[Federal Register: February 10, 2004 (Volume 69, Number 27)]
[Notices]
[Page 6366-6371]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10fe04-157]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
Notice of Policy Regarding the Eligibility of Airport Ground
Access Transportation Projects for Funding Under the Passenger Facility
Charge Program
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: In accordance with section 123(e) of the Vision 100--Century
of Aviation Reauthorization Act, (Pub. L. 108-176, December 12, 2003),
the Federal Aviation Administration (FAA) is publishing its policy with
regard to the eligibility of airport ground access transportation
projects for funding under the Passenger Facility Charge (PFC) program.
The FAA determines the eligibility of airport ground access
transportation projects, no matter the technology proposed (e.g. road,
heavy or light rail, water) for funding under the PFC program, on a
case-by-case basis after a review of the particulars associated with
each unique proposal. In general, a request to use PFC's to fund an
airport ground access transportation project must be submitted by a
qualified applicant and the project must be eligible for funding under
the Airport Improvement Program (AIP); meet at least one of the PFC
program objectives and, if applicable, at least one of the significant
contribution requirements \1\; and be adequately justified (49 U.S.C.
40117(d)(3)). In addition, all PFC projects must conform to other
applicable regulatory requirements as referenced in 14 CFR part158
(e.g., environmental requirements, specified implementation schedules).
Airport ground access transportation projects proposed at a PFC level
higher than $3 must also conform to the AIP funding test (49 U.S.C.
40117(b)(4)(B); 14 CFR 158.17(a)(2)) and the airside needs test (49
U.S.C. 40117(d)(4); 14 CFR 158.17(a)(3)).
---------------------------------------------------------------------------
\1\ As the FAA has applied the significant contribution
requirement, a finding that a project meets a PFC objective is
subsumed within a finding that a project meets the significant
contribution requirement.
ADDRESSES: This is an informational notice only and comments are not
---------------------------------------------------------------------------
being solicited at this time.
FOR FURTHER INFORMATION CONTACT: Sheryl Scarborough, Financial Analysis
and Passenger Facility Charge Branch (APP-510), Room 619, Airports
Financial Assistance Division, Office of Airport Planning and
Programming, Federal Aviation Administration, 800 Independence Avenue,
SW., Washington, DC 20591, telephone (202) 267-8825.
SUPPLEMENTARY INFORMATION: In recent yeas, the FAA has been requested
to approve PFC funding of airport ground access transportation
facilities. Proposals to build rail transit projects in particular have
tended to involve large amounts of funds--from several hundred million
to more than a billion dollars--and thereby generated close scrutiny,
if not controversy. The Federal Transit Administration (FTA) estimates
that three dozen or more localities currently have plans or proposals
to build fixed guideway access projects to their airports.
We are publishing this policy to comply with the requirement of
section 123(e) of the Vision Act. Section 123(e) directs the FAA to
publish its current policy on airport ground access transportation
project eligibility for PFC funding within 60 days after enactment of
the Vision 100 Act. By consolidating guidance set forth in the preamble
to the PFC regulation as well as the PFC regulation itself (14 CFR part
158), FAA Order 5500.1 ``Passenger Facility Charge'' (August 9, 2001),
the AIP Handbook (change 1 to FAA Order 5100.38B (January 8, 2004), and
FAA PFC Records of Decision and Final Agency Decisions approving the
use of PFC revenue to finance airport ground access transportation
projects, this notice should assist public agencies eligible to impose
PFC's, air carriers, local transit operators, and other stakeholders in
understanding how the FAA applies the statutory and regulatory criteria
governing the PFC program to airport ground access transportation
projects. The FAA has a more extensive background in evaluating highway
ground access projects through its experiences with the various FAA
airport grant programs and through the numerous requests for PFC
funding of highway access projects (e.g. Las Vegas McCarran
International, Miami International, and Baltimore-Washington
International Airports). Therefore, although it can be used for any
proposed mode of transportation, this summary of FAA policy reflects
the FAA's recent experience in approving three major fixed guideway
access projects--the Light Rail System (LRS) at John F. Kennedy
International Airport
[[Page 6367]]
(JFK), the monorail project at Newark Liberty International Airport,
and the Airport MAX project at Portland International Airport (PDX).
