Combining Mixed-Use Flight Operations Safely at Airports (2016)

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10 A basic premise the FAA and courts have asserted about aeronautical activities is: If a pilot is con- ducting an aeronautical activity in accordance with FAA regulations, then the operator and the opera- tion are presumed to be operating in a safe manner (Citizens for Quiet Skies v. Mile-Hi Skydiving Center, Inc. 2015). An airport operator may not otherwise deny access, with one exception. The exception permits an airport sponsor to exercise control of the airport to preclude safe and efficient use of navigable airspace that would be detrimental to the civil aviation needs of the public. Safety concerns that an airport operator has about a particular operation would need to be brought to the attention of the FAA. These are discussed in chapter three. A number of publications and reports, such as ACRP Legal Research Digests (LRD), document past assessments and decisions made about the safety of operations at an airport. In particular, Legal Research Digest 23: A Guide for Compliance with Grant Agreement Obligations to Provide Reason- able Access to an AIP-Funded Public Use General Aviation Airport and Legal Research Digest 11: Survey of Minimum Standards: Commercial Aeronautical Activities at Airports (Kirsch 2015; Reimer and Meyers 2011), are of importance. LRD 23 describes the sponsor assurances and how they limit an airport sponsor from unreason- ably denying an aeronautical activity at GA airports. This current synthesis report supplements the material found in LRD 23 by further expounding upon several of the outcomes mentioned in the digest. Appendix C provides a sample informational summary on several aeronautical activities presented in the digest. LRD 11 contains source material for adopting and enforcing minimum standards, reports survey results showing current practices, provides an index of case law, and includes a compendium of comparative minimum standards. Whereas LRD 11 focuses more on minimum standards applicable to fixed-base operators (FBOs), this synthesis report adds material addressing mixed aeronautical use activity and their corresponding operating rules and regulations. SPONSOR ASSURANCE REQUIREMENTS When airports receive federal grant funds or a transfer of federal property for airport purposes, the airport owner or sponsor agrees to certain obligations and conditions. These obligations are incurred through contract (called sponsor or grant assurances) or by restrictive covenants contained in a property deed transfer. There are currently 39 sponsor assurances an airport operator or sponsor agrees to com- ply with when accepting federal funds, though fewer assurances may be incurred when accepting a noise compatibility or planning grant. The assurances that primarily are referred to when discussing accommodating aeronautical uses on airports is Sponsor Assurance 22, Economic Nondiscrimination, and Sponsor Assurance 23, Exclusive Rights (FAA 2014d). Other assurances mentioned in this report include Sponsor Assurance 24, Fee and Rental Structure; Sponsor Assurance 27, Use by Government Aircraft; and Sponsor Assurance 29, Airport Layout Plan (FAA 2014d). LRD 23 provides a concise and practical overview of the obligations an airport has as a result of accepting federal assistance (Kirsch 2015). Applicable to this synthesis report is Sponsor Assurance 22, Economic Nondiscrimination (FAA 2014d). The assurance states the requirement to accommodate aeronautical activity at a federally obligated airport: a. It will make the airport available as an airport for public use on reasonable terms and without unjust discrimi- nation to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport. chapter two ACCOMMODATING AERONAUTICAL ACTIVITY

11 and h. The sponsor may establish such reasonable, and not unjustly discriminatory, conditions to be met by all users of the airport as may be necessary for the safe and efficient operation of the airport. Sponsor Assurance 22(i) provides a limited exception for an airport operator to disallow a particular aeronautical activity: i. The airport sponsor may prohibit or limit any given type, kind, or class of aeronautical use of the airport if such action is reasonable and necessary for the safe operation of the airport or necessary to serve the civil aviation needs of the public. A denial, prohibition, restriction, or limitation can be based on safety or on a conflict between classes or types of operations. The limitation or prohibition by type, kind, or class refers to a whole class or type of operation, not an individual operator, for example, all agricultural operations or all banner tow operators, not just one particular company that provides either service. If a class or type of operation can cause a problem, all operators of that type or class would be subject to the same restriction. The literature review identified several airport operators that have found themselves the subject of a tenant, user, or individual complaint because they did not apply a restriction to all like or similarly situated aeronautical activities. ACRP Legal Research Digest 11 found that the most-discussed topic during interviews with both airport and aircraft operators were related to Assurances 22, 24, and 27 (Reimer and Meyers 2011). The report explores the issues and economic matters related to self-fueling