2. Pub. L. 80-289. Surplus Airport Property Instruments of Transfer issued under P.L. No. 80-289 provide that: The United States shall at all times have the right to make nonexclusive use of the landing area (runways, taxiways and aprons) of the airport without charge, except that such use may be limited as may be determined at any time by the Administrator of FAA to be necessary to prevent undue interference with use by other authorized aircraft and provide further that the United States shall be obligated to pay for any damage caused by its use, and if the use is substantial, to contribute a reasonable share of the cost of maintaining and operating the landing area, in proportion to such use.
3. Regulation 16 Transfer. Surplus Airport Property Instruments of Transfer issued under WAA Regulation 16 (i.e., prior to the effective date of P.L. No. 80-289) provide that the government shall at all times have the right to use the airport in common with others provided that such use may be limited as determined by the FAA Administrator to be necessary to prevent interference with use by other authorized aircraft, so long as such limitation does not restrict government use to less than 25 percent (25%) of the capacity of the airport. These instruments of transfer further provide that government use of the airport to this extent shall be without charge of any nature other than payment for any damage caused.

Another reminder that in all cases where the airport owner proposes to charge the government for use of the airport under the joint use provision, negotiations should be between the airport owner and the government agency or agencies using that airport.

Operational Compliance Considerations: The airport sponsor (including the sponsor of a federally obligated civil airport or sponsor of a DoD-owned facility for which AIP has funded infrastructure improvements for civil use) must take care not to enter into agreements that will preclude the sponsor from receiving future AIP grants. For example, if the airport sponsor agrees to certain limitations on the number of civilian aircraft takeoffs and landings or agrees to Prior Permission Requirements (PPRs), this may effectively prevent or limit general aviation access in a way that is impermissible under the grant assurances. The FAA Regions and ADOs are available upon request to review proposed joint use agreements between the DoD and airport sponsors to ensure that the airport’s interests are protected and to preserve the sponsor’s eligibility for grant assistance. This review is effective only if done before any agreements are signed. The FAA is not a party to and does not approve joint use agreements. Remember, the DoD is responsible for protecting its interests; the airport sponsor is responsible for preserving and protecting the airport’s interests and complying with the grant assurances and other federal requirements. It is important to remember that in cases involving military units, the military entity in question may be subject to military regulations relating to fee negotiations.

VI. RESEARCH MATRIX

The research matrix shown in Exhibit 7 provides a quick reference for airport lawyers, staff, and other interested parties to begin their research and analysis when considering their future or current engagements with federal agencies.

VII. CONCLUSION

Airport operators have dynamic engagements with federal agencies that create obligations and liabilities. These obligations arise from statutory requirements, grant assurances, agency regulations and policies, contracts between the agency and airport, and through historical precedent. In the introduction two hypotheticals established common issues and challenges that airports have engaging with federal agencies. Following are closing thoughts on those issues and challenges based upon the research findings of this project.

What are airports required to provide to federal agencies and what are the associated costs (to the extent cost information is available and identified through the project team’s research)?

Airfield Access

Generally, most airports will be required to permit federal agencies to use the airfield (runways, taxiways, aircraft parking) at no charge. Federal agencies are responsible for paying for damage caused, and depending upon whether the use of the airfield is “substantial,” the airport may be able to seek reimbursement for costs. The reimbursement sought by the airport would need to be commensurate with the use by a particular federal agency, and consistent with the costs charged to other non-federal airport users.

In the case of a national emergency or declaration of war, the airport can be required to provide the federal agency the full use of the airport at no cost to the federal government. The extent of this obligation is dependent upon language in an airport’s conveyance documents.

Land or Water

Generally, airports are required to provide land and water, if applicable, at no cost to the United States for the construction of certain navigational facilities: air traffic control or air navigation activities, or weather-reporting and communication activities related to air traffic control.

Facility Costs

Airports may be obligated to pay for the design, construction, and relocation of certain federal facilities if relocating, replacing, or modifying those facilities is necessitated by an airport’s improvements.

Exhibit 7. Research matrix.