6366 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 

1As the FAA has applied the significant 

contribution requirement, a finding that a project 

meets a PFC objective is subsumed within a finding 

that a project meets the significant contribution 

requirement.

aspect of FAA’s regulatory activities. 

Neither publication of this notice nor 

the inclusion or omission of information 

in the summary is intended to affect the 

legal status of any petition or its final 

disposition.

DATES: Comments on petitions received 

must identify the petition docket 

number involved and must be received 

on or before March 1, 2004.

ADDRESSES: You may submit comments 

[identified by DOT DMS Docket Number 

FAA–200X–XXXXX] by any of the 

following methods: 

• Web Site: http://dms.dot.gov.

Follow the instructions for submitting 

comments on the DOT electronic docket 

site. 

• Fax: 1–202–493–2251. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590–

001. 

• Hand Delivery: Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC, between 9 am and 5 pm, Monday 

through Friday, except Federal 

Holidays. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http://

dms.dot.gov at any time or to Room PL–

401 on the plaza level of the Nassif 

Building, 400 Seventh Street, SW., 

Washington, DC, between 9 am and 5 

pm, Monday through Friday, except 

Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Tim 

Adams (202) 267–8033, Sandy 

Buchanan-Sumter (202) 267–7271, 

Office of Rulemaking (ARM–1), Federal 

Aviation Administration, 800 

Independence Avenue, SW., 

Washington, DC 20591. 

This notice is published pursuant to 

14 CFR 11.85 and 11.91.

Issued in Washington, DC, on February 4, 

2004. 

Donald P. Byrne, 

Assistant Chief Counsel for Regulations.

Petitions for Exemption 

Docket No.: FAA–2003–15925. 

Petitioner: AirTran Airways, Inc. 

Section of 14 CFR Affected:

14 CFR 93.123. 

Description of Relief Sought:

AirTran seeks reconsideration for the 

denial of its petition for exemption, 

which would allow AirTran to conduct 

10 operations at LGA without the 

necessary slots required under § 93.123.

[FR Doc. 04–2883 Filed 2–9–04; 8:45 am] 

BILLING CODE 4910–13–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration 

Notice of Policy Regarding the 

Eligibility of Airport Ground Access 

Transportation Projects for Funding 

Under the Passenger Facility Charge 

Program

AGENCY: Federal Aviation 

Administration (FAA), DOT.

ACTION: Notice.

SUMMARY: In accordance with section 

123(e) of the Vision 100—Century of 

Aviation Reauthorization Act, (Pub. L. 

108–176, December 12, 2003), the 

Federal Aviation Administration (FAA) 

is publishing its policy with regard to 

the eligibility of airport ground access 

transportation projects for funding 

under the Passenger Facility Charge 

(PFC) program. 

The FAA determines the eligibility of 

airport ground access transportation 

projects, no matter the technology 

proposed (e.g. road, heavy or light rail, 

water) for funding under the PFC 

program, on a case-by-case basis after a 

review of the particulars associated with 

each unique proposal. In general, a 

request to use PFC’s to fund an airport 

ground access transportation project 

must be submitted by a qualified 

applicant and the project must be 

eligible for funding under the Airport 

Improvement Program (AIP); meet at 

least one of the PFC program objectives 

and, if applicable, at least one of the 

significant contribution requirements 1; 

and be adequately justified (49 U.S.C. 

40117(d)(3)). In addition, all PFC 

projects must conform to other 

applicable regulatory requirements as 

referenced in 14 CFR part158 (e.g., 

environmental requirements, specified 

implementation schedules). Airport 

ground access transportation projects 

proposed at a PFC level higher than $3 

must also conform to the AIP funding 

test (49 U.S.C. 40117(b)(4)(B); 14 CFR 

158.17(a)(2)) and the airside needs test 

(49 U.S.C. 40117(d)(4); 14 CFR 

158.17(a)(3)).

ADDRESSES: This is an informational 

notice only and comments are not being 

solicited at this time.

FOR FURTHER INFORMATION CONTACT:

Sheryl Scarborough, Financial Analysis 

and Passenger Facility Charge Branch 

(APP–510), Room 619, Airports 

Financial Assistance Division, Office of 

Airport Planning and Programming, 

Federal Aviation Administration, 800 

Independence Avenue, SW., 

Washington, DC 20591, telephone (202) 

267–8825.

SUPPLEMENTARY INFORMATION: In recent 

yeas, the FAA has been requested to 

approve PFC funding of airport ground 

access transportation facilities. 

Proposals to build rail transit projects in 

particular have tended to involve large 

amounts of funds—from several 

hundred million to more than a billion 

dollars—and thereby generated close 

scrutiny, if not controversy. The Federal 

Transit Administration (FTA) estimates 

that three dozen or more localities 

currently have plans or proposals to 

build fixed guideway access projects to 

their airports. 

