[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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