Sec. 47107 continued
(e) Written Assurances of Opportunities for Small Business Concerns. -
(1) The Secretary of Transportation may approve a project grant
application under this subchapter for an airport development
project only if the Secretary receives written assurances,
satisfactory to the Secretary, that the airport owner or operator
will take necessary action to ensure, to the maximum extent
practicable, that at least 10 percent of all businesses at the
airport selling consumer products or providing consumer services
to the public are small business concerns (as defined by
regulations of the Secretary) owned and controlled by a socially
and economically disadvantaged individual (as defined in section
47113(a) of this title).
(2) An airport owner or operator may meet the percentage goal of
paragraph (1) of this subsection by including any business
operated through a management contract or subcontract. The dollar
amount of a management contract or subcontract with a
disadvantaged business enterprise shall be added to the total
participation by disadvantaged business enterprises in airport
concessions and to the base from which the airport's percentage
goal is calculated. The dollar amount of a management contract or
subcontract with a non-disadvantaged business enterprise and the
gross revenue of business activities to which the management
contract or subcontract pertains may not be added to this base.
(3) Except as provided in paragraph (4) of this subsection, an
airport owner or operator may meet the percentage goal of
paragraph (1) of this subsection by including the purchase from
disadvantaged business enterprises of goods and services used in
businesses conducted at the airport, but the owner or operator and
the businesses conducted at the airport shall make good faith
efforts to explore all available options to achieve, to the
maximum extent practicable, compliance with the goal through
direct ownership arrangements, including joint ventures and
franchises.
(4)(A) In complying with paragraph (1) of this subsection, an
airport owner or operator shall include the revenues of car rental
firms at the airport in the base from which the percentage goal in
paragraph (1) is calculated.
(B) An airport owner or operator may require a car rental firm to
meet a requirement under paragraph (1) of this subsection by
purchasing or leasing goods or services from a disadvantaged
business enterprise. If an owner or operator requires such a
purchase or lease, a car rental firm shall be permitted to meet
the requirement by including purchases or leases of vehicles from
any vendor that qualifies as a small business concern owned and
controlled by a socially and economically disadvantaged
individual.
(C) This subsection does not require a car rental firm to change
its corporate structure to provide for direct ownership
arrangements to meet the requirements of this subsection.
(5) This subsection does not preempt -
(A) a State or local law, regulation, or policy enacted by
the governing body of an airport owner or operator; or
(B) the authority of a State or local government or airport
owner or operator to adopt or enforce a law, regulation, or
policy related to disadvantaged business enterprises.
(6) An airport owner or operator may provide opportunities for a
small business concern owned and controlled by a socially and
economically disadvantaged individual to participate through
direct contractual agreement with that concern.
(7) An air carrier that provides passenger or property-carrying
services or another business that conducts aeronautical activities
at an airport may not be included in the percentage goal of
paragraph (1) of this subsection for participation of small
business concerns at the airport.
(8) Not later than April 29, 1993, the Secretary of
Transportation shall prescribe regulations to carry out this
subsection.
(f) Availability of Amounts. - An amount deposited in the Airport and
Airway Trust Fund under -
(1) subsection (c)(2)(A)(iii) of this section is available to the
Secretary of Transportation to make a grant for airport
development or airport planning under section 47104 of this
title;
(2) subsection (c)(2)(B)(iii) of this section is available to the
Secretary -
(A) to make a grant for a purpose described in section
47115(b) of this title; and
(B) for use under section 47114(d)(2) of this title at
another airport in the State in which the land was disposed
of under subsection (c)(2)(B)(ii) of this section; and
(3) subsection (c)(2)(B)(iii) of this section is in addition to
an amount made available to the Secretary under section 48103 of
this title and not subject to apportionment under section 47114
of this title.
(g) Ensuring Compliance. - (1) To ensure compliance with this section,
the Secretary of Transportation -
(A) shall prescribe requirements for sponsors that the Secretary
considers necessary; and
(B) may make a contract with a public agency. (2) The Secretary
of Transportation may approve an application for a project grant
only if the Secretary is satisfied that the requirements
prescribed under paragraph (1)(A) of this subsection have been or
will be met.
(h) Modifying Assurances and Requiring Compliance With Additional
Assurances. - Before modifying an assurance required of a person
receiving a grant under this subchapter and in effect after December
29, 1987, or to require compliance with an additional assurance from
the person, the Secretary of Transportation must -
(1) publish notice of the proposed modification in the Federal
Register; and
(2) provide an opportunity for comment on the proposal.
