The Right to Self-Fuel (2009)

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14 APPENDIX B Selected Federal Grant Assurances 5. Preserving Rights and Powers Grant Assurance 5 is cited under circumstances where a specific aeronautical user is demanding that the airport sponsor allow a preferred method of “self-fueling” or a particular level of service. If the allowance of any specific method of self-fueling would affect the performance of any other federal obligation, then the air- port sponsor is under no obligation to allow that activity. In short, the sponsor is only required to provide an opportunity for self-fueling. Further, once the sponsor has provided an opportunity for “self-fueling,” the air- port sponsor’s obligation has been satisfied. a. It will not take or permit any action which would operate to deprive it of any of the rights and powers nec- essary to perform any or all of the terms, conditions, and assurances in the grant agreement without the written approval of the Secretary, and will act promptly to acquire, extinguish or modify any outstanding rights or claims of right of others which would interfere with such performance by the sponsor. This shall be done in a manner acceptable to the Secretary. b. It will not sell, lease, encumber, or otherwise transfer or dispose of any part of its title or other interests in the property shown on Exhibit A to this application or, for a noise compatibility program project, that por- tion of the property upon which federal funds have been expended, for the duration of the terms, conditions, and assurances in the grant agreement without approval by the Secretary. If the transferee is found by the Secretary to be eligible under Title 49, United States Code, to assume the obligations of the grant agreement and to have the power, authority, and financial resources to carry out all such obligations, the sponsor shall insert in the contract or document transferring or disposing of the sponsor's interest, and make binding upon the transferee all of the terms, conditions, and assurances contained in this grant agreement. c. For all noise compatibility program projects that are to be carried out by another unit of local government or are on property owned by a unit of local government other than the sponsor, it will enter into an agree- ment with that government. Except as otherwise specified by the Secretary, that agreement shall obligate that government to the same terms, conditions, and assurances that would be applicable to it if it applied directly to the FAA for a grant to undertake the noise compatibility program project. That agreement and changes thereto must be satisfactory to the Secretary. It will take steps to enforce this agreement against the local government if there is substantial non-compliance with the terms of the agreement. d. For noise compatibility program projects to be carried out on privately owned property, it will enter into an agreement with the owner of that property which includes provisions specified by the Secretary. It will take steps to enforce this agreement against the property owner whenever there is substantial non- compliance with the terms of the agreement. e. If the sponsor is a private sponsor, it will take steps satisfactory to the Secretary to ensure that the air- port will continue to function as a public-use airport in accordance with these assurances for the duration of these assurances. f. If an arrangement is made for management and operation of the airport by any agency or person other than the sponsor or an employee of the sponsor, the sponsor will reserve sufficient rights and authority to insure that the airport will be operated and maintained in accordance Title 49, United States Code, the regulations and the terms, conditions and assurances in the grant agreement and shall insure that such ar- rangement also requires compliance therewith.

15 22. Economic Nondiscrimination Grant Assurance 22(a) has been the source of significant debate within the cases discussed. It is the position of the FAA that federally-obligated airports are required to ensure the collective welfare of the aeronautical users of the airport. In essence, the airport is not required to consider the personal benefit (financial or oth- erwise) of any one specific user of the airport if it would adversely affect the collective users of the airport, and would inevitably result in an environment of economic discrimination by creating an economic advan- tage for a specific user of the airport. With that said, this does not allow the airport sponsor to ignore grant assurance 22a, or any other assurance for that matter. Rather, the airport is not required to accommodate the preferred methods of use (self-fueling in this case) just because it would be most suitable for that specific aeronautical user if it would adversely affect the collective users of the airport a. It will make the airport available as an airport for public use on reasonable terms and without unjust dis- crimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical ac- tivities offering services to the public at the airport. b. In any agreement, contract, lease, or other arrangement under which a right or privilege at the airport is granted to any person, firm, or corporation to conduct or to engage in any aeronautical activity for furnish- ing services to the public at the airport, the sponsor will insert and enforce provisions requiring the contrac- tor to- (1) furnish said services on a reasonable, and not unjustly discriminatory, basis to all users thereof, and (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. c. Each fixed-based operator at the airport shall be subject to the same rates, fees, rentals, and other charges as are uniformly applicable to all other fixed-based operators making the same or similar uses of such air- port and utilizing the same or similar facilities. d. Each air carrier using such airport shall have the right to service itself or to use any fixed-based operator that is authorized or permitted by the airport to serve any air carrier at such airport. e. Each air carrier using such airport (whether as a tenant, non tenant, or subtenant of another air carrier tenant) shall be subject to such nondiscriminatory and substantially comparable rules, regulations, condi- tions, rates, fees, rentals, and other charges with respect to facilities directly and substantially related to providing air transportation as are applicable to all such air carriers which make similar use of such airport and utilize similar facilities, subject to reasonable classifications such as tenants or non tenants and signa- tory carriers and non signatory carriers. Classification or status as tenant or signatory shall not be unrea- sonably withheld by any airport provided an air carrier assumes obligations substantially similar to those already imposed on air carriers in such classification or status. f. It will not exercise or grant any right or privilege which operates to prevent any person, firm, or corpora- tion operating aircraft on the airport from performing any services on its own aircraft with its own employ- ees [including, but not limited to maintenance, repair, and fueling] that it may choose to perform. g. In the event the sponsor itself exercises any of the rights and privileges referred to in this assurance, the services involved will be provided on the same conditions as would apply to the furnishing of such services by commercial aeronautical service providers authorized by the sponsor under these provisions. h. The sponsor may establish such reasonable, and not unjustly discriminatory, conditions to be met by all users of the airport as may be necessary for the safe and efficient operation of the airport.

