Rule2023-27017
Policy Regarding Processing Land Use Changes on Federally Acquired or Federally Conveyed Airport Land
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 8, 2023
Effective
January 8, 2024
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
This action finalizes the FAA's policy on the FAA's procedures for processing land use changes on federally acquired or federally conveyed airport land or 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. These changes were needed because of legislative changes made in the FAA Reauthorization Act of 2018. The policy is intended to simplify the procedures required to make a land use change and to protect airport land by limiting the use of releases to the actual sale or disposal of airport property.
Full Text
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<title>Federal Register, Volume 88 Issue 235 (Friday, December 8, 2023)</title>
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[Federal Register Volume 88, Number 235 (Friday, December 8, 2023)]
[Rules and Regulations]
[Pages 85474-85479]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27017]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. FAA-2022-0432]
14 CFR Chapter I
Policy Regarding Processing Land Use Changes on Federally
Acquired or Federally Conveyed Airport Land
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of final policy.
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SUMMARY: This action finalizes the FAA's policy on the FAA's procedures
for processing land use changes on federally acquired or federally
conveyed airport land or 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. These changes
were needed because of legislative changes made in the FAA
Reauthorization Act of 2018. The policy is intended to simplify the
procedures required to make a land use change and to protect airport
land by limiting the use of releases to the actual sale or disposal of
airport property.
DATES: This policy is effective January 8, 2024.
FOR FURTHER INFORMATION CONTACT: Kevin C. Willis, Director, Airport
Compliance and Management Analysis, ACO-1, Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591,
telephone (202) 267-3085; facsimile: (202) 267-4629.
ADDRESSES: You can get an electronic copy of this Policy and all other
documents in this docket using the internet by:
(1) Searching the Federal eRulemaking portal (<a href="https://www.regulations.gov">https://www.regulations.gov</a>)
(2) Visiting FAA's Regulations and Policies web page at (<a href="http://www.faa.gov/regulations/policies">http://www.faa.gov/regulations/policies</a>); or
(3) Accessing the Government Publishing Office's web page at
(<a href="http://www.gpoaccess.gov/index.html">http://www.gpoaccess.gov/index.html</a>).
You can also get a copy by sending a request to the Federal
Aviation Administration, Office of Airport Compliance and Management
Analysis, 800 Independence Avenue SW, Washington, DC 20591, or by
calling (202) 267-3085. Make sure to identify the docket number, notice
number or amendment number of this proceeding.
SUPPLEMENTARY INFORMATION:
Authority for the Policy: This document is published under the
authority described in Title 49 of the United States Code, Subtitle
VII, part B, chapter 471, section 47122(a).
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.
Background
Congress authorized financial assistance for an airport development
project to acquire land, including land for future airport development
(See 49 U.S.C. 47104, 47107(c)(2)). Under the Airport Improvement Act,
land is needed for an airport purpose ``if the land may be needed for
an aeronautical purpose (including runway protection zone) or serves as
noise buffer land, and revenue from interim uses of the land
contributes to the financial self-sufficiency of the airport.'' (See 49
U.S.C. 47107(c)(1)). Congress also authorized the conveyance of Federal
non-surplus and surplus property for
[[Page 85475]]
developing, improving, operating or maintaining a public airport. (See
49 U.S.C. 47125, 47151).
Federally conveyed or federally acquired land must be used for
airport purposes until the FAA approves or consents to a change in land
use. (See 49 U.S.C. 47153(a), 47125(a), and 47107(c)(2)(B)). In
addition, Congress requires the FAA to submit an annual report listing
airports not in compliance with airport land use restrictions and
identifying necessary corrective action. (49 U.S.C. 47131(a)(5)).\1\
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\1\ 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.
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The FAA's decision to approve or consent to a non-aeronautical or
mixed land use or to release Federal obligations depends on the
obligating documents, the current and future aeronautical need for the
property, and the requested land use. For example, residential use of
airport property is incompatible with the needs of civil aviation.
Incompatible land uses on the airport are prohibited by FAA policy and
are 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.\2\ The FAA must consider
both the existing and future aviation demand.
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\2\ 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
Through the ``FAA Reauthorization Act of 2018'' (Pub. L. 115-254),
Section 163, Congress 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 (1) it does not impact the
safe and efficient operation of aircraft or the safety of people and
property on the ground related to aircraft operations or (2) does not
adversely affect the value of prior Federal investments to a
significant extent. (See Pub. L. 115-254, section 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 that the limitations of
Section 163(a) do not apply to the following:
1. Any regulation ensuring the safe and efficient operation of
aircraft or the safety of people and property on the ground related to
aircraft operations; \3\
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\3\ 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; \4\
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\4\ See section 163(b)(2).
