U.S. Department of Transportation Federal Avialion Administration August 18, 2014 Office ofAirport Compliance and Management Analysis

Certified Mail - Return Receipt Frank Hinshaw Skydiving School Inc.,

d/b/a Skydive Hawaii PO Box75520 Honolulu, Hawaii, 96836 Complainant RichardJ. Durden Attorney atLaw 27987 Richmond Hill Road Conifer, CO 80433 Counsel for Complainant Glenn I. Kimura Deputy Attorney General Department ofthe Attorney General, State of Hawaii 465 S. King Street, Room 300 Honolulu, HI 96813 Counsel for Respondent
DearMessrs Hinshaw, Durden, and Kimura: BOO Independence Ave., S.W. Washington, D.C. 20591

Re: FRANKHINSHAW, SKYDIVING SCHOOL, INC., d/b/a SKYDIVE HAWAII AND ISLAND SKYDIVING,LLCv. THE STATE OF HAWAII DocketNo.16-12-04 Enclosed is a copy ofthe determination ofthe Federal AviationAdministration (FAA) withrespectto the above-referencedmatter. We preliminarily find thatthe Respondent- the State ofHawaii- is current_ly in violation ofits Federal obligations regardingthe denial ofaccess for commercial skydiving operations atthe HanaAirport.The reasons for the preliminary finding ofnoncompliance are setforth inthe enclosed Director's PreliminaryDetermination. The issuance ofthis Preliminary Determination is predicated onthe Director's expectationthatthe Respondentwill submit a Corrective ActionPlan, acceptable to the FAA, within 30 days ofthis Determination clearly identifying howthe Respondentwillproceedto finalize and implementthe Hana Airport OperatingRules andStandardsresulting inaeronautical access for the Complainant. Inthe eventthatthe Respondent fails to make the required corrective actions withinthe implementationtimeline ofthe FAA-approved Corrective Action Plan, the Respondentwill be subjectto a formal fmding noncompliance in accordance with SectionVII PreliminaryFindings andConclusions. Neitherthis Director'sPreliminary Determination, northe Director's Determinationto be issued, constitutes a Final AgencyDecision and order subjecttojudicial review. [14 CFR § 16.247(b)(2)] A party adversely affectedbythe Director'sDetermination once issuedmay appeal the initial determinationto the FAA Associate Administrator for Airports pursuantto 14 CFR § 16.33(b) within 30 days afterthe service ofthe Director's Determination. Sincerely,

Randall S. Fiertz Director, Office ofAirport Compliance

and ManagementAnalysis EnclosureUNITED STATES DEPARTMENT OFTRANSPORTATION FEDERALAVIATIONADMINISTRATION WASHINGTON, DC

FRANKHINSHAW,SKYDIVING SCHOOL, INC., d/b/a SKYDIVEHA WAil andISLAND SKYDIVING,L.L.C COMPLAINANT 

## v.

THE STATE OF HAWAII RESPONDENT DocketNo. 16-12-04

DIRECTOR'SPRELIMINARYDETERMINATION I. INTRODUCTION This matter is before the Federal AviationAdministration (FAA) based on a formal complaint filed in accordance withthe FAA Rules ofPractice for FederallyAssisted Airport Proceedings (FAARules ofPractice), Title 14 Code ofFederal Regulations (CFR) Part 16. 1 FrankHinshaw, owner andproprietor ofSkydive Hawaii (Complainant),has filed a formal complaintpursuantto Title 14 CFRPart 16 againstthe State ofHawaii (Respondent, State. or Sponsor) owner and operator ofthe HanaAirport (HNM orAirport) andthe Upolu Airport (UPP orAirport)2

1 Enforcementproceduresregarding airport compliance matters may be found atFAA Rules of Practicefor FederallYAssisted AirportEnforcementProceedings (14 CFRPart 16). These enforcementprocedures were published inthe Federal Register (61 FR53998, October 16, 1996) and became effective on December 16, 1996. 2 The Complaint alleges theRespondenthas unreasonably denied commercial skydiving access to both Hanaand Upolu Airports. Duringthe pendency ofthe pleadings, the parties voluntarily engaged in good faith efforts to resolve the allegation of denial ofaccess to Upolu Airport. This is confirmed viaa letter ofMarch 16, 2012 from the Respondentto the Complainant outliningthe provisions for permissible skydiving operations at Upolu Airport. [FAAExhibit 3, Item 1, Exhibit 1] As a result of voluntary resolution efforts by bothparties, the Respondent appears to have approved certain 14 CFRPart 91 andPart 105 skydiving operations at UpoluAirport, and discussions are ongoingregarding an acceptable planto construct a hangarto support the Complainant'sproposed skydiving operations. Accordingly, the Directorhereby dismisses, withoutprejudice, the portions ofthe Complaint directly pertainingto the denial ofcommercial skydiving operations and hangar construction atthe 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 ofTitle 49 United States Code (U.S.C.) §47107(a) and FAA Grant Assurance 22, Economic Nondiscrimination. The Complaint also alleges violations ofGrant Assurance 5, PreservingRights andPowers and GrantAssurance 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- EconomicNondiscrimination, and23- 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 recordreflected inthe 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 ofrecord in this proceeding, the FAA preliminarily finds the Respondent is currently in violation ofits 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, PreservingRights andPowers. 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 onthe 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 ofthe draft Operating Rules andStandards 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 ofDraft 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 ofthe OperatingRules andStandards. However, itis 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 ofDraft Change 19. The Director further observes that the HNL

3 Federal Register, Volume 77, Number 128, Pages 39446-39447, July 3, 2012
2ADO is not in a position to advise the Respondent on State-level rulemak:ing processes, but rather can only advise the Respondent ofits 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 wasjust that

- a draft policy

- that would have necessarily precluded the HNL ADO from making a formal "determination" onthe ability ofthe Respondentto complywiththedraft PLA standards in Draft Change 19. The HNL ADO also should have advised the Respondent ofits 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 Complainantinaccordance with GrantAssurance 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 FAAhas not issued or otherwise made final anyPLA siting or dimension standardstobe usedby federally-obligated airports. As such, the Director concludes that the Respondent should have moved to finalize and implement the Operating Rules and Standards regardless ofthe FAA's issuance ofDraft Change 19 in July 2012, and most certainly upon the FAA's issuance offinal Advisory Circular 150/5300-13Ain September 2012. The Respondent is remindedthatthe FAA maintains the sole discretion for the timing, content, and issuance ofproposed and final changes to its rules, orders, advisory circulars, etc.4 Additionally, the Director concludes that a federallyobligated airport sponsor maynot abdicate its responsibility to maintain current compliance with its federal obligations during the pendency ofproposed or future Federal statutes, regulations, or guidance. In consideration ofthe foregoing, the issuance ofthis 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 ofthis Determination clearly identifYing how the Respondent will proceed to finalize and implement the HanaAirport OperatingRules andStandards 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. Inthe eventthat the Respondent fails to make the required corrective actions within the implementation timeline ofthe FAA -approved Corrective Action Plan, the Respondent will be subject to a formal finding of non-compliance in accordance with Section VII Preliminary Findings andConclusions, which may include initiation ofaction by the Director to withholdthe processing ofthe 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 thatthe FAAAdministrator is authorized to the promulgate regulations, rules, orders, circulars, bulletins, and other official publications ofthe Administration. 49 U.S.C. § 106 also provides thatthe Administrator may also issue, rescind, and revise such regulations as are necessary to carry out the functions ofthe Administrator.
3The 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 sufficienttime to finalize the HanaAirport OperatingRules andStandards 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 inthe investigation and analysis below. II. THEPARTIES A. Airport The Hana Airport on the island ofMaui is apublic-use, non-towered airport owned and operated by the State ofHawaii, Department ofTransportation, 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 ofthe 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, etseq. 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, includingthe HanaAirport.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 ofStateowned airports inthe State ofHawaii since the 1980s." [FAA Exhibit 1, Item 1, p. 1]

III. BACKGROUNDAND PROCEDURAL HISTORY A. Background

5 http:/ /hidot.hawaii.govIadministration/about/ 6 FAA Order 5190.6B, Airport Compliance Handbook, defines "parachute activities" as an aeronautical activity inAppendix Zat314.
4On 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 ithas 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 ofthe FAA, the Complainant, and the Respondentto further discuss the proposed skydiving operation. [FAA Exhibit 1, Item 1, Exhibit2] On November 20, 2007, the FAA Honolulu Flight Standards District Office (HNL FSDO) issued a letter to the Respondent asserting that skydiving operations canbe safelyconducted at HNM if the Respondent holds scheduled airport user meetings, develops an airport operations SOP, and closelymonitors airport activities to ensure safe operations [FAAExhibit 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 ofa 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: "Thankyoufor 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 andthe amountof aviation activity that surrounds this airport. In discussions with the Honolulu

7 A method ofskydiving, typically used for training student skydivers where onejumper shares atandem parachute system with another. 8 The State ofHawaii, Department ofTransportation, Airports Division surrendered the 14 CFRPart 139 Airport Operating Certificate for HanaAirportto the FAA, effective June 30, 2008.

