Presentation on theme: "FAA Order B Airport Compliance Manual An Overview"— Presentation transcript:
1FAA Order 5190.6B Airport Compliance Manual An Overview FAA Order B is internal guidance for FAA employees. It is controlling on our decisions. But we recognize that it also serves as a useful guide to airport sponsors and users.Presented to: Federal Agency Update 2010By: Kevin Willis, Airport ComplianceDate: January 27, 2010
2What Do These Things Have in Common? George H.W. Bush was sworn in as the 41st President of the United StatesThe TV show Seinfeld premieredDemocratic protests threaten communism in Czechoslovakia, Romania, and East GermanyA gallon of gas was 97 centsMicrosoft Office (version 1) was releasedThe San Francisco 49ers defeated the Cincinnati Bengals in Super Bowl XXIIIFAA Order A was publishedThe year was 1989! That’s how old our Compliance Manual was.
3FAA Order 5190.6B Objectives of New Order One stop shopping for compliance guidance, policy, and source documentation.Guidance for FAA personnel.May also be used as a guide by sponsors and aeronautical users. It reflects changes in policy and regulations, precedent from Part 16 decisions, and compliance guidance materials issued since previous Order (1989).About 6 years ago, Airport Compliance set out with the goal of revising FAA Order A. When that effort started, the primary driver was the fact that our Order didn’t necessarily fully reflect the current FAA policies. As the task of revising the manual evolved, it was clear that we really needed more of a one stop shop for compliance guidance.33
4FAA Order BWhy?Less reliance on institutional or personal knowledgeGreater emphasis on detailed published guidance for “new” FAA employeesMake it easier for FAA employees to identify correct answer and provide consistent responsesThe ultimate goal of these objectives is to make it easier for us as FAA employees to provide consistent, accurate guidance to airport sponsors and users.The objectives also track with the evolution of the FAA’s approach to Airport Compliance. But I’ll go into that more in a few slides.
55190.A versus 5190.B New ANCA and Part 161 Regulations (1990) New Law and Policy on Rates and Charges (1996)New Law on Airport Privatization (1996)New Part 16 Regulations (1996)New Law and Policy on Airport Revenue (1999 & 2008)New Land Use Inspections (1999)More Part 13.1 Complaint Process InfoPart 16 Determinations on website at:As I mentioned, the first big driver was the fact that our order didn’t fully reflect the policies and laws and we have today. FAA Order A was published in A lot has changed since then.In 1996, the manner in which the FAA addressed compliance matters changed. Prior to the creation of the Part 16 process, all complaints were managed informally. The Part 13.1 process doesn’t set time limits on pleadings, so complaints would drag on and on and it was difficult to ever really resolve anything.55
6FAA Order 5190.6B Does NOT create new policy. Does NOT establish new regulations.Discusses existing policies, regulations, laws,and advisory circulars as related to theFederal Grant Assurances.The most important thing to leave here knowing is that we haven’t put out any new policies or regulations in the updated Order.The new order discusses existing policies, regulations, laws, and ACs related to the grant assurances in much more practical, almost text-book like fashion. The language strives to really make some of the concepts clearer. Hindsight is 20/20, and since we’ve been in the Part 16 business a dozen years, we know what some of the misconceptions are.
7FAA Order BHow?Guidance is consolidated into a single document (with better appendix)Includes grant assurance references (revisions through March 2003)Organized by topic in accordance with Grant AssurancesPDF document – key word searchableBut in striving to achieve our goal of a one-stop shop for the existing policies and regulations associated with the grant assurances, the document has grown considerably. The old order was 62 pages and fit easily in a ½ inch three ring binder. The new order is 352 pages – not including the appendices – and it requires a 2 inch binder. But, despite it’s length, it’s a much more intuitive and I think it’s easier for someone who is not a compliance expert to use. It’s organized by topic, so if you a question about Grant Assurance 23, you can go to Chapter 8 which is titled “Exclusive Rights”. Plus on-line, the new order is a pdf document, so you can do key word searches.There are 8 sections to the new orderPart 1 is background and legislative historyPart 2 discusses the different types of federal agreementsPart 3 is on complaint resolutionPart 4 is all about airports and aeronautical users and is the longest sectionPart 5 is devoted to the sponsor’s financial responsibilitiesPart 6 is on land usePart 7 goes into releases and property reversionsAnd then there is a lengthy appendix.
85190.A versus 5190.B Old Order New Order 8 Chapters 23 Chapters 8 Items in AppendixRestrictive on line searches – “paper based”Relies on “paper files” and personal knowledgeLimited references, not self-contained23 Chapters28 Items in AppendixAppendix is “e-based” (searchable) & easier for on line usersIncludes instructional materials for the “new employee”Improved guidance by referencing letters, documentation, graphs, picturesThis slide compares the two documents.To me, the old order read like a government regulation. It was very theoretical. It was hard to find the right answer easily. I was always sticking little flags and sticky notes on the paragraphs I used the most because any time I had to find something specific I’d end up re-reading half the thing looking for the one sentence where it was mentioned.But the new order looks and feels a lot more like a college text book. It has a lot a pictures and samples in it. It’s easier to find what you’re looking for.
95190.A versus 5190.B Compliance Program Guidance Old Order New Order Minimal compliance program guidanceNo procedural Part 13.1 guidancePart 16 didn’t existLacks precedential supportSee Chapter 5Extensive GuidanceDifferentiates Part 16 and Part 13.1 processesExtensive Part 13.1 guidanceReferences precedent from Part 16 decisionsAs I mentioned before, the Part 16 process was created in 1996, and that really changed the way the FAA dealt with airport compliance matters. Prior to 1996, there were two people in Washington Headquarters that managed complaints through the Part 13.1 process. And based on what some people have told me, it wasn’t very effective. The old order didn’t provide any procedural guidance for how the complaints were handled, and it didn’t speak from any real institutional knowledge. So complainants would keep sending pleadings in, and the FAA was never really in a position to make a decision about things. It was kind of a mess. The Part 16 process really changed all that for Washington Headquarters, but it didn’t do much to help our staff in the ADOs and Regions who now address the informal complaints.The new order does. Chapter 5 provides guidance for FAA employees in the ADOs and Regions for how they should respond to Part 13.1 complaints. It does a nice job of explaining the difference between a Part 13.1 and Part 16 process. And it references some Part 16 decisions.If you’re curious, today we have six people in Washington Headquarters who conduct Part 16 investigations and we have one financial auditor.99
105190.A versus 5190.B Good Title and Rights & Powers Old Order New OrderChapters 6 & 21Clear explanation of Grant Assurances 4 & 5Expands on discussion of delegation of sponsor obligations within the context of airport management, property transfers, and airport privatizationDiscusses inter-related nature of grant assurances in one placeLimited guidance on ownership interests and management responsibilitiesDiscussion limited to delegation of sponsor obligations and subordination of titleThe new order also goes into much greater detail about the specific assurances. The next few slides will compare how the two documents stack up with regard to some specific assurances.Chapter 6 is titled Rights and Powers and Good Title, and it’s all about Grant Assurances 4 and 5. I think the old order has about 4 paragraphs on those two assurances and it’s vague.Chapter 21 is on Land Use Compliance Inspections. It explains a requirement that was established in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century which was signed into law in So obviously, there’s no mention of this in the old order.1010
115190.A versus 5190.B Compatible Land Use, Airspace, & Inspections Old OrderNew OrderMinimal guidance on compatible land useLimited to Part 77 protectionsLack of definitionsNo reference guidance (for new employee use)Little guidance on incompatible residential useCompatible Land Use & Airspace Protections, See Chapter 20Provides references to guidance documents and sample letters on noise, obstructions, and other incompatible land usesIncludes definitionsResidential on-airport hangar homes and through-the-fence residential airparksThe old order really doesn’t talk about Grant Assurance 21, Compatible Land Use. It talks about protecting Part 77 surfaces, but it doesn’t get into issues like noise or incompatible uses. The new order devotes a chapter to this topic and it has some great samples. There’s a sample easement, a sample fair disclosure statement, and a letter the FAA has sent regarding a through the fence residential airpark.1111
125190.A versus 5190.B Compatible Land Use, Airspace, & Inspections Old OrderNew OrderCompliance Inspections, See Chapter 21Explains authority and history for conducting land use inspectionsStep by step guidance with graphics and picturesExhibit A and ALP inconsistenciesSample lettersMinimal guidance on Land Use Inspections criteriaLacks details and explanations for actual inspection processAs I said before, Chapter 21 discusses that AIR-21 requirement. The FAA has to do two land use inspections per region each year. So if you get that “we’re coming letter”, you might want to read Chapter 21 to see what our process is.1212
