Rules of Practice for Proceedings Concerning Airport Fees

DEPARTMENT OF TRANSPORTATION

14 CFR Part 302

Docket No. 49830 Notice No. 94-19

RIN 2105-AC18

Rules of Practice for Proceedings Concerning Airport Fees

AGENCY: Department of Transportation; Office of the Secretary.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: This notice proposes to establish specific procedural rules

under which the Department of Transportation will handle complaints by

air carriers and foreign air carriers for a determination of the

reasonableness of a fee increase or newly established fee imposed upon

the carrier by the owner or operator of an airport. This notice also

proposes rules that would apply to requests by the owner or operator of

an airport for such a determination. The rulemaking is intended to

respond to the mandate in the recently enacted Federal Aviation

Administration Authorization Act of 1994 requiring the Department to

issue regulations establishing procedures for acting upon such

complaints by air carriers and requests by airport owners and

operators.

DATES: Comments on the proposed rule are due November 4, 1994. Because

the statute requires the Department to issue a final rule by November

21, 1994, it will be difficult or impossible to consider late-filed

comments or to entertain requests for an extension of the comment

period.

ADDRESSES: Comments should be sent to the Docket Clerk, Docket No.

49830, Department of Transportation, 400 7th Street, SW.,Room 4107,

Washington, DC 20590. To facilitated consideration of the comments, we

ask commenters to file twelve copies of each comment. We also encourage

commenters who wish to do so to submit comments to the Department

through the Internet; our Internet address is dot_

[email protected].\1\ Note, however, that at this time the

Department considers only the paper copies filed with the Docket Clerk

to be the official comments. Comments will be available for inspection

at this address from 9:00 a.m. to 5:00 p.m.. Monday through Friday.

Commenters who wish the Department to acknowledge the receipt of their

comments should include a stamped, self-addressed postcard with their

comments. The Docket Clerk will date-stamp the postcard and mail it

back to the commenter.

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\1\Our x.400 e-mail address is G=DOT/S=dockets/QUI=qmail/O=hq/

p=gov+dot/a=attmail/c=us.

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FOR FURTHER INFORMATION CONTACT: Robert Klothe, Office of Regulation

and Enforcement, Office of the General Counsel, United States

Department of Transportation, 400 Seventh Street, SW., Washington, DC

20591, telephone (202) 366-9307.

SUPPLEMENTARY INFORMATION:

Procedural Background

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

(OST) and the Federal Aviation Administration 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

proposed Federal policy on the rates and charges that an airport

proprietor can charge to aeronautical users of the airport. (59 FR

29874); a supplemental notice concerning the proposed policy was issued

on October 12, 1994 (59 FR 51836). The FAA also issued a notice of

proposed rulemaking entitled ``Rules of Practice for Federally Assisted

Airports'' setting forth 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); Subpart J of the proposed rule provided

special procedures for the expedited review of complaints by airlines

involving the fees charged by an airport proprietor.

In brief, the special procedures in the FAA proposal would have

provided an expedited formal investigation that included an evidentiary

investigative hearing presided over by a designated FAA employee. The

presiding officer would have issued a report of investigation to the

FAA's Assistant Administrator for Airports, generally within 90 days of

the complaint. Within 120 days of the complaint, the Assistant

Administrator would have been required to 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 have been 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.

The Federal Aviation Authorization Act of 1994

The FAA Authorization Act of 1994 was signed into law on August 23,

1994. Section 113 of the FAA Authorization Act included specific

provisions for the resolution of airport-air carrier disputes

concerning airport fees. 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) DEFINITION.--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 ``47131''; and

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

following:

47129. Resolution of airport-air carrier disputes concerning

airport fees.