We are publishing this policy to 

comply with the requirement of section 

123(e) of the Vision Act. Section 123(e) 

directs the FAA to publish its current 

policy on airport ground access 

transportation project eligibility for PFC 

funding within 60 days after enactment 

of the Vision 100 Act. By consolidating 

guidance set forth in the preamble to the 

PFC regulation as well as the PFC 

regulation itself (14 CFR part 158), FAA 

Order 5500.1 ‘‘Passenger Facility 

Charge’’ (August 9, 2001), the AIP 

Handbook (change 1 to FAA Order 

5100.38B (January 8, 2004), and FAA 

PFC Records of Decision and Final 

Agency Decisions approving the use of 

PFC revenue to finance airport ground 

access transportation projects, this 

notice should assist public agencies 

eligible to impose PFC’s, air carriers, 

local transit operators, and other 

stakeholders in understanding how the 

FAA applies the statutory and 

regulatory criteria governing the PFC 

program to airport ground access 

transportation projects. The FAA has a 

more extensive background in 

evaluating highway ground access 

projects through its experiences with 

the various FAA airport grant programs 

and through the numerous requests for 

PFC funding of highway access projects 

(e.g. Las Vegas McCarran International, 

Miami International, and BaltimoreWashington International Airports). 

Therefore, although it can be used for 

any proposed mode of transportation, 

this summary of FAA policy reflects the 

FAA’s recent experience in approving 

three major fixed guideway access 

projects—the Light Rail System (LRS) at 

John F. Kennedy International Airport 

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 6367

(JFK), the monorail project at Newark 

Liberty International Airport, and the 

Airport MAX project at Portland 

International Airport (PDX). This FAA 

policy is subject to refinement in the 

future as different issues are raised 

during the evaluation of new projects.

The FAA determines the eligibility 

and justification for airport ground 

access transportation projects, no matter 

the technology proposed (e.g., road, 

heavy or light rail, water), on a case-bycase basis after a review of the 

particulars associated with each unique 

proposal (Preamble to 14 CFR part 158, 

§ 158.15 Project eligibility (56 FR 24258, 

May 29, 1991)). In general, an airport 

ground access transportation project 

must: be submitted by a qualified 

applicant; be eligible for funding under 

the AIP; meet at least one of the PFC 

program objectives and, if applicable, at 

least one of the significant contribution 

findings; and be adequately justified (49 

U.S.C. 40117(d)(3)). In addition, all PFC 

projects must conform to other 

applicable regulatory requirements as 

referenced in 14 CFR part 158 (e.g., 

environmental requirements, specified 

implementation schedules). Airport 

ground access transportation projects 

approved for PFC levels above $3 must 

also conform to the AIP funding test (49 

U.S.C. 40117(b)(4)(B); 14 CFR 

158.17(a)(2)) and the airside needs test 

(49 U.S.C. 40117(d)(4); 14 CFR 

158.17(a)(3)), as discussed more fully 

below. 

I. Qualified Applicants for PFC Projects 

1. Who May Apply? 

The PFC statute (49 U.S.C. 

40117(a)(2)) and regulation (14 CFR part 

158.5) provide that only ‘‘a public 

agency that controls a commercial 

service airport’’ may submit an 

application to fund a specific project 

with PFC revenues. As defined in 14 

CFR 158.3, a public agency may be ‘‘a 

State or any agency of one or more 

States; a municipality or other political 

subdivision of a State; an authority 

created by Federal, State, or local law; 

a tax supported organization; or an 

Indian tribe or pueblo that controls a 

commercial service airport.’’ In 

addition, the sponsor of an airport 

participating in the Pilot Program on 

Private Ownership of Airports (49 

U.S.C. 47134) may also submit a PFC 

application. A commercial service 

airport is defined in 14 CFR 158.3 as ‘‘a 

public airport enplaning 2,500 or more 

passengers annually and receiving 

scheduled service.’’

2. May Other Parties Participate in 

Project Design and Development? 

Public agencies are strongly 

encouraged to coordinate the design and 

development of airport ground access 

transportation projects with local and 

regional transportation planning boards 

(e.g., metropolitan planning 

organizations). This is especially 

important in cases where the PFCfunded project necessitates access or 

access improvements to a public 

roadway or transit system off airport 

property. (Section 187 of the Vision 100 

Act requires public agencies controlling 

large or medium hub airports that are 

planning to construct or relocate an 

airport or construct a new runway or 

major runway extension to offer the 

local metropolitan planning 

organization the opportunity to review 

any airport layout plan or master plan 

in which the proposed project is 

depicted. This provision is intended to 

ensure that any ground access 

improvements necessitated by the 

proposed project are identified in a 

timely manner.) However, projects to be 

funded with PFC revenues must 

conform to the eligibility conditions 

specified below. In addition, the public 

agency is the final authority on the type 

and scope of an airport ground access 

transportation project submitted for PFC 

funding. 49 U.S.C. 40117(b)(2) specifies 

that ‘‘A state, political subdivision of a 

state, or authority of a state or political 

subdivision that is not the eligible 

agency may not regulate or prohibit the 

imposition or collection of a passenger 

facility fee or the use of the passenger 

facility revenue.’’

