UNITED STATES DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC

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IN THE MATTER OF COMPLIANCE)

WITH FEDERAL OBLIGATIONS )

BY THE CITY OF SANTA MONICA, )

CALIFORNIA )

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FAA Docket No. 16-02-08

ORDER ON MOTION FOR EXTENSION OF TIME

On March 28, 2008, the City of Santa Monica requested a 20 day extension of time until

April 25, 2008, to file its response to the Order to Show Cause of March 26, 2008.

The Order to Show Cause was issued after the City adopted an Ordinance on March 25,

2008, effective in 30 days on April 24, 2008, banning Category C and D aircraft from

Santa Monica Municipal Airport (SMO).

The Order to Show Cause directed the City to show cause within ten days why the FAA

should not supplement the existing Part 16 investigation regarding a prior similar

proposal with the facts pertaining to the adopted Ordinance and expedite the investigation

and issuance of the initial determination by the Director of the Office of Airport Safety

and Standards. 1 The existing Part 16 investigation began on October 8, 2002, when this

Office initiated an investigation into the legality of a similar ordinance proposed by the

City. At issue in 2002 was a proposed Aircraft Conformance Program (ACP), which

would have banned certain jet aircraft from SMO. This investigation has remained

pending because the City engaged in discussions with the FAA to resolve the matter until

its recent action adopting the new Ordinance.

The FAA adopted expedited procedures for the recent Order to Show Cause pursuant to

14 CFR §16.11 because of the April 24th effective date of the Ordinance and because the

proposed ACP ordinance and the adopted Ordinance are essentially the same. The

proposed ACP and adopted Ordinance have only minor differences and more

importantly, the same result: a permanent ban on approximately 9000 Category C and D

aircraft operations at SMO. These expedited procedures afford the agency seventeen

days to evaluate the City's response and determine whether to take action to halt

enforcement of the Ordinance before April 24th.

ITen days is the normal time period for responding to a motion under Part 16.

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In its request for an extension of time the City argues that it should have the full 30 days

provided by section 16.I 03 to respond to a Notice of Investigation because the existing

investigation has been dormant for 5 years and the City will not have a further

opportunity to respond before the initial Director's Determination is issued .. The City

further argues that it would be denied due process if an extension is not granted because

10 days is insufficient to brief the matter and present extensive documentary evidence.

Additionally the City argues that it needs the additional 20 days because it is filing a

Freedom ofInformation Act (FOIA) request to obtain information in the possession of

the FAA, such as computer modeling mentioned by the FAA Associate Administrator for

Airports in his presentation to the City Council at its March 25th meeting in which the

Council adopted the Ordinance. By letter dated March 28 the City filed a request for

records and documents under FOIA. The City asks the FAA to respond to its FOIA

request within the next five days.

Pursuant to 14 C.F.R. §16.l I(a) the Director may grant an extension of time when

necessary or appropriate for a fair and complete hearing of the matter before the agency.

Ordinarily, although Part 16 is an expedited process, the Director would grant a request

for a 20 day extension oftime. However, under the circumstances of this case the City's

request must be denied.

The shortened time period for the City's response is a problem of the City's own making.

The City chose to adopt the Ordinance and make it effective in 30 days, on April 24th•

The City's request for a 20 day extension, if granted would make its response due one

day after the ban goes into effect, thus ensuring that approximately 9000 Category C and

D aircraft operations are banned from SMO. The Part 16 investigation has been pending

subject to good faith efforts to resolve the matter between the City and the FAA. The City

filed a response in 2002 to the Notice of Investigation and could have supplemented the

record at anytime during the past five years. Under the circumstances, 10 days, the

normal time period for responding to a motion under Part 16, is reasonable due to the

April 24th effective date imposed by the City's adoption of the Ordinance. The City has

waited five years to adopt the ordinance. It could have waited until the end of the

administrative process to make it effective. Instead it chose to make it effective within 30

days even though there is no emergency warranting such precipitous action.

On March 31, the FAA denied the City's request for a fee waiver and for expedited

processing of its FOIA request. The request for expedited processing was denied on the

grounds that the City had "not shown a compelling need based on imminent threat to life

or physical safety of an individual, nor an urgency to inform the public of an actual or

alleged FAA activity beyond the public's right generally to know about Government

activity." The FAA is diligently gathering documents in response to this request. The

FOIA request does not warrant an extension of time to respond to the Order to Show

Cause. The documents requested under the FOIA are not critical to the City's ability to

respond to the Order to Show Cause. During the past 5 years while the FAA and the City

were in discussions concerning possible resolution, the FAA provided the City with the

bases for its positions in correspondence and meetings. So the City should already have

in its possession most if not all of the documents that will comprise the record in this
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matter. Far from having insufficient information, the City's vote to adopt the Ordinance

reflects its conclusion that there was ample evidence to address FAA concerns set forth in

the Order to Show Cause. Furthermore, under Subpart D of Part 16 for FAA issued

Notices oflnvestigation, the City is not entitled to the full record of investigation until the

Director's Determination is issued with an index of administrative record. At that time

the City may request documents listed in the index of administrative record and decide

whether to file an administrative appeal. Respondents are not entitled to an evidentiary

hearing as part of an investigation. Rules of Practice for Federally-Assisted Airport

Proceedings, Final Rule, October 16,1996,61 Fed. Reg. 53998, 539999.

Accordingly, for the reasons provided herein and in the March 26 Order to Show Cause,

the City's motion for an extension of time to respond to the Order to Show Cause is

DENIED, without prejudice to renewal, based upon agreement to suspend enforcement.

The City's response to the Order to Show Cause is due April 7 as per the Order to Show

Cause. However, should the City agree in a writing acceptable to the FAA to suspend the

enforcement and effect of the Ordinance during the pendency of these administrative

proceedings, the FAA would grant the requested extension of time.

So Ordered on this 1

51 day of April, 2008.

4flliiY) Kelvin L. Soleo

Acting Director

Office of Airport Safety and Standards
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on April 1,2008, I caused to be served by electronic mail (email) and by overnight express delivery service (Federal Express), a true copy of the

foregoing document addressed to:

Arthur P. Berg

Kaplan Kirsch & Rockwell, LLP

730 Fifth Avenue, Suite 900

New York, New York 10019

aberg@kaplankirsch.com

Thomas R. Devine

Kaplan Kirsch & Rockwell, LLP

1001 Connecticut Avenue, NW, Suite 905

Washington, D.C. 20036

tdevine@kaplankirsch.com

Marsha Jones Moutrie

City Attorney

City of Santa Monica

1685 Main Street

Santa Monica, CA 9040 I

marsha.moutrie@smgov,net

P. Lamont Ewell

City Manager

City of Santa Monica

1685 Main Street, Room 209

Santa Monica, CA 9040 I

lamont.ewell@smgov.net

Mr. Robert Trimborn

Airport Manager

Santa Monica Municipal Airport

3223 Donald Douglas Loop S.

Santa Monica, CA 90405

bob.trimborn@smgov.net

Sharon Long

Airports and Environme tal Law Division

Office of the Chief Co sel