U.S. Department 

of Transportation 

Federal Avialion 

Administration 

August 18, 2014 

Office of Airport Compliance and 

Management Analysis 

Certified Mail - Return Receipt 

Frank Hinshaw 

Skydiving School Inc., 

d/b/a Skydive Hawaii 

PO Box 75520 

Honolulu, Hawaii, 96836 

Complainant 

Richard J. Durden 

Attorney at Law 

27987 Richmond Hill Road 

Conifer, CO 80433 

Counsel for Complainant 

Glenn I. Kimura 

Deputy Attorney General 

Department of the Attorney General, State of 

Hawaii 

465 S. King Street, Room 300 

Honolulu, HI 96813 

Counsel for Respondent 

Dear Messrs Hinshaw, Durden, and Kimura: 

BOO Independence Ave., S.W. 

Washington, D.C. 20591 

Re: FRANK HINSHAW, SKYDIVING SCHOOL, INC., d/b/a SKYDIVE 

HAWAII AND ISLAND SKYDIVING,LLCv. THE STATE OF HAWAII 

DocketNo.16-12-04 

Enclosed is a copy of the determination of the Federal Aviation Administration (FAA) 

with respect to the above-referenced matter. 

We preliminarily find that the Respondent- the State of Hawaii- is current_ly in 

violation of its Federal obligations regarding the denial of access for commercial 

skydiving operations at the Hana Airport. 
The reasons for the preliminary finding of noncompliance are set forth in the enclosed 

Director's Preliminary Determination. The issuance of this Preliminary Determination 

is predicated on the Director's expectation that the Respondent will submit a Corrective 

Action Plan, acceptable to the FAA, within 30 days of this Determination clearly 

identifying how the Respondent will proceed to finalize and implement the Hana 

Airport Operating Rules and Standards resulting in aeronautical access for the 

Complainant. In the event that the Respondent fails to make the required corrective 

actions within the implementation time line of the FAA -approved Corrective Action 

Plan, the Respondent will be subject to a formal fmding noncompliance in accordance 

with Section VII Preliminary Findings and Conclusions. 

Neither this Director's Preliminary Determination, nor the Director's Determination to 

be issued, constitutes a Final Agency Decision and order subject to judicial review. 

[14 CFR § 16.247(b)(2)] A party adversely affected by the Director's Determination 

once issued may appeal the initial determination to the FAA Associate Administrator 

for Airports pursuant to 14 CFR § 16.33(b) within 30 days after the service of the 

Director's Determination. 

Sincerely, 

Randall S. Fiertz 

Director, Office of Airport Compliance 

and Management Analysis 

Enclosure 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

FRANK HINSHAW, SKYDIVING SCHOOL, 

INC., d/b/a SKYDIVE HA WAil and ISLAND 

SKYDIVING, L.L.C 

COMPLAINANT 

v. 

THE STATE OF HAWAII 

RESPONDENT 

Docket No. 16-12-04 

DIRECTOR'S PRELIMINARY DETERMINATION 

I. INTRODUCTION 

This matter is before the Federal Aviation Administration (FAA) based on a formal complaint 

filed in accordance with the FAA Rules of Practice for Federally Assisted Airport Proceedings 

(FAA Rules of Practice), Title 14 Code of Federal Regulations (CFR) Part 16.1 

Frank Hinshaw, owner and proprietor of Skydive Hawaii (Complainant), has filed a formal 

complaint pursuant to Title 14 CFR Part 16 against the State of Hawaii (Respondent, State. or 

Sponsor) owner and operator of the Hana Airport (HNM or Airport) and the Upolu Airport (UPP 

or Airport) 2 

1 Enforcement procedures regarding airport compliance matters may be found at FAA Rules of Practice for FederallY Assisted 

Airport Enforcement Proceedings (14 CFR Part 16). These enforcement procedures were published in the Federal Register (61 

FR 53998, October 16, 1996) and became effective on December 16, 1996. 

2 The Complaint alleges the Respondent has unreasonably denied commercial skydiving access to both Hana and Upolu 

Airports. During the pendency of the pleadings, the parties voluntarily engaged in good faith efforts to resolve the allegation of 

denial of access to Upolu Airport. This is confirmed via a letter of March 16, 2012 from the Respondent to the Complainant 

outlining the provisions for permissible skydiving operations at Upolu Airport. [FAA Exhibit 3, Item 1, Exhibit 1] As a result of 

voluntary resolution efforts by both parties, the Respondent appears to have approved certain 14 CFR Part 91 and Part 105 

skydiving operations at Upolu Airport, and discussions are ongoing regarding an acceptable plan to construct a hangar to support 

the Complainant's proposed skydiving operations. Accordingly, the Director hereby dismisses, without prejudice, the portions 

of the Complaint directly pertaining to the denial of commercial skydiving operations and hangar construction at the Upolu 

Airport. 
The Complaint alleges that the Respondent is engaged in economic discrimination by failing to 

make the Airport available for commercial skydiving operations in violation of Title 49 United 

States Code (U.S.C.) § 47107(a) and FAA Grant Assurance 22, Economic Nondiscrimination. 

The Complaint also alleges violations of Grant Assurance 5, Preserving Rights and Powers and 

Grant Assurance 23, Exclusive Rights. 

The decision in this matter is based on: (i.) applicable law and FAA policy regarding the 

Respondent's Federal obligations as imposed by Grant Assurances 5 - Preserving Rights and 

Powers, 22- Economic Nondiscrimination, and 23- Exclusive Rights, as well as Title 49 U.S. C. 

§ 47107 et. seq.; and (ii.) arguments and supporting documentation submitted by the parties, 

which comprise the administrative record reflected in the attached Exhibits. 

Preliminarv Director's Determination 

With respect to the allegations presented in this Complaint under the specific circumstances at 

the Airport as discussed below and based on the evidence of record in this proceeding, the FAA 

preliminarily finds the Respondent is currently in violation of its federal obligations with respect 

to Grant Assurance 22, Economic Nondiscrimination and Grant Assurance 23, Exclusive Rights. 

The Director finds that the Respondent is not currently in violation of Grant Assurance 5, 

Preserving Rights and Powers. 

The Director's decision to issue a Preliminary Director's Determination is premised on the 

timing of the FAA's issuance of proposed parachute landing area (PLA) standards in Draft 

Change 19 to AC 150/5300-13 (Draft Change 19) as outlined in the Federal Register Notice of 

July 3, 20123

. The Director's discretion in this matter is based on the Respondent's response of 

February 13, 2013, to the Director's Request for Additional Information regarding the status of 

the Respondent's Operating Rules and Standards for HNM. [FAA Exhibit 14, Item 1] The 

Respondent responded to the Request by indicating that it was no longer pursuing fmalization 

and implementation of the draft Operating Rules and Standards due to the FAA's publishing of 

Draft Change 19. The Respondent contended that the proposed new parachute landing area 

standards would require the sponsor to designate a PLA with dimensions the Airport could not 

accommodate. [FAA Exhibit 14, Item 2, page 2] As a result, Respondent stayed its process and 

requested a "determination" from the FAA. [FAA Exhibit 19, Item 1] 

The Director acknowledges that the issuance of Draft Change 19 may have generated concerns 

regarding the Respondent's ability to implement the FAA's proposed PLA siting and 

dimensional standards at HNM due to space constraints at the Airport. The Director also 

acknowledges that the timing of the issuance of Draft Change 19 was a factor in the 

Respondent's decision to stay the Hawaii Administrative Rulemaking (HAR) process and put 

into abeyance the finalization of the Operating Rules and Standards. However, it is not clear to 

the Director what specific "determination" the Respondent expected to receive, nor is it clear 

what "determination" the HNL ADO could have made other than to concur (or non-concur) with 

the Respondent's interpretation of Draft Change 19. The Director further observes that the HNL 

3 Federal Register, Volume 77, Number 128, Pages 39446-39447, July 3, 2012 

2 
ADO is not in a position to advise the Respondent on State-level rulemak:ing processes, but 

rather can only advise the Respondent of its obligation to operate HNM in accordance with its 

federal obligations under the FAA grant assurances. 

Nevertheless, the Director avers that, upon request for guidance, the HNL ADO should have 

advised the Respondent that the Federal Register Notice for Draft Change 19 was just that - a 

draft policy - that would have necessarily precluded the HNL ADO from making a formal 

"determination" on the ability of the Respondent to comply with the draft PLA standards in Draft 

Change 19. The HNL ADO also should have advised the Respondent of its obligation to remain 

in current compliance with current FAA regulations and policies, including the Respondent's 

federal obligation to provide reasonable and not unjustly discriminatory aeronautical access to 

the Complainant in accordance with Grant Assurance 22. 

Notwithstanding the lack of a "determination" from the HNL ADO, the Director observes that 

neither Draft Change 19 nor the final Advisory Circular 150/5300-13A (issued on September 28, 

2012) compelled the Respondent to comply with specific PLA standards. In fact, to date the 

FAA has not issued or otherwise made final any PLA siting or dimension standards to be used by 

federally-obligated airports. As such, the Director concludes that the Respondent should have 

moved to finalize and implement the Operating Rules and Standards regardless of the FAA's 

issuance of Draft Change 19 in July 2012, and most certainly upon the FAA's issuance of final 

Advisory Circular 150/5300-13A in September 2012. The Respondent is reminded that the FAA 

maintains the sole discretion for the timing, content, and issuance of proposed and final changes 

to its rules, orders, advisory circulars, etc. 4 Additionally, the Director concludes that a federallyobligated airport sponsor may not abdicate its responsibility to maintain current compliance with 

its federal obligations during the pendency of proposed or future Federal statutes, regulations, or 

guidance. 

In consideration of the foregoing, the issuance of this Preliminary Determination is predicated on 

the Director's expectation that the Respondent will submit a Corrective Action Plan, acceptable 

to the FAA, within 30 days of this Determination clearly identifYing how the Respondent will 

proceed to finalize and implement the Hana Airport Operating Rules and Standards resulting in 

immediate aeronautical access for the Complainant. Additionally, should the Complainant seek 

to begin parachute operations at HNM prior to the fmalization and implementation of the 

Operating Rules and Standards, the State is directed to negotiate in good faith to develop 

temporary procedures satisfactory to both the Respondent and the Complainant to allow such 

operations. In the event that the Respondent fails to make the required corrective actions within 

the implementation time line of the FAA -approved Corrective Action Plan, the Respondent will 

be subject to a formal finding of non-compliance in accordance with Section VII Preliminary 

Findings and Conclusions, which may include initiation of action by the Director to withhold the 

processing of the airport sponsor's application for Airport Improvement Program discretionary 

grants under 49 U.S.C. § 47115 and general aviation airport grants under 49 U.S.C. § 47114(d). 

4 49 U.S. C. § 106 provides that the FAA Administrator is authorized to the promulgate regulations, rules, orders, circulars, 

bulletins, and other official publications of the Administration. 49 U.S.C. § 106 also provides that the Administrator may also 

issue, rescind, and revise such regulations as are necessary to carry out the functions of the Administrator. 

3 
The Director's decision is based on the evidence of record which shows that, even with the 

Respondent's decision to stay the Hawaii Administrative Rulemaking process, the Respondent 

has had more than sufficient time to finalize the Hana Airport Operating Rules and Standards in 

accordance with the required Hawaii Administrative Rules process and is therefore in a position 

to implement the standards and provide aeronautical access to the Complainant without further 

unreasonable delay. Such actions would cure the Respondent's non-compliance with the federal 

obligations identified in the investigation and analysis below. 

II. THE PARTIES 

A. Airport 

The Hana Airport on the island of Maui is a public-use, non-towered airport owned and operated 

by the State of Hawaii, Department of Transportation, Airports Division. The 119-acre facility, 

located on the east coast of Maui about three (3) miles northwest of the town of Hana, is 

classified as a general aviation airport. The Airport has two (2) based aircraft, and an estimated 

4,482 armual operations occurring on the single runway. [FAA Exhibit 12, Item 1] The 

planning and development of the Airport has been financed, in part, with funds provided by the 

FAA under the Airport Improvement Program (AIP), authorized by the Airport and Airway 

Improvement Act of 1982, as amended, 49 U.S.C. § 47101, et seq. Since 1985, the Airport has 

accepted $3,762,942 in Airport Improvement Program (AlP) grants for investments at HNM. 

[FAA Exhibit 11, Item 1] 

The State of Hawaii, Department of Transportation, Airports Division currently operates and 

maintains eleven (11) commercial service airports and four ( 4) general aviation airports, 

including the Hana Airport. 5 

Complainant 

Frank Hinshaw (Complainant) is the proprietor and owner of Skydiving School, Inc., a Hawaii 

corporation, doing business as Skydive Hawaii. Mr. Hinshaw is also a managing partner of 

Island Skydiving, LLC, a Hawaii Limited Liability Company. [FAA Exhibit 1, Item 1, pg. 1] 

Mr. Hinshaw proposes to establish commercial skydiving operations at HNM.6 The 

Complainant "has been operating commercial skydiving services as an aeronautical user of Stateowned airports in the State of Hawaii since the 1980s." [FAA Exhibit 1, Item 1, p. 1] 

III. BACKGROUND AND PROCEDURAL HISTORY 

A. Background 

5 http :/ /hidot.hawaii. gov I administration/ about/ 6 FAA Order 5190.6B, Airport Compliance Handbook, defines "parachute activities" as an aeronautical activity in Appendix Z at 314. 

4 
On July 17, 2007, the Complainant e-mails the State seeking to make arrangements to begin 

tandem7 skydiving operations at Hana Airport and to establish a tie down for a Cessna 206 

aircraft. [FAA Exhibit 1 Item 1, Exhibit 1] After receiving no response to his inquiry, on 

September 27, 2007, the Complainant sends a follow-up email to the Respondent repeating the 

request for "approval" to begin skydiving operations at Hana Airport. [FAA Exhibit 1, Item 1, 

Exhibit 2] 

In an undated email, the Respondent indicates that "significant changes" have taken place at the 

Hana Airport, including recent certification under FAR Part 139 to accommodate scheduled air 

carrier operations. 8 The Respondent noted that it has engaged the FAA Airports, Air Traffic, and 

Flight Standards divisions "for their review and inputs to this new operation being asked at the 

Hana Airport." The Respondent concludes that a meeting should take place with related 

representatives of the FAA, the Complainant, and the Respondent to further discuss the proposed 

skydiving operation. [FAA Exhibit 1, Item 1, Exhibit 2] 

On November 20, 2007, the FAA Honolulu Flight Standards District Office (HNL FSDO) issued 

a letter to the Respondent asserting that skydiving operations can be safely conducted at HNM if 

the Respondent holds scheduled airport user meetings, develops an airport operations SOP, and 

closely monitors airport activities to ensure safe operations [FAA Exhibit 1, Item 1, Exhibit 3] 

On July 10, 2008, the Respondent sent a letter to the HNL FSDO outlining why the Respondent 

believes skydiving activity would "not be in the best interests of safety" at HNM. The 

Respondent requested the FSDO to perform another safety risk assessment regarding the 

establishment of a skydiving drop zone at HNM. [FAA Exhibit 7, Item 1, Exhibit 1] 

On August 4, 2008, the HNL FSDO issued a letter to the Respondent indicating that parachute 

operations "increases the safety risk" without the existence of "[p ]roper coordination and 

communication" procedures. The FSDO letter advises the Respondent that proper coordination 

and communication procedures are a "prerequisite" to conducting safe skydiving operations at 

HNM and the HNL FSDO "would not accept this increased safety risk" without these 

prerequisites. The letter states: 

"Thank you for asking our office to evaluate the sky dive operations at 

Hana Airport on the island of Maui, State of Hawaii. This is not the 

first request we've received concerning parachute activities at Hana 

Airport. 

Attached is the most current letter sent to Mr. Roy Sakata in regards to 

the parachute operations at Hana Airport. Our flight standards 

inspectors are very familiar with this location and the amount of aviation 

activity that surrounds this airport. In discussions with the Honolulu 

7 A method of skydiving, typically used for training student skydivers where one jumper shares a tandem parachute system with 

another. 

8 The State of Hawaii, Department of Transportation, Airports Division surrendered the 14 CFR Part 139 Airport Operating 

Certificate for Hana Airport to the FAA, effective June 30, 2008. 

5 
Flight Standards District Office (FSDO) inspectors and supervisors 

regarding this airport and it's [sic J associated activities, and reviewing 

previous communications regarding this issue, the Honolulu FSDO has 

determined that parachute operations at this airport increases the safety 

risk of operations at this airport. 