This FAA policy is subject to refinement in the future as different
issues are raised during the evaluation of new projects.
The FAA determines the eligibility and justification for airport
ground access transportation projects, no matter the technology
proposed (e.g., road, heavy or light rail, water), on a case-by-case
basis after a review of the particulars associated with each unique
proposal (Preamble to 14 CFR part 158, Sec. 158.15 Project eligibility
(56 FR 24258, May 29, 1991)). In general, an airport ground access
transportation project must: be submitted by a qualified applicant; be
eligible for funding under the AIP; meet at least one of the PFC
program objectives and, if applicable, at least one of the significant
contribution findings; and be adequately justified (49 U.S.C.
40117(d)(3)). In addition, all PFC projects must conform to other
applicable regulatory requirements as referenced in 14 CFR part 158
(e.g., environmental requirements, specified implementation schedules).
Airport ground access transportation projects approved for PFC levels
above $3 must also conform to the AIP funding test (49 U.S.C.
40117(b)(4)(B); 14 CFR 158.17(a)(2)) and the airside needs test (49
U.S.C. 40117(d)(4); 14 CFR 158.17(a)(3)), as discussed more fully
below.
I. Qualified Applicants for PFC Projects
1. Who May Apply?
The PFC statute (49 U.S.C. 40117(a)(2)) and regulation (14 CFR part
158.5) provide that only ``a public agency that controls a commercial
service airport'' may submit an application to fund a specific project
with PFC revenues. As defined in 14 CFR 158.3, a public agency may be
``a State or any agency of one or more States; a municipality or other
political subdivision of a State; an authority created by Federal,
State, or local law; a tax supported organization; or an Indian tribe
or pueblo that controls a commercial service airport.'' In addition,
the sponsor of an airport participating in the Pilot Program on Private
Ownership of Airports (49 U.S.C. 47134) may also submit a PFC
application. A commercial service airport is defined in 14 CFR 158.3 as
``a public airport enplaning 2,500 or more passengers annually and
receiving scheduled service.''
2. May Other Parties Participate in Project Design and Development?
Public agencies are strongly encouraged to coordinate the design
and development of airport ground access transportation projects with
local and regional transportation planning boards (e.g., metropolitan
planning organizations). This is especially important in cases where
the PFC-funded project necessitates access or access improvements to a
public roadway or transit system off airport property. (Section 187 of
the Vision 100 Act requires public agencies controlling large or medium
hub airports that are planning to construct or relocate an airport or
construct a new runway or major runway extension to offer the local
metropolitan planning organization the opportunity to review any
airport layout plan or master plan in which the proposed project is
depicted. This provision is intended to ensure that any ground access
improvements necessitated by the proposed project are identified in a
timely manner.) However, projects to be funded with PFC revenues must
conform to the eligibility conditions specified below. In addition, the
public agency is the final authority on the type and scope of an
airport ground access transportation project submitted for PFC funding.
49 U.S.C. 40117(b)(2) specifies that ``A state, political subdivision
of a state, or authority of a state or political subdivision that is
not the eligible agency may not regulate or prohibit the imposition or
collection of a passenger facility fee or the use of the passenger
facility revenue.''
II. PFC Project Eligibility
1. How Is PFC Eligibility Established?
Under 49 U.S.C. 40117(a)(3)(A), PFC eligibility for airport ground
access transportation projects is identical to that of AIP projects.
AIP eligibility of airport projects, codified in Chapter 471 of 49
U.S.C., is summarized in change 1 to FAA Order 5100.38B, AIP Handbook
(January 8, 2004). 49 U.S.C. 47102(3)(1) specifically identifies
projects to support the movement of passengers, cargo, and baggage as
being eligible airport development.
In past decisions on the eligibility of airport ground access
transportation projects, the FAA has relied on the eligibility
conditions summarized in paragraphs 620a, ``Access Roads,'' and 622b,
``Rail Service to Airports'' of change 1 to FAA Order 5100.38B (January
8, 2004) and its predecessor FAA Order 5100.38A (October 24, 1989),
paragraphs 553, ``Airport Roads,'' and 555 ``Rapid Transit
Facilities.'' The use of eligibility criteria for access roads to judge
eligibility of rail and fixed guideway systems is based, in part, on a
March 15, 1971, opinion by the FAA Assistant Associate General Counsel.
