[Federal Register Volume 81, Number 61 (Wednesday, March 30, 2016)]
[Notices]
[Pages 17756-17758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07165]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2015-2836]


Guidance on the Procedures and Process To Petition the Secretary 
Under the Airport and Airway Improvement Act

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of final policy.

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SUMMARY: This final policy establishes the procedures and processes to 
petition the Secretary under the Airport and Airway Improvement Act 49 
U.S.C. 47106(c)(1)(A)(ii). The Federal Aviation Administration (FAA) 
issued guidance on the procedures and process to petition the Secretary 
under 49 U.S.C. 47106(c)(1)(A)(ii) in the Federal Register on August 4, 
2015. This guidance is intended to provide detail and clarity about who 
may petition the Secretary, when such a petition may be filed, how the 
petition may be made, and the procedures and process to petition the 
Secretary under this Section of the Airport and Airway Improvement Act.

DATES: Effective Date: The Guidance becomes effective immediately upon 
publication in the Federal Register.

SUPPLEMENTARY INFORMATION: By Federal Register Notice issued on August 
4, 2015 (80 FR 46380), the FAA notified the public of the issuance for 
public comment of proposed Guidance on the Procedures and Process to 
Petition the Secretary under the Airports and Airway Improvement Act. 
FAA requested comments, suggestions and recommendations that would 
assist the agency in assessing and understanding the potential effects 
and implications of providing guidance on the procedures for and 
process of the right to petition the Secretary under 49 U.S.C. Section 
47106(c)(1)(A)(ii). The Notice called for public comments to be 
received by FAA on or before October 5, 2015. No comments were received 
by that date. Other than editorial changes and one minor clarification, 
this final Guidance is identical to the proposed guidance.

I. Background

    In 1982, Congress enacted the Airport and Airway Improvement Act 
(AAIA) (Pub. L. 97-248). Relevant portions of the AAIA are codified in 
49 U.S.C. Chapter 471, Subchapter I, Airport Improvement. The AAIA, 
among other items, established the current-day Airport Improvement 
Program (AIP) that is administered by the FAA's Office of Airports. 
Through the AIP, the FAA provides grants to public agencies--and, in 
limited cases, to private airport owners and operators--for the 
planning and development of public-use airports that are included in 
the National Plan of Integrated Airport Systems (NPIAS). The current 
AIP program built on earlier grant programs that are funded through a 
variety of user fees and fuel taxes. For more information on the 
history of the AIP and predecessor grant programs, see http://www.faa.gov/airports/aip/.
    The AAIA also provides certain prerequisites and conditions that an 
airport sponsor must meet in order to be eligible for consideration of 
AIP funding. In 1992, Congress amended various provisions of the AAIA 
with the Airport and Airway Safety, Capacity, Noise Improvement, and 
Intermodal Transportation Act, Public Law 102-581. Section 113(b), 
Public Access and Participation with Respect to Airport

[[Page 17757]]

Projects, amended Section 509(b)(6)(A) of the AAIA (49 U.S.C. 
47106(c)(1)(A)) by inserting the following:

    (ii) the sponsor of the project certifies to the Secretary that 
the airport management board either has voting representation from 
the communities where the project is located or has advised the 
communities that they have the right to petition the Secretary 
concerning a proposed project.

    The Secretary of the U.S. Department of Transportation has 
delegated the responsibility to respond to a petition under Section 
47106 to the Administrator of the FAA, 49 CFR 1.83(a)(9). The 
Administrator has further delegated the authority to administer this 
provision to the Associate Administrator for the Office of Airports 
(ARP-1). Order 1100.154A.\1\ The requirement for a sponsor to provide 
such certification to the FAA is incorporated into FAA Order 5050.4B, 
National Environmental Policy Act (NEPA) Implementing Instructions for 
Airport Actions, par. 1203.
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    \1\ For clarity, this guidance will continue to use the term 
``Secretary'' in this context.
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II. Purpose

    After receiving a small number of submissions under this provision, 
the Associate Administrator for the Office of Airports has determined 
it would be helpful and appropriate to provide the public with more 
guidance on the procedures and processes associated with this 
provision:

    The Secretary may approve an application under this subchapter 
for an airport development project involving the location of an 
airport or runway or a major runway extension only if the sponsor 
certifies to the Secretary that the airport management board has 
voting representation from the communities in which the project is 
located or has advised the communities that they have the right to 
petition the Secretary about a proposed project[.]

49 U.S.C. Section 47106(c)(1)(A)(ii).

III. Final Guidance

A. Where To File

    The Secretary of the U.S. Department of Transportation has 
delegated the responsibility to respond to a petition under Section 
47106 to the Administrator of the FAA. Accordingly, any petition under 
this statutory provision should be addressed to the Associate 
Administrator for the Office of Airports, 800 Independence Avenue SW., 
Washington, DC 20591.