Parachute activities to include free falling from high altitudes into an 

active field such as Hana, is in our opinion not conducive to safe airport 

operations. There are many factors affecting operations at this airport 

to include increased operations by general aviation, air tours, and 

commuter operators. Another factor is the rapid change in 

weather/visibility in a short manner of time. Our conclusion is 

parachute operations in this airport environment increases the safety 

risk factor, not just for parachute participants but for other operators 

using this airport as well during this type of activity. Although the 

depiction of a jump zone within this airport area on the aeronautical 

charts indicates this area is available for sky diving and is permissible to 

do so. 

Proper coordination and communication of all activities are paramount 

to safe operations, and without this coordination the degradation of 

safety exists. With all factors considered and without these 

prerequisites the Honolulu Flight Standards District Office would not 

accept this increased safety risk." [FAA Exhibit 7, Item 1, Exhibit 2] 

On August 11, 2008, the Respondent issued a letter to the Complainant denying skydiving 

operations at the Hana Airport due to safety and operational considerations. The Respondent 

cited the findings of the HNL FSDO as outlined in the letter of August 4, 2008. [FAA Exhibit 1, 

Item 1, Exhibit 4] 

On February 19, 2009, at the behest of the Complainant, the FAA Safety and Standards Branch 

(A WP-620) sent a letter to the HNL FSDO requesting a safety-related determination regarding 

the establishment of parachuting operations at HNM. [FAA Exhibit 7, Item 1, Exhibit 3] 

On March 16, 2009, the HNL FSDO issued a memorandum to A WP-620 reaffirming the findings 

of the November 20, 2007 safety risk analysis that parachuting activities can be safely conducted 

at Hana Airport. [FAA Exhibit 1, Item 1, Exhibit 6] 

On May 26, 2009, Counsel to the Complainant sent a letter to the FAA Honolulu Airports 

District Office (HNL ADO) alleging that by failing to permit skydiving operations at HNM "the 

airport has failed to comply with grant assurances" and requested an informal resolution meeting 

with the Complainant, Respondent, and HNL ADO in attendance, pursuant to 14 FAR Part 

16.21. [FAA Exhibit !,Item !,Exhibit?] 

6 
On October 7, 2009, a 14 CFR § !6.21 informal resolution meeting was held at the Honolulu 

International Airport with HNL ADO representatives, the Complainant, and the Respondent in 

attendance. [FAA Exhibit 1, Item 1, Exhibit 8] The outcome of the meeting resulted in the 

Respondent agreeing to allow skydiving operations at HNM subject to the development of 

operating rules and standards for commercial skydiving activities, which would require a revision 

of Hawaii Administrative Rules in accordance with Hawaii State law. 9 [FAA Exhibit 1, Item 1, 

pg. 3] [FAA Exhibit 7, Item 1, Exhibit 9] 

On November 18, 2009, Counsel to the Complainant sent a letter to the Respondent outlining 

steps the Complainant will take to ensure safe skydiving operations at HNM in accordance with 

FAA guidance and consistent with agreements promulgated at the informal resolution meeting of 

October 7, 2009. The letter further indicated the Complainant's intent to file a formal14 CFR 

Part 1610 complaint against the Respondent for alleged violations of its grant assurances if a 

compromise to begin commercial skydiving operations could not be reached within 30 daysY 

[FAA Exhibit 7, Item 1, Exhibit 4] 

On December 9, 2009, the Respondent replies to the Complainant's letter of November 18,2009 

stating that the Respondent believes further investigation by the FAA is warranted before 

approving skydiving operations at HNM. [FAA Exhibit 7, Item 1, Exhibit 5] 

On December 30, 2009, the Respondent issued a letter to the HNL ADO reaffirming its 

opposition to permit skydiving at HNM due to ongoing safety concerns related to air traffic 

coordination, drop zone size and location, limited emergency response capability, variable 

weather, and scheduled passenger operations. [FAA Exhibit 7, Item 1, Exhibit 6] 

On February 10, 2010, the HNL FSDO issued a letter to the HNL ADO outlining the results of a 

safety risk assessment performed by the HNL FSDO concluding that skydiving operations at 

HNM present a "moderate risk." [FAA Exhibit 7, Item I, Exhibit 7] 

On March 31, 2010, Counsel to the Complainant sent a letter to the FAA Western-Pacific 

Regional Office (RO) urging the RO to remind the Respondent that the FAA has determined that 

skydiving operations can be safely conducted at HNM. The letter further indicated that a formal 

14 CFR Part 16 complaint will be filed if the Respondent continues to decline to permit the 

requested skydiving operations. [FAA Exhibit 7, Item I, Exhibit 8] 

On June 29, 2010, the Respondent sent a letter to the HNL ADO requesting assistance in 

establishing a parachute drop zone at HNM, stating in part: 

"The State of Hawaii, Department of Transportation, Airports Division 

(DOTA) is requesting assistance from the FAA in identifying a suitable 

parachute drop zone at HNM that provides an acceptable level of safety. 

9 Under State Law, such rules follow the rulema,king process delineated in Hawaii Revise Statutes (HRS) Chapter 91 and are 

incorporated into the Hawaii Administrative Rules (HAR). [FAA Exhibit 7, Item 1, exhibit 9] 1

° Complainant's counsel refers to a "49 CFR Part 16" complaint in this letter. The Director assumes, for purposes of this decision, that counsel 

intended to refer to the correct regulation, 14 CFR Part 16." 11 See 14 CFR Part 16, Rules of Practice for Federally-Assisted Airport Enforcement Proceedings 

7 
This is in reference to the informal determination by FAA Western 

Region, Mr. Anthony Garcia's email on May 18, 2010, that the DOTA 

prohibition of skydiving activity at Hana Airport (HNM) constitutes a 

violation of Grant Assurance 22. 12 

FAA's expert assistance from the Flight Standards District Office 

(FSDO) is essential as we develop Minimum Standards for aeronautical 

activities at HNM Specific guidance has been developed for helicopter 

activities at HNM FSDO has the expertise in skydiving as personnel 

have been certified with USP A D licenses. 

The available operating areas at HNM are very limited In order to 

develop and establish skydiving standards, the identification of a suitable 

drop zone must first be accomplished The desired drop zone identified 

by Mr. Hinshaw is an area that is now designated for transient 

helicopter parking and is bounded by the runway and taxiway safety 

areas on all sides. 

Please contact the FSDO for their assistance with identifying a suitable 

drop zone for HNM as we review and develop plans to support this 

skydiving activity. " 

[Exhibit 7, Item 1, Exhibit 10] 

On May 15, 2011, the Respondent issued draft revisions to Hawaii Administrative Rules (HAR 

19-1313) in the form of Hana Airport Operating Rules and Standards to allow skydiving 

operations at HNM14• Public comments were requested to be submitted by June 15, 2011. 

[FAA Exhibit 1, Item 1, Exhibit 9][F AA Exhibit 7, Item 1, Exhibit 9] 

B. Procedural History 

On March 2, 2012, FAA received the Complaint. [FAA Exhibit 1, Item 1] 

On March 9, 2012, FAA issued a Notice of Docketing, Frank Hinshaw, Skydiving School, Inc., 

d/b/a Skydive Hawaii and Island Skydiving, LLC vs The State of Hawaii. (16-12-04) [FAA 

Exhibit 1, Item 2] 

On March 29,2012, the Respondent filed its Answer. [FAA Exhibit 3, Item 1] 

12 The Director notes that the evidence of record does not indicate the extent to which the HNL FSDO provided assistance to the 

State in identifying a suitable drop zone at HNl\.1. 13 Hawaii Administrative Rules, Title 19, Chapter 13,Aircraft Operations at Public Airports governs the safe and orderly 

operations of aircraft at public airports in the State of Hawaii. 

14 Per Email to Complainant from HNL ADO on June 24, 2011 [see FAA Exhibit 7, Item!, Exhibit 12] 

8 
On Aprilll, 2012, the Complainant filed a Motion for Extension of Time to File Reply. [FAA 

Exhibit 4, Item 1] 

On April 24, 2012, the FAA granted the Complainant's Motion for Extension of Time to File 

Reply. [FAA Exhibit 5, Item 1] 

On May 8, 2012, the Complainant filed its Reply in Support of Complaint and aN otice of Partial 

Dismissal. [FAA Exhibit 6, Item 1] 

On September 4, 2012, the FAA extended the due date of the Director's Determination to on or 

before December 10,2012. [FAA Exhibit 8] 

On December 10, 2012, the FAA extended the due date of the Director's Determination to on or 

before March 11, 2013. [FAA Exhibit 9] 

On February 4, 2013, the Director issued a Request for Additional Information to the 

Respondent. [FAA Exhibit 14, Item 1] 

On March 28, 2013, the FAA extended the due date of the Director's Determination to on or 

before June 4, 2013. [FAA Exhibit 10] 

On June 13,2013, the FAA extended the due date of the Director's Determination to on or before 

September 30,2013. [FAA Exhibit 15] 

On September 30, 2013, the FAA extended the due date of the Director's Determination to on or 

before November 29,2013. [FAA Exhibit 16] 

On December 17, 2013, the FAA extended the due date of the Director's Determination to on or 

before January 28, 2014. [FAA Exhibit 17] 

On May 19, 2014, the FAA extended the due date ofthe Director's Determination to on or before 

July 18,2014 via verbal communication with the parties to the Complaint. 

On July 31,2014, the FAA extended the due date of the Director's Determination to on or before 

August 13,2014. [FAA Exhibit 18] 

IV. ISSUES 

Upon review of the allegations and the relevant airport-specific circumstances sunnnarized 

above, the FAA has determined that the following issues require analysis to provide a complete 

review of the Respondent's compliance with applicable federal law and policy: 

• Whether the Respondent is in violation of Grant Assurance 22, Economic 

Nondiscrimination by declining the Complainant's request to establish commercial 

skydiving operations at the Hana Airport. 

9 
• Whether the Respondent's failure to allow skydiving operations at Hana Airport 

constitutes a violation of Grant Assurance 5, Preserving Rights and Powers. 

• Whether the Respondent's failure to allow conunercial skydiving operations at the 

Hana Airport results in a constructive granting of an exclusive right in violation of 

Grant Assurance 23, Exclusive Rights, 49 U.S.C. § 40103(e) and 49 U.S.C. 

§ 47107(a)(4). 

V. APPLICABLE FEDERAL LAW AND FAA POLICY 

The federal role in civil aviation has been augmented by various legislative actions that authorize 

programs for providing federal funds and other assistance to local conununities for the 

development of airport facilities. In each such program, the airport sponsor assumes certain 

obligations, either by contract or by restrictive covenants in property deeds and conveyance 

instruments, to maintain and operate its airport facilities safely and efficiently and in accordance 

with specified conditions. Conunitrnents assumed by airport sponsors in property conveyance or 

grant agreements are important factors in maintaining a high degree of safety and efficiency in 

airport design, construction, operation and maintenance, as well as ensuring the public fair and 

reasonable access to the airport. 

The following is a discussion pertaining to the Airport hnprovement Program, Airport Sponsor 

Assurances, the FAA Airport Compliance Program, and enforcement of Airport Sponsor 

Assurances. 

A. The Airport Improvement Program 

Title 49 U.S.C. § 47101, et seq., provides for federal airport financial assistance for the 

development of public-use airports under the Airport hnprovement Program (AIP) established by 

the Airport and Airway Improvement Act of 1982, as amended. Title 49 U.S.C. § 47107, et 

seq., sets forth assurances to which an airport sponsor agrees as a condition of receiving federal 

financial assistance. Upon acceptance of an AIP grant, the assurances become a binding 

contractual obligation between the airport sponsor and the federal government. The assurances 

made by airport sponsors in AIP grant agreements are important factors in maintaining a viable 

national airport system. 

B. Airport Sponsor Assurances 

As a condition precedent to providing airport development assistance under the Airport 

hnprovement Program, 49 U.S.C. § 47107, et seq., the Secretary of Transportation and, by 

extension, the FAA must receive certain assurances from the airport sponsor. Title 49 U.S. C. 

§ 47107(a) sets forth the statutory sponsorship requirements to which an airport sponsor 

receiving federal financial assistance must agree. 

10 
The FAA has a statutory mandate to ensure that airport owners comply with these sponsor 

assurances. 15 FAA Order 5190.6B, FAA Airport Compliance Manual (Order), issued on 

September 30, 2009, provides the policies and procedures to be followed by the FAA in carrying 

out its legislatively mandated functions related to compliance with federal obligations of airport 

sponsors. The FAA considers it inappropriate to provide federal assistance for improvements to 

airports where the benefits of such improvements will not be fully realized due to inherent 

restrictions on aeronautical activities. 

Three FAA grant assurances apply to the circumstances set forth in this Complaint: (1) Grant 

Assurance 5, Preserving Rights and Powers; (2) Grant Assurance 22, Economic 

Nondiscrimination; and (3) Grant Assurance 23, Exclusive Rights. 

(1) Grant Assurance 5, Preserving Rights and Powers 

Grant Assurance 5, Preserving Rights and Powers, (Assurance 5) requires the airport owner or 

sponsor to retain all rights and powers necessary to ensure the continued operation of the airport 

consistent with its federal obligations. This assurance implements the provisions of the AAIA, 

49 U.S.C. § 471 07(a), et seq., and requires, in pertinent part, that the owner or sponsor of a 

federally obligated airport " ... 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 

assurances in the grant agreement without the written approval of the Secretary, and will act 

promptly to acquire, extinguish or modifY any outstanding rights or claims of right of others 

which would interfere with such performance by the sponsor." 

Assurance 5 requires, in pertinent part, that the sponsor of a federally obligated airport: 

... 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 assurances in the grant agreement without the written approval of the 

Secretary, and will act promptly to acquire, extinguish or modifY any outstanding 

rights or claims of right of others which would interfere with such performance by 

the sponsor. This shall be done in a manner acceptable to the Secretary. 

[Assurance 5] 

(2) Grant Assurance 22, Economic Nondiscrimination 

Grant Assurance 22, Economic Nondiscrimination, requires the owner of any airport developed 

with federal grant assistance to operate the airport for the use and benefit of the public and to 

make it available to all types, kinds, and classes of aeronautical activity on fair and reasonable 

terms, and without unjust discrimination. Grant Assurance 22 deals with both the 

reasonableness of airport access and the prohibition of adopting unjustly discriminatory 

conditions as a potential for limiting access. Grant Assurance 22 implements the provisions of 

15 See. e.g., the Federal Aviation Act of 1958, as amended and recodified, Title 49 U.S. C. §§ 40101,40113, 40114, 

46101, 46104, 46105, 46106, 46110; and the Airport and Airway hnprovement Act of1982, as amended and 

recodified, Title 49 U.S. C. §§ 47105(d), 47106(d), 47107(k), 47107(1), 47111(d), 47122. 

11 
49 U.S.C. § 47107(a)(l) through (6), and requires, in pertinent part, that the sponsor of a 

federally obligated airport: 

... will make its airport available as an airport for public use on reasonable terms, 

and without unjust discrimination, to all types, kinds, and classes of aeronautical 

activities, including commercial aeronautical activities offering services to the 

public at the airport. [Assurance 22(a)] 

... may establish such fair, equal, 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 ... limit any given type, kind, or class of aeronautical use of the airport if 

such action is necessary for the safe operation of the airport or necessary to serve 

the civil aviation needs of the public. [Assurance 22(i)] 

Subsection (h) qualifies subsection (a), and subsection (i) represents an exception to subsection 

(a) to permit the sponsor to exercise control of the airport sufficient to preclude unsafe and 

inefficient conditions that would be detrimental to the civil aviation needs of the public. 

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 reasonableness of such 

restrictions when those restrictions deny or limit access to, or use of, the airport. [See FAA 

Order 5190.6B, ~14.3] 

FAA Order 5190.6B describes the responsibilities under Grant Assurance 22 assumed by the 

owners or sponsor of public use airports developed with federal assistance. Among these is the 

obligation 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. [See FAA Order 5190.6B, Chapter 9] 

The owner of an airport developed with federal assistance is required to operate the airport for 

the use and benefit of the public and to make it available to all types, kinds, and classes of 

aeronautical activities on reasonable terms and without unjust discrimination. [See FAA Order 

5190.6B, ~9.l.a] 

(3) Grant Assurance 23, Exclusive Rights 

Grant Assurance 23, Exclusive Rights, (Assurance 23) implements the provisions of 49 U.S.C. 

§§ 40103(e) and 47107(a)(4), and requires, in pertinent part, that the owner or sponsor of a 

federally obligated airport: 

... will permit no exclusive right for the use of the airport by any persons 

providing, or intending to provide, aeronautical services to the public. 

12 
... 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 ... 

.. . will terminate any exclusive right to conduct an aeronautical activity now 

existing at such an airport before the grant of any assistance under Title 49 

United States Code. 

