[Federal Register Volume 70, Number 59 (Tuesday, March 29, 2005)]
[Notices]
[Pages 15980-15982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6072]


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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