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3. Any authority contained in a Surplus Property Act instrument of
transfer,\5\ or section 40117 of title 49 United States Code (Passenger
Facility Charge statute).\6\
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\5\ 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.
\6\ See section 163(b)(3).
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When the FAA retains approval authority over a proposed land use
change or sale, the FAA will follow this policy guidance and FAA Order
5190.6, Airport Compliance Manual. When the FAA does not have approval
authority over a proposed land use change or sale, all of the airport
sponsor's Federal statutory and grant assurance obligations remain in
full force and effect, including over its remaining airport property.
In addition, airport sponsors remain obligated under 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). Any land that is to be sold
or leased must be 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 airport 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 Grant Assurances. To retain this authority, airport
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, request and review of supporting
documentation, enforcement of grant assurances, or other enforcement
mechanisms. The airport sponsor also has the responsibility to comply
with all Federal, state, and local environmental laws and regulations.
In September 2022, the FAA issued a Draft FAA Policy Regarding
Processing Land Use Changes on Federally Acquired or Federally Conveyed
Airport Land and requested comments. (87 FR 56601, September 15, 2022).
The FAA received comments from 29 commenters representing airport
sponsors, industry groups, and airport consultants.
Discussion of Public Comments
The following summary of comments reflects the major issues raised
and does not restate each comment received. The FAA considered all
comments received even if not specifically identified and responded to
in this notice.
1. Comment: Commenters asked for clarification on the purpose and
reason for the policy clarification.
Response: As the steward of federally acquired and federally
conveyed land, FAA's role is to ensure that such land is available to
serve aviation needs. New aviation entrants (air mobility, UAS, etc.)
are changing the nature of aviation and their ability to use land
previously deemed inaccessible due to its distance from the runway and
taxiway environment is changing. To ensure land is available to serve
these growing aviation needs, the FAA, as a general policy, will only
release Federal obligations when land is to be sold or conveyed. This
policy allows airport sponsors to seek approval for non-aeronautical
land use in excess of 3-5 years without a release of obligations.
2. Comment: Commenters asked whether the policy applies to land
acquired for noise compatibility.
Response: This policy does not apply to land acquired for noise
compatibility purposes. FAA's Noise Land Management and Requirements
for Disposal of Noise Land or Development Land Funded with AIP issued
June 2014 (<a href="http://www.faa.gov/sites/faa.gov/files/airports/environmental/policy_guidance/Noise-Land-Management-Disposal-AIP-Funded-Noise-Development-Land.pdf">www.faa.gov/sites/faa.gov/files/airports/environmental/policy_guidance/Noise-Land-Management-Disposal-AIP-Funded-Noise-Development-Land.pdf</a>) provides guidance on disposal and retention of
noise land through the Noise Land Reuse Plan.
[[Page 85476]]
3. Comment: Commenters are concerned that the duration of FAA's
approval or consent to a land use change will be limited to the length
of a lease and create additional workload.
Response: The final policy clarifies that the duration of the FAA's
approval or consent will be dependent on the circumstances at the
airport. It may be permitted for the duration of the approved use so
long as the land is not needed for aeronautical use. The duration is
not limited to an individual lease term.
4. Comment: Commenters asked whether FAA will now review and
approve leases.
Response: The policy does not change the FAA's approach to the
review of an airport sponsor's leases. The FAA does not approve leases
but will continue to review some leases, as needed, to ascertain
compliance with an airport sponsor's Federal obligations.
5. Comment: Commenters asked whether aeronautical or airport
purpose land uses need FAA consent or approval?
Response: Aeronautical and airport purpose land uses do not need
FAA approval or consent for the use. However, airport sponsors are
reminded that other approvals, such as airspace, may still be required.
6. Comment: Commenters asked FAA to provide a timeframe for
completing a land use change review.
Response: FAA recommends that airport sponsors work closely with
their Region/ADO to determine the timeframes for completing a land use
change review. Each situation is unique and the timeframe is dependent
upon the level of documentation submitted and airport-specific
information.
7. Comment: Commenters asked if there is an appeal process if a
sponsor's request is denied.
