[Federal Register Volume 87, Number 178 (Thursday, September 15, 2022)]
[Proposed Rules]
[Pages 56601-56604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19665]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Chapter I

[Docket No. FAA-2022-1203]


Draft FAA Policy Regarding Processing Land Use Changes on 
Federally Acquired or Federally Conveyed Airport Land

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Proposed policy; request for comments.

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SUMMARY: This notice is directed to airport sponsors, consultants, and 
other stakeholders regarding a proposed update of the FAA policy and 
practice regarding processing land use changes on federally acquired or 
federally conveyed airport land. The updated policy confirms and 
clarifies the appropriate methods to document FAA's review and approval 
or consent for such changes, in light of amendments made by Section 163 
of the FAA Reauthorization Act of 2018. This policy clarifies: When 
reviewing proposed land use changes on federally acquired or federally 
conveyed airport land, the FAA will review the proposal in its entirety 
without individually examining components of the proposal as 
aeronautical or non-aeronautical; a letter of approval or consent is 
required for a non-aeronautical use or mixed use and the approval or 
consent will remain in effect for the duration of the lease term; the 
determination of whether the non-aeronautical use is significant will 
be based on the primary use of the project; FAA will only release 
Federal obligations when the airport sponsor proposes the sale or 
conveyance of federally acquired or federally conveyed airport land 
that meets FAA release requirements; and, FAA letters of approval or 
consent and releases will be documented on an airport's Exhibit A in 
accordance with the ARP SOP 3.00--FAA Review of Exhibit `A' Airport 
Property Inventory Maps. This policy should be used in conjunction with 
FAA Order 5190.6, Airport Compliance Manual, Chapter 22, Releases from 
Federal Obligations; and FAA Order 5100.38, Airport Improvement 
Handbook; and any related policy implemented in conjunction and 
complementary with Airports Planning and Programming (APP) guidance. 
Additionally, compliance specialists will consult with FAA 
Environmental Protection Specialists to determine what, if any, 
environmental obligations under relevant statutes or regulations may 
apply to specific land use changes at specific airports.

DATES: The FAA will accept public comments on the proposed policy 
statement for 30 days. Comments must be submitted on or before October 
17, 2022. The FAA will consider comments on the proposed policy 
statement. Any necessary or appropriate revisions resulting from the 
comments received will be adopted as of the date of a subsequent 
publication in the Federal Register.

ADDRESSES: You may send comments [identified by Docket Number, FAA 
2022-1203] using any of the following methods:
     Government-Wide Rulemaking Website: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
     Mail: Docket Operations, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue SE, Washington, DC 20590.
     Fax: 1-202-493-2251.
     Hand Delivery: To Docket Operations, Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue SE, 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lorraine Herson-Jones, Manager, Office 
of Airport Compliance and Management Analysis, ACO-100, Federal 
Aviation Administration, 800 Independence Avenue SW, Washington, DC 
20591, telephone (202) 267-3085.

SUPPLEMENTARY INFORMATION: 

Background

Airport Sponsor Obligations

    Congress authorized the conveyance of federal surplus property and 
financial assistance for the acquisition of land where the land is 
needed for ``airport purposes.'' See 49 U.S.C. 47107(c)(1). Under the 
Airport Improvement Act, ``airport purpose'' means land that ``may be 
needed for an aeronautical purpose (including runway protection zone) 
or serves as noise buffer land.'' Id. Federally conveyed or federally 
acquired land must be used for airport purposes until the FAA approves 
or consents to a non-aeronautical use and thereby discharges the 
sponsor of that obligation. 49 U.S.C. 47153(a), 49 U.S.C. 47125(a), and 
49 U.S.C. 47107(c)(2)(B). In addition, Congress requires the FAA to 
submit an annual report listing airports not in compliance with airport