(i) Relief From Obligation To Provide Free Space. - When a sponsor
provides a property interest in a land or water area or a building that
the Secretary of Transportation uses to construct a facility at
Government expense, the Secretary may relieve the sponsor from an
obligation in a contract made under this chapter, the Airport and
Airway Development Act of 1970, or the Federal Airport Act to provide
free space to the Government in an airport building, to the extent the
Secretary finds that the free space no longer is needed to carry out
activities related to air traffic control or navigation.
(j) Use of Revenue in Hawaii. - (1) In this subsection -
(A) "duty-free merchandise" and "duty-free sales
enterprise" have the same meanings given those
terms in section 555(b)(8) of the Tariff Act of
1930 (19 U.S.C. 1555(b)(8)).
(B) "highway" and "Federal-aid system" have the
same meanings given those terms in section 101(a)
of title 23.
(2) Notwithstanding subsection (b)(1) of this section,
Hawaii may use, for a project for construction or
reconstruction of a highway on a Federal-aid system that is
not more than 10 miles by road from an airport and that will
facilitate access to the airport, revenue from the sales at
off-airport locations in Hawaii of duty-free merchandise
under a contract between Hawaii and a duty-free sales
enterprise. However, the revenue resulting during a Hawaiian
fiscal year may be used only if the amount of the revenue,
plus amounts Hawaii receives in the fiscal year from all
other sources for costs Hawaii incurs for operating all
airports it operates and for debt service related to capital
projects for the airports (including interest and
amortization of principal costs), is more than 150 percent
of the projected costs for the fiscal year.
(3)(A) Revenue from sales referred to in paragraph (2) of this
subsection in a Hawaiian fiscal year that Hawaii may use may not
be more than the amount that is greater than 150 percent as
determined under paragraph (2).
(B) The maximum amount of revenue Hawaii may use under
paragraph (2) of this subsection is $250,000,000.
(4) If a fee imposed or collected for rent, landing, or
service from an aircraft operator by an airport operated by
Hawaii is increased during the period from May 4, 1990,
through December 31, 1994, by more than the percentage
change in the Consumer Price Index of All Urban Consumers
for Honolulu, Hawaii, that the Secretary of Labor publishes
during that period and if revenue derived from the fee
increases because the fee increased, the amount under
paragraph (3)(B) of this subsection shall be reduced by the
amount of the projected revenue increase in the period less
the part of the increase attributable to changes in the
Index in the period.
(5) Hawaii shall determine costs, revenue, and projected
revenue increases referred to in this subsection and shall
submit the determinations to the Secretary of Transportation. A
determination is approved unless the Secretary disapproves it not
later than 30 days after it is submitted.
(6) Hawaii is not eligible for a grant under section 47115
of this title in a fiscal year in which Hawaii uses under
paragraph (2) of this subsection revenue from sales referred
to in paragraph (2). Hawaii shall repay amounts it receives
in a fiscal year under a grant it is not eligible to receive
because of this paragraph to the Secretary of Transportation
for deposit in the discretionary fund established under
section 47115.
(7)(A) This subsection applies only to revenue from sales
referred to in paragraph (2) of this subsection from May 5,
1990, through December 30, 1994, and to amounts in the
Airport Revenue Fund of Hawaii that are attributable to
revenue before May 4, 1990, on sales referred to in paragraph (2).
(B) Revenue from sales referred to in paragraph (2) of
this subsection from May 5, 1990, through December 30,
1994, may be used under paragraph (2) in any Hawaiian
fiscal year, including a Hawaiian fiscal year beginning
after December 31, 1994.
(k) Annual Summaries of Financial Reports. - The Secretary shall
provide to the Committee on Commerce, Science, and Transportation of
the Senate and the Committee on Public Works and Transportation of the
House of Representatives an annual summary of the reports submitted to
the Secretary under subsection (a)(19) of this section and under
section 111(b) of the Federal Aviation Administration Authorization Act
of 1994. (l) Policies and Procedures To Ensure Enforcement Against
Illegal Diversion of Airport Revenue. -
(1) In general. - Not later than 90 days after the date of the
enactment of this subsection, the Secretary of Transportation
shall establish policies and procedures that will assure the
prompt and effective enforcement of subsections (a)(13) and (b) of
this section and grant assurances made under such subsections.
Such policies and procedures shall recognize the exemption
provision in subsection (b)(2) of this section.