Because of the substantial differences between the procedures

contemplated by the FAA Authorization Act and those proposed by the

FAA, the FAA withdrew its NPRM on September 16, 1994, insofar as it

applied to the resolution of the reasonableness of airport fees charged

to air carriers (59 FR 47568). However, the remaining procedures

proposed in the FAA NPRM, which would apply to the various other kinds

of complaints filed against airports relating to Federal requirements,

are not affected by the FAA Authorization Act. In order to permit

additional time for commenters to consider the proposal as revised, OST

and the FAA extended the comment period to December 1, 1994. In the

same notice, the FAA noted that OST and the FAA were considering new

regulations to implement the new law, and intended to publish a

proposed rule for public comment as soon as practicable. We are today

publishing that new proposed rule.

The statutory mandates to issue these procedural regulations and to

issue any final orders in cases brought under the new law are directed

toward the Secretary of Transportation. For that reason, the Office of

the Secretary is issuing this notice. Because of the short time

available to draft the proposed rule, however, the Secretary has not

yet determined whether to delegate this function to another official of

the Department, including an Assistant Secretary or the FAA

Administrator. That determination will be made by the time this

rulemaking is completed. Regardless of the deciding official, the final

order in a proceeding brought under this Subpart will constitute a

final order of the Secretary.

Summary of Regulatory Approach

Section 113 of the FAA Authorization Act prescribes a clear basic

procedure for the hearing of an air carrier complaint and issuance of a

final agency determination as to whether an airport fee is fair and

reasonable. When applied to a complaint by a single carrier, the

procedure does not present any apparent conflicts or difficulties.

However, the fees charged air carriers at airports generally apply to a

number of carriers, and the Department believes multiple complaints

with respect to a particular airport fee would be more likely than a

single complaint. The procedures adopted, therefore, must provide for

the orderly disposition of all the complaints concerning a particular

fee increase.

Certain objectives of the required procedure are clear and need to

be considered in the development of implementing regulations for

Section 113. First, the procedure adopted must produce a final

determination about the reasonableness of the fee within 120 days after

a complaint is filed. Second, the section guarantees a hearing before

an administrative law judge of every air carrier complaint that the

Secretary finds to be a significant dispute. Because the procedure

requires a hearing in accordance with 14 CFR Part 302 before an

administrative law judge, the provisions of the Administrative

Procedure Act apply to the hearing, indicating a Congressional intent

that the hearing and decisionmaking involve the use of oral evidentiary

procedures, to the extent consistent with the expedited time frame.

Section 113 specifically provides that the Secretary may modify

existing Part 302 procedures ``to ensure an orderly disposition of the

matter'' within the 120-day period. Third, through a surety bond or

similar security instrument that the airport operator must obtain,

Section 113 is intended to assure that funds are available to refund or

credit disputed fees that are paid by an air carrier and subsequently

found to be unreasonable.

With these objectives in mind, the Department has considered three

basic approaches in developing this proposal to implement the statutory

mandate. These are: (1) Consider the filing of each complaint as a

separate, unrelated, event; (2) Consolidate and consider all complaints

after the end of the statutorily-imposed 60-day limit on filing; and

(3) Consolidate all other complaints as soon as the first carrier files

a complaint. Each of these approaches has both advantages and

disadvantages.

Of the three approaches, number (1) is perhaps the simplest to

describe and understand. Under this approach, the Department would

decide each complaint separately, as it arises. When there are multiple

complaints with respect to the fees at a particular airport, each

complaint would be evaluated to determine whether it described a

significant dispute, and, if so, it would be assigned for hearing

before an administrative law judge.

If numerous carriers file individual complaints, however, it is

apparent that this procedure would rapidly become infeasible.

Individual handling of separate complaints would result in the

assignment of complaints about the same airport fee to different

administrative law judges; separate and possibly inconsistent decisions

by different judges would unfairly burden the airport proprietor and

the complainants; and, with each complaint being set for a separate

hearing, the Department's resources could be quickly overwhelmed,

frustrating the statute's purpose of achieving a final determination by

the Secretary within 120 days.

Moreover, some complainants might find themselves seriously

disadvantaged. An example is a case in which the first complaint is

filed immediately after notice of the fee, and the second complaint is

filed 40 days later. As required by the Authorization Act in new

section 49 U.S.C. 47129(c)(2), the Secretary would issue an order on

the first complaint, defining issues and assigning the case for

hearing, within 30 days, i.e., before the second complaint is filed.

