Helicopter Association Interna v. FAA ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 10, 2013 Decided July 12, 2013
No. 12-1335
HELICOPTER ASSOCIATION INTERNATIONAL, INC.,
PETITIONER
v.
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT
On Petition for Review of an Order of
the Federal Aviation Administration
J. Michael Klise argued the cause for petitioner. With him
on the briefs were D. Kirk Shaffer and Gerald F. Murphy.
Edward Himmelfarb, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Stuart F. Delery, Principal Deputy Assistant Attorney General,
and Michael J. Singer, Attorney.
Before: ROGERS and KAVANAUGH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The Helicopter Association
International, Inc. (“HAI”), challenges the authority of the
2
Federal Aviation Administration (“FAA”) to issue a rule
requiring helicopter pilots to use a route one mile off the north
shore of Long Island, New York for the purpose of noise
abatement in residential areas. Because this challenge fails, and
because HAI’s other contentions regarding the lack of
substantial evidence, deviation from FAA policy, and a flawed
Regulatory Flexibility Act certification are unpersuasive, we
deny the petition for review.
I.
Prior to 2008, helicopter pilots flying between New York
City and eastern Long Island typically chose between three
routes: (1) the northern coast of Long Island; (2) the Long Island
Expressway through the middle of the island; or (3) the southern
coast of Long Island. Many pilots preferred to travel the north
shore route when traveling to south shore destinations like the
Hamptons, because that route was faster and less likely to
encounter weather delays common along the south shore. As a
result, the north shore route experienced significant helicopter
traffic. In response to complaints about the helicopter noise, the
FAA developed the North Shore Helicopter Route, which it
added to the New York Helicopter Route Chart in 2008. This
route, which was voluntary, diverted helicopter traffic from
populated areas on the north shore of Long Island to the waters
of Long Island Sound.
When elected officials and FAA’s Flight Standards District
Office continued to receive complaints about helicopter noise on
the north shore, the FAA in 2010 proposed to make the North
Shore Route mandatory. See Notice of Proposed Rulemaking,
75 Fed. Reg. 29,471, 29,472 (May 26, 2010) (“NPRM”). Upon
receiving approximately 900 comments — from residents, local
government, citizen groups, businesses, and various trade
associations — the FAA determined that “[s]lightly more than
3
a third of the total number of commenters complained about the
levels of helicopter noise that they are exposed to, particularly
during the summer months,” and issued the final rule in 2012.
The New York North Shore Helicopter Route, 77 Fed. Reg.
39,911, 39,913 (July 6, 2012) (“Final Rule”).
The FAA found that “residents along the north shore of
Long Island emphatically agreed that helicopter overflights
during the summer months are unbearable and negatively
impact their quality of life.” Id. at 39,913. Assisted by the John
A. Volpe National Transportation Systems Center in analyzing
data from the Performance Data Analysis and Reporting System
(“PDARS”), the FAA “modeled noise from approximately
15,600 flight operations, based on an average of 42.8 operations
per day over 11 days around Memorial Day and July 4, 2011,”
two of the busiest helicopter traffic weekends of the year. Id. at
39,914, 39,916 n.7. This data was used to calculate north shore
day-night average sound levels (“DNLs”), which consist of “the
24-hour average sound level, in decibels, for the period from
midnight to midnight, obtained after the addition of ten decibels
to sound levels for the periods between midnight and 7 a.m.,
and between 10 p.m., and midnight, local time.” 14 C.F.R.
§ 150.7. The FAA found that the sound levels, which were
below DNL 45 dB, were “below levels at which homes are
significantly impacted.” Final Rule, 77 Fed. Reg. at 39,916.
In promulgating the Final Rule, the FAA did not change the
existing route that had been in use for several years but
explained that “[m]aximizing the utilization of the existing
route by making it mandatory will secure and improve upon the
decreased levels of noise that have been voluntarily achieved.”
