Aviation and Airport Development Law : Aviation Lawyer & Attorney : Chevalier Allen & Lichman Law Firm : Airport Development, Environmental Law

The Guidelines provide an “Airport Characteristics Measurement Tool” (ACMT) that can be used to assess security risks. The ACMT lists airport characteristics that potentially affect airport security in four major categories: (1) Airport Location; (2) Based Aircraft; (3) Runways; and (4) Operations. The Guidelines also contain a list of security enhancements that can be implemented depending on the ACMT results. Finally, the Guidelines include a list of recommendations for GA airport managers and operators to use to enhance airport security in six key areas: (1) Personnel; (2) Aircraft; (3) Airports and Facilities; (4) Surveillance; (5) Security Procedures; and (6) Communications; and Specialty Operations.

Because each GA airport is unique, owners, managers and operators must assess security risks and tailor appropriate security measures to their particular environment. The ability of GA airports to implement security measures varies. Unlike most commercial service airports, many GA airports are not self-sustaining. Therefore, the decision to implement security measures must include consideration of reasonableness and economic feasibility.

The Administrator may exempt the sponsor from some or all of the requirements to: (1) use airport revenues only for airport related purposes; (2) pay back a portion of Federal grants upon the sale of the airport; (3) return airport property deeded by the Federal Government upon transfer of the airport. The Administrator is also authorized to exempt the private purchaser or lessee from the requirement to use all airport revenue for airport related purposes, to the extent necessary to permit the purchaser or lessee to realize a profit from operation of the airport.

In establishing the Pilot Program, Congress also placed limitations on the number and types of airports eligible to participate. Section 47134(d)(1) provides that if the applications of five airports are approved, at least one must be a general aviation airport. Section 47134(d)(2) provides that no more than one of the airports approved may be a large-hub airport (an airport with more than one percent of revenue passenger boardings in the U. S. in the prior calendar year on an aircraft in service in air commerce, as defined in 49 U.S.C. section 47102(10)).

FAA final approval of a privatization application is based on a number of conditions, including the private operator’s ability to ensure continued access to the airport on reasonable terms, continued safe operations, ensure continued maintenance and improvements, adequate security, mitigation of noise and environmental impacts, and to provide for the continued operation of the airport in case of the private operator’s bankruptcy or other default. Privatization must be approved by at least 65% of the air carriers serving the airport and air carriers whose aircraft landing at the airport during the preceding calendar year had a total landed weight of at least 65% of the total landed weight of all aircraft landing at the airport during that year.

Since the Pilot Program was implemented, nine airports have applied for privatization. Five have withdrawn or terminated their application. The four active applicants are: MDW; Gwinnett County Briscoe Field (Lawrenceville, GA); Louis Armstrong New Orleans International Airport (LA); and Louis Munoz Marin International Airport (San Juan, PR). With the approval of Chicago’s preliminary application, all applications from other large-hub airports will be placed on a standby list. One slot remains available for a non-large-hub or general aviation airport.

FAA may have pulled the trigger too quickly, however. On May 10, 2010, the Los Angeles City Council approved a motion to study the transfer of Ontario International Airport to the control of the City of Ontario (control that shifted to Los Angeles in 1967). As the City of Ontario has a strong interest in growth of Ontario International Airport as an economic engine for the currently economically moribund Inland Empire, the jury is still out as to whether Ontario will steal those passengers FAA now projects for LAX and John Wayne Airport. Stay tuned.

