Grant Assurance Compliance

1. Grant Assurance Compliance Principles & Processes David Cushing, Manager, Los Angeles Airports District Office

2. Airport Compliance Program To enforce sponsor commitments to protect the public’s interest in civil aviation; To ensure Surplus Properties and Airport Improvement Program investments serve their intended purpose; 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.

3. Our Grant Assurances are our Principles Surplus Property Deeds are the Same Principles of Compliance • 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 3

4. Principles of Compliance 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: • keep up to date at all times an airport layout plan (ALP) of the airport… • 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. 4

5. Principles of Compliance Grant Assurance 22 states a sponsor must: a) Make the airport available as an airport for public use on reasonable terms and without unjust discrimination h) Apply nondiscriminatory and substantially comparable rules, regulations, conditions, rates, fees, rentals, and other charges 5

6. Principles of Compliance Grant 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 and rental structure for the facilities and services at the airport which will make the airport as self-sustaining as possible Revenue Retention us Law and G.A. 25 6

7. 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.

8. 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. …

9. Standard of ComplianceNo Damages Resolution Seeking …The FAA’s decision to withhold these funds can potentially deprive aeronautical users of the benefit of capital improvements which may enhance safety or expand capacity. Such a decision is not made lightly, and this action is not used to penalize sponsors who may have unknowingly breached their commitments, but corrected past errors after becoming aware of their full obligations.” [SeeDrake Aerial Enterprise, LLC v. City of Cleveland, Ohio, FAA Docket No. 16-09-02, (February 22, 2010) (Director’s Determination) at 12]

10. Informal Complaints14 CFR Part 13.1 FAA Goals (Order 5190.6B, 5.4.a.): • Evaluate the facts and identify potential sponsor violations. • Clarify the rights and responsibilities of the sponsor and the complainant. • Offer assistance to resolve the dispute in a manner consistent with the sponsor’s assurances. • Provide the sponsor with the opportunity to comply with its federal obligations voluntarily when a violation is identified.

11. 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.

12. Formal Complaints Initial 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.

13. 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 documentation Don’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

14. Formal ComplaintsLessons for FAA As a result, after 10 years of Part 16, the FAA has initiated a Compliant Process Review Initiative In 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/Dave.Cushing@FAA.gov

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