Final Rule, 77 Fed. Reg. at 39,914. Because “safety is [the
FAA’s] highest priority,” id., exceptions were provided for
helicopters not adequately outfitted to travel the route safely and
for pilots who determine route deviation is required because of
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weather or a need to transition to or from a destination or point
of landing. Id. at 39,914–15. The rule will be provisional for
two years, after which the FAA will sunset it upon determining
“there is no meaningful improvement in the effects of helicopter
noise on quality of life or that the rule is otherwise unjustified.”
Id. at 39,918. If there is improvement, the FAA may make the
rule permanent “after appropriate notice and opportunity for
comment.” Id. Or, if “reasonable modifications [can] be made
to the route to better address noise concerns . . . [, the FAA]
may choose to modify the rule after notice and comment.” Id.
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. § 605, the
FAA certified that because the Final Rule would impose
minimal costs on regulated small entities, a regulatory
flexibility analysis was not required. Final Rule, 77 Fed. Reg.
at 39,919–20. HAI petitions for review.
II.
HAI challenges the Final Rule on four grounds, contending
first that the FAA lacks authority to alter air traffic patterns for
the sole purpose of reducing the impact of aircraft noise on
residential communities. As authority for the rule, the FAA
relied on 49 U.S.C. § 40103 and § 44715. Section 40103(b)
addresses “the use of the navigable airspace” and provides in
subsection (b)(2) that “[t]he Administrator shall prescribe air
traffic regulations on the flight of aircraft (including regulations
on safe altitudes) for . . . protecting individuals and property on
the ground.” Section 44715 authorizes the FAA to set standards
to measure aircraft noise and to prescribe regulations to control
and abate aircraft noise. 49 U.S.C. § 44715(a)(1)(A) (i) & (ii).
In HAI’s view, Congress has established a relatively
narrow framework under which the FAA can regulate noise.
HAI maintains that the FAA’s general authority under § 40103
is limited by its focus on safety in subsection (b)(1), and by
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other provisions that address the FAA’s authority to regulate
noise through technology certification, see id. § 44715(a)(1),
and in and around airports, see id. §§ 47501 et seq., §§ 47521
et seq. Viewing these provisions together, HAI concludes that
the FAA cannot escape the limits on its jurisdiction to regulate
noise by relying on its general authority in § 40103.
In support of its position, HAI relies on American
Petroleum Institute v. EPA, 52 F.3d 1113 (D.C. Cir. 1995),
where the court, upon reviewing a rule on a renewable
oxygenate requirement, held the agency could not “rely on its
general authority to make rules necessary to carry out its
functions when a specific statutory directive defines the relevant
functions of [the agency] in a particular area.” Id. at 1119. In
that case, Congress set a specific objective of reducing
emissions of ozone-forming volatile organic compounds
(VOCs). See id. at 1115. Relying on its general rulemaking
authority, 42 U.S.C. § 7601(a)(1), the agency ignored this
objective, favoring instead a renewable oxygenate that would
not reduce VOC emission levels. Id. at 1115–16. HAI
maintains that the FAA’s reliance on its general authority under
§ 40103 is similar to the EPA’s reliance on its general
rulemaking authority under 42 U.S.C. § 7601(a)(1) and is
likewise impermissible.
Whether the FAA has exceeded congressional limits on its
authority is a question of statutory construction to which the
familiar two step analysis in Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), applies.
“If the intent of Congress is clear, that is the end of the matter;
for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Id. at 842–43.
“[I]f the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agency’s
answer is based on a permissible construction of the statute.”
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Id. at 843. Such deference by the court extends to the agency’s
interpretation of statutory ambiguity that concerns the scope of
the agency’s jurisdiction. See City of Arlington, Texas v. FCC,
– U.S. –, 133 S. Ct. 1863 (2013).