In FAA Order 5190.6B, FAA Airport Compliance Manual, the FAA discusses its exclusive rights 

policy and broadly identifies aeronautical activities as subject to the statutory prohibition against 

exclusive rights. While public-use airports may impose qualifications and minimum standards 

upon those who engage in aeronautical activities, FAA has taken the position that the application 

of any unreasonable requirement or any standard that is applied in an unjustly discriminatory 

manner may constitute the constructive grant of an exclusive right. Courts have found the grant 

of an exclusive right where a significant burden has been placed on one competitor that is not 

placed on another. [See e.g. Pompano Beach v FAA, 774 F2d 1529 (11th Cir, 1985).] An owner 

or sponsor is under no obligation, however, to permit aircraft owners to introduce onto the airport 

equipment, personnel, or practices which would be unsafe, unsightly, detrimental to the public 

welfare, or which would affect the efficient use of airport facilities. [See Order, Sec.ll.2.] 

FAA Order 5190.6B provides additional guidance on the application of the statutory prohibition 

against exclusive rights and FAA policy regarding exclusive rights at public-use airports. [See 

Order, Chapter 8.] 

C. The FAA Airport Compliance Program 

The FAA discharges its responsibilities for ensuring airport owners' compliance with their 

federal obligations through its Airport Compliance Program. The FAA's airport compliance 

efforts are based on the contractual obligations an airport owner accepts when receiving federal 

grant funds or the transfer of federal property for airport purposes. These obligations are 

incorporated in grant agreements and instruments of conveyance in order to protect the public's 

interest in civil aviation and to ensure compliance with federal laws. 

The FAA Airport Compliance Program is designed to ensure the availability of a national system 

of safe and properly maintained public-use airports operated in a manner consistent with the 

airport owners' federal obligations and the public's investment in civil aviation. 

The Airport Compliance Program does not control or direct the operation of airports. Rather, it 

monitors the administration of the valuable rights pledged by airport sponsors to the people of the 

United States in exchange for monetary grants and donations of federal property to ensure that 

the public interest is being served. FAA Order 5190.6B sets forth policies and procedures for 

the FAA Airport Compliance Program. The Order establishes the policies and procedures to be 

followed by FAA personnel in carrying out the FAA's responsibilities for ensuring airport 

compliance. It provides basic guidance for FAA personnel in interpreting and administering the 

various continuing commitments made to the United States by airport owners as a condition of 

13 
receiving a grant of federal funds or the conveyance of federal property for airport purposes. 

The Order analyzes the various obligations set forth in the standard airport sponsor assurances, 

addresses the nature of those assurances, addresses the application of those assurances in the 

operation of public-use airports, and facilitates interpretation of the assurances by FAA 

personnel. 

The FAA Compliance program is designed to achieve voluntary compliance with federal 

obligations accepted by owners and/or operators of public-use airports developed with FAAadministered assistance. Therefore, in addressing allegations of noncompliance, the FAA will 

make a determination as to whether an airport sponsor is currently in compliance with the 

applicable federal obligations. Consequently, the FAA will consider the successful action by the 

airport to cure any alleged or potential past violation of applicable federal obligation to be 

grounds for dismissal of such allegations. [See e.g. Wilson Air Center v. Memphis and Shelby 

County Airport Authority, FAA Docket No. 16-99-10, (8/30/01) Wilson Air Center, LLC v 

FAA, 372 F.3d 807 (6th Cir. 2004)] 

D. FAA Enforcement Responsibilities 

The Federal Aviation Act of 1958, as amended (FAA Act), 49 U.S.C. § 40101, et seq., assigns 

the FAA Administrator broad responsibilities for the regulation of air commerce in the interests 

of safety, security, and development of civil aeronautics. The federal role in encouraging and 

developing civil aviation has been augmented by various legislative actions, which authorize 

programs for providing funds and other assistance to local communities for the development of 

airport facilities. In each such program, the airport owner or sponsor assumes certain 

obligations, either by contract or by restrictive covenants in property deeds and conveyance 

instruments, to maintain and operate its airport facilities safely, efficiently, and in accordance 

with specified conditions. Commitments assumed by airport owners or sponsors in property 

conveyance or grant agreements are important factors in maintaining a high degree of safety and 

efficiency in airport design, construction, operation and maintenance, as well as ensuring the 

public reasonable access to the airport. Pursuant to 49 U.S.C. § 47122, the FAA has a statutory 

mandate to ensure that airport owners comply with their federal grant assurances. 

E. The Complaint and Appeal Process 

Pursuant to 14 CFR, § 16.23, a person directly and substantially affected by any alleged 

noncompliance may file a complaint with the FAA. The complainant( s) shall provide a concise 

but complete statement of the facts relied upon to substantiate each allegation. The 

complaint(s) shall also describe how the complainant(s) directly and substantially has/have 

been affected by the things done or omitted by the respondent(s). [See 14 CFR, § 16.23(b)(3-4).] 

VI. ANALYSIS AND DISCUSSION 

Prior to analyzing and discussing the pertinent issues in this case, it is relevant to restate that the 

FAA's Office of Airports, Airport Compliance and Management Analysis Division, reviews 

matters pertaining to a sponsor's current compliance with its Federal grant assurance 

14 
agreements. 16 [See 14 CFR, § 16.1.] The agency does not replace or act on behalf of local law 

enforcement, civil courts, or other legal forums outside the scope of the FAA's Part 16 purview. 

In the instant Complaint, the Complainant alleges that the Respondent is engaged in economic 

discrimination by failing to make the Airport available for commercial skydiving operations in 

violation of Title 49 United States Code (U.S. C.) § 47107(a) and FAA Grant Assurance 22, 

Economic Nondiscrimination. The Complaint also alleges violations of Grant Assurance 5, 

Preserving Rights and Powers and Grant Assurance 23, Exclusive Rights. [FAA Exhibit 1, Item 

1, pages 7-10] 

The Respondent argues that it cannot issue a confirmation of its approval for the Complainant to 

begin parachute operations at Hana Airport until after the completion of a rulemaking procedure 

in accordance with Hawaii State law, which requires that all new airport minimum standards 

governing airport activity, including skydiving rules, must be accomplished via the Hawaii 

Administrative Rulemaking (HAR) process and be incorporated into Hawaii Administrative 

Rules before taking effect. [FAA Exhibit 3, Item 1, page 2] 

The alleged violations of Grant Assurance 22, Economic Nondiscrimination, Grant Assurance 5, 

Preserving Rights and Powers and Grant Assurance 23, Exclusive Rights are analyzed and 

discussed separately below. 

Notice of Partial Dismissal 

During the pendency of the submission of pleadings, the Complainant filed, in conjunction with 

its Reply, a motion asking the FAA to take specific actions. 

Complainant's Motion 

On May 8, 2012, the Complainant filed a Notice of Partial Dismissal, in conjunction with its 

Reply [FAA Exhibit 6, Item 1], seeking to dismiss the portion of its Complaint pertaining to the 

denial of skydiving operations and hangar construction at Upolu Airport17 . During the pendency 

of the Complaint, the Complainant and the Respondent voluntarily engaged in good-faith efforts 

to resolve the allegations. This is confirmed via a letter of March 16, 2012 from the Respondent 

to the Complainant outlining the provisions for commercial skydiving operations at Upolu 

Airport. [FAA Exhibit 3, Item 1, Exhibit 1] As a result of voluntary resolution efforts by both 

parties, the Respondent appears to have approved certain 14 CFR Part 91 and Part 105 skydiving 

operations at Upolu Airport, and discussions are ongoing regarding an acceptable plan to 

construct a hangar to support the Complainant's proposed skydiving operations. Accordingly, 

the Director hereby dismisses, without prejudice, the portions of the Complaint directly 

pertaining to the denial of commercial skydiving operations and hangar construction at the Upolu 

Airport. 

16 Therefore, in addressing allegations of noncompliance, the FAA will make a determination of whether an 

airport sponsor currently is in compliance with the applicable Federal obligations. Consequently, the FAA will consider the 

successful action by the airport to cure any alleged or potential past violation of an applicable 

Federal obligation to be grounds for dismissal of such allegation. [See Wilson] 17 Id Pg. 1, note 2 

15 
In consideration of the foregoing, the Director believes that the following issues are ripe for 

review and analysis: 

Issue 1: Whether the Respondent is in violation of Grant Assurance 22, Economic 

Nondiscrimination by declining the Complainant's request to establish commercial skydiving 

operations at the Hana Airport. 

The Complainant alleges the Respondent is operating Hana Airport in a manner inconsistent with 

its Federal obligations to make the airport available for public use on fair and reasonable terms, 

and without unjust discrimination, to all types, kinds, and classes of aeronautical users. 

Specifically, the Complaint alleges that the Respondent has continuously delayed and denied all 

attempts by the Complainant to establish commercial skydiving operations at Hana Airport by 

failing to finalize and implement draft Hana Airport Operating Rules and Standards governing 

skydiving operations at the Airport. The Complainant contends that the actions and inactions of 

the Respondent, including an agreement to establish operating rules and standards for 

commercial skydiving operations, as well as a multi-year delay in instituting those rules and 

standards, have prevented the Complainant from obtaining equal access to a Federally-obligated 

airport in violation of Grant Assurance 22, Economic Nondiscrimination. 

The Complaint establishes the following allegation of denial of access to HNM: 

"On July 17, 2007, Complainant made a request to begin skydiving operations on 

to Hana Airport. [citation omitted] The State did not respond until October of 

that year; then stating that due to changes in the use of Hana Airport, it would 

need some time to determine if skydiving could be conducted safely. [citation 

omitted] The State asked the FAA to evaluate the safety of skydiving operations 

onto Hana Airport. On November 20, 2007, the FAA concluded that it could be 

conducted safely if properly coordinated [citation omitted] Nevertheless, after a 

delay of more than a year after the initial application, the State responded to 

Complainant with a denial based on safety. "[citation omitted] 

[FAA Exhibit 1, Item 1, p. 2-3] 

The Complaint establishes a second allegation of denial of access: 

"Following the State's denial at Hana, Complainant, the State and the FAA 

carried on an email and telephone correspondence regarding skydiving activity at 

Hana Airport. 18 

18 For the sake of brevity, the aforementioned correspondence between the Complainant, Respondent, and FAA was 

not submitted to the docket by the Complainant as supporting evidence for the Complaint. Internal case files from 

the FAA's informal investigation (which predate the filing ofthis formal Complaint) are used to augment and 

supplement the Administrative Record. 

16 
The correspondence between the Complainant and the State led to an FAA safety 

study for skydiving at Hana. On March I6, 2009, the Honolulu FSDO found that 

skydiving could be conducted safely at Hana. [citation omitted] 

The State disagreed. " 

[FAA Exhibit 1, Item 1, p. 3] 

The Complaint establishes a third allegation of denial of access: 

"Complainant sought and obtained Part I6.2I mediation conference with the 

State and the FAA regarding skydiving in Hawaii and specifically on Hana 

Airport. It took place on October 7, 2009 in the FAA's offices in Honolulu. 

[citation omitted] 

At the mediation conference, the State agreed to come up with skydiving rules for 

operations at Hana. It again delayed more than a year before doing so, coming 

out with proposed rules in 2011. [citation omitted] Complainant responded to 

the proposed operational rules with suggested amendments in both March and 

June 20II. 

Since that time, the State has not just delayed in taking action, it has simply done 

nothing. The proposed rules have not been finalized, with or without the 

Complainant's suggestions. He has been, therefore, unable to begin operations 

on Hana Airport. " 

[FAA Exhibit 1, Item 1, p. 3-4] 

The Complainant establishes a fourth allegation of denial of access: 

"Since that time, the State has done nothing. It has not provided the 

final rules and has not approved the Complainant's operation at Hana. " 

[FAA Exhibit 1, Item 1, p. 7] 

The Respondent's Answer states: 

"The State denies any allegations of statutory violations. The State has 

not refused to act and continues to take action. " 

[FAA Exhibit 3, Item I, p. 2] 

"With respect to access to Hana Airport for skydiving activity, the State 

is in the process of adopting administrative rules and regulations to 

insure that this activity is conducted in the manner safest to the public 

17 
and all users of the airport through the rulemaking procedure required 

under Hawaii law ... 

The State cannot issue a confirmation of its approval for Complainant to 

begin parachute operations at Hana Airport until after the completion of 

this rulemaking procedure and the formal adoption of rules and 

regulations. Parachute operations at Hana Airport should not be 

allowed to commence until these rules and regulations are properly 

adopted as required by Hawaii law. " 

[FAA Exhibit 3, Item 1, pg. 2-3] 

The Complainant's Reply to the Respondent's Answer alleges an ongoing and continued 

denial of access: 

"As set out in the Complaint, the State Agreed at the Part 16.21 

mediation conference on October 7, 2009 to develop a memorandum of 

understanding or rules (above and beyond 14 CFR Parts 91 and 105 that 

regulate skydiving activities) for commercial skydiving operations on 

Hana Airport 

Proposed rules were issued by the State in early 2011. Mr. Hinshaw 

provided written comments and suggestions for changes to the draft in 

March and in June 2011. 

Since then, there has been silence. Skydiving is not taking place on the 

Hana Airport due to the absence of a memorandum of understanding or 

rules. " 

[FAA Exhibit 6, Item 1, pg. 2-3] 

The Director notes that the Respondent did not submit to the public docket a Rebuttal 

admitting or denying the allegations put forth by the Complainant in its Reply. 

The evidence of record persuasively supports the Complainant's allegation with regard to denial 

of commercial skydiving access to HNM. Of particular concern is the Respondent's rationale 

for continuing to refuse to allow a legitimate aeronautical activity to take place at the Airport. 

The Director will now analyze the Respondent's reasons for delaying the establishment of 

skydiving operations at the Airport to determine whether those reasons are unreasonable and/or 

unjustly discriminatory. 

Period 1- Events Prior to the 14 CFR § 16.21 Informal Resolution Meeting 

On July 17, 2007, the Complainant e-mailed the State seeking to arrange tandem skydiving 

operations at Hana Airport and to establish a tie down for a Cessna 206 aircraft. [FAA Exhibit 1 

18 
Item 1, Exhibit 1] On September 27, 2007, the Complainant sent a follow-up email to the 

Respondent repeating the request for approval to begin skydiving operations at Hana Airport. 

[FAA Exhibit 1, Item 1, Exhibit 2] 

In an undated email, the Respondent replies that "significant changes" have taken place at the 

Hana Airport, including recent certification under FAR Part 139 to accommodate scheduled air 

carrier operations. 19 The Respondent noted that it had engaged the FAA Airports, Air Traffic, 

and Flight Standards divisions "for their review and inputs [sic] to this new operation being 

asked at the Hana Airport." The Respondent concluded that a meeting should take place with 

representatives of the FAA, the Complainant, and the Respondent to further discuss the proposed 

skydiving operation. [FAA Exhibit 1, Item 1, Exhibit 2] It is not clear from the evidence of 

record whether the proposed meeting between the parties ever took place. However, the Record 

suggests that the Respondent, at some point around the October/November 2007 timeframe, 

requested the FAA evaluate the safety of commercial skydiving operations onto Hana Airport. 

On November 20, 2007, the HNL FSDO issued a letter to the Respondent asserting that 

skydiving operations can be safely conducted at HNM if the Respondent holds scheduled airport 

user meetings, develops an airport operations SOP, and closely monitors airport activities to 

ensure safe operations. FAA Exhibit 1, Item I, Exhibit 3] 

On July 10, 2008, the Respondent sent a letter to the HNL FSDO outlining the primary reasons 

why it believes skydiving activity would "not be in the best interests of safety" at HNM: 

"An operator has submitted a request to conduct skydiving operations at 

Hana Airport, Maui, including the establishment of a drop zone at the 

approach end to Runway 8. We believe this activity to not be in the best 

interests of safety for the following reasons: 

I. A drop zone at the approach end of Runway 8 creates a potential 

conflict with local aircraft traffic. There are no ATC services at 

Hana, nor is there a UN/COM operator to provide traffic and safety 

advisories to pilots in the area. Moreover, as an uncontrolled field, 

there is no regulatory requirement that aircraft using Hana be 

equipped with two-way radio capability. 

2. Access to a drop zone at the approach end of Runway 8 would 

require movement on or near the runway creating potential conflict 

with aircraft traffic. Personnel and equipment present at the drop 

zone would also constitute a hazard 

3. In the event of an accident and/or m;ury, there is very limited 

emergency response capability to the airport. Airport Rescue and 

Fire Fighting (ARFF) capability will be reduced effective July, 2008 

with the reassignment of dedicated ARFF personnel. Limited Count 

19 The State ofHawaii, Department of Transportation, Airports Division surrendered the 14 CFR Part 139 Airport Operating 

Certificate for Hana Airport to the FAA, effective June 30, 2008. 

19 
assets responding to a parachuting accident or injury would leave 

the Hana area without emergency response coverage. 

4. The single DOT-Airports Division employee at Hana would be 

unable to provide adequate monitoring of the activity to ensure 

safety." 

