Understanding FAA Grant Assurance Obligations Volume 2: Technical Appendices (2018)

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ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-1 A P P E N D I X E , E X P A N D E D L I S T O F Q U E S T I O N S A N D A N S W E R S R E L A T I N G T O G R A N T A S S U R A N C E C O M P L I A N C E Section E-1 Introduction This Appendix includes an expanded series of Q & As based on the administrative and judicial decisions reviewed as part of the research for the Guidebook. The citations to the decisions on which the Q & As are based are included to facilitate review of the digests and/or full texts of the decisions. Many of the Q & As and the examples of decisions finding compliance or non-compliance presented elsewhere in the Guidebook are drawn from the Q & As presented in this Appendix. However, many Grant Assurances, especially the project-specific Grant Assurances, have not been the subject of complaints or administrative investigations. Therefore, this Appendix does not cover all of the Grant Assurances. While many of the decisions may involve situations that arise rarely, the information is provided to enable airport staff, airport users and their consultants or legal advisors to determine if a particular issue has been considered before and the resolution of that issue. Users of the Guidebook may employ the search function with key words to identify decisions that address a specific issue. The Q & As are presented in the following order: 1. Questions of general applicability. 2. Questions relating to specific Grant Assurances in the numerical order of the Grant Assurance (with some Grant Assurances, e.g., Grant Assurance 1, General Federal Requirements and Grant Assurance 22, Economic Nondiscrimination further organized by specific issues). Relevant Q & As were not identified for Grant Assurances 3, 4, 9-15, 17, 18, 28, 32, 33 and 36. 3. Questions relating to the administrative process (Part 13 and 16). 4. Questions relating to federal preemption. Federal preemption refers to the prohibition on regulation of airline rates, routes and services by state or local governments. There is an exception to the general prohibition for state and local governments acting as airport proprietors in their proprietary capacity. While federal preemption is not a Grant Assurance issue per se, questions of federal preemption arise from time-to-time in Part 16 complaints. In addition, the standards of reasonableness applied under Grant Assurance 22 may also be applied to determine whether a Sponsor’s action is preempted or protected by the airport proprietor’s exception to the prohibited regulation of airline rates, routes and services.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-2 Section E-2 General 1. Are past violations a basis for FAA to withhold grant funding? A. The FAA is interested in current compliance. If the Sponsor is aware that its past practices did not comply; it is taking corrective action; and it keeps the FAA informed of the status of its corrective action, the FAA will not withhold grant funding. Clarke v. City of Alamogordo, N.M. — No. 16-05- 19. — No. FAA-2006-25212. Director’s Determination (September 20, 2006). LRD 21 Determination 164. See also, Sun Valley Aviation, Inc. v. Valley Int'l Airport — No. 16-10-02. — No. FAA-2011-0598. FAA-2011-0598-0045. Director’s Determination (December 11, 2012). LRD 21 Decision No. 240 with respect to Grant Assurances 22, 23 and 24. See also, Steere v. Cnty. of S.D., Cal. — No. 16-99-15. Director’s Determination (July 21, 2004). LRD 21 Determination No. 125. Affirmed by Final Decision and Order of December 7, 2004. LRD 21 Determination No. 131, where FAA found that various allegations of non-compliance were moot because the airport had taken corrective action and executed a lease with the complainant. 2. Is a violation of Order 5190.6B also a violation of a grant assurance? A. No. The Order provides guidance on interpreting the grant assurances and controls FAA compliance staff, but it does not itself control Sponsor behavior. Only the Grant Assurances do. The FAA will consider an alleged violation of the Order only if used in direct support of an alleged Grant Assurance violation. Johnson v. Goldsboro-Wayne Airport Auth. — No. 16-08-11. — No. FAA- 2009-0744. Director’s Determination (October 9, 2009). LRD 21 Determination No. 210. 3. Does the FAA treat the failure to follow an Advisory Circular (AC) that is not included in the list of mandatory ACs as a violation of the grant agreement? A. If the AC is not mandatory, the FAA will not find a violation of the AC. But if the failure to follow the AC results in a violation of a specific assurance, the FAA will find a violation of that Grant Assurance, but not the AC. Town of Fairview, Tex. v. City of McKinney, Tex. (1999) — No. 16-99- 04. 2000 FAA LEXIS 738. 2000 WL 1100236. Director's Determination on Remand (July 26, 2000). LRD Determination No. 69 – Remand from Order of Remand (March 28, 2000). LRD 21 Determination No. 60. Affirmed by Final Decision and Order of January 23, 2001. LRD 21 Determination No. 79. 4. If a Sponsor misses some of the deadlines or milestones in a corrective action plan, will the FAA find it in violation? A. In a case where the FAA extended a deadline, it declined to find a violation. Keathly v. City of McKinney, Tex. — No. 16-03-14. — No. FAA-2003-15999. 2004 FAA LEXIS 876. 2004 WL 3198207. Director’s Determination (October 13, 2004). LRD 21 Determination No. 128. 5. If the duration of a grant is based on the “20 years after acceptance of a grant offer” rule, and the grant is amended, does the 20-year clock start from the date of the original grant or the date of the amendment? A. In a case where the amendment increased the amount of AIP funds with no change in project scope, the FAA held that the only reasonable consideration for giving additional grant funds was an extension of the duration of the grant obligations. It held that the 20-year clock started on the

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-3 date of the amendment. National Business Aircraft Association et al. v. City of Santa Monica, - - No. 16-14-04 (December 4, 2015). (Note that this determination was appealed to the U.S. Court of Appeals, and the issue ultimately was settled by the FAA and Santa Monica.) Section E-3 Grant Assurance 1, General Federal Requirements E-3.1 General 1. Will the FAA investigate allegations of criminal misconduct under Grant Assurance 1? A. No. Claims of criminal misconduct are outside the scope of Part 16. Boca Airport Inc. v. Boca Raton Airport Auth. (2004) — No. 16-04-02. — No. FAA-2004-17324. Final Decision and Order. FAA-2004-17324-0009. 2004 FAA LEXIS 907. 2004 WL 5284751. LRD 21 Determination No. 130. E-3.2 Grant Assurance 1, 49 CFR Part 23, Participation by Disadvantage Business Enterprises in Airport Concessions; Grant Assurance 37 (as Applied to Airport Concession Disadvantaged Business Enterprises (ACDBEs)) 1. Is a lost baggage recovery service that contracts with airlines covered by 49 CFR Part 23? A. No, because it is not involved in the sale of consumer goods or services to the public. Hot Shot Servs., Inc. v. Albuquerque Int'l Sunport — No. 16-99-16. 2000 FAA LEXIS 704. 2000 WL 1007112. Record of Determination (July 13, 2000). LRD 21 Determination No. 68. 2. What evidence must a complainant offer to support an allegation of disparate treatment on the basis of race or nationality? A. The FAA dismissed a complaint when it found that the complaint did not allege any specific examples of disparate treatment. Rogers v. Metro. Wash. Airport Auth. — No. 13-93-28. Record of Decision (May 31, 2000). 21 Determination No. 64. 3. What kind of evidence might be used to refute a claim of retaliation for termination of a taxi concession license permit under Part 23? A. In one case, the FAA found that there was a reasonable and non-discriminatory basis for the termination when the Sponsor provided evidence of repeated consumer complaints and repeated traffic citations. Rogers v. Metro. Wash. Airport Auth. — No. 13-93-28. Record of Decision (May 31, 2000). LRD 21 Determination No. 64. 4. Can a Sponsor exclude a particular national brand ACDBE franchisee (National Brand ACDBE) from a retail concession program and still fulfill its obligation to further DBE participation? A. Where the Sponsor had not expressed an intent to exclude National Brand ACDBEs and in fact had established another national brand ACDBE concessionaire at the airport, the FAA found the

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-4 requirement to further ACDBE participation had been met. Lolita's Airport Cafe, Inc. v. City of Houston, Tex. — No. 16-99-22. 2000 FAA LEXIS 958. 2000 WL 1387889. Director’s Determination (September 11, 2000). LRD 21 Determination No. 73. 5. Does a Sponsor violate its obligations under Part 23 if it permits a master concessionaire to charge ACDBEs a 5% management fee? A. Where the record showed that the fee was clearly stated throughout the concession agreement and all parties had advice of counsel, the FAA found that the fee did not violate the Sponsor’s obligations. Lolita's Airport Cafe, Inc. v. City of Houston, Tex. — No. 16-99-22. 2000 FAA LEXIS 958. 2000 WL 1387889. Director’s Determination (September 11, 2000). LRD 21 Determination No. 73. 6. Can a Sponsor use downward adjustments of ACDBE rental rates to show that it is meeting its obligation to further DBE participation? A. The FAA found that a pattern of continually reducing rental rates when ACDBE purveyors requested new agreements met the Sponsor’s obligations to further ACDBE participation. Lolita's Airport Cafe, Inc. v. City of Houston, Tex. — No. 16-99-22. 2000 FAA LEXIS 958. 2000 WL 1387889. Director’s Determination (September 11, 2000). LRD 21 Determination No. 73. Section E-4 Grant Assurance 2, Legal Authority 1. If the federal government transferred an airport to a City under the Surplus Property Act, is it a violation of Grant Assurance 2 for the City to later provide co-ownership and co-sponsorship to a second local jurisdiction? A. Not when the City notified the FAA of the transfer at the time; the FAA did not object; and the FAA has regularly issued grants in the name of both local governments as co-sponsors. Ricks v. Greenwood-Leflore Airport — No. 16-09-04. — No. FAA-2011-0279. FAA-2011-0279-0032. 2011 FAA LEXIS 37. 2011 WL 381953. Director’s Determination (January 24, 2011). LRD 21 Determination No. 225. Section E-5 Grant Assurance 5, Preserving Rights and Powers E-5.1 General 1. How far can a Sponsor go in delegating operation and management of an airport to a private contractor without violating the requirement to preserve its rights and powers? A. The FAA found no violation where the Sponsor had delegated some, but not all responsibilities and included one or more of the following in the contract with the private operator: a subordination clause; a prohibition on the grant of an exclusive right; and a prohibition on transactions that would deprive the airport of its rights and powers. Johnson v. Goldsboro-Wayne Airport Auth. — No. 16- 08-11. — No. FAA-2009-0744. Director’s Determination (October 9, 2009). LRD 21 Determination No. 210.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-5 2. If a tenant pledges its airport leasehold as security for a loan, can the Sponsor agree to allow the lender to enter the leasehold premises to remove property and to stand in the shoes of the Sponsor under Grant Assurance 5? A. Yes, unless there is evidence that the agreement actually interfered with the Airport’s rights and powers. Ricks v. Greenwood-Leflore Airport — No. 16-09-04. — No. FAA-2011-0279. FAA-2011- 0279-0032. 2011 FAA LEXIS 37. 2011 WL 381953. Director’s Determination (January 24, 2011). LRD 21 Determination No. 225. 3. Can a Sponsor require a proposed FBO to show it has the resources to operate a going commercial enterprise? A. Yes, such a requirement is consistent with the Sponsor’s obligations under Assurance #5, which reinforces its right and responsibility to protect its revenue stream and to maximize its control over airport commercial services. Buffalo Jet Ctr., Inc. v. Niagara Frontier Transp. Auth. — No. 16-98- 01. 1998 FAA LEXIS 1132. 1998 WL 1083383. Director’s Determination (August 19, 1998). LRD 21 Determination No. 41. 4. Will the FAA consider a change in the Sponsor’s policies and procedures for approval of lease assignments as evidence that the prior policies violated Grant Assurance 5? A. No. In one decision, the FAA declined to do so, noting that “airport sponsors may change their policies and practices over time to reflect the current situation.” Roadhouse Aviation v. City of Tulsa — No. 16-05-08. — No. FAA-2005-22368. FAA-2005-22368-0023. 2006 FAA LEXIS 838. 2006 WL 3914734. Director’s Determination (December 14, 2006). LRD 21 Determination No. 167, Affirmed by Final Decision and Order of June 26, 2007. LRD Determination No. 179. 5. Does Grant Assurance 5 require a Sponsor to retain the right to enter a leasehold, grant utility easements and install utilities on leased property? A. Yes. The FAA held that the failure to preserve these rights, plus an 80-year lease term and a provision granting the lessee ownership rights if the leased property were no longer needed for airport purposes, resulted in a violation. Boston Air Charter v. Norwood Airport Comm'n — No. 16-07-03. — No. FAA-2007-28820. Director’s Determination (April 11, 2008). LRD 21 Determination No. 192, Affirmed by Final Decision and Order of August 14, 2008. LRD 21 Determination No. 196. 6. Can the use of informal business practices, ad hoc procedures and non-transparent decision- making result in a violation of Grant Assurance 5? A. Yes. The FAA has found these characteristics in managing the airport and responding to requests to lease space or conduct business violated Grant Assurance 5. Moore v. Sumner Cnty. Reg'l Airport Auth. — No. 16-07-16. — No. FAA-2008-0289. Director’s Determination (February 27, 2009). LRD 21 Determination 200. Affirmed by Final Decision and Order of July 13, 2010. LRD 21 Determination No. 218. 7. Does a Sponsor violate Grant Assurance 5 if it gives a tenant the unilateral right to raise rents for other tenants?

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-6 A. Yes. The FAA found that this action could have put the Sponsor in violation of Grant Assurance 5. However, there was no current violation because the agreement that may have granted this right had expired. Goodrich Pilot Training Ctr., LLC v. Village of Endicott, N.Y. — No. 16-08-03. — No. FAA-2008-1024. Director’s Determination (April 3, 2009). LRD 21 Determination No. 201. 8. Does a Sponsor violate Grant Assurance 5 if it agrees to lease terms that may violate Grant Assurance 23, Exclusive Rights or Grant Assurance 24, Fee and Rental structure? A. Yes. In one decision, the FAA made a preliminary finding that an agreement that “may potentially conflict with Grant Assurance 24” and “appears to expressly conflict with” Grant Assurance 23 violated Grant Assurance 5. Jones v. Lawrence Cnty. Comm'n — No. 16-11-07. — No. FAA-2011- 0753. FAA-2011-0753-0031 Preliminary Determination. LRD 21 Determination No. 237. Complaint Dismissed by Director’s Determination (September 19, 2013) (based on corrective actions taken by Sponsor). 9. What does FAA consider to be the essential elements of Grant Assurance 5? A. The FAA has identified the ability to maintain financial and legal control of the airport and to operate the airport to be the essential elements of Grant Assurance 5. Asheville Jet, Inc. v. Asheville Reg'l Airport Auth. — No. 16-08-02. — No. FAA-2008-1077. Director’s Determination (October 1, 2009). LRD 21 Determination No. 209. 10. Does the application to close an airport show a failure to maintain control of the airport under Grant Assurance 5? A. No. The FAA held that a request to the FAA to close the airport does not itself relinquish any of the Sponsor’s rights or powers. Jim DeVries et al. v. St. Clair, MO – No. 16-12-07. Director’s Determination. (May 24, 2014). E-5.2 Through-The-Fence (TTF) Operations (Grant Assurance 5.g) (Q & As Include Residential and Commercial TTF) 1. Can a Sponsor delay consideration of an FBO proposal where the proposer is conducting TTF operations, and the Sponsor wants to avoid establishment of a TTF FBO? A. Yes. The FAA generally disfavors airports permitting TTF operations. Therefore, it found a delay based on concerns about a TTF FBO to be reasonable. JetAway Aviation, LLC v. Bd. of Cnty. Comm'rs, Montrose Cnty., Colo. — No. 16-06-01. — No. FAA-2006-25185. FAA-2006-25185- 0029. 2006 FAA LEXIS 841. 2006 WL 3914734. Director’s Determination (November 6, 2006). LRD 21 Determination No. 166. 2. Is a Sponsor required charge a TTF FBO the same rates that it charges to an on-airport FBO? A. Not necessarily. The standard for TTF charges is that they provide the Sponsor with a fair return for the TTF operator’s use of the landing area. The charges are intended to address any competitive advantage that a TTF FBO might have due to its off-airport location. In one case, the FAA determined that charging a TTF FBO a fuel flowage fee (equal to the on-airport FBO complainant’s); an access fee (based on FMV); and a percentage operating fee based on covered gross revenues for all

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-7 on and off airport business, and charging the on-airport FBO a fuel flowage fee, lease payments and a percentage operating fee for covered gross revenue of all of its on-airport business, met the standard of providing a fair return, and was not unjustly discriminatory against the on-airport FBO Sanford Air, Inc. v. Town of Sanford, Me. — No. 16-05-04. — No. FAA-2005-22372. FAA-2005-22372- 0020. LRD 21 Determination No. 158. Affirmed by Final Decision and Order of March 5, 2015 LRD Determination 171. 3. Does permitting a TTF operation that competes with an on-airport tenant in and of itself amount to unjust economic discrimination under Assurance No. 22? A. No. The FAA has held that the existence of the TTF operation is not sufficient by itself to show unjust economic discrimination. United Aircraft Servs., Inc. v. Hancock Cnty. Port & Harbor Comm'n — No. 16-00-04. 2000 FAA LEXIS 1016. 2000 WL 1642460. Director’s Determination (October 12, 2000). LRD 21 Determination No. 74. 4. Is the Sponsor free to restrict access or charge any fee it chooses to through-the fence operators? A. Yes. The FAA has determined that the grant assurances do not require the airport to permit TTF access by aircraft from adjacent property. Thus, the Sponsor is free to restrict access or charge “any fee it sees fit.” Wadsworth Airport Ass'n, Inc. v. City of Wadsworth — No. 16-06-14. — No. FAA- 2007-27226. 2007 FAA LEXIS 282. 2007 WL 2373611. Director’s Determination (August 8, 2007). LRD 21 Determination No. 180. However, as noted in Question 2 of this subsection, if the Sponsor does permit access, it must recover a fair return for the TTF operator’s use of the landing area. E-6 Grant Assurance 6, Consistency with Local Plans 1. What does the FAA consider when it reviews a complaint that an airport’s project is not consistent with local plans? A. The FAA has determined that if a community has representation on the Airport Advisory Committee and airport’s Master Plan Study Committee, the lack of a voting right does not itself prove a failure to consider local plans, especially when the airport’s development plans were approved by numerous public agencies. Town of Fairview, Tex. v. City of McKinney, Tex. (1999) — No. 16-99- 04. 2000 FAA LEXIS 738. 2000 WL 1100236. Director's Determination on Remand (July 26, 2000). LRD Determination No. 69 – Remand from Order of Remand (March 28, 2000). LRD 21. Determination No. 60. Affirmed by Final Decision and Order of January 23, 2001. LRD 21 Determination No. 79. 2. Can a Sponsor violate Grant Assurance 6 when its action does not involve a project funded by an AIP grant? A. No. The FAA has held that Assurance 6 only applies to actions associated with a federally funded project. Town of Fairview, Tex. v. City of McKinney, Tex. (2004) — No. 16-04-07. — No. FAA- 2005-20888. FAA-2005-20888-0015. Director’s Determination (June 28, 2005). LRD 21 Determination No. 141. Affirmed by Final Decision and Order of November 30, 2005. LRD Determination No. 147.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-8 3. Does the FAA have to make a specific, express finding of compliance with this Grant Assurance before issuing a grant? A. No. The FAA held that by issuing an airport development grant to rehabilitate the terminal apron, the FAA made the required statutory finding that the project was reasonably consistent with the complainant Town's plans for the development of the area surrounding the Airport and therefore already determined that Respondent's plan was in compliance with Grant Assurance 6. Comm. to Stop Airport Expansion v. Town of E. Hampton — No. 16-02-04. — No. FAA-2002-12981. Order of Dismissal (June 24, 2002). FAA-2002-12981-0009. 2002 WL 32341418. Director’s Determination (June 24, 2002). LRD 21 Determination 101. Withdrawn by Order of Dismissal, LRD 21 Determination No. 140, Petition for review dismissed sub nom. Comm. to Stop Airport Expansion v. FAA, 320 F.3d 285 (2d Cir. 2002). – Withdrawal based on settlement agreement. E-7 Grant Assurance 7, Consideration of Local Interest 1. What does the FAA consider as satisfying the requirement to consider local interest for certain airport development projects subject to Grant Assurance 7? A. The FAA has held that if a community has representation on the Airport Advisory Committee and airport’s Master Plan Study Committee, the lack of a voting right does not itself prove a failure to consider local interests, especially when the airport has acknowledged the potential impact of flights over that community. Town of Fairview, Tex. v. City of McKinney, Tex. (1999) — No. 16-99-04. 2000 FAA LEXIS 738. 2000 WL 1100236. Director's Determination on Remand (July 26, 2000). LRD Determination No. 69 – Remand from Order of Remand (March 28, 2000). LRD 21 Determination No. 60. Affirmed by Final Decision and Order of January 23, 2001. LRD 21 Determination No. 79. E-8 Grant Assurance 8, Consultation with Users 1. Is a Sponsor required to conduct separate or special consultation meetings with airport users? A. No. The FAA held that a Sponsor did not violate Grant Assurance 8 for not holding specific consultation meetings with users while it was developing its Airport Master Plan, where (1) the Manager of Airport Planning indicated the intention to involve various affected parties in the planning process; (2) the public attended meetings and had access to documents through the Airport’s website prior to meetings; (3) there was media coverage of the airport planning process and issues impacting the Airport Master Plan were voted on in a public election; and (4) complaining FBO had been active in voicing its opinion regarding proposed changes affecting the FBO site both directly and through consultants and other representatives. Jimsair Aviation Servs., Inc. v. S.D. Cnty. Regional Airport Auth. — No. 16-06-08. — No. FAA-2006-25225. Director's Determination (April 12, 2007). [Determination No. 174.] FAA-2006-25225-0028. 2007 FAA LEXIS 272. 2007 WL 2405821. 2. Does a community next door to an airport qualify as an airport user under Grant Assurance 8? A. No. The FAA held that a neighboring community did not qualify as an airport user. Town of Fairview, Tex. v. City of McKinney, Tex. (2004) — No. 16-04-07. — No. FAA-2005-20888. FAA-

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-9 2005-20888-0015. Director's Determination (June 28, 2005). LRD 21 Determination No. 141. Affirmed by Final Decision and Order of November 30, 2005. LRD Determination No. 147. E-9 Grant Assurance 16, Conformity to Plans and Specifications 1. Does this Grant Assurance apply to a planning project funded by an AIP grant? A. No. Grant Assurance 16 does not apply to airport planning projects undertaken by a Sponsor. Jimsair Aviation Servs., Inc. v. S.D. Cnty. Regional Airport Auth. — No. 16-06-08. — No. FAA-2006-25225. Director's Determination (April 12, 2007). FAA-2006-25225-0028. 2007 FAA LEXIS 272. 2007 WL 2405821. LRD 21 Determination No. 174. E-10 Assurance 19, Operation and Maintenance 1. What must a Sponsor do to satisfy this grant assurance? A. A Sponsor is in compliance with its federal maintenance obligation when it “[f]ully understands that airport facilities must be kept in a safe and serviceable condition”; it “[m]akes available the equipment, personnel, funds and other resources, including contract arrangements, to implement an effective maintenance program”; and it “[a]dopts and implements a detailed program of cyclical preventive maintenance to carry out this commitment,” (quoting Order 5190.6B), so long as there is no evidence of actual unsafe conditions at the airport. Ricks v. Greenwood-Leflore Airport — No. 16-09-04. — No. FAA-2011-0279. FAA-2011-0279-0032. 2011 FAA LEXIS 37. 2011 WL 381953. Director’s Determination (January 24, 2011). LRD 21 Determination No. 225. 2. Following a major natural disaster damaging the airport, does a delay in repairing a specific tenant’s hangar violate Assurance 19? A. Not when multiple airport facilities were damaged. The FAA considers the issue to be more properly address as a contractual one. Flightline Ground, Inc. v. La. Dep't of Transp. & Dev. — No. 16-11-01. — No. FAA-2011-0529. Director’s Determination (October 24, 2012). LRD 21 Determination No. 239. Affirmed by Final Agency Decision of June 17, 2015. 3. If the Sponsor also operates a landfill, what are its obligations for management of bird hazards created by the landfill? A. The Sponsor’s Landfill Bird Harassment Program or Bird and Wildlife Management Plan must provide sufficient guidance and direction to be executed by employees without prior experience. Also, adequate training must be provided and the airport must demonstrate that its plan has been implemented. Town of Fairview, Tex. v. City of McKinney, Tex. (1999) — No. 16-99-04. 2000 FAA LEXIS 738. 2000 WL 1100236. Director's Determination on Remand (July 26, 2000). LRD Determination No. 69 – Remand from Order of Remand (March 28, 2000). LRD 21. Determination No. 60. Affirmed by Final Decision and Order of January 23, 2001. LRD 21 Determination No. 79. 4. Does the cancellation of a noise mitigation flight procedure by an airport violate a Sponsor’s obligation to operate and maintain the noise compatibility programs?

