[Federal Register Volume 88, Number 235 (Friday, December 8, 2023)]
[Rules and Regulations]
[Pages 85474-85479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27017]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2022-0432]

14 CFR Chapter I


Policy Regarding Processing Land Use Changes on Federally 
Acquired or Federally Conveyed Airport Land

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of final policy.

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SUMMARY: This action finalizes the FAA's policy on the FAA's procedures 
for processing land use changes on federally acquired or federally 
conveyed airport land or in situations where a land use change impacts 
the safe and efficient operation of aircraft or safety of people and 
property on the ground related to aircraft operations. These changes 
were needed because of legislative changes made in the FAA 
Reauthorization Act of 2018. The policy is intended to simplify the 
procedures required to make a land use change and to protect airport 
land by limiting the use of releases to the actual sale or disposal of 
airport property.

DATES: This policy is effective January 8, 2024.

FOR FURTHER INFORMATION CONTACT: Kevin C. Willis, Director, Airport 
Compliance and Management Analysis, ACO-1, Federal Aviation 
Administration, 800 Independence Avenue SW, Washington, DC 20591, 
telephone (202) 267-3085; facsimile: (202) 267-4629.

ADDRESSES: You can get an electronic copy of this Policy and all other 
documents in this docket using the internet by:
    (1) Searching the Federal eRulemaking portal (https://www.regulations.gov)
    (2) Visiting FAA's Regulations and Policies web page at (http://www.faa.gov/regulations/policies); or
    (3) Accessing the Government Publishing Office's web page at 
(http://www.gpoaccess.gov/index.html).
    You can also get a copy by sending a request to the Federal 
Aviation Administration, Office of Airport Compliance and Management 
Analysis, 800 Independence Avenue SW, Washington, DC 20591, or by 
calling (202) 267-3085. Make sure to identify the docket number, notice 
number or amendment number of this proceeding.

SUPPLEMENTARY INFORMATION: 
    Authority for the Policy: This document is published under the 
authority described in Title 49 of the United States Code, Subtitle 
VII, part B, chapter 471, section 47122(a).
    This policy should be used in conjunction with FAA Order 5190.6, 
Airport Compliance Manual, Chapter 22, Releases from Federal 
Obligations; and FAA Order 5100.38, Airport Improvement Handbook; and 
any related policy implemented in conjunction and complementary with 
Airports Planning and Programming (APP) guidance. Additionally, 
compliance specialists will consult with FAA environmental protection 
specialists to determine what, if any, environmental obligations under 
relevant statutes or regulations may apply to specific land use changes 
at specific airports.

Background

    Congress authorized financial assistance for an airport development 
project to acquire land, including land for future airport development 
(See 49 U.S.C. 47104, 47107(c)(2)). Under the Airport Improvement Act, 
land is needed for an airport purpose ``if the land may be needed for 
an aeronautical purpose (including runway protection zone) or serves as 
noise buffer land, and revenue from interim uses of the land 
contributes to the financial self-sufficiency of the airport.'' (See 49 
U.S.C. 47107(c)(1)). Congress also authorized the conveyance of Federal 
non-surplus and surplus property for

[[Page 85475]]

developing, improving, operating or maintaining a public airport. (See 
49 U.S.C. 47125, 47151).
    Federally conveyed or federally acquired land must be used for 
airport purposes until the FAA approves or consents to a change in land 
use. (See 49 U.S.C. 47153(a), 47125(a), and 47107(c)(2)(B)). In 
addition, Congress requires the FAA to submit an annual report listing 
airports not in compliance with airport land use restrictions and 
identifying necessary corrective action. (49 U.S.C. 47131(a)(5)).\1\
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    \1\ Airport sponsors that have accepted federally conveyed or 
federally acquired airport land have agreed to comply with certain 
obligations and policies included in the Federal grant agreement or 
the Federal conveyance documents regarding the use of the land. 
Those obligations derive from multiple statutes, deed covenants and 
the grant assurances.
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    The FAA's decision to approve or consent to a non-aeronautical or 
mixed land use or to release Federal obligations depends on the 
obligating documents, the current and future aeronautical need for the 
property, and the requested land use. For example, residential use of 
airport property is incompatible with the needs of civil aviation. 
Incompatible land uses on the airport are prohibited by FAA policy and 
are contrary to Federal obligations. Limiting the use of aeronautical 
facilities to aeronautical purposes ensures that airport facilities are 
available to meet aviation demand at the airport. Aviation tenants and 
aircraft owners should not be displaced by non-aviation commercial uses 
that could be conducted off airport property.\2\ The FAA must consider 
both the existing and future aviation demand.
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    \2\ See Policy on the Non-Aeronautical Use of Airport Hangars, 
81 FR 38906-38907, (June 15, 2016).
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Implications of FAA Reauthorization Act of 2018

