[Federal Register Volume 64, Number 159 (Wednesday, August 18, 1999)]
[Notices]
[Pages 45008-45011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21458]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration


Airport Improvement Program Grant Assurances; Proposed 
Modifications and Opportunity to Comment

AGENCY: Federal Aviation Administration (FAA), US DOT.

ACTION: Notice of modification of Airport Improvement Program grant 
assurances and of the opportunity to comment.

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[[Page 45009]]

SUMMARY: The FAA proposes to modify the standard grant assurances that 
are required of a sponsor before receiving a grant under the Airport 
Improvement Program (AIP). 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 AIP assurances.
    Modifications to the AIP grant assurances are being made for three 
reasons: To address the public comments received subsequent to the last 
publication of the assurances on June 2, 1997; to reflect new 
regulatory and Office of Management and Budget requirements 
incorporated in Assurance 1; and to more accurately reflect applicable 
statutory requirements.
    For ease of reading, Title 49, Subtitle VII, as amended by the 1996 
Act, will be cited throughout the remainder of this notice as Title 49, 
U.S.C., as amended. In the actual assurance, however, the reference 
further specifies Subtitle VII.

DATES: These modifications to the Grant Assurances will be effective 
September 1, 1999. Comments, however, are invited. Comments must be 
submitted at or before 30 calendar days after publication in the 
Federal Register. Any necessary or appropriate revision to the 
assurances resulting from the comments received will be adopted as of 
the date of a subsequent publication in the Federal Register.

ADDRESSES: Comments may be delivered or mailed to the FAA, Airports 
Financial Assistance Division, APP-500, Room 619, 800 Independence 
Ave., SW., Washington, DC 20591.

FOR FURTHER INFORMATION CONTACT: Mr. James Borsari, Manager, Program 
Guidance Branch, Airports Financial Assistance Division, APP 500, Room 
619, FAA, 800 Independence Avenue, SW., Washington, DC 20591, Telephone 
(202) 267-8822.

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 is published in the Federal Register and an 
opportunity is 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, 1989, 
at 54 FR 35748 on June 10, 1994 at 59 FR 30076, on January 4, 1995, at 
60 FR 521, and on June 2, 1997, at 62 FR 29761.

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

    On June 2, 1997, the Federal Aviation Administration published in 
the Federal Register (62 FR 29761) modifications to the Airport 
Improvement Program grant assurances. The agency asked for public 
comment by July 2, 1997.
    The FAA received a total of four comments on the notice of proposed 
modifications of the grant assurances. Only one of the four comments 
was received prior to the close of the comment period on July 2. 
However, because only a few comments were received and this process is 
not a formal rulemaking procedure, the FAA has decided to consider all 
comments. Comments were received from Airports Council International, 
North America (ACI-NA); the City of Houston Airport System, Houston, 
Texas; the City of Mesa, Arizona; and the Perry County Airport 
Authority, Tell City, Indiana.
    ACI-NA recommended that Assurance 3, Sponsor Fund Availability, be 
modified to read ``has or will have sufficient funds''. The ACI-NA 
recommendation would allow the sponsor more time to accumulate the 
local matching share for Airport Improvement Program (AIP) projects. 
This would give the airport sponsor until the date of the grant award 
to have local funds available. The statute requires airport sponsors to 
have sufficient funds available at the time the grant application is 
submitted. Title 49 Section 47106(a)(3) states, ``The Secretary of 
Transportation may approve an application under this subchapter for a 
project grant only if the Secretary is satisfied that enough money is 
available to pay the project costs that will not be paid by the United 
States Government under this subchapter''. We believe that it is 
reasonable for an airport to affirm the availability of funds at the 
time of grant request. Therefore, the final notice retains the existing 
language in the assurance.
    The City of Mesa, Arizona, requested clarification about the need 
for public hearings required by Assurance 9, Public Hearings. The City 
of Mesa wanted to know what constitutes a major runway extension, and 
how much of an increase in either runway length or runway weight 
bearing capacity requires a public hearing. Assurance 9 requires that 
the sponsor conduct a public hearing for projects involving the 
location of an airport, an airport runway, or a major runway extension. 
The assurance, as currently written, satisfies the provisions of Title 
49 United States Code, Section 47106(c)(1) regarding environmental 
requirements, and does not need to be revised. Section 1506.6 of the 
Council on Environmental Quality (CEQ) Regulations sets forth 
procedures for public involvement in projects affecting the 
environment. FAA Order 5050.4A describes environmental requirements in 
detail, including the definition of a major runway extension. These 
orders should be consulted regarding public hearing requirements.
    The City of Houston, Texas expressed concerns about the change in 
language of Assurance 22(a), Economic Non-Discrimination, effective 
June 2, 1997. The City of Houston maintained that the change in 
language may encourage more complaints being filed against the airport 
operator for violation of the Assurance 22(a). As an example, the city 
cited situations in which individuals have attempted to fuel general 
aviation aircraft from the back of pick-up trucks while asserting their 
right to do so under Assurance 22(a). Houston suggested that the 
assurance be revised to require all parties engaging in aeronautical 
activity be qualified and meet applicable safety standards.
    The purpose of the revision to Assurance 22(a) was to clarify the 
assurance's application to the full range of aeronautical activities. 
The comment has caused the FAA to review the new wording of the 
assurance and the FAA believes that the new wording is not clear. We 
have decided to change the language to eliminate any confusion. The 
revised assurances will read as follows: ``It will make the airport 
available as an airport for public use on reasonable terms and without 
unjust discrimination to all types, kinds and classes of aeronautical 
activities, including commercial aeronautical activities offering 
services to the public at the airport.'' Furthermore, the FAA believes 
that an airport sponsor's minimum standards should reflect local safety 
requirements and quality of service requirements so long as these are 
reasonable, relevant to the activity, and applied without unjust 
discrimination.
    The typographical error in Assurance 22(b)(2), Economic Non-
Discrimination, has been noted and corrected. The sentence will be 
changed to read,

