05-6072. Airport Improvement Program Grant Assurances; Notice of Modifications

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Notice to modify Airport Improvement Program Grant Assurances on an interim basis.

SUMMARY:

In issuing this notice, the FAA incorporates, on an interim basis; two new assurances to the standard grant assurances that are required of a sponsor before receiving a grant under the Airport Improvement Program (AIP). Also, the FAA is modifying another grant assurance. Pursuant to applicable law, the Secretary of Transportation is required to provide notice in the Federal Register of, and to provide an opportunity for public comment on, proposals to modify the assurances and on proposals for additional AIR assurances.

A notice of modification of Airport Improvement Program grant assurances and of the opportunity to comment was published in the Federal Register/Vol. 69, No. 163/Tuesday, August 24, 2004 on page 52057. The existing AIP grant assurances are being amended here for two reasons: To add two new assurances as required by Vision 100—Century of Aviation Reauthorization Act, (Pub. L. 108-176) and to modify an existing assurance.

The August 24 notice proposed, in addition to these new assurances to restructure the grant assurances to better reflect existing law. FAA also invited comments on all of the assurances for proposed changes or for possible recommendations to propose changes to existing statute. FAA is committed to this larger project and wishes to give full considerations to the comments received. At the same time, FAA is obligated to implement changes to law as timely as possible. Therefore, this notice is issued to implement the law with respect to the new assurances and the modified assurance while the larger project is being considered.

DATES:

These modifications to the existing Grant Assurances will be adopted as of the date of publication in the Federal Register.

FOR FURTHER INFORMATION CONTACT:

Mr. Kendall Ball, Airport Improvement Program Branch, Airports Financial Assistance Division, APP 520, Room 619, FAA, 800 Independence Avenue, SW., Washington, DC 20591, Telephone [phone].

SUPPLEMENTARY INFORMATION:

The Secretary must receive certain assurances from a sponsor (applicant) seeking financial assistance for airport planning, airport development, noise compatibility planning or noise mitigation under title 49, U.S.C., as amended. These assurances are submitted as part of a sponsor's application for Federal assistance and are incorporated into all grant agreements. As need dictates, these assurances are modified to reflect new Federal requirements. Notice of such proposed modifications was published in the Federal Register and an opportunity was provided for comment by the public.

The current assurances were published on February 3, 1988, at 53 FR 3104 and amended on September 6, 1988, at FR 34361, on August 29, 1999, at 54 FR 35748 on June 10, 1994 at 59 FR 30076, on January 4, 1995, at 60 FR 521, on June 2, 1997, at 62 FR 29761 on August 18, 1999, at 64 FR 45008, and on August 24, at 69 FR 163.

Discussion of Comments Received in Response to the Notice of Modification of Airport Improvement Grant Assurances

On August 24, 2004, the Federal Aviation Administration published in the Federal Register (69 FR 52057) modifications to the Airport Improvement Program grant assurances. The agency asked for public comment by September 23, 2004. On September 17, 2004 a notice was published in the Federal Register (69 FR 56112) extending the comment period until November 8, 2004.

The FAA received comments from 14 respondents on the notice of proposed modifications of the grant assurances. One of the 14 respondents comments were received following the close of the comment period on November 8. Although one was technically late, the FAA has decided to consider all comments. However, this discussion of comments will be limited here to only those comments received pertaining to the two new assurances being added to the existing assurances and the assurance being amended.

National Air Transportation (NATA) recommended the new Hangar Construction assurance define the duration of a “long-term” lease. NATA believes that as the assurance is currently written it leaves the length entirely up to the subjective nature of whoever is writing the lease. The Airports Council International—North America (ACI-NA) in its comment, however, recommended that the FAA avoid defining the meaning of “long term” at this time. FAA agrees with the ACI-NA since it believes the airport Sponsor is better prepared to negotiate the limits of the lease to best suit the circumstances of each individual project. FAA in its enforcement of this assurance will take into account the specific circumstances involved. Thus, the wording will be adopted as proposed by FAA.