5Flight Standards District Office (FSDO) inspectors and supervisors regarding this airport and it's [sic

## Jassociatedactivities, and reviewing previous communications regarding this issue, the Honolulu FSDO has determined thatparachute operations at this airport increases the safety riskof operations atthis airport. Parachute activities to includefree fallingfrom high altitudes into an activefieldsuch as Hana, is in our opinion notconducive to safe airport operations. There are manyfactors 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 riskfactor, notjustfor parachute participants butfor other operators using this airport as well during this type ofactivity. Although the depiction ofajump zone within this airport area on the aeronautical charts indicates this area is availablefor skydiving and ispermissible to do so. Proper coordination and communication of all activities areparamount 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 acceptthis increasedsafety risk." [FAAExhibit 7, Item 1, Exhibit2] 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 ofthe HNL FSDO as outlined inthe letter ofAugust 4, 2008. [FAA Exhibit 1, Item 1, Exhibit 4] On February 19, 2009, at the behest ofthe Complainant, the FAA Safety and Standards Branch (AWP-620) sent a letter to the HNL FSDO requesting a safety-related determination regarding the establishment ofparachuting operations atHNM. [FAA Exhibit 7, Item 1, Exhibit 3] On March 16, 2009, the HNL FSDO issued a memorandumto AWP-620 reaffirming the findings ofthe November 20, 2007 safety risk analysis thatparachuting activities canbe safely conducted at HanaAirport. [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 resolutionmeeting with the Complainant, Respondent, and HNL ADO in attendance, pursuant to 14 FAR Part 16.21. [FAAExhibit !,Item !,Exhibit?]

6On 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 ofthe 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 arevision ofHawaii Administrative Rules in accordance withHawaii 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 consistentwith 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 ofNovember 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 scheduledpassenger operations. [FAAExhibit 7, Item 1, Exhibit 6] On February 10, 2010, the HNL FSDO issued a letter to the HNL ADO outlining the results ofa 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 thatthe FAA has determined that skydiving operations canbe safely conducted at HNM. The letter further indicatedthat 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 aparachute drop zone atHNM, stating inpart: "The State of Hawaii, Department ofTransportation, Airports Division (DOTA) is requesting assistancefrom the FAA in identifying a suitable parachute drop zone atHNMthatprovides 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 CFRPart 16" complaint in this letter. The Director assumes, for purposes ofthis decision, that counsel intended to referto the correctregulation, 14 CFR Part 16." 11 See 14 CFRPart 16, Rules ofPractice for Federally-Assisted AirportEnforcementProceedings
7This is in reference to the informal determination by FAA Western Region, Mr. Anthony Garcia's email on May 18, 2010, that the DOTA prohibition ofskydiving activity at Hana Airport (HNM) constitutes a violation of GrantAssurance 22. 12 FAA's expert assistance from the Flight Standards District Office (FSDO) is essential as we develop Minimum Standardsfor aeronautical activities atHNM Specific guidance has been developed for helicopter activities at HNM FSDO has the expertise in skydiving aspersonnel have been certifiedwith USP A D licenses. The available operating areas at HNM are very limited In order to develop andestablish skydivingstandards, the identification of a suitable drop zone must first be accomplished The desireddrop zone identified by Mr. Hinshaw is an area that is now designatedfor transient helicopter parking and is bounded by the runway and taxiway safety areas on allsides. Please contact the FSDOfor their assistance with identifying a suitable drop zonefor HNM as we review and develop plans to support this skydivingactivity. " [Exhibit7, Item 1, Exhibit 10] On May 15, 2011, the Respondent issued draft revisions to Hawaii Administrative Rules (HAR 19-13 13) 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][FAA Exhibit 7, Item 1, Exhibit9] B. ProceduralHistory OnMarch 2, 2012, FAAreceived the Complaint. [FAA Exhibit 1, Item 1] On March 9, 2012, FAA issued a Notice ofDocketing, Frank Hinshaw, Skydiving School, Inc., d/b/a Skydive Hawaii and Island Skydiving, LLC vs The State ofHawaii. (16-12-04) [FAA Exhibit 1, Item 2] On March 29,2012,the Respondent filed its Answer. [FAA Exhibit 3, Item 1]

12 The Directornotes thatthe evidence ofrecord does not indicate the extentto which the HNLFSDOprovided assistanceto the State in identifying a suitable drop zone atHNl\.1. 13 HawaiiAdministrativeRules, Title 19, Chapter 13,Aircraft Operations atPublicAirports governs the safe and orderly operations ofaircraft atpublic airports in the State ofHawaii. 14 PerEmail to Complainantfrom HNL ADO on June 24, 2011 [see FAAExhibit 7, Item!, Exhibit 12]
8On Aprilll, 2012, the Complainant filed a Motion for Extension ofTime to File Reply. [FAA Exhibit4, Item 1] On April 24, 2012, the FAA granted the Complainant's Motion for Extension ofTime to File Reply. [FAA Exhibit 5, Item 1] OnMay 8, 2012, the Complainant filed its Reply in Support ofComplaint and aN otice ofPartial Dismissal. [FAA Exhibit 6, Item 1] On September 4, 2012, the FAA extended the due date ofthe Director's Determination to on or before December 10,2012. [FAA Exhibit 8] On December 10, 2012, the FAA extended the due date ofthe 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. [FAAExhibit 14, Item 1] On March 28, 2013, the FAA extended the due date ofthe Director's Determination to on or before June 4, 2013. [FAA Exhibit 10] On June 13,2013, the FAA extended the due date ofthe Director's Determinationto on orbefore September 30,2013. [FAA Exhibit 15] On September 30, 2013, the FAA extended the due date ofthe Director's Determination to on or beforeNovember 29,2013. [FAA Exhibit 16] On December 17, 2013, the FAA extended the due date ofthe Director's Determination to on or before January 28, 2014. [FAA Exhibit 17] On May 19, 2014, the FAA extended the due date oftheDirector's Determinationto on orbefore July 18,2014viaverbal communicationwiththe parties to the Complaint. On July 31,2014, the FAAextended the due date ofthe Director's Determinationto 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 reviewofthe Respondent's compliance with applicable federal law andpolicy:

• 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 aviolation ofGrantAssurance 5, 

### PreservingRights andPowers.

• Whether the Respondent's failure to allow conunercial skydiving operations at the Hana Airport results in a constructive granting ofan 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 incivil 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 inproperty 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. TheAirport Improvement Program Title 49 U.S.C. § 47101, 

### et seq., provides for federal airport financial assistance for the development ofpublic-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 ofreceiving 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 SponsorAssurances 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.

10The 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 incarrying out its legislatively mandated functions related to compliance with federal obligations ofairport 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 onaeronautical 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, PreservingRights and Powers Grant Assurance 5, Preserving Rights andPowers, (Assurance 5) requires the airport owner or sponsor to retain all rights and powers necessary to ensure the continued operation ofthe airport consistent with its federal obligations. This assurance implements the provisions ofthe AAIA, 49 U.S.C. § 47107(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 ofany ofthe rights and powers necessary to perform any or all ofthe 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 ofright of others whichwould interfere with such performancebythe sponsor." Assurance 5requires, inpertinentpart, thatthe sponsor ofa federally obligated airport:

...will not take orpermit any action which would operate to deprive it of any of the rights andpowers necessary to perform any or all ofthe terms, conditions, and assurances in the grant agreement without the written approval ofthe Secretary, andwill actpromptly to acquire, extinguish or modifYany outstanding rights or claims of rightof others which wouldinterfere with suchperformance by the sponsor. This shall be done in a manner acceptable to the Secretary. [Assurance 5] (2) Grant Assurance 22,EconomicNondiscrimination Grant Assurance 22, Economic Nondiscrimination, requires the owner ofany airport developed with federal grant assistance to operate the airport for the use and benefit ofthe 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 FederalAviation Actof 1958, as amended and recodified, Title 49 U.S.C. §§ 40101,40113, 40114, 46101, 46104, 46105, 46106, 46110; andtheAirport andAirwayhnprovementAct of1982, as amended and recodified, Title 49 U.S.C. §§ 47105(d), 47106(d), 47107(k), 47107(1), 47111(d), 47122.
1149 U.S.C. § 47107(a)(l) through (6), and requires, in pertinent part, that the sponsor of a federally obligated airport:

...willmake its airportavailable as an airport forpublic use on reasonable terms, andwithout unjust discrimination, to all types, kinds, andclasses of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport. [Assurance 22(a)]

...may establish suchfair, equal, andnot unjustly discriminatory conditions to be met by all users ofthe airport as may be necessaryfor the safe and efficient operation of the airport. [Assurance 22(h)]

...may...limit any given type, kind, or class of aeronautical use ofthe airport 

### if such action is necessary for the safe operation of the airportornecessary to serve the civil aviation needs of thepublic. [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 thatwould be detrimental to the civil aviationneeds ofthe 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 ofpublic 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 ofthe 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 ofthe 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,ExclusiveRights Grant Assurance 23, Exclusive Rights, (Assurance 23) implements the provisions of49 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 rightfor the use ofthe airport by any persons providing, or intending toprovide, aeronauticalservices to thepublic.

