JEFFREY E. TUR ER 

CIIAIRMAN 

SONNA GREGORY 

VICE CIIAIR 

GAIL B. HAMBRICK 

COMM ISSIO ER 

SHA AM. ROOKS 

COMM ISSIONER 

M ICHAEL EDMO DSO 

CO\tiM ISSIONER 

Clayton County 

Commissioners 

112 SMIT11 STREET 

JONESBORO. GEORGIA 30236 

PI10NE: (770) 477-3208 

FAX: (770) 477-3217 

WW\\.co.clayton.ga.us 

September 13, 2016 

The Honorable ~Iichael P. Huerta 

Administrator, Federal Aviation Administration 

800 Independence A venue, SW 

Washington, DC 20591 

Re: Amendment of Action Plan Submitted in Response to Clarification of the 

FAA's Policy and Procedures Concerning the Use of Airport Revenue; Proceeds 

from Taxes on Aviation Fuel 

Dear Administrator Huerta: 

The Clayton County Government, Clayton County Public Schools, and the Cities of Forest 

Park, Ri\'erdale, Lovejoy, Morrow, Jonesboro, College Park and Lake City ("the Clayton 

County Entities") hereby submit this amendment to our action plan sent on December 8, 

2015, in response to the Federal Aviation Administration's ("FAA") 2014 clarification of 

policy regarding proceeds from the use of taxes on aviation fuel (79 Fed. Reg. 66282 

(November 7, 2014)) ("the 2014 clarification"). After further review of the 2014 

clarification, the underlying 1996 law, and F \ precedent, and for the reasons specified in 

the attached analysis, we believe that the F .t \ could not have intended by that 2014 

clarification to apply airport revenue diversion principles described in 49 U.S.C. §47133 to 

taxes imposed by local government entities, such as the Clayton County Entities, that are not 

project grant recipients and ha\'e no ability to spend aviation fuel tax revenues for a purpose 

specified in the 49 U.S.C. §47133. 

To conclude otherwise would not enhance airport revenue, the stated purpose of the law 

and FAA policy, but instead only give the airlines a revenue windfall by. regui.ring the 

exclusion of aviation fuel from our local taxes. This result is not reguired by the law or its 

legislative purpose and will have a devastating impact on our residents and students. 

Accordingly, this letter, together with its enclosure, amends our December 8, 2015, action 

plan to the extent that any aspects of the action plan are inconsistent with the enclosed 

analysis and our conclusions. 

The issues we have raised here were not specifically addressed in the 2013 notice of 

proposed policy clarification (78 Fed. Reg. 69789 ovember 21, 2013)), the comments filed 

in the regulatory docket for that notice, or the 2014 clarification signed by an office director 

within the Office of the .t\ ssociate Administrator for Airports. We respectfully request your 
confirmation of our analysis and conclusions and will appreciate being informed of any 

specific areas of disagreement. 

Thank for your careful consideration of these matters of vital importance to the people of 

Clayton County. 

incercly, 

The Clayton County Entities: 

Clayton County Georgia Government 

Clayton County Georgia Public chools 

City of Fore t Park, Georgia 

City of Ri'·erdale, Georgia 

City of Lovejoy, Georgia 

City of Iorrow, Georgia 

City of Lake City, Georgia 

City of Jonesboro, Georgia 

City of College Park, Georgia 

( ee ignature pages attached) 

Enclosure: Clayton County Entities Analysis 

Cc: 

The Honorable Da,·id con 

The Honorable John Lewis 

The Honorable Rob Woodall 

The Honorable John Isakson 

The Honorable David Perdue 

The Honorable John Duncan 

The Honorable John 111Une 

The Honorable Bill elson 

The Honorable Bill Shuster 

The Honorable Peter DeFazio 

Reggie Govan, FAA Chief Counsel 

Eduardo Angeles, FAA Associate .Administrator for .Airports 

Director, F.Ar\ Office of Airport Compliance and anagement Analysi 

2 
Clayton County E ntities Analysis 

I. The stanttory provisions underlying the 2014 clarification do not apply to taxes 

imposed by these local government entities, based on a plain language reading of the 

law and its legislative history and context. 

The Federal Aviation Administration's ("FAt\'') 2014 clarification o f policy regarding 

proceeds from the usc of taxes on aviation fuel (79 Fed. Reg. 66282 (November 7, 2014)) 

("the 2014 clarification") stares that the Limits on use of aviation fuel tax revenues 

established by 49 C .. C. 13 3 apply to "any tax imposed on a\·iation fuel by either a tate 

government or a local gm·emmcnr taxing authority whether or not acting as a spon or or 

airport owner or operator", bm is unclear whether the clarification is intended to apply to 

taxes imposed by local government taxing authorities, such as the Clayton County Entities, 

that are not project grant recipients and have no ability under local law to spend aviation fuel 

tax re\·enues for a purpose specified in section 47133 ("these local gm·crnment entities"). We 

believe, based on the plain language o f the law and its legislative purpose and context, that 

the F Ai\ could not have intended this application. 

A. , ection 4 7133 addresses airport revenue diversion by governing the behavior of those 

that ha\'C the ability to spend a\·iation fuel tax rc\·cnue and other airport revenue for one 

of its Listed purposes and docs not prohibit taxes on aviation fuel. 