In that opinion, the Assistant Associate General Counsel determined
that rail service to an airport was AIP eligible under the category of
airport ``entrance and service roads.'' The eligibility criteria
summarized in the paragraphs cited above were themselves established
through agency legal opinions interpreting 49 U.S.C. and its
predecessor statutes.
To be AIP and PFC eligible, the airport ground access
transportation project must meet the following conditions: (1) The road
or facility may only extend to the nearest public highway or facility
of sufficient capacity to accommodate airport traffic; (2) the access
road or facility must be located on the airport or within a right-of-
way acquired by the public agency; and (3) the access road or facility
must exclusively serve airport traffic . Related facilities, such as
acceleration and deceleration lanes, exit and entrance ramps, lighting,
equipment to provide operational control of a rail system or people
mover, and rail system or people mover stops at intermediate point on
the airport are eligible when they are a necessary part of an eligible
access road or facility (change 1 to FAA Order 5100.38B (January 8,
2004) paragraphs 620a(5) and 622(a). Related facilities may also
include information technology and other electronic systems that will
improve the operation, capacity or safety of the ground access
facility, overhead variable message signs, and traffic control systems.
In addition to the above eligibility criteria, the public agency
must retain ownership of the completed ground access transportation
project. The public agency may choose to operate the facility on its
own or may choose to lease the facility to a local or regional transit
agency for operation within a larger local or regional transit system.
2. What Does the FAA Consider the Nearest Highway or Facility?
An airport ground access transportation project extending off the
airport must connect to the nearest public highway or facility
(depending on the transportation mode in question) of sufficient
capacity to accommodate airport traffic (change 1 to FAA Order
5100.38B, paragraph 620a(1)). More than one access facility and/or
connection point may be eligible if the airport traffic is of
sufficient volume to require more than one access route (change 1 to
FAA Order 5100.38B,
[[Page 6368]]
paragraph 620a(4)). Situations where more than one access route is
needed would occur if an existing access route could not be expanded to
meet expected traffic due to physical, environmental, or other binding
constraints; or if a particular access route is poorly situated to
serve a significant flow of traffic associated with a geographically
separate region served by the airport.
Moreover, the FAA has allowed an airport ground access
transportation project to connect to more than one point of a public
transportation mode if the connections are to physically separated
systems. For instance, in the case of the LRS at JFK, the FAA allowed
the LRS to connect to the nearest-points-of access of two separate
public rail systems (i.e., the New York City Transit Subway and the
Long Island Rail Road). Given the size of the New York City
metropolitan area and the extremely close proximity of one rail
connection point to airport parking facilities to be served by the LRS,
the FAA determined that the access to two rail sites serving
geographically distinct areas was reasonable.
3. What Qualifies as Airport-Owned Land or Rights-of-Way?
Airport ground access transportation projects built entirely on
airport-owned land within the traditional boundaries of an airport
clearly meet the airport-owned land requirement for AIP eligibility, as
stated in change 1 to FAA Order 5100.38B, paragraph 620a(2). Moreover,
an airport ground access transportation project may extend off the
traditional boundaries of an airport (to the nearest off-airport
highway or access facility) provided that the right-of-way for the
project will be owned and controlled by the public agency for the life
of the project and the project is connected to the airport at some
point, thus qualifying as an appurtenant area and within the airport
boundary under 49 U.S.C. 47102(2)(A)(ii). To satisfy this eligibility
requirement, the public agency must amend its Airport Layout Plan and
Exhibit A to show the right-of-way. The FAA's application of these
eligibility standards was upheld by the U.S. Court of Appeals for the
District of Columbia Circuit for the JFK LRS PFC decision in the case
of the Air Transport Association of America v. FAA, 169 F.3d. 1, 5
(D.C. Cir 1999) finding a certification by the eligible agency to take
ownership of the right-of-way before it would use PFC funds to be
adequate, and further, finding that the eligible airport ground access
transportation project may be attached to the airport terminus to be
considered within the airport boundary.\2\
---------------------------------------------------------------------------
\2\ The Court reviewed the FAA's application of the eligibility
standards from FAA Order 5100.38A (October 29, 1989), paragraph 553,
``Airport Roads,'' and paragraph 555, ``Rapid Transit Facilities.''
