[Federal Register Volume 81, Number 85 (Tuesday, May 3, 2016)]
[Notices]
[Pages 26611-26615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10334]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration


Passenger Facility Charge (PFC) Program: Eligibility of Ground 
Access Projects Meeting Certain Criteria

AGENCY: Federal Aviation Administration (FAA); DOT.

ACTION: Notice of Proposed Policy Amendment and Request for Comments

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SUMMARY: The FAA proposes to amend its ``Notice of Policy Regarding the 
Eligibility of Airport Ground Access Transportation Projects for 
Funding Under the Passenger Facility Charge (PFC) Program,'' \1\ 
regarding the requirements for PFC funding of on-airport, rail access 
projects.
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    \1\ 69 FR 6366 (Feb. 10, 2004).

DATES: Comments must be received on or before June 2, 2016. Comments 
that are received after that date will be considered only to the extent 
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practical.

ADDRESSES: You may send written comments by any of the following 
methods. Identify all transmissions with ``Docket Number FAA 2016-
XXXX'' at the beginning of the document.
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery: Deliver comments to Docket Operations in 
Room W12-140 of the West Building Ground Floor at 1200 New Jersey 
Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.
     Fax: (202) 493-2251.
    To read background documents or comments received, go to http://www.regulations.gov at any time or to Room W12-140 on the ground floor 
of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Federal Aviation Administration, 800 
Independence Avenue SW., Washington, DC 20591, telephone (202) 267-
3831; facsimile (202) 267-5302.

SUPPLEMENTARY INFORMATION: Section 123(e) of Public Law 108-176, Vision 
100-Century of Aviation Reauthorization Act (December 12, 2003) 
directed the FAA to publish a policy on the eligibility of ground 
access projects for PFC funding. The FAA's Notice of Policy Regarding 
Eligibility of Ground Access Transportation Projects for Funding Under 
the Passenger Facility Charge Program (2004 Notice), 69 FR 6366, was 
published on February 10, 2004. The 2004 Notice presented the relevant 
statutory requirements as well as FAA's regulations and guidance on 
PFC-funded ground access transportation projects in a consolidated 
form.\2\ As stated in the 2004 Notice, the statutory requirements 
include the significant contribution test for PFC contributions higher 
than $3 per passenger (49 U.S.C. 40117(d)(3)); the Airport Improvement 
Program (AIP) funding test (49 U.S.C. 40117(b)(4)(B); 14 CFR 
158.17(a)(2)) and the airside needs test (49 U.S.C. 40117(d)(4); 14 CFR 
158.17(a)(3)).\3\ Other requirements can be found in 14 CFR part 158; 
FAA Order 5500.1, ``Passenger Facility Charge'' (August 9, 2001); ``The 
AIP Handbook,'' FAA Order 5100.38D (September 30, 2014); and FAA PFC 
records of decision and final agency decisions on about the use of PFC 
revenue to finance airport ground access transportation projects.\4\
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    \2\ 69 FR 6367.
    \3\ Id.
    \4\ Id.
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    For purposes of the policy, airport ground access includes all 
potential surface transportation modes (i.e., road, light and heavy 
rail, and water).
    The 2004 Notice restated the agency's longstanding policy 
requirement from the AIP Handbook, FAA Order 5100.38, that to be AIP 
and/or PFC eligible, an airport ground access transportation project 
must meet the following conditions:
    (1) The road or facility may only extend to the nearest public 
highway or facility of sufficient capacity to accommodate airport 
traffic;
    (2) the access road or facility must be located on the airport or 
within a right-of-way acquired by the public agency; and
    (3) the access road or facility must exclusively serve airport 
traffic.\5\
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    \5\ Id. at 6367.
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    The first and second of these requirements are relatively 
straightforward to apply and evaluate. The third requirement (exclusive 
use) requires more explanation. The 2004 Notice stated that ``exclusive 
use of airport patrons and employees means that the facility can 
experience no more than incidental use by non-airport users.'' \6\ By 
incidental use, the 2004 Notice explains, routine use of the rail 
ground access transportation facility by non-airport users must ``be 
unattractive and non-airport users in fact constitute only a minor 
percentage of total system ridership.'' However, the 2004 Notice also 
stated that ``Exclusive airport use does not mean that any non-airport 
use must be prevented at all costs.'' \7\
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    \6\ Id. at 6368.
    \7\ Id.
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    The 2004 Notice also stated that related facilities, such as 
acceleration and deceleration lanes, exit and entrance ramps, lighting, 
equipment to provide operational control of a rail system or people 
mover, and rail system or people mover stops at intermediate points on 
the airport are eligible when they are a necessary part of an eligible 
access road or facility. In addition, the public agency must retain 
ownership of the completed ground access transportation project. The 
public agency may choose to operate the facility on its own or may 
choose to lease the facility to a local or regional transit agency for 
operation within a larger local or regional transit system.
    During the 12 years that have ensued since publication of the 2004 
Notice, the FAA has consistently applied these criteria. However, as 
FAA's experience in administering the program has developed, it has 
become clear that strictly applying criteria originally designed to 
judge eligibility for on-airport road access projects, to on-airport 
rail projects, can produce financially and practically inefficient 
outcomes. The concept of ``exclusive use'' has been the subject of 
particular interest because of the underlying principle that the 
stakeholders who pay excise taxes on airline passenger tickets or 
passenger facility charges should not have to pay the costs of 
facilities, except to the extent necessary to meet the needs of airport 
patrons and employees. Over the years, the FAA has had to decide 
whether all or portions of proposed on-airport ground access projects 
utilizing rail, or portions thereof, met the policy requirement that