12...will not, either directly or indirectly, grant or permit anyperson, 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 ofany assistance under Title 49 UnitedStates Code. InFAA Order 5190.6B, FAA Airport Compliance Manual, the FAAdiscusses its exclusiverights 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 uponthose who engage in aeronautical activities, FAAhas taken the positionthatthe application of any unreasonable requirement or any standard that is applied in an unjustly discriminatory manner may constitute the constructive grant ofan exclusive right. Courts have found the grant ofan exclusive right where a significant burden has been placed on one competitor that is not placedonanother. [See e.g. Pompano Beachv FAA, 774 F2d 1529 (11th Cir, 1985).] Anowner or sponsor is under no obligation, however, to permitaircraftowners to introduce onto the airport equipment, personnel, or practices which would be unsafe, unsightly, detrimental to the public welfare, or whichwould affectthe efficientuse ofairport facilities. [See Order, Sec.ll.2.] FAA Order 5190.6B provides additional guidance onthe application ofthe statutory prohibition against exclusive rights and FAA policy regarding exclusive rights at public-use airports. [See Order, Chapter 8.] C. TheFAAAirport ComplianceProgram 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 ofconveyance in order to protect the public's interest in civil aviation and to ensure compliance with federal laws. The FAAAirport Compliance Program is designed to ensure the availability ofa national system of safe and properly maintained public-use airports operated in a manner consistent with the airport owners' federal obligations andthe public's investment incivil aviation. The Airport Compliance Program does not control or directthe operation ofairports. Rather, it monitors the administration ofthe valuable rights pledgedbyairport sponsors to the people ofthe United States in exchange for monetary grants and donations offederal 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. Itprovides 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

13receiving 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 ofnoncompliance, the FAA will make a determination as to whether an airport sponsor is currently in compliance with the applicable federal obligations. Consequently, the FAAwill considerthe successful action by the airport to cure any alleged or potential past violation of applicable federal obligation to be grounds for dismissal ofsuch allegations. [See e.g. WilsonAir 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 ofair commerce in the interests of safety, security, and development ofcivil 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 inmaintaining a high degree ofsafety and efficiency in airport design, construction, operation and maintenance, as well as ensuring the public reasonable access to the airport. Pursuantto 49 U.S.C. § 47122, the FAAhas a statutory mandateto ensure thatairport owners complywiththeir federal grant assurances. E. The Complaint and Appeal Process Pursuantto 14 CFR, 

### § 16.23, a person directly and substantiallyaffectedby any alleged noncompliance may file a complaint with the FAA. The complainant(s) shall provide a concise but complete statement ofthe facts relied uponto substantiate each allegation. The complaint(s) shall also describe howthe complainant(s) directly and substantially has/have been affectedbythe things done or omitted bythe 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

14agreements. 16 [See 14 CFR, 

### § 16.1.] The agency does not replace or act on behalfoflocal law enforcement, civil courts, or other legal forums outside the scope ofthe 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 andPowers and Grant Assurance 23, Exclusive Rights. [FAA Exhibit 1, Item 1, pages 7-10] The Respondent argues that it cannot issue a confirmation ofits approval for the Complainant to begin parachute operations at Hana Airport until after the completion ofa 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 ofGrant Assurance 22, Economic Nondiscrimination, Grant Assurance 5, Preserving Rights and Powers and Grant Assurance 23, Exclusive Rights are analyzed and discussed separatelybelow. Notice ofPartial Dismissal During the pendency ofthe submission ofpleadings, the Complainant filed, in conjunction with its Reply, a motion asking the FAAto 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 ofits Complaint pertaining to the denial ofskydiving operations and hangar construction atUpoluAirport17

. Duringthe pendency ofthe Complaint, the Complainant and the Respondent voluntarily engaged in good-faith efforts to resolve the allegations. This is confirmedvia a letter ofMarch 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 ofvoluntary resolution efforts by both parties, the Respondent appears to have approved certain 14 CFRPart 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 ofcommercial skydiving operations and hangar construction atthe Upolu Airport.

16 Therefore, in addressing allegations ofnoncompliance, the FAA will make a determination ofwhether an airport sponsor currently is in compliance with the applicable Federal obligations. Consequently, the FAA will consider the successful action by the airportto cure any alleged or potential pastviolation ofan applicable Federal obligation to be grounds for dismissal ofsuch allegation. [See Wilson] 17Id Pg. 1, note2

15In consideration of the foregoing, the Director believes that the following issues are ripe for reviewand 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 atthe HanaAirport. The Complainant alleges the Respondent is operating HanaAirport in a manner inconsistentwith 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 andStandards 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 violationofGrant Assurance 22, EconomicNondiscrimination. The Complaint establishes the following allegation ofdenial ofaccess to HNM: "On July 17, 2007, Complainantmade a request to begin skydivingoperations on to Hana Airport. [citation omitted] The State did not respond until October of thatyear; then stating that due to changes in the use of Hana Airport, it would need some time to determine 

### ifskydiving could be conducted safely. [citation omitted] The State asked the FAA to evaluate the safety of skydiving operations onto HanaAirport. On November 20, 2007, the FAA concluded that it could be conductedsafely 

### if properly coordinated [citation omitted] Nevertheless, after a delay ofmore than a year after the initial application, the State responded to Complainantwith a denial basedon safety. "[citation omitted] [FAA Exhibit 1, Item 1, p. 2-3] The Complaint establishes a second allegation ofdenial ofaccess: "Following the State's denial at Hana, Complainant, the State and the FAA carriedon an emailandtelephone correspondence regardingskydivingactivity at HanaAirport. 18

18 Forthe sake ofbrevity, the aforementionedcorrespondencebetweenthe Complainant, Respondent, and FAAwas not submittedto the docketbythe Complainant as supporting evidence for the Complaint. Internal case files from the FAA'sinformal investigation (whichpredate the filing ofthis formal Complaint) are usedto augment and supplementthe Administrative Record.
16The correspondence between the Complainant and the State ledto an FAA safety studyfor skydivingatHana. On March I6, 2009, the Honolulu FSDO foundthat skydivingcouldbe conductedsafely atHana. [citation omitted] The State disagreed. " [FAA Exhibit 1, Item 1, p. 3] The Complaint establishes athird allegation ofdenial ofaccess: "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 tookplace 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 rulesfor operations atHana. It again delayed more than ayear before doing so, coming out withproposed 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 justdelayed 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 HanaAirport. " [FAA Exhibit 1, Item 1, p. 3-4] The Complainant establishes a fourth allegation ofdenial ofaccess: "Since that time, the State has done nothing. It has notprovided the final rules andhas notapprovedthe Complainant's operation atHana. " [FAA Exhibit 1, Item 1, p. 7] The Respondent's Answer states: "The State denies any allegations of statutory violations. The State has notrefusedto actandcontinues to take action. " [FAA Exhibit 3, Item I, p. 2] "With respect to access to HanaAirport for skydiving activity, the State is in the process ofadopting administrative rules and regulations to insure that this activity is conducted in the manner safest to the public

17and all users of the airport through the rulemakingprocedure required underHawaii law

... The State cannot issue a confirmation of its approval for Complainant to beginparachute operations atHanaAirport 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 adoptedas requiredby 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 ofaccess: "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 understandingor rules (above andbeyond14 CFR Parts 91 and105 that regulate skydiving activities) for commercial skydiving operations on HanaAirport Proposed rules were issued by the State in early 2011. Mr. Hinshaw provided written comments and suggestionsfor changes to the draft in March andin June 2011. Since then, there has been silence. Skydiving is not takingplace 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 putforth bythe Complainant inits Reply. The evidence ofrecord persuasively supports the Complainant's allegation with regard to denial ofcommercial skydiving access to HNM. Ofparticular 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 Priorto the 14 CFR § 16.21 Informal ResolutionMeeting 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 Cessna206 aircraft. [FAA Exhibit 1

18Item 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. [FAAExhibit 1, Item 1, Exhibit2] 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 ofthe 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 tookplace. 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 ifthe 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 itbelieves skydiving activity would "notbe inthe bestinterests ofsafety" atHNM: "An operator has submitteda request to conductskydiving operations at Hana Airport, Maui, including the establishment ofa drop zone at the approach endto Runway 8. We believe this activity to not be in the best interests of safety for thefollowing reasons: I. A drop zone at the approach end of Runway 8 creates apotential conflict with local aircraft traffic. There are no ATC services at Hana, nor is there a UN/COMoperator toprovide traffic andsafety advisories topilots in the area. Moreover, as an uncontrolled field, there is no regulatory requirement that aircraft using Hana be equippedwith two-way radio capability. 2. Access to a drop zone at the approach end ofRunway 8 would require movement on or near the runway creatingpotential conflict with aircraft traffic. Personnel and equipmentpresent at the drop zone wouldalso constitute a hazard 3. In the event ofan accident and/or m;ury, there is very limited emergency response capability to the airport. Airport Rescue and Fire Fighting (ARFF) capability will be reducedeffective July, 2008 with the reassignment of dedicatedARFF personnel. Limited Count

