Proposed Rule2022-19665
Draft FAA Policy Regarding Processing Land Use Changes on Federally Acquired or Federally Conveyed Airport Land
Primary source
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Published
September 15, 2022
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
This notice is directed to airport sponsors, consultants, and other stakeholders regarding a proposed update of the FAA policy and practice regarding processing land use changes on federally acquired or federally conveyed airport land. The updated policy confirms and clarifies the appropriate methods to document FAA's review and approval or consent for such changes, in light of amendments made by Section 163 of the FAA Reauthorization Act of 2018. This policy clarifies: When reviewing proposed land use changes on federally acquired or federally conveyed airport land, the FAA will review the proposal in its entirety without individually examining components of the proposal as aeronautical or non-aeronautical; a letter of approval or consent is required for a non-aeronautical use or mixed use and the approval or consent will remain in effect for the duration of the lease term; the determination of whether the non-aeronautical use is significant will be based on the primary use of the project; FAA will only release Federal obligations when the airport sponsor proposes the sale or conveyance of federally acquired or federally conveyed airport land that meets FAA release requirements; and, FAA letters of approval or consent and releases will be documented on an airport's Exhibit A in accordance with the ARP SOP 3.00--FAA Review of Exhibit `A' Airport Property Inventory Maps. This policy should be used in conjunction with FAA Order 5190.6, Airport Compliance Manual, Chapter 22, Releases from Federal Obligations; and FAA Order 5100.38, Airport Improvement Handbook; and any related policy implemented in conjunction and complementary with Airports Planning and Programming (APP) guidance. Additionally, compliance specialists will consult with FAA Environmental Protection Specialists to determine what, if any, environmental obligations under relevant statutes or regulations may apply to specific land use changes at specific airports.
Full Text
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<title>Federal Register, Volume 87 Issue 178 (Thursday, September 15, 2022)</title>
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[Federal Register Volume 87, Number 178 (Thursday, September 15, 2022)]
[Proposed Rules]
[Pages 56601-56604]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-19665]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Chapter I
[Docket No. FAA-2022-1203]
Draft FAA Policy Regarding Processing Land Use Changes on
Federally Acquired or Federally Conveyed Airport Land
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Proposed policy; request for comments.
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SUMMARY: This notice is directed to airport sponsors, consultants, and
other stakeholders regarding a proposed update of the FAA policy and
practice regarding processing land use changes on federally acquired or
federally conveyed airport land. The updated policy confirms and
clarifies the appropriate methods to document FAA's review and approval
or consent for such changes, in light of amendments made by Section 163
of the FAA Reauthorization Act of 2018. This policy clarifies: When
reviewing proposed land use changes on federally acquired or federally
conveyed airport land, the FAA will review the proposal in its entirety
without individually examining components of the proposal as
aeronautical or non-aeronautical; a letter of approval or consent is
required for a non-aeronautical use or mixed use and the approval or
consent will remain in effect for the duration of the lease term; the
determination of whether the non-aeronautical use is significant will
be based on the primary use of the project; FAA will only release
Federal obligations when the airport sponsor proposes the sale or
conveyance of federally acquired or federally conveyed airport land
that meets FAA release requirements; and, FAA letters of approval or
consent and releases will be documented on an airport's Exhibit A in
accordance with the ARP SOP 3.00--FAA Review of Exhibit `A' Airport
Property Inventory Maps. This policy should be used in conjunction with
FAA Order 5190.6, Airport Compliance Manual, Chapter 22, Releases from
Federal Obligations; and FAA Order 5100.38, Airport Improvement
Handbook; and any related policy implemented in conjunction and
complementary with Airports Planning and Programming (APP) guidance.
Additionally, compliance specialists will consult with FAA
Environmental Protection Specialists to determine what, if any,
environmental obligations under relevant statutes or regulations may
apply to specific land use changes at specific airports.
DATES: The FAA will accept public comments on the proposed policy
statement for 30 days. Comments must be submitted on or before October
17, 2022. The FAA will consider comments on the proposed policy
statement. Any necessary or appropriate revisions resulting from the
comments received will be adopted as of the date of a subsequent
publication in the Federal Register.
ADDRESSES: You may send comments [identified by Docket Number, FAA
2022-1203] using any of the following methods:
<bullet> Government-Wide Rulemaking Website: Go to <a href="http://www.regulations.gov">http://www.regulations.gov</a> and follow the instructions for sending your
comments electronically.
<bullet> Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue SE, Washington, DC 20590.
<bullet> Fax: 1-202-493-2251.
