As we previously reported, on Friday, February 20, the Federal Aviation Administration (FAA) released a new version of the Airport Compliance Manual, Order 5190.6C. The Airport Compliance Manual is the most comprehensive explanation of the FAA’s interpretation of airport sponsors’ federal obligations and the agency’s own policies and procedures. 

Kaplan Kirsch has reviewed the new Airport Compliance Manual and the changes made by the FAA. While the majority of revisions update statutory and other references since the Airport Compliance Manual was last revised, there are several notable revisions:

• Incorporation of prior substantive policy changes.  Several sections of the Airport Compliance Manual have been updated to incorporate and consolidate prior substantive agency policy changes.  For example, Chapter 22’s discussion of FAA authority over airport land use has been completely rewritten to track Section 743 of the 2024 FAA Reauthorization Act and the FAA’s Policy Regarding Processing Land Use Changes on Federally Acquired or Federally Conveyed Airport Land.  These changes help eliminate inconsistencies between FAA documents but do not appear to effect additional substantive changes.  Other notable revisions to incorporate prior policy changes include: Section 6.7, addressing the transfer of grant-obligated airports; Section 7.17, regarding airport closures for aeronautical and non-aeronautical events; Section 14.4, addressing the use of NOTAMs and PPRs to restrict aeronautical access, and relating to the FAA’s CertAlert on restrictive NOTAMs; and Section 14.10, discussing aircraft operations on unpaved areas, and relating to a 2023 Compliance Guidance Letter.
• New definition of “Government Aircraft.”  Grant Assurance 27 requires airport sponsors to permit use of the airport by “government aircraft” at no charge under certain circumstances.  Section 7.13 adopts a new broader definition of “government aircraft,” which includes “aircraft that are owned, leased, or contracted, or chartered by the Federal Government to perform a federal mission under federal control.”  This definition is consistent with court decision in United States v. King County, 122 F.4th 740 (9th Cir. 2024), which interpreted provisions concerning the definition of government aircraft found in deeds issued under the Surplus Property Act.
• Self-Service.  Section 8.7.b clarifies that the right to self-service includes “alternative fuels.”  While automotive gasoline is the only specific alternative fuel noted by the FAA, the language states that sponsors should accommodate self-fueling for “new and emerging entrants,” suggesting that the FAA may interpret electric charging as part of this right.
• Aeronautical restrictions based on “efficiency.”  Grant Assurance 22 has long permitted airport sponsors to impose aeronautical restrictions necessary to preserve the safety and efficiency of an airport, subject to FAA review.  However, Sections 8.7.a and 14.3 include new language suggesting that restrictions on the basis of “efficiency” should be limited to those that preserve the efficiency of navigable airspace.  It is not clear whether the FAA intended to limit airport sponsor’s ability to preserve the efficiency of airport facilities. 
• Periodic rate increases.  Section 12.3, Review of Agreements, adds language suggesting that when FAA staff is asked to review an aeronautical lease (which remains voluntary), staff should confirm that all leases of more than 5 years have language providing for periodic rate adjustments.  Like other items in this Section, this appears to be phrased as a best practice rather than a new requirement for aeronautical leases.
• Individuals experiencing homelessness.  Section 20.7 specifies that “permanent or transient accommodation of people experiencing homelessness” is a residential use and incompatible with airport operations, and identifies correcting the use of airport property to accommodate homeless individuals as an enforcement priority. 
• No revisions to the definition of “Aeronautical Activity.”  The updated Airport Compliance Manual does not include any reference to, or edits consistent with, the FAA’s proposed new definition of “aeronautical activity,” which was first announced in November of 2023 and would have added unmanned aircraft, advanced air mobility, and commercial space operations to the existing definition.  Although the Federal Register notice states that the new definition would be incorporated in the Airport Compliance Manual, Order 5190.6C retains the existing definition.
• No discussion of new grant conditions.  The updated Airport Compliance Manual has no discussion of new grant conditions related to the administration’s policy on diversity, equity and inclusion programs (currently the subject of litigation and preliminarily enjoined in several cases) or former grant conditions related to assistance with enforcement of federal immigration law (invalidated by a federal court and subsequently removed by the FAA).

The bullets above are not a comprehensive analysis and it is likely that other changes or omissions will prove to be important as the FAA begins to implement the updated Airport Compliance Manual. Sponsors should review the updated Airport Compliance Manual carefully. If you have further questions about the updated Airport Compliance Manual or this Alert, please do not hesitate to reach out to Steven Osit, Nicholas Clabbers, or any Kaplan Kirsch airport attorney with whom you normally work.