19 The State ofHawaii, Department ofTransportation, Airports Division surrendered the 14 CFRPart 139 Airport Operating Certificate for Hana Airport to the FAA, effective June 30, 2008.
19assets responding to aparachuting accident or injury would leave theHana area without emergency response coverage. 4. The single DOT-Airports Division employee at Hana would be unable to provide adequate monitoring ofthe activity to ensure safety." [FAA Exhibit7, Item I, Exhibit I] Using this rationale, the Respondent then requested the FSDO to perform another safety risk assessmentregardingthe establishment ofa 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 HNLFSDO 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, inresponse to the request, the HNL FSDO issued a letter ofAugust 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 ofits own position that skydiving operations carmot be safely conducted at HNM. Citing the findings ofthe HNL FSDO letter, the Respondent issued a letter to the Complainant, dated August II, 2008, denying skydiving operations at the Hana Airportdue to safety and operational considerations.21 [FAA Exhibit 

### I, Item 

### I, Exhibit4] The Record indicates that the Complainant also requested that the FAA to perform a safety risk evaluation ofits proposed skydiving operations. In response to "several complaints from Mr. Frank Hinshaw" to the FAA Safety and Standards Branch (AWP-620), a letter was sent from AWP-620 to the HNL FSDO on February 19, 2009, requesting a safety-related determination regarding the establishment ofparachuting operations atHNM. [FAA Exhibit 7, Item 

### I, Exhibit 3] On March 16, 2009, the HNL FSDO issued a memorandum to AWP-620 reaffirming the findings ofthe November 20, 2007 safetyrisk analysis by stating: "The general consensus is thatparachute activities can takeplace in a safe manner 

### ifparticipants willingly adhere to the federal aviation regulations and acceptedpublishedpractices. Hana operations were reviewed and the recommendations published on November 20, 2007. Those recommendations were reviewedandare stillvalidtoday. " [FAAExhibit 

### I, Item 

### 1, Exhibit 6]

20 See Letter ofNovember20, 2007 to Respondent from the HNLADO [Exhibit 1, Item I, Exhibit 3] 21 The Directornotes thatthe Respondent's initial objection to the proposed skydiving operations was not formally conveyed to the Complainantfor more than ayear after the Complainant's initial requestto begin skydiving operations, and approximately 10 months after the HNL FSDO first concluded that skydiving operations could be safely conducted atHNM ifproperly coordinated.

20The Director notes the HNL FSDO safety evaluation ofMarch 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 ofNovember 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 communicationprocedures inplace. Period 2- Events Afterthe 14 CFR § 16.21 Informal ResolutionMeeting 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 believedresponsible for the noncompliance. Under 16.21 (b), complaints will notbe 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 prospectfor timelyresolution ofthe 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 pursuantto 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 ofHawaii 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 ofthe skydiving rules and standards wasputforth bythe Respondent. On June 29, 2010, eight months after the Respondent agreedto 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 ofTransportation, Airports Division (DOTA) is requesting assistancefrom the FAA in identifYing a suitable parachute drop zone atHNMthatprovides 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

21prohibition ofskydiving activity at Hana Airport (HNM) constitutes a violation of GrantAssurance 22. 22 FAA 's expert assistance from the Flight Standards District Office (FSDO) is essential as we develop Minimum Standardsfor aeronautical activities atHNM Specific guidance has been developed for helicopter activities at HNM FSDO has the expertise in skydiving aspersonnel have been certifiedwith USP A D licenses. The available operating areas at HNM are very limited In order to develop andestablish skydivingstandards, the identification of a suitable drop zone must first be accomplished The desireddrop 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 FSDOfor their assistance with identifYing a suitable drop zone for HNM as we review and develop plans to support this skydivingactivity. " [Exhibit 7, Item 1, Exhibit 10] OnMay 15, 2011, more tban 19 months after agreeing to develop and implement operatingrules 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 conducteda risk assessment anddetermined that the State of Hawaii, DOT AirportsDivision (DOTA) mustallow skydivingat 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). " [FAAExhibit7, Item 1, Exhibit 9, p.l]

22 The Directornotes that the evidence ofrecord does not indicate the extentto which the HNL FSDO provided assistance to the State in identifying asuitable drop zone atHNM. While the FAA Western Pacific Region Airports Office may have wished to spur the State forward with an informal finding ofnon-compliance with GrantAssurance 22, EconomicNondiscrimination, the Record does not substantiate that an informal finding ofnon-compliance with GrantAssurance 22 was put forth by the Region. 23 According to internal communications predatingthe filing ofthis Complaint, onMarch 24, 2011, the Respondent apparently hosted an airportuser meeting in Kahului, Maui to review the draftHanaAirportOperatingRulesandStandards. However, neither ofthe parties to the Complaintprovided to the Record evidence ofsuch 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 arefinalized, public meetings will be held, as requiredbyHRS Chapter 91." [FAAExhibit 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 ofthe filing ofthe 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 OnFebruary 4, 2013, the Director determined that limited additional informationwas 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 ofthe 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 Directornoted thatthe Respondent could satisfY this requestbyproviding 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] OnFebruary 13, 2013, the Respondent replied to the Director's informationrequest by indicating that itwas no longer pursuing finalization and implementation ofthe 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 theprocess of undertaking a rule makingprocedure to adopt rules and regulationsfor commercial skydiving activities at Hana Airport pursuant to its Hawaii Administrative Procedure Act ("Skydiving Rules"). Respondent, however, was required to delay this undertaking. DuringJuly of 2012, the FederalAviationAdministration (FAA) announcedthepublication 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 RegisterVolume 77, Number 128 (Tuesday, July 3, 2012) 23standardsfor a parachute landing area (PLA) on an airfield. This change would have required a PLA ofat least 84,500 squarefeetfor tandem parachute use which is an area considerably larger than the area availablefor use as aPLA atthe HanaAirport." [FAA Exhibit 14, Item 2, pg. 1-2] The Respondent further explained its rationale for delaying the rulemaking process:"Pending further elaboration by FAA, itwas no longer logical topursue 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 publishedasAC150/5300-13A, dated09/28/2012." [FAAExhibit14,Item2,pg. 2-3] "FAA has not to date issued a determination on the status ofPLA standards atairfields andefforts to undertake the rule makingprocedure to create a set of rules governing an activity that wouldnot comply with FAA standards were held in abeyance, especially since the PLA standards are viewed by the Respondentpresumptively to be related to safety reasons. " [FAAExhibit 14, Item 2, pg. 3] In addressing allegations ofnoncompliance, 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 DocketNo. 16-99-10, (August 30, 2001) (Final Decision and Order).] Inthe 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 thatthe 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

24justification to no longer pursue the finalization and implementation of the draft skydiving OperatingRulesandStandards. The Director rejects this reasoning. The FAA maintains the sole discretion for the timing, content, and issuance ofproposed 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 ofproposed or future Federal statutes, regulations, or guidance. Accordingly, inreviewingthe Complainant's allegationpertainingto denial ofaccess inviolation ofGrant Assurance 22, the Director will address this allegation within the context ofevents that have occurred after the 14 CFR §16.21 informal resolution meeting ofOctober 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 ofaeronautical 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 ofall ofthe 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 ofHNM'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 decisionto haltthe proposed additionto Hawaii Administrative Rules. 14 CFR Part 139 Airport Certification The Respondent, on at leasttwo occasions, uses HNM'spending certificationunder 14 CFRPart 13926to demonstrate its rationale that the Complainant's request to begin commercial skydiving operations maynot 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 ofthe Administration. 49 U.S.C. § 106 also provides that the Administrator may also issue, rescind, and revise such regulations as are necessary to cany outthe functions ofthe Administrator. 26 The State ofHawaii, Department ofTransportation, Airports Division indicated in aletter to the FAAAirports Western-Pacific Regional Office on January 5, 2012, that the State was in the process oftaking steps to re-certify HNM under 14 CFRPart 139. [FAA Exhibit 13, Item 1] We understand that the HNL ADO perfonned apreliminaryinspection and identified required improvements before the airport could obtain certification. As ofthe issuance ofthis Preliminary Director's Determination, HNM is not certificated under 14 CFRPart 139.
25including recent "14 CFR Part 139 certification" to accommodate scheduled au earner operations. [FAAExhibit 1, Item 1, Exhibit2] The assertion appears to be that the Airport is not a good candidate for commercial skydiving operations due to the presence ofscheduled air carrier operations at HNM. 2) The Respondent confirms this assertioninits Answer: "Parachute operations at Hana Airport should not be allowed to commence until these [skydiving] rules and regulations are properly adoptedas requiredbyHawaii law. The safety rules are most important for the State's applicationfor 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 139 is in and of itself a legitimate basis for denying the Complainant's requestto begin commercial skydiving operations at HNM. Respondent's Objection Due To Safetv Concerns The Director notes that after the informal resolutionmeetingbetweenthe 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 Directornotes that atleasttwo objections were putforth by the State, each onthe basis ofsafety, approximately three months after ithad agreedto develop rules and standards to allow skydiving operations atHNM. In the 90 days after the informal resolution meeting, the Respondent lodged the following objections: 1. Letter ofDecember 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 ofthe feasibility ofskydiving operations at HNM: "As you know, the October 7, 2009, meeting was heldpursuant to your request as provided under 49 CFR 16.21. During this informal