<bullet> Hand Delivery: To Docket Operations, Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue SE,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lorraine Herson-Jones, Manager, Office
of Airport Compliance and Management Analysis, ACO-100, Federal
Aviation Administration, 800 Independence Avenue SW, Washington, DC
20591, telephone (202) 267-3085.
SUPPLEMENTARY INFORMATION:
Background
Airport Sponsor Obligations
Congress authorized the conveyance of federal surplus property and
financial assistance for the acquisition of land where the land is
needed for ``airport purposes.'' See 49 U.S.C. 47107(c)(1). Under the
Airport Improvement Act, ``airport purpose'' means land that ``may be
needed for an aeronautical purpose (including runway protection zone)
or serves as noise buffer land.'' Id. Federally conveyed or federally
acquired land must be used for airport purposes until the FAA approves
or consents to a non-aeronautical use and thereby discharges the
sponsor of that obligation. 49 U.S.C. 47153(a), 49 U.S.C. 47125(a), and
49 U.S.C. 47107(c)(2)(B). In addition, Congress requires the FAA to
submit an annual report listing airports not in compliance with airport
[[Page 56602]]
land use restrictions and identifying necessary corrective action. 49
U.S.C. 47131(a)(5).
Airport sponsors that have accepted federally conveyed or federally
acquired airport land have agreed to comply with certain obligations
and policies included in the federal grant agreement or the federal
conveyance documents regarding the use of the land. Those obligations
derive from multiple statutes, deed covenants and the grant assurances.
Airport sponsors must request FAA written approval or consent to
allow federally conveyed or federally acquired land to be used for non-
aeronautical purposes. 49 U.S.C. 47153(a), 49 U.S.C. 47125(a), 49
U.S.C. 47107(c)(2)(B). The FAA's authority to approve or consent to a
non-aeronautical land use or to release obligations depends upon the
obligating documents, the current and future aeronautical need of the
property, and the proposed use. For example, residential use on airport
property is incompatible with the needs of civil aviation, is
prohibited by FAA policy, and is also contrary to federal obligations.
Limiting the use of aeronautical facilities to aeronautical
purposes ensures that airport facilities are available to meet aviation
demand at the airport. Aviation tenants and aircraft owners should not
be displaced by non-aviation commercial uses that could be conducted
off airport property.\1\ The FAA must consider both the existing and
future aviation demand. Over time, the definition of aeronautical use
has remained relatively unchanged, except when changes were needed to
reflect necessary access for sky diving, and new entrants, such as
Unmanned Aircraft System (UAS) and commercial space. Aeronautical use
accommodates an aeronautical activity. Aeronautical use lands receive
additional benefits. They are afforded the protection of the grant
assurances and may be charged favorable below market aeronautical
rates. The aeronautical use definition protects the federal investment
in aviation and ensures that non-aeronautical uses cannot easily
displace aeronautical uses and thereby diminish the safety, efficiency
and utility of the entire airport.
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\1\ See Policy on the Non-Aeronautical Use of Airport Hangars
(81 FR 38906-38907), June 15, 2016.
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Implications of FAA Reauthorization Act of 2018 (Pub. L. 115-254),
Section 163
In addition, the ``FAA Reauthorization Act of 2018'' (Pub. L. 115-
254), Section 163, changed the FAA's authority to regulate non-
federally acquired or conveyed airport land. The FAA's authority over a
proposed land use change may be limited when it does not impact safe
and efficient operation of aircraft or safety of people and property on
the ground related to aircraft operations or does not adversely affect
the value of prior Federal investments to a significant extent. See
Public Law 115-254 Sec. 163(b)(1)(A) and (d)(1)(B). Section 163(a)
limits the FAA's authority to directly or indirectly regulate an
airport owner or operator's acquisition, use, lease, encumbrance,
transfer, or disposal of land, any facility upon such land, or any
portion of such land or facility. However, Section 163(b) contains
three exceptions and provides the limitations on when Section 163(a) do
not apply:
1. Any regulation ensuring the safe and efficient operation of
aircraft or safety of people and property on the ground related to
aircraft operations; \2\
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\2\ See Section 163(b)(1)(A).
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2. Any regulation imposed with respect to land or a facility
acquired or modified using Federal funding; \3\
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\3\ See Section 163(b)(2).