16 i. The sponsor may prohibit or limit any given type, kind or class of aeronautical use of the airport if such action is necessary for the safe operation of the airport or necessary to serve the civil aviation needs of the public. 23. Exclusive Rights It is important to understand for all parties involved in “self-fueling” that any and all controls placed on the “self-fueler” must be applied in a uniform manner to all aeronautical users of the airport. This principle should be applied to all aspects of self-fueling to insure that all users of the airport are afforded an equal economic opportunity, as well as avoiding any granting (unintentional or otherwise) of an exclusive right. It will permit no exclusive right for the use of the airport by any person providing, or intending to provide, aeronautical services to the public. For purposes of this paragraph, the providing of the services at an air- port by a single fixed-based operator shall not be construed as an exclusive right if both of the following ap- ply: a. It would be unreasonably costly, burdensome, or impractical for more than one fixed-based operator to provide such services, and b. If allowing more than one fixed-based operator to provide such services would require the reduction of space leased pursuant to an existing agreement between such single fixed-based operator and such airport. It further agrees that it will not, either directly or indirectly, grant or permit any person, firm, or corpora- tion, the exclusive right at the airport to conduct any aeronautical activities, including, but not limited to charter flights, pilot training, aircraft rental and sightseeing, aerial photography, crop dusting, aerial adver- tising and surveying, air carrier operations, aircraft sales and services, sale of aviation petroleum products whether or not conducted in conjunction with other aeronautical activity, repair and maintenance of air- craft, sale of aircraft parts, and any other activities which because of their direct relationship to the opera- tion of aircraft can be regarded as an aeronautical activity, and that it will terminate any exclusive right to conduct an aeronautical activity now existing at such an airport before the grant of any assistance under Title 49, United States Code. 29. Airport Layout Plan a. It will keep up to date at all times an airport layout plan of the airport showing (1) boundaries of the airport and all proposed additions thereto, together with the boundaries of all offsite areas owned or con- trolled by the sponsor for airport purposes and proposed additions thereto; (2) the location and nature of all existing and proposed airport facilities and structures (such as runways, taxiways, aprons, terminal build- ings, hangars and roads), including all proposed extensions and reductions of existing airport facilities; and (3) the location of all existing and proposed nonaviation areas and of all existing improvements thereon. Such airport layout plans and each amendment, revision, or modification thereof, shall be subject to the ap- proval of the Secretary which approval shall be evidenced by the signature of a duly authorized representa- tive of the Secretary on the face of the airport layout plan. The sponsor will not make or permit any changes or alterations in the airport or any of its facilities that are not in conformity with the airport layout plan as approved by the Secretary and which might, in the opinion of the Secretary, adversely affect the safety, util- ity or efficiency of the airport. b. If a change or alteration in the airport or the facilities is made which the Secretary determines ad- versely affects the safety, utility, or efficiency of any federally owned, leased, or funded property on or off the airport and which is not in conformity with the airport layout plan as approved by the Secretary, the owner

17 or operator will, if requested, by the Secretary (1) eliminate such adverse effect in a manner approved by the Secretary; or (2) bear all costs of relocating such property (or replacement thereof) to a site acceptable to the Secretary and all costs of restoring such property (or replacement thereof) to the level of safety, utility, effi- ciency, and cost of operation existing before the unapproved change in the airport or its facilities.