26resolution meeting, the attendees, which included DOT personnel, representatives from several FAA offices, Mr. Frank Hinshaw and yourself, discussed in generalyour client's businessproposal to conduct skydiving at Hana Airport, the written communications among FAA, DOT, andyour client, andthe severalsafety concerns of the DOT My client [Respondent] believes thatfurther 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 officesprovide comprehensive safety, utility, and efficiency assessments. We do notbelieve thatsuch assessments wereperformedby the FAA. " [FAA Exhibit7, 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 ofTransportation, Airports Division (DOT-A) remains opposed to permitting skydiving operations at the HanaAirport 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 ofrecord indicates that at no time has the Respondent acknowledged the FAA's safety expertise and authority inthis area. FAAPolicy on Restrictions onAeronautical 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 ofaeronautical use ofthe airport ifsuch action is reasonable andnecessary for the safe operation ofthe airport or necessaryto serve the civil aviationneeds 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 efficiencymustbe adequatelyjustified 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

27restrictions 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 imposedbythe airport sponsor inthe interest ofsafety. In short, FAA has preempted flight safety and the control ofnavigable 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 ofFederal regulation" inthe field of air safety. City ofBurbank 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 ofAmerica, 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, BritishAirways Bd. v. Port Auth. ofN.Y. & N.J., 558 F.2d75,83 (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 intentto 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 FAApreempts the entire field ofaviation 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 ofadditional Part 16 decisions speak to the FAA's preemption ofaviation safety. In Orange County Soaring, the Director stated: 

### [F]or thepurpose of making afinal 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 ofCleveland, Ohio, FAA DocketNo. 16-09-02, (February22, 20I0) (Director's Determination) at 14; Intbe Matter ofCompliance witb Federal Obligationsbythe City ofSanta 28determination regarding a sponsor's compliance with itsfederal obligations in cases where restrictions or limitations are instituted in the interest ofsafety. Under 49 US.C. § 40103, the FAA develops plans andpolicyfor the use ofthe navigable airspace and assigns by regulation or order the use ofthe airspace necessary to ensure the safety of aircraftandthe efficientuse 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 safetyrisk evaluations performed on behalfofbothparties to the Complaint. In the instant case, the HNL FSDO and HNL ADO were intimately aware ofthe 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 AWP-620 reaffirming the findings of the November 20, 2007 safety analysis that parachuting activities can be safely conducted at Hana Airport ifcertainproactive measures are takenbythe sponsor to ensure safety. [FAA Exhibit 1, Item 1, Exhibit 6]

• February 10, 2010: The HNL FSDO issued a letter outlining the results ofa 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 DocketNo. 16-02-08, (July 8, 2009) (Final Agency Decision) at28; Skydive Paris Inc. v Henry Connty, Tennessee, FAA DocketNo. 16-05-06, (January 20, 2006) (Director's Determination) at 15; and FloridaAerial Advertising v St. Petersburg-ClearwaterInternationalAirport, FAADocketNo. 16-03-01, (December 18, 2003) (Director's Determination) at 11.
29Additionally, FAA Order 5190.6B, Paragraph 14.7, Reasonable Accommodation, provides further insight into FAA policy regarding acceptable alternative methods and measures for accommodating aeronautical activitywhere the safety and efficiency ofthe activity is questioned: "A completeprohibition on all aeronautical operations of one type, such as ultralights, gliders, parachute jumping, balloon and airship operations, acrobaticflying, or banner towing should be approved only 

### ifthe 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 determinedthat 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 atthatairport. " When making a finding under 14 CFR Part 16 regarding matters ofaviation 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. BothHNL 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 ofthe 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 HanaAirport canbe safely accommodated andthat 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 airporttraffic 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 ofairport rules and regulations. Accordingly, the Director rejects the Respondent's continued assertion that skydiving operations should not be allowed at HNM onthe basis ofsafety. Good Faith Efforts to Resolve the Respondent's Objections

28 See JeffBodin and Garlic City Skydiving vs. County ofSanta Clara, CaliforniaFAA Docket

**16~11-6,** (Director's Determination)(December 19. 2011) at 29.

30The 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 withthe Respondentto obtain aeronautical access to theAirport?9 The Complainant'sReply states: "All that remains is airport management approval to begin operations. Even though the State has not establishedany 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 ofunderstanding at Hana that sets out airport-specific operations such as closing the gates at night and taking down the windblades. " [FAA Exhibit 6, Item 1, pg. 3] In an email fromthe Complainantto the Respondent onApril6, 2012: "Iam approachingyou to suggestwe askthe FAA to essentiallyput this matter on hold for a month. (My experience is that they will do so as they encourage voluntary resolution ofthese matters.) I believe that because you have acted as you did on Upolu, that policies and proceduresfor skydiving on Hana can be worked outfollowing the United States Parachute Association guidelines and safoty rules in that time. (My client is willing to workwith you on thisprocess andI have been advisedthat the USP A is willingto assist.)" [FAA Exhibit 6, Item 1, Exhibit 1] In an email from the Complainantto the Respondent onApril20, 2012: "In order to see what can be done to moveforward on the long-delayed Hana memorandum ofunderstanding, is there aperson Mr. Hinshaw [Complainant] can meet with to discuss the terms? He has been in the skydiving businessfor some time and his expertise might help move things along. I am also advisedthat 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: "Priorto filing acomplaintunderthis part, aperson 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 heardfrom you on [sic

## J regarding my email asking about progress on the skydivingprocedures on Hana andwhether there was a way for Mr. Hinshaw to get involvedto expedite theprocess. " [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 ofskydiving rules and regulations is sufficient basis to continue to deny the Complainant access to the Airport: "

...the State is currently in theprocess of adopting administrative rules and regulations through the rulemaking procedure required under Hawaii lawfor the HanaAirport. The State cannot issue a confirmation ofits approvalfor Complainant to beginparachute operations at Hana Airport until after the completion of this rulemakingprocedure and the formal adoption of rules andregulations. " [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 Respondentpriorto the filing ofthe instant Complaint. Respondent's Decision to Halt the Proposed Addition to Title 19 Chapter 13, Hawaii Administrative Rules, Aircraft Operations atPublic Airports OnMay 15, 2011, the State issued draftrevisions to Hawaii Administrative Rules (HAR 19-13)30 in the form ofHana Airport Operating Rules and Standards, to allow skydiving operations at HNM31 • Public comments were requested for considerationby June 15, 2011. While this was a significant step towards resolution ofthe 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 ofthe 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'srequest 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 ofthe draft Hana Airport Operating Rules and Standards pursuant to the agreement entered into by the

30 Hawaii Administrative Rules, Title 19, Chapter 13,Aircraft OperationsatPublicAirports governs the safe and orderly operations ofaircraft atpublic airports in the State ofHawaii. 31 Peremail to Complainantfrom HNLADO on June 24, 2011 [seeFAA Exhibit 7, Item!, Exhibit 12] 32Respondent at the informal resolution meeting ofOctober 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 ofthe 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 uponthe FAA's issuance ofDraft Change 19 on July 3, 2012: "Pendingfurther elaboration by the FAA, it was no longer logical to pursue the SkydivingRules which wouldadopt aprogram that wouldbe 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 publishedasAC150/5300-13A, dated09/28/2012." [FAA Exhibit 14, Item2,page 3] By email of 06/18/2012 (more than two weeks prior to the issuance ofDraft Change 19), the HNL ADO requested the Respondent provide a status update on the revisions to the Operating Rules andStandards. The Respondent replied by email of07/03/2012, the day ofthe issuance of Draft Change 19, stating: "Sorry for the delaygettingbacktoyou-I've been under the weather. The recentlypublished "Draft Change 19 toAC 150/5300-13 establishes uniform standardsfor siting anddesignation of parachute landing areas (PLA) at airports. Thefinal version ofChange 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 ofthe ongoingPart 139 certification initiativefor thatairport. " [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 ofrecord does not indicate thatthe HNLADO provided specific guidance in response to the Respondent's email ofJuly 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 ofDraft 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 ofthe 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 ofits obligation to operate HNM in accordance withits federal obligations underthe 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 ofthe Hawaii State Deputy Attorney General's Office32 explaining the Respondent's previous decision to not pursue the Hawaii Administrative Rulemakingprocess, stating in full: Glenn, The FAA announced the publication ofthe draft Change 19 to AC 150/5300-13 in July, 2012, (see copy ofmy email, below) that would establish a minimum size andset backstandards for aparachute landing area (PLA) on an airfield. This change wouldhave required aPLA of at least 84,500 squarefeetfor tandem parachute use, which would have been considerably larger than the area availablefor use as a P LA at Hana. Compliance with the new P LA standards containedin the change was to be retroactive, so thatairports thathadexistingPLAs thatdidnot meetthe new standards wouldhave to comply within 60 months. Pending forther elaboration byFAA, it no longer made sense topursue a change to the Hawaii Administrative Rules to allow something that would be in violation ofFAA 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 queriedFAAIHNL ADO (Mr. Gordon Wong) to determine the status of the guidelines contained in the draft Change 19 and was told thatFAA was still working on itandmightre-issue the standards as a stand-alone Advisory Circular. As of 8 Feb, 2013, FAA has not issued a determination on the status of PLA standards at airfields andI remain reluctant to complete the HARprocess to create a setof rules governing an activity only tofind that the activity would not comply with FAA standards. HankBruckner [FAAExhibit20, Item I] It is clear to the Director that the Respondent is reluctant to pursue finalization and implementation ofthe OperatingRules andStandards giventheFAA'sissuance ofDraft Change