Sec. 47108. Project grant agreements
(a) Offer and Acceptance. - On approving a project grant application
under this subchapter, the Secretary of Transportation shall offer the
sponsor a grant to pay the United States Government's share of the
project costs allowable under section 47110 of this title. The
Secretary may impose terms on the offer that the Secretary considers
necessary to carry out this subchapter and regulations prescribed
under this subchapter. An offer shall state the obligations to be
assumed by the sponsor and the maximum amount the Government will pay
for the project from the amounts authorized under chapter 481 of this
title (except sections 48102(e), 48106, 48107, and 48110). At the
request of the sponsor, an offer of a grant for a project that will
not be completed in one fiscal year shall provide for the obligation
of amounts apportioned or to be apportioned to a sponsor under section
47114(c) of this title for the fiscal years necessary to pay the
Government's share of the cost of the project. An offer that is
accepted in writing by the sponsor is an agreement binding on the
Government and the sponsor. The Government may pay or be obligated to
pay a project cost only after a grant agreement for the project is
signed.
(b) Increasing Government's Share Under This Subchapter or Chapter
475. - (1) When an offer has been accepted in writing, the amount
stated in the offer as the maximum amount the Government will pay may
be increased only as provided in paragraphs (2) and (3) of this
subsection.
(2)(A) For a project receiving assistance under a grant approved
under the Airport and Airway Improvement Act of 1982 before
October 1, 1987, the amount may be increased by not more than -
(i) 10 percent for an airport development project, except a
project for acquiring an interest in land; and
(ii) 50 percent of the total increase in allowable project
costs attributable to acquiring an interest in land, based on
current creditable appraisals.
(B) An increase under subparagraph (A) of this paragraph may
be paid only from amounts the Government recovers from other
grants made under this subchapter.
(3) For a project receiving assistance under a grant approved
under the Act, this subchapter, or chapter 475 of this title
after September 30, 1987, the amount may be increased -
(A) for an airport development project, by not more than 15
percent; and
(B) for a grant after September 30, 1992, to acquire an
interest in land for an airport (except a primary airport),
by not more than the greater of the following, based on
current creditable appraisals or a court award in a
condemnation proceeding:
(i) 15 percent; or
(ii) 25 percent of the total increase in allowable
project costs attributable to acquiring an interest in
land.
(c) Increasing Government's Share Under Airport and Airway Development
Act of 1970. - For a project receiving assistance under a grant made
under the Airport and Airway Development Act of 1970, the maximum
amount the Government will pay may be increased by not more than 10
percent. An increase under this subsection may be paid only from
amounts the Government recovers from other grants made under the Act.
(d) Changing Workscope. - With the consent of the sponsor, the
Secretary may amend a grant agreement made under this subchapter to
change the workscope of a project financed under the grant if the
amendment does not result in an increase in the maximum amount the
Government may pay under subsection (b) of this section.
Sec. 47109. United States Government's share of project costs
(a) General. - Except as provided in subsection (b) of this section,
the United States Government's share of allowable project costs is -
(1) 75 percent for a project at a primary airport having at least
.25 percent of the total number of passenger boardings each year
at all commercial service airports; and
(2) 90 percent for a project at any other airport.
(b) Increased Government Share. - If, under subsection (a) of this
section, the Government's share of allowable costs of a project in a
State containing unappropriated and unreserved public lands and
nontaxable Indian lands (individual and tribal) of more than 5 percent
of the total area of all lands in the State, is less than the share
applied on June 30, 1975, under section 17(b) of the Airport and
Airway Development Act of 1970, the Government's share under
subsection (a) of this section shall be increased by the lesser of -
(1) 25 percent;
(2) one-half of the percentage that the area of unappropriated
and unreserved public lands and nontaxable Indian lands in the
State is of the total area of the State; or
(3) the percentage necessary to increase the Government's share
to the percentage that applied on June 30, 1975, under section
17(b) of the Act.
Sec. 47110. Allowable project costs
(a) General Authority. - Except as provided in section 47111 of this
title, the United States Government may pay or be obligated to pay,
from amounts appropriated to carry out this subchapter, a cost
incurred in carrying out a project under this subchapter only if the
Secretary of Transportation decides the cost is allowable.
(b) Allowable Cost Standards. - A project cost is allowable -
(1) if the cost necessarily is incurred in carrying out the
project in compliance with the grant agreement made for the
project under this subchapter, including any cost a sponsor
incurs related to an audit the Secretary requires under section
47121(b) or (d) of this title;
(2)(A) if the cost is incurred after the grant agreement is
executed and is for airport development or airport planning
carried out after the grant agreement is executed;
(B) if the cost is incurred after June 1, 1989, by the
airport operator (regardless of when the grant agreement is
executed) as part of a Government-approved noise
compatability program (including project formulation costs)
and is consistent with all applicable statutory and
administrative requirements; or
(C) if the Government's share is paid only with amounts
apportioned under section 47114(c)(1)(A) and (2) of this
title and if the cost is incurred -
(i) during the fiscal year ending September 30, 1994;
(ii) before a grant agreement is executed for the
project but according to an airport layout plan the
Secretary approves before the cost is incurred and all
applicable statutory and administrative requirements
that would apply to the project if the agreement had
been executed; and
(iii) for work related to a project for which a grant
agreement previously was executed during the fiscal
year ending September 30, 1994;
(3) to the extent the cost is reasonable in amount;
(4) if the cost is not incurred in a project for airport
development or airport planning for which other Government
assistance has been granted; and
(5) if the total costs allowed for the project are not more than
the amount stated in the grant agreement as the maximum the
Government will pay (except as provided in section 47108(b) of
this title).