The second complaint may raise new issues not addressed by the first,

but there would be insufficient time for amendment of the order with

the 120-day period already running on the first. In addition, while the

Authorization Act requires an airport owner or operator to obtain a

surety bond within 20 days after a complaint is filed, it makes no

provision for requiring extension of that bond beyond 120 days. As a

result, the bond is likely to expire before the Secretary issues a

determination on the later-filing carrier's complaint. (While in theory

it might be possible for an airport owner or operator to obtain a

separate bond for each complaint, it does not appear that the statute

contemplates such a requirement. Instead, it speaks of a bond to cover

``the amount in dispute that is due during the 120-day period''

following the initial complaint. )

The first complaint would also likely proceed to final

determination well before the second. Since the Secretary is compelled

to issue a determination of the reasonableness of the airport fee

within 120 days, the second complainant might be bound by the decision

in the first case. In this connection, it should be noted that the FAA

Authorization Act repeatedly refers to ``a determination'' by the

Secretary as to ``whether such fee is reasonable.'' That is, the

statutory language focuses on a single determination about

reasonableness. Arguably, therefore, if the Secretary finds in the

first case that the fee ``is reasonable,'' that finding could bind all

other complaints.

Approach (2) addresses many of the above concerns. Under this

approach, the Department would require all complaints to be filed on

the 60th day after an airport has given carriers written notice of a

new or increased fee, that is, at the end of the period specified by

the FAA Authorization Act. At that point, the Department would

establish a single proceeding, consisting of all complaints that have

been filed by the carriers.

Since all complaints would be filed at the same time, they could

readily be considered in a consolidated proceeding; any that present

significant disputes would be assigned for hearing before a single

administrative law judge. Although there might be several parties and

more than one issue to be decided, this approach would still be far

more efficient for both the parties and the Department. The surety bond

would cover the entire period of the proceeding, and would thus be

available to ensure repayment of an unreasonable fee paid by any

complaining carrier. There would be no concern that a late-filing

carrier would be disadvantaged in comparison to a carrier that files

early, because all complaints would be filed simultaneously at the end

of the 60-day period. (Alternatively, the Department could accept an

earlier-filed complaint, but hold it in abeyance until the 60-day

period had elapsed.) The Department would then proceed to issue a final

determination within 120 days after the end of the complaint-filing

period.

Although this would provide a simpler and more manageable approach

to resolving carrier complaints, we have tentatively rejected it as

potentially not in keeping with the intent of the FAA Authorization

Act. As noted above, one clear statutory purpose was to provide that

complaints would be heard and decided within 120 days after they are

filed. But by specifying that all complaints are to be filed at the end

of the 60-day period, a carrier that is ready to file at an earlier

point would not receive a determination within 120 days of that earlier

date. In our view, this may not be in accord with the language of the

statute.

Approach (3), which is embodied in this Notice of Proposed

Rulemaking, also addresses many of the difficulties presented by

Approach (1). As discussed below, we recognize that this approach too

presents some difficulties, and it may not fully satisfy everyone.

However, given the statutory mandate, we believe it represents the best

solution to the problems described above.

As in Approach (1), the Department would begin to act on a

complaint as soon as it is filed, which may be any time within the 60-

day statutory filing limit. As provided by the statute, the Secretary

would issue a final determination on the reasonableness of the

challenged fee within 120 days after the first such complaint is filed.

However, in order to ensure that all other carriers have an opportunity

to present their own arguments during the proceeding, the complaining

carrier would be required to serve a copy of the complaint on all other

carriers serving the airport, as well as on the airport owner or

operator. Special service procedures, described later, would be

required. Once the first complaint (which may be a joint complaint by

multiple carriers) is filed and served, any other carrier would then

have seven calendar days to file its own complaint with respect to the

same airport fee or fees. Participation in the proceeding following the

initiating complaint would thus be through an answer to the complaint

or the filing of a separate complaint and participation in the hearing

before the administrative law judge.

