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Airport Law Alert: Compliance Manual Changes

On Friday, December 3, 2021, the FAA published updates to several chapters of its most comprehensive guidance document for obligated airport sponsors: Order 5190.6B, Airport Compliance Manual (Sept. 2009) (the Manual).  The complete revised document, styled as “Change 1 to Order 5190.6B,” is available here

Specifically, Change 1 revises these chapters of the Manual:

  • Chapter 1, Scope and Authority
  • Chapter 9, Unjust Discrimination Between Aeronautical Users
  • Chapter 10, Reasonable Commercial Minimum Standards
  • Chapter 11, Self-Service
  • Chapter 23, Reversions of Airport Property

While the FAA stated that “most of the changes are editorial,” it acknowledged that some revisions are intended to reflect substantive policy changes from 2009 to the present.  This article summarizes these and other revisions that Change 1 makes to the Manual.  Airport sponsors should take care to review these changes closely, as they reflect FAA policy and could potentially affect many areas of a sponsor’s airport management and operations.

Below is a brief summary of the revisions to each of the five Manual chapters reflected in Change 1.

Chapter 1 - Scope and Authority

Discusses the Manual’s purpose, the history of the FAA, and the nature of the federal airport obligations and the FAA’s Airport Compliance Program.

Most of the changes to this chapter are editorial, but several are significant.  Change 1 lays the groundwork for a potentially significant future revision by adding a new paragraph 1.11, which concerns Section 163 of the 2018 FAA Reauthorization Act.  The new paragraph merely states that Section 163 “narrowed the scope of the FAA authority over airport land uses.”  However, the introduction to Change 1 explains that “Section 163(a) will be more fully discussed in a future update” to the Manual, suggesting that a coming revision will build out paragraph 1.11.

Change 1 also qualifies the statement in the Manual’s previous version that a sponsor “must prepare a benefit-cost analysis” to receive Airport Improvement Program (AIP) funding for airport capacity development projects.  The Manual’s new version provides that a sponsor must do so “in certain cases,” without further clarification (¶ 1.7).

Change 1 notes that Congress occasionally establishes special-purpose airport funding programs in addition to AIP (citing the 2009 American Recovery and Reinvestment Act (ARRA) and the CARES Act), and that such programs will carry varying grant obligations (¶ 1.9(a)).  The revision also adds that 49 U.S.C. § 47107 is not the only statutory source of federal grant assurances and sponsor requirements (¶ 1.9(a)).  And the revision replaces the claim that “there is no obligation for the FAA to release” a sponsor from a federal obligation with the observation that “[t]he FAA exercises its discretion when releasing a sponsor from any of its obligations” (¶ 1.10(e)).

Chapter 9 - Unjust Discrimination Between Aeronautical Users

Addresses issues concerning making an airport available to aeronautical users on reasonable terms and without unjust discrimination. 

Most significantly, the new guidance allows a sponsor to enter into a management agreement with a third party for federally funded apron, and, in limited circumstances, permits the lease of such space (¶ 9.7(d)).  But the revision makes clear that federally funded apron and other public-use areas should be made available for public use on reasonable and not unjustly discriminatory terms.

Change 1 also adds that it is the responsibility of FAA airports district offices and regional airports divisions to advise sponsors “in accordance with this guidance,” reflecting the FAA’s continued interpretation of the Manual as a semi-regulatory document, rather than mere internal guidance.

The revised chapter replaces a discussion of complaints about airport rates and charges with one about air carrier incentives programs (¶ 9.2(e)).  Change 1 also modifies paragraph 9.4 to more strongly state that sponsors “should” (rather than are “encouraged to”) include a subordination clause in their contracts.  And Change 1 includes additional examples to illustrate various concepts, such as permissibly different rates for similar users (¶ 9.5(c)), differences in value of tenant facilities and services (¶ 9.5(d)), and escalation provisions (¶ 9.5(e)).

Significantly, Change 1 revises the previous version’s blanket statement that FBOs making the same or similar uses of airport facilities should be charged the same rates; the revision qualifies that statement with the phrase “absent some other distinguishing characteristic” and thus brings the statement in line with FAA guidance.  The revision also cites unattainable insurance requirements as an example of an unreasonable minimum standard (¶ 9.6(d)).  And the revision observes that where an airport does not have an FBO, an incentive during a startup period may be reasonable (¶ 9.6(e)); the prior provision only applied to “new airports.”  In addition, Change 1 clarifies the sponsor’s rights to exclusively provide some or all aeronautical services (¶ 9.6(g)).

Finally, Change 1 clarifies that an airport sponsor may refuse to lease space where the sponsor has a “reasonable and not unjustly discriminatory reason” for such refusal (¶ 9.7(a)), but that if neither the sponsor nor an FBO at the airport can provide adequate aeronautical services, a user may not be denied the opportunity to do so on reasonable terms at its own expense (¶ 9.7(b)).