    Through the ``FAA Reauthorization Act of 2018'' (Pub. L. 115-254), 
Section 163, Congress changed the FAA's authority to regulate non-
federally acquired or conveyed airport land. The FAA's authority over a 
proposed land use change may be limited when (1) it does not impact the 
safe and efficient operation of aircraft or the safety of people and 
property on the ground related to aircraft operations or (2) does not 
adversely affect the value of prior Federal investments to a 
significant extent. (See Pub. L. 115-254, section 163(b)(1)(A) and 
(d)(1)(B)). Section 163(a) limits the FAA's authority to directly or 
indirectly regulate an airport owner or operator's acquisition, use, 
lease, encumbrance, transfer, or disposal of land, any facility upon 
such land, or any portion of such land or facility. However, Section 
163(b) contains three exceptions and provides that the limitations of 
Section 163(a) do not apply to the following:
    1. Any regulation ensuring the safe and efficient operation of 
aircraft or the safety of people and property on the ground related to 
aircraft operations; \3\
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    \3\ See section 163(b)(1)(A).
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    2. Any regulation imposed with respect to land or a facility 
acquired or modified using Federal funding; \4\
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    \4\ See section 163(b)(2).
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    3. Any authority contained in a Surplus Property Act instrument of 
transfer,\5\ or section 40117 of title 49 United States Code (Passenger 
Facility Charge statute).\6\
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    \5\ The FAA may retain approval authority over proposed changes 
in the use of lands granted to an airport sponsor from the United 
States, including under the Surplus Property Act, 49 U.S.C. 47125, 
section 16 of the Federal Airport Act of 1946 Public Law 79- 377, 
section 23 of the Airport and Airway Development Act of 1970, Public 
Law 91-258, section 516 of the Airport and Airway Development Act of 
1982, and former military airports conveyed to local public entities 
under the congressionally authorized Base Realignment and Closure 
program because lands granted under these statutes constitute 
Federal investments in the airport.
    \6\ See section 163(b)(3).
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    When the FAA retains approval authority over a proposed land use 
change or sale, the FAA will follow this policy guidance and FAA Order 
5190.6, Airport Compliance Manual. When the FAA does not have approval 
authority over a proposed land use change or sale, all of the airport 
sponsor's Federal statutory and grant assurance obligations remain in 
full force and effect, including over its remaining airport property. 
In addition, airport sponsors remain obligated under FAA's Policies and 
Procedures Concerning the Use of Airport Revenue (64 FR 7696, February 
16, 1999) (Revenue Use Policy), and FAA's Policy Regarding Rates and 
Charges (78 FR 55330, September 10, 2013). Any land that is to be sold 
or leased must be at fair market value and the funds must be used in 
accordance with the FAA's Revenue Use Policy. (See 49 U.S.C. 
47107(c)(2)(B)). The airport sponsor should retain sufficient authority 
over the disposed land to prevent uses that conflict with its Federal 
obligations and related requirements or create conditions resulting in 
violations of the Grant Assurances. To retain this authority, airport 
sponsors should consider using subordination clauses, reservations, 
covenants, or other restrictions in a deed, or other instrument, to 
protect the public's right to fly over the land, prohibit obstructions 
to air navigation or interference with the flight of aircraft, or 
assure compatible land use. The deed or other instrument containing the 
restrictions should be recorded in local land records.
    The FAA may verify compliance with these requirements through a 
financial compliance review, request and review of supporting 
documentation, enforcement of grant assurances, or other enforcement 
mechanisms. The airport sponsor also has the responsibility to comply 
with all Federal, state, and local environmental laws and regulations.
    In September 2022, the FAA issued a Draft FAA Policy Regarding 
Processing Land Use Changes on Federally Acquired or Federally Conveyed 
Airport Land and requested comments. (87 FR 56601, September 15, 2022). 
The FAA received comments from 29 commenters representing airport 
sponsors, industry groups, and airport consultants.