[FAA Exhibit 7, Item I, Exhibit I] 

Using this rationale, the Respondent then requested the FSDO to perform another safety risk 

assessment regarding the establishment of a skydiving drop zone at HNM. [Id J The Record does 

not indicate why the Respondent requested a second safety risk assessment less than a year after 

the HNL FSDO asserted in its first safety risk assessment that skydiving operations can be safely 

conducted if certain proactive measures are taken by the sponsor to ensure safety10• 

Nevertheless, in response to the request, the HNL FSDO issued a letter of August 4, 2008, to the 

Respondent indicating that parachuting "increases the safety risk" at HNM without the existence 

of"[p]roper coordination and communication" procedures. [FAA Exhibit 7, Item I, Exhibit 2] 

Both evaluations conclude that skydiving operations can be safely conducted with proper 

coordination and communication. However, the Respondent appears to have interpreted the 

HNL FSDOs findings to be supportive of its own position that skydiving operations carmot be 

safely conducted at HNM. Citing the findings of the HNL FSDO letter, the Respondent issued a 

letter to the Complainant, dated August II, 2008, denying skydiving operations at the Hana 

Airport due to safety and operational considerations.21 [FAA Exhibit I, Item I, Exhibit 4] 

The Record indicates that the Complainant also requested that the FAA to perform a safety risk 

evaluation of its proposed skydiving operations. In response to "several complaints from Mr. 

Frank Hinshaw" to the FAA Safety and Standards Branch (A WP-620), a letter was sent from 

A WP-620 to the HNL FSDO on February 19, 2009, requesting a safety-related determination 

regarding the establishment of parachuting operations at HNM. [FAA Exhibit 7, Item I, Exhibit 

3] On March 16, 2009, the HNL FSDO issued a memorandum to AWP-620 reaffirming the 

findings of the November 20, 2007 safety risk analysis by stating: 

"The general consensus is that parachute activities can take place in a 

safe manner if participants willingly adhere to the federal aviation 

regulations and accepted published practices. Hana operations were 

reviewed and the recommendations published on November 20, 2007. 

Those recommendations were reviewed and are still valid today. " 

[FAA Exhibit I, Item 1, Exhibit 6] 

20 See Letter of November 20, 2007 to Respondent from the HNL ADO [Exhibit 1, Item I, Exhibit 3] 21 The Director notes that the Respondent's initial objection to the proposed skydiving operations was not formally conveyed to 

the Complainant for more than a year after the Complainant's initial request to begin skydiving operations, and approximately 10 

months after the HNL FSDO first concluded that skydiving operations could be safely conducted at HNM if properly 

coordinated. 

20 
The Director notes the HNL FSDO safety evaluation of March 16, 2009 appears to be congruent 

with, and does not significantly deviate from, the guidance the HNL FSDO provided to the 

Respondent in its safety evaluations of November 20, 2007 and August 4, 2008. In each safety 

evaluation, the FAA identifies various risk factors associated with skydiving operations at HNM 

but ultimately concludes that skydiving operations can safely take place at HNM with proper 

coordination and communication procedures in place. 

Period 2- Events After the 14 CFR § 16.21 Informal Resolution Meeting 

Under 14 CFR §16.21(a), persons directly and substantially affected by the alleged 

noncompliance are required to initiate and engage in good faith efforts to resolve the disputed 

matter informally with those individuals or entities believed responsible for the noncompliance. 

Under 16.21 (b), complaints will not be considered unless the person or authorized representative 

filing the complaint certifY that substantial and reasonable good faith efforts to resolve the 

disputed matter informally prior to filing the complaint were made, and that there appears no 

reasonable prospect for timely resolution of the dispute. 

On May 26, 2009, Counsel to the Complainant sent a letter to the HNL ADO alleging that by 

declining to permit skydiving operations at HNM, "the airport has failed to comply with grant 

assurances." Counsel then proceeded to request an informal resolution meeting with the 

Complainant, Respondent, and HNL ADO pursuant to 14 CFR § 16.21. [FAA Exhibit 1, Item 1, 

Exhibit 7] On October 7, 2009, a 14 CFR § 16.21 informal resolution meeting was held at the 

Honolulu International Airport with HNL ADO representatives, the Complainant, and the 

Respondent in attendance. [FAA Exhibit 1, Item 1, Exhibit 8] The Record indicates that the 

outcome of the meeting resulted in the Respondent agreeing to allow skydiving operations at 

HNM subject to the development of operating rules and standards for commercial skydiving 

activities. The Respondent noted that the development of the skydiving rules and standards 

would require a revision of Hawaii Administrative Rules in accordance with Hawaii State law. 

[FAA Exhibit 1, Item 1, pg. 3] [FAA Exhibit 7, Item 1, Exhibit 9] However, the Record does not 

indicate that a specific timeframe for the development and implementation of the skydiving rules 

and standards was put forth by the Respondent. 

On June 29, 2010, eight months after the Respondent agreed to develop and implement operating 

rules and standards for commercial skydiving operations at HNM, the Respondent sent a letter to 

the HNL ADO requesting assistance in establishing a parachute drop zone at HNM, stating in 

part: 

"The State of Hawaii, Department of Transportation, Airports Division 

(DOTA) is requesting assistance from the FAA in identifYing a suitable 

parachute drop zone at HNM that provides an acceptable level of safety. 

This is in reference to the informal determination by FAA Western 

Region, Mr. Anthony Garcia's email on May 18, 2010, that the DOTA 

21 
prohibition of skydiving activity at Hana Airport (HNM) constitutes a 

violation of Grant Assurance 22. 22 

FAA 's expert assistance from the Flight Standards District Office 

(FSDO) is essential as we develop Minimum Standards for aeronautical 

activities at HNM Specific guidance has been developed for helicopter 

activities at HNM FSDO has the expertise in skydiving as personnel 

have been certified with USP A D licenses. 

The available operating areas at HNM are very limited In order to 

develop and establish skydiving standards, the identification of a suitable 

drop zone must first be accomplished The desired drop zone identified 

by Mr. Hinshaw is an area that is now designated for transient 

helicopter parking and is bounded by the runway and taxiway safety 

areas on all sides. 

Please contact the FSDO for their assistance with identifYing a suitable 

drop zone for HNM as we review and develop plans to support this 

skydiving activity. " 

[Exhibit 7, Item 1, Exhibit 10] 

On May 15, 2011, more tban 19 months after agreeing to develop and implement operating rules 

and standards for skydiving operations, tbe Respondent issued draft revisions to Hawaii 

Administrative Rules (HAR 19-13) to allow skydiving operations at HNM23 Public comments 

were requested to be submitted for consideration by June 15, 2011. The public notice states in 

part: 

"A skydive company is seeking to begin skydiving operations at Hana 

Airport. The FAA conducted a risk assessment and determined that the 

State of Hawaii, DOT Airports Division (DOTA) must allow skydiving at 

Hana. The FAA also recommended DOTA develop a set of minimum 

standards to govern activity at Hana. Under state law, such rules 

follow the rulemaking process delineated in Hawaii Revised Statutes 

(HRS) Chapter 91 and are incorporated into Hawaii Administrative 

Rules (HAR). " 

[FAA Exhibit 7, Item 1, Exhibit 9, p.l] 

22 The Director notes that the evidence of record does not indicate the extent to which the HNL FSDO provided assistance to the 

State in identifying a suitable drop zone at HNM. While the FAA Western Pacific Region Airports Office may have wished to 

spur the State forward with an informal finding of non-compliance with Grant Assurance 22, Economic Nondiscrimination, the 

Record does not substantiate that an informal finding of non-compliance with Grant Assurance 22 was put forth by the Region. 23 According to internal communications predating the filing of this Complaint, on March 24, 2011, the Respondent apparently 

hosted an airport user meeting in Kahului, Maui to review the draft Hana Airport Operating Rules and Standards. However, 

neither of the parties to the Complaint provided to the Record evidence of such meeting. 

22 
"We request you review the draft proposed rules and submit your 

comments by June 15, 2011. Once all comments are reviewed, we will 

send out the revised rules and once the proposed rules are finalized, 

public meetings will be held, as required by HRS Chapter 91." 

[FAA Exhibit 7, Item 1, Exhibit 9, p.1] 

The Director notes that the Respondent did not provide a specific or estimated schedule 

or timeline for the finalization and implementation of the draft Operating Rules and 

Standards. The Director further notes that, as of the filing of the instant Complaint and 

the subsequent pleadings, the draft Operating Rules and Standards have not been 

finalized or implemented and commercial skydiving operations remain prohibited at 

HNM. 

FAA Investigation 

On February 4, 2013, the Director determined that limited additional information was required to 

supplement the Respondent's pleadings in the matter. Specifically, the Director requested the 

Respondent provide evidence to substantiate that it is actively pursuing finalization and 

institution of the draft Hana Airport Operating Rules and Standards pursuant to the agreement 

entered into by the Respondent at the informal resolution meeting of October 7, 2009. The 

Director noted that the Respondent could satisfY this request by providing documentary evidence, 

including, but not limited to, a current legislative calendar, current legislative agenda, formal 

procedures and/or timeline for the adoption of or amendment of Hawaii State rules, or other 

official documentation indicating that that Respondent is actively pursuing finalization of the 

draft skydiving rules for HNM. [FAA Exhibit 14, Item 1] 

On February 13, 2013, the Respondent replied to the Director's information request by indicating 

that it was no longer pursuing finalization and implementation of the draft Operating Rules and 

Standards due to the FAA's publishing of Draft Advisory Circular 150/5300-13 Change 19, 

which proposed to establish new standards and recommendations for parachute landing areas on 

airports24• The Respondent contends that the proposed new parachute landing area standards 

would require the sponsor to designate a landing area with dimensions the Airport could not 

accommodate. In part, the response states: 

"Respondent was in the process of undertaking a rule making procedure 

to adopt rules and regulations for commercial skydiving activities at 

Hana Airport pursuant to its Hawaii Administrative Procedure Act 

("Skydiving Rules"). Respondent, however, was required to delay this 

undertaking. During July of 2012, the Federal Aviation Administration 

(FAA) announced the publication of DRAFT AC 150/5300-13 CHG 19 to 

AC 150/5300-13 Section 214 Guidance for Parachute Landing Area 

("Draft Change 19 ") which establishes a minimum size and set back 

24 See Federal Register Volume 77, Number 128 (Tuesday, July 3, 2012) 

23 
standards for a parachute landing area (PLA) on an airfield. This 

change would have required a PLA of at least 84,500 square feet for 

tandem parachute use which is an area considerably larger than the 

area available for use as a PLA at the Hana Airport." 

[FAA Exhibit 14, Item 2, pg. 1-2] 

The Respondent further explained its rationale for delaying the rulemaking 

process: 

"Pending further elaboration by FAA, it was no longer logical to pursue 

the Skydiving Rules which would adopt a program that would be in 

violation of FAA based on Respondent's understanding that Change 19 

was supposed to be incorporated into the update to AC 150/5300-13 

published as AC 150/5300-13A, dated 09/28/2012." 

[FAAExhibit14,Item2,pg. 2-3] 

"FAA has not to date issued a determination on the status of PLA 

standards at airfields and efforts to undertake the rule making procedure 

to create a set of rules governing an activity that would not comply with 

FAA standards were held in abeyance, especially since the PLA 

standards are viewed by the Respondent presumptively to be related to 

safety reasons. " 

[FAA Exhibit 14, Item 2, pg. 3] 

In addressing allegations of noncompliance, the FAA makes its determination based on whether 

an airport sponsor is currently in compliance with the applicable federal obligations. 

Consequently, the FAA also considers the successful action by the airport to cure any alleged or 

potential past violation of applicable federal obligation to be grounds for dismissal of such 

allegations. [See Wilson Air Center v. Memphis and Shelby County Airport Authority, FAA 

Docket No. 16-99-10, (August 30, 2001) (Final Decision and Order).] 

In the instant Complaint, the Director notes that the Respondent affirmatively agreed to develop 

and implement commercial skydiving rules and standards for HNM, thereby allowing skydiving 

operations to take place on the Airport. [Exhibit 7, Item 1, Exhibit 10] Such successful actions 

by the Respondent could be considered by the Director to be an action taken to positively cure 

allegations that it is unjustly denying aeronautical access to a legitimate aeronautical activity. 

However, the Respondent acknowledges that the Hawaii Administrative Rulemaking process has 

been stayed and the finalization and implementation of the skydiving Operating Rules and 

Standards is no longer being pursued due to the FAA's issuance of Draft Change 19 to AC 

150/5300-13. [FAA Exhibit 14, Item 2, pg. 2-3] As previously noted, the Respondent asserts 

that the FAA's Draft Change 19 would effectively put in place parachute landing area standards 

that the Respondent could not comply with at HNM, therefore providing the Respondent with 

24 
justification to no longer pursue the finalization and implementation of the draft skydiving 

Operating Rules and Standards. 

The Director rejects this reasoning. The FAA maintains the sole discretion for the timing, 

content, and issuance of proposed and final changes to its rules, orders, advisory circulars, etc?5 

Additionally, the Director concludes that a federally-obligated airport sponsor may not abdicate 

its responsibility to maintain current compliance with its federal obligations during the pendency 

of proposed or future Federal statutes, regulations, or guidance. 

Accordingly, in reviewing the Complainant's allegation pertaining to denial of access in violation 

of Grant Assurance 22, the Director will address this allegation within the context of events that 

have occurred after the 14 CFR §16.21 informal resolution meeting of October 7, 2009, in which 

the State agreed to allow commercial skydiving access to HNM pending the development of 

State-approved skydiving rules and standards in accordance with the Hawaii Administrative 

Rulemaking process. 

Issue I Analysis 

Grant Assurance 22 requires an airport sponsor to operate the airport for the use and benefit of 

the public and to make it available to all types, kinds, and classes of aeronautical activity on fair 

and reasonable terms, and without unjust discrimination. FAA Order 5190.6B clearly defmes 

parachute activities as an aeronautical activity. [FAA Order 5190.6B, Appendix Z at 314] 

Upon consideration of all of the arguments made by the parties, and since the pertinent issue here 

is whether the Respondent's actions are consistent with its obligation to provide reasonable and 

not unjustly discriminatory access to HNM, the Director organized the issues adjudicated under 

Issue I to include an analysis of HNM's pending 14 CFR Part 139 certification, the respondents 

objection due to safety concerns, good faith efforts to resolve the Respondent's objections, and 

the Respondent's decision to halt the proposed addition to Hawaii Administrative Rules. 

14 CFR Part 13 9 Airport Certification 

The Respondent, on at least two occasions, uses HNM' s pending certification under 14 CFR Part 

13926 to demonstrate its rationale that the Complainant's request to begin commercial skydiving 

operations may not be tenable: 

I) On October 12, 2007, the State responds to the Complainant's request to begin skydiving 

operations by indicating that "significant changes" have taken place at the Hana Airport, 

25 49 U.S. C. § 106 provides that the FAA Administrator is authorized to the promulgate regulations, rules, orders, circulars, 

bulletins, and other official publications of the Administration. 49 U.S.C. § 106 also provides that the Administrator may also 

issue, rescind, and revise such regulations as are necessary to cany out the functions of the Administrator. 26 The State of Hawaii, Department of Transportation, Airports Division indicated in a letter to the FAA Airports Western-Pacific 

Regional Office on January 5, 2012, that the State was in the process of taking steps to re-certify HNM under 14 CFR Part 139. 

[FAA Exhibit 13, Item 1] We understand that the HNL ADO perfonned a preliminary inspection and identified required 

improvements before the airport could obtain certification. As of the issuance of this Preliminary Director's Determination, 

HNM is not certificated under 14 CFR Part 139. 

25 
including recent "14 CFR Part 139 certification" to accommodate scheduled au earner 

operations. [FAA Exhibit 1, Item 1, Exhibit 2] 

The assertion appears to be that the Airport is not a good candidate for commercial skydiving 

operations due to the presence of scheduled air carrier operations at HNM. 

2) The Respondent confirms this assertion in its Answer: 

"Parachute operations at Hana Airport should not be allowed to 

commence until these [skydiving] rules and regulations are properly 

adopted as required by Hawaii law. The safety rules are most important 

for the State's application for recertification of Hana Airport under 14 

CFRPart 139." [FAAExhibit3,Item 1,pg. 3-4] 

The Director commends the Respondent for its careful attention to the safety of operations at 

HNM. However, FAA Order 5190.6B clearly defines skydiving operations as an aeronautical 

activity [FAA Order 5190.6B, Appendix Z at 314]. As such, federally-obligated airports may 

not arbitrarily prohibit commercial skydiving operations for merely existing as a certificated 

airport, or for merely seeking to achieve Part 139 certification at a later date. Further, the 

presence of skydiving operations on a federally-obligated airport would not necessarily 

jeopardize the Airport's application for Part 139 certification. In all cases, both certificated and 

non-certificated airports must comply with their obligations under the federal grant assurances to 

provide reasonable and not unjustly discriminatory aeronautical access to the airport. 