capabilities allowed under Assurance 22, Economic Nondiscrimination. It was noted that past controversies over fueling operations had largely been resolved at those airports that established rules and regulations on self-serve/ self-fueling. At airports that had not addressed the issue, tension continued between aeronautical users, FBOs, and the airport operators. Communication and coordination are mentioned in the literature and interviews as key ingredients in preventing or addressing complaints about aeronautical operations. Several airport managers commented on how important it was to build relationships with the operator, users, and neighbors. Learning about skydiving operations and educating others can help reduce conflict, managers found. The FAA Aeronautical Information Services Division publishes on its website a Frequently Asked Question Forum (https://www.faa.gov/air_traffic/flight_info/aeronav/faq/) to help explain operating and procedural aspects of accommodating the many different aeronautical activities (FAA 2015d). COMPLIANCE GUIDANCE An FAA Order is an internal administrative document that provides guidance to FAA employees in carrying out their duties and responsibilities. Orders are not regulatory and are not considered controlling on airport sponsors’ conduct. Nonetheless, orders help an airport sponsor understand how the FAA will carry out its regulatory responsibilities. FAA Order 5190.6B, Airport Compliance Manual, is a primary source of information regarding the responsibilities and legal requirements an airport operator or sponsor has when receiving federal fund- ing assistance or property conveyances (FAA 2009b). The Airport Compliance Manual discusses the obligations set forth in the standard airport sponsor assurances, addresses the application of assurances in the operation of public use airports, and facilitates interpretation of assurances by FAA personnel. The manual further provides guidance on allowable restrictions based on safety and efficiency pro- cedures and organization, and describes the standards of compliance to be used when investigating allegations of sponsor assurance violations. For example, Paragraph 14.7 of the manual provides insight into FAA’s policy regarding acceptable methods and measures for accommodating aeronautical activity when the safety and efficiency of a mixed-use activity is questioned (FAA 2009b, p. 14-6): A complete prohibition on all aeronautical operations of one type, such as ultralights, gliders, parachute jumping, balloon and airship operations, acrobatic flying, or banner towing should be approved only if the FAA concludes

12 that such operations cannot be mixed with other traffic without an unacceptable impact on safety or the efficiency and utility of the airport. When it is determined that there are less restrictive ways or alternative methods of accom- modating the activity while maintaining safety and efficiency, these alternative measures can be incorporated in the sponsor’s rules or minimum standards for the activity in question at that airport. Safety and efficiency in the national airspace system are the two areas of evaluation the FAA will assess in a complaint about denial of airport use. The FAA’s investigation of complaints based on those two factors is made to determine whether or not the restricted or denied activity can be safely accommodated on less restrictive terms than those proposed by an airport operator, without adversely affecting the airport’s efficiency and utility. If the FAA determines the accommodation can be made, the airport must revise or eliminate the restriction in order to remain in compliance with its sponsor assurances and federal surplus property obligations, according to Docket No. 16-07-06 (FAA 2008c). If an airport operator believes an aeronautical activity is inconsistent with the safety and efficiency of airport operations, then justification is required to the FAA (FAA Order 5190.6B 2009b). Courts have affirmed the preemption of FAA’s rules governing aircraft operations over state and local laws. Any aeronautical restriction is subject to concurrence by the FAA. An example cited in the FAA Airport Compliance Manual (Order 5190.6B) is an airport sponsor believing that skydiving unacceptably inter- feres with an airport’s busy fixed-wing aircraft use (FAA 2009b). If the airport presents adequate justifi- cation and documentation to support the unacceptable interference, and the FAA agrees, the airport may deny permission for a parachute drop zone (PDZ) at the airport. However, the sponsor could not deny some skydiving operators while allowing others to operate. Nor could the airport operator deny public access to skydivers to board an aircraft for purposes of landing at a remote drop zone. Another example provided is precluding two-seat ultralight training aircraft from operating on the airport when single- seat operation is allowed. That would be a contestable limitation, especially since a two-seat operation generally falls into a category of aeronautical activity known as a light sport aircraft (LSA) operation. An aircraft falling in the LSA category is not by definition an ultralight operation (FAA 2009b). Chapter 14 of the Airport Compliance Manual provides sample letters, rationales, and determina- tions addressing attempts by airports to restrict certain aeronautical operations or to seek support for a restriction (FAA 