II. PFC Project Eligibility 

1. How Is PFC Eligibility Established? 

Under 49 U.S.C. 40117(a)(3)(A), PFC 

eligibility for airport ground access 

transportation projects is identical to 

that of AIP projects. AIP eligibility of 

airport projects, codified in Chapter 471 

of 49 U.S.C., is summarized in change 

1 to FAA Order 5100.38B, AIP 

Handbook (January 8, 2004). 49 U.S.C. 

47102(3)(1) specifically identifies 

projects to support the movement of 

passengers, cargo, and baggage as being 

eligible airport development. 

In past decisions on the eligibility of 

airport ground access transportation 

projects, the FAA has relied on the 

eligibility conditions summarized in 

paragraphs 620a, ‘‘Access Roads,’’ and 

622b, ‘‘Rail Service to Airports’’ of 

change 1 to FAA Order 5100.38B 

(January 8, 2004) and its predecessor 

FAA Order 5100.38A (October 24, 

1989), paragraphs 553, ‘‘Airport Roads,’’

and 555 ‘‘Rapid Transit Facilities.’’ The 

use of eligibility criteria for access roads 

to judge eligibility of rail and fixed 

guideway systems is based, in part, on 

a March 15, 1971, opinion by the FAA 

Assistant Associate General Counsel. In 

that opinion, the Assistant Associate 

General Counsel determined that rail 

service to an airport was AIP eligible 

under the category of airport ‘‘entrance 

and service roads.’’ The eligibility 

criteria summarized in the paragraphs 

cited above were themselves established 

through agency legal opinions 

interpreting 49 U.S.C. and its 

predecessor statutes. 

To be AIP and PFC eligible, the 

airport ground access transportation 

project must meet the following 

conditions: (1) The road or facility may 

only extend to the nearest public 

highway or facility of sufficient capacity 

to accommodate airport traffic; (2) the 

access road or facility must be located 

on the airport or within a right-of-way 

acquired by the public agency; and (3) 

the access road or facility must 

exclusively serve airport traffic . Related 

facilities, such as acceleration and 

deceleration lanes, exit and entrance 

ramps, lighting, equipment to provide 

operational control of a rail system or 

people mover, and rail system or people 

mover stops at intermediate point on the 

airport are eligible when they are a 

necessary part of an eligible access road 

or facility (change 1 to FAA Order 

5100.38B (January 8, 2004) paragraphs 

620a(5) and 622(a). Related facilities 

may also include information 

technology and other electronic systems 

that will improve the operation, 

capacity or safety of the ground access 

facility, overhead variable message 

signs, and traffic control systems. 

In addition to the above eligibility 

criteria, the public agency must retain 

ownership of the completed ground 

access transportation project. The public 

agency may choose to operate the 

facility on its own or may choose to 

lease the facility to a local or regional 

transit agency for operation within a 

larger local or regional transit system.

2. What Does the FAA Consider the 

Nearest Highway or Facility? 

An airport ground access 

transportation project extending off the 

airport must connect to the nearest 

public highway or facility (depending 

on the transportation mode in question) 

of sufficient capacity to accommodate 

airport traffic (change 1 to FAA Order 

5100.38B, paragraph 620a(1)). More 

than one access facility and/or 

connection point may be eligible if the 

airport traffic is of sufficient volume to 

require more than one access route 

(change 1 to FAA Order 5100.38B, 

6368 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 

2The Court reviewed the FAA’s application of the 

eligibility standards from FAA Order 5100.38A 

(October 29, 1989), paragraph 553, ‘‘Airport Roads,’’

and paragraph 555, ‘‘Rapid Transit Facilities.’’

Among other things, the petitioner had contented 

that the right-of-way between the Jamaica Long 

Island Rail Road Station, a 3.1 mile elevated railway 

along the Van Wyck Expressway, and JFK did not 

meet FAA eligibility requirements because this 

right-of-way was not ‘‘on-airport.’’ The petitioner 

argued that for a right-of-way to be on-airport, it 

must be attached to the airport landing area along 

its entire length. The court upheld the FAA’s 

position, based upon FAA Order 5100.38A, 

paragraphs 553 and 555, that the right-of-way need 

only be attached to the airport landing area at some 

point, but not necessarily along the entire length of 

the right-of-way. The court also noted that the 

FAA’s interpretation, that once a public agency 

owns the right-of-way, that strip of land is by 

definition airport-owned and therefore ‘‘within the 

airport’’ was ‘‘reasonable’’ and ‘‘consisted with the 

FAA’s own regulations and past practice.’’ 169 F. 

3d at 6. The court also cited 56 FR 24,254, 24,258 

(1991), the FAA’s preamble to the final PFC rule, 

which states that ‘‘ground transportation projects 

are eligible if the public agency acquires the rightof-way.’’ 169 F. 3d at 6.

3For instance, during the FAA’s evaluation of the 

JFK LRS, it was suggested that local non-airport 

commuters might park in the JFK long term parking 

facilities and enter the LRS to access the Long 

Island Railroad or the subway lines. The FAA 

concluded that such non-airport uses of the LRS 

would be economically unfeasible due to the 

combined cost of the roundtrip LRS fare and airport 

parking relative to alternative means of accessing 

the non-LRS transit system.

paragraph 620a(4)). Situations where 

more than one access route is needed 

would occur if an existing access route 

could not be expanded to meet expected 

traffic due to physical, environmental, 

or other binding constraints; or if a 

particular access route is poorly situated 

to serve a significant flow of traffic 

associated with a geographically 

separate region served by the airport. 

Moreover, the FAA has allowed an 

airport ground access transportation 

project to connect to more than one 

point of a public transportation mode if 

the connections are to physically 

separated systems. For instance, in the 

case of the LRS at JFK, the FAA allowed 

the LRS to connect to the nearest-pointsof access of two separate public rail 

systems (i.e., the New York City Transit 

Subway and the Long Island Rail Road). 

Given the size of the New York City 

metropolitan area and the extremely 

close proximity of one rail connection 

point to airport parking facilities to be 

served by the LRS, the FAA determined 

that the access to two rail sites serving 

geographically distinct areas was 

reasonable. 

3. What Qualifies as Airport-Owned 

Land or Rights-of-Way? 

Airport ground access transportation 

projects built entirely on airport-owned 

land within the traditional boundaries 

of an airport clearly meet the airportowned land requirement for AIP 

eligibility, as stated in change 1 to FAA 

Order 5100.38B, paragraph 620a(2). 

Moreover, an airport ground access 

transportation project may extend off 

the traditional boundaries of an airport 

(to the nearest off-airport highway or 

access facility) provided that the rightof-way for the project will be owned and 

controlled by the public agency for the 

life of the project and the project is 

connected to the airport at some point, 

thus qualifying as an appurtenant area 

and within the airport boundary under 

49 U.S.C. 47102(2)(A)(ii). To satisfy this 

eligibility requirement, the public 

agency must amend its Airport Layout 

Plan and Exhibit A to show the right-ofway. The FAA’s application of these 

eligibility standards was upheld by the 

U.S. Court of Appeals for the District of 

Columbia Circuit for the JFK LRS PFC 

decision in the case of the Air Transport 

Association of America v. FAA, 169 

F.3d. 1, 5 (D.C. Cir 1999) finding a 

certification by the eligible agency to 

take ownership of the right-of-way 

before it would use PFC funds to be 

adequate, and further, finding that the 

eligible airport ground access 

transportation project may be attached 

to the airport terminus to be considered 

within the airport boundary.2

4. What Is Exclusive Airport Use? 

The requirement under change 1 of 

FAA Order 5100.38B paragraph 620a(3) 

that the airport ground access 

transportation project be for the 

exclusive use of airport patrons and 

employees means that the facility can 

experience no more than incidental use 

by non-airport users. ‘‘Incidental use by 

non-airport users’’ means that through 

system access control procedures, 

physical alignment, schedules, pricing 

or for other reasons, routine use by nonairport users would be unattractive and 

non-airport users in fact constitute only 

a minor percentage of total system 

ridership. Exclusive airport use does not 

mean that any non-airport use must be 

prevented at all costs. In evaluating this 

requirement, the FAA considers 

whether techniques that would enable 

the public agency to prevent non-airport 

use would be prohibitively expensive. 

However, use of the airport ground 

access transportation project by more 

than a minor percentage of non-airport 

users would raise the FAA’s concerns 

with regard to a project’s eligibility.

Determining whether a facility meets 

the standard of exclusive use requires a 

case-by-case evaluation, although 

certain types of facilities are easier to 

evaluate than others. A rail station 

located within the airport boundary 

(particularly one in or adjacent to an 

airport terminal as in the case of 

Lambert-St. Louis, Chicago O’Hare, 

Hartsfield-Jackson Atlanta, Ronald 

Reagan Washington National, and 

Baltimore-Washington airports) would 

typically be used only by airport users 

and therefore be an exclusive use 

facility (some exceptions may exist if 

the rail station is also convenient to a 

nearby non-airport facility). A facility 

near the boundary of an airport or 

which otherwise may attract non-airport 

use may qualify as exclusive use if 

system access control could be 

implemented by design features, pricing 

techniques (making non-airport use 

non-economical), routing to discourage 

non-airport use, or other methods 

approved by the FAA 3. If a road or 

facility is intended to serve both airport 

and non-airport users, only those 

physically-discrete subsections of the 

road or facility that exclusively serve 

airport users could be funded with AIP 

or PFC funds. In the case of the PDX 

Airport MAX rail system, the FAA 

permitted PFC funding for only one of 

three discrete segments (the on-airport 

segment ending at the terminal) as it 

alone was solely intended for use by 

airport patrons and employees.

III. PFC Objective and Significant 

Contribution Findings 

In addition to AIP eligibility, the PFC 

statute as implemented by 14 CFR part 

158, requires that PFC projects, 

including PFC-funded airport ground 

access transportation projects, must 

accomplish one or more PFC program 

objectives and, if applicable, be found to 

make a significant contribution to the 

national air transportation system in one 

or more specific areas, depending on the 

size of the airport and the proposed PFC 

level. In accordance with 49 U.S.C. 

40117(d)(2), as implemented by 14 CFR 

158.15(a), the PFC program objectives 

are: (1) Preserving or enhancing the 

safety, capacity, or security of the 

national air transportation system; (2) 

reducing noise or mitigate noise impacts 

resulting from an airport that is part of 

such system; or (3) furnishing 

opportunities for enhanced competition 

between or among air carriers. In 

accordance with 49 U.S.C. 

40117(b)(4)(A) as implemented by 14 

CFR 158.17(b), a large or medium hub 

airport proposing a project at a $4 or 

$4.50 PFC level must demonstrate that 

the project makes a significant 

contribution to: (1) Improving air safety 

and security; (2) increasing competition 

among air carriers; (3) reducing current 

or anticipated congestion; or (4) 

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 6369

reducing the impact of aviation noise on 

people living near the airport. 

Any public agency requesting PFC 

funding for an airport ground access 

transportation project at a $1, $2, or $3 

PFC level must meet the PFC Objectives 

requirement. Ground access 

transportation projects proposed for 

funding at a $4 or $4.50 PFC level at a 

small hub or smaller airport must also 

meet the PFC Objectives requirement. 

However, airport ground access 

transportation projects proposed for 

funding at a $4 or $4.50 PFC level at a 

large or medium hub airport must meet 

the significant contribution 

requirement. 

1. Which PFC Objectives Are Typically 

Met by an Airport Ground Access 

Transportation Project? 

Typically, public agencies propose 

that an airport ground access 

transportation project meets the 

objective of preservation or 

enhancement of capacity of the national 

air transportation system, in that airport 

passengers or air cargo customers may 

be afforded faster and/or more reliable 

access times to airports, thus reducing 

total trip times. The FAA uses reduced 

trip time as a rough gauge of capacity 

benefits as it means that the national air 

transportation system can accommodate 

the same number of people or amount 

of air cargo with less average delay, or 

alternatively, a larger number of people 

or a larger amount of air cargo at the 

same level of average delay. These 

airport passengers or air cargo 

customers could include users of the 

proposed access system, as well as users 

of other means of airport access who 

would benefit from reductions in 

ground congestion enabled by the 

proposed system. 

A public agency may propose that an 

airport ground access transportation 

project meets other PFC objectives apart 

from or in addition to capacity 

preservation or enhancement. For 

instance, a project could benefit 

competition between airlines if the 

improved ground access results in a 

passenger being able to choose between 

air carriers operating at different 

airports. In all cases, the objective(s) 

cited for the project must be realistic 

and supported by analysis. The degree 

to which the project meets its 

objective(s) is, in turn, the basis for the 

determination of the project’s 

justification. 

2. Which Significant Contribution 

Findings Are Typically Proposed for an 

Airport Ground Access Transportation 

Project? 

Similar to the PFC objectives 

requirement, public agencies typically 

prepare an airport ground access 

transportation project description and 

justification to meet the ‘‘reduce current 

or anticipated congestion‘‘significant 

contribution finding. The public 

agency’s analysis may be similar to that 

outlined under the PFC objectives 

discussion above. In analyzing the 

significant contribution benefits of a 

‘‘congestion’’ project, the FAA considers 

the following questions; in addition to 

any unique aspects of a project: (1) Does 

the project support or is it a part of a 

capacity project to which the FAA has 

allocated Federal resources or that 

would qualify for such resources?; (2) Is 

the project included in an AIP Letter of 

Intent or does it satisfy the FAA’s 

benefit-cost criteria for large AIP 

discretionary investments?; (3) Has the 

project been identified as an important 

item in an FAA Airport Capacity 

Enhancement Plan?; or (4) Does the 

project alleviate an important constraint 

on airport growth or service? (FAA 

Order 5500.1, Passenger Facility Charge, 

(August 9, 2001), paragraph 10–12b.) 

3. How Does the FAA Analyze an 

Airport Ground Access Transportation 

Project That Is Undertaken To Obtain 

Necessary Local Approvals for Other 

PFC Financed Projects? 

In some cases, a state or local 

government agency (other than the 

airport public agency) may condition its 

approval of an airport project requested 

by the public agency with the 

requirement that the public agency also 

build an airport ground access 

transportation project. To date, the FAA 

has not permitted the PFC objectives or 

other PFC requirements that must be 

met by the requested airport project to 

be imputed to the airport ground access 

transportation project simply because 

the access project has been made a 

condition of the airport project’s 

approval as a matter of state or local 

law. Rather, the FAA has consistently 

required that the proposed airport 

ground access transportation project, on 

its own merits, satisfy one or more of 

the PFC objectives, as well as conform 

to the other requirements of the PFC 

statute and regulation, before granting 

approval of the airport ground access 

transportation project.

IV. Adequate Justification 

The FAA notes that, in addition to 

meeting the statutory and regulatory 

criteria of eligibility, PFC-funded 

ground access transportation projects 

must be adequately justified. This 

requirement is established by 49 U.S.C. 

40117(d)(3). The nature of the project 

justification depends in large measure 

on which PFC objective the public 

agency relief on to support the project. 