The advantages of this approach are essentially the same as those

of Approach (2). It permits a consolidated hearing in which to evaluate

the fee, and a simultaneous decision on all complaints. It gives effect

to the statutory intent to require airports to provide surety for the

repayment of improperly collected fees. And it avoids an unmanageable

strain on the Department's resources, thus making possible the orderly

disposition of the issues contemplated by the statute. In addition, it

accomplishes these goals without compromising the additional goal of

resolving disputes within 120 days. All complaints, including those

filed after the initiating complaint, could be decided within 120 days

of the filing of the initial complaint.

The main disadvantage of Approach (3), of course, is that some

carriers might be forced to file their complaints earlier than they

would otherwise choose. We are particularly interested in having

commenters address whether or not this would be a burdensome

restriction on complainants. Our concern is that an early filing by

even one complainant could deprive other carriers of the opportunity to

use more time to prepare and coordinate well-supported complaints. (On

the other hand, we are aware that fee disputes between airports and

airlines can often be anticipated, and therefore it might be that

carriers can be expected to coordinate with each other before any

complaint is filed.)

In any event, having complaints that are better prepared and

coordinated would assist the Department in rendering a final decision

addressing all possible issues relating to reasonableness within the

statutory time-frame. The Department therefore solicits comments on

possible filing requirements that would help ensure that any complaint

filed under this subpart is well-documented and fully coordinated. One

such possibility might be to require the first carrier to file a

complaint about the fees at a particular airport to give other carriers

at least seven days advance notice of its intention to file the

complaint. Of course, this approach would itself present at least one

problem, namely that carriers would be unable to file a complaint under

this subpart for the first seven days following imposition of the fee.

There may also be potential difficulty in ascertaining compliance with

an advance notice requirement and in ensuring that it does not unduly

interfere with the opportunity to file a complaint near the end of the

60-day statutory limit. Commenters are invited to address these issues,

and, if they support an approach along these lines, to recommend any

ways to avoid the potential problems.

For the reasons stated above, and despite the drawback described,

we have tentatively concluded that Approach (3) is less objectionable

than either handling complaints individually or allowing some early-

filed complaints to remain unresolved for more than 120 days. We

believe the procedure proposed in this notice would meet substantially

all of the objectives of Section 113. Nevertheless, we are interested

both in commenters' views about the other two approaches described and

in any suggestions for a solution that we have not yet considered. If a

plan is presented that is superior to our proposal, it may be

incorporated into the final rule in this proceeding.

Section-by-Section Analysis

Section 302.601 Applicability

This section describes the kinds of proceedings for which the

Department would employ the expedited procedures contained in this

Subpart. As required by the 1994 FAA Authorization Act, complaints by

air carriers would be reviewed under these procedural rules. In

addition, paragraph (a) of proposed Section 302.601 states that a

comparable complaint brought by a foreign air carrier would be treated

in the same manner. This Subpart also contains the procedural rules for

reviewing an airport owner or operator's request for a determination of

the reasonableness of an airport fee.

The Authorization Act requires the Secretary to determine the

reasonableness of an airport fee after a complaint is filed by ``one or

more air carriers (as defined in section 40102 of this subtitle).''

Since the definition of ``air carrier'' in 49 U.S.C. Section 40102 is

limited to ``a citizen of the United States * * *'' this rule could be

limited to complaints by U.S. airlines. However, as noted, the

Department has tentatively concluded that foreign air carriers should

have access to the same procedures. The economic and other issues that

enter into a determination of reasonableness of an airport fee are the

same, irrespective of whether the complainant is a domestic or foreign

carrier. Accordingly, if both U.S. and foreign air carriers believe an

airport fee increase is unreasonable, they both may be expected to

dispute it. The interests of the carriers, the airport, and the

Department are likely to be best served if the reasonableness of the

fee can be determined in a single proceeding. A potential problem,

however, arises from the fact that the procedures of proposed Subpart F

are highly abbreviated; by statute, carrier complaints are barred

unless they are brought within 60 days of the airport's written notice

of the new fee or fee increase. This requirement may pose special

problems for foreign air carriers. Accordingly, we invite comments from

foreign air carriers as to whether to include their complaints within

this Subpart.