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-10 A. Not necessarily. When the cancellation was based on safety concerns raised by the local FAA TRACON and the airport’s FAA contract air traffic control tower, the FAA found the cancellation to meet the Sponsor’s obligations. Town of Fairview, Tex. v. City of McKinney, Tex. (2004) — No. 16-04-07. — No. FAA-2005-20888. FAA-2005-20888-0015. Director’s Determination (June 28, 2005). LRD 21 Determination No. 141. Affirmed by Final Decision and Order of November 30, 2005. LRD Determination No. 147. 5. Is the failure to maintain the airport in a serviceable condition on a single day a violation of Grant Assurance 19? A. No. The FAA held that a single picture allegedly showing the airport in non-serviceable condition on a single day was not sufficient to show a violation. Ervin v. Northumberland Cnty. Airport Auth. — No. 13-82-03. Record of Decision (October 7, 1994). LRD Determination No. 8. 6. When can a Sponsor permit an aircraft with a wing span that exceeds the design width of a taxilane use that taxilane without violating Grant Assurance 19? A. The FAA found no violation in a case where only one aircraft with an excessive wing span used the taxilane, and the wing span exceeded the design width by “less than a few inches.” Roadhouse Aviation v. City of Tulsa — No. 16-05-08. — No. FAA-2005-22368. FAA-2005-22368-0023. 2006 FAA LEXIS 838. 2006 WL 3914734. Director’s Determination (December 14, 2006). LRD 21 Determination No. 167, Affirmed by Final Decision and Order of June 26, 2007. LRD Determination No. 179. 7. Does Grant Assurance 19 require the Sponsor to correct flooding and drainage problems on individually leased airport property? A. No. The FAA held that when the problems had existed and were known to the complainant at the time of the execution of the lease. In these circumstances, the tenant is responsible for correcting the problems or negotiating with the Sponsor to address the problem under the terms of the lease. Desert Wings Jet Ctr., LLC v. City of Redmond — No. 16-09-07. — No. FAA-2009-1102. FAA- 2009-1102-0019. 2010 FAA LEXIS 298. 2010 WL 4723466. Directors Determination (November 10, 2010). LRD 21 Determination No. 223. Affirmed by Final Agency Decision of May 25, 2012. LRD 21 Determination No. 236. In addition, the FAD (at p. 28) held that Grant Assurance 19 applies to “a pattern of action that fails to keep the airport operating as an airport.” 8. Will the FAA find a Sponsor in violation of Grant Assurance 19 if it had in the past failed to maintain edge lighting and issue appropriate NOTAMS? A. No. The FAA held that there was no basis for finding a current violation when the past failures had been corrected. Keyes v. McMinn Cnty., Tenn. — No. 16-08-12. — No. FAA-2009-1056. FAA-2009-1056-0008. Director’s Determination (December 12, 2009). LRD 21 Determination No. 212. Affirmed by Final Agency Decision and Order of July 26, 2010. LRD Determination No. 219. 9. Will the FAA find a Sponsor in violation of Grant Assurance 19 based on a single runway incursion incident?

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-11 A. The FAA found no violation based on a single runway incursion incident, where the Sponsor had implemented state Department of Transportation (DOT) safety recommendations and had in place a vehicle driving program addressing the operation of vehicles on the airport. Roemer v. Manitowish Waters Airport Comm'n — No. 13-96-10. Record of Decision (March 20, 1998). LRD Determination No. 39. 10. Does a Sponsor that permits non-aeronautical commercial business to use hangars and the storage of non-aeronautical items in hangars violate Grant Assurance 19? A. Yes. The FAA found that a Sponsor violated Grant Assurance 19 by permitting the operation of non-aeronautical businesses, storage of non-aeronautical items and storage of non-airworthy aircraft because these activities interfered with aeronautical activities. Valley Aviation Servs., LLP v. City of Glendale, Ariz. — No. 16-09-06. — No. FAA-2009-1020. FAA-2009-1020-0015. 2011 FAA LEXIS 136. 2011 WL 2274635. Director's Determination (May 24, 2011). Director’s Determination (May 24, 2011). LRD 21 Determination No. 229. E-11 Grant Assurance 20, Hazard Removal and Mitigation 1. If the Sponsor also operates a landfill, what are its obligations for management of bird hazards created by the landfill? A. The Sponsor’s Landfill Bird Harassment Program or Bird and Wildlife Management Plan must provide sufficient guidance and direction to be executed by employees without prior experience. Also, adequate training must be provided and the airport must demonstrate that its plan has been implemented. Town of Fairview, Tex. v. City of McKinney, Tex. (1999) — No. 16-99-04. 2000 FAA LEXIS 738. 2000 WL 1100236. Director's Determination on Remand (July 26, 2000). LRD Determination No. 69 – Remand from Order of Remand (March 28, 2000). LRD 21 Determination No. 60. Affirmed by Final Decision and Order of January 23, 2001. LRD 21 Determination No. 79. 2. Does the cancellation of a noise mitigation flight procedure by a Sponsor violate its obligation to remove or mitigate hazards to navigation? A. Not necessarily. When the cancellation was based on safety concerns raised by the local FAA TRACON and the airport’s FAA contract air traffic control tower, the FAA found the cancellation to meet the airport’s obligations. Town of Fairview, Tex. v. City of McKinney, Tex. (2004) — No. 16- 04-07. — No. FAA-2005-20888. FAA-2005-20888-0015. Director’s Determination (June 28, 2005). LRD 21 Determination No. 141. Affirmed by Final Decision and Order of November 30, 2005. LRD Determination No. 147. 3. Does a Sponsor violate Grant Assurance 20 by permitting a project to be constructed in a location that would be in an RPZ based a potential change in the arrival patterns for a runway? A. The FAA found no violation of Grant Assurance 20 when a proposed project was not located within the airport’s current runway protection zone (RPZ) and when a potential future change in arrival pattern that would have put the project in the RPZ had been rejected by the Sponsor and FAA as infeasible. Paskar v. City of New York — No. 16-11-04. — No. FAA-2011-0612. FAA-2011-

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-12 0612-0024. Director’s Determination (September 27, 2012). LRD 21 Determination No. 238. Affirmed by Final Agency Decision of June 17, 2015. Review denied sub nom. Paskar v. FAA, 478 F. App'x 707 (2d Cir. 2012) (unpublished). 4. Does a Sponsor violate Grant Assurance 20 if it violates a noise mitigation flight procedure based on safety concerns? A. No. The FAA found no violation of Grant Assurance 20 when the Sponsor’s cancellation was based on safety concerns raised by the local FAA TRACON and the airport’s FAA contract air traffic control tower. Town of Fairview, Tex. v. City of McKinney, Tex. (2004) — No. 16-04-07. — No. FAA-2005-20888. FAA-2005-20888-0015. Director’s Determination (June 28, 2005). LRD 21 Determination No. 141. Affirmed by Final Decision and Order of November 30, 2005. LRD Determination No. 147. 5. Does a Sponsor that also operates an off-airport landfill violate Grant Assurance 20, if its bird hazard mitigation program is not administered effectively? A. The FAA found a violation of Grant Assurance 20 by failing to mitigate bird hazards properly at the Sponsor’s landfill when its Landfill Bird Harassment Program did not provide sufficient guidance and direction to be executed effectively by personnel without the requisite experience. Town of Fairview, Tex. v. City of McKinney, Tex. (1999) — No. 16-99-04. 2000 FAA LEXIS 738. 2000 WL 1100236. Director's Determination on Remand (July 26, 2000). LRD 21Determination No. 69 – Remand from Order of Remand (March 28, 2000). LRD 21 Determination No. 60. Affirmed by Final Decision and Order of January 23, 2001. LRD 21 Determination No. 79. E-12 Grant Assurance 21, Compatible Land Use 1. Can a Sponsor permit residential use of airport hangars? A. No. The FAA considers residential use to be incompatible with an airport. Therefore, an airport is obligated to prevent residential use of its airport hangars. Carey v. Afton-Lincoln Cnty. Mun. Airport Joint Powers Bd. — No. 16-06-06. — No. FAA-2006-25154. FAA-2006-25154-0011. 2007 FAA LEXIS 40. 2007 WL 430630. Director’s Determination (January 19, 2007). LRD 21 Determination No. 168. Affirmed by Order Dismissing Appeal of November 14, 2007. LRD 21 Determination No. 184. 2. Can a Sponsor permit a recycling center near the airport and fulfill its obligations to assure airport compatible land-use? A. In a case where the recycling center operations were comparable to those described in Advisory Circular 150/5200-33 for recycling centers; were not considered an attractant to hazardous wildlife; and were an appropriate use in the vicinity of an airport, the FAA found that the Sponsor had fulfilled its obligations. Keathly v. City of McKinney, Tex. — No. 16-03-14. — No. FAA-2003-15999. 200

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-13 4 FAA LEXIS 876. 2004 WL 3198207. Director’s Determination (October 13, 2004). LRD 21 Determination No. 128 E-13 Grant Assurance 22, Economic Nondiscrimination E-13.1 Leasing and Lease Terms (Grant Assurance 22.a) 1. Does Grant Assurance 22 require a Sponsor to lease vacant space on a first-come, first-served basis? A. No. The airport may consider willingness to pay, in order to further the public interest in civil aviation. Kihlstrom v. Port of Orcas, Wash. — No. 16-02-07. — No. FAA-2002-13075. Director’s Determination (September 1, 2004). LRD 21 Determination 127. 2. Does a Sponsor violate Grant Assurance 22 by granting a preferential-use lease for AIP funded ramp at a more convenient location to one competitor than it does to another? A. The FAA found no violation when both competitors were leasing AIP funded ramps. It also held that the assurance does not require the Sponsor to offer convenience or efficiency to its tenants or to provide a certain level of cost effectiveness. Asheville Jet, Inc. v. Asheville Reg'l Airport Auth. — No. 16-08-02. — No. FAA-2008-1077. Director’s Determination (October 1, 2009). LRD 21 Determination No. 209. 3. Does Sponsor violate Grant Assurance 22 by modifying lease terms that may themselves be inconsistent with its grant obligations? A. No. In fact, the FAA considered the modification of such lease terms to be inherently consistent with the grant assurances. Platinum Aviation v. Bloomington-Normal Airport Auth. — No. 16-06- 09. — No. FAA-2006-25202. FAA-2006-25202-0021. Director’s Determination (June 4, 2007). LRD 21 Determination No. 176. Affirmed by Final Decision and Order of November 28, 2007. LRD 21 Determination No. 185. 4. How long before the expiration of a lease must a Sponsor start negotiations for a renewal to comply with Grant Assurance 22? A. While the FAA said that there is no specific time required for the start of lease negotiations, a continued pattern of waiting until 30 days prior to the expiration of a lease could in the future be considered a refusal to negotiate in good faith. Jim DeVries et al. v. St. Clair, MO – No. 16-12-07. Director’s Determination (May 24, 2014). 5. Is a pending request to the FAA to close an airport a reasonable basis for refusing to negotiate new leases or lease renewals under Grant Assurance 22? A. No. The FAA held that a pending petition to close did not justify a refusal to negotiate leases, because the airport remained subject to the Grant Assurances while the petition was under review. But it found no violation because the airport had negotiated lease renewals. Jim DeVries et al. v. St. Clair, MO – No. 16-12-07. Director’s Determination (May 24, 2014).

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-14 6. Is a Sponsor required to offer a ground lease to construct private hangars when there are private hangars available under Grant Assurance 22? A. No. The FAA held that no such obligation exists under Grant Assurance 22, citing Order 5190.6B, Section 9.7(b). Jim DeVries et al. v. St. Clair, MO – No. 16-12-07. Director’s Determination (May 24, 2014). 7. Is it unjustly discriminatory for an airport commission to discuss proposals for leasing a hangar in closed executive session with one potential tenant? A. Not necessarily. The FAA found no unjust discrimination where the complainant itself had private negotiations. NDC, Inc. v. City of Beverly, Mass. — No. 13-93-04. Record of Decision (January 12, 2001). LRD 21 Determination No. 78. 8. If there are multiple helicopter sightseeing tour operators on the airport, will the FAA consider them to be similarly situated, or will the FAA consider other factors? A. Where one helicopter tour operator (the complainant) proposed to make a substantial capital investment, and the others had not, the FAA considered them to be not similarly situated, and determined that the Sponsor should have considered the complainant to be more like other commercial operators. The FAA found that the offer of a two-year renewable license, and refusal to grant a 30-year lease were insufficient to permit the complainant to amortize its proposed investment and were therefore unreasonable and unjustly discriminatory vis-a-vis other commercial operators granted long term leases and business licenses of the same length. Skydance Helicopters, Inc. v. Sedona-Oak Creek Airport Auth. — No. 16-02-02. — No. FAA-2002-13068. FAA-2002-13068- 0010. 2003 FAA LEXIS 92. 2003 WL 1524500. Director’s Determination (March 7, 2003). LRD 21 Determination No. 110. 9. Can a Sponsor terminate the lease of a tenant that has not paid rent and not submitted required financial reports? A. Yes. The FAA found that the tenant’s failure to pay rent and comply with reporting requirements in the lease provided good cause for terminating the lease, and that the termination was justified under Grant Assurance 22. Goodrich Pilot Training Ctr., LLC v. Village of Endicott, N.Y. — No. 16-08- 03. — No. FAA-2008-1024. Director’s Determination (April 3, 2009). LRD 21 Determination No. 201. 10. If a Sponsor has conditionally approved a proposal for commercial aeronautical services, and the proposer does not take action to comply with the conditions, is the Sponsor required to continue negotiations? A. No. Once the Sponsor has offered reasonable conditions, it is up to the proposer to take tangible steps to meet those conditions, so long as the Sponsor does not prevent the proposer from meeting those conditions. Johnson v. Goldsboro-Wayne Airport Auth. — No. 16-08-11. — No. FAA-2009- 0744. Director’s Determination (October 9, 2009). LRD 21 Determination No. 210. 11. If there have been lengthy negotiations or multiple offers by the Sponsor, which one does the FAA consider when determining Grant Assurance compliance?

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-15 A. The FAA will generally consider the Sponsor’s last offer or negotiating position. Johnson v. Goldsboro-Wayne Airport Auth. — No. 16-08-11. — No. FAA-2009-0744. Director’s Determination (October 9, 2009). LRD 21 Determination No. 210. 12. When would the refusal to lease available space for aeronautical use be an unreasonable denial of access? A. The FAA found an unreasonable denial when the airport’s governing body refused to approve a finalized lease recommended by airport staff; refused again 17 months later; and failed to develop available airport land for a number of years. Grayson v. DeKalb Cnty., Ga. — No. 16-05-13. — No. FAA-2005-22377. FAA-2005-22377-0005. Director’s Determination (February 1, 2006). LRD 21 Determination No. 152. 13. What is a reasonable delay in executing an FBO lease after the Sponsor approves a request to operate an FBO? A. The FAA held a four-month delay to be reasonable. Flightline Aviation, Inc. v. City of Shreveport, La. — No. 16-07-05. — No. FAA-2007-0320. FAA-2007-0320-0012. 2008 FAA LEXIS 75. 2008 WL 5955355. Director’s Determination (March 7, 2008). LRD 21 Determination No. 189. 14. If Sponsor exercises its right under a lease to require a tenant to vacate its leasehold, what are its obligations under Grant Assurance 22 to provide alternative accommodations? A. The Sponsor is required to make a reasonable good faith effort to relocate the tenant. If the tenant refuses a reasonable offer of accommodation, that refusal is not a basis for finding violation of the grant assurance, so long the Sponsor has not favored any particular tenant in exercising its right to require a leasehold to be vacated. Ricks v. Greenwood-Leflore Airport — No. 16-09-04. — No. FAA-2011-0279. FAA-2011-0279-0032. 2011 FAA LEXIS 37. 2011 WL 381953. Director’s Determination (January 24, 2011). LRD 21 Determination No. 225. 15. What type of termination provisions included in an airport’s business license might be considered unreasonable requirements for access in violation of Grant Assurance 22? A. The FAA found the following provisions to be unreasonable:  Permitting termination without cause in the airport’s sole discretion  Requiring the operator to quit the premises on seven days’ notice of a breach with no opportunity to cure  Requiring a waiver of appeal rights to the FAA The FAA also found unjust discrimination because similarly situated commercial operators received business licenses of the same length as their lease, while the airport offered the complainant a much shorter license (two-year license on a requested 30-year lease). Skydance Helicopters, Inc. v. Sedona-Oak Creek Airport Auth. — No. 16-02-02. — No. FAA-2002-13068. FAA-2002-13068- 0010. 2003 FAA LEXIS 92. 2003 WL 1524500. Director’s Determination (March 7, 2003). LRD 21 Determination No. 110.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-16 16. Does a Sponsor’s refusal to lease a sky-diving operator’s preferred hangar result in an unreasonable denial of access? A. The FAA held that when the airport allowed the sky-diving operator to take off and land and use the drop zone and refuel, there was no denial of access due to the refusal to lease the preferred hangar. The FAA noted however, that the airport was obligated to make available other suitable space, or land on which the sky-diving operator could construct its own facilities. Skydive Monroe, Inc. v. City of Monroe, Ga. — No. 16-06-02. — No. FAA-2006-25194. FAA-2006-25194-0013. 2007 FAA LEXIS 117. 2007 WL 1058450. Director’s Determination (March 30, 2007). LRD 21 Determination No. 173. 17. Can a Sponsor deny a request to lease space to a would-be FBO at the FBO’s preferred location, because that location is inconsistent with the airport’s overall plan of separating general aviation, cargo and commercial activities? A. Yes. This approach is a recognized concept in airport planning and not unreasonable. Buffalo Jet Ctr., Inc. v. Niagara Frontier Transp. Auth. — No. 16-98-01. 1998 FAA LEXIS 1132. 1998 WL 1083383. Director’s Determination (August 19, 1998). LRD 21 Determination No. 41. 18. Can a Sponsor require applicants for a long-term FBO lease to show that they can finance the development of their business? A. Yes. The FAA does not consider this requirement to be unreasonable or unjustly discriminatory, if applied to all applicants. Santa Monica Airport Ass'n v. City of Santa Monica, Cal. — No. 16-99- 21. 2000 FAA LEXIS 1120. 2000 WL 1824463. Director’s Determination (November 22, 2000). LRD 21 Determination No. 76. Affirmed by Final Decision and Order of February 4, 2003. LRD 21 Determination No. 109. 19. Must a Sponsor consider an unsolicited FBO proposal on its merits, or can it choose to issue an RFP after receiving the proposal? A. The FAA has determined that it is reasonable for a Sponsor to consider whether it wants to use an RFP process to obtain additional FBO services, even when it has already received an FBO proposal from a would-be operator. JetAway Aviation, LLC v. Bd. of Cnty. Comm'rs, Montrose Cnty., Colo. — No. 16-06-01. — No. FAA-2006-25185. FAA-2006-25185-0029. 2006 FAA LEXIS 841. 2006 WL 3914734. Director’s Determination (November 6, 2006). LRD 21 Determination No. 166. 20. Can a Sponsor deny a proposal to build hangars when there is a documented need for hangars as demonstrated by a long hangar waiting list? A. No. The FAA has determined that, while the Sponsor is not itself required to construct hangars, it is required to make space available on reasonable terms to those who are qualified to offer the needed services. Martyn v. Port of Anacortes, Wash. — No. 16-02-03. — No. FAA-2002-12988. FAA- 2002-12988-0012. 2003 FAA LEXIS 162. 2003 WL 21002099. Director’s Determination (April 14, 2003). LRD 21 Determination No. 113. 21. Can a Sponsor condition approval of a proposal to build hangars on a commitment to offer the hangars first to those who are on the airport’s hangar waiting list?

