Understanding FAA Grant Assurance Obligations Volume 3: Research Report (2018)

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33 ACRP Project 03-38 (FY 2015) Understanding FAA Grant Assurance Obligations Task 8 Research Report Chapter 4 C H A P T E R 4, R E V I E W O F F A A D O C U M E N T S A N D O T H E R R E S O U R C E S The research effort included a review of relevant FAA documents and other resources, including multiple reports, syntheses and digests produced by the ACRP. Substantial effort was devoted to the review of individual FAA and DOT administrative determinations of Grant Assurance compliance, opinion letters and memoranda interpreting Grant Assurance requirements issued by various offices. Documents produced by airport user associations and state aviation offices were also reviewed. The Team also consulted the Transportation Research International Documentation (TRID) database. For Grant Assurance 1, General Federal Requirements, in some cases it was necessary to review source documents, i.e. statutes, regulations, or executive orders. This Chapter identifies the documents and resources reviewed in this phase of the research. The results of the review, and content of the materials reviewed are summarized in Appendix A and Appendix F of the Volume 2 of the Guidebook, Technical Appendices. The remainder of this Chapter is structured as follows:  Section 4.1 summarizes the review process for individual determinations, agency opinion documents and court decisions.  Section 4.2 summarizes the review of other relevant FAA documents.  Section 4.3 summarizes the review of ACRP documents.  Section 4.4 summarizes the review of other documents. Relevant documents identified in the TRID database are referenced in each section, as appropriate. Section 4.1 Review of Individual Determinations, Agency Opinion Documents and Court Decisions The primary resource used to review individual determinations and opinions was ACRP Legal Research Digest 21: Compilation of DOT and FAA Airport Legal Determinations and Opinion Letters Through December 2012. This publication digested and provided copies of administrative determinations and opinion letters or memos issued through December 2012. LRD 21 contains 245 administrative determination records and 51 opinion letters or memos. Individual investigations or complaints can have multiple determinations — a Director’s Determination (DD) and a Final Agency Decision (FAD), if the Director’s Determination is appealed. Therefore, the 245 number does not represent the number of investigations or complaints processed by the FAA and included in LRD 21. Information on subsequent determinations was obtained from the FAA’s Airport Compliance Part 16 Database (http://part16.airports.faa.gov/). A total of 17 dockets were reviewed. The last determination reviewed in the Part 16 Database was issued on February 19, 2016. The contents of ACRP LRD 13, An Index and Digest of Decisions: Compilation of Airport of Airport Law Resources was also reviewed. LRD 13 consists of a digest of court decisions related to airports with copies of the full text of those decisions. A total of 385 decisions are included in LRD 13, but only 69 involved issues related to Grant Assurances.

34 ACRP Project 03-38 (FY 2015) Understanding FAA Grant Assurance Obligations Task 8 Research Report Chapter 4 Data on the frequency of determinations of compliance or non-compliance and the specific Grant Assurance requirements at issue are summarized in Appendix A in the Technical Appendices (Volume 2). Section 4.2, Review of FAA Resource Documents This section describes the FAA resource documents reviewed for this project, other than the individual administrative determinations and opinions discussed in Section 4.1. Documents reviewed included FAA Orders addressing compliance issues, advisory circulars, brochures, desk references, and PowerPoint presentations. Most documents reviewed are national guidance documents. Regional Compliance Specialists were asked to identify and provide copies of any regional guidance on Grant Assurance requirements. The responses to this request are discussed in this section. Appendix F of the Technical Appendices (Volume 2), Section F-1 and Section F-2 provides descriptions of the discussion of the Grant Assurance requirements in those documents reviewed that are currently available on the internet. The primary guidance document relied on by FAA staff and airport users is the FAA Airport Compliance Manual, Order 5190.6B (September 30. 2009), (http://www.faa.gov/airports/resources/publications/orders/compliance_5190_6/) as reflected in the Stakeholder Outreach in Task 1. As such, it is addressed separately in this report. A discussion of other national guidance documents follows, and the section concludes with a discussion of the responses to the inquiry on regional guidance. The Team reviewed PowerPoint presentations identified by FAA staff or located on regional web-sites. These presentations are not summarized in this report, because they duplicate the information and discussion included in other guidance documents. Order 5190.6B (http://www.faa.gov/airports/resources/publications/orders/compliance_5190_6/) provides comprehensive guidance on FAA policies regarding compliance with Grant Assurances and other federal obligations. The Order consists of 23 chapters and 22 appendices. A copy of the Table of Contents is included as Section F-5 of Appendix F of the Technical Appendices (Volume 2). Many of the Grant Assurances require sponsors to take specific actions before applying for an AIP grant or during implementation of a grant-funded project. These requirements are not specifically addressed in Order 5190.6B. Rather, they are addressed in other orders or guidance documents, such as the AIP Handbook, Order 5100.38D (September 30, 2014) or the National Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions, Order 5050.4B (April 28, 2006). The prior version of the AIP Handbook, Order 5100.38C (June 28, 2005) in some cases has additional information on the Grant Assurances applicable to planning and in the implementation of a grant-funded project. Twenty-six national Grant Assurance compliance guidance documents, in addition to Order 5190.6B, were reviewed. Many of these documents were provided in response to requests for regional Grant Assurance compliance guidance discussed below. Table F-1 in Appendix F in the Technical Appendices (Volume 2) summarizes each document reviewed. Documents reviewed included the following:  Eleven Advisory Circulars (ACs)  Five Compliance Guidance Letters (CGLs)