Section 302.601(a) states that Subpart F also applies to a request

by an airport owner or operator for a determination of the

reasonableness of a fee it has imposed on one or more air carriers. The

FAA Authorization Act requires the Department to make such a

determination when requested in writing by an airport. However, the

Authorization Act does not state any time limits for the Department's

action on the request.

This Subpart proposes procedures for handling airport requests for

determination that are much the same as those for air carrier

complaints. Most importantly, the Secretary's determination that a fee

is reasonable or unreasonable will be made within 120 days. However,

there are a number of differences that derive from the different

statutory treatment of air carrier complaints and airport requests for

determination. These will be discussed in more detail in connection

with the sections where they apply.

The Authorization Act requires the Secretary to issue a

determination about the reasonableness of a fee that has been

``imposed'' on carriers. Section 601(a) provides that a fee would be

considered to have been imposed once the airport owner or operator had

taken all steps necessary under its procedures to establish the fee.

Airport owners and operators have different internal procedures, and so

the steps necessary will vary from airport to airport. However, as the

Authorization Act indicates in new Section 47129(a)(1)(B), airports

must always give carriers written notice when imposing a new or

increased fee.

Because Subpart F would be limited to fees actually imposed, the

Department does not propose to consider requests for advisory opinions

about airport fees that are still under consideration by the airport

owner or operator. In general, fee changes should be based on

discussion between airports and carriers, as they almost always are

today. The procedures contained in this Subpart are intended to resolve

significant disputes when negotiations have failed.

On the other hand, paragraph (a) points out that a fee may be

considered to have been imposed even if it is not yet being paid by the

carriers. For example, if an airport owner or operator provides written

notice on January 1 that a fee will increase on February 1, an air

carrier may immediately file a complaint under this Subpart. There may

even be situations in which a carrier would be forced to bring any

complaint before it had to pay the fee. The Authorization Act provides

for carrier complaints only for 60 days after the carrier receives the

written notice. If an airport provides more than 60 days' notice of a

fee, the filing period would expire before the fee is first collected.

Paragraph (b) of Sec. 302.601 sets out the three limitations on

applicability contained in the Authorization Act. The Secretary would

not entertain complaints about a fee imposed pursuant to a written

agreement with carriers using the facilities of an airport; a fee

imposed pursuant to a financing agreement or covenant entered into

prior to August 23, 1994, or any other existing fee not in dispute as

of August 23, 1994. August 23, 1994 is the date the Authorization Act

was enacted.

Section 302.603 Complaint by an Air Carrier or Foreign Air Carrier;

Request for Determination by an Airport Owner or Operator

This section describes the requirements for carrier complaints and

airport requests for determination. Paragraph (a) states that both

complaints and requests would be submitted in accordance with the usual

technical requirements of proceedings under 14 CFR Part 302. (14 CFR

Sec. 302.3 specifies such matters as the number of copies to be filed,

the size of pages that may be used, and the filing address.)

The statutory language in new 49 U.S.C. section 47129(a) provides

for a (single) determination of the reasonableness of an airport's

disputed fees. If there were a multiplicity of separate proceedings

with respect to the same airport fee or fees, it is possible that each

case would present only part of the information that would be relevant

and necessary to the Secretary's determination. At worst, multiple

cases could lead to inconsistent decisions. Moreover, both airports and

carriers would be unnecessarily burdened if they had to litigate more

than one case about a particular airport's fees. The Secretary must act

rapidly in order to resolve any issues in a carrier complaint within

the 120-day deadline imposed by the FAA Authorization Act.