Accordingly, the Director must reject the Respondent's assertion that current or pending 

certification under 14 CFR Part 13 9 is in and of itself a legitimate basis for denying the 

Complainant's request to begin commercial skydiving operations at HNM. 

Respondent's Objection Due To Safetv Concerns 

The Director notes that after the informal resolution meeting between the parties, the Respondent 

appeared motivated to resolve the ongoing airport access dispute and thus agreed to rescind its 

objection to the establishment of commercial skydiving operations at HNM. However, that 

motivation was short-lived. The Director notes that at least two objections were put forth by the 

State, each on the basis of safety, approximately three months after it had agreed to develop rules 

and standards to allow skydiving operations at HNM. 

In the 90 days after the informal resolution meeting, the Respondent lodged the following 

objections: 

1. Letter of December 9, 2009: The Respondent maintains general objections with the findings 

of the multiple safety, utility, and efficiency assessments performed by the FAA in its 

evaluation of the feasibility of skydiving operations at HNM: 

"As you know, the October 7, 2009, meeting was held pursuant to your 

request as provided under 49 CFR 16.21. During this informal 

26 
resolution meeting, the attendees, which included DOT personnel, 

representatives from several FAA offices, Mr. Frank Hinshaw and 

yourself, discussed in general your client's business proposal to conduct 

skydiving at Hana Airport, the written communications among FAA, 

DOT, and your client, and the several safety concerns of the DOT 

My client [Respondent] believes that further investigation by the FAA is 

warranted Pursuant to 14 CFR Part 16, and FAA Order 5190.6B, 

Sections 14.3 and 14. 5, my client is requesting that the Hawaii FAA 

offices provide comprehensive safety, utility, and efficiency assessments. 

We do not believe that such assessments were performed by the FAA. " 

[FAA Exhibit 7, Item 1, exhibit 5, pg. 1] 

2. Letter of December 30, 2009: The Respondent remains opposed to permitting skydiving 

operations at the Airport due to safety concerns related to air traffic coordination, drop zone 

size and location, limited emergency response capability, variable weather, and scheduled 

passenger operations: 

"The State of Hawaii, Department of Transportation, Airports Division 

(DOT-A) remains opposed to permitting skydiving operations at the 

Hana Airport located on the island of Maui. Of primary concern is the 

safety of the activity. " 

[FAA Exhibit 7, Item 1, exhibit 6, pg. 1] 

The State's objections are in direct conflict with the agreement established by the parties in 

conjunction with the 14 CFR § 16.21 informal resolution meeting. The Director also notes that 

the evidence of record indicates that at no time has the Respondent acknowledged the FAA's 

safety expertise and authority in this area. 

FAA Policy on Restrictions on Aeronautical Activities for Safety Reasons 

While the airport sponsor must allow use of its airport by all types, kinds, and classes of 

aeronautical activity, as well as by the general public, Grant Assurance 22, Economic 

Nondiscrimination, also provides for a limited exception: "the airport sponsor may prohibit or 

limit any given type, kind, or class of aeronautical use of the airport if such action is reasonable 

and necessary for the safe operation of the airport or necessary to serve the civil aviation needs of 

the public." A prohibition or limit may be based on safety or on a conflict between classes or 

types of operations. Any restriction proposed by an airport sponsor based upon safety and 

efficiency must be adequately justified and supported. [FAA Order 5190.6B, Parag. 14.3] 

In all cases involving restrictions on airport use imposed by airport owners for safety and 

efficiency reasons, FAA will make the final determination on the reasonableness of such 

27 
restrictions when those restrictions deny or limit access to, or use of, the airport. [FAA Order 

5190.6B, Parag. 14.3] 

For the purpose of making a final determination on reasonableness, when aviation safety is at 

issue, FAA safety determinations made pursuant to the Federal Aviation Regulations take 

precedence over any airport sponsor views on safety as well as any local ordinances or local 

actions addressing safety. This is especially true for determining compliance with Federal 

obligations in cases where restrictions are imposed by the airport sponsor in the interest of safety. 

In short, FAA has preempted flight safety and the control of navigable airspace under 49 U.S.C. 

§ 40103. The Federal Aviation Act of 1958, as amended and recodified, 49 U.S.C., § 40101, et 

seq., was enacted to create a "uniform and exclusive system of Federal regulation" in the field of 

air safety. City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 639 (1973). The Federal 

Aviation Act was "passed by Congress for the purpose of centralizing in a single authority -

indeed, in one administrator - the power to frame rules for the safe and efficient use of the 

nation's airspace." Air Transport Association of America, Inc. v. Cuomo, 520 F.3d 218, 224-

225 (2d Cir. 2008), citing Air Line Pilots Assn., Int'l v. Quesada, 276 F.2d 892, 894 (2d Cir. 

1960); see also, British Airways Bd. v. Port Auth. ofN.Y. & N.J., 558 F.2d 75,83 (2d Cir. 1977) 

("[The FAA] requires that exclusive control of airspace management be concentrated at the 

national level."). Congress and FAA have used this authority to enact rules addressing virtually 

all areas of air safety. These regulations include a general standard of care for operating 

requirements, see, e.g., 14 CFR, § 91.13(a) ("No person may operate an aircraft in a careless or 

reckless manner so as to endanger the life or property of another.") and extend to grounded 

planes and airport runways. See id, § 91.123 (requiring pilots to comply with all orders and 

instructions of air traffic control); id, § 139.329 (requiring airports to restrict movement of 

pedestrians and ground vehicles on runways). The intent to centralize air safety authority and the 

comprehensiveness of these regulations pursuant to that authority have led Federal courts to 

conclude that Congress intended to occupy the entire field and thereby preempt state regulation 

of air safety. See, e.g., Montalvo v. Spirit Airlines, 508 F.3d 464, 468 (9th Cir. 2007) ("[T]he 

FAA preempts the entire field of aviation safety through implied field preemption. The FAA and 

regulations promulgated pursuant to its establish complete and thorough safety standards for air 

travel, which are not subject to supplementation by [ ... ] state laws."); Greene v. B.F. Goodrich 

Avionics Sys., Inc., 409 F.3d 784, 795 (6th Cir. 2005), cert. denied, 547 U.S. 1003 (2006); 

Abdullah v. American Airlines, Inc., 181 F.3d 363, 367-68 (3d Cir. 1999). 

In addition to the extensive authority noted above, Orange Countv Soaring Association Inc. v. 

Riverside Countv, California and a number of additional Part 16 decisions speak to the FAA's 

preemption of aviation safety. In Orange County Soaring, the Director stated: 

[F]or the purpose of making a final determination on reasonableness when aviation 

safety is at issue, FAA safety determinations pursuant to the Federal Aviation 

Regulations take precedence over any airport sponsor views or local ordinances 

pertaining to safety27 This is especially true when the Director is asked to make a 

27 See also Drake Aerial Enterprise. LLC v. City of Cleveland, Ohio, FAA Docket No. 16-09-02, (February 22, 

20 I 0) (Director's Determination) at 14; In tbe Matter of Compliance witb Federal Obligations by the City of Santa 

28 
determination regarding a sponsor's compliance with its federal obligations in cases 

where restrictions or limitations are instituted in the interest of safety. Under 49 

US. C. § 40103, the FAA develops plans and policy for the use of the navigable 

airspace and assigns by regulation or order the use of the airspace necessary to 

ensure the safety of aircraft and the efficient use of airspace. 

[Orange County Soaring Association Inc. v. Riverside County, California, FAA Docket 16-09-

13, Director's Determination (February 11, 2011), p. 22, see also FAA Exhibit 1, Item 21, p. 29] 

(Internal citations omitted) 

It appears that the Respondent gave no deference or weight to FAA's safety judgment in the 

several safety risk evaluations performed on behalf of both parties to the Complaint. 

In the instant case, the HNL FSDO and HNL ADO were intimately aware of the restriction on 

commercial skydiving operations at the Airport. In fact, four ( 4) safety risk evaluations were 

conducted by the FAA before the Complainant filed the instant Complaint. In each instance, 

the FAA's Western Pacific Region and Honolulu ADO assisted the parties to the Complaint by 

coordinating safety risk stndies with FAA Flight Standards and the FAA Air Traffic 

Organization. The findings of the safety risk evaluations, as provided to the parties of the 

Complaint, include: 

• November 20, 2007: The HNL FSDO issued a letter to the asserting that skydiving 

operations can be safely conducted at HNM if the Respondent holds scheduled airport 

user meetings, develops an airport operations SOP, and closely monitors airport activities 

to ensure safe operations. [FAA Exhibit 1, Item 1, Exhibit 3] 

• August 4, 2008: The HNL FSDO issued a letter to the Respondent indicating that 

parachute operations "increases the safety risk" without the existence of "[p ]roper 

coordination and communication" procedures at HNM. [FAA Exhibit 7, Item 1, Exhibit 

2] 

• March 16, 2009: The HNL FSDO issued a memorandum to A WP-620 reaffirming the 

findings of the November 20, 2007 safety analysis that parachuting activities can be 

safely conducted at Hana Airport if certain proactive measures are taken by the sponsor to 

ensure safety. [FAA Exhibit 1, Item 1, Exhibit 6] 

• February 10, 2010: The HNL FSDO issued a letter outlining the results of a safety risk 

assessment performed by the HNL FSDO. The letter included a number of airport 

operational considerations to take into account pertaining to parachute operations at 

HNM The FSDO concluded that skydiving operations at HNM present a "moderate 

risk" [Exhibit 7, Item 1, Exhibit 7] 

Monica, California, FAA Docket No. 16-02-08, (July 8, 2009) (Final Agency Decision) at 28; Skydive Paris Inc. v 

Henry Connty, Tennessee, FAA Docket No. 16-05-06, (January 20, 2006) (Director's Determination) at 15; and 

Florida Aerial Advertising v St. Petersburg-Clearwater International Airport, FAA Docket No. 16-03-01, (December 

18, 2003) (Director's Determination) at 11. 

29 
Additionally, FAA Order 5190.6B, Paragraph 14.7, Reasonable Accommodation, provides 

further insight into FAA policy regarding acceptable alternative methods and measures for 

accommodating aeronautical activity where the safety and efficiency of the activity is questioned: 

"A complete prohibition on all aeronautical operations of one type, such 

as ultralights, gliders, parachute jumping, balloon and airship 

operations, acrobatic flying, or banner towing should be approved only 

if the FAA concludes that such operations cannot be mixed with other 

traffic without an unacceptable impact on safety or the efficiency and 

utility of the airport. When it is determined that there are less restrictive 

ways or alternative methods of accommodating the activity while 

maintaining safety and efficiency, these alternative measures can be 

incorporated in the sponsor's rules or minimum standards for the 

activity in question at that airport. " 

When making a finding under 14 CFR Part 16 regarding matters of aviation safety, the Director 

may rely on other offices within the FAA for their safety expertise and experience.28 In the 

instant case, the Director relies on the conclusions made by Flight Standards and the Air Traffic 

Organization. Both HNL Flight Standards and the Air Traffic Organization have concluded, on 

multiple occasions and without significant deviation from previous safety and risk evaluations, 

that the Complainant's proposed skydiving operation at Hana Airport can be conducted safely 

with proper coordination, communication, and airport operational procedures in place. Given 

the findings of the multiple safety risk evaluations performed by the HNL FSDO the FAA Air 

Traffic Organization, the Director believes there is sufficient evidence to find that skydiving 

operations at Hana Airport can be safely accommodated and that adequate measures can be taken 

to accommodate those operations safely and efficiently and in accordance with the applicable 

Federal obligations. 

The Director's conclusion is consistent with FAA Order 5190.6B, Paragraph 14.7, in that the 

FAA's multiple safety risk evaluations did not conclude that parachute operations carmot be 

mixed with other airport traffic at HNM. Rather, the FAA's safety evaluations provided multiple 

mitigation measures the Respondent could implement to safely accommodate parachuting 

activity at HNM, including the development of airport rules and regulations. Accordingly, the 

Director rejects the Respondent's continued assertion that skydiving operations should not be 

allowed at HNM on the basis of safety. 

Good Faith Efforts to Resolve the Respondent's Objections 

28 See Jeff Bodin and Garlic City Skydiving vs. County of Santa Clara, California FAA Docket 16~11-6, (Director's 

Determination)(December 19. 2011) at 29. 

30 
The Director notes that during the multi-year period in which the Respondent was developing 

skydiving rules and standards as agreed, the Complainant continued to attempt to negotiate in 

good faith with the Respondent to obtain aeronautical access to the Airport?9 

The Complainant's Reply states: 

"All that remains is airport management approval to begin operations. 

Even though the State has not established any airport operational rules 

or required a memorandum of understanding for Complainant's 

operations at Dillingham and Upolu airports, Complainants are willing 

to agree to a memorandum of understanding at Hana that sets out 

airport-specific operations such as closing the gates at night and taking 

down the wind blades. " 

[FAA Exhibit 6, Item 1, pg. 3] 

In an email from the Complainant to the Respondent on April6, 2012: 

"I am approaching you to suggest we ask the FAA to essentially put this 

matter on hold for a month. (My experience is that they will do so as 

they encourage voluntary resolution of these matters.) I believe that 

because you have acted as you did on Upolu, that policies and 

procedures for skydiving on Hana can be worked out following the 

United States Parachute Association guidelines and safoty rules in that 

time. (My client is willing to work with you on this process and I have 

been advised that the USP A is willing to assist.)" 

[FAA Exhibit 6, Item 1, Exhibit 1] 

In an email from the Complainant to the Respondent on April20, 2012: 

"In order to see what can be done to move forward on the long-delayed 

Hana memorandum of understanding, is there a person Mr. Hinshaw 

[Complainant] can meet with to discuss the terms? He has been in the 

skydiving business for some time and his expertise might help move 

things along. I am also advised that the USP A [United States Parachute 

Association] is willing to be involved and lend its expertise to this 

process." 

[FAA Exhibit 6, Item 1, Exhibit 3] 

In an email from the Complainant to the Respondent on April30, 2012: 

29 14 CFR § 16.2l(a) states: "Prior to filing a complaint under this part, a person directly and substantially affected by the alleged 

noncompliance shall initiate and engage in good faith efforts to resolve the disputed matter informally with those individuals or 

entities believed responsible for the noncompliance." 

31 
"I haven't heard from you on [sic J regarding my email asking about 

progress on the skydiving procedures on Hana and whether there was a 

way for Mr. Hinshaw to get involved to expedite the process. " 

[FAA Exhibit 6, Item 1, Exhibit 4] 

Notwithstanding the Complainant's good faith efforts to assist the process, the Respondent 

maintains that the ongoing development of skydiving rules and regulations is sufficient basis to 

continue to deny the Complainant access to the Airport: 

" ... the State is currently in the process of adopting administrative rules 

and regulations through the rulemaking procedure required under 

Hawaii law for the Hana Airport. The State cannot issue a confirmation 

of its approval for Complainant to begin parachute operations at Hana 

Airport until after the completion of this rulemaking procedure and the 

formal adoption of rules and regulations. " 

[FAA Exhibit 3, Item 1, pg. 2] 

Again, the FAA strongly encourages the parties to engage in good faith efforts to resolve 

disputed matters. The Record indicates that the Complainant has gone above and beyond what 

could only be considered to be reasonable attempts to negotiate aeronautical access with the 

Respondent prior to the filing of the instant Complaint. 

Respondent's Decision to Halt the Proposed Addition to Title 19 Chapter 13, Hawaii 

Administrative Rules, Aircraft Operations at Public Airports 

On May 15, 2011, the State issued draft revisions to Hawaii Administrative Rules (HAR 19-13)30 

in the form of Hana Airport Operating Rules and Standards, to allow skydiving operations at 

HNM31 • Public comments were requested for consideration by June 15, 2011. While this was a 

significant step towards resolution of the clispute, the Director notes that more than 19 months 

lapsed from the time the State agreed to develop operating rules and standards and the actual 

issuance of the draft revisions. Also, in the nearly three years since the public comment period 

closed, the State has not acted to finalize and implement the draft Operating Rules and 

Standards, and by extension has not allowed commercial skydiving operations at Hana Airport 

Cumulatively, the Complainant's request for aeronautical access has been denied for nearly seven 

years. 