(c) Certain Prior Costs as Allowable Costs. - The Secretary may decide
that a project cost under subsection (b)(2)(A) of this section
incurred after May 13, 1946, and before the date the grant agreement
is executed is allowable if it is -
(1) necessarily incurred in formulating an airport development
project, including costs incurred for field surveys, plans and
specifications, property interests in land or airspace, and
administration or other incidental items that would not have been
incurred except for the project; or
(2) necessarily and directly incurred in developing the work
scope of an airport planning project.
(d) Terminal Development Costs. - (1) The Secretary may decide that
the cost of terminal development (including multi-modal terminal
development) in a nonrevenue-producing public-use area of a commercial
service airport is allowable for an airport development project at the
airport -
(A) if the sponsor certifies that the airport, on the date the
grant application is submitted to the Secretary, has -
(i) all the safety equipment required for certification of
the airport under section 44706 of this title;
(ii) all the security equipment required by regulation; and
(iii) provided for access, to the area of the airport for
passengers for boarding or exiting aircraft, to those
passengers boarding or exiting aircraft, except air carrier
aircraft;
(B) if the cost is directly related to moving passengers and
baggage in air commerce within the airport, including vehicles
for moving passengers between terminal facilities and between
terminal facilities and aircraft; and
(C) under terms necessary to protect the interests of the
Government. (2) In making a decision under paragraph (1) of this
subsection, the Secretary may approve as allowable costs the
expenses of terminal development in a revenue-producing area and
construction, reconstruction, repair, and improvement in a
nonrevenue-producing parking lot if -
(A) the airport does not have more than .05 percent of the
total annual passenger boardings in the United States; and
(B) the sponsor certifies that any needed airport
development project affecting safety, security, or capacity
will not be deferred because of the Secretary's approval.
(e) Letters of Intent. - (1) The Secretary may issue a letter of
intent to the sponsor stating an intention to obligate from future
budget authority an amount, not more than the Government's share of
allowable project costs, for an airport development project (including
costs of formulating the project) at a primary or reliever airport.
The letter shall establish a schedule under which the Secretary will
reimburse the sponsor for the Government's share of allowable project
costs, as amounts become available, if the sponsor, after the
Secretary issues the letter, carries out the project without receiving
amounts under this subchapter.
(2) Paragraph (1) of this subsection applies to a project -
(A) about which the sponsor notifies the Secretary, before
the project begins, of the sponsor's intent to carry out the
project;
(B) that will comply with all statutory and administrative
requirements that would apply to the project if it were
carried out with amounts made available under this
subchapter; and
(C) the Secretary decides will enhance system-wide airport
capacity significantly and meets the criteria of section
47115(d) of this title.
(3) A letter of intent issued under paragraph (1)
of this subsection is not an obligation of the Government under
section 1501 of title 31, and the letter is not deemed to be an
administrative commitment for financing. An obligation or
administrative commitment may be made only as amounts are
provided in authorization and appropriation laws.
(4) The total estimated amount of future Government obligations
covered by all outstanding letters of intent under paragraph (1)
of this subsection may not be more than the amount authorized to
carry out section 48103 of this title, less an amount reasonably
estimated by the Secretary to be needed for grants under section
48103 that are not covered by a letter.
(5) A letter of intent issued under paragraph (1) of this
subsection may not condition the obligation of amounts on the
imposition of a passenger facility fee.
(6) Limitation on statutory construction. - Nothing in this
section shall be construed to prohibit the obligation of
amounts pursuant to a letter of intent under this subsection in
the same fiscal year as the letter of intent is issued.
(f) Nonallowable Costs. - Except as provided in subsection (d) of this
section and section 47118(f) of this title, a cost is not an allowable
airport development project cost if it is for -
(1) constructing a public parking facility for passenger
automobiles;
(2) constructing, altering, or repairing part of an airport
building, except to the extent the building will be used for
facilities or activities directly related to the safety of
individuals at the airport;
(3) decorative landscaping; or
(4) providing or installing sculpture or art works.
Continued