Opinion for the court filed by Circuit Judge TAMM.
TAMM, Circuit Judge:
Petitioner, Aircraft Owners and Pilots Association (AOPA), seeks direct review
The Federal Aviation Act of 1958 (Act), 49 U.S.C. §§ 1301-1542 (1976), authorizes the FAA to promote air safety, 49 U.S.C. §§ 1303(a), 1655(c)(1) (1976), and to regulate the use of navigable air space, 49 U.S.C. §§ 1348(a), 1655(c)(1) (1976). Section 1101 of the Act specifically recognizes the threat that tall structures may pose to air safety and provides that the FAA
49 U.S.C. §§ 1501, 1655(c)(1) (1976).
Pursuant to these statutory powers, the FAA promulgated Part 77 of the Federal Aviation Regulations, 14 C.F.R. § 77 (1978). The pertinent provisions of these regulations require each person who proposes construction or alteration of structures of particular dimensions and within specific proximity to airports to notify the FAA. 14 C.F.R. §§ 77.11, .13, .15. The FAA uses this information to make "[d]eterminations of the possible hazardous effect of the proposed construction or alteration on air navigation." 14 C.F.R. § 77.11(b)(2). The regulations set out various standards against which proposals may be evaluated, see 14 C.F.R. § 77.23(a), and also require the FAA to conduct aeronautical studies in certain circumstances, see 14 C.F.R. §§ 77.19(c)(3), .35(a).
The initial hazard/no-hazard decision is made by a staff member in the FAA's Air Traffic Division. That decision is final unless the Administrator of the FAA (Administrator) grants discretionary review. 14 C.F.R. § 77.37. The Administrator's review may be based on written materials or on a public hearing held in accordance with procedures prescribed in 14 C.F.R. §§ 77.41-.69, .37(c)(1)-(2).
Once issued, a hazard/no-hazard determination has no enforceable legal effect.
This case arises out of the proposed construction of a television antenna tower by WSET, Inc. (WSET)
On July 30, 1976, the FAA held an informal meeting to solicit further comments of interested persons. See 14 C.F.R. § 77.35(b)(4). Opponents of the tower repeated their concern that it would interfere with
The FAA began its investigation by surveying the number of VFR flights traveling between Lynchburg, Virginia, and Roanoke, Virginia, within close proximity to the tower. During the one-month period of June 23 to July 26, 1976, the survey showed twenty flight plans were filed in which aircraft passed within two miles of the site at an altitude of 3,500 feet or below. J.A. at 16.
On November 2, 1976, the FAA conducted a comprehensive on-site flight inspection and evaluation of the tower proposal, including simulation of all phases of VFR operations. The study focused particularly on IFR and VFR interference and concluded that the tower would have "no substantial adverse effect on aeronautical operations" provided it was equipped with high intensity white obstruction lights. Id. at 33. The FAA, relying on this study, gave the tower a no-hazard rating on November 22, 1976. Id. at 30-35.
Within a month of the initial decision, AOPA petitioned the FAA for review. See 14 C.F.R. § 77.37. The petition reasserted previously raised objections with regard to VFR and IFR operations. AOPA further claimed that the FAA's decision violated specific hazard guidelines set out in FAA Handbook 7400.2B (Handbook).
The FAA Director of Air Traffic Service
On January 25, 1977, ATC Associates, Inc. (ATC), aviation consultants for WSET, submitted remarks with respect to AOPA's petition for review. On February 15, 1977, AOPA responded to ATC's report, suggesting that the FAA establish an antenna farm
On March 14, 1977, the FAA conducted another in-flight evaluation of the site. It again surveyed the VFR flights operating between Lynchburg and Roanoke at altitudes below 4,500 feet. According to the survey, only four such flight plans were filed between March 1 and 13, 1977. Id. at 84, 116.
After the protesting parties renewed their objections, the FAA engaged in informal
On July 12, 1977, the Director of Air Traffic Service
AOPA filed a petition for reconsideration on July 29, 1977. The FAA denied the request. This appeal ensued.