Therefore, to ensure an orderly disposition of carrier complaints,

proposed Sec. 302.603 would provide procedures to ensure that the

Secretary can consolidate all related proceedings. Once a carrier

submits a complaint under this Subpart, other air carriers or foreign

air carriers wishing to file their own complaints would have seven days

to do so. An airport owner or operator's request for determination

would also have to be submitted no later than seven days after a

carrier complaint. Of course, as provided by the Authorization Act, all

complaints would have to be submitted within 60 days of the written

notice, even if this is less than seven days after the initial

complaint. The Department proposes to apply the same 60-day limit to

airport requests. The statute did not state any specific limit on the

timing of airport requests, but fee increases may not be contested

under this Subpart after the 60-day limit. Any decision on an airport

request filed after that date would amount to a legally moot advisory

opinion.

Section 302.605 Contents of Complaint or Request for Determination

In order to ensure that all interested parties have an opportunity

to review and respond to complaints and requests for determination,

Sec. 302.605 proposes two special requirements on their filing and

service. First, the complaint or request must contain the filing

party's entire position and supporting evidence. The complaint or

request would have to be accompanied by a brief explaining the party's

arguments, and any supporting exhibits and testimony. In order to

clarify the nature of the dispute and to verify the timeliness of the

filing, a copy of the airport owner or operator's written notice to the

carrier would also be required.

As proposed, a complaining carrier would be required to serve the

airport owner or operator and all other air carriers and foreign air

carriers serving the airport with a copy of the complaint, brief, and

all testimony and supporting exhibits. An airport owner or operator

requesting a determination would serve all carriers at the airport. We

recognize that the requirement to serve all carriers might sometimes be

burdensome. Moreover, many airports have an established airline

committee responsible for negotiating airport fees and charges with the

airport owner or operator. These committees have various titles,

including Airline Properties Committee, Airport Affairs Committee,

Airline Negotiating Committee, and Airline Top Committee. Section

302.605 proposes to authorize service of the complaint or request on

all members of the airline committee in lieu of all carriers serving

the airport. We invite commenters to address whether service on members

of these committees would be adequate to ensure that all interested

carriers have an opportunity to review complaints and requests for

determination; we also invite commenters to recommend any alternative

service requirements.

In addition, because proposed Sec. 302.603 would require any other

complaints or request for determination to be submitted within seven

days of the first complaint, ordinary service by first class mail would

not be permitted. The filing party would be required to accomplish

service by hand, by electronic transmission (such as facsimile or

electronic mail) or by overnight express delivery. The filing carrier

or airport would also have to certify that the parties served had

actually received the documents by the time they are filed or would

receive them no later than the day of the filing. The Department

recognizes that these additional service requirements might pose a

burden on some parties, but we think they are necessary to make a

proper consolidation of all complaints, and thus to an orderly

disposition of the fee or fees in dispute.

Finally, the filing carrier or airport would also be required to

certify that it had previously attempted to resolve the fee dispute

directly. We believe this requirement is necessary to facilitate our

statutorily-required decision about whether a significant dispute

exists. If attempts at direct resolution have failed, that would be

some indication, athough not necessarily proof, that there is a

signifiant dispute. We do not, however, intend to evaluate the amount

or adequacy of any efforts at a direct resolution of the dispute. We

ask only that an attempt be made before the complaint or request is

submitted.

Section 302.607 Answers to a Complaint or Request for Determination

When a complaint is filed under this Subpart, Sec. 302.607 would

provide that the airport owner or operator and any other air carrier or

foreign air carrier serving the airport may file an answer to the

complaint. In the case of an airport request for determination, any

carrier serving the airport would be authorized to file an answer.

Procedurally, answers would be filed in the same manner as described

above for complaints. The answer would consist of a single submission

including all the answering party's responsive arguments, testimony and

exhibits. The answering party would be required to serve the carrier

filing the complaint or airport owner or operator requesting the

determination by hand, by electronic transmission, or by overnight

express delivery. The answering party would have to certify that the

answer and accompanying documents would be received no later than the

day the answer is due. Section 302.607 does not propose to require

answers to be served on other carriers.