Response: Similar to an airport sponsor's request for a release, if
the request is denied, the airport sponsor is encouraged to work with
Region/ADO to find possible alternatives that will meet their needs,
while protecting the aeronautical use of the airport. A Region/ADOs
determination is not a final agency decision. The Region/ADO can
coordinate with ACO-100 as needed.
8. Comment: Commenters asked if the policy is retroactive and if
existing uses will be grandfathered.
Response: This policy is not retroactive. It will not apply to land
that FAA has previously released for non-aeronautical use under a
Letter of Release or a Deed of Release. However, existing interim/
concurrent use approvals will be reviewed in accordance with this
policy when the existing approval expires.
9. Comment: Commenters asked when under this policy must airport
sponsors update their Exhibit A.
Response: Under this policy, an airport sponsor's Exhibit A must be
updated when the FAA issues a letter of consent or approval or when the
property is released for sale or conveyance off the airport.
10. Comment: Commenters asked if the designation of a non-
aeronautical area on the Airport Layout Plan (ALP) mean the land use
has been approved.
Response: The designation of non-aeronautical areas on the ALP does
not mean a particular land use has been approved. These areas can still
be shown as proposed on the ALP but must be updated on the Exhibit A
once the FAA has approved or consented to the use.
11. Comment: Commenters asked whether NEPA applies to FAA's
issuance of letters of consent or approval.
Response: These comments are not within the scope of the policy and
have been shared with the appropriate office for consideration. Airport
sponsors should coordinate with their local FAA Region/ADO to determine
their National Environmental Policy Act (NEPA) obligations.
12. Comment: Commenters asked how this policy relates to the FAA's
existing Section 163 guidance?
Response: This policy does not change FAA's review and approval
authority for ALPs or land use under Section 163. The policy only
addresses how land use approvals are processed after FAA has determined
we retain approval authority.
13. Comment: Commenters noted that 49 U.S.C. 47107(c)(1)(A)
includes ``(ii) revenue from interim uses of the land [that]
contributes to the financial self-sufficiency of the airport . . .''
and should not be omitted from the definition of Airport Purpose.
Response: In the final policy, the FAA has included 49 U.S.C.
47107(c)(1)(A)(i) and (ii) in the definition of airport purpose.
14. Comment: Commenters asked for additional detail on how the FAA
will assess the primary purpose of a requested land use change. Some
commenters suggested square footage, customer base, nature of the
structure, etc.
Response: The FAA recognizes that there are numerous ways a
requested land use change can be evaluated to determine its primary
purpose. Airport sponsors should work closely with their Region/ADO to
complete the land use change review.
15. Comment: Some Commenters requested a response to specific
individual examples at their airport.
Response: The FAA recognizes that land use decisions must be based
on the specific use identified and the situation at the airport. The
FAA has provided general guiding examples, but the determination is
dependent on the specific facts of a situation and should be discussed
with the local Region/ADO.
III. Final Policy
The FAA is adopting the following FAA policy and practice regarding
processing land use changes on federally acquired or federally conveyed
airport land: \7\ (1) in reviewing an airport sponsor's request for a
land use change on federally acquired or federally conveyed airport
land, the FAA will review the primary purpose of the requested land
use, rather than examining each individual component of the request as
aeronautical or nonaeronautical; (2) FAA written approval or consent is
only required for a change in land use to non-aeronautical use, mixed
use, or for interim uses of the land that contribute to the financial
self-sufficiency of the airport; (3) the duration of the FAA's approval
or consent will be dependent on the circumstances at the airport and
may be permitted for the duration of the approved use; \8\ (4) The FAA
will only release Federal obligations when the airport sponsor requests
a release for the sale or conveyance of airport land that meets FAA
release requirements, such a release must have ACO-100 concurrence; \9\
and (5) FAA letters of approval or consent will be documented on the
Exhibit A.
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\7\ This also applies in situations where a land use impacts the
safe and efficient operation of aircraft or safety of people and
property on the ground related to aircraft operations.
\8\ This process supersedes the existing interim and concurrent
use process discussed in FAA Order 5190.6B, Airport Compliance
Manual, 2009, that was limited to 3-5 years.
\9\ Airport 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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Applicability
This policy applies to all requests for land use changes on
federally acquired or federally conveyed land as well as when a land
use change impacts the safe and efficient operation of aircraft or the
safety of people and property on the ground related to aircraft
operations.
[[Page 85477]]
1. General
This policy and practice is intended to ensure that the Federal
investment in federally obligated airports is protected by making the
use of aeronautical land and facilities available for aeronautical
purposes and to ensure that airport land and facilities are available
to meet the current and future aeronautical demand of the airport.