Among other things, the petitioner had contented that the right-of-
way between the Jamaica Long Island Rail Road Station, a 3.1 mile
elevated railway along the Van Wyck Expressway, and JFK did not meet
FAA eligibility requirements because this right-of-way was not ``on-
airport.'' The petitioner argued that for a right-of-way to be on-
airport, it must be attached to the airport landing area along its
entire length. The court upheld the FAA's position, based upon FAA
Order 5100.38A, paragraphs 553 and 555, that the right-of-way need
only be attached to the airport landing area at some point, but not
necessarily along the entire length of the right-of-way. The court
also noted that the FAA's interpretation, that once a public agency
owns the right-of-way, that strip of land is by definition airport-
owned and therefore ``within the airport'' was ``reasonable'' and
``consisted with the FAA's own regulations and past practice.'' 169
F. 3d at 6. The court also cited 56 FR 24,254, 24,258 (1991), the
FAA's preamble to the final PFC rule, which states that ``ground
transportation projects are eligible if the public agency acquires
the right-of-way.'' 169 F. 3d at 6.
---------------------------------------------------------------------------
4. What Is Exclusive Airport Use?
The requirement under change 1 of FAA Order 5100.38B paragraph
620a(3) that the airport ground access transportation project be for
the exclusive use of airport patrons and employees means that the
facility can experience no more than incidental use by non-airport
users. ``Incidental use by non-airport users'' means that through
system access control procedures, physical alignment, schedules,
pricing or for other reasons, routine use by non-airport users would be
unattractive and non-airport users in fact constitute only a minor
percentage of total system ridership. Exclusive airport use does not
mean that any non-airport use must be prevented at all costs. In
evaluating this requirement, the FAA considers whether techniques that
would enable the public agency to prevent non-airport use would be
prohibitively expensive. However, use of the airport ground access
transportation project by more than a minor percentage of non-airport
users would raise the FAA's concerns with regard to a project's
eligibility.
Determining whether a facility meets the standard of exclusive use
requires a case-by-case evaluation, although certain types of
facilities are easier to evaluate than others. A rail station located
within the airport boundary (particularly one in or adjacent to an
airport terminal as in the case of Lambert-St. Louis, Chicago O'Hare,
Hartsfield-Jackson Atlanta, Ronald Reagan Washington National, and
Baltimore-Washington airports) would typically be used only by airport
users and therefore be an exclusive use facility (some exceptions may
exist if the rail station is also convenient to a nearby non-airport
facility). A facility near the boundary of an airport or which
otherwise may attract non-airport use may qualify as exclusive use if
system access control could be implemented by design features, pricing
techniques (making non-airport use non-economical), routing to
discourage non-airport use, or other methods approved by the FAA \3\.
If a road or facility is intended to serve both airport and non-airport
users, only those physically-discrete subsections of the road or
facility that exclusively serve airport users could be funded with AIP
or PFC funds. In the case of the PDX Airport MAX rail system, the FAA
permitted PFC funding for only one of three discrete segments (the on-
airport segment ending at the terminal) as it alone was solely intended
for use by airport patrons and employees.
---------------------------------------------------------------------------
\3\ For instance, during the FAA's evaluation of the JFK LRS, it
was suggested that local non-airport commuters might park in the JFK
long term parking facilities and enter the LRS to access the Long
Island Railroad or the subway lines. The FAA concluded that such
non-airport uses of the LRS would be economically unfeasible due to
the combined cost of the roundtrip LRS fare and airport parking
relative to alternative means of accessing the non-LRS transit
system.