32 The Hawaii State Attorney General's Officerepresents the State ofHawaii (Respondent)

3419, regardless ofthe HNL ADO's guidance, or lack thereof. Instead, the Respondent apparently chose to stay the HARprocess on its own accord in July 2012 without communicating its intent to the Complainant. The Respondent's email of02111/2013 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 anothertime. In otherwords, the HNL ADO didnotknowwhether orwhenthe 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 ofrules governing an activity only to find that the activity would not comply with FAA standards." [FAA Exhibit 20, Item 1] The Director is notpersuaded that the Respondent's efforts to obtain a "determination" from the HNL ADO, and the lack ofa 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 andStandards regardless ofthe FAA's issuance ofDraft Change 19 in July 2012, and most certainly upon the FAA's issuance offmal 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 ofproposed 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 duringthe pendency ofproposed or future Federalregulations, orpolicy guidance. Accordingly, the Director concludes that, while the FAA's issuance ofDraft 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 ofthe status of pending or future FAA guidance34

. Issue 1Findings 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 OperatingRules andStandards. It has failed to finalize and implementthose standards andhas not allowed commercial skydiving operations to commence at

33 49 U.S.C. § 106 provides thatthe FAAAdministrator is authorized to thepromulgate regulations, rules, orders, circulars, bulletins, and other official publications ofthe Administration. 49 U.S.C. § 106 also provides thattheAdministratormay also issue, rescind, andrevise such regulations as are necessaryto carry outthe functions ofthe Administrator. 34 TheFAA'srole in a Part 16 Complaint is to determine whetherthe Respondent is in current compliance with its federal obligations. [See Platinum Aviation andPlatinum JetCenter BMI v. Bloomington-Normal AirnortAuthority, FAA DocketNo. 16-06-09 (November28, 2007) (Final Decision and Order), page 25.] 35the Airport. More than seven years after the Complainant's initial request for aeronautical access, the Respondenthasyetto grant access to alegitimate 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 ofthe OperatingRules andStandards. 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 ofDraft 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 ofDraft 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 Complainanthas been denied aeronautical access to HNM more than 7years. 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 "inactionor 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 onreasonable 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 FAApolicy, the Director finds the three years since the draft OperatingRules andStandards were issued to be more than sufficient time for the Respondent to adjudicate public comments and to finalize and implement the OperatingRules andStandards, even when consideration is given to the Respondent's claimthat it should not fmalize the OperatingRules andStandards during the pendency ofthe FAA's July 2012 issuance ofDraft Change 19. To the contrary, the Director concludes that the Respondent should have moved to finalize and implement the Operating Rules andStandards regardless of the FAA's issuance of Draft Change 19 in July 2012, and most certainly upon the FAA's issuance offinal Advisory Circular 150/5300-13A in September 2012, which officially omitted any reference to Section 214 Guidancefor Parachute LandingAreas, as initially proposed in Draft Change 19. Consequently, the Director fmds that by failing to finalize and implement the HanaAirport OperatingRules andStandards, the State has effectively enacted a de facto ban on skydiving operations at HNM.

36As such, the Director finds that the record is sufficient to determine that the time lapse between whenthe Respondent agreed to develop skydiving operating standards and the actual issuance of the draft OperatingRules andStandards, and the Respondent's prolonged and protracted delay in finalizing and adopting those Standards, can be construed as a constructive denial ofaccess contrary to Grant Assurance 22, Economic Nondiscrimination. 35 Grant Assurance 22 requires the owner ofany airport developed with federal grant assistance to operate the airport for the use and benefit ofthe public and to make it available to all types, kinds, and classes ofaeronautical activity on fair and reasonable terms, and without unjust discrimination. Accordingly, the Director finds that inaction and delay bythe 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 andStandards for the commencement ofcommercial skydiving operations at Hana Airport, is in violation ofits Federal obligations regarding Grant Assurance 22, Economic Nondiscrimination, as set forth in49 USC 47107(a)(1).37 Issue 2: Whether the Respondent's failure to allow skydiving operations at Hana Airport constitutes a violation ofGrantAssurance 5, PreservingRights andPowers. GrantAssurance 5 specifically states: "The airport sponsor will not take orpermit any action which would operate to deprive it of any of the rights andpowers necessary toperform any or all of the terms, conditions, and assurances in the grant agreement without the written approval of the Secretary, andwill actpromptly to acquire, extinguish or modifY any outstanding rights or claims ofright ofothers which would interfere with suchperformance by the sponsor. This shall be done in a manner acceptable to the Secretary. " The Complaint explainshowtheRespondenthas violated Grant Assurance 5: "By takingno action, by refusing to act, the State has violatedGrantAssurance 5, as its inaction effectively deprives it of rights and powers to perform in accordance with the requirements of the GrantAssurances

... "

35 TheFAA'srole in a Part 16 Complaint is to determine whetherthe Respondent is in current compliance with its federal obligations. [See Platinum Aviation andPlatinumJet Center BMIv. Bloomington-Normal AimortAuthority. FAADocketNo. 16-06-09 (November28, 2007) (FinalDecision and Order), page 25.] 36 Previously, the FAAhas recognized thatunreasonable delay amounts to denial ofairport access. See, JimMartvn v. Port of Anacortes, Wash., FAADocketNo. 16-02-03, at 31 (2003) (Director's Determination) (delay ofthreeyears); U.S. Constr. Corn. v. City ofPompano Beach, Florid!l, FAADocket_No. 16-00-14 at 18-19 (2001) (Director's Determination) (delay ofover a year); Centennial Express Airlines v. Arapahoe County Pub. Airnort Auth.; Kehmeierv. Arapahoe CountvPub. Airnort Auth.; Centennial ExpressAirlines v. Arapahoe CountyPub. Airport Auth, FAADocketNo. 16-98-05, at. 27 (1998) (Director's Determination) 37 The Respondent admits thatthe Hawaii Administrative Rulemaking process has beenhalted and the finalization and implementation oftheHanaAirport OperatingRules andStandards are no longerbeingpursued. [FAA Exhibit 14, Item2, page 2] The Director will further adjudicatethis matter in Issue (3) ofthis Determination.
37[FAA Exhibit 1, Item 1, pg. 11] The Respondent denies this allegation in its Answer: "The State denies any allegations ofstatutory violations. The State has not refUsedto actandcontinues to take action. " [FAA Exhibit 3, Item 1, pg. 2] Issue 2 Analysis Under GrantAssurance 5, an airport sponsor cannottake any actionthatmay deprive it ofits rights andpowers to direct and control airport orto comply withthe applicable Federal obligations. Grant Assurance 5requires the airport sponsor not sell, lease, encumber, or otherwisetransfer or dispose ofanypartofits title or other interests inthe property shown on ExhibitA withoutthe prior approval ofthe FAA. Ofparticular interestto the FAAis the grantingofproperty interests to entities onthe airportthatmayrestrictthe airport sponsor's abilityto preserve its rights andpowers to operatethe airport in compliance with the applicable Federal obligations. Forexample, in BostonAir Charterv NorwoodAirport Commission, Norwood, Massachusetts, [FAA DocketNo. 16-07-03 (August 14, 2008) (Final Decision and Order)], the Director affirmed the right ofaccess andtheright to grant utility easements to maintain and install utilities are essential rights integralto the operation and development ofanypublic use airport. The Director concludedthe sponsor did nothave control ofits airportland inorder to support development and growthofthe airport inviolation ofGrantAssurance 5. [See BostonAir Charter vNorwood Airport Commission, Norwood, Massachusetts, FAADocketNo. 16-07-03 (August 14, 2008) (Final Decision and Order), page 26.] The Complainant's allegations concerning GrantAssurance 5,PreservingRights andPowers in its Complaint, fall short. The Complainant alleges thatthe Respondent's "inactioneffectively deprives it ofrights and powers" to operate the airportin accordance with Grant Assurance 5. The Director is notpersuaded. Inorder for the Director to fmd the Respondentto be in noncompliance with GrantAssurance 5, the Complainantwould needto demonstrate inthe recordthatthe Respondent has taken a specific actionthat has deprived the Respondent ofthe rights orpowers to control or operatethe airport. While the Director found inIssue I above that inaction and delay bythe Respondent effectively amounts to anunreasonable denial ofaccess and is aprohibited actofeconomic discrimination, suchinaction or delay does not demonstrate thatthe Respondenthas been deprived ofits rights andpowers 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 ofthe rights or powers necessary to perform all of the

38terms, 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 andPowers. 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 inactionand delayresulting in denial ofaccess to a federally-obligated airport: "The State'sfailure 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 ofan exclusive right, stating: "The State was also committedto issue a memorandum of understanding or rules for allowing commercial helicopter operations on HanaAirport. It has not done so. However, it is allowing commercial helicopter operations to takeplace on theAirport. " [FAAExhibit 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 bythe Director. Review ofPleadings The Director notes that the Respondent did not refute the Complainant's allegationthat 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 inthe absence ofState-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 ofthe record and includes a thorough examination ofthe 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