The Wayne County Airport Authority stated the hangar construction assurance is an unwarranted intrusion by the federal government into detailed landlord-tenant matters best left to the business judgment of airports. The Sacramento County Airport System (SCAS) stated they are unclear as to the purpose of the new assurance and that it should be deleted. Deletion of this assurance will require statutory action and the FAA will consider whether to recommend this change at the appropriate time. In the interim, FAA is obligated to implement statutory requirements and will retain the proposed assurance to meet legislative requirements.

The Cincinnati/Northern Kentucky International Airport (CVG) commented on the competitive access assurance stating the FAA should take the opportunity to more efficiently use resources if, in connection with the notice, the FAA made a determination of whether an update to a previously approved competition plan was warranted rather than the current policy which is to automatically require every medium and large hub airport to submit an update every eighteen (18) months. Subsequent to the receipt of this comment on September 30, FAA issued guidance in the form of a program guidance letter that identified circumstances in which updates would be required. In program guidance letter 04-08 Requirement for Airline Competition Plan, (September 30, 2004) the FAA amended policy to no longer require periodic written plan updates unless special conditions arise. The reader is referred to program guidance letter 04-08 for the full text on the competition plan initiative. The FAA believes that there is no need to alter the wording of the proposed assurance and is adopting it without change. ACI—NA requested the FAA to support an amendment to delete this statutory requirement as an unnecessary infringement on an airport's proprietary rights. In the interim ACI—NA urges the FAA not to over-define “unable to accommodate” a request by an air carrier. ACI—NA requests the assurance should state that an airport does not have to report an incident in which a carrier is denied access because the carrier is unwilling to pay the stated rental or other rate for the facility, or where a carrier has not given the airport a commercially reasonable period of time to prepare facilities for that carrier.

John Wayne Airport (SNA) filed a comment concerning the new competitive access assurance. SNA is concerned with the burdensome and duplicative nature of the reporting requirements and more importantly because this assurance could create a situation where federal agencies could be demanding that SNA find some means to accommodate new entrants or an increase in service by incumbent carriers where SNA has no practical ability to comply with the request. In the SNA summary they request SNA and other airports in a similar regulatory environment be exempt from the competitive access reporting requirements. The assurance as proposed contains a notice requirement only and does not address possible future action on the part of the Department of Transportation (DOT) or FAA. DOT and FAA will consider extenuating circumstances on a case-by-case basis and it would be inappropriate to exempt airports from the notice requirement in advance of considering all of the relevant information that may be provided with a notice as required under the assurance. Therefore, the FAA will retain the original proposed language of the assurance.

The American Association of Airport Executives (AAAE) stated in their letter they had provided testimony in opposition to the requirements of this provision. AAAE requests the FAA consider a legislative recommendation to Congress to eliminate the requirement for competition plans. FAA will consider this comment as it is formulating a future legislative proposal. In the meantime, FAA must retain the assurance.

The Sacramento County Airport System (SCAS) suggests that if the competitive access assurance is retained it should be supplemented with language that would state all reports shall be made readily available electronically to the public upon receipt by the FAA. FAA will consider this request as part of the ongoing review of the assurances referenced above. In the meantime, FAA will retain the original proposed language of the assurance.

Finally, FAA proposed to add language to assurance 31, Disposal of Land, to comply with a change made by Pub. L. 108-176 that permits that disposal proceeds for land purchased for noise purposes may be used to acquire commercial properties affected by the purchase of the land. Since there were no comments on this proposed addition, FAA is adopting the proposed wording.

Discussion of Modifications

FAA uses three separate sets of standard assurances: Airport Sponsors (owners/operators); Planning Agency sponsors; and Non-Airport Sponsors Undertaking Noise Compatibility Program Projects (hereinafter referred to as Non-Airport Sponsor Assurances). FAA is modifying only the Airport Sponsor assurances currently in effect to incorporate the below-noted changes, except with respect to assurance 31, as explained below.