Discussion of Public Comments

    The following summary of comments reflects the major issues raised 
and does not restate each comment received. The FAA considered all 
comments received even if not specifically identified and responded to 
in this notice.
    1. Comment: Commenters asked for clarification on the purpose and 
reason for the policy clarification.
    Response: As the steward of federally acquired and federally 
conveyed land, FAA's role is to ensure that such land is available to 
serve aviation needs. New aviation entrants (air mobility, UAS, etc.) 
are changing the nature of aviation and their ability to use land 
previously deemed inaccessible due to its distance from the runway and 
taxiway environment is changing. To ensure land is available to serve 
these growing aviation needs, the FAA, as a general policy, will only 
release Federal obligations when land is to be sold or conveyed. This 
policy allows airport sponsors to seek approval for non-aeronautical 
land use in excess of 3-5 years without a release of obligations.
    2. Comment: Commenters asked whether the policy applies to land 
acquired for noise compatibility.
    Response: This policy does not apply to land acquired for noise 
compatibility purposes. FAA's Noise Land Management and Requirements 
for Disposal of Noise Land or Development Land Funded with AIP issued 
June 2014 (www.faa.gov/sites/faa.gov/files/airports/environmental/policy_guidance/Noise-Land-Management-Disposal-AIP-Funded-Noise-Development-Land.pdf) provides guidance on disposal and retention of 
noise land through the Noise Land Reuse Plan.

[[Page 85476]]

    3. Comment: Commenters are concerned that the duration of FAA's 
approval or consent to a land use change will be limited to the length 
of a lease and create additional workload.
    Response: The final policy clarifies that the duration of the FAA's 
approval or consent will be dependent on the circumstances at the 
airport. It may be permitted for the duration of the approved use so 
long as the land is not needed for aeronautical use. The duration is 
not limited to an individual lease term.
    4. Comment: Commenters asked whether FAA will now review and 
approve leases.
    Response: The policy does not change the FAA's approach to the 
review of an airport sponsor's leases. The FAA does not approve leases 
but will continue to review some leases, as needed, to ascertain 
compliance with an airport sponsor's Federal obligations.
    5. Comment: Commenters asked whether aeronautical or airport 
purpose land uses need FAA consent or approval?
    Response: Aeronautical and airport purpose land uses do not need 
FAA approval or consent for the use. However, airport sponsors are 
reminded that other approvals, such as airspace, may still be required.
    6. Comment: Commenters asked FAA to provide a timeframe for 
completing a land use change review.
    Response: FAA recommends that airport sponsors work closely with 
their Region/ADO to determine the timeframes for completing a land use 
change review. Each situation is unique and the timeframe is dependent 
upon the level of documentation submitted and airport-specific 
information.
    7. Comment: Commenters asked if there is an appeal process if a 
sponsor's request is denied.
    Response: Similar to an airport sponsor's request for a release, if 
the request is denied, the airport sponsor is encouraged to work with 
Region/ADO to find possible alternatives that will meet their needs, 
while protecting the aeronautical use of the airport. A Region/ADOs 
determination is not a final agency decision. The Region/ADO can 
coordinate with ACO-100 as needed.
    8. Comment: Commenters asked if the policy is retroactive and if 
existing uses will be grandfathered.
    Response: This policy is not retroactive. It will not apply to land 
that FAA has previously released for non-aeronautical use under a 
Letter of Release or a Deed of Release. However, existing interim/
concurrent use approvals will be reviewed in accordance with this 
policy when the existing approval expires.
    9. Comment: Commenters asked when under this policy must airport 
sponsors update their Exhibit A.
    Response: Under this policy, an airport sponsor's Exhibit A must be 
updated when the FAA issues a letter of consent or approval or when the 
property is released for sale or conveyance off the airport.
    10. Comment: Commenters asked if the designation of a non-
aeronautical area on the Airport Layout Plan (ALP) mean the land use 
has been approved.
    Response: The designation of non-aeronautical areas on the ALP does 
not mean a particular land use has been approved. These areas can still 
be shown as proposed on the ALP but must be updated on the Exhibit A 
once the FAA has approved or consented to the use.
    11. Comment: Commenters asked whether NEPA applies to FAA's 
issuance of letters of consent or approval.
    Response: These comments are not within the scope of the policy and 
have been shared with the appropriate office for consideration. Airport 
sponsors should coordinate with their local FAA Region/ADO to determine 
their National Environmental Policy Act (NEPA) obligations.
    12. Comment: Commenters asked how this policy relates to the FAA's 
existing Section 163 guidance?
    Response: This policy does not change FAA's review and approval 
authority for ALPs or land use under Section 163. The policy only 
addresses how land use approvals are processed after FAA has determined 
we retain approval authority.
    13. Comment: Commenters noted that 49 U.S.C. 47107(c)(1)(A) 
includes ``(ii) revenue from interim uses of the land [that] 
contributes to the financial self-sufficiency of the airport . . .'' 
and should not be omitted from the definition of Airport Purpose.
    Response: In the final policy, the FAA has included 49 U.S.C. 
47107(c)(1)(A)(i) and (ii) in the definition of airport purpose.
    14. Comment: Commenters asked for additional detail on how the FAA 
will assess the primary purpose of a requested land use change. Some 
commenters suggested square footage, customer base, nature of the 
structure, etc.
    Response: The FAA recognizes that there are numerous ways a 
requested land use change can be evaluated to determine its primary 
purpose. Airport sponsors should work closely with their Region/ADO to 
complete the land use change review.
    15. Comment: Some Commenters requested a response to specific 
individual examples at their airport.
    Response: The FAA recognizes that land use decisions must be based 
on the specific use identified and the situation at the airport. The 
FAA has provided general guiding examples, but the determination is 
dependent on the specific facts of a situation and should be discussed 
with the local Region/ADO.

III. Final Policy

    The FAA is adopting the following FAA policy and practice regarding 
processing land use changes on federally acquired or federally conveyed 
airport land: \7\ (1) in reviewing an airport sponsor's request for a 
land use change on federally acquired or federally conveyed airport 
land, the FAA will review the primary purpose of the requested land 
use, rather than examining each individual component of the request as 
aeronautical or nonaeronautical; (2) FAA written approval or consent is 
only required for a change in land use to non-aeronautical use, mixed 
use, or for interim uses of the land that contribute to the financial 
self-sufficiency of the airport; (3) the duration of the FAA's approval 
or consent will be dependent on the circumstances at the airport and 
may be permitted for the duration of the approved use; \8\ (4) The FAA 
will only release Federal obligations when the airport sponsor requests 
a release for the sale or conveyance of airport land that meets FAA 
release requirements, such a release must have ACO-100 concurrence; \9\ 
and (5) FAA letters of approval or consent will be documented on the 
Exhibit A.
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    \7\ This also applies in situations where a land use impacts the 
safe and efficient operation of aircraft or safety of people and 
property on the ground related to aircraft operations.
    \8\ This process supersedes the existing interim and concurrent 
use process discussed in FAA Order 5190.6B, Airport Compliance 
Manual, 2009, that was limited to 3-5 years.
    \9\ Airport sponsors should follow the existing release process 
in 14 CFR part 155, Release of Airport Property from Surplus 
Property Disposal Restrictions and FAA Order 5190.6, Chapter 22.
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Applicability

    This policy applies to all requests for land use changes on 
federally acquired or federally conveyed land as well as when a land 
use change impacts the safe and efficient operation of aircraft or the 
safety of people and property on the ground related to aircraft 
operations.

[[Page 85477]]

1. General
    This policy and practice is intended to ensure that the Federal 
investment in federally obligated airports is protected by making the 
use of aeronautical land and facilities available for aeronautical 
purposes and to ensure that airport land and facilities are available 
to meet the current and future aeronautical demand of the airport. 
Aeronautical users should not be displaced by non-aviation commercial 
uses, especially those that could be conducted off airport property.
2. Explanation of Terms
    Aeronautical Use--The FAA considers the aeronautical use of an 
airport to be any activity that involves, makes possible, is required 
for the safety of, or is otherwise directly related to, the operation 
of aircraft. Aeronautical use includes services provided by air 
carriers related directly and substantially to the movement of 
passengers, baggage, mail, and cargo at the airport. (FAA's Policy 
Regarding Rates and Charges, 78 FR 55331, September 10, 2013).
    Over time, the definition of aeronautical use has remained 
relatively unchanged, except when changes were needed to reflect 
necessary access for sky diving and new entrants. Land on which an 
aeronautical activity takes place is by its nature aeronautical use 
(e.g., drop zone, apron, hangar).
    The FAA confirms the use of a narrow definition of what constitutes 
an ``aeronautical use'' for land use purposes. Congress authorized 
financial assistance for an airport development project to acquire 
land, including land for future airport development (See 49 U.S.C. 
47104, 47107(c)(2)(B)). Congress also authorized the conveyance of 
Federal non-surplus and surplus property for developing, improving, 
operating or maintaining a public airport. (See 49 U.S.C. 47125, 
47151). The Congressional intent is furthered by a policy that requires 
aeronautical land to be used for aeronautical purposes unless the FAA 
discharges the airport sponsor of that obligation. Limiting the use of 
aeronautical land and facilities for aeronautical purposes ensures that 
airport land and facilities are available to meet the aeronautical 
demand of the airport, including future demand. Also, aeronautical 
users should not be displaced by non-aviation commercial uses, 
especially those that could be conducted off airport property.
    Aeronautical use lands receive additional protection and benefits. 
They are afforded the protection of the grant assurances and 
aeronautical users may be charged favorable below market aeronautical 
rates. Overall, a narrower definition of aeronautical use helps protect 
the Federal investment in aviation by ensuring that nonaeronautical 
uses cannot easily displace aeronautical uses and thereby diminish the 
safety, efficiency, and utility of the entire airport.
    Examples of aeronautical use include:
    1. Operational uses such as aerial approaches, navaids, runways, 
taxiways, aprons, hangars, or other aircraft movement areas;
    2. Future developmental uses to reserve property interests for 
foreseeable aeronautical development (e.g., a planned runway extension 
or a planned terminal building development); and
    3. Essential services that directly support flight operations 
(e.g., aircraft maintenance, fueling, and servicing; mail, passenger, 
and cargo processing facilities; communications and air traffic 
control; crash rescue, firefighting, and airport maintenance).
    Airport Purpose: Uses of land that are (1) directly related to the 
actual operation or the foreseeable aeronautical development of a 
public airport and (2) whose nonaeronautical components do not conflict 
with existing or foreseeable aeronautical needs/demands. These uses do 
not require FAA consent or approval of land use. These are situations 
where a primary aeronautical facility has some nonaeronautical 
components, including parking, that support that facility's core 
aeronautical function within its operation. These nonaeronautical 
components should be paying a fair market value lease rate. Examples of 
this include:
    1. A terminal complex: All components of a terminal complex 
(including the building, terminal concessions, airline ticket and car 
rental counters, parking, and roads);
    2. A fixed base operator (FBO) facility, including parking and 
classrooms;
    3. Parking associated with the airport purpose (e.g., passenger and 
employee parking);
    4. Airport service roads; and
    5. Truck parking for air cargo processing facilities when it is 
directly related to moving inbound and outbound air cargo on and off 
the airport.
    This does not include certain uses, such as aircraft manufacturing 
plants and warehouse distribution facilities, which are considered as 
mixed-use as defined below.
    In addition, airport purpose includes land that may be needed in 
the future for an aeronautical purpose and revenue from an interim use 
of the land contributes to the financial self-sufficiency of the 
airport. Such interim uses require FAA approval or consent as described 
below.
    Non-Aeronautical Use: All other uses that are not considered 
aeronautical or airport purpose. These uses will require FAA consent or 
approval of the land use. Examples of non-aeronautical use include:
    1. Car rental facility (stand-alone);
    2. Hotel;
    3. Warehouse and distribution center; and
    4. Parking associated with non-aeronautical uses (e.g., customer 
and employee parking for hotel, warehouse and distribution center, car 
rental).
    Non-aeronautical uses commonly occur at airports, but these uses do 
not have the priority or protection of the grant assurances. There is 
no Federal requirement that obligated airport sponsors accommodate non-
aeronautical uses. This differentiation between aeronautical and non-
aeronautical is intended to protect the Federal investment in aviation 
and ensure that non-aeronautical uses cannot easily displace 
aeronautical uses and thereby diminish the safety, efficiency, and 
utility of the airport.\10\
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    \10\ FAA has provided guidance on the temporary non-aeronautical 
use of a hangar in FAA's Hangar Use Policy (Policy on the Non-
Aeronautical Use of Airport Hangars (81 FR 38906), June 15, 2016). 
www.govinfo.gov/content/pkg/FR-2016-06-15/pdf/2016-14133.pdf).
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    Mixed Uses--A mixed-use facility contains both aeronautical and 
non-aeronautical uses, but the non-aeronautical use could be located 
off airport property. These uses will need FAA consent or approval for 
the land use. The FAA will take into account whether the non-
aeronautical component will impact existing uses or conflict with 
existing or foreseeable aeronautical needs/demand. Examples of mixed 
uses include:
    1. Mail distribution centers that are connected to an air cargo 
operation;
    2. Cargo operations where the primary purpose of the operation goes 
beyond air cargo processing facilities and expands into non-
aeronautical elements, such as office building complexes, sorting 
facilities, long-term storage (warehousing), freight forwarders, and 
third-party logistics providers, certain access infrastructure, or 
certain truck parking/trailer facilities (stalls). Most of these are 
related to other transportation modes or aspects of the cargo business, 
not directly and substantially to its ``aeronautical activity'';
    3. Aircraft manufacturing facility that includes final assembly, 
but also significant non-aeronautical uses such as engineering 
facilities, research and development facilities, parts