Section 47133, which repeat almost verbatim the requirement prc\·iou ly found only in 

49 C .. C. §47107(b) gm·crning airport grant assurances, originated as ,' ection 406 o f H.R. 

3539, 1 04'h Con g. (1996) which provided "a pmon bo/ding an airport operating mtijica/e may not 

expend local taxes on aviation fuel, except taxes in effect on December 30, 1987, or the 

revenue generated by the airport for any purpo c other than the capital or operating costs 

of the" airport. (Emphasis supplied.) r\ s the F,\ 1\ correctly noted in its 2013 notice of 

proposed policy clarification (78 f-ed. Reg. 69789 m·ember 2 1, 2013)) ("2013 notice"), it 

was believed that " revenue di\·er ion burdens interstate commerce even if the airport is no 

longer recei\·ing grants." H.R. Rep. o. 104-7 14, p. 38. Section 47133 was triggered by a 

specific problem: 

" l ~x tending the rc ·wcllon to all person holding an operating certificate 

would impose a new restriction on three priva tely owned airports located in 

1\ Iaska, which operate solely for the owner ·' usc and are not a\·ailable to the 

public .... "[T)his section imposes a mandate on tho e printely owned 

airports." Id. at p. 64. 

The House bill language was amended by the Senate in conference to the language currently 

found in ection 47133, but irs intended focus, a clearly stated in the public law that 

introduced section 47133, remained on tl1ose entities in a position to pend airport revenue 

for the stated purposes: 

1 
EC. 802. FI DI G ; P L'RPOSE. 

(a) I T GE ERAL.-Congre s fmds that-

(1) section 47107 o f title 49, United ' rates Code, prohibits 

the clj,·ersion o f certain re,·enue generated by a public airport 

aJ a twtdition if ret·eiiJing a prqjed ~ra nt, 

(2) a grant mipienl that uses airport revenue for purposes 

that are not airport related in a manner inconsistent with 

chapter 471 of title 49, United States Code, illegally diverts 

auport revenues; 

(3) any cliversion of airport revenues in 1nolation if !be 

condition refC!red to in paragrapb (!) undermines the interest 

o f the Cnired States in promoting a strong national air 

transportation system that is respon i'·c to the needs of airport 

users; 

(4) the ecrctary and the . \ dministraror ha,·e not enforced 

airport revenue cliver ion rule adequately and must ha,·c adclitional 

regularory tools to increase enforcement efforts; and 

(5) sponsors who haYe been fou nd to have illegally cliverted 

auport revcnues-

(A) have not reimbursed or made restitution ro airports 

in a timely manner; and 

(B) must be encouraged ro do so. 

(b)"PL'RPOSE.-The purpose of this title i to ensure that airport 

u ers are not burdened with hidden taxation for unrelated municipal 

services and acti,·ities ~ 

(1) eliminating the abili!J ofany Stale orpolitical JUbdi11ision 

thereof that is a mipiml q/a ptvjed gran/ tO ru\·ert 

airport revenues for purposes that are not related to an airport, 

in ,·iolation of section 47107 o f title 49, L.nited tares Code; 

(2) imposingjinandal repot1ing reqNiremenls that are 

designed to identijj imtanas q/illegal dit,enion.r ro/emd to 

in paragraph (1 ); 

(3) establishing a statute of limitation for airport revenue 

cliversion actions; 

(4) clarifying limitations on revenue clivcrsion that arc 

permitted under chapter 471 of title 49, United States Code; 

and 

(5) establishing clear penalties and enforcement mechan.i ms 

for identifying and prosecuting airport revenue cliversion." 

Pub. L. 104-264, §802 (a), (b). (Emphasis supplied.) 

The public law plainly places the coclificd ·cction 47133 in context: It addresses recipients o f 

a project grant and neces arily assumes the ~ of the taxing authoriry· to spend the 

aviation fuel tax revenues at an airport or on a state aviation program. The plainly stated 

purpo e of the new law, including its new financial reporting requirements and other 

mechanisms for enforcement o f this new section, are all addressed to project gram 

recipients, whether or not current grant sponsors, in a position to spend the revenues for an 

2 
airport purpo c, not the c local gO\·crnmcnt entities. There is absolutely no indication in the 

legislati,·e history, the public law or the plain language of section 47 133 _that Congress 

intended this new section for the fu t time to declare taxes on a\-ia.tion fuel illegal unle the 

local government imposing the tax has the ability to spend the rc,·enucs at an airport or for a 

state aviation program. 

B. A evidenced bv its 1982 grandfather clause applicable only to airport owners and 

operators and its 1987 tax cur off date. section 4 7133. enacted in 1996. simply 

incorporated already existing legislative provisions (enacted in 1982 and 1987) on airport 

grant assurances and directed that all airport project grant recipients must spend aviation 

fuel tax revenue and other airport revenue at the airport. 

The grandfather clause in section 47133 merely repeats the word o f the grandfather clause 

in the pre\'iously adopted section 471 07(b) gO\·crning grant a urances and is identically 

directed only at airport owners and operator·. It is nor worded so a to include all debt 

obligation , ju t those of airport owners and operators. This, roo, i e'-idence that Congress 

did not intend the obligations of section 47133 to apply for the first time to taxes impo ed 

by local governments that do not own or operate an airport and have no legal relationship 

that would allow them to spend tax revenue deri,·ed from anation fuel at an airport or for a 

state a,•iation program. If it had so inrcndcd, Congress would have made that intent clear 

and, understanding the need to change local tax laws and the upheaval to local government 

funding programs caused by such a significant new statutory restriction on .taxation, have 

limited its application to local taxes enacted after that date or at least grandfa thcred those 

program as of 1996, the date o f enactment. That Congress did none of these clearly 

indicate that Congress was nor upendi ng current local tax laws. ( ee al o letter from James 

Whitlow, 1\ cting Chief Counsel, F1\ t\ , to ike Gabbard, February 16, 2010 (''\'ifhitlow 

Letter").) 

C. An interpretation of section 4 7133 so as to require local gO\·ernmenrs to amend their tax 

laws to exclude a\·iation fuel if the rc,·enuc cannot be used at an airport would ha,·e a 

discriminatory and arbitrary impact among local governments nor supported by the plain 

language of the law or its aviation revenue diversion purpose. 

Congress limited the ability o f state and local go,·crnmenrs to tax certain aspects of aviation 

in 49 U.S.C. §401 16, not section 47133. But section 401 16 permits generally applicable sales 

taxes on goods, including aviation fuel. Section 4 7133, on the other hand, restricts cl1e use 

of revenues, not tl1e imposition of taxes. The 2014 clarification, if applied to local 

government that cannot spend a,·iation fuel rax re,·enues in a manner pccificd by cction 

47133, would either (1) permit a local government that docs not own or operate an airport to 

impose a generally applicable sales tax on a,•iation fu el but prevent it from spending the 

revenue (because the government docs not have the legal ability to spend the revenue at an 

airport or for a state aviation program); or (2) prohibit that local gO\·ernment from taxing 

a,•iation fuel, in contradiction to cction 40116 which permits such taxes. In other words, 

such an interpretation would discrin1inatc among local governments: ,\ local government 

that owns or operates an airport may tax aviation fuel, but a local government with no legal 

relationship to an airport may not tax aviation fuel or else must stockpile and refrain from 

spending the tax revenues, an absurd result. 

3 
Further, neither alternati,-e ,,·ould enhance airport revenue, which is the explicit purpo e of 

section 47133; the tax re,·enue under such an interpretation would simply be lost because 

these local gm·ernrnent entities ha,·e no ability to spend the re,·enues for an airport-related 

purpose. There is no e,;dence whatsoever in the law that Congress intended this 

extraordinary and discriminatory result and it defie reason to conclude that it would have 

done so without any discussion and without allowing a period of time for adju ting local 

laws and funding practices, a it has done in the pasc. 

D. Application of the airport revenue diversion requirements of section 47133 to these local 

government entities would effectively prohibit taxes on aviation fuel by these entities 

without Congressional authorization do so. 

The explicit statutory purpose of section 47133 1s the prevention of airport revenue 

diversion. (Pub. L. 104-264, §801, 802 (b)). The explicit purpose of section 40116, on the 

other hand, i the prevention of unreasonable burden on inter tate commerce. (49 C .. C. 

§40116(d)). Both the Supreme Court and the F.\..\ have concluded that section 40116 

permits local gm·ernment taxes on aviation fuel, necessarily determining that taxe on 

aviation fuel do not unreasonably burden interstate commerce. The only way to reconcile the 

plain language and the legislative purpo c of each of these sections is to conclude that 

section 47133 applies airport revenue diver ion principles to those local governmenr entities 

that have the ability to use the tax revenues fo r an airport purpose. An interpretation that 

section 4 7133 also prohibits taxes on aviation fuel by these local government entities not 

only completely fails to serve the legislative purpose of section 47133, it would effectively 

amend section 40116 to add aviation fuel to the list of aviation related matters that may not 

be taxed, which the F ili\ does not have the authority to do. 

II. Since 1996, the FAA's consistent public position has been that the revenue 

diversion requirements of section 47133 applied only to local governments that are 

eligible to be project gran t recipients. 

J\. The F \ 's 1999 Potier and Procedures Concerning the Use of Airport Revenue (1999 

policy statement) applied the aviation fuel tax usc restrictions onlr to a public agency that 

had receiYed an A JP grant. 

The 1999 policy statement (64 Fed. Reg. 7696, February 16, 1999) included extensive 

discussion of the purpose and meaning o f section 4 7133, which had been enacted 

approximately three years earlier and has not been amended in rcle,-ant part since. s the 

f-AA explained the scope of section 47133 then: 

" 3. Enactment of section 47133 resulted in three fundamental changes· to the 

revenue-use obligation, as reflected in the applicability section o f this policy 

tatemenc. 

a. Privately owned airports rccci,·ing Federal a sistance (as dcfmcd in this 

policy statement) after October 1, 1996, arc subject to the re,·enue-use 

requirement. 

b. 1 n addition to airports receiving 1\ IP grants, airports receiving Federal 

assi ranee in the fonn o f gift of property a ftcr October 1, 1996, are subject 

to the re,·cnuc-use requirement. 

4 
c. For any airport or airport operator that is ubject to the revenue-usc 

requirement on or after October I, 1996, the re,·enuc-u c rcqillrcmcnt 

applies indefinitely." ld. at 7717. 

The FA1\ did not state that section 47133 also prorubitcd taxes on aviation fuel imposed by 

these local gO\·ernment entities, as it surely would ha,·c done in de cribing the "fundamental 

changes" made by the new law. To the contrary, F.'v\ recognized that section 47133 was 

applicable only to those public agencies that had received .t\IP grants, whether or not those 

agencies continued to be subject to the airport grant assurances, necessarily recognizing that 

the revenue usc restrictions of tiUs section only applied only to those public agencies eligible 

to receive . \ IP grants. As the F. \ 1\ explicitly stated: 

'The legiJiative history of§ .J-7133 makes it dear that CongreJJ enaded §.J-7 133 to 

e."\"/end the duration of tbe rel'enlle-me req11iremenl for airpo11s that are alreacfy sllf?jed lo 

it. In describing an earlier version of 47133, the Committee on 

Tran portation and Infra tructure of the House of Repre enratives stated 

that the reason for the change was because "revenue diversion burdens 

interstate commerce even if the airport is no longer m·eiving grc/IJI.f. In 

recognition of tiUs fact, the bill applies the exact same re,·enue diversion 

prorubition to airpon s that have a F:\. \ certificate [modified to airports that 

arc subject to Federal a si ranee i..n conference] as now applied to airports 

that receive AlP grants. For the most part, these will be the same airports." 

H.R. Rep. 104-714 Ouly 26, 1996) at 38, reprinted at 1996 US Code, 

Congressional and .\dministrativc ews at 3675. The report further stated 

that broadening tl1e prohibition would "make it dear that an airport cannot 

c cape tiUs prorubition jon revenue di\·cr ionJ by refu ing to accept AJP 

grants[;]" remove "this perverse inccnti,·c to refuse AlP grants t t j;j." and 

"once again [encourage] all airports to use a,·aiJable Federal money to 

incrca e safety, capacity, and reduce noise." Id. at 7699. (Emphasis supplied.) 

1\ ccordingly, the 1999 statement made clear, " [w]ith respect to the use of state and local 

taxes on aviation fuel, trus Policy • tatcmcnt [and necessarily section 47133] is applicable lo all 

pHblic agendes that bave receiPed anAl P det,elopmenl gran/ since December 30, 198 7, and whidJ bad gran/ 

obligations regarding the 11se ~f stale and local taxes on at'ialion fuel in ejfecl of Odober I , 1996." I d. at 

7716. (Emphasis supplied.) 

B. The current relevant FAA order excludes from application of airport revenue diversion 

rules these local government entities rhat arc not project grant recipients and have no 

ability as non-airport owners or operators to spend aviation fuel tax revenues for a 

purpose specified in section 4 7 133. 

The 2014 clarification states that it "confums F.\.\ 's longstanding policy on Federal 

requirements for the usc o f proceed from proceeds on taxes from a,·iation fuel." 79 Fed. 

Reg. 66282, 66283. Therefore, the 2014 clarification explicitly assertS that it is not a 

statement of new policy or a change to a prc,·ious interpretation. It follows that previous 

guidance and inrerpretations regarding the scope and purpo e of section 47133 and 

applicability o f its airport re,·enuc diversion principles remain rcle,·ant. 

5 
The current Airport Compliance Manual, FAr\ Order 5190.613, dated 2009, thirteen years 

after section 47133 was enacted, explains that the 1996 law "extended the restrictions on the 

uses of airport revenue to private airports that have received federal assistance." It states 

further that the " rules regarding airport revenue," defined to include aviation fuel tax 

revenue (Order 5190.6B, section 15.6), apply to " public agencies that collect taxes on 

aviation fuel" that "have received an AlP grant since December 30, 1987, and had federal 

grant obligations for the use o f a'?iation fuel in effect on October 1, 1996." Order 5190.6B, 

section 15.7 a. (2). Under the order, then, the airport revenue requirements, including 

aviation fuel tax revenue use restrictions, are applicable to local gO\·ernment agencies only to 

the extent federal airport financial assistance also is available to those agencies: The 

requirements are not applicable to local government agencies that cannot use the revenue for 

an airport purpose or a state av1at1on program. 

C. Previous FAA legal interpretations support the exclusion of these local government 

entities from the applicability of section 47133. 

The 2014 clarification relies on five letters posted in Docket o. FAA-2013-0988 to support 

the assertion that it is consistent with past F \ interpretations of the law. Two o f the 

letters predate the enactment o f section 47133 and therefore cannot be used to support an 

interpretation of that section, but the letters post-dating its enactment and addressing this 

issue are consistent with the interpretation in O rder 5'190.6B. The letter from Daphne Fuller, 

Assistant Chief Counsel for Airports and Environmental Law to Ronald Depue, December 

23, 2009, states: 

"Title 49 C.S.C.§40116, the Anti-Head Tax Act, permits a state to levy and 

collect sales or use taxes on the sale of goods or services which could include 

aviation fueL However in accordance with 49 U.S.C. §§47107(b) and 47133, 

for those airports that have accepted l"'A/1 airpo11 development grants or are the st~f?ject of 

federal assistance, slate or !ot£11 ta.Yes on aviation f uel are tYmsidered to be "airport 

revenue" and using such tax revenue for non-airport purposes is prohibited." 

(Emphasis supplied.) 

Here, too, the only reasonable conclusion to be drawn from this discussion is that a\-iation 

fuel tax revenue is not "airport revenue" unless the local government ha the ability to spend 

it for an airport purpose. 

Further, the Whitlow Letter states: 

"Sections 47107 (b) and 47133 are essentially parallel provisions in Title 49. 

Section 471 07(b) represents the original 1982 version o f the revenue use 

statute, as amended and recodified. Title VIII of the F1\A Reauthorization 

Act o f 1996, 804, codified tl1e preexisting grant-assurance based revenueuse requirement as 49 C . . C. §47133, bur expanded the application of the 

re,·enue-use restnctlon lo ai!Y ai1por/ 'that is /be suf?jec/ tij. f-'e deral assistance."' 

(Emphasis supplied.) 

6 
either of these explanations of section 47133 by eruor FAA counsel indicate that the law 

applie to local goyemmenrs that ha\'C no ability to use a,-iation fuel tax revenue for an 

airport purpose or that the law requires the c gO\·cmments to amend their tax laws so as to 

exclude a\·iation fueL To the contrary, the consistent message is that airport revenue 

diversion principles in section 4 7133 apply only to tho e government entities in a position to 

rccci,·e federal assistance and to usc the rc,·cnue for an airport or tate aviation program 

purpose. 

III. The 2014 clarification does not state the FAA intended to apply airport revenue 

diversion principles to all local governments, including those that cannot use the 

revenue for an airport or state aviation program purpose. 

The FA1\ , in its 2013 notice, stated, "airport re,·cnuc use requirements apply to certain state 

and local goverrunent taxes on aviation fuel, as well as revenues received c:J.irectly by the 

airport operator." (Emphasi supplied.) "l11c nccc sary inference from thi statement is that 

the airport re,·enue use requirement docs not apply to all state and local taxes on a,-iation 

fuel. Certainly, the 2013 notice did not state that airport revenue diversion principles apply to 

a local gm·ernment that has no ownership relationship witl1 an airport, is otl1 erwisc is not 

eligible to become a project grant sponsor, and cannot spend tax revenues for a purpose 

specified in section 4 7133. The 2013 notice, in a brief section titled "non sponsor state and 

local governments" and witl1out clcf1Ili11g the term, merely notes tl1e F t\r\ 's assumption that 

section 47133 " does not rely on contract terms, as does section 471 07(l;l)." By way of 

explanation, tl1e FAA stated: 

" In 1996, Congress enacted 49 L.: .•. C. 47 133 [sicl to extend substantially tl1e 

[ icl of 49 U .. C. 47107(b) identical requirements for usc o f airport revenue 

and state and local taxes on aviation fuel to all aitports that have been I be sui?Ji:tl of 

Federal assistana:, regard/us of 1vbether tbe ai1porl is mm11t!J sNI?Jed to a ran/ 

agreeme111." (Empha is supplied.) 

The 2013 notice cited tl1e conference report for tl1c FAA Rcautl1orization 1\ ct of 1996, 

which added ection 47133, taring tl1at tl1c report " noted tl1at 'revenue diversion burdens 

interstate commerce e\·cn if tl1e airport is no longer receiving grants,' and tl1e new §47133 

would remove tl1c 'perverse inccnti,·c' for airports to refuse 1\IP grants in order to avoid 

Federal policies on usc of airport rc,·cnuc." 78 Fed. Reg. 69789, 69790. 

Furtl1er, tl1e 2013 notice, in describing the scope o f section 47133, states: 

"The Federal limits on usc o f a\·iation fuel tax proceed apply at an airport 

tl1at is me subject of federal assistance (as defined in Section Il.b.2 o f this 

Policy), whether or no t the airport is currently subject to the terms o f an A TP 

grant agreement, and regardless of the tate or local jurisdiction imposing tl1c 

tax." Id. at 69793. 

1\ ll this discussion in tl1e 2013 notice appears to be consistent witl1 tl1e legislative history and 

tl1c stated purpose of section 47133 in the public law, as well as prior b\A interpretations: 

cction 47133 applies only to tl1c proceeds from an aviation fuel tax imposed by a local 

7 
government entity that is in a position to rece ~e a federal project gram, such as those that 

own auports. 

The 2014 clarification of policy does not state that it intended to expand the scope of the 

201 3 notice or years o f FAA precedent on this key issue. It discusses "nonsponsor entities" 

and "nonsponsor state and local governments" at greater length in response to comments 

but again without defining the terms. It states that section 47133 applies to ''t·erlain nonsponsors" without specifying to which non-sponsors that law applies and does not apply. 79 

Fed. Reg. 66282, 66285. (Emphasis supplied.) It also cites 49 U.S.C. §4711 1(£) as support for 

the proposition that section 47133 somehow applies to " nonsponsor entities" but because 

section 47111 (f) was enacted prior to section 47133, its intended scope and · purpose does 

not explain section 47133, enacted in 1996. As important, the 2014 clarification does not 

explain how the underlying policy o f preventing airport revenue diversion would be 

advanced if the revenue diversion rules o f section 47133 were applied to local government 

entities that have no ability to spend tax revenue for an aitp ort purpose. 

The 2014 clarification, which rates it merely confirms F \ 's longstanding policy,' does not 

note any discrepancy between its content, the discussion o f the purpose of section 47133 in 

the 1999 policy statement, the current FAA airport compliance manual or with the letters 

posted in the docket for support. It docs not state that FAA longstanding guidance will 

need to be changed to conform to the 2014 clarification that added to the language proposed 

in 2013 notice without explanation, the phrase "whether or not acting as a sponsor or airport 

owner or operator." FAA's past practice cannot be reconciled with the 201 4 clarification 

unless the F \ , in the 2014 clarification, did not intend to include taxes imposed by these 

local government entities when it used the term " nonsponsor state and local governments," 

"nonsponsor entities," or "whether or not acting as a sponsor." 

IV. An app lication of the 2014 clarifica tion to the Clayton County Entities would 

devastate our government programs and schools, without a single dolla r of the lost 

tax revenues increasing airport revenue. 

The Clayton Coun ty E ntities are county and city government entities that do not own or 

operate airports and, because they arc not state governments, cannot have a state aviation 

program. Hartsfield-Jackson Atlanta International Auport ("HJAIA"), solely owned by the 

City of I\ tlanta,

2 is mostly located in Clayton County. For over twenty years, Clayton County 

has imposed taxes and used the revenues to fund local infrastructure and schools. County 

voters apprO\·ed these local county taxes and project lists by referendum. With the 

exception of a few isolated exemptions, these local taxes apply to all categories o f personal 

property, including aviation fuel, and are not eligible for grandfather sta s under section 

1 This point was repeated in a ;-,[arch 21, 2016, leiter to us from Reginald Govan, Chief Counsel, FA:\, who 

stated that the 2014 clarification "does not effectuate a change of federal polic}"'. 

2 The City of .\tlanra, in turn, is located in Fulton and DeKalb Counties. 

8 
47133. During all this time, the FA , llJAl , and the airlines' have nor raised a single 

objection to d1ese taxes, despite the Frv \ 's confirmation in the 2013 notice and 2014 

clarification that an airport receiving A IP grants is and has been statutorily and contractually 

.required, as a condition of rccci\'ing those grants, at least to make objections to improper 

aviation fuel tax revenue usc known to the local taxing authorities. This failure to object is 

another indication that all these parries during the intervening decades since its enactment 

understood that the obligations in section 47133 do not apply to these local governments. 

If the Clayton County Entities arc required to cease imposing these taxes, d1c annual loss of 

revenue to Clayton County and the Clayton County Public Schools will be an estimated $18 

million. This is a tremendous sum for a small county o f low-income people. The majority of 

students served by the school district arc minority children and a high number of them have 

subsidized lunches. The aviation fuel tax revenue cannot benefit the airport since Clayton 

County and the Clayton Coun ty Public Schools do not have ownership o f the airport and 

otherwise ha\·e no legal relationship that would permit these revenues to be. used for airport 

purposes. Without this .revenue, rudents and residents will suffer and only the airlines will 

benefit - they will be rewarded with a fmancial windfall. Based on our understanding of the 

pu.rpo e and history of section 4 7133, this is not at all a .result that Congress intended, and 

we give the FAr\ the benefit o f believing it could not have made the 2014 clarification 

intending to use airport revenue diversion principles to protect the airlines and other 

purchasers of aviation fuel from taxes. 

The FAA did not consult with Clayton County in advance of d1e Fr \ 's action, despite the 

devastating consequences o f an application of the 2014 clarification to our schools, 

government programs andre idents. It failed to do so despite knowing about d1csc taxes due 

to the specific advocacy of Delta against them before the FAA beginning in March 2012, 

according to documents recendy .released by d1e FAA pursuant to a FOTA request. Delta's 

advocacy made clear that it was not concerned about airport revenue diversion, which is the 

purpose o f section 47133; its goal instead was to have the FAA rake action to cause these 

local taxes to be elin1inated so that Delta would not ha\·c to pay them. 

4 In d1e absence o f an 

express intent on the part of Congress to limit the taxing aud10.rity of local governments like 

the Clayton County Entities, clearly absent here, the F "v \ should, and we believe, did, .refrain 

from any interpretation that would apply the airport revenue diversion .rule of section 47133 

to our government taxing authorities and general sales tax .revenue. 

Especially under all these circumstances and the absence of evidence of Congressional intent 

driving this result, we believe any interpretation dnt would impose airport revenue diversion 

l Information about Delta .-\ir Lines Inc.'s ("Delta") 2012 objection ro these taxes and lobbying effor1 ro enlist 

the suppon ofF:\:-\ to eliminate these ta.xes in Clayton Coumy was not shared ,..,;th the Clayton County 

Entities until F.\. \ 's response to our counsel's 2016 Freedom o f Information .\ ct (FOL \) request. 1 See, e.g., memoranda from Ben I Iursr, Delta Senior \'ice President and General Counsel to Ka thryn B. 

Thompson, F.\.\ Chief ot se ~ :.larch 19, 20 12 and July 24, 20 12. "As the price of oil has risen, these ta.xes 

have become more material to Delta." July 24,20 12, Delta memorandum at p. 2. 

9 
rules to our taxing authorities and reguire either the cessation of tax revenue spending or a 

change in our tax laws and other local political actions is not only beyond the scope of 

section 4 7133, but would be inconsistent with the federalism principles. described in 

Executive Order 13132. If the FAA intended such an interpretation, we believe the 

following provisions of the executive order would have reguired the FAA to take into 

account the specific issues we have raised here, contact Clayton County authorities, and 

closely explain its reasoning and why the intended action in our case was intended by 

Congress and furthers the purpose of the law, which the agency did not do: 

"Sec. 3. Federalism Policymaking Criteria. In addition to adhering to the 

fundamental federalism principles set forth in section 2, agencies shall 

adhere, to the extent permitted by law, to the following criteria when 

formulating and implementing policies that have federalism implications: 

(a) There shall be strict adherence to constitutional principles. A.gemies shall 

close!J examine the constittttiona/ and statutory att!hori!J supporting a'!Y action that wottld 

limit the polirymaking dismtion of the Stales and shall carejtti!J assess the necmiry for 

such adion. To the extent practicable, State and /owl rffidals shall be consulted 

before any such action is implemented. Executive Order 12372 of July 14, 

1982 ("Intergovernmental Review of Federal Programs") remains in effect 

for the programs and activities to which it is applicable. 

(b) ational adion limiting the polirymaking discretion of the States shall be taken on/y 

where there is constitutional and statutory aNthori(y for the at"tion and the national activiry 

is appropriate in light of the presence of a problem of national signijicana. Where there 

are significant uncertainties as to whether national action is authorized or 

appropriate, agencies shall consult with appropriate State and local rdficials to 

determine whether Federal objectives can be attained by other means." 

(Emphasis supplied.) 

That the FAA did not consult with Clayton County in advance of its 2014 clarification, 

despite the clear mandate in Executive Order 13132 to do so should the FAA have intended 

to take action that would undermine our existing general excise tax structure, is further 

evidence the FAA did not intend that clarification to apply to these local government 

entities. 

The Clayton County Entities submitted an action plan to the r AA on December 8, 2015, 

based on the FAA's general "mandate" for action plans by that date but without benefit of 

the agency providing any details as to their content and the uncertainty as to the scope of the 

2014 clarification discussed here. I-IJ AIA had not provided (and still has not provided) any 

notifications to us regarding compliance reguirements and therefore there had been no 

opportunity before that submission for the Clayton County Entities to discuss the 2014 

clarification's reguirements directly with HJAIA. Further, tl1e action plan submitted by the 

state of Georgia did not address compliance matters related to taxing authorities like the 

Clayton County Entities with no direct governmental affiliation with an airport. The Clayton 

County Entities decided to submit an action plan in response to the 2014 clarification's 

directive to avoid any risk of sanctions for failing to submit such a plan, to demonstrate the 

impact of the 2014 clarification if it were to be applied to Clayton County, its impossibility of 

10 
performance, and the impact on Hjr\ IJ\ if the real but indirect costs to the .county of the 

airport's extraterritorial presence in Clayton County were to be quantified and charged to the 

airport. For the reasons we have explained, we now believe the Fr \ did not intend to 

include the taxes imposed by Clayton Coun ty in its 2014 clarification and its call for action 

plans to change the status guo. 

V. Conclusion. 

We believe that the only way to reconcile the 2014 clat1fication and its avowal that it reflects 

longstanding FAA policy with: 

(1) the plain language of section 47133 and Public Law 104-264, §802, 

(2) the law's legisL'ltive purpose o f preserving airport revenue; 

(3) its legislative history and context; 

(4) pre\rious fAA interpretations; 

(5) the complete failure for almost twenty years by the FAA, Hjr\ Jr\ or any airline to 

communicate to us any objection to the inclusion of aviation fuel in our general sales 

taxes and our usc of this tax revenue; and 

(6) the requirements of Executive Order 13132 

1s to conclude that the 2014 clarification was not intended to apply revenue diversion 

regu1rements to taxes imposed by the Clayton County Entities and like-situated local 

governments. 

We believe the intention o f the 2014 clarification instead was to confirm that, in addition to 

current federal project gram recipients, the revenue usc rules in section 47133 apply to those 

local governments that arc no t currently sponsors, but have been and can be sponsors and 

continue to have the ability to usc the revenue for the purposes stated in the law. This is how 

the FAA interpreted the law in the past and is consistent with the plain ·language o f the 

public law, its legislative history, context, and purpose. 

To interpret the law otherwise so as to extend its application to these local government 

entities would not only be inconsistent with prior FAA interpretations but the unambiguous, 

stated purpose of the law. It also would achie\·e a result that is not in tl1e public interest and 

that Congress did not intend: to improve the bottom line, not of airports, but of airlines and 

at the expense of local government programs and school children. Such an interpretation, in 

our view, would be arbitrary and capricious. We therefore conclude that the FA A could not 

have intended, in its 2014 clarification, to construe section 47133 so as to restrict the taxing 

authority of the Clayton County E ntities and other like-situated local governments and 

thereby give the airlines a revenue windfall by requiring the exclusion of aviation fuel from 

taxation by these local government entities. 

11 
Signature Page for Clayton County, Georgia for the Letter/Amendment Dated q /1 bn1ta to 

FAA Aviation Fuel Tax Revenue Use Compliance Plan Dated December 8, 2015 Prepared by 

Clayton. County, Georgia Government, Clayton County Public Schools, College Park, Georgia, 

Forest Park, Georgia, Lake City, Georgia, Morrow, Georgia, Jonesboro, Georgia, Riverdale, 

Georgia and Lovejoy, Georgia. 

Attest: 

-=--=--=== Seal ~5~i~ 

Clerk 

Approved as to fo rm: 

Clayton County, Georgia 

Clayton County Commission 
Signature Page for the Board of Education, Clayton County Public Schools for the 

Letter/Amendment Dated CJ- J?l-LC, to FAA Aviation Fuel Tax Revenue Use Compliance 

Plan Dated December 8, 2015 Prepared by Clayton County, Georgia Government, Clayton 

County Public Schools, College Park, Georgia, Forest Park, Georgia, Lake City, Georgia, 

Morrow, Georgia, Jonesboro, Georgia, Riverdale, Georgia and Lovejoy, Georgia. 

Attest: Board of Education, Clayton County, Georgia 

Luvenia Jackson, Dr. Pamela Adamson, Chair 

:. 
\ 

I 

Signature Page for the City of Forest Park, Georgia for the Letter/Amendment Dated September 

13, 2016 to FAA Aviation Fuel Tax Revenue Use Compliance Plan Dated December 8, 2015 

Prepared by Clayton County, Georgia Government, Clayton County Public Schools, College 

Park, Georgia, Forest Park, Georgia, Lake City, Georgja, Morrow, Georgia, Jonesboro, Georgia, 

Riverdale, Georgia and Lovejoy, Georgia. 

Attest: City of Forest Park, Georgia 

City Clerk Tommy Smith, Mayor Pro-tem 

Approved as to f01m: 
Signature Page for the CITY OF RIVERDALE for the Letter/Amendment Dated 

g-r?>..-f(p t~ FAA Aviation Fuel Tax Revenue Use Compliance Plan Dated December 

8, 2015 Prepared by Clayton County, Georgia Government, Clayton County, Georgia Public 

Schools, College Park, Georgia, Forest Park, Georgia, Lake City, Georgia, Morrow, Georgia, 

Jonesboro, Georgia, Riverdale, Georgia and Lovejoy, Georgia. 

ATTEST: THE CITY OF RIVERDALE, GEng.r.:u..---

~_...L..f-. Dr. Evelyn ~ 
Signature Page for the CITY OF LOVEJOY for the Letter/Amendment Dated 

q .. 1'3- }(, to FAA Aviation Fuel Tax Revenue Use Compliance Plan Dated December 

8, 2015 Prepared by Clayton County, Georgia Government, Clayton County, Georgia Public 

Schools, College Park, Georgia, Forest Park, Georgia, Lake City, Georgia, Morrow, Georgia, 

Jonesboro, Georgia, Riverdale, Georgia and Lovejoy, Georgia. 

ATTEST: THE CITY OF LOVEJOY, GEORGIA 

~ 
Signature Page fo r the City of Morrow, Georgia for the Letter/ Amendment Dated q b s!Jft> to j 

FAA Aviation Fuel Tax Revenue Use Compliance Plan Dated December 8, 2015 Prepared by 

Clayton County, Georgia Government, Clayton County Public Schools, College Park, Georgia, 

Forest Park, Georgia, Lake City, Georgia, Morrow, Georgia, Jonesboro, Georgia, Riverdale, 

Georgia and Lovejoy, Georgia. 

Attest: 11 

I 

Approved as to form: 

City Attorney 

[1159-0001/ 237490/ 1] 

City of Morrow, Georgia 
Signature Page for the City of Lake City, Georgia for the Letter/Amendment Dated Cf- I 3-/~ 

to FAA Aviation Fuel Tax Revenue Use Compliance Plan Dated December 8, 20 15 Prepared by 

Clayton County, Georgia Government, Clayton County Public Schools, College Park, Georgia, 

Forest Park, Georgia, Lake City, Georgia, Morrow, Georgia, Jonesboro, Georgia, Riverdale, 

Georgia and Lovejoy, Georgia. 

Attest: City of Lake City, Georgia 

Seal 

City Clerk Willie Oswalt, Mayor 

City Attorney 
Signature Page for the City of Jonesboro, Georgia for the Letter/Amendment Dated September 

13, 2016 to FAA Aviation Fuel Tax Revenue Use Compliance Plan Dated December 8, 2015 

Prepared by Clayton County, Georgia Government, Clayton County Public Schools, College 

Park, Georgia, Forest Park, Georgia, Lake City, Georgia, Morrow, Georgia, Jonesboro, Georgia, 

Riverdale, Georgia and Lovejoy, Georgia. 

Attest: City of Jonesboro, Georgia 

C ty Clerk 

Approved as to form: 

City Attorney 

(115~1/235705/1) 
Signature Page for the City of College Park, Georgia for the Letter/Amendment Dated Cf/,3/tt, to r:'AA Aviation Fuel Tax Revenue Use Compliance Plan Dated December 8, 2015 • 

Prepared by Clayton County, Georgia Government, Clayton County Public Schools, College 

Park, Georgia, Forest Park, Georgia, Lake City, Georgia, MorrO\v, Georgia, Jonesboro, Georgia, 

Ri verdale, Georgia and Lovejoy, Georgia. 

Attest: 

City Clerk 

Ci

~ ty Attorney