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3. Any authority contained in a Surplus Property Act instrument of
transfer,\4\ or Section 40117 of title 49 United States Code (Passenger
Facility Charge statute).\5\
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\4\ The FAA may retain approval authority over proposed changes
in the use of lands granted to an airport sponsor from the United
States, including under the Surplus Property Act, 49 U.S.C. 47125,
section 16 of the Federal Airport Act of 1946 Public Law 79-377,
section 23 of the Airport and Airway Development Act of 1970, Public
Law 91-258, section 516 of the Airport and Airway Development Act of
1982, and former military airports conveyed to local public entities
under the congressionally authorized Base Realignment and Closure
program because lands granted under these statutes constitute
federal investments in the airport.
\5\ See Section 163(b)(3).
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In cases covered by 163(b), FAA retains land use approval authority
over the project. The FAA will follow this policy guidance and FAA
Order 5190.6, Airport Compliance Manual.
When FAA lacks approval authority over a particular change in land
use or sale of land, all of the airport sponsor's federal statutory and
grant assurance obligations remain in full force and effect, including
over its remaining airport property. Airport sponsors remain obligated
under the Grant Assurances, FAA's Policies and Procedures Concerning
the Use of Airport Revenue (64 FR 7696, February 16, 1999) (Revenue Use
Policy), and FAA's Policy Regarding Rates and Charges (78 FR 55330,
September 10, 2013).
The sale or lease of the land must be accomplished per the FAA's
Appraisal Standards for the Sale and Disposal of Federally Obligated
Airport Property (Compliance Guidance Letter 2018-3). The land must be
sold or leased at fair market value and the funds must be used in
accordance with the FAA's Revenue Use Policy. See 49 U.S.C.
47107(c)(2)(B). The sponsor should retain sufficient authority over the
disposed land to prevent uses that conflict with its federal
obligations and related requirements or create conditions resulting in
violations of the assurances. To retain this authority, sponsors should
consider using subordination clauses, reservations, covenants, or other
restrictions in a deed or other instrument to protect the public's
right to fly over the land, prohibit obstructions to air navigation or
interference with the flight of aircraft, or assure compatible land
use. The deed or other instrument containing the restrictions should be
recorded in local land records.
The FAA may verify compliance with these requirements through a
financial compliance review, review of supporting documentation, land
use inspection, the enforcement of grant assurances, or other
enforcement mechanisms. The sponsor also has the responsibility to
comply with all federal, state, and local environmental laws and
regulations.
Explanation of Terms
Aeronautical Use--The FAA considers the aeronautical use of an
airport to be any activity that involves, makes possible, is required
for the safety of, or is otherwise directly related to, the operation
of aircraft. Aeronautical use includes services provided by air
carriers related directly and substantially to the movement of
passengers, baggage, mail and cargo on the airport. FAA's Policy
Regarding Rates and Charges, 78 FR 55330 (September 10, 2013).
Examples of aeronautical use include:
1. operational uses such as aerial approaches, navaids, runways,
taxiways, aprons, or other aircraft movement areas;
2. future developmental uses to reserve property interests for
foreseeable aeronautical development (e.g., a planned runway extension
or a planned terminal building development); and
3. essential services that directly support flight operations
(e.g., aircraft maintenance, fueling, and servicing; mail, passenger
and cargo processing facilities; communications and air traffic
control; crash rescue, firefighting, and airport maintenance).
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Airport Purpose: Uses of land that are directly related to the
actual operation or the foreseeable aeronautical development of a
public airport. These are situations where a primary aeronautical
facility has some non-aeronautical components that support that
facility's core aeronautical function within its operation. Examples of
this are:
1. A terminal complex: All components of a terminal complex
(including the building, terminal concessions, terminal parking, and
roads) serve an airport purpose.
2. A fixed base operator (FBO) facility that includes parking and
classrooms. All components serve an airport purpose.
An aeronautical facility serving an airport purpose does not
include certain uses such as aircraft manufacturing plants and
warehouse distribution facilities, which are considered as mixed-use as
defined below.
Non-Aeronautical Use: All other uses that are not considered
aeronautical. Non-aeronautical uses commonly occur on airports, but
these uses do not have the priority or protection of the grant
assurances. There is no federal requirement that obligated airport
sponsors accommodate non-aeronautical uses. This differentiation
between aeronautical and non-aeronautical is intended to protect the
Federal investment in aviation and ensure that non-aeronautical uses
cannot easily displace aeronautical uses and thereby diminish the
safety, efficiency, and utility of the airport.\6\
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\6\ FAA has provided guidance on the temporary non-aeronautical
use of a hangar in FAA's Hangar Use Policy, Policy on the Non-
Aeronautical Use of Airport Hangars, 81 FR 38906, (June 15, 2016)
(<a href="http://www.govinfo.gov/content/pkg/FR-2016-06-15/pdf/2016-14133.pdf">www.govinfo.gov/content/pkg/FR-2016-06-15/pdf/2016-14133.pdf</a>).