FAA Could Be Player in Airport Closure Battle. --- Cindy Leise, The Chronicle-Telegram, December 18, 2009
Lorain County commissioners have been debating closing Lorain County Regional Airport in Elyria, Ohio as they meet to approve a 2010 budget. The closure of the airport could result in a lawsuit, however, as the Federal Aviation Administration has given Lorain County millions of dollars over the years and expects the airport to remain open. The county commissioners are exploring options to keep the airport open while discussing closure.
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Transit, Airport Changes Coming January 15. --- Cindy Leise, The Chronicle-Telegram, December 29, 2009
Lorain County commissioners plan to close Lorain County Regional Airport in Elyria, Ohio on January 15, and possibly eliminate some transit routes. Commissioners cut their $500,000 of support for transit and are working to bring in extra federal money, but the county does not yet know how much might be forthcoming and cannot solidify plans at this time. Johnson Aviation Co., which sells fuel at the airport, has retained an attorney to challenge whether the county can eliminate financial support for the airport and close it. There is no word yet from the Federal Aviation Administration as to what action is planned to prevent a closing.
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County, FAA to Face Off OverAirport. ‑-- Kelly Metz, The Morning Journal, January 7, 2010
Lorain County commissioners met with Federal Aviation Administration officials in Chicago, Illinois to discuss the county of Lorain County Regional Airport in Elyria, Ohio. The airport was supposed to be shut down on Dec. 31, but was able to stay open a few weeks past deadline. The commissioners will work with the FAA to determine possible solutions to keep the airport operating, as the FAA took action regarding the closing of the airport since the agency had more than $9.2 million in grants invested.
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County Officials Meet with FAA About Airport, But Legal Battle Likely. --- Brad Dicken, The Chronicle-Telegram, January 8, 2010
The meeting between Lorain County officials and the Federal Aviation Administration was “very good, long, [and] intensive,” but there was no successful outcome and a legal battle is likely. The FAA warned the county that a move to close the airport would result in the agency launching an investigation to try to force the airport to remain in operation. The FAA could also ask a federal judge to issue an order to keep the airport operating, though the county would likely fight such a legal challenge and move forward with its plans to close the airport.
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U.S. Airlines Must Let Passengers Off Stuck Planes. --- John Hughes, Bloomberg, December 21, 2009
Under a new federal rule, U.S. airlines must let passengers off planes that are stuck on airport tarmacs after three hours, as well as provide drinking water and snacks after two hours. Airlines that don’t comply could face fines of up to $27,000 a passenger. Carriers oppose the standard, because they believe it will lead to more canceled flights and greater passenger inconvenience. Though the rule applies only to domestic flights, those flights would be exempt if pilots cite safety or security concerns, or if air-traffic controllers determine that returning a plane to the gate would disrupt airport operations.
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New DOT Consumer Rule Limits Airline Tarmac Delays, Provides Other Passenger Protections. --- Department of Transportation Press Release, December 21, 2009
The new Department of Transportation consumer rule limiting airline delays will significantly strengthen consumer protections. DOT Secretary Ray LaHood said that “airline passengers have rights,” and that the new rules will require airlines to live up to obligations to treat their customers fairly. The rule was adopted in response to the high incidence of flight delays and other consumer problems.
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DOT’s 3-Hour Limit on Tarmac Delay Holds - Does It Help or Will Just Make Things Worse? --- Steven Taber, Aviation & Airport Development Law, December 22, 2009
The Department of Transportation’s new rule governing passengers’ treatment for delayed flights enhances passenger protections, but could make things worse in terms of consumer friendliness. Airlines might cancel flights instead of having them wait, for example, and the rule might actually limit passengers’ legal remedies.
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FAA Reminds Employees to Act With Decorum. --- Associated Press, December 22, 2009
Hidden television news cameras showed Federal Aviation Administration employees partying while they were in Atlanta for a $5 million training program, prompting the FAA to remind its employees to act with decorum. The footage showed some of the employees drinking heavily and going to local bars after the meetings.
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Few Aviation-Related Injuries Involve Commercial Craft, Data Show. --- Nicholas Bakalar, The New York Times, December 21, 2009
Researchers analyzing data from 2000 through 2006, gathering information on crashes, parachuting accidents, and other injuries found that more than 1,000 people are hospitalized for aviation-related injuries, with only one-tenth of them passengers in commercial aircraft. The military services established effective surveillance systems to track aviation injuries, but the sources of information on nonmilitary injuries is not as complete.
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FAA Accepts Luis Munoz Marin Airport In Privatization Program. --- Wall Street Journal, December 23, 2009
The Federal Aviation Administration accepted a preliminary application from Puerto Rican airport officials to enter Luis Munoz Marin International Airport into the agency’s airport-privatization program. Puerto Rico can now begin soliciting bids from private investors who may be interested in operating the airport.
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Airlines Turn to Biofuel.

--- Sarah Nassauer, Grace L. Williams, and Angel Gonzalez,

Wall Street Journal

, December 24, 2009

Fifteen major airlines and air-cargo companies are negotiating to buy billions of gallons of fuels made from vegetable oil, coal, and petroleum coke, a petroleum-refining byproduct. The fuel has a smaller carbon footprint than petroleum, and the Federal Aviation Administration recently approved use of this type of fuel in commercial flights when blended equally with traditional jet fuel. However, though these fuels burn more cleanly than traditional jet fuel, there is only a “small reduction” of emissions over the life cycle of the product.