Under the plain text of § 40103, the FAA has authority to
“prescribe air traffic regulations . . . [to] protect[] individuals
and property on the ground.” 49 U.S.C. § 40103(b)(2). This is
exactly what the FAA did here. Responding to the noise
complaints of Long Island residents, the FAA prescribed new
air traffic regulations with the purpose of protecting these
residents’ use and enjoyment of their property. Noise, when it
reaches certain levels, has long been considered an actionable
nuisance because of its impediment to the use and enjoyment of
property. See, e.g., 3 THOMAS M. COOLEY & D. AVERY
HAGGARD, A TREATISE ON THE LAW OF TORTS § 430 (4th ed.
1932). The word “protect,” defined as “to cover or shield from
that which would injure, destroy, or detrimentally affect,”
WEBSTER’S THIRD NEW INT’L DICTIONARY OF THE ENGLISH
LANGUAGE UNABRIDGED 1822 (1981), is broad enough to
encompass protection from noise caused by aircraft, and
Congress would, absent indication to the contrary, have
intended that the word be read in accordance with its natural
meaning, see Regents of the Univ. of Cal. v. Pub. Emplymt.
Relations Bd., 485 U.S. 589, 595 (1988).
HAI has pointed to no express limitations on the FAA’s
general authority to protect individuals on the ground from
aircraft, including the noise created by their operation.
Although the noise-related provisions HAI cites refer to discrete
areas, for example, to noise reduction in or near airports, see,
e.g., 49 U.S.C. §§ 47521 et seq., or to technology certification,
see id. § 44715(a)(2), neither their substance (as interpreted by
HAI) nor their structure suggest that Congress intended to
narrow its broad authorization to the FAA to regulate the use of
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navigable airspace, much less to restrict the FAA’s capacity to
manage aircraft noise to these limited contexts. As regards the
safety limitation emphasized by HAI, neither § 40103 when
read as a whole nor the plain text of § 40103(b)(2) requires that
air safety be the primary goal of all FAA regulations. The
“Federal Aviation Act requires a delicate balance between
safety and efficiency and the protection of persons on the
ground.” City of Burbank v. Lockheed Air Terminal Inc., 411
U.S. 624, 638–39 (1973) (citation omitted); see BFI Waste Sys.
of N. Amer., Inc., v. FAA, 293 F.3d 527, 533 (D.C. Cir. 2002).
So long as the FAA balances safety concerns appropriately, as
it did here, its rulemaking decisions will not conflict with other
statutory safety requirements.
HAI does not dispute that reducing noise through altering
flight routes can protect property on the ground by preventing
“interference with the interest in the private use and enjoyment
of the land.” Souders v. Wash. Metro. Area Transit Auth., 48
F.3d 546, 551 (D.C. Cir. 1995) (internal alteration and quotation
marks omitted). Yet its view of Congress’s legislative scheme
would eviscerate such protection, preventing the FAA from
altering flight plans even where numerous helicopters were
operating at low altitudes over residential areas at all hours of
the day and night. HAI offers no persuasive reason to attribute
such a counterintuitive intent to Congress’s broad authorization
to the FAA over the flight of aircraft to protect individuals and
property. HAI’s counsel’s suggestion during oral argument that
the FAA can address helicopter noise only by imposing
certification restrictions on noise-producing aircraft
technologies, such as engines, see Oral Arg. Tr. at 6–7; cf. 49
U.S.C. § 44715(a)(2), conflicts with § 40103(b)(2)’s plain text.
Dictum to the contrary regarding the scope of § 40103’s
predecessor in DiPerri v. FAA, 671 F.2d 54, 57 (1st Cir. 1982),
is unpersuasive in view of the plain text of § 40103(b)(2) and
the inconclusive legislative history on which the court relied.
8
Id. (interpreting 49 U.S.C. § 1348(c) and citing H.R. REP. NO.
85-2360 (1958)).