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Examples of these include:
1. Car rental facility (stand-alone). All components will be
considered a non-aeronautical use.
2. Hotel and associated parking lot.
3. Warehouse and distribution center.
Mixed Uses--A mixed-use facility contains both aeronautical and
non-aeronautical uses, but the non-aeronautical use is significant and
could be located off airport property. Examples of mixed uses are:
1. Mail distribution centers that are connected to an air cargo
operation.
2. Cargo operations containing non-aeronautical elements such as
office building complexes, sorting facilities, long-term storage
(warehousing), freight forwarders and third-party logistics providers,
certain access infrastructure, or certain truck parking/trailer
facilities (stalls). Most of these are related to other transportation
modes or aspects of the cargo business, but not directly and
substantially to its ``aeronautical activity''.
3. Aircraft manufacturing facility that includes final assembly,
but also significant non-aeronautical uses such as engineering
facilities, research and development facilities, parts manufacturing
and storage, employee parking, or office buildings.
Federally acquired land--This is land that was acquired with
Federal funds, including the Airport Improvement Program (AIP),
Bipartisan Infrastructure Law (BIL), Coronavirus Aid, Relief, and
Economic Security (CARES) Act, Federal Aid to Airports Program (FAAP),
Airport Development Aid Program (ADAP), and as part of an AP-4
agreement.\7\ It also includes sponsor-acquired land that was used for
the sponsor match on a federally funded project or was swapped for land
purchased with federal funds.
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\7\ In some instances, an AP-4 Agreement included a Federal land
purchase. The original agreement and funding should be reviewed to
confirm the source of the funds.
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Federally conveyed land--This is land conveyed to the sponsor by
the Federal government through a written deed of conveyance (also
called a patent) that contained specific restrictions or allowances for
the use of the land. It includes land transferred under:
1. Surplus Property Act, codified in 49 U.S.C. 47151-47153,
including former military airports conveyed to local public entities
under 10 U.S.C. 2687 of the Defense Base Closure and Realignment Act
(BRAC) program or any other Federal laws; and,
2. Section 16 of the Federal Airport Act of 1946, 119 Public Law
79-377, Section 23 of the Airport and Airway Development Act of 1970,
Public Law 91-258, and Section 516 of the Airport and Airway
Development Act of 1982, codified in 49 U.S.C. 47125. These are
sometimes referred to as non-surplus property transfers.
Release of Federal obligations--The formal, written authorization
discharging and relinquishing all or part of the FAA's right to enforce
an airport's contractual or deeded obligations. FAA's authority to
release, waive or amend an obligation is contained in 49 U.S.C.
47153(a) and 47107(h)(2).
Letter of approval or consent--FAA's action on a proposed land use
change may be documented in the form of a letter of approval or a
letter of consent, depending upon the obligating deeds or documents and
the land at issue.\8\ The approval or consent should run concurrent
with the lease term. At the end of the non-aeronautical lease term, the
land reverts to the airport sponsor for aeronautical use.
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\8\ Surplus Property Act deeds often require the FAA's written
consent for a non-aeronautical use, so a letter of consent would be
appropriate. Grant Assurance 5, Preserving Rights and Powers,
requires prior written approval of the Secretary for the sell or
transfer of any property upon which Federal funds have been
expended, which would require a letter of approval. In both cases,
the letters serve the equivalent purpose of documenting the FAA's
action on the sponsor's request.
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Proposed Policy and Request for Comments
In accordance with the above, the FAA proposes to adopt the
following policy statement on processing land use changes on federally
acquired and federally conveyed land. The agency requests public
comments on the proposed policy statement. Comments can be submitted as
described in the ADDRESSES and DATES information in this notice.
Comments received by the due date will be considered in the development
of a final agency policy statement.
The FAA's Policy
The FAA confirms and clarifies its prior policy and practice
regarding the implementation of its statutory responsibility to review
and approve or consent to, or deny, requests for land use changes on
federally acquired or federally conveyed land: \9\ (1) The FAA will
review the sponsor's proposal in its entirety without individually
examining components of the proposal as aeronautical or non-
aeronautical; (2) A letter of approval or consent is required for a
non-aeronautical use or mixed use and the approval or consent will
remain in effect only for duration of the lease term; \10\ (3) the
determination of whether the non-aeronautical use is significant will
be based on the primary use of the project; (4) FAA will only release
federal obligations when the airport sponsor proposes the sale or
conveyance of federally acquired or federally conveyed airport land
that meets FAA release requirements; \11\ and (5) FAA letters of
approval or consent and releases will be documented on the Exhibit A in
accordance with ARP SOP 3.00--FAA Review of Exhibit `A' Airport
[[Page 56604]]
Property Inventory Maps. FAA Order 5190.6, Airport Compliance Manual,
will be updated to reflect this policy guidance.