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Midway Airport Privatization Prepares to Take Off Again. --- Paul Merrion, Chicago Business, January 5, 2010
Chicago is close to completing its plans to revive privatization of Midway Airport in Illinois. Flight volume at Midway was up 4% and passenger traffic was up more than 14% in November, compared with the same month in 2008. Talks will likely resume soon with potential investors and operators who previously bid on privatizing Midway last year, but Southwest Airlines is still onboard with the city’s legal and financial team.
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Daley Hints at Privatizing MidwayAirport. --- WLS-TV, January 6, 2010
Chicago, Illinois Mayor Richard Daley hinted that the city may push to privatize Midway Airport once the economy improves. A deal fell apart last spring because of financing issues, but the mayor said it is “very progressive” legislation that cities have done all over the world.
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Bakersfield Airport Shut After Hazardous Material is Found in Checked Bag. --- Dan Weikel, Los Angeles Times, January 5, 2010
Bakersfield Airport in California was shut down and some arriving flights were diverted to nearby Los Angeles International Airport after a hazardous material was found in a checked bag. A hazardous material crew and bomb squad were also called to the airport.
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FAA Issues Final Rule Allowing the Use of Additional Portable Oxygen Concentrator Devices Onboard Aircraft. --- Federal Register, January 6, 2010
The Federal Aviation Administration announced a new final rule that will allow the use of four additional portable oxygen concentrator (POC) devices on board aircraft. When the rule becomes effective there will be 11 different FAA-suitable POC devices acceptable for onboard use. Passengers will be able to carry these devices on board the aircraft and operate them with the approval of the aircraft operator.
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EPA Proposes to Expand Lead Monitoring. --- Aviation News, January 6, 2010The Environmental Protection Agency proposed to expand the lead air quality monitoring network to include sources that emit a half ton or more of lead annually, compared to the current threshold of one ton a year. The proposed changes would expand the existing network by approximately 140 sites, and airports would be treated the same as other sources of lead when determining if source-oriented lead monitoring is needed.
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The Grant Assurances primarily relevant to a proposed Airport closing or “deactivation” and reuse for non-aviation purposes are as follows. First, you, the airport sponsor, may not “sell, lease, encumber, or otherwise transfer or dispose of any part of its title or other interests in the property ... for the duration of the terms, conditions, and assurances in the grant agreement without approval by the Secretary [of Transportation].” See, e.g., Grant Assurance C.5.b. FAA regulations expand on this requirement. All of the land shown on Exhibit A to each grant constitutes the airport property obligated for compliance under the terms and covenants of the grant agreements. FAA Order 5190.6B. The airport sponsor is obligated to obtain FAA consent to delete any land so described and shown. Id. FAA consent shall be granted only if it is determined that the property is not needed for present or foreseeable public airport purposes. Id. Accordingly, if the airport sponsor’s Airport deactivation planning includes the sale, lease, encumbrance, or other transfer or disposition of its interests in the Federally obligated property, it: (1) must first obtain approval from the Secretary; by (2) establishing that the land to be alienated is no longer “needed” for public airport purposes.

Second, the airport sponsor is obligated to “suitably operate and maintain the airport and facilities. . . Any proposal to temporarily close the airport for nonaeronautical purposes must first be approved by the Secretary . . . [the Sponsor] will not cause or permit any activity or action thereon which would interfere with its use for airport purposes.” See, e.g., Grant Assurance C.19.a. This obligation to maintain the Airport includes the responsibility to operate the aeronautical facilities and common use areas for the benefit of the public. FAA Order 5190.6B, p. 2-15. Therefore, the airport sponsor “is more than a passive landlord of specialized real estate,” and has a continuing obligation to operate and maintain the Airport facilities. Id. For this reason, the airport sponsor may not cease to operate the airport prior to obtaining a release of its Grant Assurances from the FAA.

Third, “[f]or land purchased under a grant for airport development purposes (other than noise compatibility), [the airport sponsor] will, when the land is no longer needed for airport purposes, dispose of such land at fair market value or make available to the Secretary [of Transportation] an amount equal to the United States’ proportionate share of the fair market value of the land.” See, e.g., Grant Assurance 31.b.1. The United States’ share will either be reinvested in the national airport system or be deposited in the Aviation Trust Fund. Accordingly, the airport sponsor must either dispose of the land obtained with Federal grant funds at fair market value, paying a proportionate share to the Secretary, or make that proportionate share available to the United States without disposing of the property. Therefore, whether the airport sponsor chooses to dispose of the property purchased with Federal funds, maintain it for a public purpose other than aviation, or use it for non-public purposes, the airport sponsor must repay a proportionate share of the current fair market value of the land to the Federal government. There is no longer any limit on the duration of the terms, conditions, and assurances regarding real property acquired with Federal funds. [See, Grant Assurance B.1; FAA Order 5190.6B, p. 2-14] 

Federal regulations distinguish between the treatment of grants for the purchase of real property and those for airport development or improvement purposes. With respect to facilities developed or equipment obtained with Federal funds, the Assurances remain in effect for the useful life of the facilities developed or equipment acquired [See Grant Assurance B.1; FAA Order 5190.6B, p. 2-13], although this period may not exceed twenty (20) years from the date the grant offer was accepted. Id. 

In summary, deactivation of the Airport would require approval by the Secretary of Transportation and payment of the FAA’s proportionate share of the FMV of all real property acquired with Federal funds, as well as coordination with the FAA with respect to the disposition of grants made for airport development or improvement.