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-17 A. No. The FAA has determined that this requirement was unreasonable because the proposer would not be acting as an agent of the airport and therefore was not obligated to honor the airport’s commitments to those on the wait list. Martyn v. Port of Anacortes, Wash. — No. 16-02-03. — No. FAA-2002-12988. FAA-2002-12988-0012. 2003 FAA LEXIS 162. 2003 WL 21002099. Director’s Determination (April 14, 2003). LRD 21 Determination No. 113. 22. Can a Sponsor rely on a desire to complete a planning process and obtain acceptance from, among others, a citizens group known to oppose the airport, as a basis to reject a proposal to build hangars? A. Where the airport’s real motive was to limit growth, and acceptance by local jurisdictions was unrealistic, the FAA did not accept the Sponsor’s stated desire to complete the planning process as a justification for the denial. Martyn v. Port of Anacortes, Wash. — No. 16-02-03. — No. FAA-2002- 12988. FAA-2002-12988-0012. 2003 FAA LEXIS 162. 2003 WL 21002099. Director’s Determination (April 14, 2003). LRD 21 Determination No. 113. 23. Can a Sponsor refuse to renew a lease if the tenant will not agree to a specified level of new investment or agree to demolition of existing facilities? A. Yes, in some circumstances. The FAA has determined that it is reasonable for a Sponsor to designate a required level of investment as a condition of extending a lease. In the same decision, the FAA also determined that a requirement to demolish an existing hangar was reasonable, where retention of the hangar would have frustrated the airport’s goal of fully compatible, aesthetically pleasing and unified development. DeSciose v. City of Long Beach, Cal. — No. 16-99-12. 2001 FAA LEXIS 118. 2001 WL 246873. Director’s Determination (February 20, 2001). LRD 21 Determination No. 80. Affirmed by Final Decision and Order of December 13, 2001. LRD 21 Determination No. 93. 24. Can a Sponsor permit some tenants to conduct maintenance in their storage hangars, while denying that privilege to others? A. Yes if the two groups of tenants are not similarly situated. If a hangar is suitable for maintenance activity, e.g., a corporate jet hangar vs. a T hangar, and the rental rate reflects the additional convenience, the FAA may consider that the two tenants are not similarly situated. Ashton v. City of Concord, N.C. (1999) — No. 16-99-09. 2000 FAA LEXIS 150. 2000 WL 132770. Director’s Determination (January 28, 2000). LRD 21 Determination No. 58. Affirmed by Final Decision and Order of July 3, 2000. LRD 21 Determination No. 67. 25. What types of tenant activity might provide a reasonable and not unjustly discriminatory basis for a Sponsor to invoke a termination without cause provision in a lease? A. The FAA has found no violation in the case of a “bad actor” — a tenant that had a pattern of photographing and harassing other tenants, using the airport for non-aeronautical purposes and entering areas of the airport he knew were off-limits, and where the former tenant could continue to use the airport for other aeronautical activities, including landing and taking off, picking up and dropping off passengers, obtaining aircraft services and fueling the aircraft. Ashton v. City of Concord, N.C. (2000). No. 16-00-01. 2000 FAA LEXIS 1017. 2000 WL 1642458. Director’s

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-18 Determination (October 16, 2000). LRD 21 Determination No. 75. Affirmed by Final Decision and Order of April 17, 2001. LRD 21 Determination No. 83. However, in another case, the FAA stated that a Sponsor’s belief that prospective tenants had been difficult to work with in the preceding 17 years was not, by itself, sufficient justification for denying a request for a lease, although the FAA found the denial to be justified based on other considerations. Lytton v. Sheridan Cnty. Bd. of Cnty. Comm'rs — No. 16-01-16. — No. FAA-2003-15835. FAA-2003-15835-0004. 2002 FAA LEXIS 686. 2002 WL 32002471. Director’s Determination (December 20, 2002). LRD 21 Determination No. 107. 26. Is the exercise of lease provision permitting termination of a lease without cause a violation of Grant Assurance 22? A. Not necessarily. A tenant would have to show that the airport exercised the termination clause in an unreasonable or unjustly discriminatory manner. Ashton v. City of Concord, N.C. (2000) No. 16- 00-01. 2000 FAA LEXIS 1017. 2000 WL 1642458. Director’s Determination (October 16, 2000). LRD 21 Determination No. 75. Affirmed by Final Decision and Order of April 17, 2001. LRD 21 Determination No. 83. 27. Does a requirement that a prospective tenant provide information on business plan, financial status, certificates and licenses held and intended use of the proposed leasehold violate Grant Assurance 22? A. No. The FAA considers these to be reasonable requirements on the part of the airport. Asmus v. Haw. Dep't of Transp. Airports Div. — No. 16-05-11. — No. FAA-2005-22375. FAA-2005-22375- 0011. Director’s Determination (April 12, 2006). LRD 21 Determination No. 157. 28. Does a Sponsor’s refusal to make space available except on daily permits or revocable permits in an area undergoing renovation deny access on unreasonable terms? A. Not necessarily. The FAA found no denial of access in a case where the Sponsor’s intention was to offer long-term leases once renovations were completed and where the renovations were required for safety reasons. Asmus v. Haw. Dep't of Transp. Airports Div. — No. 16-05-11. — No. FAA- 2005-22375. FAA-2005-22375-0011. Director’s Determination (April 12, 2006). LRD 21 Determination No. 157. 29. Are commercial and non-commercial aeronautical tenants similarly situated for purposes of deciding whether differences in lease terms and the airport’s approach to negotiations are unjustly discriminatory? A. No. The FAA held that a commercial air ambulance service was not similarly situated to individual aircraft owners under Grant Assurance 22. Jim DeVries et al. v. St. Clair, MO – No. 16- 12-07. Director’s Determination (May 24, 2014).

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-19 E-13.2 Access and Use of Airport (Grant Assurance 22.a) 1. Can a Sponsor exclude an incumbent FBO from responding to an RFP for FBO services? A. Yes, if the purpose of the RFP is to “add further competition to the airport and to provide more choice and services for the public user.” 41 N. 73 W., Inc. d/b/a Avitat Westchester v. Westchester Cnty., N.Y. — No. 16-07-13. — No. FAA-2008-0309. Director’s Determination (June 12, 2008). LRD 21 Determination 195. 2. If a Sponsor has agreed to accept a donation of land in exchange for granting the right to lease back the land to one donor, is it unjustly discriminatory to refuse similar arrangements with other potential land donors? A. Not necessarily. The FAA found no unjust discrimination in a case where the second would-be donor’s proposal was inconsistent with the overall development plans for the airport. Nelson v. McMinn Cnty., Tenn. — No. 13-93-08. Record of Decision (July 18, 1995?). LRD 21 Determination No. 16. 3. Can a Sponsor prohibit an individual from leasing, subleasing or participating in the use of leased airport property? A. In some circumstances, yes. Where a former tenant had been in arrears in paying rent, had not become current despite repeated requests and had failed to meet other lease obligations, the FAA found the prohibition to be reasonable and not unjustly discriminatory. Cox v. City of Dallas, Tex. — No. 16-97-02. 1997 FAA LEXIS 1530. 1997 WL 1120744. Record of Determination (October 24, 1997). LRD 21 Determination No. 34. 4. If a Sponsor bans Part 121 scheduled service, will the FAA find a prohibited denial of access to a complainant that does not have a Part 121 certificate and has never applied for one? A. No. The FAA has held that there was no violation of Grant Assurance 22 for failing to provide access to a complainant in these circumstances. The FAA will not find a violation if a complainant has not taken reasonable steps to purse its plan or proposal. Flamingo Express, Inc. v. City of Cincinnati, Ohio — No. 16-06-04. — No. FAA-2006-25196. FAA-2006-25196-0011. 2007 FAA LEXIS 83. 2007 WL 926174. Director’s Determination (February 26, 2007). LRD 21 Determination No. 169. Affirmed by Final Decision and Order of August 9, 2007. LRD 21 Determination No. 181. Affirmed sub nom. Flamingo Express, Inc. v. FAA, 536 F.3d 561 (6th Cir. 2008). 5. Can a Sponsor deny a request to establish a commercial self-service retail fuel sales operation? A. Yes. The FAA interprets Assurance 22 to permit a Sponsor to require that retail fuel sales be bundled with other services; it has stated that Advisory Circular 150/5190-5 does not define aviation fuel retailing as a Specialized Aviation Services Operation (SASO) entitled to the protection of Grant Assurance 22. Lanier Aviation LLC v. City of Gainesville, Ga. — No. 16-05-03. — No. FAA-2005- 22367. FAA-2005-22367-0016. Director’s Determination (November 25, 2005). LRD 21 Determination No. 146.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-20 6. Is the requirement to provide access on reasonable terms limited to facilities financed with AIP grants or does it apply to the whole airport? A. It applies to the whole airport, based on the FAA decision in Orange Cnty. Soaring Ass'n v. Cnty. of Riverside, Cal. — No. 16-09-13. — No. FAA-2010-0092. FAA-2010-0092-0012. Director's Determination (February 11, 2011). LRD 21 Determination No. 226. 7. If a would-be tenant has a history of non-compliance, can a Sponsor refuse access to the public airfield to the bad actor in his individual capacity? A. No. The FAA has determined that the airport may refuse a permit to conduct a business and restrict access to leasehold areas of the airport, but it cannot deny access to the public airfield for aeronautical use in an individual capacity. Johnson v. Yazoo Cnty. — No. 16-04-06. — No. FAA- 2004-18987. FAA-2004-18987-0020. 2006 WL 559138. Director’s Determination (February 9, 2006). LRD 21 Determination No. 153. 7. Is Sponsor required to provide hangar space when no vacant space is currently available? A. No. The FAA interprets the requirement to provide access not to include a requirement for a general aviation airport to construct hangars at its own expense. However, the Sponsor does have an obligation to make suitable space available to anyone willing and otherwise qualified to construct hangars to accommodate unmet demand. Mainardi v. Lincoln Park Airport, Inc. — No. 16-02-12. — No. FAA-2003-14401. FAA-2003-14401-0010. Director’s Determination (November 25, 2003). LRD 21 Determination No. 118. Affirmed by Final Decision and Order of October 18, 2004. LRD 21 Determination No. 129. 8. Is a prior notification requirement for landing large aircraft (over 100,000 pounds) an unreasonable restriction on access? A. Not necessarily. In a case where the requirement was not enforced, and where the purpose was to control the flow of large aircraft into a tenant’s aircraft demolition and salvage business to preserve the safety and efficiency of the airport, the FAA considered the requirement to be reasonable and not a violation of Grant Assurance 22. BMI Salvage Corp. v. Miami-Dade Cnty., Fla. — No. 16-05-16. — No. FAA-2005-22380. FAA-2005-22380-0023. 2006 FAA LEXIS 561. 2006 WL 2512974. Director’s Determination (July 25, 2006). LRD 21 Determination 160. Affirmed by Final Decision and Order of March 5, 2007. LRD 21 Determination No. 170. 9. Is the operation of an aircraft demolition and salvage business an aeronautical or a non- aeronautical activity? A. It is both. The act of flying the aircraft onto the airport and bringing it to rest at the demolition site is aeronautical. The actual demolition and salvage activities are non-aeronautical. BMI Salvage Corp. v. Miami-Dade Cnty., Fla. — No. 16-05-16. — No. FAA-2005-22380. FAA-2005-22380- 0023. 2006 FAA LEXIS 561. 2006 WL 2512974. Director’s Determination (July 25, 2006). LRD 21 Determination 160. Affirmed by Final Decision and Order of March 5, 2007. LRD 21 Determination No. 170.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-21 10. Can a Sponsor require a tenant to give notification of extended storage of non-airworthy aircraft in designated aeronautical use areas? A. Yes. The FAA determined that a requirement for notification of storage of non-airworthy aircraft in designated aeronautical-use areas did not violate Grant Assurance 22.a, because the storage of aircraft parts is not an aeronautical activity. The FAA equates the storage of non-airworthy aircraft with the storage of aircraft parts. BMI Salvage Corp. v. Miami-Dade Cnty., FL — No. 16-05-16. — No. FAA-2005-22380. 2006 FAA LEXIS 561. 2006 WL 2512974. Director’s Determination (July 25, 2006). LRD 21 Determination No. 160. Affirmed by Final Decision and Order of July 3, 2000. LRD 21 Determination No. 170. 11. Are threats or vandalism a denial of access in violation of Grant Assurance 22? A. No. The FAA considered allegations of threat and vandalism under Grant Assurance 22 but determined that the allegations should have been referred to local law enforcement. Keyes v. McMinn Cnty., Tenn. — No. 16-08-12. — No. FAA-2009-1056. FAA-2009-1056-0008. Director’s Determination (December 12, 2009). LRD 21 Determination No. 212. Affirmed by Final Agency Decision and Order of July 26, 2010. LRD Determination No. 219. E-13.3 Requirement for Commercial Operators to Offer Services on Reasonable Terms (Grant Assurance 22.b) 1. If a commercial tenant unilaterally terminates a sub-lease, what does the FAA consider in deciding whether the Sponsor has violated Grant Assurance 22.b.1 to require commercial tenants to provide aeronautical services on a reasonable basis without unjust discrimination? A. The FAA found no violation in the following circumstances:  There was no evidence that other subleases did not contain the same termination provisions or that other subtenants were treated differently than the complaining subtenant in similar circumstances.  The airport’s lease with the commercial tenant required it to provide services on a reasonable and not unjustly discriminatory basis.  The airport investigated the subtenant’s allegations and reported that the commercial tenant’s requirements were reasonable and applied on a consistent basis. Mainardi v. Lincoln Park Airport, Inc. — No. 16-02-12. — No. FAA-2003-14401. FAA-2003- 14401-0010. Director’s Determination (November 25, 2003). LRD 21 Determination No. 118. Affirmed by Final Decision and Order of October 18, 2004. LRD 21 Determination No. 129. 2. If a tenant defaults on its master lease and is terminated, can the Sponsor evict its subtenants if they do not execute new leases? A. Yes. The FAA held that the subleases were extinguished when the tenant defaulted on its master lease. Stead Airport Users' Ass'n v. Airport Auth. of Washoe Cnty., Nev. — No. 13-98-01. 2005 FAA LEXIS 194. 2005 WL 825547. Record of Decision (March 24, 2005). LRD 21 Determination No. 136.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-22 E-13.4 Fees and Charges (Grant Assurance 22.c, 22.e.). (Specific questions arising under the DOT/FAA Rates and Charges Policy are addressed under Grant Assurance 24, Fee and Rental Structure) 1. Does Grant Assurance 22 require a Sponsor to always charge the same fees to two tenants providing the same aeronautical services? A. No. A Sponsor is obligated to charge the same or similar fees to similarly situated tenants. In addition to the type of service provided, other factors that the FAA will consider are differences in space, location, facilities and time of execution of the lease. Clarke v. City of Alamogordo, N.M. — No. 16-05-19. — No. FAA-2006-25212. Director’s Determination (September 20, 2006). LRD 21 Determination No. 164. In another case, the FAA found that variations in the fees and deposits required for security access cards to be acceptable because they were de minimis, and the differences were based on different uses of the airport and therefore do not treat similarly situated users differently. Lytton v. Sheridan Cnty. Bd. of Cnty. Comm'rs — No. 16-01-16. — No. FAA-2003- 15835. FAA-2003-15835-0004. 2002 FAA LEXIS 686. 2002 WL 32002471. Director’s Determination (December 20, 2002). LRD 21 Determination No. 107. However, in another case, the DOT found that a rate equalization policy that equalized rental rates for all users of the same class of space, “regardless of age, condition, location, or other factors was not unreasonable or unjustly discriminatory.” Miami Int'l Airport Rates Proceeding — No. OST-96-1965. Order No. 97-3-26. (March 19, 1997). DOT-OST-1996-1965-0138. 1997 DOT Av. LEXIS 118. 1997 WL 120400. LRD 21 Determination No. 24. Petitions for review denied sub nom. Air Canada v. Dep't of Transp., 148 F.3d 1142 (D.C. Cir. 1998). In another case, the FAA held that differences in level of investment and business models meant that two firms were not similarly situated, even though they offered the same services. Truman Arnold Companies d/b/a TAC Air v. Chattanooga Metropolitan Airport Authority – No. 16-11-08. Director’s Determination. (October 4, 2013). 2. Must a Sponsor always include rate escalation clauses in its leases to comply with Grant Assurance 22? A. No. While the FAA encourages them, because they may avoid disputes regarding differential rates, the FAA does not consider them to be required for compliance with Grant Assurance 22. Desert Wings Jet Ctr., LLC v. City of Redmond — No. 16-09-07. — No. FAA-2009-1102. FAA- 2009-1102-0019. 2010 FAA LEXIS 298. 2010 WL 4723466. Directors Determination (November 10, 2010). LRD 21 Determination No. 223. Affirmed by Final Agency Decision of May 25, 2012. LRD 21 Determination No. 236. 3. If a Sponsor is negotiating with two similarly situated tenants to renew their leases at the same time, is it required to offer the same rates and terms to both? A. Yes. Even if the initial leases were executed at different times with different rates and terms, if the leases are being renewed at the same time, the Sponsor should seek to achieve parity in the new leases going forward. Langa Air, Inc. v. St. Louis Reg'l Airport Auth. — No. 16-00-07. Director’s Determination (March 29, 2001). LRD 21 Determination No. 82. Affirmed by Final Decision and Order of December 13, 2001. LRD 21 Determination No. 94.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-23 4. Is a Sponsor required to use one particular index for an escalation clause in a long term aeronautical lease? A. No. The FAA has held that the grant assurances and FAA policies do not require any specific index on which escalation clauses should be based. Coutches v. City of Hayward, Cal. — No. 13-92- 08. Record of Decision (July 13, 1994). LRD 21 Determination No. 6. 5. Is it unjustly discriminatory to provide one tenant ramp space and buildings on a rent-free basis, while requiring other tenants to pay rent for the ramp and construct its own buildings? A. Not necessarily. In one case the FAA found that the savings to the airport from avoided maintenance costs, among other things, justified the disparate treatment. Hamilton v. City of Yankton, S.D. — No. 13-93-06. Record of Decision (October 23, 1995). LRD 21 Determination No. 18. 6. Is it unjustly discriminatory to charge an annual user fee to based aircraft operators, but not to transient aircraft operators? A. No. The FAA considers transient operators and based operators not to be similarly situated, and therefore different fee and rental structures are permissible, as long as the fees are reasonable. R/T- 182, LLC v. Portage Cnty. Reg'l Airport Auth. — No. 16-05-14. — No. FAA-2006-25076. FAA- 2006-25076-0013. FAA-2006-25076-0014. 2006 FAA LEXIS 766. 2006 WL 3264503. 2006 WL 4393153. 2006 WL 4393157. Director’s Determination (November 1, 2006). LRD Determination No. 165. Affirmed by Final Agency Decision of March 29, 2007. LRD Determination No. 172. See also Wadsworth Airport Ass'n, Inc. v. City of Wadsworth — No. 16- 06-14. — No. FAA-2007-27226. 2007 FAA LEXIS 282. 2007 WL 2373611. Director’s Determination (August 8, 2007). LRD 21 Determination No. 180. 7. Can a Sponsor charge a minimum landing fee to small aircraft without violating Grant Assurance 22? A. Where the FAA believed that the minimum landing fee reflected “a realistic and nondiscriminatory allocation of the Airport’s operating and capital costs attributable to operations with aircraft weighing less than the designated threshold landing weight”, the FAA found no violation. The FAA also noted that the airport’s methodology was supported by a description of the airport’s cost accounting system, the airport’s Signatory Agreement, analysis of rates and charges, the airport’s rate resolution and budgeted costs. Union Flights, Inc. v. S.F. Int'l Airport — No. 16-99-11. 2000 FAA LEXIS 316. 2000 WL 311170. Director’s Determination (February 15, 2000). LRD 21 Determination No. 59. However, in another case the Department of Transportation found that a minimum landing fee based on congestion was unjustly discriminatory because the Sponsor applied it on a round-the-clock basis, even in periods when the airport was not congested. Investigation into Massport's Landing Fees — No. 13-88-02. Opinion and Order (December 22, 1988). LRD Determination No. 2. Affirmed, sub nom. New England Legal Foundation, et al. v. Massachusetts Port Authority; Department of Transportation, et al., 883 F.2d 157 (1st Cir. 1989). LRD 13. 8. Is a $2,000 difference in total payments to a Sponsor between a tenant and its competitor sufficient to show unjust economic discrimination?

