July-August_2021 - 13

LEGAL MATTERS
is serviceable and usable with ordinary
day-to-day maintenance. " FAA Order
5190.6B(4.4). It should be noted that the
useful life does not shorten because the
improvement was allowed to deteriorate.
It is up to the FAA's regional airports
divisions to determine if the useful life of
a specific improvement has expired. If an
airport has a question as to the length of
the useful life of a particular improvement,
the airport can reach out to the FAA's
regional airport division responsible for
the region where the airport is located.
" There are three Grant Assurances for
which the obligation continues without
limit as long as the airport is used as a
public use airport. " FAA Order 5190.6B
(4.3). The three grant assurances that
continue without limit are Exclusive
Rights (Grant Assurance 23); Airport
Revenues (Grant Assurance 25); and Civil
Rights (Grant Assurance 30). " In cases
where land was acquired with federal
assistance, the federal obligations relating
to the use, operation, and maintenance
of the airport generally remain in
perpetuity. " FAA Order 5190.6B (4.4). As
long as an airport is federally obligated,
it must abide by the conditions and
obligations it accepted when it received
the federal assistance.
Among other
things,
the grant
assurances require that the airport (1)
be maintained in accordance with
applicable standards, (2) ensures there is
no unreasonable discrimination among
users or tenants; (3) charges fair and
reasonable rates that make the airport as
self-sustaining as possible; (4) prohibits
the granting of exclusive rights; and (5)
requires that airport revenue be used
for " the capital or operating costs of
the airport, the local airport system, or
other local facilities owned or operated
by the airport owner or operator and
directly and substantially related to
the air transportation of passengers or
property. " FAA Order 5190.6B(15.9).
These grant obligations are the reason why
airport leases contain clauses including:
making any lease subordinate to the
grant agreements, prohibiting exclusive
rights, creating revisionary interests in
improvements, and limiting terms and
options. It is also the reason why most
airports have minimum standards.
The FAA's airports district offices
and regional airports divisions are
charged with responsibility for ensuring
that the airports comply with their
obligations. The FAA monitors and
enforces compliance in the following
ways: (1) educating airport managers and
personnel; (2) surveillance/monitoring
for compliance; and (3) investigation of
potential violations.
The FAA's educational efforts
include: (1) offering assistance to airports
in maintaining and achieving compliance
with the federal obligation; (2) meeting
with sponsors when they receive grants
or transfers of property to make sure
they understand the obligations; and (3)
offering periodic seminars and courses
for airport personnel and encouraging
participation. Additionally, any federally
obligated airport may reach out to the
FAA's regional airports division and
seek advice with respect to maintaining
compliance.
The
FAA's survei l lance and
monitoring for compliance includes: (1)
airport site visits; (2) information requests
from the airport, other FAA offices, state
agencies, and airport tenants; and (3)
reviewing the required reports submitted
by airports.
The FAA may learn of a potential
violation through its own monitoring
efforts or it could be alerted to the
potential violation through a request
from the airport for guidance, an informal
complaint made through the process
outlined in 14 CFR Part 13 (a " Part
13 Complaint " ) or a formal complaint
through the process set forth in 14 CFR
Part 16 (a " Part 16 Complaint " ).
Pursuant to 14 CFR §13.11, any
person who knows of a violation of the
grant assurances may make a report to
the FAA. The report is usually made to
the compliance specialist in the regional
airports division. The party making
the report does not necessarily need to
be impacted by the violation in order
to report
the violation. The report
may be made verbally or in writing.
Once received, the FAA will provide
the airport with an opportunity to
respond. The FAA may request further
information and materials from either
the airport or the complaining party
in order to identify whether a violation
has occurred. The FAA will clarify the
rights and responsibilities between the
parties and offer assistance in resolving
the matter in a fashion consistent with
compliance. If a mutually agreeable
resolution consistent with the grant
obligations is not possible, the FAA may
issue a preliminary determination. If
the preliminary determination finds no
violation, the matter will be closed. If
the preliminary determination results
in a finding of a violation, however, the
FAA will request that the airport provide a
corrective action plan to correct the areas
of non-compliance. If the FAA cannot
resolve the matter through reasonable
efforts at voluntary compliance, it may
exercise additional remedies including
proceeding with a Part 16 Complaint.
The FAA requires that the Part 13
Complaint be addressed in 120 days.
Notwithstanding that, the process usually
takes longer although not as long as the
more formal Part 16 process which often
takes several years.
The process for a Part 16 Complaint
is more formal, and strict adherence to
the regulations is required. Only parties
who have been directly impacted by the
airport's alleged non-compliance are
permitted to file a complaint. Additionally,
the complaining party must engage in a
good faith attempt to resolve the matter
with the airport prior to submitting a
Part 16 Complaint. Failure to strictly
adhere to the regulations will result
in dismissal of the Part 16 Complaint.
Upon receipt of a Part 16 Complaint
that meets the requirements set forth in
the regulations, the FAA will request
that the airport provide a formal written
response. Thereafter, the FAA will review
and conduct any additional investigation
deemed necessary before issuing a formal
determination. In the event that the FAA
finds a violation, the FAA will request that
the airport engage in corrective measures
designed to restore compliance. If the
airport refuses to engage in voluntary
corrective measures, the FAA can exercise
remedies including withholding federal
funding or commencing legal action
aimed at achieving compliance.
The grant assurances can be simply
viewed as strings attached to the federal
funds that are distributed to airports
across the country annually. They ensure
a level playing field for competition
among all airport users and tenants and
also provide recourse when an airport
fails to comply. 
JULY/AUGUST 2021 \ AVIATIONPROS.COM / 13
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