees and their own equipment as well. It is necessary to establish what an airport sponsor may reasonably consider to be “equipment” for the purposes of self-fueling. Equipment generally “means all machinery, together with the necessary sup- plies, tools, and apparatus necessary to properly con- 48 Director’s Determination, FAA Docket No. 16-05-12, DOT Docket No. FAA-2005-22376, 2006 WL 2038717 (Mar. 20, 2006). 49 14 C.F.R. pt. 135. (An FAA pt. 135 owner/operator corpo- ration that provides emergency air ambulance and air charter service for local, national, and international clients.) 50 Id. at 10 (footnote). 51 Grant Assurance 22(d) states "each air carrier using such airport shall have the right to service itself or to use any fixed- based operator that is authorized or permitted by the airport to serve any air carrier at such airport.” 52 AC 150/5190-6 1.3(a) 2. 53 See IRS code definitions of employee and independent contractor available at http://www.irs.gov/businesses/small/article/0,,id=99921,00.html .

10 duct the activity or services being performed.”54 This would clearly include any tank vehicle (tank truck, tank fuel trailer, tank semi-trailer) employed in the trans- portation, storage, or transfer of fuel into or from an aircraft. I. Part 16 Enforcement Proceedings Pursuant to 14 C.F.R., Part 16, § 16.23, any person directly and substantially affected by any alleged non- compliance may file a complaint with the FAA. The complaint shall provide a concise but complete state- ment of the facts relied upon to substantiate each alle- gation. The complaint shall also describe how the com- plainant was directly and substantially affected by the things done or omitted by the respondents.55 If, based on the pleadings, there appears to be a reasonable basis for further investigation, the FAA will investigate the sub- ject matter of the complaint. However, the claim will be dismissed out of hand if any of the following apply: • It appears on its face to be outside the jurisdiction of the Administrator under the Acts listed in § 16.1; • On its face it does not state a claim that warrants an investigation of further action by the FAA; or • The complainant lacks standing to file a complaint under §§ 16.3 and 16.23. The Directors’ Determination will include any and all reasons for dismissal within 20 days following the receipt of the complaint.56 Ultimately, in rendering its initial determination, the FAA may rely entirely on the complaint and the responsive pleadings provided. Each party shall file documents that it considers sufficient to present all relevant facts and arguments necessary for the FAA to determine whether the sponsor is in compliance.57 The proponent of a motion, request, or order has the burden of proof. A party who has asserted an affirma- tive defense has the burden of proving the affirmative defense. This standard burden of proof is consistent with the Administrative Procedures Act (APA)58 and federal case law. The APA provision states, “[e]xcept as otherwise provided by statute, the proponent of a rule or order has the burden of proof.”59 Title 14 C.F.R. § 16.29(b) is consistent with 14 C.F.R. § 16.23, which requires submittal of all available documents necessary 54 King County Department of Transportation, Airport Divi- sion (Jan. 2007). King County International Airport: Minimum Standards, Jan. 2007, at 12, http://your.kingcounty.gov/airport/tenants/minimum_standard s.pdf. 55 14 C.F.R., pt. 16, § 16.23(b)(3,4). 56 14 C.F.R., pt. 16, § 16.25(a)(b)(c). 57 14 C.F.R., pt. 16, § 16.29. 58 5 U.S.C. § 500, et seq. 59 5 U.S.C. § 556(d). See also Director, Office of Worker's Compensation Programs, Dep’t of Labor v. Greenwich Collier- ies, 512 U.S. 267, 272, 114 S. Ct. 2251, 2255, 129 L. Ed. 2d 221, 227 (1994); Air Canada et al. v. Dep’t of Transp., 148 F.3d 1142, 1155 (D.C. Cir. 1998). to support the complaint. Further, 14 C.F.R. § 16.29 states that “[e]ach party shall file documents that it considers sufficient to present all relevant facts and arguments necessary for the FAA to determine whether the sponsor is in compliance.60 Any party that feels that it has been adversely af- fected as a result of the Director’s initial Determination has 30 days from the initial date of service of the De- termination to file an appeal. If any party fails to file an appeal or chooses not to do so, the Director’s Determi- nation will become the final decision and order of the FAA, thus resulting in no further action. It is important to note that in accordance with 14 C.F.R. Part 16, § 16.33, any Director’s Determination that becomes final as a result of failure to appeal may be subject to judicial review. Pursuant to 14 C.F.R. Part 16, § 16.23(b)(3), all rele- vant facts necessary to corroborate the allegations are to be presented within the complaint documents. The review of the Director’s Determination by the Associate Administrator shall be limited to the facts presented therein, and no new allegations should be presented on appeal. A complainant who fails to raise all issues nec- essary to substantiate its claims in the initial complaint may in certain circumstances forfeit the right to intro- duce new allegations or issues, and any such new evi- dence would not be reviewable upon appeal.61 Pursuant to 14 C.F.R. Part 16, § 16.33, the Associate Administrator will review the Director's Determination and issue a final decision. This may be done without a hearing in circumstances where the complaint is dis- missed following an investigation. Upon appeal of the Director’s Determination, it is the responsibility of the Associate Administrator to determine that the findings of fact made by the Director are supported by a prepon- derance of reliable, probative, and substantial evidence, and that each conclusion of law is made in accordance with applicable law, precedent, and public policy.62 Ju- dicial review of a final agency decision is made by peti- tion to the U.S. Court of Appeals in the jurisdiction of the complaining party.63 The standard of judicial review of the final agency decision is governed by the Federal Aviation Act64 and the APA.65 Reviewing the adminis- 60 14 C.F.R. pt. 16.29, AmAv FAD, 16-05-12, at 16. 61 See also Sims v. Apfel, 530 U.S. 103, 108-110, 120 S. Ct. 2080, 2084–85, 147 L. Ed. 2d 80, 86–87 (2000), citing Hormel v. Helvering, 312 U.S. 552, 61 S. Ct. 719, 85 L. Ed. 1037 (1941) and United States v. LA Tucker Truck Lines, 344 U.S. 33, 36 n.6, 73 S. Ct. 67, 97 L. Ed. 54 (1952); AmAv FAD, 16-05-12, at 16. 62 See, e.g., Ricks v. Millington Municipal Airport, FAA Docket No. 16-98-19, 1999 FAA LEXIS 800, 1999 WL 636161 (July 1, 1999) (Final Decision and Order, at 21; 14 C.F.R. pt. 16 § 16.27; AmAv FAD, 16-05-12, at 17. 63 14 C.F.R. § 16.247, 49 U.S.C. 46110, et seq. See Ashton v. City of Concord, 337 F. Supp. 2d 735, 740, 2004 U.S. Dist. Lexis 19217 (2004). 64 49 U.S.C. § 46110(c). 65 5 U.S.C. § 706.