Aeronautical users should not be displaced by non-aviation commercial
uses, especially those that could be conducted off airport property.
2. 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 at the airport. (FAA's Policy
Regarding Rates and Charges, 78 FR 55331, September 10, 2013).
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. Land on which an
aeronautical activity takes place is by its nature aeronautical use
(e.g., drop zone, apron, hangar).
The FAA confirms the use of a narrow definition of what constitutes
an ``aeronautical use'' for land use purposes. Congress authorized
financial assistance for an airport development project to acquire
land, including land for future airport development (See 49 U.S.C.
47104, 47107(c)(2)(B)). Congress also authorized the conveyance of
Federal non-surplus and surplus property for developing, improving,
operating or maintaining a public airport. (See 49 U.S.C. 47125,
47151). The Congressional intent is furthered by a policy that requires
aeronautical land to be used for aeronautical purposes unless the FAA
discharges the airport sponsor of that obligation. Limiting the use of
aeronautical land and facilities for aeronautical purposes ensures that
airport land and facilities are available to meet the aeronautical
demand of the airport, including future demand. Also, aeronautical
users should not be displaced by non-aviation commercial uses,
especially those that could be conducted off airport property.
Aeronautical use lands receive additional protection and benefits.
They are afforded the protection of the grant assurances and
aeronautical users may be charged favorable below market aeronautical
rates. Overall, a narrower definition of aeronautical use helps protect
the Federal investment in aviation by ensuring that nonaeronautical
uses cannot easily displace aeronautical uses and thereby diminish the
safety, efficiency, and utility of the entire airport.
Examples of aeronautical use include:
1. Operational uses such as aerial approaches, navaids, runways,
taxiways, aprons, hangars, 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).
Airport Purpose: Uses of land that are (1) directly related to the
actual operation or the foreseeable aeronautical development of a
public airport and (2) whose nonaeronautical components do not conflict
with existing or foreseeable aeronautical needs/demands. These uses do
not require FAA consent or approval of land use. These are situations
where a primary aeronautical facility has some nonaeronautical
components, including parking, that support that facility's core
aeronautical function within its operation. These nonaeronautical
components should be paying a fair market value lease rate. Examples of
this include:
1. A terminal complex: All components of a terminal complex
(including the building, terminal concessions, airline ticket and car
rental counters, parking, and roads);
2. A fixed base operator (FBO) facility, including parking and
classrooms;
3. Parking associated with the airport purpose (e.g., passenger and
employee parking);
4. Airport service roads; and
5. Truck parking for air cargo processing facilities when it is
directly related to moving inbound and outbound air cargo on and off
the airport.
This does not include certain uses, such as aircraft manufacturing
plants and warehouse distribution facilities, which are considered as
mixed-use as defined below.
In addition, airport purpose includes land that may be needed in
the future for an aeronautical purpose and revenue from an interim use
of the land contributes to the financial self-sufficiency of the
airport. Such interim uses require FAA approval or consent as described
below.
Non-Aeronautical Use: All other uses that are not considered
aeronautical or airport purpose. These uses will require FAA consent or
approval of the land use. Examples of non-aeronautical use include:
1. Car rental facility (stand-alone);
2. Hotel;
3. Warehouse and distribution center; and
4. Parking associated with non-aeronautical uses (e.g., customer
and employee parking for hotel, warehouse and distribution center, car
rental).
Non-aeronautical uses commonly occur at 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.\10\
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\10\ 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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Mixed Uses--A mixed-use facility contains both aeronautical and
non-aeronautical uses, but the non-aeronautical use could be located
off airport property. These uses will need FAA consent or approval for
the land use. The FAA will take into account whether the non-
aeronautical component will impact existing uses or conflict with
existing or foreseeable aeronautical needs/demand. Examples of mixed
uses include:
1. Mail distribution centers that are connected to an air cargo
operation;
2. Cargo operations where the primary purpose of the operation goes
beyond air cargo processing facilities and expands into 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,
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
[[Page 85478]]
manufacturing and storage, or office buildings; and
4. Parking associated with the mixed use (e.g., customer and
employee parking for mail distribution, cargo operations, aircraft
manufacturing).
Federally acquired land--This is land that was acquired with
Federal funds including the Airport Improvement Program (AIP), Federal
Aid to Airports Program (FAAP), Airport Development Aid Program (ADAP),
and as part of an AP-4 agreement.\11\ It also includes airport sponsor-
acquired land that was used for the airport sponsor match for an AIP
project or was swapped for AIP purchased land.