Under the proposal, answers would be due seven calendar days after

the complaint or request for determination is filed. In the case of

carrier complaints, this is the same day on which other carriers would

be required to file any other complaint with respect to the same

airport fee or fees. Therefore, upon receiving a copy of a complaint

filed by another carrier, an air carrier or foreign air carrier could

file its own complaint or an answer to the first complaint. The

proposed rules would not prohibit a carrier from filing both an answer

and a complaint, but the Department encourages all parties to avoid

filing unnecessarily duplicative documents. It should be noted that any

additional complaints filed are also subject to an answer under

Sec. 302.607; any such answer would be due seven calendar days after

the complaint, or a total of 14 days after the initial complaint.

Section 302.609 Replies

Only the carrier originating a complaint or the airport originating

a request for determination would be authorized to file a reply. The

complaining air carrier or foreign air carrier could reply to an answer

to the complaint, and the airport owner or operator could reply to an

answer to the request for determination. In both cases, the reply would

be due two calendar days after answers are filed. Replies by any other

party would generally not be accepted, nor would further responsive

pleadings. Such documents are governed by the requirements of Subpart A

of 14 CFR Part 302. Because of the short deadline proposed for filing

replies and the fact that the Department does not anticipate accepting

further pleadings, proposed Sec. 302.609 does not contain the special

service requirements (hand, electronic, or overnight delivery, with

service completed by the day of filing) proposed for initial pleadings

and answers. Ordinary service as provided by 14 CFR Sec. 302.8

(including service by mail) would still be required. Commenters are

invited to address whether there is a need for additional service

requirements for replies.

Section 302.611 Review of Complaints

This section provides for a preliminary evaluation by the Secretary

to determine whether a carrier's complaint is subject to review under

Subpart F. Unless a significant dispute exists, the FAA Authorization

Act requires the Secretary to dismiss any complaint within 30 days

after it is filed; when there is a significant dispute, the matter must

be referred to an administrative law judge within that time.

Accordingly, paragraph (a) of Sec. 302.611 proposes that the

Secretary will determine whether a significant dispute exists and

whether the complaint meets the procedural requirements of Subpart F

within 30 days after the complaint is filed. If the Secretary

determines that there is no significant dispute, the order dismissing

the complaint would include an explanation of the reasons for that

determination. If the Secretary determines that the complaint does not

meet the procedural requirements of this Subpart (for example, the

complaint was not properly served on the airport owner or operator),

the Secretary would dismiss the complaint without prejudice. In this

case, the order would explain any conditions necessary for the

complaint to be re-filed.

Assuming, however, that the complaint raises a significant dispute

and meets the procedural requirements, the Secretary would issue an

instituting order consolidating all complaints and any request for

determination, and assigning the consolidated case to an administrative

law judge. The instituting order would describe the issues to be

considered and the parties that will participate in the hearing. For

example, the Secretary could determine that some of the matters raised

in a complaint do not raise a significant dispute, in which case the

instituting order would limit the scope of the proceeding. The

instituting order could similarly place limits on the parties, such as

by excluding a complainant that is not an air carrier or foreign air

carrier. The order would state when the administrative law judge would

be required to issue a recommended decision (60 days after the

instituting order, unless the order specifies a shorter period).

Section 302.613 Review of Requests for Determination

Proposed Sec. 302.613 provides that an airport owner or operator's

request for determination of the reasonableness of an airport fee would

generally be handled in the same manner as a carrier complaint. Within

30 days after the airport's request is filed, the Secretary would

determine whether there is a significant dispute and whether the

procedural requirements of the Subpart have been met. Properly

submitted requests raising a significant dispute would be assigned to

an administrative law judge, with appropriate guidelines on the scope

of the issues and the parties to participate. If there is a procedural

deficiency, the request would be dismissed without prejudice, and the

order of dismissal will set forth the terms and conditions under which

a revised request could be filed.

However, the FAA Authorization Act does not appear to permit the

Secretary to dismiss an airport owner or operator's requests for

determination on the basis that it does not raise a significant issue.

As noted above in Sec. 302.613, when an air carrier files a complaint,

the statute states that ``the Secretary shall dismiss the complaint if

no significant dispute exists.'' With respect to a request by an

airport owner or operator, however, the statute provides only that the

Secretary ``shall issue a determination as to whether a fee imposed

upon one or more air carriers * * * is reasonable * * * a written

request for such determination is filed with the Secretary by such

owner or operator.''