2009b). The manual provides additional insight into what constitutes reasonable accommodation, what qualifies for appropriate safety or efficiency restrictions, and the process airport operators are to follow for obtaining FAA review and assessment of airport actions. To further assist airport operators in understanding FAA policy, a Compliance Guidance Letter (CGL) was issued internally within FAA on April 25, 2016. The intent of the CGL is to provide personnel in the FAA’s Office of Airports with guidance on providing an agency determination on the conduct of various types of aeronautical activity at a federally obligated airport (http://www.faa.gov/airports/airport_ compliance/media/cgl-2016-interim-procedures-parachute-operations.pdf). Airport operators seek- ing to restrict certain aeronautical activities are encouraged to review the appendices in the Airport Compliance Manual (FAA 2009b) and the April 2016 or any subsequent CGL. Textboxes 2, 3, and 4 of this synthesis report provide examples of sponsor assurances—approved, not approved, or not requiring justification. Operators are also encouraged to review LRD 23 (Kirsch 2015). TEXTBOX 2 Examples of Sponsor Assurance 22 Restrictions Approved by the FAA (FAA Order 5190.6B 9/30/2009) 1. Limiting skydiving, soaring, and banner towing operations to certain times of the day and week to avoid the times of highest operation by fixed-wing aircraft. 2. Banning skydiving, soaring, ultralights, or banner towing when the volume of fixed-wing traffic at the airport would not allow those activities without significant delays in fixed-wing operations. 3. Limiting skydiving, soaring, and ultralight operations to certain areas of the airfield and certain traffic patterns to avoid conflict with fixed-wing patterns. 4. Restricting agricultural operations due to conflict with other types of operations or lack of facilities to handle pesticides safely that are used in this specialized operation.

13 MINIMUM STANDARDS AND OPERATING RULES Airports are encouraged (but not required) by the FAA to establish minimum standards as a means to provide a fair and equitable accommodation of commercial aeronautical activity (49 USC 47107). Spon- sor Assurance 22(h) allows an airport operator to develop minimum standards and rules and regulations affecting the airport’s operation. Minimum standards refer to the qualifications or criteria that may be established by an airport owner as the minimum requirements to be met by businesses engaged in on- airport aeronautical activities for the right to conduct those activities (FAA Order 5190.6B). The FAA’s objectives in recommending the development of minimum standards is to promote safety in all airport activities, protect airport users from unlicensed and unauthorized products and services, maintain and enhance the availability of adequate services for all airport users, promote the orderly development of airport land, and ensure efficiency of operations (FAA 2006). Airport minimum standards can and do vary from airport to airport, simply because airports can have different types, numbers, and levels of based aircraft, aircraft operation, commercial aeronautical services, and avail- able land and improvements. An exception is provided to an airport operator to allow for denial of access to an airport of an individual or individual service provider if the person has not complied with the airport’s minimum standards or operating rules for safe use of airport property (FAA Order 5190.6B). Implied in the prohibition is that the FAA has previously reviewed and concurred with the minimum standards. A compendium of information useful to airport operators intending to adopt minimum standards or rules governing commercial operations and aeronautical activities can be found in Legal Research Digest 11 (Reimer and Meyers 2011). A commercial operation is one conducted by a licensed operator who engages in the carriage of persons or property by aircraft for compensation or hire (14 CFR 1 2015). AC 150/5190-7 on minimum standards for commercial aeronautical activities is of additional use to airports, as it explains what constitutes aeronautical activities, provides FAA’s policy on minimum standards, and gives guidance on developing effective standards (FAA 2006). The AC does not address an airport’s oversight of non-aeronautical entities; those are usually addressed as part of an airport’s contracts, leases, rules and regulations, or local laws. TEXTBOX 3 Examples of Sponsor Assurance 22 Restrictions That Generally Do Not Require Justification (FAA Order 5190.6B 9/30/2009) 1. Designated runways, taxiways, and other paved areas that may be restricted to aircraft of a specified maximum gross weight or wheel loading. 2. Designated areas for maintenance, fueling, and aircraft painting. 3. Use of airport facilities by the general public may be restricted by vehicular, security, or crowd control rules. TEXTBOX 4 Examples of Sponsor Assurance 22 Restrictions Not Approved by the FAA (FAA Order 5190.6B 9/30/2009) 1. A ban on certain categories of aircraft, based on safety, where the banned categories of operators were defined solely by aircraft design group, which is an airport planning and design criterion based on approach speed for each aircraft type. 2. A total ban on skydiving, when skydiving could be accommodated safely at certain times of the week with no significant effect on fixed-wing traffic.