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-24 A. The FAA found no unjust economic discrimination where the competitor with the lower payments was leasing less space and fewer facilities. United Aircraft Servs., Inc. v. Hancock Cnty. Port & Harbor Comm'n — No. 16-00-04. 2000 FAA LEXIS 1016. 2000 WL 1642460. Director’s Determination (October 12, 2000). LRD 21 Determination No. 74. 9. If a Sponsor is not using a cost-based methodology to establish fees, what standard does FAA apply to determine if its fees are not unjustly discriminatory? A. The FAA will not find a violation if the airport applies a consistent methodology in establishing fees for comparable aeronautical users. Thermco Aviation, Inc. v. L.A. — No. 16-06-07. — No. FAA-2006-25158. Director’s Determination (June 21, 2007). LRD 21 Determination No. 178. 10. Can a Sponsor that engages in commercial fuel sales offer volume discounts? A. The FAA found that volume discounts did not violate Grant Assurance 22 when they were available to all users that met the volume standards, and that the discounts were appropriately based on airport costs incurred. Miller v. Bd. of Aviation Comm'rs of the City of Warsaw, Ind. — No. 16- 03-03. — No. FAA-2003-15032. FAA-2003-15032-0006. 2003 FAA LEXIS 427. 2003 WL 22696922. Director’s Determination (October 20, 2003). LRD 21 Determination No. 117. Affirmed by Final Decision and Order of February 27, 2004. LRD 21 Determination No. 122. 11. If an FBO is subject to restrictions on the size of aircraft or type of services it provides, does it qualify as “similarly situated” with an FBO that is not subject to those restrictions, and is it required to pay a comparable rental rate? A. No. The restrictions would provide a basis for finding that the rate differential is justified and not a violation of Grant Assurance 22. 41 N. 73 W., Inc. d/b/a Avitat Westchester v. Westchester Cnty., N.Y. — No. 16-07-13. — No. FAA-2008-0309. Director’s Determination (June 12, 2008). LRD 21 Determination No. 195. 12. If an FBO has agreed to terms and conditions on its operations, including restrictions, and the rates that it must pay, can it successfully argue that the terms of its lease and its lease rates are unjustly discriminatory? A. No. It is longstanding FAA policy that “rent and lease discrimination cannot be unjust if the complaining party agreed to differing rights, restrictions and responsibilities in negotiations.” 41 N. 73 W., Inc. d/b/a Avitat Westchester v. Westchester Cnty., N.Y. — No. 16-07-13. — No. FAA-2008- 0309. Director’s Determination (June 12, 2008). LRD 21 Determination No. 195. 13. Is a tenant entitled by Grant Assurance 22 to a rental credit for improvements that the tenant made to a leasehold? A. No. The FAA considers the granting of rental credits in these circumstances to be a matter of negotiation between the airport and tenant, and best handled at the local or state level. Cedarhurst Air Charter, Inc. v. Cnty. of Waukesha, Wis. — No. 16-99-14. 2000 FAA LEXIS 751. 2000 WL 1130495. Director’s Determination (April 1, 2000). LRD 21 Determination No. 61.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-25 14. When can a Sponsor charge current FMV rates to one tenant, while other tenants are paying lower rates? A. In one case the FAA considered the following to justify the rate differential:  The other tenants were paying rates based on FMV at the time their leases were executed; and  The complainant’s competitor had received a discount in exchange for benefits provided to the airport, including collection of landing fees, removal of disabled aircraft and paying a higher percentage commission on gross sales than other tenants. Wychoff v. Cnty. of Suffolk, N.Y. — No. 13-90-02. Record of Decision (July 22, 1996). LRD 21 Determination 21. 15. Is it unjustly discriminatory to require a T hangar concessionaire to pay for the costs of paving its exclusive-use taxiway, when other concessionaires are not required to pay for paving a public-use taxiway that leads to their T hangars? A. No. The FAA found no unjust discrimination because the complainant had the exclusive use of its taxiway; was not paying rent for its taxiway area, and because the public-use taxiway used by the other T hangar concessionaires was paid for with federal assistance and served multiple tenants. Gen. Aviation, Inc. v. Capital Region Airport Auth. — No. 13-94-24. Record of Decision (August 6, 1999). LRD 21 Determination No. 52. 16. If a general aviation airport Sponsor with a proprietary exclusive fuel operation is using a fuel flowage fee to recover airfield costs, what cost items can it include in the fuel flowage fee calculation? A. The FAA found a cost allocation calculation of 100% of the Airfield Maintenance Department; 75% of equipment maintenance; 30% of administrative costs; and 25% of accounting costs to be reasonable. However, the FAA also said that capital costs cannot be included in the rate-base in full, but must be depreciated; that costs of the airport’s proprietary exclusive fueling operation cannot be included in the fuel flowage fee charged to those who self-fuel; and that costs of facilities under exclusive or preferential leases cannot be included in the fuel flowage fee charged to other users. Scott Aviation, Inc. v. DuPage Airport Auth. — No. 16-00-19. 2002 FAA LEXIS 398. 2002 WL 31429252. Director’s Determination (July 19, 2002). LRD 21 Determination No. 103. 17. If a Sponsor offers rental credits and other concessions to one tenant to settle litigation over a breach of contract claim, are other tenants entitled to similar concessions under Grant Assurance 22? A. No. The FAA will not substitute its judgment for that of the court or the Airport in determining the level of damages appropriate to resolve the claimed breach of contract, especially where there is no evidence that the concessions resulted in the complaining tenant paying excessive fees. Flightline Ground, Inc. v. La. Dep't of Transp. & Dev. — No. 16-11-01. — No. FAA-2011-0529. Director’s Determination (October 24, 2012). LRD 21 Determination No. 239. Affirmed by Final Agency Decision of June 17, 2015. 18. If a Sponsor charges a fuel flowage fee to self-fuelers, must it charge the same fee to all similarly situated self-fuelers.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-26 A. Yes. While the FAA found that a Sponsor could charge a fuel flowage fee to self-fuelers without violating the grant assurance, it also found that charging 16 cents per gallon to one self-fueler while other similarly situated self-fuelers paid 40 cents was unjustly discriminatory. Jet 1 Ctr., Inc. v. Naples Airport Auth. — No. 16-04-03. — No. FAA-2004-18968. Director's Determination (January 4, 2005). FAA-2004-18968-0019. 2005 FAA LEXIS 1. 2005 WL 389218. 2005 WL 5311093. LRD 21 Determination No. 133. Affirmed by Final Agency Decision of July 15, 2005. LRD 21 Determination No. 142. E-13.5 The Right to Self-Service and Self-Fuel (Grant Assurance 22.d, 22.f) 1. Does the right to self-service and self-fuel guarantee the aircraft owner-operator a right to space that it considers suitable to exercise this right? A. Not necessarily. Grant Assurance 22 is primarily intended to prevent Sponsors from forcing aircraft owners to avail themselves of specific service providers at the airport in lieu of performing the needed service themselves. Thermco Aviation, Inc. v. L.A. — No. 16-06-07. — No. FAA-2006- 25158. Director’s Determination (June 21, 2007). LRD 21 Determination 178. 2. Can an air carrier claim the self-service right to avoid paying a Sponsor’s standard commercial ground-handling fee when it uses a separate affiliated corporation to perform ground handling? A. No. The FAA held that the right to self-service only applies to the use of an air carrier’s own employees, and not to those of a separate company. While the carrier could have avoided the fee if it used its own employees, its choice of business model to rely on a separate company meant that the commercial ground-handling fee did not violate the right to self-service and was not unjustly discriminatory vis-à-vis other carriers that used their own employees for ground handling. Evergreen Int'l Airlines, Inc. v. Port Auth. of N.Y. & N.J. — No. 16-10-04. — No. FAA-2011-1282. FAA- 2011-1282-0013. Director’s Determination (April 2, 2002). LRD 21 Determination No. 235. 3. If a Sponsor does not expressly prohibit self-fueling, can it violate Grant Assurance 22.f by delaying its adoption of a self-fueling policy and not advising an operator of its self-fueling policy? A. Yes. The FAA found that, in these circumstances, when an airport user had been denied the right to self-fuel for over two years, a violation of Assurance 22.f had occurred. Cedarhurst Air Charter, Inc. v. Cnty. of Waukesha, Wis. — No. 16-99-14. 2000 FAA LEXIS 751. 2000 WL 1130495. Director’s Determination (April 1, 2000). LRD 21 Determination No. 61. 4. How long may a Sponsor delay adoption of self-fueling minimum standards without violating Grant Assurance 22, if it does not permit self-fueling until the new standards are in place? A. The FAA found that a delay of one-and-a-half years was unreasonable and violated Grant Assurance 22(f). The FAA stated that the airport was obligated to offer reasonable interim standards. Maxim United, LLC v. Bd. of Cnty. Comm'rs of Jefferson Cnty. — No. 16-01-10. 2002 FAA

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-27 LEXIS 170. 2002 WL 963590. Director’s Determination (April 2, 2002). LRD 21 Determination No. 99 5. If a Sponsor prohibits one aircraft owner/operator from self-fueling pending adoption of new minimum standards, can it allow other owner/operators with older leases to self-fuel? A. The FAA found this situation to be a per se violation of the prohibition on unjust discrimination (Assurance 22.a). Maxim United, LLC v. Bd. of Cnty. Comm'rs of Jefferson Cnty. — No. 16-01-10. 2002 FAA LEXIS 170. 2002 WL 963590. Director’s Determination (April 2, 2002). LRD 21 Determination No. 99. 6. Is it a violation of Grant Assurance 22 to apply an airport’s new minimum standards for self- fueling, which are based on EPA requirements, to a new request for self-fueling, while the airport permits existing self-fuelers more time to meet the EPA standards? A. Not necessarily. In one case, the FAA said it was acceptable to delay application of the new EPA requirements to existing self-fuelers because the EPA regulations permitted this delay. AmAv, Inc. v. Md. Aviation Admin. — No. 16-05-12. — No. FAA-2005-22376. FAA-2005-22376-0018. 2006 WL 2038717. Directors Determination (March 20, 2006). LRD 21 Determination No. 155. Affirmed by Final Decision and Order of August 8, 2006. LRD 21 Determination No. 161. 7. If a Sponsor has a policy of requiring all fuel farms to be at a central location and applies this policy consistently to all users, has the Sponsor satisfied its obligation to permit self-fueling by offering the would be self-fueler the choice of either (1) a permit to operate a fuel truck or (2) a land lease for a private fuel farm at the centralized fuel farm location? A. Yes. The FAA found that the Sponsor had no obligation to grant the tenant’s request to construct a fuel farm at its hangar in these circumstances. Monaco Coach Corp. v. Eugene Airport — No. 16- 03-17. — No. FAA-2004-17366. FAA-2004-17366-0010. 2004 FAA LEXIS 878. 2004 WL 3198205. Director’s Determination (July 27, 2004). LRD 21 Determination No. 126. Affirmed by Final Agency Decision of March 4, 2005. LRD 21 Determination No. 135. 8. Can a Sponsor impose more stringent inspection standards on a tenant with underground fuel tanks than existing state or federal standards? A. Yes. The FAA has held that the airport may impose more stringent inspection standards as long as they are imposed in a fair and not unjustly discriminatory manner. Ervin v. Northumberland Cnty. Airport Auth. — No. 13-82-03. Record of Decision (October 7, 1994). LRD Determination No. 8. 9. If a Sponsor exercises its proprietary exclusive right to sell fuel, can it still collect a fuel flowage fee from tenants that self-fuel? A. Yes. The FAA has determined that this arrangement does not violate Grant Assurance 22. Miller v. Bd. of Aviation Comm'rs of the City of Warsaw, Ind. — No. 16-03-03. — No. FAA-2003-15032. FAA-2003-15032-0006. 2003 FAA LEXIS 427. 2003 WL 22696922. Director’s Determination (October 20, 2003). LRD 21 Determination No. 117. Affirmed by Final Decision and Order of February 27, 2004. LRD 21 Determination No. 122.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-28 10. Can a Sponsor adopt a fuel flowage fee requirement for self-fuelers one day after it receives a request to engage in self-fueling? A. The FAA found no violation in this situation, explaining that "It is appropriate for an airport sponsor to modify or adjust minimum standards based on changing circumstances at the airport." Miller v. Bd. of Aviation Comm'rs of the City of Warsaw, Ind. — No. 16-03-03. — No. FAA-2003- 15032. FAA-2003-15032-0006. 2003 FAA LEXIS 427. 2003 WL 22696922. Director’s Determination (October 20, 2003). LRD 21 Determination No. 117. Affirmed by Final Decision and Order of February 27, 2004. LRD 21 Determination No. 122. 11. What basis can a Sponsor that exercises its proprietary exclusive right to sell fuel use to establish a fuel flowage fee for self-fuelers? A. The FAA found that a calculation based on total operating costs less other revenue sources was reasonable, particularly when the amount was midway between the high and low fees charged by other comparable airports. Miller v. Bd. of Aviation Comm'rs of the City of Warsaw, Ind. — No. 16-03-03. — No. FAA-2003-15032. FAA-2003-15032-0006. 2003 FAA LEXIS 427. 2003 WL 22696922. Director’s Determination (October 20, 2003). LRD 21 Determination No. 117. Affirmed by Final Decision and Order of February 27, 2004. LRD 21 Determination No. 122. 12. Can a Sponsor adopt a temporary ban on washing planes without violating the self-service requirement? A. A temporary ban to allow the Sponsor to come into compliance with its Stormwater Pollution Prevention Plan is not a violation if it is applied uniformly to all tenants. Ricks v. Greenwood- Leflore Airport — No. 16-09-04. — No. FAA-2011-0279. FAA-2011-0279-0032. 2011 FAA LEXIS 37. 2011 WL 381953. Director’s Determination (January 24, 2011). LRD 21 Determination No. 225. 13. Is a Sponsor improperly denying a tenant the right to self-fuel if it permits the FBO to charge its standard FBO fuel rates, even when the tenant is using its own employees to pump fuel after hours? A. Yes. The FAA held that this situation violated the assurance guaranteeing the right to self-fuel. Boston Air Charter v. Norwood Airport Comm'n — No. 16-07-03. — No. FAA-2007-28820. Final Decision and Order of August 14, 2008. LRD 21 Determination No. 196, Affirming Director’s Determination (April 11, 2008). LRD 21 Determination No. 192. 14. Can a Sponsor designate a specific area for owners and operators to perform self-service maintenance? A. Yes. The designation of a specific maintenance area is consistent with the Sponsor’s discretion to protect the safety and welfare of the tenants and users, and for environmental protection and managerial reasons. The FAA will not find a violation of the Grant Assurance based on a claim that the designated area is impractical or unduly burdensome when the complainant and other users are actually using the designated area. Ashton v. City of Concord, N.C. (1999) — No. 16-99-09. 2000 FAA LEXIS 150. 2000 WL 132770. Director’s Determination (January 28, 2000). LRD 21

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-29 Determination No. 58. Affirmed by Final Decision and Order of July 3, 2000. LRD 21 Determination No. 67. 15. Is a $5 million minimum liability requirement for the right to self-fuel unreasonable if it is applied equally to all users? A. Yes. While the FAA found the requirement to be reasonable when applied to a particular operator based on the size of the aircraft and the amount of fuel involved, the FAA found the requirement was unreasonable if applied to all aircraft owners desiring to self-fuel regardless of the aircraft type or the size of the fuel truck. Brown Transp. Co. v. City of Holland, Mich. — No. 16-05-09. — No. FAA- 2005-22373. FAA-2005-22373-0012. Director’s Determination (March 1, 2006). LRD 21 Determination No. 154. 16. Is a requirement for all self-fuelers to have $1 million in pledged personal assets and a letter of credit or bond (ability to pay requirement) unreasonable? A. Yes. The FAA found this requirement unreasonable on its face. Brown Transp. Co. v. City of Holland, Mich. — No. 16-05-09. — No. FAA-2005-22373. FAA-2005-22373-0012. Director’s Determination (March 1, 2006). LRD 21 Determination No. 154. However, in another case, the FAA found that a requirement for a self-fueler to have a bond sufficient to cover its insurance deductible was reasonable. Scott Aviation, Inc. v. DuPage Airport Auth. — No. 16-00-19. 2002 FAA LEXIS 398. 2002 WL 31429252. Director’s Determination July 19, 2002). LRD 21 Determination No. 103. 17. If an airport user has the right to self-fuel, is it acceptable for the Sponsor to allow the airport user to operate without meeting the self-fueler minimum standards if the user is not exercising its self- fueler right? A. No. The FAA found that the failure to apply the minimum standards was unjustly discriminatory. The fact that the user was granted the right to self-fuel meant that the airport was obliged to apply its minimum standards. Whether the airport user exercised those rights was not relevant. Brown Transp. Co. v. City of Holland, Mich. — No. 16-05-09. — No. FAA-2005-22373. FAA-2005-22373-0012. Director’s Determination (March 1, 2006). LRD 21 Determination No. 154. 18. Does the right to self-fuel aircraft include the right to fuel customers’ aircraft? A. No. The FAA has determined that the right to self-fuel does not include the right for aeronautical users to fuel aircraft they do not own or operate. Aero Ways, Inc. v. Del. River & Bay Auth. — No. 16-09-12. — No. FAA-2010-0079. FAA-2010-0079-0018. 2010 FAA LEXIS 233. 2010 WL 3826304. Director’s Determination (August 30, 2010). LRD 21 Determination No. 220. Similarly, the FAA found that a Sponsor’s refusal to permit a Part 135 air taxi operator (which engaged in other aeronautical services) to sell fuel to the customers of its other services based on the air carrier’s self-fueling right did not violate Grant Assurance 22.d Sterling Aviation, LLC v. Milwaukee Cnty., Wis. — No. 16-09-03. — No. FAA- 2009-0892. Director's Determination (April 13, 2010). LRD 21 Determination No. 217.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-30 19. Is it unjustly discriminatory to apply the insurance or ability to pay requirement to a self-fueler, but not to an FBO providing fueling services? A. Yes. In this case, the FAA considers the self-fueler and the FBO to be similarly situated in the activities of storing and dispensing fuel, particularly when the insurance and ability to pay requirements are intended to protect the owner from potential financial loss or harm resulting from aircraft fueling activities. Brown Transp. Co. v. City of Holland, Mich. — No. 16-05-09. — No. FAA-2005-22373. FAA-2005-22373-0012. Director’s Determination (March 1, 2006). LRD 21 Determination No. 154. 20. Can a Sponsor with a proprietary fueling operation require self-fuelers’ fuel trucks to meet requirements for transporting hazardous materials on public roads while the Sponsor’s own fuel trucks are not required to meet those requirements? A. The FAA found this requirement to be reasonable because the self-fuelers’ trucks must operate on public roads, while the Sponsor’s own fuel trucks do not. Scott Aviation, Inc. v. DuPage Airport Auth. — No. 16-00-19. 2002 FAA LEXIS 398. 2002 WL 31429252. Director’s Determination July 19, 2002). LRD 21 Determination No. 103. 20. Is the air carrier’s right to self-fuel under Grant Assurance 22.d limited to the aircraft that it owns, or does it apply to all aircraft used in air carrier operations? A. The self-fueling right applies to all aircraft used in air carrier operations, regardless of ownership. AmAv, Inc. v. Md. Aviation Admin. — No. 16-05-12. — No. FAA-2005-22376. FAA-2005-22376- 0018. 2006 WL 2038717. Directors Determination (March 20, 2006). LRD 21 Determination No. 155. Affirmed by Final Decision and Order of August 8, 2006. LRD 21 Determination No. 161. E-13.6 Minimum Standards, Rules and Regulations (Grant Assurance 22.h) 1. Is a Sponsor required to adopt minimum standards to comply with Grant Assurance 22? A. No. While the FAA encourages the adoption of minimum standards, it has held that they are not required. Goodrich Pilot Training Ctr., LLC v. Village of Endicott, N.Y. — No. 16-08-03. — No. FAA-2008-1024. Director’s Determination (April 3, 2009). LRD 21 Determination No. 201. 2. If a Sponsor has waived specified minimum standards for some commercial tenants, is it unjustly discriminatory to offer to waive only those minimum standards and not additional ones requested by a prospective tenant? A. No. However, waiving additional minimum standards could result in a future complaint of unjust discrimination from the tenants that did not receive like waivers. Johnson v. Goldsboro-Wayne Airport Auth. — No. 16-08-11. — No. FAA-2009-0744. Director’s Determination (October 9, 2009). LRD 21 Determination No. 210.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-31 3. Must a Sponsor apply its minimum standards with identical rigidity and tone to all competitors to avoid unjust discrimination under Grant Assurance 22? A. No. The FAA has held that differences in records and history with the airport may justify different treatment. Rick Aviation, Inc. v. Peninsula Airport Comm'n — No. 16-05-18. — No. FAA-2006- 25222. FAA-2006-25222-0013. 2007 FAA LEXIS 171. 2007 WL 1450398. Director’s Determination (May 8, 2007). LRD 21 Determination No. 175. Affirmed by Final Decision and Order of November 6, 2007. LRD 21 Determination No. 183. 4. Is it a violation of Grant Assurance 22 to require a skydiving operation to obtain general liability insurance when the insurance does not exist in the market place? A. Yes. The FAA held that a requirement for insurance that was unobtainable amounted to “banning an aeronautical activity.” Skydive Sacramento v. City of Lincoln, Cal. — No. 16-09-09. — No. FAA-2009-1122. FAA-2009-1122-0015. Director’s Determination (May 4, 2011). LRD 21 Determination No. 228. 5. Is it a violation of Grant Assurance 22 to adopt height restrictions that are more stringent than the applicable FAA standards? A. No. The FAA has held that “the airport sponsor may not approve a height above the FAA’s maximum permitted in the airspace analysis. It remains within the airport sponsor’s proprietary rights, however, to establish a lower maximum height for construction at its Airport.” Desert Wings Jet Ctr., LLC v. City of Redmond — No. 16-09-07. — No. FAA-2009-1102. FAA-2009-1102-0019. 2010 FAA LEXIS 298. 2010 WL 4723466. Directors Determination (November 10, 2010). LRD 21 Determination No. 223. Affirmed by Final Agency Decision of May 25, 2012. LRD 21 Determination No. 236. 6. Can a Sponsor permit non-aeronautical use of hangars by some hangar tenants, while prohibiting such use by other hangar tenants? A. No. The FAA considers such disparate treatment to violate the prohibition on unjust discrimination in Assurance 22, particularly if the airport rules explicitly prohibit the use of hangars in this fashion. Valley Aviation Servs., LLP v. City of Glendale, Ariz. — No. 16-09-06. — No. FAA-2009-1020. FAA-2009-1020-0015. 2011 FAA LEXIS 136. 2011 WL 2274635. Director's Determination (May 24, 2011). LRD 21 Determination No. 229. 7. Is the publication of a draft advisory circular addressing airport parachute landing areas (PLA) a reasonable basis for suspending the Sponsor’s rulemaking process to adopt minimum standards for PLAs and to continue to deny a skydiving operator’s request for a PLA? A. No. The FAA held that the publication of a draft advisory circular did not justify suspension of the Sponsor’s rulemaking process because the FAA is solely responsible for the timing and schedule of issuance of guidance, and because a Sponsor may not abdicate its responsibility to maintain current compliance with federal obligations during the pendency of future federal statutes, regulations or guidance. Frank Hinshaw, Inc. d/b/a Skydive Hawaii v. State of Hawaii – No. 16-12-04, Preliminary Determination – No. 16-12-04 (08-18-2014).