At the outset, both parties squarely call upon us to define the parameters of our review. Section 1006(e) of the Act provides that "findings of fact by the [Civil Aeronautics] Board or the [Administrator of the FAA], if supported by substantial evidence, shall be conclusive." 49 U.S.C. § 1486(e) (1976). The question presented is how should a court apply the substantial evidence standard of review to an informal adjudication during which the agency decisionmaker receives information through nonadversary proceedings and written submissions, rather than formal, trial-type hearings. The FAA contends that the purpose of substantial evidence review cannot be served by application to informal adjudication not held on a formal record. The FAA urges, instead, application of the arguably less rigorous arbitrary and capricious standard.
The FAA premises its argument on an analogy to the review provisions set out in the Administrative Procedure Act (APA). Substantial evidence review under the APA is properly invoked only in cases subject to the formal hearing procedures of sections 556 and 557 of the APA, 5 U.S.C. §§ 556, 557 (1976), or otherwise reviewed after a formal agency hearing required by statute. 5 U.S.C. § 706(2)(E) (1976).
The FAA proceeds by analyzing the relationship that exists between the formal record compiled in the course of trial-type proceedings and application of the substantial evidence standard. According to the FAA, the substantial evidence requirement insures the integrity of a decision required to be made on the record of a mandatory hearing by precluding consideration of extra-record evidence which the parties had no opportunity to refute. A reviewing court determining whether the factual findings of the agency are based on substantial evidence weighs the evidence in the record supporting the decision against that which is contradictory. As long as sufficient evidence exists that "a reasonable mind might accept as adequate to support a conclusion," Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938), the agency's findings must be upheld. Universal Camera Co. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1957). The FAA contends that if a hearing is merely a discretionary adjunct to an agency's internal factfinding process, as it is here, and if the decision need not be confined to the parameters of a public record, the restrictive purpose of the substantial evidence constraint no longer obtains. See City of Chicago v. FPC, 147 U.S.App.D.C. 312, 325, 458 F.2d 731, 744 (1971), cert. denied, 405 U.S. 1074, 92 S.Ct. 1495, 31 L.Ed.2d 808 (1972).
We recognize that application of the substantial evidence standard may be troublesome, as well as purposeless, when applied to an informal adjudicatory decision made absent the creation of an adequate record. Tiger International, Inc. v. CAB, 554 F.2d 926 (9th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 532, 54 L.Ed.2d 467 (1977), relied upon by the FAA, illustrates the inherent problems. In Tiger, the Ninth Circuit held that a Civil Aeronautics Board (CAB) decision rendered without a hearing was properly reviewed under the arbitrary and capricious standard despite the plain language of section 1006(e) of the Act. Id. Particularly compelling to the court was the fact that, because of the permissible use of informal procedures, only the petitioners submitted evidence. The court refused to require the CAB to reach a result supported by substantial evidence on a record compiled essentially by only one side of the controversy. Id. at 936 & n. 19.
AOPA opposes the FAA by contending that the explicit statutory language of section 1006(e) mandates application of the substantial evidence standard and that the standard, as traditionally formulated, can be applied to the record now before us. AOPA specifically relies upon Pillai v. CAB, 158 U.S.App.D.C. 239, 485 F.2d 1018 (1973), in which this court reviewed under the substantial evidence standard CAB orders issued without a formal hearing. The court held the statutory standard applicable, notwithstanding the sparse record before the CAB:
AOPA argues that the present action not only falls squarely within the requirement of Pillai, but in fact presents a stronger case. The record before the FAA in this action was not sparse. Although the FAA was not confined to the public record, that record embraced all facts necessary to make a hazard/no-hazard determination; and there is no indication that the FAA relied upon any extra-record evidence. We thus do not encounter the practical difficulty, illustrated by Tiger, of applying the substantial evidence test to agency action based on internal agency knowledge. AOPA concludes that because application of the substantial evidence test is feasible in this case, we may not deviate from the plain wording of section 1006(e).
We agree that as long as the substantial evidence standard can be applied, section 1006(e) mandates that it must be applied. In so holding, we need not rule on the appropriate standard for reviewing a decision made on the basis of informal procedures which result in the creation of a record containing arguments and evidence of just one party.