35 ACRP Project 03-38 (FY 2015) Understanding FAA Grant Assurance Obligations Task 8 Research Report Chapter 4  Four FAA Orders  One Department of Transportation Order  Nine policy statements, desk references or other types of documents. CGLs issued prior to publication of Order 5190.6B were incorporated in that document. They are identified as such in Table F-1. The current or former compliance specialists for each FAA region were asked to identify any regional Grant Assurance compliance guidance regularly made available to stakeholders and to provide copies. Compliance specialists from eight regions responded. Three regions — Alaska Region (AAL), Central Region (ACE), Southwest Region (ASW) — maintain no separate regional guidance, but some may provide links to training presentations on Grant Assurance issues. However, an ACE guidance document entitled “Airport Sponsors’ Guide” was identified as a potential resource during the research and an internet link was identified for that document. Three other regions provided copies of regional guidance — Great Lakes Region (AGL), Southern Region (ASO), Western Pacific Region (AWP). For two regions — Eastern Region (AEA) and New England Region (ANE), regional guidance is a combination of copies or links to national guidance and regional guidance documentation. All documents were reviewed as part of the research. However, only one document, the ACE “Airport Sponsors’ Guide,” is available on the internet. The remaining documents were provided as attachments to e-mails. Table F-2 in Appendix F of the Technical Appendices (Volume 2) summarizes the ACE “Airport Sponsors’ Guide.” Because the other regional guidance documents are not readily available, t h e y are not included in that table. All of the regional guidance documents reviewed either predate the publication of Order 5190.6B or are undated. Therefore, without a more detailed comparison of those documents with Order 5190.6B, it cannot be readily determined whether the guidance in those documents continues to be current. Also, multiple Regional Compliance Specialists noted that the publication of regional guidance separate from national guidance on Grant Assurance compliance issues is currently discouraged. The National Airport Compliance web page (https://www.faa.gov/airports/airport_compliance/) is thus likely to be the best FAA resource for finding new guidance in the future. Section 4.3, Review of Other ACRP Publications A total of 17 ACRP publications, in addition to LRD 21 and LRD 13, discussed in Section 4.1 (above) were reviewed, consisting of the following:  Nine ACRP research reports;  Seven ACRP legal research digests (LRDs); and  One ACRP synthesis report. Many of the reports did not deal exclusively with Grant Assurance requirements, but the Grant Assurances were addressed as part of a broader discussion of the issues covered in the publications.

36 ACRP Project 03-38 (FY 2015) Understanding FAA Grant Assurance Obligations Task 8 Research Report Chapter 4 Table F-3 in Appendix F of the Technical Appendices (Volume 2) describes the discussion of Grant Assurance requirements in each of the ACRP publications reviewed. Section 4.4, Review of Other Publications A total of six other publications were reviewed, consisting of the following:  Three guidebooks published by aviation industry associations;  One report issued by the Government Accountability Office (GAO); and  Two guidebooks published by state aviation agencies. None of the publications dealt exclusively with Grant Assurance requirements, but they were addressed as part of a broader discussion of the issues covered in the publications. Table F-4 in Appendix F of the Technical Appendices (Volume 2) describes the discussion of Grant Assurance requirements in each of these six publications.