The interpretation of § 40103(b)(2) as encompassing
protection from aircraft noise reflects the FAA’s long held
understanding of its authority. See, e.g., Special Air Traffic
Rules and Airport Traffic Patterns, Lorain County Regional
Airport, Ohio, 33 Fed. Reg. 11,748, 11,749 (1968). Even
assuming that because § 40103(b)(2) does not expressly state
that “protect” includes protection from aircraft noise and thus is
silent on the precise question at issue, see Chevron, 467 U.S. at
843, the FAA’s interpretation is reasonable and consistent with
the other statutory provisions cited by HAI, which indicate that
Congress intended to address aircraft noise in several different
ways, not to limit the broad authority granted under
§ 40103(b)(2). HAI fails to show that the FAA’s interpretation
of its authority is impermissible, much less that the affirmative
grant of authority to regulate “the use of the navigable airspace
. . . for . . . protecting individuals and property on the ground”
in § 40103(b) is comparable to the broad, non-substantive
rulemaking authority on which the EPA relied in the face of an
express congressional limitation in American Petroleum, 52
F.3d at 1117. The situation in American Petroleum, where an
agency flouted a congressionally imposed restriction, is not
present here. HAI’s reliance on FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000), for the proposition
that Congress’s more specific enactment controls a prior grant
of general authority is likewise misplaced.
Because we conclude that the FAA acted within its
authority under § 40103(b)(2) in promulgating the Final Rule,
we need not address whether § 44715 could serve as an
independent source of such authority.
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III.
We turn to HAI’s contentions that the FAA’s finding that
there is a noise problem is unsupported by substantial evidence
in the record and that the Final Rule was an impermissible
deviation from longstanding FAA policy. Under the
Administrative Procedure Act, the court will “hold unlawful and
set aside agency action, findings, and conclusions” that are
“arbitrary [and] capricious.” 5 U.S.C. § 706(2) & (2)(A).
Again, our standard of review is highly deferential. See City of
South Bend, Ind. v. Surface Transp. Bd., 566 F.3d 1166, 1169
(D.C. Cir. 2009). The FAA’s findings of fact are “conclusive”
if they are “supported by substantial evidence.” 49 U.S.C.
§ 46110(c). HAI has failed to demonstrate that the Final Rule
is unlawful and must be set aside. And although the FAA
acknowledges, as HAI points out, that its certification under the
Regulatory Flexibility Act was based on incorrect fuel cost data,
there is no uncertainty that the FAA would reach the same result
in assessing the impact of the Final Rule on small entities were
the court to remand.
A.
According to HAI, public complaints about noise are not
evidence of a noise problem absent objective, corroborating
data and the FAA’s justification for the Final Rule is without
foundation. It relies on Safe Extensions, Inc. v. FAA, 509 F.3d
593 (D.C. Cir. 2007), where the FAA based its decision to
evaluate differently two types of runway light bases on the
unsubstantiated statement of a single employee who had
responded to industry comments on a proposed FAA Advisory
Circular. In that case, the court held that “one employee’s bare
assertions” did not amount to substantial evidence. Id. at 595.
In promulgating the Final Rule, the FAA relied on a host of
externally generated complaints from elected officials and
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commercial and private residents of Long Island. It found that
over one third of commenters complained of helicopter noise.
Final Rule, 77 Fed. Reg. at 39,913. The FAA explicitly
referred in the preamble to the Final Rule to the commenters’
complaints that “the helicopter noise interferes with sleep,
conversation, and outdoor activities.” Id. HAI offers no
evidence that the complaints were not based on actual
experience or were otherwise falsified. Although HAI refers to
the comment by the Eastern Region Helicopter Council
(“Council”) that 85% of the complaints to its hotline came from
only ten individuals, the FAA pointed out that this “cannot
demonstrate these individuals are the only ones disturbed by the
existing noise levels.” Id. at 39,914. The hundreds of
complaints considered by the FAA in response to the NPRM
were identifiable by the commenter’s name and a date. The
FAA could reasonably accept these comments from individual
members of the public, which are different from the
unsubstantiated factual statement of the agency employee in
Safe Extensions, 509 F.3d at 595, as empirical data of a noise
problem. HAI overlooks, moreover, that an agency’s
conclusion may be supported by substantial evidence even
though a plausible alternative interpretation of the evidence
would support a contrary view. See Robinson v. NTSB, 28 F.3d
210, 215 (D.C. Cir. 1994).
