Airport Improvement Program Grant Assurances; Proposed Modifications and Opportunity to Comment

The Secretary must receive certain assurances from a sponsor (applicant) seeking financial assistance for airport planning, airport development, noise compatibility planning or noise mitigation under Title 49, U.S.C., as amended. These assurances are submitted as part of a sponsor's application for Federal assistance and are incorporated into all grant agreements. As need dictates, these assurances are modified to reflect new Federal requirements. Notice of such proposed modifications is published in the Federal Register and an opportunity is provided for comment by the public. The current assurances were published on February 3, 1988, at 53 FR 3104 and amended on September 6, 1988, at FR 34361, on August 29, 1989, at 54 FR 35748 on June 10, 1994 at 59 FR 30076, on January 4, 1995, at 60 FR 521, and on June 2, 1997, at 62 FR 29761.

Discussion of Comments Received in Response to the Notice of Modification of Airport Improvement Grant Assurances

On June 2, 1997, the Federal Aviation Administration published in the Federal Register (62 FR 29761) modifications to the Airport Improvement Program grant assurances. The agency asked for public comment by July 2, 1997. The FAA received a total of four comments on the notice of proposed modifications of the grant assurances. Only one of the four comments was received prior to the close of the comment period on July 2. However, because only a few comments were received and this process is not a formal rulemaking procedure, the FAA has decided to consider all comments. Comments were received from Airports Council International, North America (ACI-NA); the City of Houston Airport System, Houston, Texas; the City of Mesa, Arizona; and the Perry County Airport Authority, Tell City, Indiana. ACI-NA recommended that Assurance 3, Sponsor Fund Availability, be modified to read ``has or will have sufficient funds''. The ACI-NA recommendation would allow the sponsor more time to accumulate the local matching share for Airport Improvement Program (AIP) projects. This would give the airport sponsor until the date of the grant award to have local funds available. The statute requires airport sponsors to have sufficient funds available at the time the grant application is submitted. Title 49 Section 47106(a)(3) states, ``The Secretary of Transportation may approve an application under this subchapter for a project grant only if the Secretary is satisfied that enough money is available to pay the project costs that will not be paid by the United States Government under this subchapter''. We believe that it is reasonable for an airport to affirm the availability of funds at the time of grant request. Therefore, the final notice retains the existing language in the assurance. The City of Mesa, Arizona, requested clarification about the need for public hearings required by Assurance 9, Public Hearings. The City of Mesa wanted to know what constitutes a major runway extension, and how much of an increase in either runway length or runway weight bearing capacity requires a public hearing. Assurance 9 requires that the sponsor conduct a public hearing for projects involving the location of an airport, an airport runway, or a major runway extension. The assurance, as currently written, satisfies the provisions of Title 49 United States Code, Section 47106(c)(1) regarding environmental requirements, and does not need to be revised. Section 1506.6 of the Council on Environmental Quality (CEQ) Regulations sets forth procedures for public involvement in projects affecting the environment. FAA Order 5050.4A describes environmental requirements in detail, including the definition of a major runway extension. These orders should be consulted regarding public hearing requirements. The City of Houston, Texas expressed concerns about the change in language of Assurance 22(a), Economic Non-Discrimination, effective June 2, 1997. The City of Houston maintained that the change in language may encourage more complaints being filed against the airport operator for violation of the Assurance 22(a). As an example, the city cited situations in which individuals have attempted to fuel general aviation aircraft from the back of pick-up trucks while asserting their right to do so under Assurance 22(a). Houston suggested that the assurance be revised to require all parties engaging in aeronautical activity be qualified and meet applicable safety standards. The purpose of the revision to Assurance 22(a) was to clarify the assurance's application to the full range of aeronautical activities. The comment has caused the FAA to review the new wording of the assurance and the FAA believes that the new wording is not clear. We have decided to change the language to eliminate any confusion. The revised assurances will read as follows: ``It will make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport.'' Furthermore, the FAA believes that an airport sponsor's minimum standards should reflect local safety requirements and quality of service requirements so long as these are reasonable, relevant to the activity, and applied without unjust discrimination. The typographical error in Assurance 22(b)(2), Economic Non- Discrimination, has been noted and corrected. The sentence will be changed to read,