---------------------------------------------------------------------------
III. PFC Objective and Significant Contribution Findings
In addition to AIP eligibility, the PFC statute as implemented by
14 CFR part 158, requires that PFC projects, including PFC-funded
airport ground access transportation projects, must accomplish one or
more PFC program objectives and, if applicable, be found to make a
significant contribution to the national air transportation system in
one or more specific areas, depending on the size of the airport and
the proposed PFC level. In accordance with 49 U.S.C. 40117(d)(2), as
implemented by 14 CFR 158.15(a), the PFC program objectives are: (1)
Preserving or enhancing the safety, capacity, or security of the
national air transportation system; (2) reducing noise or mitigate
noise impacts resulting from an airport that is part of such system; or
(3) furnishing opportunities for enhanced competition between or among
air carriers. In accordance with 49 U.S.C. 40117(b)(4)(A) as
implemented by 14 CFR 158.17(b), a large or medium hub airport
proposing a project at a $4 or $4.50 PFC level must demonstrate that
the project makes a significant contribution to: (1) Improving air
safety and security; (2) increasing competition among air carriers; (3)
reducing current or anticipated congestion; or (4)
[[Page 6369]]
reducing the impact of aviation noise on people living near the
airport.
Any public agency requesting PFC funding for an airport ground
access transportation project at a $1, $2, or $3 PFC level must meet
the PFC Objectives requirement. Ground access transportation projects
proposed for funding at a $4 or $4.50 PFC level at a small hub or
smaller airport must also meet the PFC Objectives requirement. However,
airport ground access transportation projects proposed for funding at a
$4 or $4.50 PFC level at a large or medium hub airport must meet the
significant contribution requirement.
1. Which PFC Objectives Are Typically Met by an Airport Ground Access
Transportation Project?
Typically, public agencies propose that an airport ground access
transportation project meets the objective of preservation or
enhancement of capacity of the national air transportation system, in
that airport passengers or air cargo customers may be afforded faster
and/or more reliable access times to airports, thus reducing total trip
times. The FAA uses reduced trip time as a rough gauge of capacity
benefits as it means that the national air transportation system can
accommodate the same number of people or amount of air cargo with less
average delay, or alternatively, a larger number of people or a larger
amount of air cargo at the same level of average delay. These airport
passengers or air cargo customers could include users of the proposed
access system, as well as users of other means of airport access who
would benefit from reductions in ground congestion enabled by the
proposed system.
A public agency may propose that an airport ground access
transportation project meets other PFC objectives apart from or in
addition to capacity preservation or enhancement. For instance, a
project could benefit competition between airlines if the improved
ground access results in a passenger being able to choose between air
carriers operating at different airports. In all cases, the
objective(s) cited for the project must be realistic and supported by
analysis. The degree to which the project meets its objective(s) is, in
turn, the basis for the determination of the project's justification.
2. Which Significant Contribution Findings Are Typically Proposed for
an Airport Ground Access Transportation Project?
Similar to the PFC objectives requirement, public agencies
typically prepare an airport ground access transportation project
description and justification to meet the ``reduce current or
anticipated congestion`` significant contribution finding. The public
agency's analysis may be similar to that outlined under the PFC
objectives discussion above. In analyzing the significant contribution
benefits of a ``congestion'' project, the FAA considers the following
questions; in addition to any unique aspects of a project: (1) Does the
project support or is it a part of a capacity project to which the FAA
has allocated Federal resources or that would qualify for such
resources?; (2) Is the project included in an AIP Letter of Intent or
does it satisfy the FAA's benefit-cost criteria for large AIP
discretionary investments?; (3) Has the project been identified as an
important item in an FAA Airport Capacity Enhancement Plan?; or (4)
Does the project alleviate an important constraint on airport growth or
service? (FAA Order 5500.1, Passenger Facility Charge, (August 9,
2001), paragraph 10-12b.)
3. How Does the FAA Analyze an Airport Ground Access Transportation
Project That Is Undertaken To Obtain Necessary Local Approvals for
Other PFC Financed Projects?
In some cases, a state or local government agency (other than the
airport public agency) may condition its approval of an airport project
requested by the public agency with the requirement that the public
agency also build an airport ground access transportation project. To
date, the FAA has not permitted the PFC objectives or other PFC
requirements that must be met by the requested airport project to be
imputed to the airport ground access transportation project simply
because the access project has been made a condition of the airport
project's approval as a matter of state or local law. Rather, the FAA
has consistently required that the proposed airport ground access
transportation project, on its own merits, satisfy one or more of the
PFC objectives, as well as conform to the other requirements of the PFC
statute and regulation, before granting approval of the airport ground
access transportation project.
