Understanding FAA Grant Assurance Obligations Volume 3: Research Report (2018)

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ACRP Project 03-38 (FY 2015) Understanding FAA Grant Assurance Obligations Task 8 Research Report Chapter 2 2 C H A P T E R 2 , R E S E A R C H R E S U L T S — F A A A N D S T A T E B L O C K G R A N T S T A F F This Chapter describes the process and results of the research effort in order to gather information on Grant Assurance requirements from FAA staff and the staff of selected State Block Grant participating states. The primary means of gathering information was through telephone and in-person interviews. One FAA Regional Airport Compliance Specialist also provided selected data from the regional compliance database. The next section of this Chapter describes the research/interview process, including the interviewees and the subject areas discussed. The section thereafter provides a summary of the interview results organized by subject areas. Section 2.1 The Research/Interview Process 2.1.1 Interviews Conducted Interviews with FAA staff included interviews with the FAA Headquarters Airports Compliance Division staff, current and former Regional Airports Division Airport Compliance Specialists, Airport District Office (ADO) managers and staff, as well as State Block Grant managers and staff. The research team conducted an in-person group interview with the Deputy Airport Compliance Division Manager and six Compliance Specialists. Regional Airport Compliance Specialist interviews included the following:  Separate telephone interviews with the two current FAA Southern Region Compliance Specialists;  A telephone interview with one of the current FAA Western Pacific Region Compliance Specialists, who is also a national resource expert; and  A joint telephone interview with the current and former FAA Northwest Mountain Region Compliance Specialists. ADO interviews included the following:  An in-person interview with the FAA Harrisburg ADO manager and two of her staff, all of whom have recent experience addressing Grant Assurance compliance;  A telephone interview with the Atlanta ADO manager, who is also the former FAA Southern Region Compliance Specialist; and  A telephone interview with the Los Angeles ADO manager, who is also a former FAA Airport Compliance Division Compliance Specialist. Block grant state interviews included the following:  An in-person interview with the Pennsylvania Department of Transportation (PennDOT) Director of Aviation;

ACRP Project 03-38 (FY 2015) Understanding FAA Grant Assurance Obligations Task 8 Research Report Chapter 2 3  A telephone interview with the Wisconsin Aeronautics Bureau State Block Grant Airport Compliance Manager;  A telephone interview with the Michigan Department of Transportation (MIDOT) Office of Aeronautics Airport Inspector and Compliance Specialist; and  A telephone interview with the Texas Department of Transportation (TEXDOT) Aviation Division Airport Compliance Specialist. All interviewees were provided with a list of interview questions in advance, with the goal of producing more accurate and informative responses. 2.1.2 Subjects Discussed Subjects addressed in the interviews included the following:  The frequency of questions about compliance arising informally;  FAA/state staff perceptions on the level of understanding of the Grant Assurances by airport staff as well as airport users and tenants, including the assurances that are hardest and easiest to understand;  Grant Assurances that most often arise in discussions with airport management, governing bodies, and airport users/tenants;  Most helpful resources and references;  Experience with 14 CFR Part 13 and 14 CFR Part 16 investigations; and  Recommendations for structure and content of the Guidebook. Section 2.2 Summary of Interview Results This section summarizes the interview results for each of the subject areas covered in the interviews. 2.2.1 Frequency of Grant Assurance Questions There is a wide variety in the frequency that individual offices receive questions. Regional Compliance Specialists reported having the most frequent questions. The ADOs, Block Grant State Aviation Offices, and FAA Headquarters Compliance Specialists reported a generally lower frequency of questions. Regional Compliance Specialists reported regular inquiries — with one region reporting that it received questions almost every day, while another region reported that it received too many questions to track. Considering that the focus of their jobs is on Grant Assurance compliance, this result is not surprising. There is also a wide variation among the ADOs and Block Grant State aviation offices. To the extent that questions arise less frequently at this level than the regional level, this outcome may be the result of the lower number of airports that ADOs are responsible for and the broader range of responsibilities that ADOs have compared to Regional Compliance Specialists. The lower frequency of questions directed to Headquarters Compliance Specialists may be the result of FAA’s policy, which encourages airports and users to raise questions initially at the local ADO level.