[[Page 26612]]

the rail right-of-way exclusively served airport traffic.
    In the past, both before and after the publication of the 2004 
Notice, the FAA has found that almost all otherwise eligible rail 
stations located on-airport are eligible for PFC funding under agency 
guidelines, because they are exclusively used by airport patrons and 
employees.\8\ However, whether the right of way or guideway itself met 
the historical interpretation of exclusive use depended upon the 
configuration of the rail line (e.g., whether a spur line terminating 
at the airport, or a through-line where the airport station is not the 
terminus). Historically, the FAA has approved funding only for tracks 
or guideways that clearly meet the requirement of exclusive use, by 
virtue of the physical configuration of the rail line.\9\
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    \8\ 64 FR 53763 (Oct. 4, 1999); PFC Record of Decision, 
Application No. 01-08-C-00-PDX (July 20, 2001) at 8.
    \9\ Id.
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    As discussed below, the FAA recently received a request for the use 
of PFC revenue to fund an on-airport ground access rail station and 
related trackage, where the trackage would not exclusively serve 
airport traffic because the rail line would not terminate at the 
airport station but continue beyond the airport property. Our review 
and evaluation of the application has caused the agency to consider 
whether the exclusive use policy is unduly limiting, thereby preventing 
the approval of PFC funds for some airport ground access projects that 
might be consistent with the agency's mission to ``encourage the 
development of intermodal connections on airport property between 
aeronautical and other transportation modes and systems to serve air 
transportation passengers and cargo efficiently and effectively and 
promote economic development.'' 49 U.S.C. 47101(a)(5).\10\
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    \10\ This policy, when completed, will also apply to AIP 
eligibility. However, due to AIP rules that limit funding for 
airport terminal development, rail access projects would not likely 
be funded with AIP funding.
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    Specifically, the agency notes that by extending the rail line 
beyond the airport, thereby providing more transit options for more 
travelers and increasing the utility of the system consistent with the 
agency's mission, the financing options for that system become 
conversely limited. There are fundamental differences between fixed-
guideway systems like rail and public roads. With road access, all that 
is needed to facilitate efficient access to the air transportation 
system is a direct connection from the airport to a main thoroughfare 
or population center, as individual drivers can then choose their own 
path to their destination. The roads used by airport visitors are 
typically part of a broader system that may be funded, constructed, and 
maintained by multiple levels of government or private entities for 
multiple purposes and journeys. Given the open and variable nature of 
road systems, it is critical for the FAA to apply strict eligibility 
criteria that tie the funding of the on-airport project to the 
exclusive use of the airport. Without such criteria, users of the 
infrastructure could benefit from federally-approved funds designed to 
improve access to the national air transportation system without ever 
intending to visit, or actually visiting, the airport. Airport rail 
access projects, however, are planned, funded, constructed, operated, 
and used differently from on-airport road projects. By their nature, 
passenger rail and rail transit aggregate passenger traffic along fixed 
routes with a limited number of stops, each with their own 
justification and purpose. Users of road infrastructure have more 
flexibility and control in determining their route that users of rail, 