As previously noted in FAA Investigation above, the Director requested the Respondent provide 

evidence to substantiate that it is actively pursuing finalization and institution of the draft Hana 

Airport Operating Rules and Standards pursuant to the agreement entered into by the 

30 Hawaii Administrative Rules, Title 19, Chapter 13, Aircraft Operations at Public Airports governs the safe and orderly 

operations of aircraft at public airports in the State of Hawaii. 31 Per email to Complainant from HNL ADO on June 24, 2011 [see FAA Exhibit 7, Item!, Exhibit 12] 

32 
Respondent at the informal resolution meeting of October 7, 2009. [FAA Exhibit 14, Item 1] 

The Respondent responded that the proposed new parachute landing area standards would 

require the sponsor to designate a landing area with dimensions the Airport could not 

accommodate. [FAA Exhibit 14, Item 2, page 2] 

As a result, the Respondent stayed its HAR process and held in abeyance finalization of the 

Operating Rules and Standards, although no such stay or abeyance was communicated with 

either the Complainant or the HNL ADO. The Respondent apparently stayed the HAR process 

immediately upon the FAA's issuance of Draft Change 19 on July 3, 2012: 

"Pending further elaboration by the FAA, it was no longer logical to 

pursue the Skydiving Rules which would adopt a program that would be 

in violation of FAA based on Respondent's understanding that Change 

19 was supposed to be incorporated into the update to AC 150/5300-13 

published as AC 150/5300-13A, dated 09/28/2012." 

[FAA Exhibit 14, Item2, page 3] 

By email of 06/18/2012 (more than two weeks prior to the issuance of Draft Change 19), the 

HNL ADO requested the Respondent provide a status update on the revisions to the Operating 

Rules and Standards. The Respondent replied by email of07/03/2012, the day of the issuance of 

Draft Change 19, stating: 

"Sorry for the delay getting back to you-I've been under the weather. 

The recently published "Draft Change 19 toAC 150/5300-13 establishes 

uniform standards for siting and designation of parachute landing areas 

(P LA) at airports. The final version of Change 19 will be incorporated 

into AC 150/5300-13A, scheduled for publication by end ofSep. 2012. 

The proposed PLA at Hana appears to not be in compliance with the 

new standards. Request a determination, especially in light of the 

ongoing Part 139 certification initiative for that airport. " 

[FAA Exhibit 19, Item 1] 

In context, it appears the Respondent's request for a "determination" meant the Respondent was 

seeking guidance on whether the proposed PLA at HNM would be in compliance with the 

proposed PLA siting and dimensional standards in Draft Change 19. The evidence of record 

does not indicate that the HNL ADO provided specific guidance in response to the Respondent's 

email of July 3, 2012. Nevertheless, the Director is unsure what specific "determination" the 

HNL ADO could have made other than to concur (or non-concur) with the Respondent's 

interpretation of Draft Change 19. The Director observes that even if the HNL ADO had 

concurred (or non-concurred) with the Respondent's interpretation of Draft Change 19, the fact 

that Draft Change 19 was published in a Federal Register Notice in draft format seeking public 

comment would have necessarily precluded the HNL ADO from making a formal 

33 
"determination" on the ability of the Respondent to comply with the draft standards until Draft 

Change 19 was made final through the FAA's established notice and comment procedures. 

Further, the Director observes that the HNL ADO is not in a position to advise the Respondent 

on State-level rulemaking processes, but rather can only advise the Respondent of its obligation 

to operate HNM in accordance with its federal obligations under the FAA grant assurances. 

The Director also points to an email of 02111/2013, from Hank Bruckner, General Aviation 

Officer for the Respondent, to Glenn I. Kimura of the Hawaii State Deputy Attorney General's 

Office32 explaining the Respondent's previous decision to not pursue the Hawaii Administrative 

Rulemaking process, stating in full: 

Glenn, 

The FAA announced the publication of the draft Change 19 to AC 

150/5300-13 in July, 2012, (see copy of my email, below) that would 

establish a minimum size and set back standards for a parachute landing 

area (P LA) on an airfield. This change would have required a P LA of at 

least 84,500 square feet for tandem parachute use, which would have 

been considerably larger than the area available for use as a P LA at 

Hana. Compliance with the new P LA standards contained in the change 

was to be retroactive, so that airports that had existing P LAs that did not 

meet the new standards would have to comply within 60 months. Pending 

fort her elaboration by FAA, it no longer made sense to pursue a change 

to the Hawaii Administrative Rules to allow something that would be in 

violation of FAA standards and I so advised ADO. Change 19 was 

supposed to be incorporated into the update to AC 150/5300-13, 

published as AC 150/5300-J3A, dated 09/28/2012; however, change 19 

and references to P LAs were not included in the revised A C. I then 

queried FAAIHNL ADO (Mr. Gordon Wong) to determine the status of 

the guidelines contained in the draft Change 19 and was told that FAA 

was still working on it and might re-issue the standards as a stand-alone 

Advisory Circular. As of 8 Feb, 2013, FAA has not issued a 

determination on the status of P LA standards at airfields and I remain 

reluctant to complete the HAR process to create a set of rules governing 

an activity only to find that the activity would not comply with FAA 

standards. 

Hank Bruckner 

[FAA Exhibit 20, Item I] 

It is clear to the Director that the Respondent is reluctant to pursue finalization and 

implementation of the Operating Rules and Standards given the FAA's issuance of Draft Change 

32 The Hawaii State Attorney General's Office represents the State of Hawaii (Respondent) 

34 
19, regardless of the HNL ADO's guidance, or lack thereof. Instead, the Respondent apparently 

chose to stay the HAR process on its own accord in July 2012 without communicating its intent 

to the Complainant. The Respondent's email of 02111/2013 corroborates its decision to stay the 

HAR process by citing an undated query to the HNL ADO in which the HNL ADO is said to 

have advised the Respondent that the FAA may pursue Draft Change 19 in a differing format at 

another time. In other words, the HNL ADO did not know whether or when the FAA might issue 

final PLA standards, in what format those standards may be issued, or to what degree the PLA 

standards might affect the Respondent's proposed PLA at HNM, if any. Nevertheless, the 

Respondent erroneously relied upon the HNL ADO's vague response to justifY continuing to 

deny the Complainant aeronautical access to HNM under the guise that Draft Change 19 might, 

at some later date, " ... create a set of rules governing an activity only to find that the activity 

would not comply with FAA standards." [FAA Exhibit 20, Item 1] The Director is not persuaded 

that the Respondent's efforts to obtain a "determination" from the HNL ADO, and the lack of a 

specific "determination" from the HNL ADO, is in and of itself a reasonable justification to 

continue denying the Respondent access to HNM. Instead, the Director concludes that the 

Respondent should have moved to finalize and implement the Operating Rules and Standards 

regardless of the FAA's issuance of Draft Change 19 in July 2012, and most certainly upon the 

FAA's issuance of fmal Advisory Circular 150/5300-13A in September 2012, and thus granted 

aeronautical access to the Complainant. 

The Director believes it is pertinent to again point out that the FAA maintains the sole discretion 

for the timing, content, and issuance of proposed and fmal changes to its rules, orders, advisory 

circulars, etc33 Additionally, the Director concludes that a federally-obligated airport sponsor 

may not abdicate its responsibility to maintain current compliance with its federal obligations 

during the pendency of proposed or future Federal regulations, or policy guidance. 

Accordingly, the Director concludes that, while the FAA's issuance of Draft Change 19 might 

have generated some concern as to whether the Respondent could in fact comply with the 

proposed PLA siting and dimensional standards at HNM, the Respondent is obligated to remain 

in current compliance with its federal obligations to provide reasonable and not unjustly 

discriminatory access to HNM in accordance with Grant Assurance 22 regardless of the status of 

pending or future FAA guidance34. 

Issue 1 Findings and Conclusion 

As noted, the Respondent agreed in October 2009 to develop and implement operating rules and 

standards governing skydiving operations at HNM. Since that time, the Respondent has 

developed only draft Hana Airport Operating Rules and Standards. It has failed to finalize and 

implement those standards and has not allowed commercial skydiving operations to commence at 

33 49 U.S.C. § 106 provides that the FAA Administrator is authorized to the promulgate regulations, rules, orders, circulars, 

bulletins, and other official publications of the Administration. 49 U.S.C. § 106 also provides that the Administrator may also 

issue, rescind, and revise such regulations as are necessary to carry out the functions of the Administrator. 34 The FAA's role in a Part 16 Complaint is to determine whether the Respondent is in current compliance with its federal 

obligations. [See Platinum Aviation and Platinum Jet Center BMI v. Bloomington-Normal Airnort Authority, FAA Docket No. 

16-06-09 (November 28, 2007) (Final Decision and Order), page 25.] 

35 
the Airport. More than seven years after the Complainant's initial request for aeronautical 

access, the Respondent has yet to grant access to a legitimate aeronautical activity. 

The Director acknowledges that the issuance of Draft Change 19 may have raised an issue 

regarding the Respondent's ability to implement the FAA's proposed PLA siting and 

dimensional standards at HNM due to space constraints at the Airport. The Director also 

acknowledges that the timing of the issuance of Draft Change 19 was a factor in the 

Respondent's decision to stay the Hawaii Administrative Rulemaking process and put into 

abeyance the finalization of the Operating Rules and Standards. 

However, the Director finds that the Respondent's rationale for staying the HAR process cannot 

supersede or otherwise distract from the Respondent's previous denial of access to the 

Complainant in the period leading up to the issuance of Draft Change 19. Specifically, the 

Director cannot ignore that the Complainant first requested aeronautical access to HNM for a 

legitimate aeronautical operation in 2007, which pre-dates the issuance of Draft Change 19 by 

more than five years. (2007-2012) Similarly, the Director cannot ignore the nearly six years that 

have lapsed since the Respondent agreed forthrightly to develop and implement skydiving 

operating rules and standards for the Airport (2009 - 2014). The Director notes that, 

cumulatively, the Complainant has been denied aeronautical access to HNM more than 7 years. 

In Richard M. Grayson and Gate 9 Hangar. LLC v. DeKalb County. Georcia, (FAA Docket No. 

16-05-13) (February 1, 2006) (Director's Determination) at 12, the Director held that "inaction or 

omission can be the means by which unreasonable denial of access might be achieved." In 

Thermco Aviation. Inc., and A-26 Company v. City of Los Angeles. Los Angeles Board of 

Airport Commissioners. and Los Angeles World Airports (FAA Docket 16-06-07) (December 

17, 2007) (Final Agency Decision), the Director held that the airport sponsor does have an 

obligation to make available suitable areas or space on reasonable terms to those who are willing 

and otherwise qualified to offer aeronautical services to the public. 

The FAA has historically given airport sponsors wide latitude to develop and implement airport 

minimum standards, and the Director believes that the State has been afforded sufficient 

opportunity to pursue formal procedures for the adoption and/or amendment of Hawaii State 

rules to allow skydiving operations at HNM. Consistent with FAA policy, the Director finds the 

three years since the draft Operating Rules and Standards were issued to be more than sufficient 

time for the Respondent to adjudicate public comments and to finalize and implement the 

Operating Rules and Standards, even when consideration is given to the Respondent's claim that 

it should not fmalize the Operating Rules and Standards during the pendency of the FAA's July 

2012 issuance of Draft Change 19. To the contrary, the Director concludes that the Respondent 

should have moved to finalize and implement the Operating Rules and Standards regardless of 

the FAA's issuance of Draft Change 19 in July 2012, and most certainly upon the FAA's 

issuance of final Advisory Circular 150/5300-13A in September 2012, which officially omitted 

any reference to Section 214 Guidance for Parachute Landing Areas, as initially proposed in 

Draft Change 19. Consequently, the Director fmds that by failing to finalize and implement the 

Hana Airport Operating Rules and Standards, the State has effectively enacted a de facto ban on 

skydiving operations at HNM. 

36 
As such, the Director finds that the record is sufficient to determine that the time lapse between 

when the Respondent agreed to develop skydiving operating standards and the actual issuance of 

the draft Operating Rules and Standards, and the Respondent's prolonged and protracted delay 

in finalizing and adopting those Standards, can be construed as a constructive denial of access 

contrary to Grant Assurance 22, Economic Nondiscrimination. 35 Grant Assurance 22 requires 

the owner of any airport developed with federal grant assistance to operate the airport for the use 

and benefit of the public and to make it available to all types, kinds, and classes of aeronautical 

activity on fair and reasonable terms, and without unjust discrimination. Accordingly, the 

Director finds that inaction and delay by the Respondent effectively amounts to an unreasonable 

denial of access and is a prohibited act of economic discrimination?6 As such, the State of 

Hawaii, by unreasonably delaying the issuance, fmalization, and adoption of Operating Rules 

and Standards for the commencement of commercial skydiving operations at Hana Airport, is in 

violation of its Federal obligations regarding Grant Assurance 22, Economic Nondiscrimination, 

as set forth in 49 USC 47107(a)(1).37 

Issue 2: Whether the Respondent's failure to allow skydiving operations at Hana Airport 

constitutes a violation of Grant Assurance 5, Preserving Rights and Powers. 

Grant Assurance 5 specifically states: 

"The airport sponsor 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 assurances in the grant agreement without the written 

approval of the Secretary, and will act promptly to acquire, extinguish or modifY 

any outstanding rights or claims of right of others which would interfere with 

such performance by the sponsor. This shall be done in a manner acceptable to 

the Secretary. " 

The Complaint explains how the Respondent has violated Grant Assurance 5: 

"By taking no action, by refusing to act, the State has violated Grant Assurance 5, 

as its inaction effectively deprives it of rights and powers to perform in 

accordance with the requirements of the Grant Assurances ... " 

35 The FAA's role in a Part 16 Complaint is to determine whether the Respondent is in current compliance with its federal 

obligations. [See Platinum Aviation and Platinum Jet Center BMI v. Bloomington-Normal Aimort Authority. FAA Docket No. 

16-06-09 (November 28, 2007) (Final Decision and Order), page 25.] 36 Previously, the FAA has recognized that unreasonable delay amounts to denial of airport access. See, Jim Martvn v. Port of 

Anacortes, Wash., FAA Docket No. 16-02-03, at 31 (2003) (Director's Determination) (delay of three years); U.S. Constr. 

Corn. v. City of Pompano Beach, Florid!l, FAA Docket_No. 16-00-14 at 18-19 (2001) (Director's Determination) (delay of over 

a year); Centennial Express Airlines v. Arapahoe County Pub. Airnort Auth.; Kehmeier v. Arapahoe Countv Pub. Airnort 

Auth.; Centennial Express Airlines v. Arapahoe County Pub. Airport Auth, FAA Docket No. 16-98-05, at. 27 (1998) 

(Director's Determination) 37 The Respondent admits that the Hawaii Administrative Rulemaking process has been halted and the finalization and 

implementation of the Hana Airport Operating Rules and Standards are no longer being pursued. [FAA Exhibit 14, Item 2, 

page 2] The Director will further adjudicate this matter in Issue (3) of this Determination. 

37 
[FAA Exhibit 1, Item 1, pg. 11] 

The Respondent denies this allegation in its Answer: 

"The State denies any allegations of statutory violations. The State has not 

refUsed to act and continues to take action. " 

[FAA Exhibit 3, Item 1, pg. 2] 

Issue 2 Analysis 

Under Grant Assurance 5, an airport sponsor cannot take any action that may deprive it of its 

rights and powers to direct and control airport or to comply with the applicable Federal 

obligations. Grant Assurance 5 requires the airport sponsor not sell, lease, encumber, or 

otherwise transfer or dispose of any part of its title or other interests in the property shown on 

Exhibit A without the prior approval of the FAA. Of particular interest to the FAA is the 

granting of property interests to entities on the airport that may restrict the airport sponsor's 

ability to preserve its rights and powers to operate the airport in compliance with the applicable 

Federal obligations. 

For example, in Boston Air Charter v Norwood Airport Commission, Norwood, Massachusetts, 

[FAA Docket No. 16-07-03 (August 14, 2008) (Final Decision and Order)], the Director affirmed 

the right of access and the right to grant utility easements to maintain and install utilities are 

essential rights integral to the operation and development of any public use airport. The Director 

concluded the sponsor did not have control of its airport land in order to support development 

and growth of the airport in violation of Grant Assurance 5. [See Boston Air Charter v Norwood 

Airport Commission, Norwood, Massachusetts, FAA Docket No. 16-07-03 (August 14, 2008) 

(Final Decision and Order), page 26.] 

The Complainant's allegations concerning Grant Assurance 5, Preserving Rights and Powers in 

its Complaint, fall short. The Complainant alleges that the Respondent's "inaction effectively 

deprives it of rights and powers" to operate the airport in accordance with Grant Assurance 5. 

The Director is not persuaded. In order for the Director to fmd the Respondent to be in 

noncompliance with Grant Assurance 5, the Complainant would need to demonstrate in the 

record that the Respondent has taken a specific action that has deprived the Respondent of the 

rights or powers to control or operate the airport. While the Director found in Issue I above that 

inaction and delay by the Respondent effectively amounts to an unreasonable denial of access 

and is a prohibited act of economic discrimination, such inaction or delay does not demonstrate 

that the Respondent has been deprived of its rights and powers to control the airport. 