ACRP Project 03-38 (FY 2015) Understanding FAA Grant Assurance Obligations Task 8 Research Report Chapter 2 4 2.2.2 Level of Understanding of Grant Assurances There was no unanimity among the FAA and block grant staff on easy or hard to understand Grant Assurances for either airports or airport users. In fact, some opinions were directly contradictory. For example, one ADO manager considers Grant Assurance 22(a), Economic Nondiscrimination, to be well understood by airport users. Another ADO manager considers it hard for airport users/tenants to understand the same Grant Assurance. Similarly, some interviewees identified Grant Assurance 29, Airport Layout Plans, as easy to understand, while others identified certain aspects of it as difficult. Nevertheless, some patterns emerged from the interviews, which are as follows: 1. Regardless of whether interviewees identified Grant Assurances as hard or easy to understand, they focused on a small group of the assurances, primarily Grant Assurances 22, Economic Nondiscrimination; 23, Exclusive Rights; 24, Fee and Rental Structure and 25, Airport Revenues. Grant Assurances 5, Preserving Rights and Powers, 19; Operations and Maintenance; and 20, Hazard Removal and Mitigation, also generated multiple references, but at a lower rate. The repeated identification of these assurances may indicate that these are the Grant Assurances for which compliance questions or disputes most frequently arise. 2. Multiple interviewees expressed the view that airports are generally aware of the Grant Assurance obligations, but do not fully grasp the scope and details of the requirements until a specific question or problem arises. A few of the interviewees believed that compliance problems arise in some cases because of some airports’ lack of concern or care about compliance. 3. On the airport user/tenant side, multiple interviewees noted the tendency of users/tenants to approach the FAA when they are unhappy with their treatment by the airport and are looking for any means possible to get their wishes. Their failure to understand that the Grant Assurances are not intended to protect private interests, but rather are intended to protect the public interest, was noted more than once. 4. Grant Assurance 22 was identified most often as hard to understand for both airports and airport users/tenants. Grant Assurances 23 and 24 (or specific details of the requirements) were also frequently identified as hard to understand for airports or airport users/tenants. 2.2.3 Grant Assurances That Arise Most Often Although the interview questions listed specific requirements or issues, responses ranged from listing Grant Assurances by number to situations that frequently raise compliance questions, e.g. non-aeronautical uses of hangars. A core group of assurances was identified as regularly being the subject of questions from airports and airport users by many interviewees. Out of the 39 Grant Assurances, airport questions typically involve the following six:  Grant Assurance 22, Economic Nondiscrimination  Grant Assurance 23, Exclusive Rights  Grant Assurance 24, Fee and Rental Structure  Grant Assurance 19, Operation and Maintenance

ACRP Project 03-38 (FY 2015) Understanding FAA Grant Assurance Obligations Task 8 Research Report Chapter 2 5  Grant Assurance 20, Hazard Removal and Mitigation  Grant Assurance 21, Compatible Land Use Multiple FAA offices or Block Grant States also reported receiving airport questions on Grant Assurance 25, Airport Revenues and Grant Assurance 29, Airport Layout Plans. Grant Assurance 22 was consistently identified as a regular subject of questions from airport users/tenants. There was more variation among the FAA offices and Block Grant States about other Grant Assurances that generate airport user/tenant questions. However, the following were identified by multiple offices.  Grant Assurance 23, Exclusive Rights  Grant Assurance 25, Airport Revenue  Grant Assurance 19, Operation and Maintenance It is worth noting that most of the Grant Assurances identified as generating frequent or regular questions were also the ones identified in the previous section as being hard to understand, including Grant Assurances 22, 23, 24, 25, 19 and 20. 2.2.4 Most Helpful Resources and References Almost all interviewees reported relying on the Compliance Order to help them understand the Grant Assurances. Grant Assurance text and specific Part 16 decisions were also cited frequently. Some ADO interviewees also reported relying on Compliance Specialists, and one Block Grant State referred to the Airport Owners and Pilots Association (AOPA) Guidebook on Minimum Standards and ACRP Legal Research Digest (LRD) 21, Compilation of DOT and FAA Airport Legal Determinations and Opinion Letters Through December 2012. When advising airports and airport user/tenants on available resources, many offices reported first trying to understand the specific issues or situations that triggered an inquiry. With this understanding, they referred the individuals to the relevant sections of the Compliance Order. A few offices may have provided links or copies to Part 16 decisions that addressed similar circumstances. Others referred the individuals to specific policy statements or guidebooks that were relevant to their issue, e.g. the Airport Revenue Use Policy and the Guidebook on Air Carrier Incentives. While the Compliance Order is regularly relied upon, many interviewees noted that its length (over 500 pages) could limit its utility. Further, even interviewees that rely on Part 16 decisions noted that the lack of search functionality in the FAA Part 16 database limits the usefulness of Part 16 determinations as a resource. 2.2.5 Experience with Part 13 and Part 16 Investigations The interview with Headquarters Staff focused on Part 16 experiences. However, because of the number of Part 16 determinations completed and the Team’s access to records of these determinations, there was not an extensive discussion of the frequency of Part 16 investigations or the issues included in those investigations. Nonetheless, the Compliance Division staff confirmed that most Part 16 complaints are dismissed with no finding of violation. However, they did note that the number of decisions that result in recommendations for corrective action is increasing.