[[Page 56602]]

land use restrictions and identifying necessary corrective action. 49 
U.S.C. 47131(a)(5).
    Airport sponsors that have accepted federally conveyed or federally 
acquired airport land have agreed to comply with certain obligations 
and policies included in the federal grant agreement or the federal 
conveyance documents regarding the use of the land. Those obligations 
derive from multiple statutes, deed covenants and the grant assurances.
    Airport sponsors must request FAA written approval or consent to 
allow federally conveyed or federally acquired land to be used for non-
aeronautical purposes. 49 U.S.C. 47153(a), 49 U.S.C. 47125(a), 49 
U.S.C. 47107(c)(2)(B). The FAA's authority to approve or consent to a 
non-aeronautical land use or to release obligations depends upon the 
obligating documents, the current and future aeronautical need of the 
property, and the proposed use. For example, residential use on airport 
property is incompatible with the needs of civil aviation, is 
prohibited by FAA policy, and is also contrary to federal obligations.
    Limiting the use of aeronautical facilities to aeronautical 
purposes ensures that airport facilities are available to meet aviation 
demand at the airport. Aviation tenants and aircraft owners should not 
be displaced by non-aviation commercial uses that could be conducted 
off airport property.\1\ The FAA must consider both the existing and 
future aviation demand. Over time, the definition of aeronautical use 
has remained relatively unchanged, except when changes were needed to 
reflect necessary access for sky diving, and new entrants, such as 
Unmanned Aircraft System (UAS) and commercial space. Aeronautical use 
accommodates an aeronautical activity. Aeronautical use lands receive 
additional benefits. They are afforded the protection of the grant 
assurances and may be charged favorable below market aeronautical 
rates. The aeronautical use definition protects the federal investment 
in aviation and ensures that non-aeronautical uses cannot easily 
displace aeronautical uses and thereby diminish the safety, efficiency 
and utility of the entire airport.
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    \1\ See Policy on the Non-Aeronautical Use of Airport Hangars 
(81 FR 38906-38907), June 15, 2016.
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Implications of FAA Reauthorization Act of 2018 (Pub. L. 115-254), 
Section 163

    In addition, the ``FAA Reauthorization Act of 2018'' (Pub. L. 115-
254), Section 163, changed the FAA's authority to regulate non-
federally acquired or conveyed airport land. The FAA's authority over a 
proposed land use change may be limited when it does not impact safe 
and efficient operation of aircraft or safety of people and property on 
the ground related to aircraft operations or does not adversely affect 
the value of prior Federal investments to a significant extent. See 
Public Law 115-254 Sec.  163(b)(1)(A) and (d)(1)(B). Section 163(a) 
limits the FAA's authority to directly or indirectly regulate an 
airport owner or operator's acquisition, use, lease, encumbrance, 
transfer, or disposal of land, any facility upon such land, or any 
portion of such land or facility. However, Section 163(b) contains 
three exceptions and provides the limitations on when Section 163(a) do 
not apply:
    1. Any regulation ensuring the safe and efficient operation of 
aircraft or safety of people and property on the ground related to 
aircraft operations; \2\
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    \2\ See Section 163(b)(1)(A).
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    2. Any regulation imposed with respect to land or a facility 
acquired or modified using Federal funding; \3\
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    \3\ See Section 163(b)(2).
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    3. Any authority contained in a Surplus Property Act instrument of 
transfer,\4\ or Section 40117 of title 49 United States Code (Passenger 
Facility Charge statute).\5\
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    \4\ The FAA may retain approval authority over proposed changes 
in the use of lands granted to an airport sponsor from the United 
States, including under the Surplus Property Act, 49 U.S.C. 47125, 
section 16 of the Federal Airport Act of 1946 Public Law 79-377, 
section 23 of the Airport and Airway Development Act of 1970, Public 
Law 91-258, section 516 of the Airport and Airway Development Act of 
1982, and former military airports conveyed to local public entities 
under the congressionally authorized Base Realignment and Closure 
program because lands granted under these statutes constitute 
federal investments in the airport.
    \5\ See Section 163(b)(3).
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    In cases covered by 163(b), FAA retains land use approval authority 
over the project. The FAA will follow this policy guidance and FAA 
Order 5190.6, Airport Compliance Manual.
    When FAA lacks approval authority over a particular change in land 
use or sale of land, all of the airport sponsor's federal statutory and 
grant assurance obligations remain in full force and effect, including 
over its remaining airport property. Airport sponsors remain obligated 
under the Grant Assurances, FAA's Policies and Procedures Concerning 
the Use of Airport Revenue (64 FR 7696, February 16, 1999) (Revenue Use 
Policy), and FAA's Policy Regarding Rates and Charges (78 FR 55330, 
September 10, 2013).
    The sale or lease of the land must be accomplished per the FAA's 
Appraisal Standards for the Sale and Disposal of Federally Obligated 
Airport Property (Compliance Guidance Letter 2018-3). The land must be 
sold or leased at fair market value and the funds must be used in 
accordance with the FAA's Revenue Use Policy. See 49 U.S.C. 
47107(c)(2)(B). The sponsor should retain sufficient authority over the 
disposed land to prevent uses that conflict with its federal 
obligations and related requirements or create conditions resulting in 
violations of the assurances. To retain this authority, sponsors should 
consider using subordination clauses, reservations, covenants, or other 
restrictions in a deed or other instrument to protect the public's 
right to fly over the land, prohibit obstructions to air navigation or 
interference with the flight of aircraft, or assure compatible land 
use. The deed or other instrument containing the restrictions should be 
recorded in local land records.
    The FAA may verify compliance with these requirements through a 
financial compliance review, review of supporting documentation, land 
use inspection, the enforcement of grant assurances, or other 
enforcement mechanisms. The sponsor also has the responsibility to 
comply with all federal, state, and local environmental laws and 
regulations.