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\9\ This will also apply in situations where a land use change
impacts the safe and efficient operation of aircraft or safety of
people and property on the ground related to aircraft operations.
\10\ This process will supersede the existing interim and
concurrent use process that was limited to 3-5 years; FAA Order
5190.6, Chapter 22 will be updated to reflect this revised process.
\11\ Sponsors should follow the existing release process in 14
CFR part 155, Release of Airport Property from Surplus Property
Disposal Restrictions and FAA Order 5190.6, Chapter 22.
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Process for Evaluating Land Use Changes
Uses of airport land will fall into one of four categories: (1)
Aeronautical use, (2) Airport Purpose, (3) Non-Aeronautical Use, or (4)
Mixed-Use.
FAA must approve or consent to all non-aeronautical and mixed uses
of federally acquired and federally conveyed land. If the FAA
determines that the proposed use serves an aeronautical use or airport
purpose as defined above, then FAA approval or consent is not required.
The following explains the process when an airport sponsor requests a
change in land use on federally conveyed or federally acquired land:
1. What Sponsors Must Submit
The sponsor's request needs to include the following:
a. documentation on how the land was acquired (i.e., federal
conveyance documents, Federal grant agreements, Exhibit A, etc.);
b. current and future aeronautical demand of the airport and the
land; and
c. proposed non-aeronautical use, including the length of the
lease.
2. FAA's Evaluation of the Request
FAA's determination of whether the non-aeronautical use is
significant, consistent with the term ``mixed uses'' in ``Explanation
of Terms'' in this document, will be made based on the primary use of
the project. The process involves a certain level of discretion by the
FAA and the airport sponsor. Major considerations in granting approval
or consent include:
a. reasonableness and practicality of the sponsor's request,
b. effect of the request on needed aeronautical facilities, and
c. compatibility of the proposal with the needs of civil aviation.
(Note: The residential use of airport property is incompatible with the
needs of civil aviation, is prohibited by FAA policy, and is also
contrary to Federal obligations.)
The distinctions may vary slightly depending on the circumstances
of the situation, such as intermodal functionality, proponent's
business model, project integrity, available airport land, project size
and location, airport planning priorities, and funding requirements and
restrictions. The proposal must benefit the airport and its functions
in support of aeronautical uses and not adversely affect the value of
the Federal investment in the airport and its facilities. 49 U.S.C.
47107(a)(16)(B), 49 U.S.C. 47125(a), and 49 U.S.C. 47152(1).
The use should be compatible with the airport's current or future
aeronautical use or demand. FAA approval shall not be granted if the
FAA determines that an aeronautical demand for the land is likely to
exist within the period of the proposed use, or it compromises the
safety and operation of the airport. FAA consent to or approval of a
non-aeronautical use should only extend for duration of the lease term
and must provide that the land will be returned to aeronautical use at
the end of the term.
3. Documentation of FAA Decision
Upon completion of the review, the FAA will either issue a letter
of approval or letter of consent for the non-aeronautical use or mixed-
use, or deny the request.
The letter of approval or letter of consent must document the FAA's
approval of a non-aeronautical land use on federally acquired or
federally conveyed airport land. This letter will outline the
conditions of the approval or consent and include a requirement that
the land must be available for aeronautical use at the end of the
approval or consent period. Generally, the approval or consent will
remain for the duration of the lease agreement. The letter of approval
or letter of consent does not affect or negate the sponsor's federal
obligations.
The requirement for NEPA should be coordinated with FAA
Environmental Protection Specialists.
All land use changes should be shown on the Exhibit A in accordance
with ARP SOP 3.00--FAA Review of Exhibit `A' Airport Property Inventory
Maps. This includes depicting in a table format the type of use for a
facility, (e.g.: aeronautical, non-aeronautical, mixed-use), and the
approval and expiration dates.
Issued in Washington, DC, on September 7, 2022.
Kevin C. Willis,
Director, Office of Airport Compliance and Management Analysis.
[FR Doc. 2022-19665 Filed 9-14-22; 8:45 am]
BILLING CODE 4910-13-P
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