ACRP Project 03-38 (FY 2015) Understanding FAA Grant Assurance Obligations Task 8 Research Report Chapter 2 6 Interviews with ADO staff, Regional Compliance Specialists, and State Block Grant staff focused on Part 13 experience and other informal investigations and informal resolution efforts. Multiple interviewees stated that Grant Assurance 22 was most often involved, or provided data showing this to be the case. As well, a number of offices discussed agency initiated investigations. For these investigations, there was not a predominant requirement or assurance, but Grant Assurances 19-21 (Operation and Maintenance, Hazard Removal and Mitigation and Compatible Land Use, respectively) was mentioned multiple times, as was Grant Assurance 25 (Airport Revenues). One change in FAA policy was discussed. In the past, the FAA would routinely find a constructive grant of an exclusive right in violation of Grant Assurance 23 (Exclusive Rights) whenever it found a denial of reasonable access under Grant Assurance 22 (Economic Nondiscrimination) based on the exclusion of the complainant from the airport. Currently, the FAA does not routinely equate a denial of access with a prohibited exclusive right. Rather, the airport’s actions must have the effect of limiting competition at the airport in the circumstances as they exist before the FAA will find a violation of Grant Assurance 23. 2.2.6 Recommendations on Guidebook Structure and Content All interviewees agreed that the Guidebook could be a valuable tool for airport staff and stakeholders. Many stressed the importance of providing a presentation or briefing material that could be readily used by airport staff to brief new management, governing bodies and other local government officials. There was a general agreement that inclusion of frequently asked questions or some form of Q & A discussion would be a useful element of the Guidebook, but should not be the sole means of presenting the information. There was also agreement that links to source or reference documents would be valuable and that two of the biggest drawbacks to the current FAA Airport Compliance Manual, Order 5190.6B, are its length and limited electronic search functionality. Interviewees stressed the need for the Guidebook to be shorter and have improved search functionality. There were fewer consensuses on the organization of the Guidebook. Some interviewees supported organizing the Guidebook around common issues — such as leasing practices, financial requirements etc. Others suggested addressing the Grant Assurances sequentially from Grant Assurance 1 to Grant Assurance 39. On the information to include in the summary pages for each Grant Assurance, most interviewees recommended including the Grant Assurance text and links or cross-references to the relevant portions of the Compliance Order. There were also multiple recommendations for a discussion of other assurances that may apply in common with the specific Grant Assurance being summarized. For those interviewees who identified specific assurances as warranting special attention in the Guidebook, Grant Assurance 22, Economic Nondiscrimination (and its subsidiary requirements) and Grant Assurance 23, Exclusive Rights, were mentioned most often. The right of aircraft owners and operators to self-fuel and self-service their aircraft (incorporated in Grant Assurance 22) was mentioned multiple times, as were Grant Assurance 24, Fee and Rental Structure, and Grant Assurance 25, Airport Revenues. Two Part 16 determinations, in particular, were recommended by multiple interviewees as providing useful examples of actions that can lead to a finding of non-compliance. Valley Aviation Servs., LLP v.

ACRP Project 03-38 (FY 2015) Understanding FAA Grant Assurance Obligations Task 8 Research Report Chapter 2 7 City of Glendale, Ariz. FAA No. 16-09-06, involved the airport’s practices on permitting the use of hangars for non-aeronautical storage. Bodin v. City of Santa Clara, Cal., FAA No. 16-11-06, involved denial of access for commercial skydiving operations. Other determinations identified in the interviews involved one or more of the following issues:  Unreasonable minimum standards  Denial of access for specialized aeronautical activities, such as skydiving or ultralight aircraft operation  Denial of the right of aircraft owners/operators to self-fuel and self-service their aircraft. Each of these listed issues involves some aspect of Grant Assurance 22.