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-32 8. Can a Sponsor require an aerial advertising operation to pay a fixed fee per day in advance and attend meetings regarding where to operate when it does not impose these requirements on other operators? A. Yes. The FAA determined that the fees and operating requirements were consistent with the Grant Assurance, and that the aerial advertising operation was not similarly situated to other operators at the airport. Gary's Banners Aerial Adver., Inc. v. Capital Region Airport Auth. — No. 13-96-17. Record of Decision – Final Order (October 19, 1999). LRD 21 Determination No. 56. 9. Can a Sponsor require a prospective FBO to provide facilities and equipment that are comparable to an existing FBO that is offering comparable services? A. Yes. Buffalo Jet Ctr., Inc. v. Niagara Frontier Transp. Auth. — No. 16-98-01. 1998 FAA LEXIS 1132. 1998 WL 1083383. Director’s Determination (August 19, 1998). LRD 21 Determination No. 41. 10. Can a Sponsor prohibit the storage of non-airworthy aircraft? A. Yes. This is because the storage of aircraft parts is not considered an aeronautical activity. The FAA equates the storage of non-airworthy aircraft with the storage of aircraft parts. The FAA will also permit a Sponsor to designate a particular location for the final assembly of experimental aircraft and to specify a minimum level of construction for the delivery of non-airworthy parts to the airport for final assembly. Ashton v. City of Concord, N.C. (1999) — No. 16-99-09. 2000 FAA LEXIS 150. 2000 WL 132770. Director’s Determination (January 28, 2000). LRD 21 Determination No. 58. Affirmed by Final Decision and Order of July 3, 2000. LRD 21 Determination No. 67. 11. If a Sponsor includes minimum insurance requirements in its leases, must it also set minimum insurance requirements for transient operators? A. No. This is because the FAA does not consider leaseholders to be similarly situated to transient users. Ashton v. City of Concord, N.C. (1999) — No. 16-99-09. 2000 FAA LEXIS 150. 2000 WL 132770. Director’s Determination (January 28, 2000). LRD 21 Determination No. 58. Affirmed by Final Decision and Order of July 3, 2000. LRD 21 Determination No. 67. 12. Can a Sponsor limit the use of a T-hangar to a single aircraft? A. Yes. The FAA considers such a restriction within the airport’s management rights under Grant Assurance 22. Ashton v. City of Concord, N.C. (1999) — No. 16-99-09. 2000 FAA LEXIS 150. 2000 WL 132770. Director’s Determination (January 28, 2000). LRD 21 Determination No. 58. Affirmed by Final Decision and Order of July 3, 2000. LRD 21 Determination No. 67. 13. Is Assurance 22 violated when the Sponsor enforces an ordinance against one operator at the same time that other operators are in violation? A. Not necessarily. Without evidence that the airport’s compliance efforts had been less strict with regard to the other operators in violation, the FAA found no violation of Assurance 22. BMI Salvage Corp. v. Miami-Dade Cnty., Fla. — No. 16-05-16. — No. FAA-2005-22380. FAA-2005-22380- 0023. 2006 FAA LEXIS 561. 2006 WL 2512974. Director’s Determination (July 25, 2006). LRD

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-33 21 Determination 160. Affirmed by Final Decision and Order of March 5, 2007. LRD 21 Determination No. 170. 14. Can a Sponsor wait to apply new requirements to an existing tenant with an unexpired lease while it applies those requirements to new tenants with new leases? A. Not when the requirements are adopted as regulations, when the existing lease provides that it is subject to airport rules and regulations, and when the lease is subordinate to the airport’s grant obligations. The FAA held that, in these circumstances, the Sponsor must apply the new requirements to its existing tenants to remain in compliance with Assurance 22. Brown Transp. Co. v. City of Holland, Mich. — No. 16-05-09. — No. FAA-2005-22373. FAA-2005-22373-0012. Director’s Determination (March 1, 2006). LRD 21 Determination No. 154. See also Carey v. Afton-Lincoln Cnty. Mun. Airport Joint Powers Bd. — No. 16-06-06. — No. FAA-2006-25154. FAA-2006-25154-0011. 2007 FAA LEXIS 40. 2007 WL 430630. Director’s Determination (January 19, 2007). LRD 21 Determination No. 168. Affirmed by Order Dismissing Appeal of November 14, 2007. LRD 21 Determination No. 184. 15. If a potential user is proposing services limited to making rental aircraft available for pickup at an airport (rental transactions are consummated at its main base at another airport), is it unreasonable to require the potential user to maintain full-time staffing and conduct record-keeping, scheduling and dispatching functions at the airport when these functions would duplicate those conducted at its main base? A. Yes. The FAA considers this type of service to be a specialized aeronautical service operation (SASO). To be reasonable, minimum standards for SASO’s must be commensurate with and relevant to the level of activity proposed. The FAA considered a requirement for a SASO to maintain some business presence at the airport to be reasonable but, in the case of the proposed rental aircraft pickup activity, it determined that a requirement for round-the-clock staffing and performing the specified functions to be excessive. Staffing during times scheduled for customer pick up and ready access to necessary records without having to travel to another location was a sufficient business presence requirement for the proposed SASO activity. Leonard v. Chesapeake Airport Auth. — No. 16-01- 06. — No. FAA-2003-15995. FAA-2003-15995-0002. 2002 FAA LEXIS 590. 2002 WL 31731054. Director’s Determination (October 22, 2002). LRD 21 Determination No. 106. 16. Can a Sponsor deny access or impose higher minimum standards based on its belief that a proposed user might expand activities beyond those specified in its initial proposal in the future? A. No. The FAA considers that the appropriate way for a Sponsor to address this is to impose the appropriate standards at the time the user requests permission for additional activities, or to prohibit the start of new activities without the Sponsor’s permission. Leonard v. Chesapeake Airport Auth. — No. 16-01-06. — No. FAA-2003-15995. FAA-2003-15995-0002. 2002 FAA LEXIS 590. 2002 WL 31731054. Director’s Determination (October 22, 2002). LRD 21 Determination No. 106.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-34 17. What factors will the FAA consider to determine whether a waiver of minimum standards for one FBO is unjust discrimination against another FBO? A. For a finding of unjust discrimination, the FAA requires the complaining FBO to show that it requested similar terms and conditions to those of a similarly situated FBO, and that the Sponsor denied the request for unjust reasons. Where the complaining FBO could not show that it had made a formal waiver request, the FAA found the first prong of the test unsatisfied and found no violation. Northern Air, Inc. and KEM Aviation LLC v. Kent County, MI Gerald R Ford Int’l Airport Board – No. 16-11-10. Director’s Determination (March 28, 2013). 18. If a tenant leases a parcel of land meeting the minimum acreage requirements for an FBO at the time of the lease, can the airport increase the minimum acreage to an amount that exceeds the acreage of the parcel two weeks after the lease is executed? A. In a case where the lease in question made it clear that the lease was not for FBO purposes but to park and move aircraft, the FAA found the airport’s action to be reasonable and not in violation of Grant Assurance 22. JetAway Aviation, LLC v. Bd. of Cnty. Comm'rs, Montrose Cnty., Colo. — No. 16-06-01. — No. FAA-2006-25185. FAA-2006-25185-0029. 2006 FAA LEXIS 841. 2006 WL 3914734. Director’s Determination (November 6, 2006). LRD 21 Determination No. 166. 19. How can a flying club be differentiated from an FBO for purposes of applying a sponsor’s minimum standards? A. There is no requirement to exempt a flying club from FBO minimum standards. If a Sponsor chooses to do so, the following must apply:  The club must be a non-profit enterprise.  The Sponsor must prohibit the club from selling any goods or services to any person or firm that is not a member of the club, and must enforce the prohibition. However, the club members may be compensated for services or goods provided to other club members or the club.  A club must either own its aircraft or lease them on a long-term exclusive use basis. A minimum standard that allows the club to lease an aircraft from a member at an hourly rate is not permitted.  A club may permit non-pilots to be members if they have the same obligations and responsibilities as pilot members. GFK Flight Support, Inc. v. Grand Forks Reg'l Airport Auth. — No. 16-01-05. — No. FAA-2002- 13843. FAA-2002-13843-0002. Director’s Determination (March 22, 2002). LRD 21 Determination No. 98. 20. If a flying club has violated a Sponsor’s minimum standards specifically applicable to flying clubs, must the Sponsor terminate the flying club’s tenancy? A. Not necessarily. Where the record showed only two instances in which a flying club had violated the minimum standards and the Sponsor made reasonable efforts to correct and prevent the problems from recurring, the FAA found that Assurance 22 did not require termination of the lease. GFK Flight Support, Inc. v. Grand Forks Reg'l Airport Auth. — No. 16-01-05. — No. FAA-2002-13843.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-35 FAA-2002-13843-0002. Director’s Determination (March 22, 2002). LRD 21 Determination No. 98. E-13.7 Prohibition or Limitations on Use for Safety and Efficiency (Grant Assurance 22.i) 1. Can a Sponsor refuse to permit the operation of an on-airport skydiving drop-zone on safety grounds? A. Not necessarily. While the Sponsor can restrict access to ensure safety and efficiency, the FAA has the final say regarding whether a prohibition is justified on safety grounds. Where the FAA has previously determined that an on-airport drop zone can be operated safely at an airport, the Sponsor cannot subsequently deny the drop zone on safety grounds. Bodin v. City of Santa Clara, Cal. — No. 16-11-06. — No. FAA-2011-0699. FAA-2011-0699-0019. Director’s Determination (December 19, 2011). LRD 21 Determination No. 233. Affirmed in part, reversed in part, Final Agency Decision and Order of August 12, 2013. 2. Can a Sponsor deny a skydiving operation the right to use an existing on-airport drop zone that the Sponsor believes is inconsistent with the airport’s policy of keeping obstruction-free areas (OFAs) free and clear? A. No. The Sponsor can attempt to designate another drop zone to address its concerns, but it cannot deny the use of established drop zones that have been determined by the FAA to meet applicable safety standards. Skydive Paris Inc. v. Henry Cnty., Tenn. — No. 16-05-06. — No. FAA-2005- 22369. FAA-2005-22369-0013. 2006 WL 247124. Director’s Determination (January 20, 2006). LRD 21 Determination No. 150. 3. Is a prohibition on scheduled Part 135 operations based on safety an unreasonable denial of access or unjustly discriminatory when the Sponsor permits non-scheduled Part 135 operations? A. Where the Sponsor failed to show that the prohibition was needed to address congestion, that the scheduled operations posed additional safety risks, that the restriction was necessary to address a noise issue, or that the restriction was needed to address other environmental issues, the FAA found the restriction be unreasonable and unjustly discriminatory. Centennial Express Airlines v. Arapahoe Cnty. Pub. Airport Auth. / Kehmeier v. Arapahoe Cnty. Pub. Airport Auth. / Centennial Express Airlines v. Arapahoe Cnty. Pub. Airport Auth. / FAA v. Arapahoe Cnty. Pub. Airport Auth. — No. 16-98-05, 13-94-25, 13-95-03. 1998 FAA LEXIS 1131. 1998 WL 1083382. Director’s Determination (August 21, 1998). LRD 21 Determination No. 42. Affirmed by Final Agency Decision of February 18, 1999. LRD 21 Determination No. 46. Affirmed sub nom. Arapahoe County Pub. Airport Auth. v. FAA, 242 F.3d 1213 (10th Cir. 2001), cert. denied, 534 U.S. 1064 (2001). 4. Can a Sponsor rely on a safety recommendation from the National Transportation Safety Board (NTSB) to provide a safety justification for a prohibition on certain operations? A. Not necessarily. When the safety recommendation was made after the prohibition was adopted, the FAA considered the use of the recommendation to be post hoc rationalization rather than a

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-36 justification. The FAA also noted that the NTSB’s recommendations are not binding, and that FAA has the responsibility to determine whether the recommendation should be implemented. Arapahoe Cnty. Pub. Airport Auth. / Kehmeier v. Arapahoe Cnty. Pub. Airport Auth. / Centennial Express Airlines v. Arapahoe Cnty. Pub. Airport Auth. / FAA v. Arapahoe Cnty. Pub. Airport Auth. — No. 16-98-05, 13-94-25, 13-95-03. Final Agency Decision and Order (February 18, 1999). LRD 21 Determination No. 46. Affirmed sub nom. Arapahoe County Pub. Airport Auth. v. FAA, 242 F.3d 1213 (10th Cir. 2001), cert. denied, 534 U.S. 1064 (2001). 5. Can a Sponsor prohibit hang-gliding operations on an active runway on safety grounds? A. Yes. However, the Sponsor must attempt to find an alternative location at the airport to accommodate hang gliding. Jones v. Lawrence Cnty. Comm'n — No. 16-11-07. — No. FAA-2011- 0753. Director's Preliminary Determination (July 16, 2012). Director’s Preliminary Determination (July 16, 2012). LRD 21 Determination No. 237. E-14 Grant Assurance 23, Exclusive Rights 1. Has a Sponsor granted an exclusive right to an incumbent FBO if it refuses to accept a potential competitor’s proposal that did not meet the Sponsor’s minimum standards? A. If the proposal does not meet the Sponsor’s minimum standards and those minimum standards are reasonable, there is no prohibited grant of an exclusive right. Buffalo Jet Ctr., Inc. v. Niagara Frontier Transp. Auth. — No. 16-98-01. 1998 FAA LEXIS 1132. 1998 WL 1083383. Director’s Determination (August 19, 1998). LRD 21 Determination No. 41. 2. Can a Sponsor deny a lease or aircraft storage permit to a “bad actor”, i.e., an aircraft operator with a history of non-compliance with airport rules and policies and harassment of other tenants without violating Assurance 23? A. Yes, it can. A denial in these circumstances is justified under the Sponsor’s right to pursue the safe and efficient operation of the airport, particularly when the aircraft operator was permitted to participate in other aeronautical activities. Ashton v. City of Concord, N.C. 2002 — No. 16-02-01. — No. FAA-2002-13017. FAA-2002-13017-0017. 2003 FAA LEXIS 334. 2003 WL 22257715. Director’s Determination (August 22, 2003). LRD 21 Determination 114. Affirmed Final Decision and Order of February 27, 2004. LRD 21 Determination No. 121. Petition for review denied sub nom. Ashton v. FAA, 181 F. App'x 2 (D.C. Cir. 2006) (per curiam) (unpublished). 4. Does a Sponsor grant an exclusive right if the terms in an FBO lease grant a right to exclude competitors that are offering the same services? A. Yes. The FAA held that such a lease term probably resulted in a prohibited exclusive right. Hilton v. City of Arcadia, Fla. — No. 13-93-22. Preliminary Findings and Analysis (November 29, 1995). LRD 21 Determination No. 19. 5. If a Sponsor grants an exclusive right in a lease, but amends the lease to eliminate the exclusive right, will the FAA find a violation?

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-37 A. No. If the Sponsor takes voluntary corrective action after notification of the violation, the FAA will consider the airport to be in current compliance. Current compliance is the standard the FAA applies. Carey v. Afton-Lincoln Cnty. Mun. Airport Joint Powers Bd. — No. 16-06-06. — No. FAA-2006-25154. FAA-2006-25154-0011. 2007 FAA LEXIS 40. 2007 WL 430630. Director’s Determination (January 19, 2007). LRD 21 Determination No. 168. Affirmed by Order Dismissing Appeal of November 14, 2007. LRD 21 Determination No. 184. 6. If a Sponsor prohibits the tenant of a private hangar from conducting any commercial business from the hangar without prior permission, has it granted a prohibited exclusive right? A. No. The FAA considers such a requirement to be consistent with the Sponsor’s obligation under Grant Assurance 5 to enforce adequate rules, regulations or such ordinances that are necessary to ensure a safe and efficient operation. Lytton v. Sheridan Cnty. Bd. of Cnty. Comm'rs — No. 16-01- 16. — No. FAA-2003-15835. FAA-2003-15835-0004. 2002 FAA LEXIS 686. 2002 WL 32002471. Director’s Determination (December 20, 2002). LRD 21 Determination No. 107. 7. If a tenant is proposing limited aeronautical services as a SASO, can the Sponsor restrict the services the tenant can provide without granting a prohibited exclusive right? A. The FAA has determined that restrictions on aeronautical services do not violate the prohibition on exclusive rights when the tenant is not operating as a full-service FBO, but rather as a SASO providing limited services. Lytton v. Sheridan Cnty. Bd. of Cnty. Comm'rs — No. 16-01-16. — No. FAA-2003-15835. FAA-2003-15835-0004. 2002 FAA LEXIS 686. 2002 WL 32002471. Director’s Determination (December 20, 2002). LRD 21 Determination No. 107. 8. Is the presence of a single enterprise engaged in aeronautical activity at an airport sufficient to show the Sponsor has granted a prohibited exclusive right? A. No. In addition to statutory criteria for treating the presence of a single FBO as an exclusive rights violation, the FAA has determined that there was no grant of an exclusive right due to the presence of a single aeronautical enterprise when there was no evidence of agreement or intent to exclude other reasonably qualified enterprises. Lytton v. Sheridan Cnty. Bd. of Cnty. Comm'rs — No. 16-01-16. — No. FAA-2003-15835. FAA-2003-15835-0004. 2002 FAA LEXIS 686. 2002 WL 32002471. Director’s Determination (December 20, 2002). LRD 21 Determination No. 107. 9. Is the presence of high fuel prices relative to other airports sufficient to show that the Sponsor has granted a prohibited exclusive right to sell fuel? A. No. The FAA held that high fuel prices or high profit margins are not sufficient to show a prohibited exclusive right. Self Serve Pumps, Inc. v. Chicago Executive Airport — No. 16-07-02. — No. FAA-2007-28782. FAA-2007-28782-0011. LRD 21 Determination No. 190. 10. Is evidence that a Sponsor’s chairman had a motive to grant an exclusive right sufficient to show that a prohibited exclusive right has been granted? A. No. The FAA held that “motive alone is not sufficient for a finding of an exclusive right or a grant assurance violation.” Self Serve Pumps, Inc. v. Chicago Executive Airport — No. 16-07-02. — No.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-38 FAA-2007-28782. FAA-2007-28782-0011. Director’s Determination (March 17, 2008). LRD 21 Determination No. 190. 11. If a Sponsor does not expressly prohibit self-fueling, does it nevertheless grant a prohibited exclusive right to its FBO selling fuel by refusing permission for an aircraft owner to self-fuel? A. Yes. In the circumstances described, the FAA found that the airport had granted a prohibited exclusive right to the FBO to conduct aircraft fueling. Cedarhurst Air Charter, Inc. v. Cnty. of Waukesha, Wis. — No. 16-99-14. 2000 FAA LEXIS 751. 2000 WL 1130495. Director’s Determination (April 1, 2000). LRD 21 Determination No. 61. 12. If a Sponsor requires a tenant to remove its fuel storage tanks based on legitimate safety and environmental issues, has it granted an exclusive right to the airport’s only fuel retailer? A. Not necessarily. The FAA held that there was no grant of an exclusive right when the tenant had not regularly engaged in retail fuel sales and the tenant was not prevented from self-fueling its own aircraft. Ervin v. Northumberland Cnty. Airport Auth. — No. 13-82-03. Record of Decision (October 7, 1994). LRD Determination No. 8. 13. Does a ban on scheduled Part 135 operations that have not been justified on safety, efficiency or environmental grounds grant an exclusive right to operate to non-scheduled Part 135 operations? A. Yes. The FAA found a prohibited grant of an exclusive right when the airport was unable to demonstrate that the restriction was necessary to further its interests or obligations as an obligated airport. Centennial Express Airlines v. Arapahoe Cnty. Pub. Airport Auth. / Kehmeier v. Arapahoe Cnty. Pub. Airport Auth. / Centennial Express Airlines v. Arapahoe Cnty. Pub. Airport Auth. / FAA v. Arapahoe Cnty. Pub. Airport Auth. — No. 16-98-05, 13-94-25, 13-95-03. Director’s Determination (August 21, 1998). LRD 21 Determination No. 42. Affirmed by Final Agency Decision and Order of February 18, 1999. LRD 21 Determination No. 46. Affirmed sub nom. Arapahoe County Pub. Airport Auth. v. FAA, 242 F.3d 1213 (10th Cir. 2001), cert. denied, 534 U.S. 1064 (2001). 14. Does the FAA have jurisdiction over a complaint that an airport with federally funded navigational aids, but no other federal assistance, is violating the prohibition on exclusive rights? A. Yes. There is a separate statutory prohibition on exclusive rights that applies to facilities on which federal funds have been expended. An airport with federally funded navigational aids qualifies as such a facility. However, it is subject only to the exclusive rights prohibition, and not to any other requirements of the Grant Assurances. Dart v. City of Corona, Cal. — No. 16-99-20. 2000 FAA LEXIS 703. 2000 WL 1092312. Director’s Determination (June 26, 2000). LRD 21 Determination No. 66. 15. Can a Sponsor prohibit the operation of ultralight aircraft without violating the exclusive rights prohibition? A. Sometimes the Sponsor can. The FAA found that, when the airport was surrounded by congested areas, the Sponsor could reasonably prohibit ultralights from operating unless they were registered with the FAA as experimental aircraft without violating the prohibition because, in its ultralight

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-39 aircraft regulations, the FAA prohibits operation of ultralights over congested areas on safety grounds. The airport was merely following FAA policy. Dart v. City of Corona, Cal. — No. 16-99- 20. 2000 FAA LEXIS 703. 2000 WL 1092312. Director’s Determination (June 26, 2000). LRD 21 Determination No. 66. 16. Can a Sponsor deny access to aerial advertising operations based on safety? A. In the correct circumstances, it can. The FAA found the denial to be reasonable in a case in which numerous FAA analyses identified safety problems with aerial advertising operations at the airport. Florida Aerial Adver. v. St. Petersburg-Clearwater Int'l Airport — No. 16-03-01. — No. FAA- 2003-15041. FAA-2003-15041-0013. Director’s Determination (December 18, 2003). LRD 21 Determination No. 119. 17. Is a real estate developer that clears existing structures and constructs new aeronautical facilities for lease to third parties an aeronautical service provider or user to whom a prohibited exclusive right can be granted? A. No. The FAA found that where the developer’s rights and responsibilities were limited to clearing existing facilities and constructing new ones to lease to aeronautical end users, and its prior dealings at the airport in fact reflected this business model, the airport had not granted an exclusive right to the developer to offer aeronautical services. DeSciose v. City of Long Beach, Cal. — No. 16-99-12. 2001 FAA LEXIS 118. 2001 WL 246873. Director’s Determination (February 20, 2001). LRD 21 Determination No. 80. Affirmed by Final Decision and Order of December 13, 2001, LRD 21 Determination No. 93. 18. Is the purchase of property at the airport for an aeronautical activity covered by the exclusive rights prohibition? A. No. The FAA has held that the opportunity to purchase property is not an aeronautical activity or a use of the airport protected by Grant Assurance 23. House v. Kingman Airport Auth. — No. 13- 94-10. Record of Decision (April 3, 1997) LRD Determination No. 26. 19. Can a Sponsor provide a prohibited exclusive right to operate a General Aviation Federal Inspection Station? A. No. The FAA does not consider the operation of a federal inspection station to be an aeronautical activity covered by Grant Assurance 23. Hill Air Co. v. Broward Cnty. Comm'rs — No. 13-93-07. 2006 WL 325373. Record of Decision (January 31, 2006). LRD 21 Determination No. 151. 20. Is the right to drive one’s car to one’s aircraft an aeronautical activity protected by the prohibition on exclusive rights? A. No. The FAA has held that the ability to drive to an aircraft is not required for the operation of the aircraft, and is therefore not covered by Grant Assurance 23. Lehigh Valley Flying Club v. Lehigh- Northampton Airport Auth. — No. 13-90-09. Record of Decision (February 5, 1992). LRD 21 Determination No. 3.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-40 21. Can a Sponsor grant a prohibited exclusive right by giving more favorable lease terms to a non- aeronautical tenant than it does to an aeronautical tenant? A. No. The FAA held that a non-aeronautical tenant does not provide aeronautical services, and therefore was not granted a right to provide an aeronautical service that was not provided to the complaining tenant. Furthermore, to create a prohibited exclusive right, the Sponsor would have to establish such inequity in its aeronautical leases as to create a significant burden on one aeronautical service provider that is not placed on its competitors. McDonough Properties LLC et al. v. Wetumpka, AL – No. 16-12-11, Final Agency Decision and Order (01-15-2015). 22. If a Sponsor permits a flying club to operate without complying with full FBO minimum standards when the flying club does not meet the FAA’s criteria for special treatment, has the Sponsor granted a prohibited exclusive right? A. Yes. The FAA made this determination in connection with a flying club that leased aircraft from owners on an hourly basis, rather than owning the aircraft outright or relying on exclusive long-term aircraft leases. Permitting flying clubs that do not conform to FAA’s definition of a flying club may put other commercial aeronautical service providers at a competitive disadvantage. GFK Flight Support, Inc. v. Grand Forks Reg'l Airport Auth. — No. 16-01-05. — No. FAA-2002-13843. FAA- 2002-13843-0002. Director’s Determination (March 22, 2002). LRD 21 Determination No. 98. 23. If the FAA has found a Sponsor’s denial of access to be reasonable and not unjustly discriminatory under Assurance 22, will it nevertheless find a prohibited grant of an exclusive right? A. No. Where the FAA has not made a finding of unjust discrimination, it will not make a finding that the Sponsor granted a constructive exclusive right. Lanier Aviation LLC v. City of Gainesville, Ga. — No. 16-05-03. — No. FAA-2005-22367. FAA-2005-22367-0016. Director’s Determination (November 25, 2005). LRD 21 Determination No. 146. 23. Has a Sponsor violated Grant Assurance 23 if it grants a right of first refusal to develop airport property for aeronautical use? A. While the FAA considers a right of first refusal to violate Grant Assurance obligations, the FAA found no violation when the first refusal right covered a single parcel and other parcels were available for development or redevelopment. Pac. Coast Flyers, Inc. v. Cnty. of S.D., Cal. — No. 16-04-08. — No. FAA-2005-20675. FAA-2005-20675-0021. 2005 FAA LEXIS 514. 2005 WL 1900515. Director’s Determination (July 25, 2005). LRD 21 Determination No. 143. Corrected by Errata LRD 21 Determination 143.1. 24. Does the execution of new leases with some tenants, but not with others, by itself create a prohibited exclusive right? A. No. The FAA held that this circumstance, by itself, did not result in a prohibited exclusive right. J. Andrew Lange, Inc. v. City of Syracuse, N.Y. — No. 13-96-06. Record of Determination (July 13, 1999). LRD 21 Determination No. 45. Affirmed sub nom. J. Andrew Lange, Inc. v. FAA, 208 F.3d 389 (2d Cir. 2000) (included in LRD 13).