[[Page 45010]]

``charge reasonable, and not unjustly discriminatory, prices . . .''
    ACI-NA also requested that Assurance 26, Reports and Inspections, 
be revised to permit airports to file their intergovernmental transfer 
reports as soon as practicable instead of leaving the filing deadline 
to the Secretary's discretion. Title 49 Section 47107(k) requires that 
the Secretary provide Congress with an annual summary of the reports 
submitted under 47107(a)(19). The ACI-NA proposed change would pose 
problems for the FAA in fulfilling its reporting requirements to 
Congress. Establishing the filing deadline at the Secretary's 
discretion will provide the flexibility for the Agency to collect the 
reports while assisting those airports who need more time to prepare 
their financial statements. FAA has not been convinced that the filing 
requirement of Assurance 26 needs to be changed.
    ACI-NA suggested that Assurance 27, Use by Government Aircraft, be 
revised to redefine the term aircraft movement as both a landing and a 
takeoff. This would conform to standard industry usage. For the purpose 
of Assurance 27, the FAA has defined an aircraft movement as a landing. 
This methodology has been in place for many years. Changing the 
definition to include takeoffs would require the FAA to assess the 
number of movements in light of this change and the FAA believes that 
the change would not have an overall benefit. Therefore, the FAA 
retains the original language of the assurance.
    ACI-NA also maintained that Assurance 31(a), Disposal of Land, is 
too restrictive regarding the disposal of land originally purchased for 
noise mitigation purposes. The existing assurance requires the sponsor 
to dispose of the land at fair market value when it is no longer needed 
for noise mitigation purposes. ACI-NA suggests that the assurance be 
revised to permit the airport to pursue land disposal as part of a 
commercial and development program. Such development programs tend to 
offer a higher financial contribution than fair market value. The 
existing assurance conforms to the statutory requirements of 49 U.S.C. 
47107(c)(2)(A)(i), which directs an airport sponsor to dispose of the 
land as soon as practicable after the land is no longer needed for 
noise mitigation. The change proposed by ACI-NA is not consistent with 
this statutory provision. Therefore, the FAA will retain the original 
language of the assurance.
    Perry County Airport Authority, Tell City, Indiana suggested 
changes to the Airport Improvement Program (AIP) priority system to 
consider the off airport economic benefits of AIP grant funded 
projects. Since revisions to the AIP grant assurances, and not the 
priority system, are the subject of this notice, no changes to the 
assurances are warranted to address this comment.

