Rules of Practice for Federally Assisted Airport Proceedings

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 13 and 16

[Docket No. 27783; Notice No. 94-18A]

RIN 2120-AF-43

Rules of Practice for Federally Assisted Airport Proceedings

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Proposed rule; partial withdrawal and extension of comment

period.

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SUMMARY: On June 9, 1994, the Office of the Secretary of Transportation

and the FAA published a notice of proposed rulemaking (NPRM) entitled,

``Rules of Practice for Federally Assisted Airport Proceedings.'' The

recently enacted Federal Aviation Administration Authorization Act of

1994 requires that DOT and FAA, in the handling of a complaint by an

airline that an airport fee is not reasonable, use certain procedures

that are substantially different from the procedures proposed in the

NPRM. This notice revises the proposal in the NPRM by withdrawing

proposed Subpart J, the special procedures for the handling of airport

fee complaints, and extends the comment period for commenting on the

remaining proposal. DOT will propose separate procedures to implement

the airport fee provisions of the new legislation.

DATES: The comment period for Notice 94-18 as revised by this partial

withdrawal is extended from September 15, 1994, to December 1, 1994.

ADDRESSES: Comments should be mailed, in triplicate, to: Federal

Aviation Administration, Office of Chief Counsel, Attention: Rules

Docket (AGC-10), Docket No. 27783, 800 Independence Avenue, SW.,

Washington, DC 20591. All comments must be marked: ``Docket No.

27783.'' Comments on this Notice may be examined in room 915G on

weekdays, except on Federal holidays, between 8:30 a.m. and 5 p.m.

FOR FURTHER INFORMATION CONTACT: Mr. Barry Molar, Airports Law Branch

(AGC-610), Office of the Chief Counsel, Federal Aviation

Administration, 800 Independence Avenue, SW., Washington, DC 20591,

telephone (202) 267-3473.

SUPPLEMENTARY INFORMATION: On June 9, 1994, the Office of the Secretary

of Transportation (OST) and the FAA issued two related notices on the

subject of Federal policy on airport rates and charges. A notice of

proposed policy entitled ``Proposed Policy Regarding Airport Rates and

Charges,'' (Proposed Policy) listed and explained the principles that

the OST and the FAA believe define Federal policy on the rates and

charges that an airport proprietor can charge to aeronautical users of

the airport. (59 FR 29874). Notice 94-18, a notice of proposed

rulemaking entitled ``Rules of Practice for Federally Assisted

Airports,'' proposed detailed procedures for the filing, investigation,

and adjudication of complaints against airports for alleged violation

of Federal requirements under the airport and Airway Improvement Act of

1982, as amended, and the Anti-Head Tax Act provisions of the Federal

Aviation Act (59 FR 29880). The NPRM provided a comment period

extending until August 8, 1994, and was extended until September 15,

1994 (59 FR 41192; August 10, 1994).

Subpart J of the proposed rule provided special procedures for

complaints by airlines involving the fees charged by an airport

proprietor. In brief, Subpart J provided an expedited formal

investigation that included an evidentiary investigative hearing

presided over by a designated FAA employee. The presiding officer would

issue a report of investigation to the Assistant Administrator for

Airports generally within 90 days of the complaint. Within 120 days of

the complaint, the Assistant Administrator would issue an initial

determination of whether the airport fee at issue violated Federal

requirements that fees be fair and reasonable and not unjustly

discriminatory. An initial determination would be subject to final

decision by the Administrator as a result of direct written appeal or,

in certain circumstances, of appeal from the initial decision of an FAA

hearing officer in an adjudicatory hearing requested by the respondent.

Federal Aviation Authorization Act of 1994

The FAA Authorization Act of 1994, Public Law 103-305 (1994

Authorization Act) was signed into law on August 23, 1994. Section 113

of the 1994 Authorization Act included specific provisions for the

resolution of airport-air carrier disputes concerning airport fees. To

a substantial degree, those provisions are different from and

inconsistent with the Subpart J procedures proposed earlier by the OST

and the FAA. Section 113 in its entirety reads as follows:

SEC. 113. RESOLUTION OF AIRPORT-AIR CARRIER DISPUTES CONCERNING AIRPORT

FEES.

(a) IN GENERAL.--Subchapter I of chapter 471 of subtitle VII is

amended--

(1) by redesignating section 47129 (and any references thereto)

as section 47131; and

(2) by inserting after section 47128 the following new section:

``S 47129. Resolution of airport-air carrier disputes concerning

airport fees

``(a) AUTHORITY TO REQUEST SECRETARY'S DETERMINATION.--

``(1) IN GENERAL.--The Secretary of Transportation shall issue a

determination as to whether a fee imposed upon one or more air

carriers (as defined in section 40102 of this subtitle) by the owner

or operator of an airport is reasonable if--

``(A) a written request for such determination is filed with the

Secretary by such owner or operator; or

``(B) a written complaint requesting such determination is filed

with the Secretary by an affected air carrier within 60 days after

such carrier receives written notice of the establishment or

increase of such fee.

``(2) CALCULATION OF FEE.--A fee subject to a determination of

reasonableness under this section may be calculated pursuant to

either a compensatory or residual fee methodology or any combination

thereof.

``(3) SECRETARY NOT TO SET FEE.--In determining whether a fee is

reasonable under this section, the Secretary may only determine

whether the fee is reasonable or unreasonable and shall not set the

level of the fee.

``(b) PROCEDURAL REGULATIONS.--Not later than 90 days after the

date of the enactment of this section, the Secretary shall publish

in the Federal Register final regulations, policy statements, or

guidelines establishing--

``(1) the procedures for acting upon any written request or

complaint filed under subsection (a)(1); and

``(2) the standards or guidelines that shall be used by the

Secretary in determining under this section whether an airport fee

is reasonable.

``(c) DECISIONS BY SECRETARY.--The final regulations, policy

statements, or guidelines required in subsection (b) shall provide

the following:

``(1) Not more than 120 days after an air carrier files with the

Secretary a written complaint relating to an airport fee, the

Secretary shall issue a final order determining whether such fee is

reasonable.

``(2) Within 30 days after such complaint is filed with the

Secretary, the Secretary shall dismiss the complaint if no

significant dispute exists or shall assign the matter to an

administrative law judge; and thereafter the matter shall be handled

in accordance with part 302 of title 14, Code of Federal

Regulations, or as modified by the Secretary to ensure an orderly

disposition of the matter within the 120-day period and any

specifically applicable provisions of this section.

``(3) The administrative law judge shall issue a recommended

decision within 60 days after the complaint is assigned or within

such shorter period as the Secretary may specify.

``(4) If the Secretary, upon the expiration of 120 days after

the filing of the complaint, has not issued a final order, the

decision of the administrative law judge shall be deemed to be the

final order of the Secretary.

``(5) Any party to the dispute may seek review of a final order

of the Secretary under this subsection in the Circuit Court of

Appeals for the District of Columbia Circuit or the court of appeals

in the circuit where the airport which gives rise to the written

complaint is located.

``(6) Any findings of fact in a final order of the Secretary

under this subsection, if supported by substantial evidence, shall

be conclusive if challenged in a court pursuant to this subsection.

No objection to such a final order shall be considered by the court

unless objection was urged before an administrative law judge or the

Secretary at a proceeding under this subsection or, if not so urged,

unless there were reasonable grounds for failure to do so.

``(d) PAYMENT UNDER PROTEST; GUARANTEE OF AIR CARRIER ACCESS.--

``(1) PAYMENT UNDER PROTEST.--

``(A) IN GENERAL.--Any fee increase or newly established fee

which is the subject of a complaint that is not dismissed by the

Secretary shall be paid by the complainant air carrier to the

airport under protest.

``(B) REFERRAL OR CREDIT.--Any amounts paid under this

subsection by a complainant air carrier to the airport under protest

shall be subject to refund or credit to the air carrier in

accordance with directions in the final order of the Secretary

within 30 days of such order.

``(C) ASSURANCE OF TIMELY REPAYMENT.--In order to assure the

timely repayment, with interest, of amounts in dispute determined

not to be reasonable by the Secretary, the airport shall obtain a

letter of credit, or surety bond, or other suitable credit facility,

equal to the amount in dispute that is due during the 120-day period

established by this section, plus interest, unless the airport and

the complainant air carrier agree otherwise.

``(D) DEADLINE.--The letter of credit, or surety bond, or other

suitable credit facility shall be provided to the Secretary within

20 days of the filing of the complaint and shall remain in effect

for 30 days after the earlier of 120 days or the issuance of a

timely final order by the Secretary determining whether such fee is

reasonable.

``(2) GUARANTEE OF AIR CARRIER ACCESS.--Contingent upon an air

carrier's compliance with the requirements of paragraph (1) and

pending the issuance of a final order by the Secretary determining

the reasonableness of a fee that is the subject of a complaint filed

under subsection (a)(1)(B), an owner or operator of an airport may

not deny an air carrier currently providing air service at the

airport reasonable access to airport facilities or service, or

otherwise interfere with an air carrier's prices, routes, or

services, as a means of enforcing the fee.

``(e) APPLICABILITY.--This section does not apply to--

``(1) a fee imposed pursuant to a written agreement with air

carriers using the facilities of an airport;

``(2) a fee imposed pursuant to a financing agreement or

covenant entered into prior to the date of the enactment of this

section; or

``(3) any other existing fee not in dispute as of such date of

enactment.

``(f) EFFECT ON EXISTING AGREEMENTS.--Nothing in this section

shall adversely affect--

``(1) the rights of any party under any existing written

agreement between an air carrier and the owner or operator of an

airport; or

``(2) the ability of an airport to meet its obligations under a

financing agreement, or covenant, that is in force as of the date of

the enactment of this section.

``(g) DEFINITIONS.--In this section, the term `fee' means any

rate, rental charge, landing fee, or other service charge for the

use of airport facilities.''.

(b) CONFORMING AMENDMENT.--The analysis to such chapter is

amended--

(1) by striking ``47129'' and inserting ``37131''; and

(2) by inserting after the item relating to section 47128 the

following:

``47129. Resolution of airport-air carrier disputes concerning

airport fees.''.

Rulemaking To Implement Section 113

The OST and the FAA are in the process of reviewing the provisions

of Section 113. Because the rules previously proposed are in many

respects not consistent with Section 113, the OST and the FAA are

considering new regulations to implement the new law, and currently

intend to publish a proposed rule for public comment as soon as the

review is complete. Notwithstanding the 90-day period prescribed in the

1994 Authorization Act to complete rulemaking, the OST and the FAA will

provide an opportunity to comment on the proposal, although commenters

can expect a relatively brief period for public comment in view of the

90-day period for rulemaking provided in the legislation. We anticipate

publication of proposed regulations by October 15, 1994 with a comment

period of approximately 15 days.

Related Actions

By a separate notice being published simultaneously in the Federal

Register, OST is extending the comment period on the Proposed Policy

until October 15, 1994 and announcing our intention to issue a

supplemental notice. We anticipate that the supplemental notice will be

published not later than October 1, 1994.

Amendment of Notice 94-18

In consideration of the differences between the rules proposed in

the NPRM and the provisions of Section 113 of the 1994 Authorization

Act, the OST and the FAA believe that there is no further reason to

seek public comment on the special provisions in the NPRM for air

carrier complaints related to whether airport fees are reasonable. At

the same time, the remaining procedures proposed in the NPRM, which

would apply to the various other kinds of complaints filed against

airports relating to Federal requirements, are not affected by the 1994

Authorization Act. Accordingly, the OST and the FAA are withdrawing

Subpart J of the rule proposed in the NPRM, and are continuing the

proposal of all remaining provisions of the NPRM. In order to permit

additional time for commenters to consider the proposal as revised by

the withdrawal of Subpart J, the OST and the FAA are extending the

comment period. Comments on the proposed rule are now due on or before

December 1, 1994.

Regulatory Evaluation Summary

The NPRM proposed the adoption of a new procedure for the filing,

investigation, and adjudication of complaints against airports for

violation of certain statutes administered by the FAA. The new

procedures would be substituted for existing procedures under 14 CFR

part 13. With the exception of the deletion of the procedure for

resolution of complaints by airlines regarding airport fees, the rule

proposed in the NPRM has not changed. Accordingly, as stated in the

NPRM, the expected economic impact of this proposed amendment would be

so minimal that a full Regulatory Evaluation is not warranted.

Conclusion

For the reasons discussed in the preamble, the FAA has determined

that this change to the proposed regulation is not economically

significant under Executive Order 12866. However, due to the public

interest in this rulemaking, this proposed rule is considered

significant under the Executive Order. The FAA certifies that this

proposal, if adopted, will not have a significant economic impact,

positive or negative, on a substantial number of small entities under

the criteria of the Regulatory Flexibility Act. This proposal is

considered significant under DOT Regulatory Policies and Procedures (44

FR 11034; February 26, 1978).

List of Subjects

14 CFR Part 13

Enforcement procedures, Investigations, Penalties.

14 CFR Part 16

Enforcement procedures, Investigations.

Partial Withdrawal of the Proposed Amendments

Accordingly, the Federal Aviation Administration proposes to amend

part 13 and adopt new part 16 of the Federal Aviation Regulations (14

CFR parts 13 and 16) as proposed in Notice 94-18, except that proposed

Subpart J of the proposed rule, entitled ``Subpart J--Alternate

Procedure for Certain Complaints Concerning Airport Rates and

Charges,'' and related references to Subpart J in the index of the

proposed rule, are hereby withdrawn.

Issued in Washington, DC, on September 12, 1994.

Cynthia Rich,

Assistant Administrator for Airports.

[FR Doc. 94-23022 Filed 9-13-94; 3:34 pm]

BILLING CODE 4910-13-M