AOPA asks us to set aside the FAA's no-hazard determination as unsupported by any probative evidence. AOPA further charges that the decision violates provisions of the Handbook
Contrary to AOPA's first contention, the evidence contained in the comprehensive aeronautical study conducted by the FAA sufficiently supports its no-hazard determination. This study analyzed separately the IFR and VFR effects of the proposed tower. With respect to IFR operations, the study disclosed that the tower would not: (a) require change to the Minimum Enroute Altitude of Federal Airway Victor 16-260,
AOPA does not challenge the validity of these findings. Rather, AOPA argues that the study is defective for failure to address the tower's effect on IFR departures from Lynchburg Airport. The FAA explained that because the minimum altitude of these flights is 5,000 feet—2,000 feet above the reduced level of the tower—they would not be affected by the proposed construction. Id. at 115. AOPA disputes this logic, contending that the tower jeopardizes the safety of pilots who encounter engine trouble and lose altitude while flying over the tower. We find the reasonableness of the FAA's conclusion undisturbed by this generalized complaint which, on its face, could be levied against construction of any tall structure. AOPA has not come forth with any evidence showing that the WSET tower poses a particular threat to pilots flying under IFR rules.
With respect to VFR operations, the study demonstrated that the tower would not interfere with traffic pattern operations at any airport. The study analyzed the effects on VFR enroute operations and found that the tower would not: (1) impede flights visually guided by the highway, U.S. Route 460; (2) necessitate substantial change in operations using Federal Airway Victor 16-260; (3) have any impact on north or south bound VFR operations because the northern mountainous terrain causes approaching flights to proceed at higher altitudes. Id. at 32-33.
AOPA's attack on the validity of the FAA's conclusion that the tower presents no hazard to VFR flights centers on application of the Handbook criteria. The Handbook presents a series of "informal" guidelines
Id. at 17. Section 1442 states that if a structure has an adverse effect, that effect will be deemed "substantial" if "a significant volume . . . of aeronautical operations . . . would be affected." Id. Section 1445 of the Handbook provides that "significant volume" means that "one or more aeronautical operations per day [are] affected." Id. Finally, section 1444(b) of the Handbook states that a no-hazard determination is normally required when the evidence demonstrates that the proposed construction will have "no substantial adverse effect" on air navigation. Id.
The FAA contends that the proposed tower does not have a substantial adverse effect on flight operations within the meaning of sections 1442 and 1445 because, according to its survey of filed VFR flight plans, a significant volume of VFR flights would not be affected. A survey of flight plans covering a two-week period in March 1977 indicated that only four VFR flights, operating at 4,500 feet or below, passed within two miles of the tower. See text at ___ of 195 U.S.App.D.C., 968 of 600 F.2d supra. An earlier canvas conducted between June 23 and July 22, 1976 showed twenty flights, operating at or below 3,500 feet, passed over the tower. See text at ___ of 195 U.S.App.D.C., 968 of 600 F.2d supra. The FAA's conclusion, based on the results of these surveys, is consistent with the Handbook stipulations.
AOPA argues, however, that the survey results are illusory. It contends that the Lynchburg route is a popular VFR and IFR flyway and that the FAA figures represent no more than ten or fifteen percent of actual operations. AOPA offers no support for this proposition save its own bald assertion. It presents neither countervailing statistics, nor corroborative documentation. We cannot replace the expert judgment of the FAA, which appears solidly based on evidence in the record, with the speculative assumptions of AOPA.
Further, even were we to assume that the flights comprised a substantial volume of traffic within the meaning of sections 1442 and 1445, we need not necessarily find the FAA's no-hazard determination inconsistent with the Handbook. Section 1452(f) of the Handbook specifically provides that:
Appendix to Brief for Petitioner at 18. The no-hazard determination in this case was expressly conditioned on WSET's agreement to equip the tower with high intensity strobe lights, thereby "provid[ing] visual observance by pilots." Id. We note also that the surrounding mountainous terrain would mitigate what might otherwise have been a potential hazard to aircraft flying in northernly or southernly directions.
Our review indicates that the no-hazard determination is reasonable and well supported in the record before us. Accordingly, we uphold the FAA's decision. In so doing, we are mindful of the FAA's expertise in these matters. As we explained in Pillai v. CAB, 158 U.S.App.D.C. at 248, 485 F.2d at 1027, "`administrative prediction' and strategy in the face of essentially unprovable
The tower would underlie Federal Airway Victor 16-260. Joint Appendix (J.A.) at 31. A "victor airway" is an established line (or radial) along which pilots proceed with the aid of very high frequency omnidirectional range (VOR) navigational equipment. Ground VOR equipment emits signals which allow a pilot to ascertain his whereabouts and chart his own course along a radial directly between two points.