[[Page 85478]]

manufacturing and storage, or office buildings; and
    4. Parking associated with the mixed use (e.g., customer and 
employee parking for mail distribution, cargo operations, aircraft 
manufacturing).
    Federally acquired land--This is land that was acquired with 
Federal funds including the Airport Improvement Program (AIP), Federal 
Aid to Airports Program (FAAP), Airport Development Aid Program (ADAP), 
and as part of an AP-4 agreement.\11\ It also includes airport sponsor-
acquired land that was used for the airport sponsor match for an AIP 
project or was swapped for AIP purchased land.
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    \11\ In some instances, an AP-4 Agreement included a federal 
land purchase. The original agreement and funding should be reviewed 
to confirm the source of the funds.
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    Federally conveyed land--This is land conveyed to the airport 
sponsor by the Federal government through a written deed of conveyance 
(sometimes called a patent or included in a lease termination, etc.) 
that contained specific restrictions or allowances for the use of the 
land. The FAA recognizes that some Federal conveyance documents 
specifically permit non-aeronautical use for revenue production or a 
specific identified use--in these instances, there is not a change in 
land use. Federally conveyed land includes land transferred under:
    1. Surplus Property Act, codified in 49 U.S.C. 47151-47153, 
including former military airports conveyed to local public entities 
under 10 U.S.C. 2687 of the Defense Base Closure and Realignment Act 
(BRAC) program or any other Federal laws; and,
    2. Section 16 of the Federal Airport Act of 1946, 119 Public Law 
79-377, Section 23 of the Airport and Airway Development Act of 1970, 
Public Law 91-258, and Section 516 of the Airport and Airway 
Development Act of 1982, codified in 49 U.S.C. 47125. These are 
sometimes referred to as non-surplus property transfers.
    Release of Federal obligations--The formal, written authorization 
discharging and relinquishing all or part of the FAA's right to enforce 
an airport's contractual or deeded obligations. The FAA's authority to 
release, waive, or amend an obligation is contained in 49 U.S.C. 
47153(a) and 47107(h)(2).
    Letter of consent or approval--The FAA's action on a proposed land 
use change will be documented in the form of a letter of consent or a 
letter of approval, depending upon the obligating deeds or documents 
and the land at issue. Surplus Property Act deeds require the FAA's 
written consent for a non-aeronautical use, so a letter of consent is 
appropriate.
    Alternatively, Grant Assurance 5, Preserving Rights and Powers, 
requires prior written approval of the Secretary for the sale or 
transfer of any property upon which Federal funds have been expended, 
which would require a letter of approval. In both cases, the letters 
serve the equivalent purpose of documenting the FAA's action on the 
airport sponsor's request. These letters also serve to approve interim 
uses for revenue production on property acquired for an airport 
purpose.
3. Process for Evaluating Land Use Changes
    Uses of airport land will fall into one of four categories: (1) 
aeronautical use, (2) airport purpose, (3) non-aeronautical use, or (4) 
mixed-use.
    The airport sponsor must obtain FAA approval or consent for all 
non-aeronautical and mixed uses of federally acquired or federally 
conveyed land.\12\ FAA approval or consent is not needed for a proposed 
land use that meets the definition of aeronautical use or airport 
purpose. The following explains the process when an airport sponsor 
requests a change in land use on federally conveyed or federally 
acquired land:
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    \12\ The airport sponsor must obtain FAA approval of interim 
land uses for revenue production on property acquired for an airport 
