Federal Aviation Administration Grant Assurance Compliance David Cushing, Manager, Los Angeles...

Federal AviationAdministrationGrant Assurance

Compliance

David Cushing, Manager, Los Angeles Airports District Office

Principles

&

Processes

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Airport Compliance ProgramTo enforce sponsor commitments to protect the

public’s interest in civil aviation;To ensure Surplus Properties and Airport

Improvement Program investments serve their intended purposes;

To achieve balance between proprietary rights and business goals and the public interest in the aeronautical utility;

To be convincing, consistent and legally sufficient.

FAA is constantly thinking about our principles abstractly, strategically and in practice.

September 13, 2012 ACA Fall Conference

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Our Grant Assurances are our Principles

Surplus Property Deeds are the Same

If an airport has accepted AIP funding or is otherwise obligated, (e.g. surplus property), then it must abide by certain rules.

Sponsors voluntarily agree to this rules.

Grant assurances (and deed covenants) most commonly at issue are 19, 22, 23, 24 and 29.

Revenue-Use Requirements are Federal Law

Civil Rights Requirements are Federal Law

Principles of Compliance

September 13, 2012 ACA Fall Conference 3

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Grant Assurance 19 states:

The airport and all facilities which are necessary to serve the aeronautical users of the airport … shall be operated at all times in a safe and serviceable condition...

Grant Assurance 29 states that the sponsor will:

a) keep up to date at all times an airport layout plan (ALP) of the airport…

b) eliminate any change or alteration to the airport that the Secretary determines to be adverse to the airport and inconsistent with the ALP and pay for the change.


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Grant Assurance 22 states a sponsor must/may:


a) Must make the airport available as an airport for public use on reasonable terms and without unjust discrimination

b) Must apply nondiscriminatory and substantially comparable rules, regulations, conditions, rates, fees, rentals, and other charges to airport businesses….

h) May establish reasonable, and not unjustly discriminatory, conditions on all users necessary for the safety and efficiency…

i) May prohibit or limit a type of aeronautical use if such action is necessary for the safe operation of the airport or necessary to serve the civil aviation needs of the public.


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Principles of ComplianceGrant Assurance 23 states a sponsor will NOT:

Either directly or indirectly, grant or permit any person, firm, or corporation, the exclusive right at the airport to conduct any aeronautical activities

Grant Assurance 24 states a sponsor will:

Maintain a fee & rental structure for facilities and services which will make the airport as self-sustaining as possible

Revenue Retention is Law and G.A. 25

New exceptions for proceeds of sale of private airport to public entity and some mineral revenues under special circumstances.


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Standard of Compliance

“A sponsor meets its commitments when:(1). The federal obligations are understood;(2). A program (e.g., preventive maintenance, leasing

policies, operating regulations, etc.) is in place that the FAA deems adequate to carry out the sponsor’s commitments;

(3). The sponsor satisfactorily demonstrates that such a program is being carried out; and,

(4). Past compliance issues have been addressed.”FAA Order 5190.6B, 2.8.b.


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Standard of ComplianceReal-Time Compliance Corrective Action

“The FAA generally takes punitive compliance

actions, such as withholding funds under 49

U.S.C. § 47114, when reasonable efforts have

failed to achieve voluntary compliance. [See FAA

Order 5190.6B ¶2.4.(a.)] This is because aviation

users receive direct benefits from the Federal

investments made at public use airports via grants

from the FAA to airport sponsors. …


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Standard of ComplianceNo Damages Resolution Seeking

…The FAA’s decision to withhold these funds canpotentially deprive aeronautical users of the benefitof capital improvements which may enhancesafety or expand capacity. Such a decision is notmade lightly, and this action is not used to penalizesponsors who may have unknowingly breachedtheir commitments, but corrected past errors afterbecoming aware of their full obligations.” [See Drake Aerial Enterprise, LLC v. City of Cleveland, Ohio, FAA Docket No.

16-09-02, (February 22, 2010) (Director’s Determination) at 12]


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Informal Complaints14 CFR Part 13.1

FAA Goals (Order 5190.6B, 5.4.a.):1. Evaluate the facts and identify potential sponsor

violations.2. Clarify the rights and responsibilities of the

sponsor and the complainant.3. Offer assistance to resolve the dispute in a manner

consistent with the sponsor’s assurances.4. Provide the sponsor with the opportunity to

comply with its federal obligations voluntarily when a violation is identified.


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Formal Complaints

• 14 CFR Part 16 is a formal process• Good faith efforts prior to filing• Complainant must have standing• Appeal process• Threshold issue: is the sponsor in violation of its

federal obligations?• NO DAMAGES• It’s not about what’s fair to complainant.• It’s about whether the sponsor is within compliance.


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Formal ComplaintsInitial Complaint

20 days Docketing Notice

20 days Answer (address the facts and the allegation)

10 days Reply

10 days Rebuttal (address changed argument conglomeration)

120 days Director’s Determination

30 days for Appeal (point out specific error)

20 days for Appeal Reply (just agree with Director!)

60 days for Final Agency Decision

60 days for Court of Appeals appeal.


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Formal ComplaintsLessons for Parties

Do• Take it seriously• Understand the process• Respond to each allegation• Tell us the story• Recognize your obligations• Send pertinent supporting documentationDon’t• Call names• Send a copy of the grant assurances• Ignore deadlines• Send unnecessary exhibits• Bring up unrelated issues• Get off track – focus on your obligations• Be afraid to admit past mistakes that you have fixed


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Formal ComplaintsLessons for FAAAs a result, after 10 years of Part 16, the FAA has

initiated a Compliant Process Review InitiativeIn 2011, we’re looking into our informal and formal

processes and we’re listening to our stakeholders, including ACI.

We’re considering rulemaking.

http://www.faa.gov/airports/airport_compliance/

http://www.faa.gov/about/office_org/headquarters_offices/arp/offices/aco/aco100/

http://part16.airports.faa.gov/ [email protected]


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Federal Aviation Administration Grant Assurance Compliance David Cushing, Manager, Los Angeles...

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