Regulatory Alert: FAA Releases Guidance on Section 163 Implications for Airport Project Reviews
December 17, 2020
This week the Federal Aviation Administration (FAA) released internal guidance on how the agency plans to review requests from airports that want to propose changes to their airport layout plans (ALP), particularly for non-aeronautical development purposes, in light of recent restrictions on FAA's authority to regulate the use of airport property. The guidance implements a provision in the 2018 FAA reauthorization bill, commonly known as 'Section 163,' that precluded the agency from regulating an airport's non-aeronautical property transactions except where there may be impacts on the safety of aviation operations or people on the ground, among other reasons. FAA indicated that the internal memorandum was designed to provide airports and other stakeholders an understanding of how the agency will evaluate ALP reviews and projects that may be implicated by the new limitations under Section 163.
FAA's internal memorandum, 'Instructions to Airports District Offices and Regional Office of Airports Employees Regarding Airport Layout Plan Reviews and Projects Potentially Affected by Section 163 of the FAA Reauthorization Act of 2018,' has not been distributed widely. FAA indicated that they plan to make the document available on its website in the near term. AAAE is working with FAA to set up an opportunity for the agency to brief our members on the new guidance and answer questions.
Background. For years, AAAE and airports have urged FAA to streamline and reduce regulation of non-aeronautical development on non-federal land, particularly in the environmental review process. In many cases airports have been forced to endure lengthy FAA review periods for ALP amendments even though proposed changes are for non-aeronautical development on land acquired without federal funding. Under Section 163 of the 2018 FAA reauthorization bill, Congress, at the urging of AAAE and ACI-NA, limited FAA's authority to regulate an airport's non-aeronautical property transactions except in certain circumstances.
The purpose of FAA's internal memorandum is to provide guidance to Airports District Offices, Regional Offices, airports, and other stakeholders on how FAA has implemented Section 163 of the 2018 FAA reauthorization bill, including the process by which FAA will evaluate requests from airports to change an ALP, change land use from aeronautical to non-aeronautical, or dispose of airport-owned land.
Guidance on ALP Change Reviews. One important takeaway from the guidance is FAA's indication that their authority to approve an ALP change is limited to three 'zones of interest' that were identified in Section 163. Specifically, the statute indicated that FAA can only review and approve or disapprove those portions of an ALP that (a) materially impact the safe and efficient operation of aircraft at, to, or from the airport; (b) adversely affect the safety of people or property on the ground adjacent to the airport as a result of aircraft operations; or (c) adversely affect, to a significant extent, the value of prior Federal investment. If a project does not affect one of these three zones, then FAA will accept rather than approve the ALP. The document provides further details on determining when a project implicates one of these zones.
Other Guidance Highlights. FAA's memorandum also addresses two other important areas. First, Section 163 narrowed the scope of FAA's authority over airport land uses by generally prohibiting FAA from regulating, directly or indirectly, airport land except in limited circumstances. The guidance provides a clearer indication when a release of aeronautical use and other grant obligations is required before an airport can move forward with a change in airport land use or disposal of airport land.
Second, FAA clarified when an environmental review is required under the National Environmental Policy Act (NEPA) for projects impacted by Section 163. The agency indicated that a NEPA review is required (a) when a project affects one of the three zones of interest described above and FAA has authority to approve an ALP; or (b) when the agency's release of obligations for the property associated with the project is needed. Additional details regarding the effects of Section 163 on NEPA compliance are provided in the guidance.
If you have any questions, please contact Justin Barkowski at justin.barkowski@aaae.org.
This week the Federal Aviation Administration (FAA) released internal guidance on how the agency plans to review requests from airports that want to propose changes to their airport layout plans (ALP), particularly for non-aeronautical development purposes, in light of recent restrictions on FAA's authority to regulate the use of airport property. The guidance implements a provision in the 2018 FAA reauthorization bill, commonly known as 'Section 163,' that precluded the agency from regulating an airport's non-aeronautical property transactions except where there may be impacts on the safety of aviation operations or people on the ground, among other reasons. FAA indicated that the internal memorandum was designed to provide airports and other stakeholders an understanding of how the agency will evaluate ALP reviews and projects that may be implicated by the new limitations under Section 163.
FAA's internal memorandum, 'Instructions to Airports District Offices and Regional Office of Airports Employees Regarding Airport Layout Plan Reviews and Projects Potentially Affected by Section 163 of the FAA Reauthorization Act of 2018,' has not been distributed widely. FAA indicated that they plan to make the document available on its website in the near term. AAAE is working with FAA to set up an opportunity for the agency to brief our members on the new guidance and answer questions.
Background. For years, AAAE and airports have urged FAA to streamline and reduce regulation of non-aeronautical development on non-federal land, particularly in the environmental review process. In many cases airports have been forced to endure lengthy FAA review periods for ALP amendments even though proposed changes are for non-aeronautical development on land acquired without federal funding. Under Section 163 of the 2018 FAA reauthorization bill, Congress, at the urging of AAAE and ACI-NA, limited FAA's authority to regulate an airport's non-aeronautical property transactions except in certain circumstances.
The purpose of FAA's internal memorandum is to provide guidance to Airports District Offices, Regional Offices, airports, and other stakeholders on how FAA has implemented Section 163 of the 2018 FAA reauthorization bill, including the process by which FAA will evaluate requests from airports to change an ALP, change land use from aeronautical to non-aeronautical, or dispose of airport-owned land.
Guidance on ALP Change Reviews. One important takeaway from the guidance is FAA's indication that their authority to approve an ALP change is limited to three 'zones of interest' that were identified in Section 163. Specifically, the statute indicated that FAA can only review and approve or disapprove those portions of an ALP that (a) materially impact the safe and efficient operation of aircraft at, to, or from the airport; (b) adversely affect the safety of people or property on the ground adjacent to the airport as a result of aircraft operations; or (c) adversely affect, to a significant extent, the value of prior Federal investment. If a project does not affect one of these three zones, then FAA will accept rather than approve the ALP. The document provides further details on determining when a project implicates one of these zones.
Other Guidance Highlights. FAA's memorandum also addresses two other important areas. First, Section 163 narrowed the scope of FAA's authority over airport land uses by generally prohibiting FAA from regulating, directly or indirectly, airport land except in limited circumstances. The guidance provides a clearer indication when a release of aeronautical use and other grant obligations is required before an airport can move forward with a change in airport land use or disposal of airport land.
Second, FAA clarified when an environmental review is required under the National Environmental Policy Act (NEPA) for projects impacted by Section 163. The agency indicated that a NEPA review is required (a) when a project affects one of the three zones of interest described above and FAA has authority to approve an ALP; or (b) when the agency's release of obligations for the property associated with the project is needed. Additional details regarding the effects of Section 163 on NEPA compliance are provided in the guidance.
If you have any questions, please contact Justin Barkowski at justin.barkowski@aaae.org.