IV. Adequate Justification
The FAA notes that, in addition to meeting the statutory and
regulatory criteria of eligibility, PFC-funded ground access
transportation projects must be adequately justified. This requirement
is established by 49 U.S.C. 40117(d)(3). The nature of the project
justification depends in large measure on which PFC objective the
public agency relief on to support the project. Airport ground access
transportation projects are typically intended to preserve or enhance
the capacity of the national air transportation system. In this case,
the justification should be framed in terms of the project's effect on
capacity.
1. How Can a Public Agency Demonstrate Adequate Justification for an
Airport Access Road Project?
In the case of standard airport access road projects, the case for
new or enlarged roads can usually be made by a straightforward traffic
study. The traffic study should demonstrate the impact of the access
road project in reducing roadway congestion and trip times to the
airport. Usually, the need for new road capacity is evident to all
users of an airport and can be clearly demonstrated based on these
studies.
2. How Can a Public Agency Demonstrate Adequate Justification for an
Intermodal Project?
Intermodal projects--especially rail or other fixed guideway
systems--can be complex to analyze. To date, the FAA has issued PFC
decisions on only a few large-scale airport rail projects and has
employed two methods to determine adequate justification. Due to this
limited scope of prior experience, the FAA continues to consider
adequate justification on a case-by-case basis and is not prepared at
this time to constrain public agencies' options for establishing
justification. The FAA has relief on the specialized expertise of the
FTA to validate measured capacity effects of airport rail projects and
will continue to do so.
An airport ground access transportation project can be found
adequately justified if it has the effect of alleviating a ground
access constraint that otherwise would impede or restrain use of the
airport by air passengers. Using this method, the public agency must
demonstrate that, but for the proposed system, use of the airport would
be substantially less, either now or in the future, than it would
otherwise be due to ground access constraints. The Office of the
Inspector General (OIG) agreed with this as an approach to the adequate
justification requirement in a January 21, 1998, management advisory to
the FAA pertaining to the JFK LRS PFC decision. In the case of the JFK
[[Page 6370]]
LRS, the FAA found the LRS to be adequately justified based on analysis
that showed that, but for the LRS, 3.35 million fewer air passengers
would be able to access JFK by the year 2013 due to roadway access
constraints.
The FAA has also accepted as adequate justification the public
agency's demonstration that the benefits of the project in terms of
reduced travel time to the airport (either for project passengers
themselves or for all air passengers who benefit from less congested
roadways) are reasonable relative to the PFC cost of the project. This
approach was used, in part, to establish adequate justification for the
Airport MAX light rail system that will link PDX to the regional rail
network. Use of this method of analysis is voluntary for the public
agency, as current regulations do not require public agencies to use
benefit-cost analysis to show adequate justification for a PFC project.
However, the requirement for adequate justification is not
voluntary. A decision not to a benefit-cost analysis does not relieve a
public agency of the need to demonstrate adequate justification in some
other way. The FAA and FTA will consider other methods of establishing
adequate justification that a public agency may believe better
addresses its unique access project. At a minimum, an acceptable
approach must demonstrate that a rail project will produce a reasonable
stream of congestion reduction or other access benefits to air
passengers relative to the scale and cost of the project. Thus, under
whatever method is selected, the FAA would normally expect the level of
justification for the project to increase as the amount of PFC funding
requested for the project increases. We strongly recommend that the
public agency consult with the FAA and FTA early in the planning/study
process (and well in advance of submission of a PFC application to fund
such a project) to identify a mutually acceptable approach to
establishing adequate justification for the particular project.
V. Other Issues Potentially Affecting PFC Decisions on Airport Ground
Access Transportation Projects
In its January 21, 1998, management advisory to the FAA, the OIG
recommended that the FAA consider two other elements about the JFK LRS
in addition to the project's effect on air passenger use of JFK (see
Adequate Justification, above). Because of the great expense of the LRS
project, the OIG recommended that the FAA verify that the project, if
approved, would not create a risk to investment plans for enhancing
airside safety, security, and capacity. The OIG also recommended that
the public agency explain why the LRS should be funded without
contribution from surface transportation funds or other non-airport
revenues.
1. Must a Public Agency Fully Fund Airside Safety, Security, and
Capacity Projects Before Applying PFC Funds to Airport Ground Access
Transportation Projects?