Airport ground access transportation 

projects are typically intended to 

preserve or enhance the capacity of the 

national air transportation system. In 

this case, the justification should be 

framed in terms of the project’s effect on 

capacity. 

1. How Can a Public Agency 

Demonstrate Adequate Justification for 

an Airport Access Road Project? 

In the case of standard airport access 

road projects, the case for new or 

enlarged roads can usually be made by 

a straightforward traffic study. The 

traffic study should demonstrate the 

impact of the access road project in 

reducing roadway congestion and trip 

times to the airport. Usually, the need 

for new road capacity is evident to all 

users of an airport and can be clearly 

demonstrated based on these studies. 

2. How Can a Public Agency 

Demonstrate Adequate Justification for 

an Intermodal Project? 

Intermodal projects—especially rail or 

other fixed guideway systems—can be 

complex to analyze. To date, the FAA 

has issued PFC decisions on only a few 

large-scale airport rail projects and has 

employed two methods to determine 

adequate justification. Due to this 

limited scope of prior experience, the 

FAA continues to consider adequate 

justification on a case-by-case basis and 

is not prepared at this time to constrain 

public agencies’ options for establishing 

justification. The FAA has relief on the 

specialized expertise of the FTA to 

validate measured capacity effects of 

airport rail projects and will continue to 

do so. 

An airport ground access 

transportation project can be found 

adequately justified if it has the effect of 

alleviating a ground access constraint 

that otherwise would impede or restrain 

use of the airport by air passengers. 

Using this method, the public agency 

must demonstrate that, but for the 

proposed system, use of the airport 

would be substantially less, either now 

or in the future, than it would otherwise 

be due to ground access constraints. The 

Office of the Inspector General (OIG) 

agreed with this as an approach to the 

adequate justification requirement in a 

January 21, 1998, management advisory 

to the FAA pertaining to the JFK LRS 

PFC decision. In the case of the JFK 

6370 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 

LRS, the FAA found the LRS to be 

adequately justified based on analysis 

that showed that, but for the LRS, 3.35 

million fewer air passengers would be 

able to access JFK by the year 2013 due 

to roadway access constraints. 

The FAA has also accepted as 

adequate justification the public 

agency’s demonstration that the benefits 

of the project in terms of reduced travel 

time to the airport (either for project 

passengers themselves or for all air 

passengers who benefit from less 

congested roadways) are reasonable 

relative to the PFC cost of the project. 

This approach was used, in part, to 

establish adequate justification for the 

Airport MAX light rail system that will 

link PDX to the regional rail network. 

Use of this method of analysis is 

voluntary for the public agency, as 

current regulations do not require 

public agencies to use benefit-cost 

analysis to show adequate justification 

for a PFC project. 

However, the requirement for 

adequate justification is not voluntary. 

A decision not to a benefit-cost analysis 

does not relieve a public agency of the 

need to demonstrate adequate 

justification in some other way. The 

FAA and FTA will consider other 

methods of establishing adequate 

justification that a public agency may 

believe better addresses its unique 

access project. At a minimum, an 

acceptable approach must demonstrate 

that a rail project will produce a 

reasonable stream of congestion 

reduction or other access benefits to air 

passengers relative to the scale and cost 

of the project. Thus, under whatever 

method is selected, the FAA would 

normally expect the level of justification 

for the project to increase as the amount 

of PFC funding requested for the project 

increases. We strongly recommend that 

the public agency consult with the FAA 

and FTA early in the planning/study 

process (and well in advance of 

submission of a PFC application to fund 

such a project) to identify a mutually 

acceptable approach to establishing 

adequate justification for the particular 

project.

V. Other Issues Potentially Affecting 

PFC Decisions on Airport Ground 

Access Transportation Projects 

In its January 21, 1998, management 

advisory to the FAA, the OIG 

recommended that the FAA consider 

two other elements about the JFK LRS 

in addition to the project’s effect on air 

passenger use of JFK (see Adequate 

Justification, above). Because of the 

great expense of the LRS project, the 

OIG recommended that the FAA verify 

that the project, if approved, would not 

create a risk to investment plans for 

enhancing airside safety, security, and 

capacity. The OIG also recommended 

that the public agency explain why the 

LRS should be funded without 

contribution from surface transportation 

funds or other non-airport revenues. 

1. Must a Public Agency Fully Fund 

Airside Safety, Security, and Capacity 

Projects Before Applying PFC Funds to 

Airport Ground Access Transportation 

Projects? 

The answer to this question depends 

on what PFC level the public agency 

proposes for the project. 

The PFC statute and regulation do not 

assign priority to projects meeting any 

one objective of the PFC program or to 

airside projects in preference to nonairside projects for projects proposed at 

a $1, $2, or $3 PFC level. Accordingly, 

the FAA cannot require that a public 

agency fund an airside project in 

preference to an airport ground access 

transportation project at these PFC 

levels. However, the FAA would be very 

concerned to find that critical airport 

safety, security, and/or airside capacity 

needs could not be funded as a result of 

the funding of an airport ground access 

transportation project. In order to 

evaluate such concerns, the FAA may 

require that the public agency provide 

relevant materials for the FAA’s review. 