HAI claims, however, that the FAA acknowledged the
existence of scientific evidence that demonstrates there is no
significant noise problem, thereby undermining the reliability
of the complaints and by extension its decision to act on those
complaints. The Volpe study commissioned by the FAA
revealed that DNLs on and around the two busiest helicopter
traffic weekends of the year (Memorial Day and Fourth of July
weekends) were less than 45 dB along the north shore of Long
Island, see Final Rule, 77 Fed. Reg. at 39,916 & n.7, well below
the DNL 65 dB ceiling set by the FAA to mark noise levels
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compatible with residential land use near airports. See 14
C.F.R. pt. 150, app. A, tbl. 1. According to HAI, this reveals
that the FAA’s own study shows that the basis of the rule, a
noise problem, did not exist.
HAI has not identified any statutory or regulatory provision
that sets 65 dB as the minimum noise level that must be reached
before the FAA can regulate the impact of aircraft noise on
residential populations. Neither has it shown that the area
addressed in the Final Rule is near an airport. The FAA’s
Airport Noise Compatibility Program, where the 65 dB level
appears, states that “[t]he designations contained in this table do
not constitute a Federal determination that any use of land
covered by the program is acceptable or unacceptable under
Federal, State, or local law.” 14 C.F.R. pt. 150, app. A, tbl. 1
n.*. That level was established for use in mapping noise
exposure within the vicinity of airports, not residential areas far
removed from an airport environment. See id., app. A, pt. A
§ A150.1(a). It serves as a reference point from which the FAA
can reasonably deviate when determining whether a particular
noise reduction intervention is in the public interest. See
Environmental Impacts: Policies and Procedures, 69 Fed. Reg.
33,778, 33,780–81 (June 16, 2004). Here, based on its
evaluation of the complaints and the results of the Volpe study,
the FAA concluded that noise levels below DNL 45 dB were
adversely impacting the north shore’s residential population to
a degree that further control was warranted, at least on a
provisional basis. The FAA explained that maximizing the use
of the existing North Shore Route would “secure and improve
upon the decreased levels of noise that have been voluntarily
achieved.” Final Rule, 77 Fed. Reg. at 39,914.
Furthermore, the FAA’s stated objective in making the
North Shore Route mandatory was not limited to “improv[ing]
upon the decreased levels of noise that have been voluntarily
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achieved,” but to “secur[ing]” the existing noise levels as well
by preventing future increases. Id. Even assuming voluntary
usage of the route was high and noise levels relatively low, see
Final Rule, 77 Fed. Reg. at 39,914, 39,916, the rule was
designed to ensure that use of the route continues and that the
noise levels do not increase, thereby aggravating the problem
identified by commenters, id. at 39,914. Given the provisional
nature of the Final Rule, it represents a relatively minor,
temporary adjustment to the existing route that HAI maintains
is used by most helicopters. HAI fails to show the FAA acted
unreasonably.
To the extent HAI maintains the FAA relied on faulty
evidence and methods because it failed to use a larger data set
and a particular data analysis method, i.e., the Integrated Noise
Model, HAI ventures unsuccessfully into areas of agency
expertise. See U.S. Air Tour Ass’n v. FAA, 298 F.3d 997, 1008
(D.C. Cir. 2002). HAI cites no authority for the assertion that
the FAA is required to use the Integrated Noise Model when
assessing noise levels outside the vicinity of airports. The FAA
has identified the Integrated Noise Model as appropriate for
assessing noise in and around airports and the Noise Integrated
Routing System model (“NIRS”) for use “where the study area
is larger than the immediate vicinity of an airport.” FAA Order
1050.1E, Environmental Impacts: Policies and Procedures, app.