``charge reasonable, and not unjustly discriminatory, prices . . .'' ACI-NA also requested that Assurance 26, Reports and Inspections, be revised to permit airports to file their intergovernmental transfer reports as soon as practicable instead of leaving the filing deadline to the Secretary's discretion. Title 49 Section 47107(k) requires that the Secretary provide Congress with an annual summary of the reports submitted under 47107(a)(19). The ACI-NA proposed change would pose problems for the FAA in fulfilling its reporting requirements to Congress. Establishing the filing deadline at the Secretary's discretion will provide the flexibility for the Agency to collect the reports while assisting those airports who need more time to prepare their financial statements. FAA has not been convinced that the filing requirement of Assurance 26 needs to be changed. ACI-NA suggested that Assurance 27, Use by Government Aircraft, be revised to redefine the term aircraft movement as both a landing and a takeoff. This would conform to standard industry usage. For the purpose of Assurance 27, the FAA has defined an aircraft movement as a landing. This methodology has been in place for many years. Changing the definition to include takeoffs would require the FAA to assess the number of movements in light of this change and the FAA believes that the change would not have an overall benefit. Therefore, the FAA retains the original language of the assurance. ACI-NA also maintained that Assurance 31(a), Disposal of Land, is too restrictive regarding the disposal of land originally purchased for noise mitigation purposes. The existing assurance requires the sponsor to dispose of the land at fair market value when it is no longer needed for noise mitigation purposes. ACI-NA suggests that the assurance be revised to permit the airport to pursue land disposal as part of a commercial and development program. Such development programs tend to offer a higher financial contribution than fair market value. The existing assurance conforms to the statutory requirements of 49 U.S.C. 47107(c)(2)(A)(i), which directs an airport sponsor to dispose of the land as soon as practicable after the land is no longer needed for noise mitigation. The change proposed by ACI-NA is not consistent with this statutory provision. Therefore, the FAA will retain the original language of the assurance. Perry County Airport Authority, Tell City, Indiana suggested changes to the Airport Improvement Program (AIP) priority system to consider the off airport economic benefits of AIP grant funded projects. Since revisions to the AIP grant assurances, and not the priority system, are the subject of this notice, no changes to the assurances are warranted to address this comment.

Discussion of Modifications

FAA uses three separate sets of standard assurances: Airport Sponsors (owners/operators); Planning Agency sponsors; and Non-Airport Sponsors Undertaking Noise Compatibility Program Projects (hereinafter referred to as Non-Airport Sponsor Assurances). FAA is modifying the assurances currently in effect to incorporate the below-noted changes. To simplify the discussion, the modifications are grouped based upon the sets of assurances that are affected. The changes contained in this paragraph affect all three sets of assurances. Section C, Subsection 1, ``General Federal Requirements'' is amended in each set of assurances to add references to 49 CFR Part 26 ``Participation by Disadvantaged Business Enterprises in Department of Transportation Programs''. Part 26 was issued on February 2, 1999 and is the new rule covering the DOT DBE program. In addition, the reference to OMB Circular A-128 ``Audits of State and Local Governments'' is changed to A-133 ``Audits of States, Local Governments, and Non-Profit Organizations''. These changes reflect recent modifications to the referenced regulations and OMB guidelines. References to 49 CFR Part 23 remain in the Airport Sponsor Assurances, since portions of the DBE rule were retained in Part 23. The title of Part 23 is changed to ``Participation by Disadvantaged Business Enterprise in Airport Concessions.'' The following changes affect only the Airport Sponsor Assurances:

(a) In Assurance 4, subparagraph a., the beginning is changed to read: ``It, a public agency or the Federal government, holds good title . . .'' (b) In Assurance 21, Compatible Land Use, the words ``to the extent reasonable'' are placed directly after the words ``appropriate action''. (c) In Assurance 22, subparagraph a is deleted in its entirety and replaced with the following: ``a. It will make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport.'' (d) Assurance 22, subparagraph B.(2), is revised to begin: ``charge reasonable, and not unjustly discriminatory . . .'' (e) For Subsection B1, ``Duration and Applicability'', the second sentence is replaced with: ``However, there shall be no limit on the duration of the assurances regarding Exclusive Rights and Airport Revenue, so long as the airport is used as an airport. There shall be no limit on the duration of the terms, conditions and assurances with respect to real property acquired with Federal funds.''

