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)

Page Range		46380-46382
FR Document		2015-19144

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 Issue 149 (Tuesday, August 4, 2015)

[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: Daphne.Fuller@faa.gov

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]
BILLING CODE 4910-13-P

Federal Register / Vol. 80, No. 149 / Tuesday, August 4, 2015 / Notices 46381

has voting representation from the issuing a grant are often made in the and 203). In interpreting Section
communities in which the project is located environmental ROD. Typically, the FAA 47106(c)(1)(A)(ii), it is appropriate to be
or has advised the communities that they demonstrates that the sponsor has consistent with other FAA
have the right to petition the Secretary about satisfied the requirements of Section interpretations of similar terms.
a proposed project[.]
47106(c)(1)(A)(ii) in its Final Defining the term location of an airport
49 U.S.C. Section 47106(c)(1)(A)(ii).2 Environmental Impact Statement (FEIS). consistently with the definition in the
III. Proposed Guidance Generally, the FEIS will contain a most current version of Order 5050.4B
certification from the Airport Sponsor avoids confusion that could be caused
A. Where To File either that each community in which by applying different definitions
The Secretary of the U.S. Department the project is located has a voting depending on the circumstances of the
of Transportation has delegated the member on its airport management inquiry.
responsibility to respond to a petition board, or that each community in which
(2) Location of a Runway
under Section 47106 to the the project is located has been advised
of its right to petition the Secretary. While other FAA documents have
Administrator of the FAA. Accordingly,
Normally the Airport Sponsor will have referred to the location of a runway,
any petition under this statutory
notified each of the communities prior none have defined the term. Because the
provision should be addressed to the
to the publication of an FEIS, allowing term is similar to the term ‘‘location of
Associate Administrator for the Office of
communities at least 30 days to prepare an airport,’’ it is appropriate to define
Airports, 800 Independence Avenue the terms in a similar manner. For
SW., Washington, DC 20591. and file a petition.3 The thirty-day time
to file ensures that communities without purposes of Section 47106(c)(1)(A)(ii),
B. Form and Substance voting representation on the airport location of a runway refers to decisions
The statute does not prescribe any management board have the same approving the site of a new or relocated
specific format prescribed for the ability to object to or provide input on runway where a runway does not
a project prior to a final decision that currently exist.
submission of a petition. The petition
should be a concise statement grant-related preconditions have been (3) Major Runway Extension
describing the project to which the met as those communities that do have
voting representation on the airport Order 5050.4B defines a major
petitioner objects, and clearly indicating runway extension as one that creates a
the petitioner’s specific objection to the management board. Additionally, the
30-day period coincides with the significant impact to an affected
project. The petition must also include environmental resource (including
a description of the result the petitioner Council on Environmental Quality’s
(CEQ) requirement that imposes a 30- noise), or one that permanently removes
is seeking. The petition should normally a relocated threshold.4 Removal of a
not exceed ten (10) pages. Upon day ‘‘cooling off’’ period on federal
agencies between the publication of an dislocated threshold is not considered a
application from the petitioner, the runway extension.5 The definition of
Administrator will consider extending FEIS and a Record of Decision (ROD).
However, the FAA may also provide major runway extension that appears in
the length of a petition for a large, Order 5050.4B, ¶9.l will be used in
complex project. Petitions must be notice that the sponsor has fulfilled the
requirements of Section interpreting Section 47106(c)(1)(A)(ii).
legible and must be signed by the
petitioner(s), who must be a duly 47106(c)(1)(A)(ii) through a Draft EA, a (4) Communities in Which the Project Is
authorized representative(s) of the Final EA, a Draft EIS, or via a separate Located
community (see Section III.D.4 of this Federal Register Notice. This type of
The term community is not defined in
Federal Register notice). The FAA will FAA notice would also start the 30-day
the statute. In the enabling legislation,
time limit for a community to file a
not consider any petition that is not this provision was entitled ‘‘Public
petition pursuant to Section
signed by the petitioner(s). Participation With Respect to Airport
47106(c)(1)(A)(ii).
Projects.’’ The term ‘‘community’’ will
C. Time To File a Petition
D. Definitions be defined as a jurisdictional authority,
A petition filed under section that is, a political subdivision of a state,
47106(c)(1)(A)(ii) should be filed only (1) Location of an Airport
such as a town, township, city, or
after the Airport Sponsor notifies a For purposes of Section county. Defining community as a
community of its right to file a petition. 47106(c)(1)(A)(ii), location of an airport jurisdictional authority is consistent
Petitions to the Secretary pursuant to means approval of an airport at a with the context of Section 47106(c).
Section 47106(c)(1)(A)(ii) must be location where no airport exists. This For example, in subsection (A)(i) the
submitted within thirty (30) days after definition is consistent with the statute speaks of ‘‘objectives of any
the FAA gives notice that the sponsor definition of the term airport location planning that the community has
has presented evidence that the approval found in FAA Order 5050.4B, carried out.’’ Typically, only political
requirements of Section National Environmental Policy Act subdivisions of a state, such as those
47106(c)(1)(A)(ii) have been fulfilled. (NEPA) Implementing Instructions for described above, would have planning
Although the environmental analysis Airport Actions (April 2006). Order authority. Similarly, in the FAA’s
and the grant decisions are separate 5050.4B defines airport location experience, only a jurisdictional
processes and decision, grant-related approval as approval of a new public authority or political subdivision would
findings that are preconditions of use airport at a location where no be considered for voting representation
airport exists. (Order 5050.4B, ¶¶ 9.p on the airport’s governing authority. It is
2 As a starting point, the FAA notes that it is
only in the absence of such voting
tkelley on DSK3SPTVN1PROD with NOTICES

unable to locate any legislative history for Section 3 Should the FAA prepare an Environmental
representation of a jurisdictional
47106(c) that would be helpful in determining the Assessment (EA) for a project to which
Congressional intent with respect with § 47106(c)(1)(A)(ii) applies, or an EIS under MAP–
authority or political subdivision that
requirements of the statute. In interpreting this 21, Section 1319, the time to file a petition to the
section, the Secretary is guided by context and the 4 A relocated threshold leaves the pavement
Secretary will begin to run when the community is
common meaning of the terms as informed by his informed of its right to file such a petition by the usable only for taxiing.
understanding of airports and the airport airport sponsor and will expire 30 days after such 5 Pavement beyond a dislocated threshold is

development process. notification. available for takeoff.

VerDate Sep<11>2014 18:45 Aug 03, 2015 Jkt 235001 PO 00000 Frm 00148 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1

Document Created: 2015-12-18 14:51:54
Document Modified: 2015-12-18 14:51:54

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice and request for comments.
Dates		Written comments must be received on or before October 5, 2015.
Contact		Ms. Daphne Fuller, Assistant Chief
FR Citation		80 FR 46380

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

DEPARTMENT OF TRANSPORTATIONFederal Aviation Administration

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

DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration