Like many agencies of the Federal Government, the law giving life to the FAA needs to be reauthorized periodically. The last bill was in 2018 and the current version will be passed this year. A reauthorization bill is something of a misnomer. The first page reauthorizes the agency; the remaining hundreds and hundreds of pages contain a bajillion tweaks to the rules governing how the agency works. These rules live in Title 49 of the Federal Code–under the Department of Transportation.
Most of those tweaks apply broadly because they are responding to the industry or community groups with some national issues in mind. But some are the legislative version of earmarks. At first glance, the language reads ‘generic’ but a closer reading shows that they address a very specific issue at a single airport. Below is one possible example.
Community Land Use
The FAA has traditionally placed strict limits on the uses of land purchased with Federal dollars, including how (or even if) it might be sold. It enforces those rules with money. All major airports (like Sea-Tac) cannot exist without annual FAA grants so those grants have the force of law. If an airport owner breaks even one of these land use rules, they risk losing all FAA funding.
The examples below concern Title 49 47107, which are the rules pertaining to lands purchased with FAA money, but currently used for community purposes.
First is the 2018 version (current law), followed by the initial House Draft bill, and finally the Senate Draft Bill. The language will be tweaked right up until bill is signed into law (probably August 2023.) But this is where things stand on this one topic as of June 15, 2023.
FAA Reauthorization Act of 2018
Public Law 115-254 (pg 132)
To make a very long story short, the origin of this section dates back to the 1970’s. It made areas like North Sea-Tac Park possible. The FAA began helping airports buy land around the airport, and the airport sponsor (the Port of Seattle) can do all kinds of nice ‘community’ stuff with it, including entering into below market-rate leases with cities like SeaTac to enjoy the public benefit of the land. But the ownership always remained with the Port of Seattle
To put this into some context, here is an excerpt from a memo written by the FAA to the Port of Seattle in 1990 concerning North Sea-Tac Park. The opinion presented in that memo is still the current law (2018.)
(v) COMMUNITY USE OF AIRPORT LAND
(1) IN GENERAL.—Notwithstanding subsection (a)(13), and subject to paragraph (2), the sponsor of a public-use airport shall not be considered to be in violation of this subtitle, or to be found in violation of a grant assurance made under this section, or under any other provision of law, as a condition for the receipt of Federal financial assistance for airport development, solely because the sponsor has entered into an agreement, including a revised agreement, with a local government providing for the use of airport property for an interim period compatible recreational purpose at below fair market value.
‘‘(2) RESTRICTIONS.—This subsection shall apply only—
‘‘(A) to an agreement regarding airport property that was initially entered into before the publication of the Federal Aviation Administration’s Policy and Procedures Concerning the Use of Airport Revenue, dated February
16, 1999;
‘‘(B) if the agreement between the sponsor and the local government is subordinate to any existing or future agreements between the sponsor and the Secretary, including agreements related to a grant assurance under
this section;
‘‘(C) to airport property that was acquired under a Federal airport development grant program;
‘‘(D) if the airport sponsor has provided a written statement to the Administrator that the property made available for a recreational purpose will not be needed for any aeronautical purpose during the next 10 years;
‘‘(E) if the agreement includes a term of not more than 2 years to prepare the airport property for the interim compatible recreational purpose and not more than 10 years of use for that purpose;
‘‘(F) if the recreational purpose will not impact the aeronautical use of the airport;
‘‘(G) if the airport sponsor provides a certification that the sponsor is not responsible for preparation, start-up, operations, maintenance, or any other costs associated with the recreational purpose; and
‘‘(H) if the recreational purpose is consistent with Federal land use compatibility criteria under section 47502.
‘‘(3) STATUTORY CONSTRUCTION.—Nothing in this subsection
may be construed as permitting a diversion of airport revenue
for the capital or operating costs associated with the community
use of airport land.’’
2023 House Draft
And here is the proposed language for the same topic, from the 06/09/2023 House Bill Draft, pg. 255. Note the paragraphs in red. The key word in each is permanent. With this language, Congress seems to be telling the FAA that it can now offer airport sponsors at least two permanent solutions to holding land purchased with Federal dough to a single recreational purpose–without putting their ongoing grant funding at risk.
‘‘(A) entered into an agreement, including a revised agreement, with a local government providing for the use of airport property for an interim compatible recreational purpose at below fair market value; or
‘‘(B) permanently restricted the use of airport property to compatible recreational and recreational purposes public park use without paying or otherwise obtaining payment of fair market value for the property.
‘‘(2) RESTRICTIONS.—
‘‘(A) INTERIM COMPATIBLE RECREATIONAL PURPOSE.—Paragraph shall apply, with respect to a sponsor that has taken the action described in subparagraph (A) of such paragraph, only—
‘‘(i) to an agreement regarding airport property that was initially entered into before the publication of the Federal Aviation Administration’s Policy and Procedures Concerning the Use of Airport Revenue, dated February 16, 1999;
‘‘(ii) if the agreement between the sponsor and the local government is subordinate to any existing or future agreements between the sponsor and the Secretary, including agreements related to a grant assurance under this section;
‘‘(iii) to airport property that was acquired under a Federal airport develop ment grant program;
‘‘(iv) if the airport sponsor has provided a written statement to the Administrator that the property made available for a recreational purpose will not be needed for any aeronautical purpose during the next 10 years;
‘‘(v) if the agreement includes a term of not more than 2 years to prepare the airport property for the interim compatible recreational purpose and not more than 10 years of use for that purpose;
‘‘(vi) if the recreational purpose will not impact the aeronautical use of the airport;
‘‘(vii) if the airport sponsor provides a certification that the sponsor is not responsible for preparation, start-up, operations, maintenance, or any other costs associated with the recreational purpose; and
‘‘(viii) if the recreational purpose is consistent with Federal land use compat6 ibility criteria under section 47502.
‘‘(B) PERMANENT RECREATIONAL USE.—
Paragraph (1) shall apply, with respect to a sponsor that has taken the action described in subparagraph (B) of such paragraph, only—
‘‘(i) to airport property that was purchased using funds from a Federal grant for acquiring land issued prior to December 30, 1987;
‘‘(ii) to airport property that has been continuously used as a recreational and public park since January 1, 1995;
‘‘(iii) if the airport sponsor has provided a written statement to the Administrator that the property to be permanently restricted for recreational and public park use is not needed for any aeronautical use at the time the written statement is provided and is not expected to be needed for any aeronautical use at any time after such statement is provided;
‘‘(iv) if the recreational and public park use does not impact the aeronautical use of the airport;
‘‘(v) if the airport sponsor provides a certification that the sponsor is not responsible for operations, maintenance, or any other costs associated with the recreational and public park use;
‘‘(vi) if the recreational purpose is consistent with Federal land use compatibility criteria under section 47502;
‘‘(vii) if, in the event the airport sponsor leases the property, the lease will be to a local government entity or non-profit entity to operate and maintain the property at no cost the airport sponsor; and
‘‘(viii) if, in the event the airport sponsor sells the property, the sale will be to a local government entity and subject to a permanent deed restriction ensuring compatible airport use under regulations issued pursuant to section 47502.
‘‘(3) REVENUE FROM CERTAIN SALES OF AIRPORT PROPERTY.—Notwithstanding any other provision of law, an airport sponsor selling a portion of airport property as described in paragraph (2)(B)(viii)(II) may—
‘‘(A) sell such portion of airport property for less than fair market value; and
‘‘(B) subject to the requirements of subsection(b), retain the revenue from the sale of such portion of airport property.
‘‘(4) STATUTORY CONSTRUCTION.—Nothing in this subsection may be construed as permitting a diversion of airport revenue for the capital or operating costs associated with the community use of airport land.’’
June 14, 2023 After two days and ten hours of mark up, the House voted 63-0 to pass the H.R. 3935, the Securing Growth and Robust Leadership in American Aviation Act
2023 Senate Draft
And here is the Senate draft version as introduced June 12, 2023
The language in both Drafts are similar. That implies the two bodies came to agreement on this one point ahead of time.
(1) in paragraph (1)—
(A) by striking ‘‘subsection (a)(13)’’ and inserting ‘‘subsections (a)(13), (b), and (c)’’;
(B) by striking ‘‘the sponsor has entered’’ and inserting ‘‘the sponsor has—
‘‘(A) entered’’;
(C) by striking ‘‘market value.’’ and inserting ‘‘market value; or’’; and
(D) by adding at the end the following:
‘(B) permanently restricted the use of airport property to compatible recreational and public park use without paying or otherwise obtaining payment of fair market value for the property.’’;
(2) in paragraph (2)—
(A) by redesignating subparagraphs (A) through (H) as clauses (i) through (viii), respectively, and moving the left margins of each such clause 2 ems to the right;(B) by striking ‘‘This subsection shall apply only—’’ and inserting the following:
‘‘(A) AGREEMENTS.—Paragraph (1)(A)
shall apply only—’’; and
(C) by adding at the end the following:
‘‘(B) RESTRICTIONS.—Paragraph (1)(B) shall apply only—
‘‘(i) to airport property that was purchased using funds from a Federal grant
for acquiring land issued prior to December 30, 1987;
‘‘(ii) to airport property that has been continuously used for recreational or public park uses since January 1, 1995;
‘‘(iii) if the airport sponsor has pro16 vided a written statement to the Administrator that the property to be permanently restricted for recreational and public park use is not needed for any aeronautical use at the time the written statement is provided and is not expected to be needed for any aeronautical use at any time in the future;‘‘(iv) if the recreational and public park use will not impact the aeronautical use of the airport;‘‘(v) if the airport sponsor provides a certification that the sponsor is not responsible for operations, maintenance, or any other costs associated with the recreational or public park use;‘‘(vi) if the recreational purpose is consistent with Federal land use compatibility criteria under section 47502;‘‘(vii) if the airport sponsor has continuously leased the property since January 1, 1995, to a local government entity to operate and maintain the property at no cost to the airport sponsor; and‘‘(viii) if the airport sponsor will—‘‘(I) continue to lease the property to a local government entity to operate and maintain the property at no cost to the airport sponsor; or‘‘(II) transfer title to the property to a local government entity subject to a permanent deed restriction ensuring compatible airport use under the criteria of section 47502.’’; and(D) by adding at the end the following:‘‘(4) AERONAUTICAL USE; AERONAUTICAL PUR5 POSE DEFINED.—
‘‘(A) IN GENERAL.—In this subsection, the terms ‘aeronautical use’ and ‘aeronautical pur8 pose’ mean all activities that involve or are directly related to the operation of aircraft, including activities that make the operation of aircraft possible and safe.‘‘(B) INCLUSION OF SERVICES LOCATED ON AN AIRPORT.—Such terms include services located on an airport that are directly and substantially related to the movement of passengers, baggage, mail, and cargo.‘‘(C) EXCLUSIONS.—Such terms shall not include any uses of an airport that are not described in subparagraph (A) or (B), including any aviation-related uses that do not need to be located on an airport, such as flight kitchens and airline reservation centers.’’