B. Form and Substance

    The statute does not prescribe any specific format for the 
submission of a petition. The petition should be a concise statement 
describing the project to which the petitioner objects, and clearly 
indicating the petitioner's specific objection to the project. The 
petition must also include a description of the result the petitioner 
is seeking. The petition should normally not exceed ten (10) pages. 
Upon application from the petitioner, the Secretary will consider 
extending the length of a petition for a large, complex project. 
Petitions must be legible and must be signed by the petitioner(s), who 
must be a duly authorized representative(s) of the community (see 
Section III.D.4 of this Federal Register notice). The FAA will not 
consider any petition that is not signed by the petitioner(s).

C. Time To File a Petition

    A petition filed under section 47106(c)(1)(A)(ii) should be filed 
only after the Airport Sponsor notifies a community of its right to 
file a petition.
    Petitions to the Secretary pursuant to Section 47106(c)(1)(A)(ii) 
must be submitted within thirty (30) days after the FAA gives notice 
that the sponsor has presented evidence that the requirements of 
Section 47106(c)(1)(A)(ii) have been fulfilled. Although the 
environmental analysis and the grant decisions are separate processes 
and decisions, grant-related findings that are preconditions of issuing 
a grant are often made in the environmental Record of Decision (ROD). 
Typically, the FAA demonstrates that the sponsor has satisfied the 
requirements of Section 47106(c)(1)(A)(ii) in its Final Environmental 
Impact Statement (FEIS). Generally, the FEIS will contain a 
certification from the Airport Sponsor either that each community in 
which the project is located has a voting member on its airport 
management board, or that each community in which the project is 
located has been advised of its right to petition the Secretary. 
Normally the Airport Sponsor will have notified each of the communities 
prior to the publication of an FEIS, allowing communities at least 30 
days to prepare and file a petition.\2\ The thirty-day time to file 
ensures that communities without voting representation on the airport 
management board have the same ability to object to or provide input on 
a project prior to a final decision that grant-related preconditions 
have been met as those communities that do have voting representation 
on the airport management board. Additionally, the 30-day period 
coincides with the Council on Environmental Quality's (CEQ) requirement 
that imposes a 30-day ``cooling off'' period on federal agencies 
between the publication of an FEIS and a ROD. However, the FAA may also 
provide notice that the sponsor has fulfilled the requirements of 
Section 47106(c)(1)(A)(ii) through a Draft EA, a Final EA, a Draft EIS, 
or via a separate Federal Register Notice. This type of FAA notice 
would also start the 30-day time limit for a community to file a 
petition pursuant to Section 47106(c)(1)(A)(ii).
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    \2\ Should the FAA prepare an Environmental Assessment (EA) for 
a project to which Sec.  47106(c)(1)(A)(ii) applies, or an EIS under 
MAP-21, Section 1319, the time to file a petition to the Secretary 
will begin to run when the community is informed of its right to 
file such a petition by the airport sponsor and will expire 30 days 
after such notification.
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D. Definitions

(1) Location of an Airport
    For purposes of Section 47106(c)(1)(A)(ii), location of an airport 
means approval of an airport at a location where no airport exists. 
This definition is consistent with the definition of the term airport 
location approval found in FAA Order 5050.4B, National Environmental 
Policy Act (NEPA) Implementing Instructions for Airport Actions (April 
2006). Order 5050.4B defines airport location approval as approval of a 
new public use airport at a location where no airport exists. (Order 
5050.4B, ]] 9.p and 203). In interpreting Section 47106(c)(1)(A)(ii), 
it is appropriate to be consistent with other FAA interpretations of 
similar terms. Defining the term location of an airport consistently 
with the definition in the most current version of Order 5050.4B avoids 
confusion that could be caused by applying different definitions 
depending on the circumstances of the inquiry.
(2) Location of a Runway
    While other FAA documents have referred to the location of a 
runway, none have defined the term. Because the term is similar to the 
term ``location of an airport,'' it is appropriate to define the terms 
in a similar manner. For purposes of Section 47106(c)(1)(A)(ii), 
location of a runway refers to decisions approving the site of a new or 
relocated runway where a runway does not currently exist.
(3) Major Runway Extension
    Order 5050.4B defines a major runway extension as one that creates 
a significant impact to an affected environmental resource (including 
noise), or one that permanently removes