14 Other sources of guidance on minimum standards include the Airport Sponsors Guide to Mini- mum Standards & Airport Rules and Regulations (National Air Transportation Association 2009), and the Minimum Standards for Commercial Aeronautical Activities (Aircraft Owners and Pilots Association 2012). Several state aviation offices have developed model minimum standards and guidance for their state airports as well. Appendices D, E, and F provide examples of airport rules and regulations or minimum standards for three airports that cover various aeronautical activities. A search of the web will generate others, such as those currently under review and consideration at the Taunton Municipal Airport in Massachusetts. REVIEW OF MINIMUM STANDARDS Some federally obligated airport operators have sought to preclude or restrict certain types of aero- nautical activities using minimum standards, rules and regulations, ordinance, or other methods. Two avenues exist for tenants, users, or affected individuals to challenge or lodge a complaint concerning an aeronautical activity; either 14 CFR Part 13 or 14 CFR Part 16 processes can be used. Any rule or standard proposed by a federally obligated airport organization is to be reasonable and not unjustly discriminatory. Application by an airport of an unreasonable requirement or standard in an unjustly discriminatory manner has been construed in the past as a constructive grant of an exclusive right (FAA 2009b). A question often asked by parties to a complaint is, “Who determines if an airport requirement is unreasonable or unjustly discriminatory?” The FAA is the final arbiter on any matter addressing the safety or efficiency of aircraft operation (FAA 2009a). This is because federal law preempts the authority of a local government when it comes to matters of safety of flight in aeronautical activity (49 USC 40103 2012). Civil courts usually will not entertain review of a tenant or user complaint because of the established federal preemption. Safety and efficiency in the national airspace system are the two areas of evaluation the FAA will assess in a complaint. The FAA investigates to determine whether the restricted activity can be safely accommodated on less restrictive terms than those proposed by an airport operator without adversely affecting the airport’s efficiency and utility. According to Docket No. 16-07-06, if the FAA deter- mines the accommodation can be made, the airport must revise or eliminate the restriction to remain in compliance with its sponsor assurances and federal surplus property obligations (FAA 2008c). An airport operator can ask the FAA to review a proposed aeronautical activity to assess whether safety and efficiency may be compromised. The airport’s request for a review is normally submitted to the Airport District Office (ADO) or Regional District Office (RDO), as those offices are the point of contact for the airport operator. The ADO and RDO will then advise airports on the appropriateness of proposed standards and help ensure that the standards do not protect or convey an exclusive right. The ADOs do not approve operating rules, regulations, minimum standards, or leases. The FAA will state if it has an objection, or if the documents appear to be in compliance. At airports that are not federally obligated, State Aviation Offices often assist in the review of standards, leases, or rules. The FAA states clearly in AC 150/5190-7 that if an airport requests approval of an aeronautical restriction, the request must be made and obtained in advance of implementing any aeronautical restriction (FAA 2006). To support a determination, a safety analysis usually is performed. An FAA safety determination takes precedence over any airport operator’s views on safety, as well as any local ordinances or local actions addressing safety. FAA ROLE AND RESPONSIBILITY IN PART 13 AND PART 16 COMPLAINT RESOLUTION If an airport is federally obligated, the FAA is required to consider and respond to any complaint made relative to violation of sponsor assurances or denial of airport access. The ADO or RDO have responsibility for investigating whether a particular airport access denial or restriction is a violation of the airport sponsor’s grant assurances. Airport operators can find guidance on Parts 13 and 16 complaints on the FAA website (http://www.faa.gov/airports/airport_compliance), specifically in the Airport Sponsor & Airport User Rights and Responsibilities section (FAA n.d.).

