[Federal Register: March 29, 2005 (Volume 70, Number 59)]
[Notices]
[Page 15980-15982]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29mr05-123]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
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.
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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
(202) 267-7436.
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.
[[Page 15981]]
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
[[Page 15982]]
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.
[FR Doc. 05-6072 Filed 3-28-05; 8:45 am]
BILLING CODE 4910-13-M