Chapter 10 - Reasonable Commercial Minimum Standards

Concerns a sponsor’s authority to set commercial minimum standards and airport regulations.  Change 1 makes several substantive revisions to the chapter.  Paragraph 10.5(f) now clarifies that Specialized Aviation Service Operations (SASOs) should only be required to follow those airport minimum standards that are reasonable and relevant to them, rather than having to follow, “without adequate justification,” all minimum standards that pertain to FBOs.  That paragraph also now states that “[s]ponsors are not required to permit a SASO for fuel sales alone.”  While not prohibiting a sponsor from having a SASO that only provides fuel, the change indicates that sponsors need not allow such operations.

A new paragraph 10.5(g), Independent Operators, states that a sponsor “should” require persons or entities that provide an aeronautical service on the airport without an airport lease to obtain a permit or license from, and pay a fee to, the airport for their activities.  

Perhaps most significantly, Change 1 adds paragraph 10.7, Illegal Air Charters, which asks sponsors to notify the FAA of suspected illegal air-charter operations but not to investigate the operations themselves.  The paragraph also outlines certain provisions that sponsors have included in airport leases and licenses to prevent illegal commercial aeronautical activities.

Sponsors should note that the FAA has added examples throughout the chapter that are sometimes very specific and may therefore implicate a sponsor’s particular concerns.  Nonetheless, the examples are consistent with how the FAA has viewed matters in the past.

Chapter 11 - Self-Service

Concerns airport sponsors’ obligation to afford aeronautical users a reasonable opportunity to perform self-service on their own aircraft.  The updates to this chapter are largely editorial; however, several more-substantive items are notable.

Change 1 adds a more robust description of the activities that are considered self-service, which include tying down, adjusting, refueling, cleaning, performing repair and preventative maintenance, and otherwise taking care of one’s own aircraft, provided that the aircraft operator or its employees perform these tasks (¶ 11.2).  Change 1 specifically notes the provision of alternative approved fuels, such as ethanol-free premium automotive gasoline, as within the scope of self-service.  Change 1 also adds new references to 14 C.F.R. Part 43 and Advisory Circular 43-12A, Preventive Maintenance, as defining the scope of permissible self-service maintenance activities.

The Manual previously established a bright-line rule, reflected in the FAA’s application of AIP grant assurances, prohibiting aircraft operators from contracting out self-service activities to third parties—that is, the Manual’s previous version required that self-service activities be conducted by the operator of the aircraft or bona fide employees of such operator.  However, Change 1 indicates this is only “generally” the case and instructs sponsors to “request clarifying information to confirm that sufficient interest in and control over the aircraft is maintained [and] the aircraft operator retains sufficient control over third-party contracted employees for the purposes of self-servicing” (¶ 11.4).  Change 1 indicates, “FAA may, upon request, assist the airport sponsor in evaluating sufficient control for the purposes of evaluating self-servicing by a contracted third party.”

Change 1 may also be read to limit the scope of permissible sponsor-imposed regulations concerning self-service.  Previously, the Manual allowed sponsors to establish reasonable and not unjustly discriminatory rules restricting equipment, personnel, or practices that would be “unsafe, unsightly, detrimental to the public welfare, or that would affect the efficient use of airport facilities by others.”  However, Change 1 strikes “unsightly” from this list of interests (¶¶ 11.5(e) and 11.7).  It is not clear what FAA intended by this change.

Finally, Change 1 suggests self-service activities conducted by air carriers may present different issues than those applicable to general aviation that and guidance applicable to self-service operations by general aviation users may be inapplicable to air carriers’ self-service (¶ 11.11).

Chapter 23 - Reversions of Airport Property

Concerns the conditions and process for reversion of airport property back to the United States.  These updates appear largely editorial and intended to improve readability.  However, sponsors should note that, per Change 1, the FAA or another federal agency must now conduct environmental due diligence prior to acceptance of a reversion of obligated property back to the federal government (¶ 23.9).  In addition, Change 1 eliminates the requirement that the FAA “must” give grantees an opportunity to reconvey property to cure a default under the applicable deed—that former requirement has been changed to the strong suggestion that the FAA “should” allow a grantee such an opportunity (¶ 23.11).  In voluntary reconveyances, grantees may now provide title insurance in lieu of an attorney’s opinion regarding the validity of title (¶ 23.11(c)).  Finally, Change 1 adds a new Appendix Y to the Manual, which is a Sample Notice of Reversion of Property and Revestment of Title to the United States.

This article provides a high-level overview of recent changes to the FAA’s Airport Compliance Manual.  It is not intended to be a comprehensive analysis of the Manual or the recent modifications, nor should it be interpreted as applying to any particular factual situation.  For more information or to discuss a specific set of circumstances, please contact the Kaplan Kirsch & Rockwell attorney(s) who normally represents you or any member of our Airports practice.