80 FR 46380 - Guidance on the Procedures and Process To Petition the Secretary Under the Airport and Airways Improvement Act

DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration

Federal Register Volume 80, Issue 149 (August 4, 2015)

The Federal Aviation Administration (FAA) is issuing guidance on the procedures and process to petition the Secretary under 49 U.S.C. 47106(c)(1)(A)(ii) of the Airport and Airways Improvement Act of 1982, as amended. Although this provision has been in effect since 1992, the FAA did not receive the first petition under this provision until 2010. 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 Airways Improvement Act.

[Federal Register Volume 80, Number 149 (Tuesday, August 4, 2015)]
[Notices]
[Pages 46380-46382]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-19144]


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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 Airways Improvement Act

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice and request for comments.

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SUMMARY: The Federal Aviation Administration (FAA) is issuing guidance 
on the procedures and process to petition the Secretary under 49 U.S.C. 
47106(c)(1)(A)(ii) of the Airport and Airways Improvement Act of 1982, 
as amended. Although this provision has been in effect since 1992, the 
FAA did not receive the first petition under this provision until 2010. 
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 Airways Improvement 
Act.

DATES: Written comments must be received on or before October 5, 2015.

ADDRESSES: Send comments identified by docket number FAA-2015-2836 
using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room 
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take 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: Fax comments to Docket Operations at 202-493-2251.
    Privacy: The FAA will post all comments it receives, without 
change, to http://www.regulations.gov, including any personal 
information the commenter provides. Using the search function of the 
docket Web site, anyone can find and read the electronic form of all 
comments received into any FAA docket, including the name of the 
individual sending the comment (or signing the comment for an 
association, business, labor union, etc.). DOT's complete Privacy Act 
Statement can be found in the Federal Register published on April 11, 
2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov.
    Docket: Background documents or comments received may be read at 
http://www.regulations.gov at any time. Follow the online instructions 
for accessing the docket or go to the 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.

FOR FURTHER INFORMATION CONTACT: Ms. Daphne Fuller, Assistant Chief 
Counsel. Mailing address: Federal Aviation Administration, 800 
Independence Ave. SW., Washington, DC 20591. Telephone: (202) 267-3199. 
Email address: [email protected]

SUPPLEMENTARY INFORMATION: FAA requests comments, suggestions and 
recommendations that will 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).

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, Pub. L. 102-581. Section 113(b), Public 
Access and Participation with Respect to Airport 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

[[Page 46381]]

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).\2\
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    \2\ As a starting point, the FAA notes that it is unable to 
locate any legislative history for Section 47106(c) that would be 
helpful in determining the Congressional intent with respect with 
requirements of the statute. In interpreting this section, the 
Secretary is guided by context and the common meaning of the terms 
as informed by his understanding of airports and the airport 
development process.
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III. Proposed 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 prescribed 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 Administrator 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 decision, grant-related findings that are preconditions of issuing 
a grant are often made in the environmental 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.\3\ 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 Record of Decision (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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    \3\ 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 a relocated threshold.\4\ 
Removal of a dislocated threshold is not considered a runway 
extension.\5\ 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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    \4\ A relocated threshold leaves the pavement usable only for 
taxiing.
    \5\ 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

[[Page 46382]]

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 and 
if applicable, discretionary grants for non-primary airports. 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 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 as the funds are given to the states as a block 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. Some who 
have sought to use this provision have argued that it should apply to 
State Block Grant projects. The FAA invites comments on this 
interpretation.

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 
record of decision, 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 July 29, 2015.
Elliott Black,
Director, Office of Airport Planning and Programming APP-001.
[FR Doc. 2015-19144 Filed 8-3-15; 8:45 am]
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