15 The Airport Compliance Manual (FAA 2009b) describes the standards of compliance used when investigating allegations of sponsor assurance violations. A Compliance Guidance Letter (FAA 2014a) further clarifies the process of how compliance matters are brought to the attention of ADO personnel for investigation and resolution. A Part 13 complaint is a process for informal resolution of a complaint. The ADO or RDO coordinates with the Flight Standards District Office (FSDO) to investigate and assess the complaint. The outcome may simply be a letter providing a resolution. A Part 13 complaint can be made orally or in writing, although a written complaint is preferred. There is no formal deadline for the FAA to respond to a Part 13 complaint. In contrast, a Part 16 complaint imposes a formal and strict process for filing, adjudication, and appeal. The FAA’s Office of Airport Compliance and Field Operations conducts Part 16 investigations. A Part 16 complaint results in an FAA Director’s Determination (DD) or a Final Agency Decision (FAD). Each may be subject to appeal to the Associate Administrator for Airports, with further pos- sibility for judicial review. Upon receipt of a Part 13 or Part 16 complaint, the ADO, RDO, or headquarters Airport Compliance Division coordinates the review with the air traffic office and aviation safety office (Flight Standards) for their review and consideration, under Order 5190.6B Sec. 8.8(a) (FAA 2009b). Flight Standards will assist the ADO on safety issues, and the Air Traffic Organization (ATO) will assist on efficiency and utility issues. FAA ATO is consulted because the aeronautical activity being denied could have an impact on the efficient use of airspace and the utility of the airport. ATO has authority to deny certain aeronautical operations, given its responsibilities for maintaining a safe and efficient air traffic system. At a controlled airport, ATC can enter into an agreement with the airport for conducting safe operations on the field (FAA n.d.). For someone other than an airport operator (i.e., tenant, user, private individual) wanting to make a complaint about either a pilot or an aircraft operation, the point of contact can be the FAA’s FSDO, which has expertise and responsibility for promoting overall aviation safety and for ensuring com- pliance with the operations and maintenance safety standards for aircraft operations and pilot issues (Textbox 5). Guidance for FSDO personnel in overseeing various aeronautical activities, including banner towing, aerobatic, skydiving, balloon, and ultralight operations, can be found in chapter three of the Flight Standards Information Management System (FSIMS), Order 8900.1 (FAA 2015b). FAA AGENCY DECISIONS AND DETERMINATIONS Potential outcomes of a Part 13 or Part 16 complaint include an FAA letter, determination, or agency decision in which the FAA provides an analysis and review of the circumstance surrounding the com- plaint and its investigation of the complaint. For a formal Part 16 complaint, an FAD is made whether TEXTBOX 5 Matters That an FSDO Might Consider • Low-flying aircraft • Accident reporting • Air carrier certification and operations • Aircraft maintenance • Aircraft operational issues • Aircraft permits • Aircraft certification and modification issues • Enforcement of Airmen & Aircraft Regulations • Airmen certification (licensing) for pilots, mechanics, repairmen, dispatchers, and parachute riggers

16 an airport is in compliance with its obligations. If an airport sponsor is found to have violated an assurance, the FAD will describe what actions are required to become compliant. An airport manager interested in an extensive analysis of the debate between an airport’s argu- ments for a denial of access and the FAA’s argument for upholding sponsor assurances can be found in Docket No. 16-11-06, FAA’s FAD on skydiving activities at South County Airport in San Martin, California, (FAA 2013c). An additional example of an unlawful exclusive right was an attempt to ban ultralight aircraft at a Sacramento County, California, airport. In Docket No. 16-00-11, the FAA deemed the banning resulted in the granting of an exclusive right because, in essence, a special privi- lege was being granted to other aeronautical users in the use of public airport facilities not available to ultralights (FAA 2001). A similar charge of violating sponsor assurances relating to helicopter operations was made against the Town of East Hampton, New York. In Docket No. 16-15-02, the FAA deemed the town to be in violation because it granted an exclusive right by allowing some helicopters operators, but not all, to operate past a curfew time (FAA 2015g). An FAA DD—Docket 16-09-13—addressed the closure of a glider runway at an airport (FAA 2011c). The runway closure resulted in the cessation of a glider business. The arguments were that the airport had violated Sponsor Assurance 22, Economic Nondiscrimination; Assurance 29, Airport Layout Plan; and Assurance 35, Relocation