39Accordingly, upon further review, the Director determinedthat an allegationpertaining to the constructive granting of an exclusive right to use ofthe 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 inthis Determination, onMay 15, 2011,the State issued draftrevisions to Hawaii Administrative Rules, in the form ofHana Airport Operating Rules andStandards, to allow skydiving operations at HNM. [FAA Exhibit 7, Item 1, exhibit 9] The draft Operating Rules andStandards 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 ofthe 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 thepast, transienttour operators usedthe grassy areawest of TaxiwayA as a landing zone (LZ). When a hangar was erected in that area, DOTA designated the infields between the Runway 8/26RunwaySafetyArea (RSA), TaxiwaysA and B, and Taxiways B and C, and the ramp fronting the terminal as transient helicopterLZs. " [FAAExhibit 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 limitedsize of the drop zone andits shareduse as an LZfor transient helicopters, DOTA has developed additional rules and procedures forparachute 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 Duringthe pendency ofthis Complaint, 14 CFRPart 16, Rules of Practicefor Federally-AssistedAirportProceedings was amended effectiveNovember 12,2013. Previously, 14 CFR §16.229 (b) pertainedto burden ofproofrequirements and stated: "Except as otherwise provided by statute orrule, theproponent ofa motion, request, or orderhas the burden ofproof" As amended, 14 CFR §16.23(k)(l)nowprovides burden ofproofrequirements and states: "Theburden ofproofis on the complainantto show noncompliance with anAct or anyregulation, order, agreement or document ofconveyance issued under the authority ofanAct."

40appear to be conducted at HNM in the absence offinalized, State-approved helicopter Operating Rules andStandards, constitutes the effective granting ofan exclusive right. Issue 3 Analysis The evidence ofrecord establishes that commercial helicopter operations have been and continue to be an ongoing aeronautical activity at HanaAirport. Indeed, the Public Notice accompanying the draft OperatingRules andStandards acknowledges thatthe construction ofa general aviation hangar displaced the previously-established helicopter landing zones used by transienthelicopter 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 operatingrules and standards. The Public Notice accompanying the draft Operating Rules andStandards 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 ofoperating rules" to govern these newlanding zones: "In thepast, transient tour helicopters usedthe grassy area west of TaxiwayA 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 andB, and Taxiways B and 

### C, andthe rampfronting 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 landingzones. " [FAA Exhibit 7, Item l, exhibit 9] The Respondent's approval ofthe construction ofa general aviation hangar, and the subsequent development ofa "set ofoperating 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 ofits airport facilities. However, as boththe 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 PublicNotice further states: "In the interestof safety, given the limitedsize of the drop zone andits shareduse as an LZfor transient helicopters, DOTA has developed additional rules and procedures forparachute operations into the airport. These have been combined with the helicopter procedures and together will become part ofthe Hawaii Administrative Rules. "

39 The draftHanaAirportOperatingRules andStandards incorporates adrawing illustrating the placement ofahangar west of the proposed transient helicopter landing zone/parachute drop zone. [FAA Exhibit 7, Item 1, exhibit9]
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 andStandards without any prior contemplation by the Hawaii Administrative Rulemaking process. In short, it appears the Respondenthas- withno reasonable explanation- subjected commercial helicopter operations to a different standardthan skydiving operations. In fact, an FAA query ofcurrent Hawaii Administrative Rules, Chapter 19-13-7, Helicopters,40 indicates that, with the exception ofKapalua 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: §19-13-7Helicopters. (a) Operators. Only helicopter pilots certificated by the Federal Aviation Administration or those issued military licenses shall be authorized to conduct helicopter taxiing operations atapublicairport. (b) Taxiing. The operators ofhelicopters shall not taxi, tow or otherwise move unless there is a clear area ofat least ten (10)feetfrom the outer tip ofeach rotor. (c) Flight. There shall be no helicopter takeoffsfrom or landings into congested areas ofthe apron or ramp. All such operations shall be conducted from open taxiways andrunways. (d) Parking. When parked, helicopters shall have braking devices or rotor mooringblocks appliedto the rotor blades.

40Hawaii Administrative Rules, Title 19, Chapter 13,Aircraft OperationsatPublicAirports governs the safe and orderly operations ofaircraft atpublic airports in the State ofHawaii. Chapter 19-13-7, Helicopters provides guidance specific to helicopter operations at public airports in the State ofHawaii.

42(e) KapaluaAirport. As specified in section 19-13-8.1, no helicopter operations shall be permitted at KapaluaAirport. [Eff8/10/81; 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. Ifnew airport rules and regulations are in fact subjectto the HARprocess, 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, itappears that no such State-approvedhelicopter operating rules for Hana Airport exist. To further corroborate, the Director points out that the draft Hana Airport Operating Rules andStandards are to be added to a new section ofthe Hawaii Administrative Rules, Title 19, Chapter 13, Section 8.2 (§19-13-8.2) undertheheading ofHanaAirport, which appears tobe 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 ofskydiving operating rules and subjectto the HARprocess in accordance withHawaii State law: "The State cannot issue a confirmation of its approvalfor 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 atHana Airport shouldnot be allowed to commence until these rules andregulations areproperlyadoptedas requiredbyHawaii law." [FAA Exhibit 3, Item 1, pg. 2-3] In other words, the Respondent asserts that it has no intentionto 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 suchprohibition has beenplaced on commercial helicopter operators. Also, during the multi-year period in which the Respondent was developing the draft Operating Rules andStandards, 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 HARprocess, which would seem to indicate that the Respondent has no flexibility in adopting airport-specific operating rules and standards outside ofa State-level bureaucratic process. The Director notes thatthis directly contrasts with the coordination efforts afforded commercial helicopter operators in the development of operating rules and standards for those operations, inwhich the Respondent acknowledges that it coordinated directly with tour operators to develop and implement new helicopter operating

43rules. 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 oftransient 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 Decisionto Halt the Hawaii Administrative RuleProcess 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 ofthe draft Operating Rules and Standards due to the FAA's publishing ofDraft Change 19, which proposed to establish new standards andrecommendations for parachute landing areas on airports 41 As inIssue (1) above, the Directornotes 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 ofthe 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 longerbeingpursued. [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 ofselectively 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 ofall airports in the State ofHawaii, 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)
44requirement 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 ofthe proposed Operating Rules and Standards, including the Respondent's decision to halt the Hawaii Administrative Rulemak:ing process inthis matter. Grant Assurance 23, Exclusive Rights requires, in pertinent part, that the owner or sponsor ofa federally obligated airport:

...will permit no exclusive rightfor the use ofthe airport by any persons providing, or intending toprovide, aeronauticalservices to thepublic

.

...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 ofany assistance under Title 49 UnitedStates 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 mayimpose qualifications and miuimum standards uponthose 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 grantofan exclusive right. In FAA Advisory Circular 150/5190-6, Exclusive Rights at Federally ObligatedAirports, 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 Standardsfor CommercialAeronauticalActivities, 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 burdenhasbeenplaced on one aeronautical userthatis notplaced on another. [See Pompano Beachv. 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

45considered a violation of Section 308(a) ofthe 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 ofan exclusive right is in effect at HanaAirport. 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 beenprohibitedby the Respondent until the formal adoption and implementation ofthe State-approved Operating Rules andStandards 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 ofinconsistent standards- without areasonable explanation

- is ahallmark ofthe unlawful granting ofan 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 implementthe 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 ofthe proposed Operating Rules andStandards. 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 thattheRespondenthas, 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 inthe absence ofState-approved operating rules and standards while definitively denying the commercial skydiving operators the same privilege. The actions ofthe Respondent are contraryto GrantAssurance 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 ofairport operating rules and standards. As such, the Director finds that the State ofHawaii has constructively granted an exclusive right to conduct an aeronautical activity at the Hana Airport inviolation ofTitle 49 U.S.C. 47107 (a)(4) and 40103(e) andrelated Federal GrantAssurance 23, ExclusiveRights.

46VII. PRELIMINARYFINDINGS AND CONCLUSIONS Upon consideration of the submissions of the parties, and the entire record herein, and the applicable law andpolicy and for the reasons stated above, the Director, Airport Compliance and ManagementAnalysis, preliminarilyfinds:

• 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, EconomicNondiscrimination 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 ofthe 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, PreservingRights andPowers.