The answer to this question depends on what PFC level the public
agency proposes for the project.
The PFC statute and regulation do not assign priority to projects
meeting any one objective of the PFC program or to airside projects in
preference to non-airside projects for projects proposed at a $1, $2,
or $3 PFC level. Accordingly, the FAA cannot require that a public
agency fund an airside project in preference to an airport ground
access transportation project at these PFC levels. However, the FAA
would be very concerned to find that critical airport safety, security,
and/or airside capacity needs could not be funded as a result of the
funding of an airport ground access transportation project. In order to
evaluate such concerns, the FAA may require that the public agency
provide relevant materials for the FAA's review. The PFC regulation, 14
CFR 158.25, already requires that the public agency submit the
airport's capital plan with the PFC application. If a funding
deficiency is revealed, the FAA would encourage the public agency to
correct this deficiency.
Airport ground access transportation projects proposed at a $4 or
$4.50 PFC level, regardless of the size of the airport, must meet an
airside needs test pursuant to 49 U.S.C. 40117(d)(4); 14 CFR
158.17(a)(3). This test requires that the public agency demonstrate
that it has made adequate provision for financing the airside needs of
the airport, including runways, taxiways, aprons, and aircraft gates.
Typically, the FAA reviews any available planning and inspection
documents to determine the airside needs of the airport and then
reviews the public agency's airport capital plan, submitted with the
PFC application, to ensure that any needed airside projects are
included in the capital plan.
2. Does the Allocation of Some Non-PFC Funds to an Airport Ground
Access Transportation Project Increase the Likelihood That the Project
Will Be Approved for PFC Funding?
The PFC eligibility of an airport ground access transportation
project does not depend upon whether the public agency also
contemplates using other sources to fund portions of the project. There
is no requirement in the PFC statute or regulation for public agencies
to fund such projects intermodally (i.e., from multiple transit funding
sources). The FAA has identified factors that could encourage or
discourage a public agency in pursuing intermodal funding. The
magnitude of aviation benefits expected of the project to establish
adequate justification for PFC funding will be less if the amount of
PFC funding requested is reduced by non-PFC participation. Non-PFC or
non-airport financial participation may also help build local consensus
for the project by ameliorating concerns on the part of the aviation
community about the use of airport resources for non-airside
investments. However, the partial funding of a project from non-PFC
sources does not negate the exclusive use requirement associated with
PFC funding. In any instance where PFC funding is used to fund a
component of an intermodal project, that component must be for
exclusive airport use (see PFC Project Eligibility, above) and the
public agency must adequately demonstrate that the funding sources are
viable. The exclusive use requirement might complicate the ability of a
public agency to qualify for the expenditure of funds from traditional
sources of transit capital (e.g. FTA's major capital investments
program) unless the project can be easily separated into exclusive and
mixed-use components.
3. Must a Public Agency Use or Pledge To Use AIP Grant Funds on an
Airport Ground Access Transportation Project Before the Project Can Be
Approved for PFC Funding?
The answer to this question depends on what PFC level the public
agency proposes for the project.
The PFC statute and regulation do not require that a public agency
use AIP grant funds for projects proposed at a $1, $2, or $3 PFC level.
Airport ground access transportation projects proposed at a $4 or
$4.50 PFC level, regardless of the size of the airport, must meet an
AIP funding test. This test requires that the FAA make a finding that
the project cannot be paid for from AIP funds reasonably expected to be
available in order to approve the project (49 U.S.C. 40117(b)(4); 14
CFR 158.17(a)(2)).
[[Page 6371]]
VI. Use of Other Airport Revenue To Finance Airport Ground Access
Transportation Projects
Eligibility for funding of airport ground access transportation
projects with airport revenues is different than that for PFC or AIP
funds. Guidance for use of such airport revenues on airport ground
access transportation projects is provided in ``Policies and Procedures
Concerning the Use of Airport Revenue,'' Section V.A.9 (64 FR 7718-
7719, February 16, 1999).
Issued in Washington, DC on February 3, 2004.
Catherine M. Lang,
Deputy Associate Administrator for Airports.
[FR Doc. 04-2884 Filed 2-9-04; 8:45 am]