The PFC regulation, 14 CFR 158.25, 

already requires that the public agency 

submit the airport’s capital plan with 

the PFC application. If a funding 

deficiency is revealed, the FAA would 

encourage the public agency to correct 

this deficiency. 

Airport ground access transportation 

projects proposed at a $4 or $4.50 PFC 

level, regardless of the size of the 

airport, must meet an airside needs test 

pursuant to 49 U.S.C. 40117(d)(4); 14 

CFR 158.17(a)(3). This test requires that 

the public agency demonstrate that it 

has made adequate provision for 

financing the airside needs of the 

airport, including runways, taxiways, 

aprons, and aircraft gates. Typically, the 

FAA reviews any available planning 

and inspection documents to determine 

the airside needs of the airport and then 

reviews the public agency’s airport 

capital plan, submitted with the PFC 

application, to ensure that any needed 

airside projects are included in the 

capital plan. 

2. Does the Allocation of Some Non-PFC 

Funds to an Airport Ground Access 

Transportation Project Increase the 

Likelihood That the Project Will Be 

Approved for PFC Funding? 

The PFC eligibility of an airport 

ground access transportation project 

does not depend upon whether the 

public agency also contemplates using 

other sources to fund portions of the 

project. There is no requirement in the 

PFC statute or regulation for public 

agencies to fund such projects 

intermodally (i.e., from multiple transit 

funding sources). The FAA has 

identified factors that could encourage 

or discourage a public agency in 

pursuing intermodal funding. The 

magnitude of aviation benefits expected 

of the project to establish adequate 

justification for PFC funding will be less 

if the amount of PFC funding requested 

is reduced by non-PFC participation. 

Non-PFC or non-airport financial 

participation may also help build local 

consensus for the project by 

ameliorating concerns on the part of the 

aviation community about the use of 

airport resources for non-airside 

investments. However, the partial 

funding of a project from non-PFC 

sources does not negate the exclusive 

use requirement associated with PFC 

funding. In any instance where PFC 

funding is used to fund a component of 

an intermodal project, that component 

must be for exclusive airport use (see

PFC Project Eligibility, above) and the 

public agency must adequately 

demonstrate that the funding sources 

are viable. The exclusive use 

requirement might complicate the 

ability of a public agency to qualify for 

the expenditure of funds from 

traditional sources of transit capital (e.g.

FTA’s major capital investments 

program) unless the project can be 

easily separated into exclusive and 

mixed-use components. 

3. Must a Public Agency Use or Pledge 

To Use AIP Grant Funds on an Airport 

Ground Access Transportation Project 

Before the Project Can Be Approved for 

PFC Funding? 

The answer to this question depends 

on what PFC level the public agency 

proposes for the project. 

The PFC statute and regulation do not 

require that a public agency use AIP 

grant funds for projects proposed at a 

$1, $2, or $3 PFC level. 

Airport ground access transportation 

projects proposed at a $4 or $4.50 PFC 

level, regardless of the size of the 

airport, must meet an AIP funding test. 

This test requires that the FAA make a 

finding that the project cannot be paid 

for from AIP funds reasonably expected 

to be available in order to approve the 

project (49 U.S.C. 40117(b)(4); 14 CFR 

158.17(a)(2)). 

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 6371

VI. Use of Other Airport Revenue To 

Finance Airport Ground Access 

Transportation Projects 

Eligibility for funding of airport 

ground access transportation projects 

with airport revenues is different than 

that for PFC or AIP funds. Guidance for 

use of such airport revenues on airport 

ground access transportation projects is 

provided in ‘‘Policies and Procedures 

Concerning the Use of Airport 

Revenue,’’ Section V.A.9 (64 FR 7718–

7719, February 16, 1999).

Issued in Washington, DC on February 3, 

2004. 

Catherine M. Lang, 

Deputy Associate Administrator for Airports.

[FR Doc. 04–2884 Filed 2–9–04; 8:45 am] 

BILLING CODE 3510–DS–M

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety 

Administration 

[Docket No. NHTSA–2004–16999] 

Notice of Receipt of Petition for 

Decision That Nonconforming 2002–

2004 Aston Martin Vanquish 

Passenger Cars Are Eligible for 

Importation

AGENCY: National Highway Traffic 

Safety Administration, DOT.

ACTION: Notice of receipt of petition for 

decision that nonconforming 2002–2004 

Aston Martin Vanquish passenger cars 

are eligible for importation. 

SUMMARY: This document announces 

receipt by the National Highway Traffic 

Safety Administration (NHTSA) of a 

petition for a decision that 2002–2004 

Aston Martin Vanquish passenger cars 

that were not originally manufactured to 

comply with all applicable Federal 

motor vehicle safety standards are 

eligible for importation into the United 

States because (1) they are substantially 

similar to vehicles that were originally 

manufactured for importation into and 

sale in the United States and that were 

certified by their manufacturer as 

complying with the safety standards, 

and (2) they are capable of being readily 

altered to conform to the standards.