[[Page 17758]]

a relocated threshold.\3\ Removal of a dislocated threshold is not 
considered a runway extension.\4\ The definition of major runway 
extension that appears in Order 5050.4B, ]9.l will be used in 
interpreting Section 47106(c)(1)(A)(ii).
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    \3\ A relocated threshold leaves the pavement usable only for 
taxiing.
    \4\ Pavement beyond a dislocated threshold is available for 
takeoff.
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(4) Communities in Which the Project Is Located
    The term community is not defined in the statute. In the enabling 
legislation, this provision was entitled ``Public Participation With 
Respect to Airport Projects.'' The term ``community'' will be defined 
as a jurisdictional authority, that is, a political subdivision of a 
state, such as a town, township, city, or county. Defining community as 
a jurisdictional authority is consistent with the context of Section 
47106(c). For example, in subsection (A)(i) the statute speaks of 
``objectives of any planning that the community has carried out.'' 
Typically, only political subdivisions of a state, such as those 
described above, would have planning authority. Similarly, in the FAA's 
experience, only a jurisdictional authority or political subdivision 
would be considered for voting representation on the airport's 
governing authority. It is only in the absence of such voting 
representation of a jurisdictional authority or political subdivision 
that the statute provides the opportunity to petition the Secretary.
    Defining community as a jurisdictional authority or political 
subdivision is also consistent with the definition of community in 
Order 5050.4B, ]1203(b)(1).
    Accordingly, only a political subdivision of a state that enjoys 
general jurisdiction, or a Tribal government meets the definition of 
community in this context. Political subdivisions of a state that have 
a specific, substantive authority, such as water districts or school 
districts, do not adequately represent the interests of the community 
at large. They are not required to balance the interests of the whole 
community on a wide range of issues. Rather, they seek to promote their 
specific substantive interest. Additionally, water districts or school 
districts would not normally be invited to sit on an airport management 
board. Thus, only a political subdivision of a state which enjoys 
general jurisdiction is a community entitled to file a petition under 
Section 47106(c)(1)(A)(ii).
    Finally, under the statute, a community is only eligible to 
petition under Section 47106(c)(1)(A)(ii) if the project is located in 
the community. If land is disturbed in the community, then the project 
is considered to be located in that community. The courts have also 
provided instruction on when a project is located in a community. In 
City of Bridgeton v. FAA, 212 F. 3d 448 (8th Cir. 2000), the court 
determined that a community in which there was no construction and no 
significant noise impact could not challenge the failure to notify it 
that it could petition the Secretary. Thus, outside the construction 
context, a project may be located in a community only if the project 
will have a significant impact on the community. For example, where a 
project will cause a significant noise impact on a community, the 
project is located in that community. If the project does not create a 
significant impact in the community, the community will have no right 
to petition the Secretary.

E. Other Considerations

    There are currently ten states that participate in the FAA's State 
Block Grant Program (SBGP). Under the program, the State agency 
(usually the aviation division of the state Department of 
Transportation) assumes responsibility for administering AIP grants for 
non-primary airports (including several categories of AIP funds). See 
49 U.S.C. Section 47128. As part of the responsibility, the state 
assumes various responsibilities for the FAA including reviewing and 
approving proposed changes to the Airport Layout Plan (ALP) and 
compliance with the National Environmental Policy Act (NEPA).
    The FAA interprets 49 U.S.C. Section 47106(c)(1)(A)(ii) as not 
being generally applicable to a project approved and administered as 
part of a state block grant. The plain language of this statutory 
provision states that this Section is triggered when a proponent 
submits a project grant application to the FAA. In the case of the 
SBGP, no such request is made because most of the funds are given to 
the states as a block (except for AIP Discretionary funds), and the 
state assumes responsibility for administering those funds. 
Participants in the SBGP are required to engage communities according 
to FAA guidance and to circulate the draft EA if warranted. However, in 
cases where the project may involve a request for AIP Discretionary 
funding, or other extraordinary circumstances, the FAA may determine 
that a community meeting the requirements set forth herein may have the 
right to petition the Secretary in connection with an AIP grant. 
Petitions involving a SBGP project must include facts describing the 
extraordinary circumstances that they believe justify the Secretary 
entertaining the petition.

F. Agency Response

    The FAA will provide a written response to a petition to the 
Secretary. The FAA may respond by outlining the issues raised in the 
petition and providing its responses either within the environmental 
ROD, or it may elect to respond in a separate document.

    Authority:  49 U.S.C. 47106(c)(1)(A)(ii), 14 CFR part 1.

    Issued in Washington, DC, on March 22, 2016.
Elliott Black,
Director, Office of Airport Planning and Programming APP-001.
[FR Doc. 2016-07165 Filed 3-29-16; 8:45 am]
 BILLING CODE 4910-13-P