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 the 
assurances currently in effect to incorporate the below-noted changes. 
To simplify the discussion, the modifications are grouped based upon 
the sets of assurances that are affected.
    The changes contained in this paragraph affect all three sets of 
assurances. Section C, Subsection 1, ``General Federal Requirements'' 
is amended in each set of assurances to add references to 49 CFR Part 
26 ``Participation by Disadvantaged Business Enterprises in Department 
of Transportation Programs''. Part 26 was issued on February 2, 1999 
and is the new rule covering the DOT DBE program. In addition, the 
reference to OMB Circular A-128 ``Audits of State and Local 
Governments'' is changed to A-133 ``Audits of States, Local 
Governments, and Non-Profit Organizations''. These changes reflect 
recent modifications to the referenced regulations and OMB guidelines.
    References to 49 CFR Part 23 remain in the Airport Sponsor 
Assurances, since portions of the DBE rule were retained in Part 23. 
The title of Part 23 is changed to ``Participation by Disadvantaged 
Business Enterprise in Airport Concessions.''
    The following changes affect only the Airport Sponsor Assurances:

    (a) In Assurance 4, subparagraph a., the beginning is changed to 
read: ``It, a public agency or the Federal government, holds good 
title . . .''
    (b) In Assurance 21, Compatible Land Use, the words ``to the 
extent reasonable'' are placed directly after the words 
``appropriate action''.
    (c) In Assurance 22, subparagraph a is deleted in its entirety 
and replaced with the following: ``a. It will make the airport 
available as an airport for public use on reasonable terms and 
without unjust discrimination to all types, kinds and classes of 
aeronautical activities, including commercial aeronautical 
activities offering services to the public at the airport.''
    (d) Assurance 22, subparagraph B.(2), is revised to begin: 
``charge reasonable, and not unjustly discriminatory . . .''
    (e) For Subsection B1, ``Duration and Applicability'', the 
second sentence is replaced with: ``However, there shall be no limit 
on the duration of the assurances regarding Exclusive Rights and 
Airport Revenue, so long as the airport is used as an airport. There 
shall be no limit on the duration of the terms, conditions and 
assurances with respect to real property acquired with Federal 
funds.''

Modification (c) is made in response to comments, as discussed above. 
The other modifications are made to more accurately reflect current 
statutory language. The following changes affect only the Airport 
Sponsor Assurances, and the Non-Airport Sponsors Undertaking Noise 
Compatibility Program Projects Assurances:

    (a) In Assurance 6, the second sentence beginning ``For noise 
compatibility program projects,'' and ending with ``reasonably 
consistent with the agency's plans regarding the property'' is 
deleted.

    This modification is made to more accurately reflect current 
statutory language.
    The following assurance affects, and is added to the Air port 
sponsor Assurances (as new Assurance 37), Planning Agency Sponsor 
Assurances (as new Assurance 13) and the Non-Airport Sponsors 
Undertaking Noise Compatibility Program Projects Assurances (as new 
Assurance 22). This assurance is added to reflect regulatory 
modifications.

    The recipient shall not discriminate on the basis of race, 
color, national origin, or sex in the award and performance of any 
DOT-assisted contract or in the administration of its DBE program or 
the requirements of 49 CFR Part 26. The recipient shall takke all 
necessary and reasonable steps under 49 CFR Part 26 to ensure non 
discrimination in the award and administration of DOT-assisted 
contracts. The recipient's DBE program, as required by 49 CFR Part 
26 and as approved by DOT, is incorporated by reference in this 
agreement. Implementation of this program is a legal obligation and 
failure to carry out its terms shall be treated as a violation of 
this agreement. Upon notification to the recipient of its failure to 
carry out its approved program, the Department may impose sanctions 
as provided for under Part 26 and may, in appropriate cases, refer 
the matter for enforcement under 18 U.S.C. 1001 and or the Program 
Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801).

    These assurances are issued pursuant to the authority of Title 
49, United States Code.

Complete Text of Modified Provisions

    tTe complete text of each provision, as modified, appears below.