Issue 2 Findings and Conclusion 

The Director concludes that the Respondent's failure to act on the Complainant's request for 

aeronautical access carmot be construed to mean that the Respondent has taken or permitted an 

action is that would deprive it of any of the rights or powers necessary to perform all of the 

38 
terms, conditions, and/or assurances to the grant agreements for which it is Federally obligated. 

The Director finds the Respondent is not in violation of Grant Assurance 5, Preserving Rights 

and Powers. 

Issue 3: 

Whether the Respondent's failure to allow commercial skydiving operations at the Hana Airport 

results in a constructive granting of an exclusive right in violation of Grant Assurance 23, 

Exclusive Rights, 49 U.S.C. § 40103(e) and 49 U.S. C.§ 47107(a)(4). 

The Complaint alleges that the Respondent has violated Grant Assurance 23, Exclusive Rights 

through inaction and delay resulting in denial of access to a federally-obligated airport: 

"The State's failure to act on the matter amounts to a denial of airport access, 

which is an exclusive rights violation. " 

[FAA Exhibit 6, Item 1, p.4] 

The Complainant's Reply also introduces a much more specific allegation of a constructive 

granting of an exclusive right, stating: 

"The State was also committed to issue a memorandum of understanding or rules 

for allowing commercial helicopter operations on Hana Airport. It has not done 

so. However, it is allowing commercial helicopter operations to take place on 

the Airport. " 

[FAA Exhibit 6, Item 1, pg. 3] 

An allegation that certain aeronautical activities are positively allowed without operating rules 

and standards while access is prohibited to another aeronautical activity due to a lack of 

operating rules and standards warrants further investigation by the Director. 

Review of Pleadings 

The Director notes that the Respondent did not refute the Complainant's allegation that it 

is allowing commercial helicopter operations to take place at HNM in the absence of 

State-approved operating rules and standards. Conversely, the Complainant did not 

provide evidence that the Respondent is in fact allowing commercial helicopter 

operations to take place at Hana Airport in the absence of State-approved operating rules 

and standards. Although the Director contends that the Complaint is lacking sufficient 

supporting information specific to the instant allegation, the Director's investigation 

relies on the entirety of the record and includes a thorough examination of the evidence 

submitted in support of each pleading. In accordance with 14 CFR §16.29(b)(1), the 

Director's formal investigation may also be supplemented by pertinent FAA internal and 

external data derived from any informal investigation the Director considers necessary 

39 
Accordingly, upon further review, the Director determined that an allegation pertaining to 

the constructive granting of an exclusive right to use of the Airport has merit and thus 

will be further reviewed. The Director reminds the Complainant that, in a formal Part 16 

complaint, the Complainant has the burden of proof to establish the Complaint's 

allegations by providing to the Record a preponderance of substantial and reliable 

'd 38 ev1 ence . 

Commercial Helicopter Operations 

As previously set forth in this Determination, on May 15, 2011, the State issued draft revisions to 

Hawaii Administrative Rules, in the form of Hana Airport Operating Rules and Standards, to 

allow skydiving operations at HNM. [FAA Exhibit 7, Item 1, exhibit 9] The draft Operating 

Rules and Standards also incorporate helicopter operating rules due to the fact that the proposed 

skydiving drop zone will share one of two infield areas previously reserved for transient 

helicopter operations. The draft Operating Rules and Standards seek to clarify the safety and 

operational responsibilities of the two aeronautical operations since the two airport users would 

be operating in adjacent parcels in close proximity to each other. In the Public Notice 

accompanying the draft rule revision, the Respondent established that transient helicopter 

operations are common at HNM: 

"In the past, transient tour operators used the grassy area west of Taxiway A as a 

landing zone (LZ). When a hangar was erected in that area, DOTA designated 

the infields between the Runway 8/26 Runway Safety Area (RSA), Taxiways A and 

B, and Taxiways B and C, and the ramp fronting the terminal as transient 

helicopter LZs. " 

[FAA Exhibit 7, Item I, exhibit 9] 

The Notice also identifies the need for skydiving rules and standards m light of ongoing 

commercial helicopter operations: 

"In the interest of safety, given the limited size of the drop zone and its shared use 

as an LZ for transient helicopters, DOTA has developed additional rules and 

procedures for parachute operations into the airport. " 

[FAA Exhibit 7, Item I, exhibit 9] 

The Public Notice clearly corroborates the Complainant's contention that commercial helicopter 

operations are expected to continue to take place at Hana Airport. The Director will now 

determine whether Respondent's authorization of commercial helicopter operations, which 

38 During the pendency of this Complaint, 14 CFR Part 16, Rules of Practice for Federally-Assisted Airport Proceedings was 

amended effective November 12,2013. Previously, 14 CFR §16.229 (b) pertained to burden of proof requirements and stated: 

"Except as otherwise provided by statute or rule, the proponent of a motion, request, or order has the burden of proof" As 

amended, 14 CFR § 16.23(k)(l) now provides burden of proof requirements and states: "The burden of proof is on the 

complainant to show noncompliance with an Act or any regulation, order, agreement or document of conveyance issued under 

the authority of an Act." 

40 
appear to be conducted at HNM in the absence of finalized, State-approved helicopter Operating 

Rules and Standards, constitutes the effective granting of an exclusive right. 

Issue 3 Analysis 

The evidence of record establishes that commercial helicopter operations have been and continue 

to be an ongoing aeronautical activity at Hana Airport. Indeed, the Public Notice accompanying 

the draft Operating Rules and Standards acknowledges that the construction of a general aviation 

hangar displaced the previously-established helicopter landing zones used by transient helicopter 

operators.39 Further, the Respondent did not refute the Complainant's allegation that it is 

allowing commercial helicopter operations to take place at HNM in the absence of Stateapproved operating rules and standards. 

The Public Notice accompanying the draft Operating Rules and Standards also states that, as a 

result of the newly designated helicopter landing zones, the Respondent worked directly "in 

coordination with" the helicopter tour operators to establish "a set of operating rules" to govern 

these new landing zones: 

"In the past, transient tour helicopters used the grassy area west of Taxiway A as 

the landing zone (LZ). When a hangar was erected in that area, DOTA 

designated the infields between the Runway 8/26 Runway Safety Area (RSA), 

Taxiways A and B, and Taxiways B and C, and the ramp fronting the terminal as 

transient helicopter LZs. A set of operating rules was developed in coordination 

with several tour operators to insure safety using the new landing zones. " 

[FAA Exhibit 7, Item l, exhibit 9] 

The Respondent's approval of the construction of a general aviation hangar, and the subsequent 

development of a "set of operating rules" to govern the newly displaced helicopter landing zones, 

would normally indicate that the Respondent was acting within its proprietary right to direct the 

safe and efficient operation of its airport facilities. However, as both the airport proprietor and 

the airport regulator, the Respondent has noted on multiple occasions that Hawaii State law 

requires that all new airport minimum standards governing airport activity, including skydiving 

rules, must be accomplished via the Hawaii Administrative Rulemaking process and be 

incorporated into Hawaii Administrative Rules (HAR) before taking effect. 

The Public Notice further states: 

"In the interest of safety, given the limited size of the drop zone and its shared use 

as an LZ for transient helicopters, DOTA has developed additional rules and 

procedures for parachute operations into the airport. These have been combined 

with the helicopter procedures and together will become part of the Hawaii 

Administrative Rules. " 

39 The draft Hana Airport Operating Rules and Standards incorporates a drawing illustrating the placement of a hangar west of 

the proposed transient helicopter landing zone/parachute drop zone. [FAA Exhibit 7, Item 1, exhibit 9] 

41 
[FAA Exhibit 7, Item 1, exhibit 9] 

Instead of adhering to purported Hawaii State law requirements that all new airport minimum 

standards governing airport activity must be accomplished via the Hawaii Administrative 

Rulemaking process, the Public Notice appears to acknowledge that the helicopter operating 

rules were developed "in coordination with" transient commercial helicopter operators. 

However, there is no indication that the helicopter operating rules were subjected to the Hawaii 

Administrative Rulemaking process. Instead, the record shows that the helicopter rules were 

merely combined, as previously-written by the Airport, with the newly developed skydiving 

operating rules and incorporated into the proposed Operating Rules and Standards without any 

prior contemplation by the Hawaii Administrative Rulemaking process. In short, it appears the 

Respondent has- with no reasonable explanation- subjected commercial helicopter operations to 

a different standard than skydiving operations. 

In fact, an FAA query of current Hawaii Administrative Rules, Chapter 19-13-7, Helicopters, 40 

indicates that, with the exception of Kapalua Airport, only very basic helicopter operating rules 

and standards are codified in Chapter 19-13-7, with no obvious reference to Hana-specific airport 

operating rules in any part of the Chapter. In light of the lack of Hana-specific helicopter 

operating requirements, the Director notes with concern the Hawaii State law requirement that 

all airport minimum standards governing airport activity be incorporated into Hawaii 

Administrative Rules. As illustrated below, HAR Chapter 19-13-7 does not include Hanaspecific helicopter operating rules and standards: 

§19-13-7 Helicopters. 

(a) Operators. Only helicopter pilots certificated by the Federal Aviation 

Administration or those issued military licenses shall be authorized to conduct 

helicopter taxiing operations at a public airport. 

(b) Taxiing. The operators of helicopters shall not taxi, tow or otherwise move 

unless there is a clear area of at least ten (1 0) feet from the outer tip of each 

rotor. 

(c) Flight. There shall be no helicopter takeoffs from or landings into congested 

areas of the apron or ramp. All such operations shall be conducted from open 

taxiways and runways. 

(d) Parking. When parked, helicopters shall have braking devices or rotor 

mooring blocks applied to the rotor blades. 

40Hawaii Administrative Rules, Title 19, Chapter 13, Aircraft Operations at Public Airports governs the safe and orderly 

operations of aircraft at public airports in the State of Hawaii. Chapter 19-13-7, Helicopters provides guidance specific to 

helicopter operations at public airports in the State of Hawaii. 

42 
(e) Kapalua Airport. As specified in section 19-13-8.1, no helicopter operations 

shall be permitted at Kapalua Airport. [Eff 8/10/81; am 2121192; am and camp 

6/19/00; compFeb 15 2002 (Auth: HRS §261-12) (Imp: HRS §261-12) 

[http:/ !hidot.hawaii.gov/airports/library/admin-rules/] 

The absence of Hana-specific helicopter operating rules in Chapter 19-13-7 indicates that the 

Respondent did not impose its requirement that new airport operating rules be subject to the 

HAR process. If new airport rules and regulations are in fact subject to the HAR process, as the 

Respondent repeatedly claims throughout the pleadings, it is therefore reasonable to expect to 

find the previously-established helicopter rules to be clearly noted in HAR Chapter 19-13-7 as 

well. Again, it appears that no such State-approved helicopter operating rules for Hana Airport 

exist. To further corroborate, the Director points out that the draft Hana Airport Operating 

Rules and Standards are to be added to a new section of the Hawaii Administrative Rules, Title 

19, Chapter 13, Section 8.2 (§19-13-8.2) under the heading of Hana Airport, which appears to be 

the first such instance of Hana-specific airport rules to be incorporated into the HAR. [FAA 

Exhibit 7, Item 1, exhibit 9] 

In sharp contrast, as previously determined in Issue (1), the Complainant's request for 

aeronautical access for skydiving operations at HNM was affirmatively deemed by the 

Respondent to be contingent upon the development and implementation of skydiving operating 

rules and subject to the HAR process in accordance with Hawaii State law: 

"The State cannot issue a confirmation of its approval for Complainant to begin 

parachute operations at Hana Airport until after the completion of this 

rulemaking procedure and the formal adoption of rules and regulations. 

Parachute operations at Hana Airport should not be allowed to commence until 

these rules and regulations are properly adopted as required by Hawaii law." 

[FAA Exhibit 3, Item 1, pg. 2-3] 

In other words, the Respondent asserts that it has no intention to approve skydiving operations at 

HNM until the Hawaii Administrative Rules process has been fully contemplated and the draft 

Operating Rules and Standards have been formally-adopted by the State. According to the 

record, no such prohibition has been placed on commercial helicopter operators. 

Also, during the multi-year period in which the Respondent was developing the draft Operating 

Rules and Standards, the Complainant continued to attempt to negotiate in good faith with the 

Respondent to obtain aeronautical access to the Airport. As noted above, these efforts were 

repeatedly met with unyielding deference to the HAR process, which would seem to indicate that 

the Respondent has no flexibility in adopting airport-specific operating rules and standards 

outside of a State-level bureaucratic process. The Director notes that this directly contrasts with 

the coordination efforts afforded commercial helicopter operators in the development of 

operating rules and standards for those operations, in which the Respondent acknowledges that it 

coordinated directly with tour operators to develop and implement new helicopter operating 

43 
rules. The Record sufficiently demonstrates that the same direct coordination was not afforded 

the Complainant upon its request for skydiving access to HNM. In essence, the Respondent 

appears to have willingly ignored the HAR process in the development of transient helicopter 

rules and standards while simultaneously holding Complainant to a different standard - insisting 

that skydiving operations cannot commence until the HAR process has been completed. Such 

disparate treatment is not consistent with Grant Assurance No. 23 and the exclusive rights 

statute. 

Respondent's Decision to Halt the Hawaii Administrative Rule Process 

As previously noted in Issue 1, on February 4, 2013, the Director determined that limited 

additional information was required to supplement the Respondent's pleadings in the matter. On 

February 13, 2013, the Respondent replied to the Director's information request by indicating 

that it was no longer pursuing finalization and implementation of the draft Operating Rules and 

Standards due to the FAA's publishing of Draft Change 19, which proposed to establish new 

standards and recommendations for parachute landing areas on airports 41 

As in Issue (1) above, the Director notes that the Respondent affirmatively agreed to develop and 

implement commercial skydiving rules and standards for HNM to accommodate skydiving 

operations on the Airport upon the completion of the rulemaking process. [FAA Exhibit 3, Item 

1] However, as the Respondent admits, the Hawaii Administrative Rulemaking process has 

been stayed and the finalization and implementation of the skydiving Operating Rules and 

Standards is no longer being pursued. [FAA Exhibit 14, Item 2, page 2-3] 

By default, it would appear that both commercial helicopter and commercial skydiving 

operations would be adversely affected by the Respondent's decision. However, that's not the 

case. By halting the development of the rules and standards, the Respondent has made a 

decision to officially enact a de facto ban on commercial skydiving activity at HNM. 

Conversely, commercial helicopter operators are not impacted by the Respondent's decision and 

continue to operate. The Respondent seems to have employed a policy of selectively choosing 

which aeronautical users it wishes to accommodate while simultaneously singling out other 

aeronautical users for exclusion. This dissimilar treatment of aeronautical users is especially 

troubling. 

Issue (3) Findings and Conclusion 

As the proprietor and the regulator of all airports in the State of Hawaii, the Respondent is tasked 

with ensuring compliance with all Federal grant assurances for the federally-obligated airports 

within its purview. Also, as the proprietor and the regulator, the Respondent has the additional 

responsibility of developing and implementing all airport operating rules and standards. The 

Respondent has insisted in its pleadings that all airport operating rules must be contemplated 

through the Hawaii Administrative Rule process in accordance with Hawaii State law. Such a 

41 See Federal Register Volume 77, Number 128 (Tuesday, July 3, 2012) 

44 
requirement includes those rules affecting commercial helicopter and commercial skydiving 

operations. 

As the pleadings in the extant case have shown, the Respondent has exercised its rights and 

responsibilities as both proprietor and regulator through the development of, but not yet 

implemented, draft Hana Airport Operating Rules and Standards. However, the Director has 

serious concerns about the Respondent's application and execution of the proposed Operating 

Rules and Standards, including the Respondent's decision to halt the Hawaii Administrative 

Rulemak:ing process in this matter. 

Grant Assurance 23, Exclusive Rights requires, in pertinent part, that the owner or sponsor of a 

federally obligated airport: 

... will permit no exclusive right for the use of the airport by any persons 

providing, or intending to provide, aeronautical services to the public . 

... 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 ... 

.. . will terminate any exclusive right to conduct an aeronautical activity now 

existing at such an airport before the grant of any assistance under Title 49 

United States Code. 

Additionally, FAA Order 5190.6B, FAA Airport Compliance Manual, discusses the FAA's 

exclusive rights policy and broadly identifies aeronautical activities as subject to the statutory 

prohibition against exclusive rights. [FAA Order 5190.6B, Chapter 8, Exclusive Rights] While 

public-use airports may impose qualifications and miuimum standards upon those who engage in 

aeronautical activities, FAA has taken the position that the application of any unreasonable 

requirement or any standard that is applied in an unjustly discriminatory manner may constitute 

the constructive grant of an exclusive right. 