who are more limited in their options. Without a very strict exclusive 
use requirement, users of access roads could take advantage of that 
infrastructure, and make a choice to never pass through the airport 
itself. Users of rail, however, have little choice of route and their 
degree of control over that route. Non-airport users are not taking 
advantage of the airport portions of track by choice, but are more 
likely to be passing through the airport because they cannot use rail 
travel to their destination without doing so. The FAA is seeing an 
increasing number of circumstances and physical configurations in which 
strict adherence to the historical interpretation of `exclusive use' 
may not be in the balance of the public interest. Indeed, rigid 
application of the historical policy, designed primarily for road 
access projects, potentially frustrates the FAA's own objectives as set 
forth in 49 U.S.C. 47101(b)(5) and (6).
    Additionally, population and demographic trends have changed since 
the ground access policy was developed. Many airports that were 
originally constructed on the periphery of population centers, now find 
themselves ensconced as suburban growth has extended to and beyond the 
airport. As such, it may no longer make sense for a ``downtown'' rail 
or transit line to terminate at the airport, as there now exists a pool 
of potential users beyond the airport. However, under current policy, 
which equates on-airport rail projects with ``access roads,'' extending 
rail/transit access beyond the airport so that these populations can 
also access the airport precludes the use of federally-approved funds, 
such as PFCs, for significant portions of the project since the line 
would go beyond the airport and no longer serves airport traffic 
exclusively.
    Accordingly, the FAA is considering amending the 2004 Policy so 
that on-airport rail access projects are no longer treated identically 
to access roads.
    The FAA is evaluating whether, consistent with intermodal policy 
under 49 U.S.C. 47101(b)(5) and (6), it should reconsider its policy to 
only permit ground access projects where the airport terminal is the 
terminus of the rail line, or whether PFCs should also be available for 
other types of rail projects. The FAA is soliciting comment on whether 
it should amend its policy to consider rail projects that are located 
on airport, but that may not exclusively serve air traffic, where the 
creation of a separate spur into the airport (in order to ensure 
exclusive use of the right-of-way) would be materially more expensive 
than having the rail line transit the airport property and continue 
beyond and/or would be contrary to the agency's mission to ``encourage 
the development of intermodal connections at airports.'' 49 U.S.C. 
47101(a)(5). The FAA requests comments on several policy alternatives 
for determining when rail projects on airport are eligible for PFC 
funding. After reviewing comments, the FAA may permit some of the 
alternatives to establish PFC eligibility or may permit other 
alternatives raised by commenters. One recent PFC application received 
by the FAA highlights the agency's experience with intermodal 
objectives, and a need for flexibility in using PFCs to fund on-airport 
rail access. In March 2014, the FAA received a PFC application from the 
Metropolitan Washington Airports Authority (MWAA) that included a 
request to use PFCs to help fund both an on-airport station and a 
portion of the on-airport tracks that would be located immediately 
adjacent to the station. Although both segments of the track would be 
located on airport property and connect to the nearest public 
transportation facility, the tracks would not be exclusively used by 
airport patrons and employees, as has been historically required based 
on the FAA's policy, per the 2004 Notice, to analyze rail projects 
under the same framework as access roads.\11\ The tracks would not be 
for the exclusive use of

[[Page 26613]]