purpose (See 49 U.S.C. 47107(c)(1)).
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A. What Airport Sponsors Must Submit
    The airport sponsor's request needs to include the following: \13\
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    \13\ An airport sponsor may reference documents already 
submitted as part of a review under Section 163 and will not need to 
resubmit unless there have been changes or information is missing.
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    1. identification of the property and documentation on how the land 
was acquired (i.e., Federal conveyance documents, Federal grant 
agreements, Exhibit A);
    2. current use of the property;
    3. current and future aeronautical demand of the airport and the 
property (e.g., current Master Plan, forecasts, hangar waitlists); and,
    4. proposed use of the property, including the anticipated length 
of the use.
B. FAA's Evaluation of the Request
    Upon receipt of all documents, the FAA will promptly review the 
airport sponsor's request. The review involves a certain level of 
discretion by the FAA and the airport sponsor. The FAA may request 
additional information regarding the proposal. Major considerations in 
granting approval or consent include the:
    1. Reasonableness and practicality of the airport sponsor's 
request,
    2. The effect of the request on needed aeronautical facilities,
    3. The net benefit to civil aviation, and
    4. Compatibility of the proposal with the needs of civil aviation. 
(Incompatible land uses on the airport, including residential use, are 
prohibited by FAA policy and are contrary to federal obligations.)
    The distinctions may vary slightly depending on the circumstances 
of the situation, such as intermodal functionality, business model, 
project integrity, available airport land, project size and location, 
airport planning priorities, and funding requirements and restrictions. 
The land use must benefit the airport and its functions in support of 
aeronautical uses and must not adversely affect the value of the 
federal investment in the airport and its facilities. 49 U.S.C. 
47107(a)(16)(B), 47125(a), and 47152(1).
    The land use should be compatible with the airport's current or 
future aeronautical use or demand. FAA approval will not be granted if 
the FAA determines that an aeronautical demand for the land is likely 
to exist within the period of the requested land use. The duration of 
FAA's approval or consent will depend on the circumstances at the 
airport and may be permitted for the duration of the approved use. The 
approval or consent must state that the land will be returned to 
aeronautical use at the end of the approved period.
C. Documentation of FAA Decision
    Upon completion of the review, the FAA will either issue a letter 
of approval or consent for the use or deny the request. Where possible, 
the FAA may issue the letter of approval or consent concurrently with a 
Section 163 determination letter.
    The letter of approval or consent will document the FAA's 
determination of the land use on federally acquired or federally 
conveyed airport land. This letter will outline the conditions of the 
approval or consent and include a requirement that the land must be 
available for aeronautical use at the end of the approval or consent 
period. Generally, the approval or consent will remain in effect for 
the duration of the approved use. The letter of approval or letter of 
consent does not affect or negate the airport sponsor's Federal 
obligations.
    The requirement for NEPA should be coordinated with the Regions/ADO 
Environmental Protection Specialist (EPS).

[[Page 85479]]

    After an airport sponsor receives an FAA letter of consent or 
approval, it will update the Exhibit A.

    Issued in Washington, DC, on December 5, 2023.
Kevin C. Willis,
Director, Office of Airport Compliance and Management Analysis.
[FR Doc. 2023-27017 Filed 12-7-23; 8:45 am]
BILLING CODE 4910-13-P