(a) Airport Sponsor Assurance 4, ``Good Title'', subparagraph a.--

    ``It, a public agency or the Federal government, holds good title,

[[Page 45011]]

satisfactory to the Secretary, to the landing area of the airport or 
site thereof, or will give assurance satisfactory to the Secretary that 
good title will be acquired.''

(b) Airport Sponsor Assurance 21--``Compatible Land Use''.

    ``It will take appropriate action, to the extent reasonable, 
including the adoption of zoning laws, to restrict the use of land 
adjacent to or in the immediate vicinity of the airport to activities 
and purposes compatible with normal airport operations, including 
landing and takeoff of aircraft. In addition, if the project is for 
noise compatibility program implementation, it will not cause or permit 
any change in land use, within its jurisdiction that will reduce its 
compatibility, with respect to the airport, of the noise compatibility 
program measures upon which Federal funds have been expended.''

(c). Airport Sponsor Assurance 22, ``Economic Nondiscrimination'', 
subparagraph a.

    ``It will make the airport available as an airport for public use 
on reasonable terms and without unjust discrimination to all types, 
kinds and classes of aeronautical activities, including commercial 
aeronautical activities offering services to the public at the 
airport.''

(d). Airport Sponsor Assurance 22, ``Economic Nondiscrimination'', 
subparagraph b. (2)

``charge reasonable, and not unjustly discriminatory, prices for each 
unit or service, provided that the contractor may be allowed to make 
reasonable and nondiscriminatory discounts, rebates or other similar 
types of price reductions to volume purchasers.''

(e) Airport Sponsor Assurances, Section B, ``Duration and 
applicability'', subsection 1, ``Airport Development or Noise 
Compatibility Program Projects Undertaken by a Public Agency Sponsor''.

    ``The terms, conditions and assurances of the grant agreement shall 
remain in full force and effect throughout the useful life of the 
facilities developed or equipment acquired for an airport development 
or noise compatibility program project, or throughout the useful life 
of the project items installed within a facility under a noise 
compatibility program project, but in any event not to exceed twenty 
(20) years from the date of acceptance of a grant offer of Federal 
funds for the project. However, there shall be no limit to the duration 
of the assurance regarding Exclusive Rights and Airport Revenue so long 
as the airport is used as an airport. There shall be no limit on the 
duration of the terms, conditions and assurances with respect to real 
property acquired with Federal funds. Furthermore, the duration of the 
Civil Rights Assurance shall be specified in the assurances.''

(f) Airport Sponsor Assurance 6 and Non-Airport Sponsors Undertaking 
Noise Compatibility Program Project Assurance 6. ``Consistency with 
Local Plans''

    ``The project is reasonably consistent with plans (existing at the 
time of submission of this application) of public agencies that are 
authorized by the state in which the project is located to plan for the 
development of the area surrounding the airport.''

(g). Airport sponsor Assurance 37, Planning Agency Sponsor Assurance 13 
and Non-Airport Sponsors Undertaking Noise Compatibility Program 
Project Assurance 22. ``Disadvantaged Business Enterprises.''

    ``The recipient shall not discriminate on the basis of race, color, 
national origin or sex in the award and performance of any DOT-assisted 
contract or in the administration of its DBE program or the 
requirements of 49 CFR Part 26. The recipient shall take all necessary 
and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination 
in the award and administration of DOT-assisted contracts. The 
recipient's DBE program, as required by 49 CFR Part 26, and as approved 
by DOT, is incorporated by reference in this agreement. Implementation 
of this program is a legal obligation and failure to carry out its 
terms shall be treated as a violation of this agreement. Upon 
notification to the recipient of its failure to carryout its approved 
program, the Department may impose sanctions as provided under Part 26, 
and may, in appropriate cases, refer the matter for enforcement under 
18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 
U.S.C. 3801).''
    Upon acceptance of the AIP grant by an airport sponsor, the 
assurances become a contractual obligation between the airport sponsor 
and the Federal government.

    Issued in Washington, DC on August 6, 1999.
Catherine M. Lang,
Acting Director, Office of Airport Planning and Programming.
[FR Doc. 99-21458 Filed 8-17-99; 8:45 am]
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