and Real Property Acquisition. The airport’s deci- sion to terminate glider operations was based on four general arguments: (1) no federal funds had been expended on the runway closed; (2) the glider operations constituted a safety hazard, did not meet design standards, and presented an unreasonable level of risk; (3) economic viability and self- sufficiency of the airport were needed; and (4) the sponsor’s long-term plans for the airport included using the closed runway for other purposes. The FAA determination provides an analysis of a number of FAA laws, court cases, and positions relative to compliance with sponsor assurances, including: • Once an airport becomes federally obligated, the sponsor assurances attach to the entire airport, not just specific pieces of infrastructure paid for with grant funds. • An airport sponsor’s safety argument for closing a runway on the basis of not meeting FAA airport design standards is not appropriate, as FAA airport design standards are mandatory only when constructing new runways and are not intended to limit or regulate the operations of aircraft. • Airport sponsors are not permitted to unilaterally restrict aircraft operations for safety reasons without advance concurrence by the FAA’s Offices of Airports, Flight Standards, and Air Traffic. • It is unreasonable for an airport operator to refuse to develop a federally obligated airport in response to aeronautical demand, as the airport was conveyed for this very purpose and federal grant funds have been expended for the purpose of enhancing the aeronautical utility of the airport. • An airport cannot close a runway shown on an approved airport layout plan (ALP) without first gaining concurrence from the FAA. • The airport was not permitted by the state to allow use of the turf area between two runways for glider operations. • Determining whether a particular aircraft can safely land on or take off from a particular airport runway is to be made on a case-by-case basis by the pilot, not the airport sponsor. • The FAA interprets the willingness of a prospective provider to lease space and invest in facilities as sufficient evidence of a public need for those services. Corrective action sought in the determination, and which can be viewed as being proactive steps for other airports, were the following: 1. Provide glider operators access to the airport. 2. Negotiate in good faith with those desiring to provide glider-related commercial aeronautical services. 3. Utilize the expertise of FAA staff to develop appropriate operating procedures applicable to all airport users. 4. Adopt and enforce appropriate operating procedures applicable to all airport users. 5. Develop a process to improve communication between the airport and aeronautical tenants at the airport. 6. Complete the draft airport Master Plan and any necessary ALP updates.

17 In a Part 16 complaint about skydiving, the FAA asserted in Docket No. 16-07-06 that an unreason- able delay in efforts to accommodate the activity amounted to a denial of airport access (FAA 2008c). A similar decision regarding denial of access to a skydiving request (Docket No. 16-11-06) resulted in the FAA suspending the award of AIP funds to both of a county’s airports, although only one was the subject of a complaint (FAA 2013c). Textbox 6 provides examples of reasonable accommodation rulings by the FAA. At private-use airports, denial of access is a proprietary right of the airport operator, although legal consequences may still exist for such denial. In either case, it is suggested that other viable and nondiscriminatory solutions be offered to preclude possible complaint or contest. At public use airports that are not federally obligated, state aviation offices can often be the contact point for coordination. TEXTBOX 6 Examples of Accommodation Measures in Lieu of a Total Ban (FAA Order 5190.6B 9/30/2009) 1. Establishing designated operations areas on the airport. An airport can designate certain runways or other aviation use areas at the airport for a particular class or classes of aircraft as a means of enhancing airport capacity or ensuring safety. 2. Alternative traffic patterns and touchdown areas. Examples of this would be a glider operating area next to a runway or a helicopter practice area next to a runway as long as there is proper separation to maintain safety. 3. Special NOTAM (Notice to Airmen) requirements. 4. Special handheld radio requirements. 5. Special procedures and required training. 6. Seasonal authorization or special permission. 7. Waivers issued by Flight Standards under 14 CFR section 103.5 or other applicable regulations and policies. 8. Special use permit, pilot registration, and fees. 9. Limits on the total number of operations in the restricted class. (It might be easier to accommodate just a few operations.) 10. Letters of agreement with Air Traffic Control (ATC), if applicable. 11. Restricted times of operations and prior notification. 12. Weather limitations. 13. Nighttime limitations.