A, ¶ 14.5e (Mar. 20, 2006). The North Shore Route begins
approximately 20 miles northeast of LaGuardia Airport,
suggesting the FAA appropriately could use the NIRS, or, as it
did in this instance, a successor to the NIRS model. Final Rule,
77 Fed. Reg. at 39,913. Moreover, HAI’s counsel conceded at
oral argument that “we don’t really have a complaint about the
[Volpe] study, we have a complaint that the FAA in imposing
this rule is ignoring this study.” Oral Arg. Tr. at 16. But, as
noted, the FAA’s decision to make the route mandatory was
based on its assessment of the numerous complaints it received,
13
not on the study per se. HAI has not met its burden to show that
the FAA used an incorrect data analysis methodology.
B.
HAI also fails to support its objection that the Final Rule is
arbitrary and capricious because the FAA reversed its
longstanding policy of not altering air traffic patterns for the
sole purpose of noise abatement. HAI identifies no prior FAA
policy that conflicts with the Final Rule while the FAA
identified three instances where it promulgated rules altering air
traffic patterns for the purpose of reducing noise over particular
sites, see Final Rule, 77 Fed. Reg. at 39,917 & n.11 (citing 62
Fed. Reg. 1192 (Jan. 8, 1997) (Rocky Mountain National Park);
35 Fed. Reg. 5466 (Apr. 2, 1970) (President Washington’s
home at Mount Vernon); 33 Fed. Reg. 11,748 (Aug. 20, 1968)
(Oberlin Conservatory of Music)). Additionally, a September
2004 FAA Advisory Circular set forth recommendations for
pilot use of the navigable airspace for the purpose of reducing
the impact of flights on “noise-sensitive areas,” such as
“residential” zones, citing 49 U.S.C. § 40103 for its authority to
make policy of this type. FAA Advisory Circular, Visual Flight
Rules (VFR) Flight Near Noise-Sensitive Areas, AC No: 91-36D
(Sept. 17, 2004). Rather than reversing past policy, the FAA
has acted in accordance with a longstanding, if infrequently
used, interpretation of its authority under § 40103.
C.
The Regulatory Flexibility Act provides, in relevant part:
When an agency promulgates a final rule under section
553 of this title, after being required by that section or
any other law to publish a general notice of proposed
rulemaking, . . . the agency shall prepare a final
regulatory flexibility analysis.
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5 U.S.C. § 604(a). The analysis must include a description and
estimate of the “number of small entities to which the rule will
apply or an explanation of why no such estimate is available”
and “a description of the steps the agency has taken to minimize
the significant economic impact on small entities . . . .” Id.
§ 604(a)(4) & (6). If, however, the “head of the agency certifies
that the rule will not . . . have a significant economic impact on
a substantial number of small entities,” then no final regulatory
flexibility analysis need be published. Id. § 605(b). The FAA
made that certification. NPRM, 75 Fed. Reg. at 29,473; Final
Rule, 77 Fed. Reg. at 39,919–20. Our review is highly
deferential, “particularly . . . with regard to an agency’s
predictive judgments about the likely economic effects of a
rule,” Nat’l Telephone Coop. Ass’n v. FCC, 563 F.3d 536, 541
(D.C. Cir. 2009).
The FAA found that the cost increase per flight was
minimal and concluded it was likely to be passed on to
customers. See Final Rule, 77 Fed. Reg. at 39,919. Given that
the high cost of helicopter flights to eastern Long Island
suggests paying customers place a significant premium on their
time, the FAA reasoned that paying customers would not
choose far slower modes of transportation because of relatively
small price increases. See id. Since the operators would not
need to purchase new equipment to retrofit their helicopters, the
FAA determined that the Final Rule would impose minimal
costs on regulated small entities and that a regulatory flexibility
analysis was not required. See id. at 39,919–20.