airport patrons and employees because the rail line in question would 
not terminate at the airport station, but continue to other 
destinations beyond the airport.
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    \11\ Id.
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    In a July 11, 2014, final agency decision, the FAA approved 
portions of the application and the Dulles Airport Metrorail Station 
project in particular, but deferred consideration of ``the track 
portions of this project (beyond the Airport station footprint).'' \12\
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    \12\ FAA Final Agency Decision dated July 11, 2014, page 22.
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    The FAA's final agency decision stated that ``The FAA is generally 
reviewing the historical interpretation of exclusive use, and 
considering possible refinements in the general eligibility criteria 
relating to track and guideway elements, on airport, in certain 
circumstances.'' \13\
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    \13\ Id.
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    In its consideration of this potential policy change, the FAA must 
be mindful of how such a change could affect future airport ground 
access project approvals. The agency will have to balance the benefit 
to the airport (e.g., increasing ease of access for airport patrons, 
and employees; decreased ground congestion; preserving or enhancing 
capacity, etc.) against the use of PFCs to pay for the trackage or 
guideway where use of that right-of-way would not exclusively serve 
airport traffic as historically interpreted.
    Discussion on Proposed Policy: As a result of its review and 
evaluation of the MWAA application, and past PFC decisions relating to 
airport ground access, the FAA has identified three proposed means by 
which an airport could demonstrate eligible costs of on-airport rail 
trackage to be funded through PFC revenues. These proposals are based 
on the underlying principle that the stakeholders who pay PFCs should 
not have to pay the costs of facilities, except to the extent necessary 
to meet the needs of airport patrons and employees, and also promote 
the agency's statutory mission to expand intermodal links at the 
nation's airports. The three proposals are:
    1. Incremental Cost Comparison: The increased cost of a through-
track solution (compared to a track that bypasses the airport) benefits 
no one but the airport passengers and employees.
    Detailed Discussion of Alternative:
     For this alternative, the public agency could demonstrate 
that the rail line would be built from Point A to Point B regardless of 
whether the airport station is added.
     This approach would compare the actual cost needed to 
serve airport passengers and employees against the cost of the PFC 
project (airport station).
     If not for the service to the airport, the track alignment 
in this section (Section C-D) would typically be shorter, straighter, 
and less expensive than that of a design that includes the Airport 
Station (C-A1-Airport Station-B1-D).

[[Page 26614]]

[GRAPHIC] [TIFF OMITTED] TN03MY16.005

     The approximate incremental cost to serve the airport is 
the difference between the track cost to serve the airport (C-A1-
Station-B1-D) and the cost if the track did not deviate to serve the 
airport (C-D). This incremental cost represents the costs needed to 
directly benefit airport passengers and employees. This incremental 
cost forms the basis of PFC eligibility. However, only that trackage on 
airport property (A1-Airport Station-B1) is eligible for PFC funding.
    2. Separate System Comparison: The project costs of a through-track 
solution is less expensive than a stand-alone people-mover bringing 
passengers in from an off-airport station.
    Detailed Discussion of Alternative:
     The full costs of a hypothetical people mover system 
including the costs of the Airport Station, the transport vehicles, and 
the full costs of the rail line between the Airport Station and A1 
(theoretical airport property line) would typically be eligible for PFC 
funding.

[[Page 26615]]

[GRAPHIC] [TIFF OMITTED] TN03MY16.006

     This alternative would compare the cost of developing a 
hypothetical people mover system (on airport) against the cost of 
bringing the transit line to and through an on-airport station.
    If the airport can demonstrate that the costs to be funded through 
PFC revenues would be less than the cost of building a separate system, 
then the costs to be funded through PFC revenues would be eligible.
    3. Prorate the costs of the trackage on airport property based on 
ridership forecast. If the airport can demonstrate that the costs to be 
funded through PFC revenues would be no more than the prorated costs of 
the trackage on airport property, based on ridership forecasts and the 
percentage representing passengers and employees utilizing the airport, 
then those costs could be considered eligible.

Comments Invited

    The FAA invites interested persons to submit written comments, 
data, or views concerning this proposal. The most helpful comments 
reference a specific portion of the proposal, explain the reason for 
any recommended change, and include supporting data. To ensure the 
docket does not contain duplicate comments, please send only one copy 
of written comments, or if you are filing comments electronically, 
please submit your comments only one time.
    The FAA will file in the docket all comments received, as well as a 
report summarizing each substantive public contact with FAA personnel 
concerning this proposal. Before acting on this proposal, the FAA will 
consider all comments received on or before the closing date for 
comments and any late-filed comments if it is possible to do so without 
incurring expense or delay. The FAA may change this proposal in light 
of comments received.

    Issued in Washington, DC, on April 27, 2016.
Elliott Black,
Director, Office of Airport Planning and Programming.
[FR Doc. 2016-10334 Filed 5-2-16; 8:45 am]
 BILLING CODE 4910-13-P