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\11\ 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 airport
sponsor by the Federal government through a written deed of conveyance
(sometimes called a patent or included in a lease termination, etc.)
that contained specific restrictions or allowances for the use of the
land. The FAA recognizes that some Federal conveyance documents
specifically permit non-aeronautical use for revenue production or a
specific identified use--in these instances, there is not a change in
land use. Federally conveyed land 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. The 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 consent or approval--The FAA's action on a proposed land
use change will be documented in the form of a letter of consent or a
letter of approval, depending upon the obligating deeds or documents
and the land at issue. Surplus Property Act deeds require the FAA's
written consent for a non-aeronautical use, so a letter of consent is
appropriate.
Alternatively, Grant Assurance 5, Preserving Rights and Powers,
requires prior written approval of the Secretary for the sale 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
airport sponsor's request. These letters also serve to approve interim
uses for revenue production on property acquired for an airport
purpose.
3. 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.
The airport sponsor must obtain FAA approval or consent for all
non-aeronautical and mixed uses of federally acquired or federally
conveyed land.\12\ FAA approval or consent is not needed for a proposed
land use that meets the definition of aeronautical use or airport
purpose. The following explains the process when an airport sponsor
requests a change in land use on federally conveyed or federally
acquired land:
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\12\ The airport sponsor must obtain FAA approval of interim
land uses for revenue production on property acquired for an airport
purpose (See 49 U.S.C. 47107(c)(1)).
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A. What Airport Sponsors Must Submit
The airport sponsor's request needs to include the following: \13\
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\13\ An airport sponsor may reference documents already
submitted as part of a review under Section 163 and will not need to
resubmit unless there have been changes or information is missing.
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1. identification of the property and documentation on how the land
was acquired (i.e., Federal conveyance documents, Federal grant
agreements, Exhibit A);
2. current use of the property;
3. current and future aeronautical demand of the airport and the
property (e.g., current Master Plan, forecasts, hangar waitlists); and,
4. proposed use of the property, including the anticipated length
of the use.
B. FAA's Evaluation of the Request
Upon receipt of all documents, the FAA will promptly review the
airport sponsor's request. The review involves a certain level of
discretion by the FAA and the airport sponsor. The FAA may request
additional information regarding the proposal. Major considerations in
granting approval or consent include the:
1. Reasonableness and practicality of the airport sponsor's
request,
2. The effect of the request on needed aeronautical facilities,
3. The net benefit to civil aviation, and
4. Compatibility of the proposal with the needs of civil aviation.
(Incompatible land uses on the airport, including residential use, are
prohibited by FAA policy and are contrary to federal obligations.)
The distinctions may vary slightly depending on the circumstances
of the situation, such as intermodal functionality, business model,
project integrity, available airport land, project size and location,
airport planning priorities, and funding requirements and restrictions.
The land use must benefit the airport and its functions in support of
aeronautical uses and must not adversely affect the value of the
federal investment in the airport and its facilities. 49 U.S.C.
47107(a)(16)(B), 47125(a), and 47152(1).
The land use should be compatible with the airport's current or
future aeronautical use or demand. FAA approval will not be granted if
the FAA determines that an aeronautical demand for the land is likely
to exist within the period of the requested land use. The duration of
FAA's approval or consent will depend on the circumstances at the
airport and may be permitted for the duration of the approved use. The
approval or consent must state that the land will be returned to
aeronautical use at the end of the approved period.
C. Documentation of FAA Decision
Upon completion of the review, the FAA will either issue a letter
of approval or consent for the use or deny the request. Where possible,
the FAA may issue the letter of approval or consent concurrently with a
Section 163 determination letter.
The letter of approval or consent will document the FAA's
determination of the 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 in effect for
the duration of the approved use. The letter of approval or letter of
consent does not affect or negate the airport sponsor's Federal
obligations.
The requirement for NEPA should be coordinated with the Regions/ADO
Environmental Protection Specialist (EPS).
[[Page 85479]]
After an airport sponsor receives an FAA letter of consent or
approval, it will update the Exhibit A.
Issued in Washington, DC, on December 5, 2023.
Kevin C. Willis,
Director, Office of Airport Compliance and Management Analysis.
[FR Doc. 2023-27017 Filed 12-7-23; 8:45 am]
BILLING CODE 4910-13-P
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</html>Indexed from Federal Register on December 8, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.