Explanation of Terms

    Aeronautical Use--The FAA considers the aeronautical use of an 
airport to be any activity that involves, makes possible, is required 
for the safety of, or is otherwise directly related to, the operation 
of aircraft. Aeronautical use includes services provided by air 
carriers related directly and substantially to the movement of 
passengers, baggage, mail and cargo on the airport. FAA's Policy 
Regarding Rates and Charges, 78 FR 55330 (September 10, 2013).
    Examples of aeronautical use include:
    1. operational uses such as aerial approaches, navaids, runways, 
taxiways, aprons, or other aircraft movement areas;
    2. future developmental uses to reserve property interests for 
foreseeable aeronautical development (e.g., a planned runway extension 
or a planned terminal building development); and
    3. essential services that directly support flight operations 
(e.g., aircraft maintenance, fueling, and servicing; mail, passenger 
and cargo processing facilities; communications and air traffic 
control; crash rescue, firefighting, and airport maintenance).

[[Page 56603]]

    Airport Purpose: Uses of land that are directly related to the 
actual operation or the foreseeable aeronautical development of a 
public airport. These are situations where a primary aeronautical 
facility has some non-aeronautical components that support that 
facility's core aeronautical function within its operation. Examples of 
this are:
    1. A terminal complex: All components of a terminal complex 
(including the building, terminal concessions, terminal parking, and 
roads) serve an airport purpose.
    2. A fixed base operator (FBO) facility that includes parking and 
classrooms. All components serve an airport purpose.
    An aeronautical facility serving an airport purpose does not 
include certain uses such as aircraft manufacturing plants and 
warehouse distribution facilities, which are considered as mixed-use as 
defined below.
    Non-Aeronautical Use: All other uses that are not considered 
aeronautical. Non-aeronautical uses commonly occur on airports, but 
these uses do not have the priority or protection of the grant 
assurances. There is no federal requirement that obligated airport 
sponsors accommodate non-aeronautical uses. This differentiation 
between aeronautical and non-aeronautical is intended to protect the 
Federal investment in aviation and ensure that non-aeronautical uses 
cannot easily displace aeronautical uses and thereby diminish the 
safety, efficiency, and utility of the airport.\6\
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    \6\ FAA has provided guidance on the temporary non-aeronautical 
use of a hangar in FAA's Hangar Use Policy, Policy on the Non-
Aeronautical Use of Airport Hangars, 81 FR 38906, (June 15, 2016) 
(www.govinfo.gov/content/pkg/FR-2016-06-15/pdf/2016-14133.pdf).
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    Examples of these include:
    1. Car rental facility (stand-alone). All components will be 
considered a non-aeronautical use.
    2. Hotel and associated parking lot.
    3. Warehouse and distribution center.
    Mixed Uses--A mixed-use facility contains both aeronautical and 
non-aeronautical uses, but the non-aeronautical use is significant and 
could be located off airport property. Examples of mixed uses are:
    1. Mail distribution centers that are connected to an air cargo 
operation.
    2. Cargo operations containing non-aeronautical elements such as 
office building complexes, sorting facilities, long-term storage 
(warehousing), freight forwarders and third-party logistics providers, 
certain access infrastructure, or certain truck parking/trailer 
facilities (stalls). Most of these are related to other transportation 
modes or aspects of the cargo business, but not directly and 
substantially to its ``aeronautical activity''.
    3. Aircraft manufacturing facility that includes final assembly, 
but also significant non-aeronautical uses such as engineering 
facilities, research and development facilities, parts manufacturing 
and storage, employee parking, or office buildings.
    Federally acquired land--This is land that was acquired with 
Federal funds, including the Airport Improvement Program (AIP), 
Bipartisan Infrastructure Law (BIL), Coronavirus Aid, Relief, and 