HAI objects, first, that the Final Rule would require small
commercial operators to purchase expensive avionics to comply
with the FAA’s safety recommendations for safe flight along
the North Shore Route, and that the FAA did not take these
costs into consideration when certifying that a regulatory
flexibility analysis was not needed. The North Shore Route,
15
however, contemplates that pilots would be operating under
visual flight rules. Id. at 39,912. The FAA concluded that
operators would not be required to purchase any new
equipment, see id., because pilot deviations from the North
Shore Helicopter Route are permitted when aircraft cannot be
operated safely along the route with existing equipment, see 14
C.F.R. § 93.103(b); Final Rule, 77 Fed. Reg. at 39,912, 39,914.
HAI presents no basis to doubt FAA’s certification on this
ground.
Second, HAI objects that the FAA used an incorrect fuel
price in concluding that the economic impact of increased fuel
costs associated with longer flight times would not be
significant because the small commercial helicopter operators
would be able to pass on the minimal extra cost to their
customers. The FAA found that helicopter flights from New
York City to the east end of Long Island cost between $3,500
and $9,500 per trip, and initially calculated that the increased
cost per flight would be $150, using the estimated ten minute
time increase per flight proposed by the Council as the basis for
this figure. See Final Rule, 77 Fed. Reg. at 39,918–19.
The FAA now acknowledges that the correct fuel price
yields a cost increase of as much as $354 per flight. See
Resp’t’s Br. at 47–48. Although this is a larger increase than
the original estimate, it is not significant in relation to the total
cost of a helicopter flight, especially when compared with the
cost of travel by rail or by car. The FAA’s conclusion that the
increase would be passed on to paying customers, based on the
high value they place on their time, remains reasonable.
Although a court can affirm agency action only on grounds
provided by the agency, see SEC v. Chenery Corp., 318 U.S. 80,
87–88 (1943); Lakeland Bus Lines, Inc. v. ICC, 810 F.2d 280,
287 (D.C. Cir. 1987), this requirement gives way here “when
there is not the slightest uncertainty as to the outcome of a
16
proceeding on remand,” Manin v. NTSB, 627 F.3d 1239, 1243
n.1 (D.C. Cir. 2011) (internal alteration and quotation marks
omitted).
HAI further objects that the FAA used an incorrect estimate
of the number of small entities that would be affected by the
Final Rule. The FAA estimated that 35 small entities would be
affected based on the number of commercial helicopter
operators who were members of the Council. Final Rule, 77
Fed. Reg. at 39,919. According to FAA counsel, the Council is
the “large membership organization for . . . helicopter operators
in this region,” Oral Arg. Tr. at 29, and the Council presented
to the FAA that it “currently represents over 94% of the
helicopter operators and businesses supporting helicopters in the
New York Tri-State area, the majority of whom will be
impacted directly by the proposed rule,” Comments of the
Eastern Region Helicopter Council at 1 n.1 (June 25, 2010).
The Council estimated over 100 small entities used the North
Shore Route, see id. at 15–16, but then, as now, provided no
evidence of how it arrived at that figure. An unsubstantiated
estimate is insufficient to call the FAA’s figure into question.
To the extent HAI contends that the FAA violated
Executive Order 12,866, 58 Fed. Reg. 51,735 (Sept. 30, 1993),
and Department of Transportation Order 2100.5 (May 22,
1980), both of which require that the agency perform cost
benefit analyses for each proposed regulation, neither creates
private rights, nor is an agency’s failure to comply with these
orders subject to judicial review. See Meyer v. Bush, 981 F.2d
1288, 1296 n.8 (D.C. Cir. 1993).
Accordingly, we deny HAI’s petition for review.