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-41 25. What facts might the FAA consider as showing that a refusal to execute a lease did not violate Grant Assurance 23? A. The FAA found no violation in the following circumstances:  The Sponsor permitted the complainant to continue a month-to-month tenancy;  The Sponsor remained willing to execute a new lease if certain conditions were met;  The lease terms offered to other tenants were similar to those offered to the complainant; and  The proposed lease terms would not make it impossible to operate at the airport. J. Andrew Lange, Inc. v. City of Syracuse, N.Y. — No. 13-96-06. Record of Determination (July 13, 1999). LRD 21 Determination No. 45. Affirmed sub nom. J. Andrew Lange, Inc. v. FAA, 208 F.3d 389 (2d Cir. 2000) (included in LRD 13). 26. Does a Sponsor’s failure to charge uniform lease rates give an exclusive right to the competitor paying the lower rate? A. Not in a case in which there is no evidence that the Sponsor was preventing the tenant paying the higher rent from providing any aeronautical service permitted under its lease. The FAA considers that an exclusive right results in “an individual being excluded or debarred from taking part in some activity.” Penobscot Air Serv., Ltd. v. Cnty. of Knox Bd. of Comm'rs — No. 16-97-04. 1997 FAA LEXIS 1529. 1997 WL 1120745. Record of Determination (September 25, 1997). LRD 21 Determination No. 31, Affirmed by Final Decision and Order of January 20, 1998. LRD 21 Determination No. 37. 27. Can a Sponsor deny the right to sell fuel while it is studying the feasibility of exercising its proprietary exclusive right to sell fuel? A. Yes. The FAA determined that the denial was permitted under the proprietary rights exception in these circumstances. U.S. Aerospace, Inc. v. Millington Mun. Airport Auth. — No. 16-98-06. 1998 FAA LEXIS 1129. 1998 WL 1083384. Director’s Determination (October 15, 1998). LRD 21 Determination No. 43. 28. If a Sponsor sells fuel directly under the proprietary exclusive right, is it obligated to provide automobile fuel for use in aircraft? A. No. The FAA’s policy is that Sponsors exercising the proprietary exclusive right do so under the same conditions that would apply to a commercial aeronautical service provider. The FAA considers the decision to offer automobile fuel for aircraft use to be a business decision that would be at the discretion of a commercial fuel provider. Ashton v. City of Concord, N.C. (1999)—No. 16-99-09. 2000 FAA LEXIS 150. 2000 WL 132770. Director’s Determination (January 28, 2000). Director’s Determination (January 28, 2000). LRD 21 Determination No. 58. Affirmed by Final Decision and Order of July 3, 2000. LRD 21 Determination No. 67.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-42 29. Can a Sponsor that is not the actual owner of the airport take advantage of the proprietary exclusive right exception under Assurance 23? A. Yes. The FAA considers the proprietary exclusive right to belong to the airport Sponsor, i.e., the entity having control and responsibility over the airport’s operation. Jet 1 Ctr., Inc. v. Naples Airport Auth. — No. 16-04-03. — No. FAA-2004-18968. FAA-2004-18968-0019. 2005 FAA LEXIS 1. 2005 WL 389218, 2005 WL 5311093. Director's Determination (January 04, 2005). LRD 21 Determination No. 133. Affirmed by Final Agency Decision of July 15, 2005. LRD 21 Determination No. 142. 30. Does a past exercise of the proprietary exclusive right in violation of FAA requirements prevent the current exercise of that right once the violation has been corrected? A. No. the FAA will permit the Sponsor to exercise the proprietary exclusive right without finding a violation of Assurance 23 once the Sponsor has corrected the defect. Jet 1 Ctr., Inc. v. Naples Airport Auth. — No. 16-04-03. — No. FAA-2004-18968. FAA-2004-18968-0019. 2005 FAA LEXIS 1. 2005 WL 389218, 2005 WL 5311093. Director's Determination (January 04, 2005). LRD 21 Determination No. 133. Affirmed by Final Agency Decision of July 15, 2005. LRD 21 Determination No. 142. 31. Are there any exceptions to the requirement that a Sponsor exercising its proprietary exclusive right to sell fuel must use its own employees in the fueling operation? A. In one case in which the FAA found the use of non-employees had been inadvertent and occasional, and the Sponsor committed to using only its employees in the future, the FAA permitted the airport to maintain its proprietary exclusive. Nat'l Airlift Support Corp. v. Fremont Cnty. Bd. of Comm'rs — No. 16-98-18. 1999 FAA LEXIS 802. 1999 WL 500029. Director’s Determination (May 3, 2009). LRD 21 Determination No. 49. Affirmed by Final Decision and Order of September 20, 1999. LRD 21 Determination No. 54. E-15 Grant Assurance 24, Fee and Rental Structure 1. May a Sponsor set rates based on fair market value (FMV) for exclusively leased aeronautical airfield property? A. The airport is permitted to charge FMV, but it is not required to do so. It may charge less as long as it recovers a reasonable share of its costs, and the below-FMV rate does not result in unjust discrimination. Kihlstrom v. Port of Orcas, Wash. — No. 16-02-07. — No. FAA-2002-13075, LRD 21. Director’s Determination (September 1, 2004). LRD 21 Determination 127. 2. Is an appraisal the only acceptable means to establish FMV? A. No. In the context of a complaint alleging economic discrimination, the FAA held that "[e]ven if the rental rates agreed to by Malloy might have been less than appraised fair rental market rates, the RFP process itself established market values at the time” the lease was executed. Sky E. Servs., Inc. v. Suffolk Cnty., N.Y. — No. 13-88-06, 13-89-01. Final Decision and Order (August 30, 1994). LRD 21 Determination No. 7.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-43 3. May a Sponsor offer reduced rent in exchange for required capital investments by a tenant? A. Yes. Grant Assurance 24 permits such an arrangement if the airport determines that the capital investments will benefit the airport and its aeronautical users, and if the capital investments have sufficient value. Wilson Air Ctr., LLC v. Memphis & Shelby Cnty. Airport Auth. — No. 16-99-10. Director’s Determination (August 2, 2000). LRD 21 Determination No. 70. Affirmed by Final Agency Decision and Order of August 30, 2001. LRD 21 Determination No. 91. 4. Does Grant Assurance 24 require a Sponsor to charge a fee to non-tenant commercial aeronautical users operating at the airport? A. No. For purposes of Assurance 24, the FAA considers the decision to charge non-tenant commercial aeronautical service providers to be “an Airport business decision”, but the failure to charge could be a violation of Assurance 22 if tenants are paying fees and conducting similar services. In addition, if the airport establishes a non-tenant fee schedule, and a non-tenant performs services covered by the schedule on airport property not under lease, the airport would be obligated to charge the non-tenant fee for those activities under Assurance 22. Langa Air, Inc. v. St. Louis Reg'l Airport Auth. — No. 16-00-07. Director’s Determination (March 29, 2001). LRD 21 Determination No. 82. Affirmed by Final Decision and Order of December 13, 2001. LRD 21 Determination No. 94. 5. Can a Sponsor charge a skydiving operator the additional costs of the insurance premiums required for an on-airport drop zone as a condition of permitting the drop zone? A. Yes. Passing those costs on to the skydiving operators is consistent with Grant Assurance 24. Bodin v. City of Santa Clara, Cal. — No. 16-11-06. — No. FAA-2011-0699. FAA-2011-0699- 0019. Director’s Determination (December 19, 2011). LRD 21 Determination No. 233. Affirmed in part, reversed in part, by Final Agency Decision and Order of August 12, 2013. 6. Does a Sponsor violate Grant Assurance 24 if it grants rental credits and other concessions to settle litigation alleging the airport breached its contract with a tenant? A. No. Grant Assurance 24 requires the airport to be as self-sustaining as possible under the circumstances at that airport. The FAA recognizes that there may be circumstances in which an airport cannot charge fees that fully recover its costs, while ensuring adequate services for the public. The fact that a court had found the airport in breach of contract is also a relevant consideration. Flightline Ground, Inc. v. La. Dep't of Transp. & Dev. — No. 16-11-01. — No. FAA-2011-0529. Director’s Determination (October 24, 2012). LRD 21 Determination No. 239. Affirmed by Final Agency Decision of June 17, 2015. 7. If an airport is being subsidized by a Sponsor’s general revenues, would an inequitable distribution of hangar space qualify as a violation of Grant Assurance 24? A. Not necessarily. In the absence of any evidence that the alleged inequitable distribution of hangar space contributed to the local subsidy, the FAA did not find a violation of Grant Assurance 24. Ashton v. City of Concord, N.C. 2002 — No. 16-02-01. — No. FAA-2002-13017. FAA-2002- 13017-0017. 2003 FAA LEXIS 334. 2003 WL 22257715. Director’s Determination (August 22, 2003). LRD 21 Determination 114. Affirmed Final Decision and Order of February 27, 2004.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-44 FAA-2002-13017-0022. LRD 21 Determination No. 121. Petition for review denied sub nom. Ashton v. FAA, 181 F. App'x 2 (D.C. Cir. 2006) (per curiam) (unpublished). 8. Is Grant Assurance 24 violated if a Sponsor does not lease all available space? A. Not necessarily. The FAA found no violation in a case in which it concluded that the potential lost revenue did not adversely affect the operation of the airport or the airport’s overall ability to be as self-sustaining as possible. The FAA stated that the self-sustaining assurance does not require the Sponsor to maximize revenue. Asmus v. Haw. Dep't of Transp. Airports Div. — No. 16-05-11. — No. FAA-2005-22375. FAA-2005-22375-0011. Director’s Determination (April 12, 20006). LRD 21 Determination No. 157. 9. Is Grant Assurance 24 violated if a Sponsor limits leases to one year? A. No. The FAA has held that Grant Assurance 24 addresses the airport’s long-term financial viability, and that the requirement recognizes that airports will vary in their ability to be self- sustaining given their individual circumstances. In the referenced decision, the FAA found the airport’s decision to limit leases to one-year terms to be reasonable while the airport was undertaking a planning study to determine whether to relocate. McDonough Properties LLC et al. v. Wetumpka, AL – No. 16-12-11, Final Agency Decision and Order (01-15-2015). 11. Is Assurance 24 violated if a Sponsor fails to collect rent from FBOs for an extended period? A. Yes. The FAA found that a three-year failure to collect rent violated Grant Assurance 24. Carey v. Afton-Lincoln Cnty. Mun. Airport Joint Powers Bd. — No. 16-06-06. — No. FAA-2006-25154. FAA-2006-25154-0011. 2007 FAA LEXIS 40. 2007 WL 430630. Director’s Determination (January 19, 2007). LRD 21 Determination No. 168. Affirmed by Order Dismissing Appeal of November 14, 2007. LRD 21 Determination No. 184. 12. Can a Sponsor use revenues generated in each terminal as a basis for allocating indirect fixed costs among terminals? A. Not when the airport is using costs as the basis for rates. The Department of Transportation specifically rejected the allocation of land rent among terminals when the terms of the lease agreement for the airport resulted in a fixed land rent. Brendan Airways, LLC v. Port Auth. of N.Y. & N.J. — No. OST-2005-20407. Order No. 2005-6-11. DOT-OST-2005-20407-0129. 2005 DOT Av. LEXIS 370. 2005 WL 4739674. Final Decision (June 14, 2005). LRD 21 Determination No. 139. 13. Can a Sponsor include once-off, non-recurring costs when calculating the cost basis for terminal rental rates? A. No. The Department of Transportation held that it was unreasonable to include items that were not shown to be “ordinary and recurring expenses” in the base cost. Brendan Airways, LLC v. Port Auth. of N.Y. & N.J. — No. OST-2005-20407. Order No. 2005-6-11. DOT-OST-2005-20407- 0129. 2005 DOT Av. LEXIS 370. 2005 WL 4739674. Final Decision (June 14, 2005). LRD 21 Determination No. 139.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-45 14. Is a Sponsor that bases terminal rental rates on fair market value (FMV) required to base FMV on aeronautical uses in the terminal? A. No. The Court of Appeals vacated and remanded a DOT determination that limited the FMV calculation to aeronautical uses. Alaska Airlines, Inc. v. U.S. Dep't of Transp., 575 F.3d 750 (D.C. Cir. 2009) (included in LRD 13). 15. Are there any circumstances in which a Sponsor using a compensatory rate methodology for terminal rents can be required to credit concession revenues to airlines? A. The Department of Transportation held that a concession revenue credit was required when the evidence showed that the airport intended to give the credit based on past practice and the failure was due to a mathematical error. Brendan Airways, LLC v. Port Auth. of N.Y. & N.J. — No. OST- 2005-20407. Order No. 2005-6-11. DOT-OST-2005-20407-0129. 2005 DOT Av. LEXIS 370. 2005 WL 4739674. Final Decision (June 14, 2005). LRD 21 Determination No. 139. 16. Can a Sponsor include the costs of facilities under construction, but not yet operational, in the calculation of terminal rental rates and landing fees? A. Generally speaking, no. A district court held that such charges would be unreasonable as a matter of law because they do not relate to the present use of an existing facility. However, the use of surplus concession revenue for the new facility was permissible, since the concession revenue was not an element of the airline rate base. City and County of Denver v. Continental Airlines, Inc., 712 F. Supp. 834 (D CO 1984). Furthermore, the DOT held this practice to be unreasonable in Miami Int'l Airport Rates Proceeding — No. OST-96-1965. Order No. 97-3-26. (March 19, 1997). DOT-OST- 1996-1965-0138. 1997 DOT Av. LEXIS 118. 1997 WL 120400. LRD 21 Determination No. 24. Petitions for review denied sub nom. Air Canada v. Dep't of Transp., 148 F.3d 1142 (D.C. Cir. 1998). LRD 21 Determination No. 24. However, under the 2008 Amendment to the FAA/DOT Rates and Charges Policy (https://www.gpo.gov/fdsys/pkg/FR-2008-01-17/pdf/E8-815.pdf), a congested airport, as defined in that policy, could include some costs of facilities under construction in the rates charged during periods of congestion. Please refer to the policy statement for the limitations and requirements. 17. Is it unjust discrimination to allocate terminal costs to one group of carriers using the “rentable space” methodology while the airport allocates costs to another group based on the “usable space” methodology? A. If the two groups are similarly situated, there would be unjust discrimination. However, in the cited case, the Court of Appeals reversed the DOT’s finding that carriers that had not executed long- term leases were similarly situated to those that had. Alaska Airlines, Inc. v. L.A. World Airports — No. OST-2007-27331. Order No. 2007-6-8 (June 15, 2007). DOT-OST-2007-27331-0198. 2007 DOT Av. LEXIS 437. 2007 WL 1788970. LRD 21 Determination No. 177. Petitions for review granted and denied in part and remanded sub nom. Alaska Airlines, Inc. v. U.S. Dep't of Transp., 575 F.3d 750 (D.C. Cir. 2009) (included in LRD 13).

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-46 18. Under a residual agreement, if a rent subsidy could lead to an increase in landing fees to other carriers, but the Sponsor commits to freezing landing fees at the pre-rent subsidy level, is the Sponsor in current violation of the prohibition on unjust discrimination? A. No. However, if the rent subsidy does lead to an increase in landing fees, a violation might result. When evaluating a complaint, the FAA will not consider the extent to which the agreement for the subsidy also guaranteed an increase in operations and hence in landing fee revenues. Northwest Airlines, Inc. v. Indianapolis Airport Auth. — No. 16-07-04. — No. FAA-2007-28786. 2008 FAA LEXIS 194. 2008 WL 3976461. Director’s Determination (August 19, 2008). LRD 21 Determination 197. Corrected by Errata of October 7, 2008. LRD 21 Determination No. 197.1. Affirmed by Final Decision and Order of October 27, 2009. See Determination No. 211. 19. Is an airline’s aircraft maintenance base and associated employee parking an aeronautical use under Grant Assurance 24, which can be leased at rates below fair market value? A. Yes. The Assistant Secretary of Transportation for Administration reached this conclusion in an opinion resolving an Inspector General audit. Undated Memorandum. LRD 21 Opinions and Memos, Record 28 of 51. E-16 Grant Assurance 25, Airport Revenues 1. Does the revenue use assurance require a Sponsor to collect fees from all tenants performing commercial services? A. The revenue use assurance does not impose this requirement, but failure to charge some tenants that perform commercial services could be a violation of Grant Assurance #22, Economic Non- discrimination or Grant Assurance 24, Fee and Rental Structure. 2. If a Sponsor spends airport revenue on financing FBO facilities, and those FBO facilities become vacant, is it revenue diversion if the airport permits a new FBO to locate to another site, leaving the airport-financed FBO facilities vacant? A. No. The FAA held that the revenue use requirement is satisfied if airport revenue is used to finance aeronautical facilities, even if those facilities do not currently benefit airport users. Northern Air, Inc. and KEM Aviation LLC v. Kent County, MI Gerald R Ford Int’l Airport Board – No. 16- 11-10. Director’s Determination (March 28, 2013). 3. If an airport has closed (after its AIP obligations to remain open have expired), are the proceeds from its sale still considered airport revenue? A. No. The FAA held that the closure of the airport terminated the revenue use obligation. Scott Meyer v. Cincinnati, OH – No. 16-12-14 (09-12-14). 4. What standards will the FAA apply if a Sponsor claims that the transfer of funds from the airport to its governing body is reimbursement of past subsidies? A. The FAA places the burden of proving the existence and amount of the subsidies on the Sponsor. The amounts claimed must be based on audited financial statements, not on budget documents. Any

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-47 claim for unreimbursed indirect costs must reflect the same treatment for similarly situated agencies or departments of the Sponsor. In re Revenue Diversion by the City of L.A. at L.A. Int'l, Ontario, Van Nuys & Palmdale Airports — No. 16-96-01. 1997 FAA LEXIS 1535. 1997 WL 1120734. Record of Determination (March 17, 1997). LRD 21 Determination No. 23. Moreover, the Revenue Use Policy states that, in order for an airport to reimburse subsidies or contributions that are more than six years’ old, the contribution must be structured as a loan to the airport when it is made. See Section V.A.4.a. This requirement is based on a statutory prohibition on reimbursing subsidies or contributions that are more than six years’ old. 5. Does the FAA’s approval of an ALP showing future non-airport use of land within the airport boundaries mean the land is no longer covered by the revenue use assurance? A. No. The FAA held that the ALP approval was not a deletion of the land of the airport, but merely a recognition of potential future use. Investigation into the Transfer of L.A. Int'l Airport Condemnation Proceeds — No. 13-95-05. Preliminary Determination (June 19, 2000). LRD 21 Determination No. 65. Affirmed by Final Decision and Order of June 1, 2009. LRD 21 Determination No. 204. 6. Who can bring a complaint for unlawful revenue diversion? A. The FAA dismissed a complaint that did not allege that the complainant was conducting business at the airport or paying fees or rents. Martyn v. Port of Anacortes, Wash. — No. 16-02-03. — No. FAA-2002-12988. Partial Dismissal and Notice of Docketing (April 29, 2002). LRD 21 Determination No. 100. 7. Can a former user of a closed airport file a complaint alleging revenue diversion with regard to the proceeds from the sale of the airport after the airport is closed? A. Yes. The FAA held that the special standing provisions for revenue diversion complaints under Part 16 – any person conducting business at the airport and paying fees is considered to be directly and substantially affected by an alleged violation of the revenue use assurance – applied in the case of a closed airport. The FAA also held that it may investigate an allegation of revenue diversion regardless of the complainant’s standing. Scott Meyer v. Cincinnati, OH – No. 16-12-14 (09-12-14). 8. Can a Sponsor use airport revenue to provide disaster relief to another airport and remain in compliance with Grant Assurance 25? A. Yes. The FAA Chief Counsel said that disaster aid is “not inconsistent” with Grant Assurance 25 and is similar to mutual aid agreements. The opinion does not apply to AIP grant funds or PFC revenues. Opinion Letter of September 23, 2005. LRD 21 Opinions and Memos, Record 1 of 51. 9. What are the requirements for the use of airport revenue to pay a local government for lost property tax revenue on land transferred to the airport? A. The FAA’s Chief Counsel identified the following requirements:  Payments must be made to a non-sponsoring government entity;