2.            Federal Regulations Allow the Release of the Airport Sponsor’s Obligations under the Grant Assurances.

Despite the seemingly unequivocal requirements of the Grant Assurances, the FAA has established procedures that allow the release, modification, reformation or amendment of airport agreements, including grant agreements, under certain prescribed circumstances. Specifically, “[w]ithin the specific authority conferred upon the Administrator by law, the FAA will, when requested, act to release, modify, reform, or amend any airport agreement to the extent that such action will protect, advance, or benefit the public interest in civil aviation.” FAA Order 5190.6B Section 22.31 (emphasis added). The FAA may grant relief from specific limitations or covenants of an agreement, or grant a complete and total release which authorizes the subsequent disposal of obligated airport property. Id. The FAA’s release may apply to specific facilities and parcels of land acquired with Federal assistance, which ultimately results in a partial airport closure, or disposal of an entire airport.

                a.            Deactivation, or Permanent Closure of the EntireAirport.

An airport sponsor may request the release of obligations for an entire airport. FAA Order 5190.6B, Section 22.20. ARP-1's concurrence is required before granting any release that would enable the disposal of an entire airport for non-aviation purposes. Moreover, each request to release an entire airport is considered by ARP-1 on a “case-by-case” basis without limitation to the guidance in FAA Order 5190.6B. In other words, the terms under which deactivation is allowed are expressly left to the complete discretion of ARP-1.

                                1.            Constraints on ARP-1' s Discretion.

Clearly, however, ARP-1's discretion is not unlimited. It will be guided, at least to some extent, not merely by the Grant Assurances, as set forth above, but also by applicable parallel Federal regulations and procedures. For example, where a release is sought to permit sale and disposal of land purchased with grant funds, apparently including deactivation, it must be demonstrated at minimum that (1) the land is no longer “needed” for airport purposes; and (2) the airport will repay that portion of the property’s FMV proportionate to the Federal Government’s share of the cost of the acquisition of such land, which sum is to be deposited in the Aviation Trust Fund. FAA Order 5190.6B, Section 22-19.

                                2.            Procedural Requirements.

Generally, the request for release must: (1) be in writing and signed by a duly authorized official of the airport owner [FAA Order 5190.6B, Section 22.23]; and (2) be specific, including the facts and circumstances justifying the request [FAA Order 5190.6B, Section 22.24]. The FAA will take into consideration factors such as: (1) the past and present owner’s compliance record under all its airport agreements and its actions to make available a safe and usable airport for maximum aeronautical use by the public; (2) evidence that the owner has taken or agreed to take all actions possible to correct noncompliance situations at the airport, if applicable; (3) the reasonableness and practicality of the owner’s request in terms of aeronautical facilities which are needed and the priority of need; (4) the net benefit to be derived by civil aviation and the compatibility of the proposal with the needs of civil aviation; and (5) consistency with the guidelines for specific types of releases. FAA Order 5190.6B, Section 22.27.

                                3.            Applicable Policy Determinations.

Moreover, the FAA must also make at least one of several policy determination, those potentially applicable here include that: (1) the public purpose which a term, condition, or covenant of an agreement, or the agreement itself, was intended to serve is no longer applicable; or (2) the release, modification, reformation, or amendment of an applicable agreement will not prevent accomplishment of the public purposes for which the airport or its facilities were obligated, and such action is necessary to protect or advance the interest of the United States in civil aviation; or (3) the release, modification, reformation or amendment will conform the rights and obligations of the owner to the statutes of the United States and the intent of Congress consistent with applicable law. FAA Order 5190.6B, Section 22.28.

                b.            Treatment of Airport Improvements Other than Land.

Finally, where a release is sought to abandon, demolish or convert grant-funded improvements, other than land, the FAA must find that: (1) the grant agreement involved has expired; or (2) the facility in question is no longer needed for the purpose for which it was developed; or (3) the useful life of the facility in question has expired

Despite the inherently discretionary nature of FAA regulations governing deactivation, it seems clear that, for real property they require, at a minimum: (1) repayment of a sum (some proportion of the current FMV of the real property purchased with FAA funds) which is substantially in excess of the original amount of the FAA Grants, but which can theoretically be obtained through resale or development of the Airport property; and (2) successful argument that the deactivation will benefit the National Air Transportation System, which can be based upon the substantial benefit to be derived from the airport sponsor’s deposit in the Aviation Trust Fund of the sum required to compensate the FAA for deactivation, which can then be used for the development and improvement of other airports in the system.

3.            Conclusion

The deactivation of an airport is not impossible, but it is tricky and complex due to the fact that most airports have accepted federal funds to keep the airport operating safely. This post should not be used as an exhaustive “how-to” on closing an airport, and it would behoove airport sponsors contemplating closure to consult with an attorney who is cognizant of the complex and often confusing regulations surrounding airports and grant assurances.