Modification (c) is made in response to comments, as discussed above. The other modifications are made to more accurately reflect current statutory language. The following changes affect only the Airport Sponsor Assurances, and the Non-Airport Sponsors Undertaking Noise Compatibility Program Projects Assurances:

(a) In Assurance 6, the second sentence beginning ``For noise compatibility program projects,'' and ending with ``reasonably consistent with the agency's plans regarding the property'' is deleted.

This modification is made to more accurately reflect current statutory language. The following assurance affects, and is added to the Air port sponsor Assurances (as new Assurance 37), Planning Agency Sponsor Assurances (as new Assurance 13) and the Non-Airport Sponsors Undertaking Noise Compatibility Program Projects Assurances (as new Assurance 22). This assurance is added to reflect regulatory modifications.

The recipient shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the administration of its DBE program or the requirements of 49 CFR Part 26. The recipient shall takke all necessary and reasonable steps under 49 CFR Part 26 to ensure non discrimination in the award and administration of DOT-assisted contracts. The recipient's DBE program, as required by 49 CFR Part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the recipient of its failure to carry out its approved program, the Department may impose sanctions as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801).

These assurances are issued pursuant to the authority of Title 49, United States Code.

Complete Text of Modified Provisions

tTe complete text of each provision, as modified, appears below.

(a) Airport Sponsor Assurance 4, ``Good Title'', subparagraph a.--

``It, a public agency or the Federal government, holds good title,

satisfactory to the Secretary, to the landing area of the airport or site thereof, or will give assurance satisfactory to the Secretary that good title will be acquired.''

(b) Airport Sponsor Assurance 21--``Compatible Land Use''.

``It will take appropriate action, to the extent reasonable, including the adoption of zoning laws, to restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with normal airport operations, including landing and takeoff of aircraft. In addition, if the project is for noise compatibility program implementation, it will not cause or permit any change in land use, within its jurisdiction that will reduce its compatibility, with respect to the airport, of the noise compatibility program measures upon which Federal funds have been expended.''

(c). Airport Sponsor Assurance 22, ``Economic Nondiscrimination'', subparagraph a.

``It will make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport.''

(d). Airport Sponsor Assurance 22, ``Economic Nondiscrimination'', subparagraph b. (2)

``charge reasonable, and not unjustly discriminatory, prices for each unit or service, provided that the contractor may be allowed to make reasonable and nondiscriminatory discounts, rebates or other similar types of price reductions to volume purchasers.''

(e) Airport Sponsor Assurances, Section B, ``Duration and applicability'', subsection 1, ``Airport Development or Noise Compatibility Program Projects Undertaken by a Public Agency Sponsor''.

``The terms, conditions and assurances of the grant agreement shall remain in full force and effect throughout the useful life of the facilities developed or equipment acquired for an airport development or noise compatibility program project, or throughout the useful life of the project items installed within a facility under a noise compatibility program project, but in any event not to exceed twenty (20) years from the date of acceptance of a grant offer of Federal funds for the project. However, there shall be no limit to the duration of the assurance regarding Exclusive Rights and Airport Revenue so long as the airport is used as an airport. There shall be no limit on the duration of the terms, conditions and assurances with respect to real property acquired with Federal funds. Furthermore, the duration of the Civil Rights Assurance shall be specified in the assurances.''

(f) Airport Sponsor Assurance 6 and Non-Airport Sponsors Undertaking Noise Compatibility Program Project Assurance 6. ``Consistency with Local Plans''

``The project is reasonably consistent with plans (existing at the time of submission of this application) of public agencies that are authorized by the state in which the project is located to plan for the development of the area surrounding the airport.''

(g). Airport sponsor Assurance 37, Planning Agency Sponsor Assurance 13 and Non-Airport Sponsors Undertaking Noise Compatibility Program Project Assurance 22. ``Disadvantaged Business Enterprises.''

``The recipient shall not discriminate on the basis of race, color, national origin or sex in the award and performance of any DOT-assisted contract or in the administration of its DBE program or the requirements of 49 CFR Part 26. The recipient shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. The recipient's DBE program, as required by 49 CFR Part 26, and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the recipient of its failure to carryout its approved program, the Department may impose sanctions as provided under Part 26, and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801).'' Upon acceptance of the AIP grant by an airport sponsor, the assurances become a contractual obligation between the airport sponsor and the Federal government.

Issued in Washington, DC on August 6, 1999. Catherine M. Lang, Acting Director, Office of Airport Planning and Programming. [FR Doc. 99-21458 Filed 8-17-99; 8:45 am] BILLING CODE 4910-13-M