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-48  Payments must relate to property transferred after August 23, 1994, the date of enactment of the FAA Reauthorization Act of 1994;  Payments must be based on a preexisting tax rate;  Payments must be substantially equal to the amount of property tax revenue the non- sponsoring entity would have received if the property had not been transferred; and  The airport must maintain documentation to show the fourth requirement is met. Opinion Letter of July 09, 2001. LRD 21 Opinions and Memos, Record 2 of 51. 10. Can airport revenue be used for airport design costs? A. Yes. The FAA’s Director of Safety and Standards (Director) has stated that airport design costs would generally qualify as airport capital costs, for which airport revenue can be used. The Director said that this classification would apply to a proprietary design concept for developing new airports if that concept were used in the design of a new airport. Opinion Letter of May 12, 2004. LRD 21 Opinions and Memos, Record 3 of 51. 11. Can airport revenue be used for payments in lieu of taxes (PILOT) to a local school district for an indefinite period to settle a lawsuit? A. No. The FAA’s Manager of the Airport Compliance Division advised that, as the annual PILOT would be in exchange for a once-off settlement of a lawsuit with the airport receiving no other value, the PILOT would violate the prohibition on the use of airport revenue for PILOTs that exceed the value of goods or services provided to the airport. Opinion Letter of March 20, 2007. LRD 21 Opinions and Memos, Record 4 of 51. 12. Can a Sponsor use airport revenue to pay itself impact fees for airport development before the development is completed? A. No. The FAA’s Director of Office of Airport Safety and Standards advised that the up-front impact fees represent estimates of the impact of future construction and are not therefore a capital or operating cost of the airport. Only after airport development is completed and the fees for the impacts become fully quantifiable can the FAA determine whether part or all of the fees are capital or are operating costs of the airport. Opinion Letter of June 30, 1997. LRD 21 Opinions and Memos, Record 6 of 51. 13. Can a Sponsor obtain lease payments from an airport for land that is already dedicated for airport purposes without violating Grant Assurance 25? A. No. The FAA’s Assistant Chief Counsel, Airport Environmental Law, advised that because the land was already dedicated for airport purposes, and the airport would not be receiving any other services in exchange for the lease payments. Opinion Letter of June 19, 2008. LRD 21 Opinions and Memos, Record 45 of 51.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-49 14. Can a Sponsor issue bonds to finance the acquisition of off-airport property without violating Grant Assurance 25? A. Yes, as long as airport revenue will not be used to make the bond payments. The FAA’s Assistant Chief Counsel for Airports and Environmental Law advised that bond proceeds are not airport revenue and could therefore be used to acquire an interest in off-airport property. However, he cautioned that the property interest would not qualify as an airport capital cost; therefore, airport revenue could not be used to pay off the bonds. Opinion Letter of December 02, 1993. LRD 21 Opinions and Memos, Record 9 of 51. 15. Can a Sponsor use airport revenue to lend money to assist in financing off-airport facilities without violating Grant Assurance 25? A. Yes. The FAA’s Chief Counsel characterized the loan as an investment of airport revenue, as long as the loan is repaid and the payments are used for airport purposes. Opinion Letter of March 13, 1992. LRD 21 Opinions and Memos, Record 39 of 51. 16. If an airport Sponsor has diverted airport revenue, can it offset the diverted revenue with airport capital projects funded with proceeds from bonds issued by the Sponsor? A. The FAA might permit this, but only if no airport revenue is used to make bond payments. Opinion Letter of February 14, 1997. LRD 21 Opinions and Memos, Record 22 of 51. 17. Where can I find information about “grandfathered” airports exempted from Grant Assurance 25? A. A discussion of grandfathered airports, and a listing of these airports, can be found in the Legal Conclusions of 1993, LRD 21 Opinions and Memos, Record 30 of 51. A list of airports identified by the FAA as grandfathered is also available in Appendix D in this volume. 18. When determining whether the grandfather exemption applies to an airport, what factors does the FAA consider in deciding whether the “grandfathering statute is a “statute controlling financing”? A. In the case of a state-owned airport, the fact that the statute in question was included in the body of statutes pertaining to the state’s financial matters and was specifically included in the title labeled “State Financial Administration” led DOT to conclude that the statute in question was a “statute controlling financing.” Memorandum of May 26, 1993. LRD 21 Opinions and Memos, Record 31 of 51. 19. If the aviation portion of a state fuel tax was in place before 1987 and was being used for state aviation programs, can the state rely on the grandfather provision in the statutory revenue use requirement to convert the use of the aviation portion of the tax into general purposes? A. No. The FAA’s Southern Region Airports Division advised that the conversion to general purposes taking place after 1987 would constitute a new diversion that was not covered by the grandfather provision, which is limited to arrangements in place in 1987. Opinion Letter of May 24, 2000. LRD 21 Opinions and Memos, Record 5 of 51.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-50 20. If diversion of revenue from a state-owned airport is grandfathered by statute, are amendments to that statue made after the grandfathering date in 1982 also grandfathered? A. No. The Assistant General Counsel for Environmental, Civil Rights and General Law determined that payments made based on amendments enacted after 1982 were not grandfathered. The Assistant General Counsel concluded that the improper payments made to date were not of sufficient size or frequency to jeopardize the airport’s overall grandfathered status if the airport was repaid. However, the Assistant General Counsel also warned that a continuation of the practice could jeopardize the airport’s overall grandfathered status. Memorandum of April 12, 1994. LRD 21 Opinions and Memos, Record 32 of 51. 21. Can a grandfathered airport make payments to neighboring communities without receiving any return benefit under the grandfather exception? A. For one airport Sponsor whose enabling act was viewed as giving it powers similar to those of a corporation, the Assistant General Counsel for Environmental, Civil Rights and General Law determined that the Sponsor could, as a corporation, make charitable payments using airport funds without receiving any benefit in return. Memorandum of December 07, 1992. LRD 21 Opinions and Memos, Record 35 of 51. E-17 Grant Assurance 26, Reports and Inspections 1. Is Grant Assurance 26 violated when a Sponsor fails to provide a federal financial report that it is not required to prepare? A. No. The FAA concluded that a Sponsor of an airport with less than 2,500 annual enplanements could not violate the Grant Assurance because it only requires the reports for airports with more than 2,500 enplanements. Carey v. Afton-Lincoln Cnty. Mun. Airport Joint Powers Bd. — No. 16-06-06. — No. FAA-2006-25154. FAA-2006-25154-0011. 2007 FAA LEXIS 40. 2007 WL 430630. Director’s Determination (January 19, 2007). LRD 21 Determination No. 168. Affirmed by Order Dismissing Appeal of November 14, 2007. LRD 21 Determination No. 184. E-18 Grant Assurance 27, Use by Government Aircraft 1. Is Grant Assurance 27 violated if military aircraft are limited to a single apron for servicing, but the Sponsor otherwise permits the aircraft to operate without charge when there is no substantial use? A. No. The FAA found no violation when the record contained no evidence that the Sponsor had prohibited the operation of government aircraft at no charge. Asheville Jet, Inc. v. Asheville Reg'l Airport Auth. — No. 16-08-02. — No. FAA-2008-1077. Director’s Determination (October 1, 2009). LRD 21 Determination No. 209.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-51 E-19 Grant Assurance 29, Airport Layout Plan 1. Must an airport’s ALP accurately depict all leaseholds at all times to comply with Assurance 29? A. Not necessarily. The inadvertent omission of a leasehold may not rise to the level of a violation of Grant Assurance 29, particularly when there is no evidence of adverse consequences resulting from the omission. Ricks v. Greenwood-Leflore Airport — No. 16-09-04. — No. FAA-2011-0279. FAA- 2011-0279-0032. 2011 FAA LEXIS 37. 2011 WL 381953. Director’s Determination (January 24, 2011). LRD 21 Determination No. 225. 2. Must a Sponsor obtain prior approval for an ALP change before approving an on-airport drop zone? A. No. While the ALP must be amended to show the drop zone, prior approval for the ALP change is not required. In addition, it is not necessary to conduct a master plan update to support the ALP change. Bodin v. City of Santa Clara, Cal. — No. 16-11-06. — No. FAA-2011-0699. FAA-2011- 0699-0019. Director’s Determination (December 19, 2011). LRD 21 Determination No. 233. Affirmed in part, reversed in part, by Final Agency Decision and Order of August 12, 2013. 3. Can a Sponsor permit new construction before it amends the ALP to show the new construction? A. Yes, in some circumstances. If the airport notifies its Airport District Office (ADO), if the ADO does not object, and the airport is working to update the ALP, the FAA may find no violation. Carey v. Afton-Lincoln Cnty. Mun. Airport Joint Powers Bd. — No. 16-06-06. — No. FAA-2006-25154. FAA-2006-25154-0011. 2007 FAA LEXIS 40. 2007 WL 430630. Director’s Determination (January 19, 2007). LRD 21 Determination No. 168. Affirmed by Order Dismissing Appeal of November 14, 2007. LRD 21 Determination No. 184. Furthermore, the FAA has held that a Sponsor’s refusal to add a detail to its ALP showing new aeronautical development is not a reasonable basis for refusing to lease vacant airport land for development. Grayson v. DeKalb Cnty., Ga. — No. 16-05-13. — No. FAA-2005-22377. FAA-2005-22377-0005. Director’s Determination (February 1, 2006). LRD 21 Determination No. 152. The FAA has also held that deviations from an ALP can be expected and necessary, and that a typical violation “would be more akin to a refusal to cooperate with the FAA on an ongoing planning process, or refusing to mitigate a significant problem arising from an unplanned circumstance at an airport upon a demand from the FAA to do so.” JetAway Aviation, Inc. v. Montrose Cnty., Colo. — No. 16-08-01. — No. FAA-2008-0190. 2009 FAA LEXIS 251. 2009 WL 2136622. Director’s Determination (November 6, 2006). LRD 21 Determination No. 205. 4. Does a Sponsor violate Grant Assurance 29 if it leases land for non-aeronautical purposes or dedicates land to a vegetation zone if these actions are not shown on the ALP, but do not prevent a proposer’s aeronautical development? A. No. The FAA determined that there was no violation of Grant Assurance 29 in these circumstances. Martyn v. Port of Anacortes, Wash. — No. 16-02-03. — No. FAA-2002-12988. FAA-2002-12988-0012. 2003 FAA LEXIS 162. 2003 WL 21002099. Director’s Determination (April 14, 2003). LRD Determination No. 113.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-52 5. Does a Sponsor improperly convert aeronautical land to non-aeronautical use based on a proposal that has not been implemented and that is being discussed with the FAA? A. The FAA has found no improper conversion in these circumstances. Martyn v. Port of Anacortes, Wash. — No. 16-02-03. — No. FAA-2002-12988. FAA-2002-12988-0012. 2003 FAA LEXIS 162. 2003 WL 21002099. Director’s Determination (April 14, 2003). LRD Determination No. 113. See also Steere v. Cnty. of S.D., Cal. — No. 16-99-15. Director’s Determination (July 24, 2004). LRD 21 Determination No. 125. Affirmed by Final Decision and Order of December 7, 2004. LRD 21 Determination No. 131, where the FAA found that an unexecuted lease of aeronautical land for aeronautical purposes did not constitute a violation at an airport that had terminated a prior lease of aeronautical land for non-aeronautical purposes. 6. Will the FAA investigate a complaint alleging a violation of Grant Assurance 29 for a specific project after the FAA has already issued a grant for that project? A. No. The FAA held that, by issuing the grant, the FAA made the required ALP finding for the project. Comm. to Stop Airport Expansion v. Town of E. Hampton — No. 16-02-04. — No. FAA- 2002-12981. FAA-2002-12981-0009. 2002 WL 32341418. Director’s Determination (June 24, 2002). LRD 21 Determination 101. Withdrawn by Order of Dismissal, LRD 21 Determination No. 140, Petition for review dismissed sub nom. Comm. to Stop Airport Expansion v. FAA, 320 F.3d 285 (2d Cir. 2002). – Dismissal based on a settlement agreement. 7. If a Sponsor is encouraging non-aeronautical leasing of airport property for the purpose of reducing the property available for aeronautical users, is Grant Assurance 29 violated? A. The FAA held that this situation could be a violation of Grant Assurance 29, but it did not make a definitive determination. Skydance Helicopters, Inc. v. Sedona-Oak Creek Airport Auth. — No. 16- 02-02. — No. FAA-2002-13068. FAA-2002-13068-0010. 2003 FAA LEXIS 92. 2003 WL 1524500. Director’s Determination (March 7, 2003). LRD 21 Determination No. 110. 8. Does a Sponsor violate Grant Assurance 29 if its ALP does not show a taxiway that is located off airport property? A. The FAA held that Grant Assurance 29 did not require the Sponsor to show the off-airport taxiway on the ALP. Pollnow v. Wittman Regional Airport — No. 13-95-33. Record of Decision (May 23, 1997). LRD 21 Determination No. 28. E-20 Grant Assurance, 30 Civil Rights 1. Is it a violation of Grant Assurance 30 for an airport proprietor to refer to females using feminine pronouns? A. No. The FAA held that an allegation of a violation based solely on the use of feminine pronouns to refer to a female complainant was not sufficient to “state a Grant Assurance 30 violation.” Desert Wings Jet Ctr., LLC v. City of Redmond — No. 16-09-07. — No. FAA-2009-1102. FAA-2009- 1102-0019. 2010 FAA LEXIS 298. 2010 WL 4723466. Directors Determination (November 10,

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-53 2010). LRD 21 Determination No. 223. Affirmed by Final Agency Decision of May 25, 2012. LRD 21 Determination No. 236. LRD 21 Determination No. 236. 2. Does a Sponsor violate Grant Assurance 30 if it does not award a valet parking service concession to a business owned by a black female, but awards it to the highest bidder instead? A. The FAA found no violation of Grant Assurance 30 in these circumstances. Albuquerque Valet Parking Serv. v. City of Albuquerque, N.M. — No. 16-01-01. — No. FAA-2003-16103. Director's Determination (February 11, 2002). LRD 21 Determination No. 96. 3. Will the FAA find a violation of Grant Assurance 30 if the complainant presents no evidence that the Sponsor had discriminated against the complainant based on race, religious beliefs, creed, color, national origin, sex, age or disability? A. The FAA dismissed the complaint in these circumstances. Cox v. City of Dallas, Tex. — No. 16-97-02. 1997 FAA LEXIS 1530. 1997 WL 1120744. Record of Determination (October 24, 1997). LRD 21 Determination No. 34 E-21 Grant Assurance 31, Disposal of Land 1. Does a Sponsor violate Grant Assurance 31 if it sells AIP-funded airport land without the FAA’s approval? A. Yes. The FAA found that the sale of AIP-funded land without FAA approval violated Grant Assurance 31, as well as Grant Assurance 5, Preserving Rights and Powers. However, it considered the issue moot, because the Sponsor was working with the FAA to come into compliance. Carey v. Afton-Lincoln Cnty. Mun. Airport Joint Powers Bd. — No. 16-06-06. — No. FAA-2006-25154. FAA-2006-25154-0011. 2007 FAA LEXIS 40. 2007 WL 430630. Director’s Determination (January 19, 2007). LRD 21 Determination No. 168. Affirmed by Order Dismissing Appeal of November 14, 2007. LRD 21 Determination No. 184. E-22 Grant Assurance 34, FAA Standards and Specifications 1. Is a Sponsor required by Assurance 34 to follow the FAA’s standards and specifications if no AIP funding is used for the projects? A. No. The FAA held that Assurance 34 only applies to projects funded by AIP grants. Paskar v. City of New York — No. 16-11-04. — No. FAA-2011-0612. FAA-2011-0612-0024. Director’s Determination (September 27, 2012). LRD 21 Determination No. 238. Affirmed by Final Agency Decision of June 17, 2015. Review denied sub nom. Paskar v. FAA, 478 F. App'x 707 (2d Cir. 2012) (unpublished).

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-54 E-23 Grant Assurance 35 Relocation Assistance 1. Are tenants evicted from an airport entitled to relocation assistance under Assurance 35 if no federally funded land acquisition was associated with the eviction? A. No. The FAA has held that “to establish a violation of Grant Assurance 35, the Complainants must demonstrate that the Respondent has displaced them as a result of acquiring real property with federal funds.” Orange Cnty. Soaring Ass'n v. Cnty. of Riverside, Cal. — No. 16-09-13. — No. FAA-2010- 0092. FAA-2010-0092-0012. Director's Determination (February 11, 2011). LRD 21 Determination No. 226. 2. If an approved Part 150 noise compatibility program identifies residential properties as potential candidates for acquisition or noise mitigation, is the airport violating Grant Assurance 35 if it does not make a purchase offer on the schedule desired by the property owner? A. No. The FAA held that Grant Assurance 35 only applies to situations in which land is actually being acquired with federal funds. An intention to acquire land is not sufficient to trigger the protection of Grant Assurance 35. Virginia One Development Inc. v. Atlanta – No. 16-12-09 Director’s Determination. (January 26, 2016). E-24 Grant Assurance 37 Disadvantaged Business Enterprise 1. What is the extent of a Sponsor’s obligation to ensure that a DBE owner actually controls the company? A. The FAA has determined that, if a Sponsor has reason to believe that a DBE owner does not have control, it has an obligation to monitor the firm in question under 49 CFR §26.37, which requires airports to implement appropriate mechanisms to ensure compliance. In addition, a Sponsor may not itself take actions that would undermine the DBE owner’s effective control. In the referenced case, the FAA found the airport’s insistence on dealing directly with a DBE employee, rather than with the DBE owner, to be an unreasonable action that compromised the owner’s ability to control the company. Consol. Servs. Eng'rs & Constructors, Inc. v. City of Palm Springs — No. 16-03-05. — No. FAA-2003-15433. FAA-2003-15433-0010. 2004 FAA LEXIS 578. 2004 WL 3198204. Director's Determination (June 10, 2004). LRD 21 Determination No. 124. 2. Will the FAA consider a complaint alleging violation of the non-discrimination provisions of 49 CFR §26.7 based on the status of the complainant as a DBE? A. No. The complainant must identify the specifically covered basis as specified in the regulation and underlying statute (race, color, sex or national origin). Lolita's Airport Cafe, Inc. v. City of Houston, Tex. — No. 16-99-22. 2000 FAA LEXIS 958. 2000 WL 1387889. Director’s Determination (September 11, 2000). LRD 21 Determination No. 73 3. Is an aeronautical lease subject to the DBE Assurance? A. No. The FAA does not consider an aeronautical lease to be “federally assisted”. Therefore, the lease is not subject to the DBE Assurance. Tulloch v. City of Harlingen, Tex. — No. 16-05-07. —