Economic Security (CARES) Act, Federal Aid to Airports Program (FAAP), 
Airport Development Aid Program (ADAP), and as part of an AP-4 
agreement.\7\ It also includes sponsor-acquired land that was used for 
the sponsor match on a federally funded project or was swapped for land 
purchased with federal funds.
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    \7\ In some instances, an AP-4 Agreement included a Federal land 
purchase. The original agreement and funding should be reviewed to 
confirm the source of the funds.
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    Federally conveyed land--This is land conveyed to the sponsor by 
the Federal government through a written deed of conveyance (also 
called a patent) that contained specific restrictions or allowances for 
the use of the land. It includes land transferred under:
    1. Surplus Property Act, codified in 49 U.S.C. 47151-47153, 
including former military airports conveyed to local public entities 
under 10 U.S.C. 2687 of the Defense Base Closure and Realignment Act 
(BRAC) program or any other Federal laws; and,
    2. Section 16 of the Federal Airport Act of 1946, 119 Public Law 
79-377, Section 23 of the Airport and Airway Development Act of 1970, 
Public Law 91-258, and Section 516 of the Airport and Airway 
Development Act of 1982, codified in 49 U.S.C. 47125. These are 
sometimes referred to as non-surplus property transfers.
    Release of Federal obligations--The formal, written authorization 
discharging and relinquishing all or part of the FAA's right to enforce 
an airport's contractual or deeded obligations. FAA's authority to 
release, waive or amend an obligation is contained in 49 U.S.C. 
47153(a) and 47107(h)(2).
    Letter of approval or consent--FAA's action on a proposed land use 
change may be documented in the form of a letter of approval or a 
letter of consent, depending upon the obligating deeds or documents and 
the land at issue.\8\ The approval or consent should run concurrent 
with the lease term. At the end of the non-aeronautical lease term, the 
land reverts to the airport sponsor for aeronautical use.
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    \8\ Surplus Property Act deeds often require the FAA's written 
consent for a non-aeronautical use, so a letter of consent would be 
appropriate. Grant Assurance 5, Preserving Rights and Powers, 
requires prior written approval of the Secretary for the sell or 
transfer of any property upon which Federal funds have been 
expended, which would require a letter of approval. In both cases, 
the letters serve the equivalent purpose of documenting the FAA's 
action on the sponsor's request.
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Proposed Policy and Request for Comments

    In accordance with the above, the FAA proposes to adopt the 
following policy statement on processing land use changes on federally 
acquired and federally conveyed land. The agency requests public 
comments on the proposed policy statement. Comments can be submitted as 
described in the ADDRESSES and DATES information in this notice. 
Comments received by the due date will be considered in the development 
of a final agency policy statement.

The FAA's Policy

    The FAA confirms and clarifies its prior policy and practice 
regarding the implementation of its statutory responsibility to review 
and approve or consent to, or deny, requests for land use changes on 
federally acquired or federally conveyed land: \9\ (1) The FAA will 
review the sponsor's proposal in its entirety without individually 
examining components of the proposal as aeronautical or non-
aeronautical; (2) A letter of approval or consent is required for a 
non-aeronautical use or mixed use and the approval or consent will 
remain in effect only for duration of the lease term; \10\ (3) the 
determination of whether the non-aeronautical use is significant will 
be based on the primary use of the project; (4) FAA will only release 
federal obligations when the airport sponsor proposes the sale or 
conveyance of federally acquired or federally conveyed airport land 
that meets FAA release requirements; \11\ and (5) FAA letters of 
approval or consent and releases will be documented on the Exhibit A in 
accordance with ARP SOP 3.00--FAA Review of Exhibit `A' Airport

[[Page 56604]]