In FAA Advisory Circular 150/5190-6, Exclusive Rights at Federally Obligated Airports, dated 

January 4, 2007, FAA published its exclusive rights policy and broadly identified aeronautical 

activities as subject to the statutory prohibition against exclusive rights. In FAA Advisory 

Circular 150/5190-7, Minimum Standards for Commercial Aeronautical Activities, FAA explains 

that while a public-use airport may impose qualifications and minimum standards upon those 

who engage in aeronautical activities, the application of any unreasonable requirement or 

standard that is applied in an unjustly discriminatory manner may constitute a constructive grant 

of an exclusive right. Courts have found the constructive granting of an exclusive right exists 

where a siguificant burden has been placed on one aeronautical user that is not placed on another. 

[See Pompano Beach v. FAA, 774 F.2d 1529 (11th Cir. 1985).] 

Further, FAA has previously determined that the constructive granting of an exclusive right to 

conduct an aeronautical activity at an airport on which federal funds have been expended is 

45 
considered a violation of Section 308(a) of the Federal Aviation Act, whether such exclusive 

right results from an express agreement, from the imposition of unreasonable standards or 

requirements, or by any other means. [See Boston Air Charter v Norwood Airport Commission. 

Norwood, Massachusetts, FAA Docket No. 16-07-03 (August 14, 2008) (Final Decision and 

Order), page 33.] 

Consistent with FAA policy, the Director concurs with the Complainant's allegation that a 

constructive granting of an exclusive right is in effect at Hana Airport. The Record is sufficient 

to determine that the Respondent is currently allowing commercial helicopter operations to take 

place at Hana Airport in the absence of State-approved and formally-adopted Hana Airport 

Operating Rules and Standards. Conversely, as prescribed in Issue (1), the Director also 

determines that skydiving operations at HNM have been prohibited by the Respondent until the 

formal adoption and implementation of the State-approved Operating Rules and Standards has 

occurred. Effectively, the Respondent has granted an exclusive right for one aeronautical 

activity (commercial helicopter operations) to take place in the absence of State-approved 

operating rules and standards, while denying another aeronautical activity (commercial skydiving 

operations) the same privilege. Such application of inconsistent standards- without a reasonable 

explanation - is a hallmark of the unlawful granting of an exclusive right. 

Further, as previously adjudicated in Issue (1), the Director concludes that the Respondent's 

actions and inactions have resulted in the imposition of an umeasonable requirement on the 

Complainant by prohibiting the Complainant from performing a legitimate aeronautical activity 

at HNM while the State engages in an unreasonably protracted and prolonged rulemaking 

process. However, the Director notes that in order for the Respondent to actually implement the 

Hana Airport Operating Rules and Standards, the Respondent must be actively pursuing 

finalization and formal adoption of the proposed rules and standards. The Respondent has 

admitted forthrightly that it has halted the rulemaking process and is no longer pursuing formal 

adoption of the proposed Operating Rules and Standards. In conjunction with the Director's 

findings in Issue (1) that the Respondent has enacted a de facto ban on commercial skydiving 

activity at the Airport, the Director also finds that the Respondent has, inadvertently or otherwise, 

authorized the constructive granting of an exclusive right at HNM by failing to finalize and 

formally adopt the Hana Airport Operating Rules and Standards. Such a failure effectively 

allows commercial helicopter operations to take place in the absence of State-approved operating 

rules and standards while definitively denying the commercial skydiving operators the same 

privilege. The actions of the Respondent are contrary to Grant Assurance 23, Exclusive Rights. 

Accordingly, by granting an exclusive right for one aeronautical activity to operate at Hana 

Airport in the absence of State-approved operating rules and standards while denying another 

aeronautical activity the same privilege, the State of Hawaii has acted in an unreasonable and 

unjustly discriminatory manner in its application of airport operating rules and standards. As 

such, the Director finds that the State of Hawaii has constructively granted an exclusive right to 

conduct an aeronautical activity at the Hana Airport in violation of Title 49 U.S.C. 47107 (a)(4) 

and 40103(e) and related Federal Grant Assurance 23, Exclusive Rights. 

46 
VII. PRELIMINARY FINDINGS AND CONCLUSIONS 

Upon consideration of the submissions of the parties, and the entire record herein, and the 

applicable law and policy and for the reasons stated above, the Director, Airport Compliance and 

Management Analysis, preliminarily finds: 

• By denying the Complainant's request to establish commercial skydiving 

operations at the Hana Airport through inaction and delay in fmalizing and 

implementing skydiving operating rules and standards, the Respondent has 

unreasonably denied access to the Airport in violation of Grant Assurance 22, 

Economic Nondiscrimination and 49 U.S.C. § 47107(a). 

• The Respondent's inaction and umeasonable delay in fmalizing and implementing 

skydiving operating rules and standards carmot be construed to mean that the 

Respondent has taken or permitted an action that would deprive it of any of the 

rights or powers necessary to perform all of the terms, conditions, and/or 

assurances to the grant agreements for which it is Federally obligated. The 

Director fmds that the Respondent is not in violation of Grant Assurance 5, 

Preserving Rights and Powers. 

• The Respondent, by acting in an unjustly discriminatory marmer in its application 

of airport operating rules and standards, has constructively granted an exclusive 

right to conduct an aeronautical activity at the Hana Airport in violation of Title 49 

U.S.C. 47107 (a)(4) and 40103(e) and related Federal Grant Assurance 23, 

Exclusive Rights. 

VIII. PRELIMINARY ORDER AND INSTRUCTIONS 

The issuance of this Preliminary Determination is predicated on the Director's expectation that 

the Respondent will submit a Corrective Action Plan, acceptable to the FAA, within 30 days of 

this Determination clearly identifying how the Respondent will proceed to finalize and 

implement the Hana Airport Operating Rules and Standards resulting in aeronautical access for 

the Complainant. Additionally, should the Complainant seek to begin parachute operations at 

HNM prior to the finalization and implementation of the Operating Rules and Standards, the 

State is directed to negotiate in good faith to develop temporary procedures satisfactory to both 

the Respondent and the Complainant to allow such operations. In the event that the Respondent 

fails to make the required corrective actions within the implementation timeline of the FAAapproved Corrective Action Plan, the Respondent will be subject to a formal finding noncompliance in accordance with Section VII Preliminary Findings and Conclusions, above. 

ACCORDINGLY, the Director preliminarily finds that the State of Hawaii is in violation of 

federal law and its federal grant obligations. The State is directed to submit a Corrective Action 

Plan, acceptable to the FAA, within 30 days of this Determination clearly identifying the method, 

47 
manner, and timeline for which the Respondent will proceed to finalize and implement the Hana 

Airport Operating Rules and Standards. Pending the satisfactory implementation of the 

mandatory Corrective Action Plan identified above, the Director may initiate action to revoke 

and/or deny the airport sponsor's application for Airport Improvement Program discretionary 

grants under 49 U.S.C. § 47115 and general aviation airport grants under 49 U.S. C. § 47114(d). 

All Motions not expressly granted in this Preliminary Determination are denied. 

PRELIMINARY FINDINGS AND RIGHT OF APPEAL 

As stated above, this preliminary fmding provides the Respondent with 30 days to take corrective 

actions. After such date, the Director will issue the Director's Determination, an initial agency 

determination, which is appealable, and make findings regarding the Respondent's compliance 

with its Federal obligations. Neither this Preliminary Determination, nor the Director's 

Determination to be issued, constitutes a final agency decision and order subject to judicial 

review. [14 CFR § 16.247(b)(2)] A party adversely affected by the Director's Determination 

once issued may appeal the initial determination to the FAA Associate Administrator for Airports 

pursuant to 14 CFR § 16.33(b) within thirty (30) days after the service of the Director's 

Determination. 

4-«Y/.~ Ra.fid311Fiertz 

Director, Office of Airport Compliance 

and Management Analysis 

AUG 1 S 20\4 

Date 

48 
Index of Administrative Record 

Director's Determination 

Docket No. 16-12-04 

FRANK IDNSHW, SKYDIVING SCHOOL, INC., 

d/b/a SKYDIVE HA WAil and ISLAND 

SKYDIVING, L.L.C 

COMPLAINANT Docket No. 16-12-04 v. 

THE STATE OF HAWAII 

Exhibit 1 

Item 1 

Exhibit 1 

Exhibit 2 

Exhibit 3 

Exhibit 4 

Exhibit 5 

Exhibit 6 

RESPONDENT 

Complaint, dated February 29, 2012, with cover letter from Complaints' 

attorney and the Corrected Certificate of Service to Respondent's 

attorney, dated March 8, 2012. 

07/17/2007 - Complainant's emailed request to the Respondent to begin 

commercial skydiving operations on to Hana Airport 

I 0/12/2007 - Respondent's email to Complainant stating that changes to 

Hana Airport warrant further safety review before skydiving operations can 

commence 

11120/2007- FAA HNL FSDO letter to the Respondent providing steps to 

be taken to address concerns about parachuting activities at HNM 

08/1112008- Respondent letter to Complainant denying skydiving 

operations at HNM due to safety and operational considerations 

04/10/2008- Respondent letter to Complainant granting permission to land 

sport parachutes at Upolu Airport 

03/16/2009- FAA HNL FSDO memorandum to George Aiken, Manager, 

FAA Safety and Standards Branch, A WP-620, reaffirming that parachute 

activities can be conducted at HNM if participants willingly adhere to 

Federal Aviation Regulations and accepted published practices 

Page 1 of5 
Exhibit 7 

Exhibit 8 

Exhibit 9 

Exhibit 10 

Exhibit 2 

Item 1 

Exhibit 3 

Item 1 

Exhibit 1 

Exhibit 4 

Item 1 

Exhibit 5 

Item 1 

Exhibit 6 

Item 1 

Exhibit 1 

05/26/2009 - Letter from Complainant's attorney to FAA HNL Airports 

District Office requesting an in-person meeting with the Respondent at the 

HNL ADO to assist in achieving an informal resolution, pursuant to FAR 

Part 16.21 

I 0/7/2009- FAA HNL ADO email confirming Informal Resolution 

Meeting with Complainant and Respondent at the HNL ADO 

Hana Airport Operating Ru1es for Skydiving Operations 

Complainant's email to the Upolu Airport manager requesting a parachute 

landing area be designated and approval to operate as a commercial 

skydiving operator be granted on Upolu Airport 

03/09/2012- FAA Notice of Docketing, 16-12-04 

Answer to the Complaint dated March 29, 2012, with cover letter from 

Respondent's attorney and the Certificate of Service to Complainant's 

attorney, dated March 29, 2012 

03/16/2012- Letter from Respondent to Complainant granting permission 

to land sport parachutes at Upolu Airport 

Complainant's Motion for Extension of Time to File Reply and 

Certificate of Service to Respondent's attorney, dated April!!, 2012 

FAA Motion to Grant 30-day Extension of Time to File Reply and 

Certificate of Service to Complainant and Respondent, dated April24, 

2012 

Complainant's Reply in Support of Complaint and Notice of Partial 

Dismissal and Certificate of Service to Respondent's attorney, dated May 

8,2012 

04/06/2012- Complainant's email to Respondent requesting that both 

parties agree to put the formal Part 16 complaint proceedings on hold for 

one (1) month in order to encourage voluntary resolution. 

Page 2 of5 
Exhibit 2 

Exhibit 3 

Exhibit 4 

Exhibit 5 

Exhibit 7 

Item 1 

Exhibit I 

Exhibit 2 

Exhibit 3 

Exhibit 4 

Exhibit 5 

Exhibit 6 

04/06/2012- Respondent's email to Complainant agreeing to put the 

formal Part 16 complaint proceedings on hold for one (1) month. 

04/20/2012 - Complainant's email to the Respondent inquiring of the 

possibility of a meeting between the Complainant and the Respondent to 

discuss the terms of the draft Memorandum of Understanding for skydiving 

and helicopter operations, and to discuss what is perceived to be 

unreasonable discrimination. 

4/30/2012- Complainant's follow-up email indicating that the Respondent 

has not yet responded to the request contained in the Complainant's email 

sent on /04/20/2012. 

04/30/2012- Respondent's email to Complainant indicating that the 

request contained in the Complainant's email of04/20/2012 had been 

received and a response would be forthcoming. 

FAA Part 13.1 Case File 

07/10/2008 -Complainant letter to the HNL FSDO outlining its opposition 

to skydiving operations at HNM and requesting the FSDO to perform a risk 

assessment regarding the establishment of a drop zone at HNM. 

08/04/2008 - Letter from the HNL FSDO to the Respondent concluding 

that skydiving operations at HNM pose an "increased" and unacceptable 

safety risk without proper coordination and communication. 

02119/2009- Letter from the FAA Safety and Standards Branch (A WP620) issued to HNL FSDO requesting a safety-related determination 

regarding parachuting operations at HNM. 

11/18/2009- Letter from the Complainant to the Respondent outlining 

steps the Complainant will take to ensure safe skydiving operations at 

HNM in accordance with FAA guidance. The letter further indicated the 

Complainant's intent to file a formal 14 CFR Part 16 complaint against the 

Respondent for violation of grant assurances if a compromise could not be 

reached within 3 0 days. 

12/09/2009- Respondent's letter of response to Complainant's letter of 

11/18/2009 stating that the Respondent believes further safety investigation 

by the FAA is warranted. 

12/3 0/2009 - Respondent's letter to the HNL ADO reaffirming its 

opposition to permit skydiving at HNM due to ongoing safety concerns 

Page 3 of 5 
Exhibit 7 

Exhibit 8 

Exhibit 9 

02110/2010- HNL FSDO's assessment of risk of skydiving operations at 

HNM as provided to the HNL ADO 

03/31/2010- Complainant letter to the FAA Western-Pacific Regional 

Office urging the FAA to remind the Respondent that the FAA has 

determined that skydiving operations can be safely conducted at HNM. 

Letter states that a formal Part 16 complaint will be filed if the Respondent 

continues to refuse to permit the requested skydiving operations. 

5/20/2011 -Notice of public comment for proposed Hana Airport 

Operating Ru1es and Standards and drawings of proposed parachute drop 

zone 

Exhibit 10 06/29/2010- Respondent letter to the HNL ADO requesting FAA 

assistance in identifying a suitable parachute drop zone at HNM. 

Exhibit 11 04/18/2011 -Compliance Guidance Letter 2011-1 -Interim Guidance for 

Standards and Procedures for Parachute Operations at Federally-Funded 

Airports 

Exhibit 8 09/04/2012- Notice of Extension of Time to on or before December I 0, 

2012. 

Exhibit 9 12110/2012- Notice of Extension of Time to on or before March 11, 2013. 

Exhibit 10 03/28/2013- Notice of Extension of Time to on or before June 4, 2013. 

Exhibit 11 

Item 1 

Exhibit 12 

Item 1 

Exhibit 13 

Item 1 

Exhibit 14 

Item 1 

Item2 

Hana Airport (HNM) Airport Improvement Program (AIP) Grant History1985-2012 

FAA Form 5010-1, Airport Master Record (as of01!10/2013), Hana 

Airport 

Hana Airport 14 CFR 139 Re-certification Notice 

FAA Request for Additional Information 

State of Hawaii Response to Request for Additional Information 

Page4of5 
Exhibit 15 06/13/2013- Notice of Extension of Time to on or before September 30, 

2013 

Exhibit 16 Notice of Extension of Time to on or before November 29,2013 

Exhibit 17 Notice of Extension of Time to on or before January 28, 2014 

Exhibit 18 Notice of Extension of Time to on or before August 13,2014 

Exhibit 19 

Item 1 

Exhibit20 

Item 1 

07/03/2012- Respondent email to FAA HNL ADO requesting a 

"determination" in regards to the effect of Draft Change 19 to Advisory 

Circular 150/5300-13. 

0211112013 - Email from Hank Bruckner, General Aviation Officer for the 

Respondent, to Glenn I. Kimura, Deputy Attorney General for the State of 

Hawaii and counsel to the Respondent outlining reasons for staying the 

issuance of the Hana Airport Operating Rules and Standards. 

Page 5 of5 
CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on L-'""4"""-;TLLcc;<L_, 2014, I placed in the United States mail 

(first class, postage paid) a true c of the foregoing document addressed to: 

For Complainant 

Frank Hinshaw 

Skydiving School Inc., 

d/b/a Skydive Hawaii 

PO Box 75520 

Honolulu, Hawaii, 96836 

Richard J. Durden 

Attorney at Law 

27987 Richmond Hill Road 

Conifer, CO 80433 

For Respondent 

Glenn I. Kimura 

Deputy Attorney General 

Department of the Attorney General, State of Hawaii 

465 S. King Street, Room 300 

Honolulu, HI 96813 

Copy to: 

FAA Part 16 Airport Proceedings Docket 

Office of Airport Compliance and Management Analysis 

Claudia Roberts 

Office of Airport Compliance 

and Management Analysis