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-55 No. FAA-2005-22370. FAA-2005-22370-0014. 2006 FAA LEXIS 595. 2006 WL 2528730. Director’s Determination (August 21, 2006). LRD 21 Determination No. 162. 4. Does the FAA have direct jurisdiction over general contractors under Part 26? A. No. The FAA considers its jurisdiction to be limited to ensuring that airports require their contractors to comply with the regulation, with no direct jurisdiction over the contractors themselves. Waller v. Wichita Airport Auth. — No. 16-98-13. 1999 FAA LEXIS 804. 1999 WL 500028. Director’s Determination (March 12, 1999). LRD 21 Determination No. 47. 5. Is a general contractor required to use a DBE to replace a non-performing DBE? A. The FAA interprets Part 26 to require good faith efforts to replace a non-performing DBE with another DBE, but the regulation does not require a replacement in every case. Waller v. Wichita Airport Auth. — No. 16-98-13. 1999 FAA LEXIS 804. 1999 WL 500028. Director’s Determination (March 12, 1999). LRD 21 Determination No. 47. 6. Does a Sponsor have to provide a DBE with the maximum opportunity to participate in an AIP- funded project? A. No. The FAA says that a Sponsor is only required to describe how it would require contractors to comply with the DBE requirements. Waller v. Wichita Airport Auth. — No. 16-98-13. 1999 FAA LEXIS 804. 1999 WL 500028. Director’s Determination (March 12, 1999). LRD 21 Determination No. 47. E-25 Grant Assurance 38 Hangar Construction 1. Does the Assurance on Hangar Construction require a Sponsor to negotiate for a ground lease to support hangar construction? A. No. The FAA held that this assurance does not require the airport to negotiate for a ground lease for hangar construction. Instead, it ensures that, if the airport is willing to negotiate a ground lease, the aircraft owner can obtain a lease of sufficient length to allow it to finance its construction costs. Jim DeVries et al. v. St. Clair, MO – No. 16-12-07. Director’s Determination. (May 24, 2014). 2. Does a Sponsor violate Grant Assurance 38 if it denies a potential FBO’s request for a long-term ground lease and issues an RFP for FBO services instead? A. Not necessarily. The FAA found no violation in a case in which the Sponsor selected the complaining FBO through the RFP process and negotiated a long-term lease. Platinum Aviation v. Bloomington-Normal Airport Auth. — No. 16-06-09. — No. FAA-2006-25202. FAA-2006-25202- 0021. Director’s Determination (June 4, 2007). LRD 21 Determination No. 176. Affirmed by Final Decision and Order of November 28, 2007. LRD 21 Determination 185.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-56 E-26 Assurance 39 Competitive Access 1. Does the termination for cause of a hangar and ramp lease by a medium or large hub airport trigger the requirement to file a denial of access report under Grant Assurance 39? No. The FAA held that Assurance 39 does not apply if the airport has not denied access to terminal areas or otherwise prevented access to those terminal areas, gates and baggage facilities. The FAA further held that an air carrier does not require a land lease and hangar space to serve the airport, and that Assurance 39 is not triggered every time lease negotiations fail to meet all the expectations of a tenant or prospective tenant. Tropical Aviation Ground Services, Inc. and Air Sunshine v. Broward County, FL – No. 16-12-15. Director’s Determination (04-27-2015). E-27 Administrative Process (49 CFR Part 13 and Part 16, 49 USC §47129) 1. In a Part 16 proceeding, can the FAA solicit additional information from one party to complete its investigation without giving the other party the opportunity to rebut it? A. Yes. Ashton v. City of Concord, N.C. (1999) — No. 16-99-09. Final Decision and Order (July 03, 2000). 2000 FAA LEXIS 881. Final Decision and Order (March 3, 2000). LRD 21 Determination No. 67. Petitions for review denied sub nom. Ashton v. FAA, 19 Fed. Appx. 81 (4th Cir. 2001), cert. denied, 535 U.S. 906 (2002). 2. In a Part 16 proceeding, is communication between an FAA investigator and a party considered to be prohibited ex parte communication? A. No. As per 14 CFR §16.301, the prohibition on ex parte communication applies to communications between a party and the FAA decisional employee, as defined in the Part 16 regulations, 14 CFR §16.3, after a case has been noticed for hearing. Ashton v. City of Concord, N.C. (1999) — No. 16-99-09. 2000 FAA LEXIS 881. Final Decision and Order (July 03, 2000). LRD 21 Determination No. 67. Petitions for review denied sub nom. Ashton v. FAA, 19 Fed. Appx. 81 (4th Cir. 2001), cert. denied, 535 U.S. 906 (2002). As per 14 CFR §16.3, a decisional employee is the Administrator, the Deputy Administrator, the Associate Administrator for Airports, the Director, Office of Airport Compliance and Management Analysis, a hearing officer or another FAA employee who is or who may reasonably be expected to be involved in the decisional process of the proceeding. 3. Is there a time limit for filing a complaint against a Sponsor? A. Not necessarily. Because the FAA is interested in current compliance, it may consider a complaint even after a delay in filing. Consol. Servs. Eng'rs & Constructors, Inc. v. City of Palm Springs — No. 16-03-05. — No. FAA-2003-15433. FAA-2003-15433-0010. 2004 FAA LEXIS 578. 2004 WL 3198204. LRD 21 Determination No. 124. However, when a complaint was based on actions that commenced 14 years before and on the adoption of a noise exposure map approved by the FAA 10 years before, the FAA dismissed a complaint as untimely, noting that “the passage of more than 14 years does not appear to qualify as current sponsor action.” Heide v. Finney — No. 16-05-15. — No.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-57 FAA-2005-22379. Director's Determination (September 02, 2005). LRD 21 Determination 145. Affirmed by Final Decision and Order of July 7, 2006. LRD 21 Determination No. 159. 4. Must the FAA honor a complainant’s request for expedited consideration? A. Not necessarily. In a case in which the complaint included 18 specific allegations, 29 points of fact and 14 exhibits, and the answer included 92 attachments, the FAA determined that the complainant was not entitled to expedited consideration. DeSciose v. City of Long Beach, Cal. — No. 16-99-12. Final Decision and Order (December 13, 2001). 2001 FAA LEXIS 728. LRD 21 Determination No. 93. 5. Can a proposed FBO get the FAA to consider its claims that facility requirements are too onerous if it has not first raised the issue in negotiations with the airport? A. No. The Part 16 process is not intended as a device to promote the private interests of a party in lease negotiations. Buffalo Jet Ctr., Inc. v. Niagara Frontier Transp. Auth. — No. 16-98-01. 1998 FAA LEXIS 1132. 1998 WL 1083383. Director’s Determination (August 19, 1998). LRD 21 Determination No. 41. 6. Is an individual member of a Sponsor’s governing body (for example, an individual County Commissioner) obligated by the Grant Assurances? A. No. The FAA has held that, for a County-owned airport, responsibility rests with the County and not individual County Commissioners and dismissed them as respondents in Part 16 proceeding. Grayson v. DeKalb Cnty., Ga. — No. 16-05-13. — No. FAA-2005-22377. FAA-2005-22377-0005. Director’s Determination (February 1, 2006). LRD 21 Determination No. 152. 7. Can the Part 16 procedure be used to investigate alleged misconduct by the FAA’s employees? A. No. The FAA has determined it has no jurisdiction over FAA’s employees under Part 16. Heide v. Molnau / Heide v. Ladendorf — No. 16-04-11, 16-05-02. — No. FAA-2005-20938, FAA-2005- 20914. Order of Dismissal (April 26, 2005). Director’s Determination (September 2, 2005). LRD 21 Determination No. 137. Affirmed by Final Decision and Order of July 7, 2006. LRD 21 Determination No. 159. 8. Can a city that owns the land on which an airport sits be a respondent in a Part 16 proceeding when it has not signed the grant agreements? A. No. The FAA held that ownership of the land was not sufficient to make the city responsible for responsible for non-compliance when a separate political entity had executed the grant agreements and certified compliance. Paskar v. City of New York — No. 16-11-04. — No. FAA-2011-0612. FAA-2011-0612-0024. Director’s Determination (September 27, 2012). LRD 21 Determination No. 238. Affirmed by Final Agency Decision of June 17, 2015. Review denied sub nom. Paskar v. FAA, 478 F. App'x 707 (2d Cir. 2012) (unpublished). 9. Will the FAA consider claims that were addressed in prior litigation under Part 16?

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-58 A. No. The FAA has dismissed such claims, stating that "[c]laims arising from the same cause of action and same facts and addressed in prior litigation will not be revisited in the Part 16 process." Heide v. Molnau / Heide v. Ladendorf — No. 16-04-11, 16-05-02. — No. FAA-2005-20938, FAA- 2005-20914. Order of Dismissal (April 26, 2005). Director’s Determination (September 2, 2005). LRD 21 Determination No. 137. Affirmed by Final Decision and Order of July 7, 2006. LRD 21 Determination No. 159. 10. Will the FAA consider contract disputes under Part 16? A. No. The FAA considers a contract dispute to be a matter of state law outside of its jurisdiction. "The FAA's interest in a lease and use agreement is confined to the agreement's impact on the sponsor's obligations to the Federal Government." Mainardi v. Lincoln Park Airport, Inc. — No. 16-02-12. — No. FAA-2003-14401. FAA-2003-14401-0010. Director’s Determination (November 25, 2003). LRD 21 Determination No. 118. Affirmed by Final Decision and Order of October 18, 2004. LRD 21 Determination No. 129. 11. Will the FAA consider constitutional claims under Part 16? A. No. The FAA considers constitutional claims to be outside of its jurisdiction under Part 16. Martin v. City of Prescott, Ariz. — No. 16-97-01. 1997 FAA LEXIS 1532. 1997 WL 1120737. Record of Determination (June 23, 1997). LRD 21 Determination No. 29. Affirmed by Final Decision and Order of October 7, 1997. LRD 21 Determination No. 32. See also House v. Kingman Airport Auth. — No. 13-94-10. Record of Decision (April 3, 1997). LRD 21 Determination No. 26. 12. Will the FAA investigate unsubstantiated and undocumented allegations of grant violations made in a Part 16 complaint? A. No. The FAA considers the provisions in Part 16 requiring the complainant to supply all supporting documentation for its complaint and reply to allow it to dismiss undocumented allegations without investigation. Penobscot Air Serv., Ltd. v. Cnty. of Knox Bd. of Comm'rs — No. 16-97-04. 1997 FAA LEXIS 1529. 1997 WL 1120745. Record of Determination (September 25, 1997). LRD 21 Determination No. 31, Affirmed by Final Decision and Order of January 20, 1998. LRD 21 Determination No. 37. 13. Is the payment of fees and rentals sufficient to meet the requirement that a complainant be directly and substantially affected by alleged non-compliance? A. Yes, as per the FAA decision in Royal Air, Inc. v. City of Shreveport — No. 16-02-06. — No. FAA-2002-13063. FAA-2002-13063-0015. Director’s Determination (January 9, 2004). LRD 21 Determination No. 120. 14. Is a complainant’s status as a certified DBE alone sufficient to establish standing to file a Part 16 complaint alleging violations of Grant Assurance No. 37, DBE Participation? A. No. The FAA held that status as a certified DBE itself is not sufficient. The complaint must also include a brief description of how the alleged violations of the DBE requirements directly and substantially affected the complainant. James E. Ingram & Co. v. Bd. of Port Comm'rs & Port of

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-59 Oakland, Cal. — No. 16-03-12. — No. FAA-2003-15810. 2004 WL 3564213. Director’s Determination (September 1, 2005) LRD 21 Determination No. 144. Affirmed by Final Decision and Order of April 7, 2006. LRD 21 Determination No. 156. 15. Does the standing requirement for Part 16 (complainant must be directly and substantially affected by the alleged violation) apply to complaints alleging violation of 49 CFR Part 26 on DBE participation in federally funded projects? A. No. The FAA interprets 49 CFR §26.105(c) as permitting any person who knows of a Sponsor’s violation of Part 26 to file a complaint. Davis v. Jackson Mun. Airport Auth. — No. 16-10-01. — No. FAA-2010-1049. FAA-2010-1049-0007. 2011 FAA LEXIS 31. 2011 WL 273404. Director’s Determination (January 18, 2011). LRD 21 Determination No. 224. 16. If one corporation owns a share in a second corporation that is an airport tenant, does the first corporation have standing to bring a Part 16 complaint in its own name, or must the complaint be brought by the tenant corporation? A. The FAA held that the ownership interest in the airport tenant was sufficient to establish standing under Part 16. RDM, LLC v. Ted Stevens Anchorage Int'l Airport — No. 16-09-14. — No. FAA- 2010-0189. Director’s Determination (June 7, 2011). LRD Determination No. 231. 17. What are sufficient pre-complaint resolution efforts to satisfy the requirements of Part 16? A. The FAA considered numerous meetings and communications with the Sponsor that were documented in the complaint to be sufficient to satisfy the pre-complaint resolution requirements of Part 16. Royal Air, Inc. v. City of Shreveport — No. 16-02-06. — No. FAA-2002-13063. FAA- 2002-13063-0015. Director’s Determination (January 9, 2004). LRD 21 Determination No. 120. 18. Can an airport user group file a Part 16 complaint in its own name, or must it file as a representative of individual members using the airport? A. The FAA interprets the standing requirement of Part 16, namely that the complainant be directly and substantially affected by the airport’s actions, to preclude a user group from filing in its own name. The user group must file as a representative of individual airport user complainants. Santa Monica Airport Ass'n v. City of Santa Monica, Cal. — No. 16-99-21. 2000 FAA LEXIS 1120. 2000 WL 1824463. Director’s Determination (November 22, 2000). LRD 21 Determination No. 76. Affirmed by Final Decision and Order of February 4, 2003. LRD 21 Determination No. 109. 19. Can an airport tenant in receivership that has transferred its airport assets to a third party or the third party file a Part 16 complaint based on the Sponsor’s actions toward the tenant in receivership? A. Neither can bring the complaint. The FAA has held that the tenant in receivership can no longer claim that it is directly and substantially harmed by the actions of the airport because it no longer owns the asset. Furthermore, the third party purchaser transferee would have to allege actions taken by the airport against it after it acquired the assets from the original tenant to sustain a Part 16 action. Venice Jet Ctr., LLC v. City of Venice — No. 16-09-05. — No. FAA-2009-1119. Order of Dismissal (September 1, 2010). LRD 21 Determination No. 222.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-60 20. Can the FAA’s Office of Airports rely on other FAA offices to determine whether an airport’s access restriction is justified by the obligation to ensure the safety and efficiency of the airport? A. Yes. The FAA’s Office of Airports has stated that it may rely on other offices for their safety expertise and experience. Skydive Paris Inc. v. Henry Cnty., Tenn. — No. 16-05-06. — No. FAA- 2005-22369. FAA-2005-22369-0013. 2006 WL 247124. Director’s Determination (January 20, 2006). LRD 21 Determination No. 150. 21. What burden of proof does the FAA require for a Sponsor trying to justify a refusal to lease on the basis of “bad actions”? A. The FAA will not apply the criminal standard of “beyond a reasonable doubt”. Instead, it applies the same standard it does to complainants – allegations must be proved by a preponderance of the evidence. SeaSands Air Transp., Inc. v. Huntsville-Madison Cnty. Airport Auth. — No. 16-05-17. — No. FAA-2006-25072. FAA-2006-25072-0016. 2006 FAA LEXIS 839. 2006 WL 4393154. Director’s Determination (August 28, 2006). LRD 21 Determination No. 163. 22. Is an air carrier precluded from using Part 16 to obtain an investigation of airport rates and charges if its complaint could be handled under the statutory expedited review procedures in 49 USC §47129? A. No. The FAA has stated that such an interpretation of section 47129 would prevent the FAA from fulfilling its legal responsibilities. Union Flights, Inc. v. S.F. Int'l Airport — No. 16-99-11. 2000 FAA LEXIS 316. 2000 WL 311170. Director’s Determination (February 15, 2000). LRD 21 Determination No. 59. 23. Is there a statute of limitations for filing Part 16 complaints? A. No. The FAA has held that there is no express statute of limitations for filing complaints under Part 16. U.S. Constr. Corp. v. City of Pompano Beach, Fla. — No. 16-00-14. — No. FAA-2004- 17199. 2001 FAA LEXIS 751. Director’s Determination (August 16, 2001). LRD 21 Determination No. 90. Affirmed by Final Agency Decision of July 10, 2002. LRD 21 Determination 102. However, in another case, the FAA dismissed a complaint that was based on actions by the Sponsor 14 years before the complaint as untimely, noting that “the passage of more than 14 years does not appear to qualify as current sponsor action.” Heide v. Finney — No. 16-05-15. — No. FAA-2005-22379. Director's Determination (September 02, 2005). LRD 21 Determination 145. Affirmed by Final Decision and Order of July 7, 2006. LRD 21 Determination No. 159. 24. Will the FAA award damages to a complainant in a Part 16 proceeding? A. No. The FAA has held that the issue of damages should be litigated in court. Vortex Aviation Servs., LLC v. Jackson Hole Airport Bd. — No. 16-00-18. 2001 FAA LEXIS 463. 2001 WL 865710. Director’s Determination (June 21, 2001). LRD 21 Determination No. 86.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-61 25. Is the FAA required to conduct an independent investigation of Part 16 complaints, or can it rely on the evidence submitted by the parties in their Part 16 filings? A. The FAA held that there is no requirement for the FAA to conduct research to substantiate either parties’ claims in a Part 16 proceeding, and that it is a complainant’s responsibility to substantiate its claims and provide supporting evidence. Desert Wings Jet Ctr., LLC v. City of Redmond — No. 16- 09-07. — No. FAA-2009-1102. FAA-2009-1102-0019. 2010 FAA LEXIS 298. 2010 WL 4723466. Directors Determination (November 10, 2010). LRD 21 Determination No. 223. Affirmed by Final Agency Decision of May 25, 2012. LRD 21 Determination No. 236. 26. Will the FAA consider new evidence that is submitted with an appeal from a Director’s Determination under Part 16? A. Not without a showing that the new evidence was not available or could not have been discovered before issuance of the Director’s Determination. Roadhouse Aviation v. City of Tulsa — No. 16-05- 08. — No. FAA-2005-22368. Final Decision and Order. FAA-2005-22368-0037. 2007 FAA LEXIS 240. 2007 WL 1966160. Director’s Determination (December 14, 2006). LRD 21 Determination No. 167, Affirmed by Final Decision and Order of June 26, 2007. LRD Determination No. 179. 27. When might the FAA consider new evidence at the appeal stage of a Part 16 proceeding? A. The FAA considered new evidence submitted by the airport in a case in which the evidence was related to events that occurred while the Part 16 proceeding was underway and the complainant did not object. Boston Air Charter v. Norwood Airport Comm'n — No. 16-07-03. — No. FAA-2007- 28820. Final Decision and Order of August 14, 2008. LRD 21 Determination No. 196, Affirming Director’s Determination (April 11, 2008). LRD 21 Determination No. 192. 28. Is a complainant entitled to an oral evidentiary hearing in a Part 16 proceeding? A. The FAA held that only a Sponsor is entitled to an oral evidentiary hearing, and only if a Director’s Determination has found a violation and proposes the issuance of a compliance order. Jimsair Aviation Servs., Inc. v. S.D. Cnty. Regional Airport Auth. — No. 16-06-08. — No. FAA- 2006-25225 FAA-2006-25225-0037. 2007 FAA LEXIS 292. 2007 WL 2399862. Final Decision and Order. LRD 21 Determination No. 184. See also DeSciose v. City of Long Beach, Cal. — No. 16-99-12. 2001 FAA LEXIS 728. Final Decision and Order of December 13, 2001. LRD 21 Determination No. 93. 29. In an expedited rates and charges review proceeding under 49 USC §47129, what criteria will the U.S.DOT consider to determine whether the fees were imposed under a written agreement and are therefore outside of U.S.DOT’s jurisdiction under section 47129? A. The U.S.DOT determined that the written agreement was not made under duress where the record showed that the airport did not make improper threats and the complaining airline was not bargaining as an “unequal player”. The U.S.DOT concluded that it did not therefore have jurisdiction, and dismissed the complaint. Continental Micronesia, Inc. v. Commonwealth of the N. Mariana Islands — No. 50191. Order No. 95-4-14. LRD Determination No. 13.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-62 30. In an expedited rates and charges review proceeding under 49 USC §47129, what, if anything, will the U.S.DOT consider as justifying a Sponsor’s request to be exempted from the requirement to post security for the fees in dispute? A. The U.S.DOT determined that, in a case in which the Sponsor presented no evidence that the posting of security would impair its ability to meet the obligations of existing financing agreements, the Sponsor did not qualify for the statutory exception for situations that would have such an impact (49 USC §47129(f)(2)), and was therefore required to post the security. Am. Airlines, Inc. v. P.R. Ports Auth. / P.R. Ports Auth. Rates Proceeding — No. 50178. Order No. 95-3-41. LRD 21 Determination No. 10. 31. In an expedited rates and charges review proceeding under 49 USC §47129, if the Sponsor has retroactively rescinded the rate increases that are the subject of the complaint, is there still a significant dispute? A. No. The U.S.DOT determined that no significant dispute existed once the rate increase was rescinded. British Airways PLC v. Port Auth. of N.Y. & N.J. — No. OST-2000-7285. Order of Dismissal. Order No. 2000-5-23. DOT-OST-2000-7285-0015. 2000 DOT Av. LEXIS 280. 2000 WL 675564. LRD 21 Determination No. 63. 32. In an expedited rates and charges review proceeding under 49 USC §47129, how much money must be in dispute for DOT to find a significant dispute? A. The U.S.DOT held that a dispute with a value of $65,000 was not sufficient to qualify as a significant dispute. Delta Air Lines, Inc. v. Lehigh-Northampton Airport Auth. — No. OST-95-80, 50264. Order No. 95-5-8. DOT-OST-1995-80-0011. 1995 DOT Av. LEXIS 299. 1995 WL 262369. LRD 21 Determination No. 14. 33. In an expedited rates and charges review proceeding under 49 USC §47129, is a rental rate imposed during a holdover tenancy period “imposed pursuant to a written agreement”, and therefore outside the scope of section 47129? A. No. The U.S.DOT determined that airline use of terminal facilities under the holdover provisions of a lease does not fall within the meaning of a “written agreement” under section 47129. Alaska Airlines, Inc. v. L.A. World Airports — No. OST-2007-27331. Order No. 2007-6-8 (June 15, 2007). DOT-OST-2007-27331-0198. 2007 DOT Av. LEXIS 437. 2007 WL 1788970. LRD 21 Determination No. 177. Pet. for review granted in part and remanded sub nom. Alaska Airlines, Inc. v. U.S. Dep't of Transp., No. 07-1209 (D.C. Cir. August 7, 2009). 36. Is the FAA required to apply a safety determination on ultralight aircraft operations conducted during informal investigations, or can it conduct a new study as part of a Part 16 proceeding? A. The FAA determined that it could conduct a new safety analysis when the safety data were necessary to resolve a formal complaint. Ultralights of Sacramento v. Cnty. of Sacramento, Cal. — No. 16-00-11. Director’s Determination (August 9, 2001). LRD 21 Determination No. 89.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix E, Expanded List of Questions and Answers E-63 E-28 Federal Preemption 1. If a Sponsor does not have a reasonable basis for prohibiting scheduled Part 135 operations, while it permits unscheduled operations, is the prohibition a federally preempted regulation of rates, routes and services, or is it protected by the airport proprietor’s exception? A. Without a reasonable basis for the prohibition, the FAA considered it to be preempted and not protected by the airport proprietor’s exception. Centennial Express Airlines v. Arapahoe Cnty. Pub. Airport Auth. / Kehmeier v. Arapahoe Cnty. Pub. Airport Auth. / Centennial Express Airlines v. Arapahoe Cnty. Pub. Airport Auth. / FAA v. Arapahoe Cnty. Pub. Airport Auth. — No. 16-98-05, 13-94-25, 13-95-03. Director’s Determination (August 21, 1998). Director’s Determination (August 21, 1998). LRD 21 Determination No. 42. Affirmed by Final Agency Decision and Order of February 18, 1999. LRD 21 Determination No. 46. Affirmed sub nom. Arapahoe County Pub. Airport Auth. v. FAA, 242 F.3d 1213 (10th Cir. 2001), cert. denied, 534 U.S. 1064 (2001). 2. If a Sponsor has a landing fee exemption program for flights from small communities that the Sponsor designates, is the Sponsor engaging in a federally preempted regulation of rates, routes and services? A. It depends. In one case, the U.S.DOT stated that, if the exemption program tracked closely with the federal essential air service (EAS) program in defining the communities eligible for the exemption, it might not be preempted. In the case before the U.S.DOT, however, the airport’s program was not aligned sufficiently closely with the EAS program, and U.S.DOT found that it was preempted. Investigation into Massport's Landing Fees — No. 13-88-02. Opinion and Order (December 22, 1988). LRD Determination No. 2. Affirmed, sub nom. New England Legal Foundation, et al. v. Massachusetts Port Authority; Department of Transportation, et al., 883 F.2d 157 (1st Cir. 1989), LRD 13. 3. Is a Sponsor preempted from enforcing its minimum standards on an air taxi operation? In other words, does enforcement of the standards amount to the regulation of the air taxi’s rates routes or services? A. No. The FAA has held that the application of minimum standards to an air taxi is not preempted. Executive Air Taxi Corp. v. City of Bismarck, N.D. — No. 13-91-05, 13-92-04. Record of Decision (June 29, 1993). LRD 21 Determination No. 5.

ACRP Project 03-38 (FY 2015) Task 8 Final Technical Appendices Understanding FAA Grant Assurance Obligations Appendix F, Synopsis of Resources and References ACRP PROJECT 03‐38, UNDERSTANDING FAA GRANT  ASSURANCE OBLIGATIONS  APPENDIX F   SYNOPSIS OF RESOURCES AND REFERENCES