Property Inventory Maps. FAA Order 5190.6, Airport Compliance Manual, 
will be updated to reflect this policy guidance.
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    \9\ This will also apply in situations where a land use change 
impacts the safe and efficient operation of aircraft or safety of 
people and property on the ground related to aircraft operations.
    \10\ This process will supersede the existing interim and 
concurrent use process that was limited to 3-5 years; FAA Order 
5190.6, Chapter 22 will be updated to reflect this revised process.
    \11\ Sponsors should follow the existing release process in 14 
CFR part 155, Release of Airport Property from Surplus Property 
Disposal Restrictions and FAA Order 5190.6, Chapter 22.
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Process for Evaluating Land Use Changes

    Uses of airport land will fall into one of four categories: (1) 
Aeronautical use, (2) Airport Purpose, (3) Non-Aeronautical Use, or (4) 
Mixed-Use.
    FAA must approve or consent to all non-aeronautical and mixed uses 
of federally acquired and federally conveyed land. If the FAA 
determines that the proposed use serves an aeronautical use or airport 
purpose as defined above, then FAA approval or consent is not required. 
The following explains the process when an airport sponsor requests a 
change in land use on federally conveyed or federally acquired land:

1. What Sponsors Must Submit

    The sponsor's request needs to include the following:
    a. documentation on how the land was acquired (i.e., federal 
conveyance documents, Federal grant agreements, Exhibit A, etc.);
    b. current and future aeronautical demand of the airport and the 
land; and
    c. proposed non-aeronautical use, including the length of the 
lease.

2. FAA's Evaluation of the Request

    FAA's determination of whether the non-aeronautical use is 
significant, consistent with the term ``mixed uses'' in ``Explanation 
of Terms'' in this document, will be made based on the primary use of 
the project. The process involves a certain level of discretion by the 
FAA and the airport sponsor. Major considerations in granting approval 
or consent include:
    a. reasonableness and practicality of the sponsor's request,
    b. effect of the request on needed aeronautical facilities, and
    c. compatibility of the proposal with the needs of civil aviation. 
(Note: The residential use of airport property is incompatible with the 
needs of civil aviation, is prohibited by FAA policy, and is also 
contrary to Federal obligations.)
    The distinctions may vary slightly depending on the circumstances 
of the situation, such as intermodal functionality, proponent's 
business model, project integrity, available airport land, project size 
and location, airport planning priorities, and funding requirements and 
restrictions. The proposal must benefit the airport and its functions 
in support of aeronautical uses and not adversely affect the value of 
the Federal investment in the airport and its facilities. 49 U.S.C. 
47107(a)(16)(B), 49 U.S.C. 47125(a), and 49 U.S.C. 47152(1).
    The use should be compatible with the airport's current or future 
aeronautical use or demand. FAA approval shall not be granted if the 
FAA determines that an aeronautical demand for the land is likely to 
exist within the period of the proposed use, or it compromises the 
safety and operation of the airport. FAA consent to or approval of a 
non-aeronautical use should only extend for duration of the lease term 
and must provide that the land will be returned to aeronautical use at 
the end of the term.

3. Documentation of FAA Decision

    Upon completion of the review, the FAA will either issue a letter 
of approval or letter of consent for the non-aeronautical use or mixed-
use, or deny the request.
    The letter of approval or letter of consent must document the FAA's 
approval of a non-aeronautical land use on federally acquired or 
federally conveyed airport land. This letter will outline the 
conditions of the approval or consent and include a requirement that 
the land must be available for aeronautical use at the end of the 
approval or consent period. Generally, the approval or consent will 
remain for the duration of the lease agreement. The letter of approval 
or letter of consent does not affect or negate the sponsor's federal 
obligations.
    The requirement for NEPA should be coordinated with FAA 
Environmental Protection Specialists.
    All land use changes should be shown on the Exhibit A in accordance 
with ARP SOP 3.00--FAA Review of Exhibit `A' Airport Property Inventory 
Maps. This includes depicting in a table format the type of use for a 
facility, (e.g.: aeronautical, non-aeronautical, mixed-use), and the 
approval and expiration dates.

     Issued in Washington, DC, on September 7, 2022.
Kevin C. Willis,
Director, Office of Airport Compliance and Management Analysis.
[FR Doc. 2022-19665 Filed 9-14-22; 8:45 am]
BILLING CODE 4910-13-P