135190.A versus 5190.B Economic Nondiscrimination Old Order New Order Presented only within context of exclusive rights and availability on fair and reasonable termsAbstract, theoretical approachSee Chapters 9, 10, 11, 12, 13, 14 & 18Real discussion of Grant Assurance 22Discusses Grant Assurance 22 within context of similarly situated, Minimum Standards, leases, restrictions, and rates & chargesThe New Order really focuses on discussing Grant Assurance 22, Economic Nondiscrimination. The old order just had a very short discussion about exclusive rights and availability on fair and reasonable terms. But since Grant Assurance 22 is our most contested assurance, the new order devotes 7 chapters to its various facets.1313
145190.A versus 5190.B Economic Nondiscrimination Old Order New Order Fair and Reasonable (rates & charges) expandedAvailability of leased spaceAir carrier accessEntire chapters on:Minimum StandardsLease agreementsNoise RestrictionsSafety & EfficiencyPresented only within context of exclusive rights and availability on fair and reasonable termsAbstract, theoretical approachChapter 9 – Unjust Discrimination Between Aeronautical UsersChapter 10 – Reasonable Commercial Minimum StandardsChapter 11 – Self-ServiceChapter 12 – Review of Aeronautical Lease AgreementsChapter 13 – Airport Noise and Access RestrictionsChapter 14 – Restrictions Based on Safety and Efficiency ProceduresChapter 18 – Rates and Charges1414
155190.A versus 5190.B Rates & Charges and Revenue Use Old Order New OrderPolicies did not existLimited to:Context of nondiscriminationNEUP/reverter with surplus propertyFails to reflect evolution of FAA’s involvement in assessing management agreements and leasesSee Chapters 15, 16, 17, 18, & 19Includes full legislative historyExpands context to include:Defines airport revenuePermitted and prohibited usesGround access projectsThe guidance related to a sponsor’s financial responsibilities was extremely vague in the old order. It was really limited to just nondiscrimination and property releases. It certainly doesn’t reflect the Rates and Charges or Revenue Use Policies that followed.1515
165190.A versus 5190.B Rates & Charges and Revenue Use Old Order New OrderNo discussion of financial reportsDoes not address rate-making methodologies beyond rates and chargesEntire Chapters on:Revenue Diversion (consolidated)Resolving Revenue DiversionSelf-sustainabilityFinancial ReportingSo now we have:Chapter 15 – Permitted and Prohibited Uses of Airport RevenueChapter 16 – Resolution of Unlawful Revenue DiversionChapter 17 – Self-SustainabilityChapter 18 – Airport Rates and ChargesChapter 19 – Airport Financial ReportsAgain, this isn’t new FAA policy – it’s just new to the Compliance Order because a lot of this guidance didn’t exist in 1989.1616
175190.A versus 5190.B Exclusive Rights Old Order New Order Under Chapter 3Limited to:BackgroundPolicyQualifications and Standards(Total of 5 pages)See Chapters 8, 11, & 12Chapter 8 has 14 pages fully devoted to this topic that adds:Specifically outlines remediesIdentifies its linkage to #22Examples of how to identify Exclusive Rights terms and context in leasesSamples we’ve usedWhile the old order did have a full chapter on Exclusive Rights, it was really limited to the legislative background and policy. It also had all of three paragraphs on Minimum Standards.The new order also devotes a full chapter to Grant Assurance 23. Chapter 8 - Exclusive Rights gets into the different ways a sponsor can inadvertently convey an exclusive right. It also offers a lot of advice on steps a sponsor can take to prevent an exclusive right from occurring.1717
185190.A versus 5190.B Exclusive Rights Old Order New Order Limited to (cont’d):Single service providerSelf-service v. proprietary exclusiveGeneral guidance on lease agreementsChap. 11 Self Service adds:Citations to OrdersExclusive Rights restrictions based on precedentNew Fractional Ownership infoChap. 12 Lease Agreements adds:TTFReasonable accessI include Chapter 11 – Self-Service in the group with Exclusive Rights because the two issues get closely connected in a lot of Part 16’s.Chapter 12 – Review of Aeronautical Lease Agreements discusses how some types of lease arrangements may inadvertently confer an exclusive right. It also explains the potential compliance problems that are often associated with through the fence access agreements.1818
19FAA Order 5190.6B FAA–2009–0924 Notice published October 13, 2009 Comments dueMarch 31, 2010September 2010And if you don’t like the new Order, you can tell us. We did publish a notice in the Federal Register requesting comments on October 13. It’s FAA Docket Number Comments are due March 31 of next year, and we plan to respond to them by September.Please keep in mind, because this order doesn’t establish any new policy or law, we will not entertain any comments asking us to change existing policy or law. We are looking for comments that critique our conclusions of existing policy, law, and precedent. This is about how we have articulated existing policies and any factual errors we may not have caught.Depending on the type and volume of comments, we’ll decide how to proceed. So right now, I don’t know when FAA Order C will be published.
20Airport Compliance Program COMMENTS?FAA DOCKETQUESTIONS?20