This process should involve the airport, TSA, and the impacted users. The FAA may be asked to render a preliminary decision on whether the security requirements established by the airport are consistent with the airport’s other federal obligations. Most likely, this will involve the requirements for reasonable and not unjustly discriminatory terms and conditions for using the airport. FAA compliance personnel may need to assess whether security requirements are consistent with TSA requirements and recommendations. The compliance implications of security at federally obligated airports may be in the form of security requirements covered by TSA. Coordination with FAA Headquarters Airport Compliance Division is recommended when encountering complaints involving TSA requirements.

V. U.S. ARMED FORCES

Pursuant to FAA Order 5190.6B Change 3 (Airport Compliance Manual), Section 17.16, the FAA acknowledges that many airports provide facilities to military units with aeronautical missions at nominal lease rates. The FAA does not consider this practice inconsistent with the requirement for a self-sustaining airport rate structure. Military units with aeronautical missions may include the Air National Guard, aviation units of the Army National Guard, the U.S. Air Force Reserve, U.S. Coast Guard, Civil Air Patrol (CAP) and Naval Reserve air units operating aircraft at the airport. The search and rescue (SAR) and disaster relief roles played by Coast Guard, the U.S. Air Force Auxiliary, and the CAP are also recognized as a prime aeronautical role. These units generally provide services that directly benefit airport operators and safety, but the FAA does not apply the same analysis to military units with no aeronautical mission on the airport, so airport sponsors should be prepared to request and negotiate for standard rates as they would any other airport tenant. Confusingly, though, section 7.16(c) of the Airport Compliance Manual also provides that it will not consider an airport’s provision of space and facilities to a federal agency at nominal rates a violation of the sponsor’s self-sustainability grant assurance as long as the space and facilities are related to the operation of the federal agency. Reviewing these instructions from the Manual to FAA staff, it seems largely up to the airport sponsor to do its best to negotiate fair rental rates from military tenants, but failure to do so will not be likely to result in FAA enforcement.

FAA also works with the various DoD military departments on the joint use of existing military airports when a civil sponsor wants to use the military airfield. Under 49 U.S.C. § 47175, “Joint-Use Airport” is an airport owned by the DoD, at which both military and civilian aircraft make shared use of the airfield. Importantly, not all joint-use airports are federally obligated, so a civil airport sponsor using a military airfield may not be subject to the same federal grant obligations as another joint-use airport. Also, many airport staff use the term “joint use” to include situations where the military is a tenant at a civilian airport, so understanding the ownership of the airfield is important to this analysis. In these situations, a civilian airport sponsor may be obligated under FAA grant agreements or property conveyance agreements, and therefore subject to the same federal obligations as other sponsors, but federal grant assurance obligations do not apply to areas within exclusive DoD control.

Air Force Instruction 10-1002, 8 August 2018, entitled “Joint Use Agreements for Military and Civilian Flying Facilities,” supersedes AIR NATIONAL GUARD PAMPHLET 32-1001, 8 APRIL 2003, entitled “Airport Joint Use Agreements for Military Use of Civilian Airfields.”⁷⁴ Air Force Instruction 10-1002 implements Air Force Policy Directive 10-10, Joint Use of Miliary and Civilian Flying Facilities. Among other directives, section 2.3 of AFI 10-1002 states that where the ANG has five or more aircraft permanently assigned on a civilian airport, substantial use will be acknowledged and a payment agreement made to reimburse the airport for a reasonable share, proportionate to the total military use (assigned and transient), of the cost of operating and maintaining the facilities used:

Where the Air National Guard and/or Air Force Reserve or active duty units have five aircraft permanently assigned on a civilian airport substantial use, as defined in FAA Airport Compliance Manual—Order 5190.6B and FAA Grant Assurance 27, they will be acknowledged by the Air Force and a payment agreement made to reimburse the airport for a reasonable share of the cost of operating and maintaining the facilities used. This will be assessed proportionate to the total military use (Air Force only), for both assigned and transient operations. In accordance with Paragraph 7.3.2., the lead Air Force unit will not be responsible for other agencies portions of total operating costs should they choose not to participate in the agreement.

As a reminder and discussed elsewhere in this report, there are three types of agreements under which the government has the right to joint use of airport facilities, either with or without charge:

1. Grant Agreements. Grant Assurance No. 27, Use by Government Aircraft, provides that all airport facilities developed with federal aid and usable for air operations will be available to federal government aircraft at all times without charge. However, the assurance provides that if such use is deemed substantial, a reasonable share of the cost of operating and maintaining the facilities used, in proportion to the use, may (but is not required to) be charged. Substantial use is defined in the assurance as: (1) five or more government aircraft are regularly based at the airport or on land adjacent thereto; or (2) the total number of calendar month operations (counting each landing and each takeoff as a separate operation) of government aircraft is 300 or more; or (3) the gross accumulative weight of government aircraft using the airport in a calendar month (the total operations of government aircraft multiplied by gross certified weights of such aircraft) is in excess of five million pounds. The AFI 10-1002 is careful to state that while use by multiple federal agencies would be combined to determine whether the thresholds set forth in the grant assurance have been met, the “reasonable share” for a particular agency is dependent upon that particular agency’s use.

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⁷⁴ U.S. Air Force, Air Force Instruction 10-1002, Joint Use Agreements for Military and Civilian Flying Facilities, August 8, 2018.