• The Respondent, by acting in an unjustly discriminatorymarmer in its application ofairport operating rules and standards, has constructively granted an exclusive rightto conduct an aeronautical activity atthe HanaAirport inviolation ofTitle 49 U.S.C. 47107 (a)(4) and40103(e) andrelated Federal GrantAssurance 23, Exclusive Rights. VIII. PRELIMINARY ORDERAND INSTRUCTIONS The issuance ofthis 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 HanaAirport OperatingRules andStandards 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 Complainantto allow such operations. Inthe eventthatthe Respondent fails to make the required corrective actions within the implementation timeline ofthe FAAapproved Corrective Action Plan, the Respondent will be subject to a formal finding noncompliance in accordance with SectionVIIPreliminaryFindings andConclusions, 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 ofthis Determination clearly identifying the method,

47manner, 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 inthis PreliminaryDetermination are denied. PRELIMINARYFINDINGS 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 mayappeal the initial determinationto the FAAAssociateAdministrator 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 ofAirport Compliance

and ManagementAnalysis 

### AUG 1S20\4 Date

48Index ofAdministrative Record Director's Determination Docket No. 16-12-04

FRANKIDNSHW, SKYDIVING SCHOOL,INC., d/b/a SKYDIVE HA WAil and ISLAND SKYDIVING, L.L.C COMPLAINANT Docket No. 16-12-04 

## v.

THE STATE OFHAWAII

Exhibit 1 Item 1

Exhibit 1

Exhibit2

Exhibit3

Exhibit4

Exhibit5

Exhibit 6 RESPONDENT

Complaint, datedFebruary 29, 2012, with coverletter from Complaints' attorney andthe Corrected Certificate ofService to Respondent's attorney, datedMarch 8, 2012.

07/17/2007

- Complainant's emailedrequestto the Respondentto begin commercial skydiving operations onto HanaAirport I0/12/2007

- Respondent's email to Complainant statingthat changes to HanaAirportwarrantfurther safety reviewbefore skydiving operations can commence 11120/2007- FAAHNL FSDO letter to the Respondentproviding steps to be takento address concerns aboutparachuting activities atHNM 08/1112008- Respondent letterto Complainant denying skydiving operations atHNM due to safety and operational considerations 04/10/2008- Respondent letterto Complainant grantingpermissionto land sportparachutes at UpoluAirport 03/16/2009- FAAHNLFSDO memorandumto George Aiken, Manager, FAA Safety and Standards Branch, AWP-620, reaffirmingthatparachute activities canbe conducted at HNMifparticipants willingly adhere to Federal AviationRegulations and accepted publishedpractices

Page 1 of5Exhibit 7

Exhibit8

Exhibit9 Exhibit 10

Exhibit2 Item 1 Exhibit3 Item 1

Exhibit 1

Exhibit4 Item 1

Exhibit5 Item 1

Exhibit6 Item 1

Exhibit 1 05/26/2009

- Letter from Complainant's attorneyto FAAHNLAirports District Office requesting an in-person meeting withthe Respondent atthe HNLADOto assistin achieving aninformal resolution, pursuantto FAR Part 16.21 I0/7/2009- FAAHNLADO email confirming Informal Resolution Meeting with Complainant and Respondent atthe HNLADO HanaAirport Operating Ru1es for Skydiving Operations Complainant's email to the Upolu Airportmanagerrequesting a parachute landing areabe designated and approval to operate as a commercial skydiving operatorbe granted onUpoluAirport

03/09/2012- FAA Notice ofDocketing, 16-12-04

Answerto the Complaint datedMarch29, 2012, withcover letter from Respondent's attorney andthe Certificate ofServiceto Complainant's attorney, dated March29, 2012 03/16/2012- Letter from Respondentto Complainant grantingpermission to land sportparachutes atUpoluAirport

Complainant'sMotion for Extension ofTime to File Reply and Certificate ofServiceto Respondent's attorney, dated April!!, 2012

FAAMotion to Grant 30-day Extension ofTime to File Reply and Certificate ofServiceto Complainant and Respondent, dated April24, 2012

Complainant's Reply in Support ofComplaint and Notice ofPartial Dismissal and Certificate ofService to Respondent's attorney, dated May 8,2012 04/06/2012- Complainant's email to Respondent requestingthatboth parties agree to putthe formal Part 16 complaintproceedings onhold for one (1) monthin orderto encourage voluntaryresolution.

Page 2 of5Exhibit2

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Exhibit5

Exhibit7 Item 1 Exhibit I

Exhibit2

Exhibit3

Exhibit4

Exhibit 5

Exhibit6 04/06/2012- Respondent's email to Complainant agreeing to putthe formal Part 16 complaintproceedings onhold for one (1) month. 04/20/2012

- Complainant's email to the Respondent inquiring ofthe possibility ofa meetingbetweenthe Complainant and the Respondentto discuss theterms ofthe draftMemorandum ofUnderstanding for skydiving and helicopter operations, andto discuss what isperceivedto be unreasonable discrimination. 4/30/2012- Complainant's follow-up email indicating thatthe Respondent has not yet responded to the request contained inthe Complainant's email sent on/04/20/2012. 04/30/2012- Respondent's email to Complainantindicatingthatthe request contained inthe Complainant's email of04/20/2012 hadbeen received and a response wouldbe forthcoming.

FAAPart 13.1 Case File 07/10/2008 -Complainantletterto the HNL FSDO outlining its opposition to skydiving operations at HNM andrequestingthe FSDOto perform a risk assessmentregarding the establishment ofa drop zone atHNM. 08/04/2008

- Letter from the HNL FSDO to the Respondent concluding that skydiving operations at HNM pose an "increased" and unacceptable safetyrisk withoutproper coordination and communication. 02119/2009- Letter from the FAA Safety and Standards Branch (AWP620) issuedto HNL FSDO requesting a safety-related determination regardingparachuting operations at HNM. 11/18/2009- Letter from the Complainantto the Respondent outlining steps the Complainantwill take to ensure safe skydiving operations at HNM inaccordance with FAA guidance. The letter further indicated the Complainant's intentto file a formal 14 CFRPart 16 complaint againstthe Respondent for violation ofgrant assurances ifa compromise could notbe reachedwithin 30 days. 12/09/2009- Respondent's letter ofresponse to Complainant's letter of 11/18/2009 stating thatthe Respondentbelieves further safety investigation bythe FAAis warranted. 12/30/2009

- Respondent's letterto the HNL ADO reaffirming its oppositionto permit skydiving atHNMdueto ongoing safety concerns

Page 3 of5Exhibit 7

Exhibit 8

Exhibit9 02110/2010- HNL FSDO's assessment ofrisk ofskydiving operations at HNM as provided to the HNL ADO 03/31/2010- Complainant letterto the FAA Western-Pacific Regional Office urging the FAAto remindthe Respondentthatthe FAAhas determinedthat skydiving operations can be safely conducted atHNM. Letter states that a formal Part 16 complaintwill be filed ifthe Respondent continues to refuse to permitthe requested skydiving operations. 5/20/2011 -Notice ofpublic comment for proposed HanaAirport Operating Ru1es and Standards and drawings ofproposedparachute drop zone Exhibit 10 06/29/2010- Respondentletterto the HNL ADO requesting FAA assistance inidentifying a suitable parachute drop zone at HNM. Exhibit 11 04/18/2011 -Compliance Guidance Letter2011-1 -Interim Guidancefor Standards andProcedures for Parachute Operations atFederally-Funded Airports Exhibit 8 09/04/2012- Notice ofExtension ofTime to on or before December I0, 2012. Exhibit 9 12110/2012-Notice ofExtension ofTime to on orbefore March 11, 2013.

Exhibit 10 03/28/2013-Notice ofExtension ofTimeto on orbefore June 4, 2013.

Exhibit 11 Item 1

Exhibit 12 Item 1

Exhibit 13 Item 1 Exhibit 14 Item 1 Item2 HanaAirport (HNM) Airport Improvement Program (AIP) Grant History1985-2012

FAAForm5010-1, AirportMaster Record (as of01!10/2013), Hana Airport

HanaAirport 14 CFR 139Re-certificationNotice

FAA Requestfor Additional Information State ofHawaii Response to Request for Additional Information Page4of5Exhibit 15 06/13/2013- Notice ofExtension ofTime to on or before September 30, 2013 Exhibit 16 Notice ofExtension ofTime to on or before November29,2013 Exhibit 17 Notice ofExtension ofTimeto on orbefore January 28, 2014 Exhibit 18 Notice ofExtension ofTime to on or before August 13,2014 Exhibit 19 Item 1

Exhibit20 Item 1 07/03/2012- Respondent emailto FAAHNL ADO requesting a "determination" inregards to the effect ofDraft Change 19 to Advisory Circular 150/5300-13.

0211112013

- Email from HankBruckner, General Aviation Officerfor the Respondent, to Glenn I. Kimura, DeputyAttorney General for the State of Hawaii and counselto the Respondent outlining reasons for stayingthe issuance ofthe HanaAirport Operating Rules and Standards.

Page 5 of5CERTIFICATE OF SERVICE I HEREBY CERTIFYthat onL-'""4"""-;TLLcc;<L_, 2014, I placed inthe United States mail (first class, postagepaid) a true c ofthe foregoing document addressed to: For Complainant FrankHinshaw Skydiving School Inc.,

d/b/a Skydive Hawaii PO Box 75520 Honolulu, Hawaii, 96836 Richard J. Durden Attorney at Law 27987 RichmondHill Road Conifer, CO 80433 ForRespondent Glenn I.Kimura Deputy Attorney General Department ofthe Attorney General, State ofHawaii 465 S. King Street, Room 300 Honolulu, HI 96813 Copy to: FAA Part 16 Airport Proceedings Docket Office ofAirport Compliance and Management Analysis

Claudia Roberts Office ofAirport Compliance and ManagementAnalysis