The following changes affect only the Airport Sponsor Assurances and are being added:

(a) New Assurance 38, “Hangar Construction” is being added to comply with recently enacted Public Law 108-76. Assurance 38 shall read:

38. Hangar Construction. If the airport owner or operator and a person who owns an aircraft agree that a hangar is to be constructed at the airport for the aircraft at the aircraft owner's expense, the airport owner or operator will grant to the aircraft owner for the hangar a long term lease that is subject to such terms and conditions on the hangar as the airport owner or operator may impose.

(b) New Assurance 39, “Competitive Access” is being added to comply with recently enacted Public Law 108-76. Assurance 39 shall read:

39. Competitive Access.

(a) If the airport owner or operator of a medium or large hub airport (as defined in section 47102 of title 49, U.S.C.) has been unable to accommodate one or more requests by an air carrier for access to gates or other facilities at that airport in order to allow the air carrier to provide service to the airport or to expand service at the airport, the airport owner or operator shall transmit a report to the Secretary that—

1. Describes the requests;

2. Provides an explanation as to why the requests could not be accommodated; and

3. Provides a time frame within which, if any, the airport will be able to accommodate the requests.

(b) Such report shall be due on either February 1 or August 1 of each year if the airport has been unable to accommodate the request(s) in the six month period prior to the applicable due date.

Discussion of Modification of an Existing Assurance

Existing Assurance 31 is being modified to comply with recently enacted Public Law 108-76. Both the Airport Sponsor Assurances and the Non-Airport Sponsor Assurances are being modified with this legislation. The legislation now allows the proceeds from the sale of land no longer needed for noise compatibility purposes to be used for the purchase of non-residential buildings or property in the vicinity of residential buildings or property previously purchased by the airport as part of a noise compatibility program. Assurance 31 shall now read in its entirety:

31. Disposal of Land

(a) For land purchased under a grant for airport noise compatibility purposes, it will dispose of the land when the land is no longer needed for such purposes at fair market value at the earliest practicable time. That portion of the proceeds or such disposition which is proportionate to the United States' share of acquisition of such land will, at the discretion of the Secretary, (1) Be paid to the Secretary for deposit in the Trust Fund, or (2) be reinvested in an approved noise compatibility project, as prescribed by the Secretary, including the purchase of nonresidential buildings or property in the vicinity of residential buildings or property previously purchased by the airport as part of a noise compatibility program.

(b) For land purchased under a grant for airport development purposes (other than noise compatibility), it will, when the land is no longer needed for airport purposes, dispose of such land at fair market value or make available to the Secretary an amount equal to the United States' proportionate share of the fair market value of the land. That portion of the proceeds of such disposition which is proportionate to the United States' share of the cost of acquisition of such land will, (a) Upon application to the Secretary, be reinvested in another eligible airport improvement project or projects approved by the Secretary at that airport or within the national airport system, or (b) be paid to the Secretary for deposit in the Trust Fund if no eligible project exists.

(c) Land shall be considered to be needed for airport purposes under this assurance if (a) It may be needed for aeronautical purposes (including runway or within the national airport system, or (b) be paid to the Secretary for deposit in the Trust Fund if no eligible project exists.

(d) Land shall be considered to be needed for airport purposes under this assurance if (a) It may be needed for aeronautical purposes (including runway protection zones) or serve as noise buffer land, and (b) the revenue from interim uses of such land contributes to the financial self-sufficiency of the airport. Further, land purchased with a grant received by an airport operator or owner before December 31, 1987, will be considered to be needed for airport purposes if the Secretary or Federal agency making such grant before December 31, 1987, was notified by the operator or owner of the uses of such land, did not object to such use, and the land continues to be used for that purpose, such use having commenced no later than December 15, 1989.

(e) Disposition of such land under (a), (b), or (c) will be subject to the retention or reservation of any interest or right therein necessary to ensure that such land will only be used for purposes which are compatible with noise levels and safety associated with operation of the airport.

Upon acceptance of the AIP grant by an airport sponsor, the assurances become a contractual obligation between the airport sponsor and the Federal government.

Dated: Issued in Washington, DC on February 18, 2005.

Dennis E. Roberts,

Director, Office of Airport Planning and Programming.