DATES: The closing date for comments 

on the petition is March 11, 2004.

ADDRESSES: Comments should refer to 

the docket number and notice number, 

and be submitted to: Docket 

Management, Room PL–401, 400 

Seventh St. SW., Washington, DC 

20590. Docket hours are from 9 a.m. to 

5 p.m. Anyone is able to search the 

electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78) or you 

may visit http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

Coleman Sachs, Office of Vehicle Safety 

Compliance, NHTSA (202) 366–3151.

SUPPLEMENTARY INFORMATION: 

Background 

Under 49 U.S.C. 30141(a)(1)(A), a 

motor vehicle that was not originally 

manufactured to conform to all 

applicable Federal motor vehicle safety 

standards shall be refused admission 

into the United States unless NHTSA 

has decided that the motor vehicle is 

substantially similar to a motor vehicle 

originally manufactured for importation 

into and sale in the United States, 

certified under 49 U.S.C. 30115, and of 

the same model year as the model of the 

motor vehicle to be compared, and is 

capable of being readily altered to 

conform to all applicable Federal motor 

vehicle safety standards. 

Petitions for eligibility decisions may 

be submitted by either manufacturers or 

importers who have registered with 

NHTSA pursuant to 49 CFR part 592. As 

specified in 49 CFR 593.7, NHTSA 

publishes notice in the Federal Register

of each petition that it receives, and 

affords interested persons an 

opportunity to comment on the petition. 

At the close of the comment period, 

NHTSA decides, on the basis of the 

petition and any comments that it has 

received, whether the vehicle is eligible 

for importation. The agency then 

publishes this decision in the Federal 

Register. 

Webautoworld.com Corp. of Pampano 

Beach, Florida (‘‘Webautoworld’’) 

(Registered Importer 02–295) has 

petitioned NHTSA to decide whether 

2002–2004 Aston Martin Vanquish 

passenger cars are eligible for 

importation into the United States. The 

vehicles which Webautoworld believes 

are substantially similar are 2002–2004 

Aston Martin Vanquish passenger cars 

that were manufactured for importation 

into, and sale in, the United States and 

certified by their manufacturer as 

conforming to all applicable Federal 

motor vehicle safety standards. 

The petitioner claims that it carefully 

compared non-U.S. certified 2002–2004 

Aston Martin Vanquish passenger cars 

to their U.S.-certified counterparts, and 

found the vehicles to be substantially 

similar with respect to compliance with 

most Federal motor vehicle safety 

standards. 

Webautoworld submitted information 

with its petition intended to 

demonstrate that non-U.S. certified 

2002–2004 Aston Martin Vanquish 

passenger cars, as originally 

manufactured, conform to many Federal 

motor vehicle safety standards in the 

same manner as their U.S. certified 

counterparts, or are capable of being 

readily altered to conform to those 

standards.

Specifically, the petitioner claims that 

non-U.S. certified 2002–2004 Aston 

Martin Vanquish passenger cars are 

identical to their U.S. certified 

counterparts with respect to compliance 

with Standard Nos. 101 Controls and 

Displays, 102 Transmission Shift Lever 

Sequence, 103 Defrosting and Defogging 

Systems, 104 Windshield Wiping and 

Washing Systems, 105 Hydraulic Brake 

Systems, 106 Brake Hoses, 109 New 

Pneumatic Tires, 113 Hood Latch 

Systems, 116 Brake Fluid, 118 Power 

Window Systems, 124 Accelerator 

Control Systems, 135 Passenger Car 

Brake Systems, 201 Occupant Protection 

in Interior Impact, 202 Head Restraints,

204 Steering Control Rearward 

Displacement, 205 Glazing Materials,

206 Door Locks and Door Retention 

Components, 207 Seating Systems, 209 

Seat Belt Assemblies, 210 Seat Belt 

Assembly Anchorages, 212 Windshield 

Mounting, 214 Side Impact Protection,

216 Roof Crush Resistance, 219 

Windshield Zone Intrusion, 225 Child 

Restraint Anchorage Systems, 301 Fuel 

System Integrity, 302 Flammability of 

Interior Materials, and 401 Interior 

Trunk Release.

The petitioner claims that the vehicles 

also comply with the Bumper Standard 

found in 49 CFR part 581. 

The petitioner also contends that the 

vehicles are capable of being readily 

altered to meet the following standards, 

in the manner indicated: 

Standard No. 108 Lamps, Reflective 

Devices and Associated Equipment: (a) 

Installation of U.S.-model headlamp 

assemblies and sidemarker lights with 

reflectors; (b) installation of U.S.-model 

tail light assemblies and sidemarker 

lights with reflectors. 

Standard No. 110 Tire Selection and 

Rims: Installation of a tire information 

placard. 

Standard No. 111 Rearview Mirror:

Replacement of the passenger side 

rearview mirror with a U.S.-model 

component or inscription of the 

required warning statement on the 

mirror’s face. 

Standard No. 114 Theft Protection:

Programming of the vehicle’s computer