Accordingly, section 302.613 does not propose to dismiss airport

requests that do not present a significant dispute. Instead, the

Secretary would generally issue a final order determining whether the

fee is reasonable. This would sometimes occur without additional

procedures, but the Secretary would retain discretion to determine in a

particular case that additional procedures are necessary.

Section 302.615 Decision by Administrative Law Judge

This proposed section merely restates the requirement of the FAA

Authorization Act that the administrative law judge must issue a

recommended decision within 60 days after the case is assigned by the

Secretary for hearing. As permitted by the statute, this section also

states that the Secretary may specify a shorter period for the

recommended decision.

Section 302.617 Petitions for Discretionary Review

Any party to the proceeding could file a petition for discretionary

review of the administrative law judge's decision within five days

after the recommended decision is served. The petitioner would serve

all parties. As with other documents under this Subpart, service would

be by hand, electronic transmission or overnight express delivery, and

the petition would have to certify that all parties had received the

petition or would receive it by the date of filing. Petitions would be

limited to 20 pages in length, as provided in 14 CFR 302.28(a).

Any other party could then submit an answer, which would be due

four days after the petition is filed. Under 14 CFR Sec. 302.28(b),

answers to petitions would be limited to 15 pages.

Section 302.619 Completion of Proceeding

This section sets out the completion dates for proceedings

conducted under this Subpart.

Paragraph (a) states that the Secretary will issue a final order

determining whether the disputed fee is reasonable within 120 days

after the filing of a complaint by an air carrier or foreign air

carrier, unless the complaint is dismissed as provided in proposed

Sec. 302.611. This is the time limit for resolving air carrier

complaints set forth in the FAA Authorization Act.

Paragraphs (b) and (c) address proceedings involving requests for

determination by airport owners and operators. Although the FAA

Authorization Act does not impose a time limit on such requests,

Sec. 302.619 proposes a 120-day limit on these proceedings as well.

When an airport has filed a request for determination but there are no

carrier complaints with respect to the same fee, paragraph (b) states

that the Secretary would issue a final order within 120 days of the

request. However, as noted in Section 302.613, the Department proposes

to consolidate proceedings concerning the same airport fee or fees that

are the subject of both a carrier complaint and an airport request for

determination. In this situation, paragraph (c) provides that the

timetable for resolving carrier complaints would control. Thus, if a

carrier complaint is filed before the airport request, the Department

would issue a final order in the consolidated proceeding in less than

120 days after the airport's request for determination. If one or more

carriers file a complaint after the airport request, the 120-day period

would begin on the day the first carrier complaint is filed.

There are two reasons for proposing to let the filing of a carrier

complaint determine the time for issuing a final order. Most important,

the Authorization Act mandates a 120-day resolution with respect to

carrier complaints. An airport's subsequent request for determination

cannot extend this period. Moreover, even when the airport's request is

the first document filed in the proceeding, a complaint by an air

carrier may raise new and significant issues. It is likely that the

resolution of these issues will take most or all of the time permitted

by the Authorization Act.

Section 302.621 Final Order

Section 302.621 would provide for the issuance of a final order by

the Secretary when a proceeding brought under this Subpart, whether by

complaint or request for determination, is ripe for decision. The

Secretary would issue a written order containing his or her

determination as to whether or not the disputed airport fee is

reasonable.

Section 302.621 proposes that the order would set out the reasoning

underlying the Secretary's determination, and, if a fee is determined

to be unreasonable, the order would provide for a refund or credit of

the unreasonable charge. The exact terms under which the refund or

credit would be ordered would vary with the particular circumstances of

each case, but the Department intends to ensure prompt action. The FAA

Authorization Act, in new 49 U.S.C. Section 47129(a)(3), limits the

Secretary's order to determining reasonableness, and the order would

not set the level of the fee.

The Department anticipates that the Secretary will issue all final

orders. However, the FAA Authorization Act expressly provides that the

administrative law judge's decision will be deemed the final order of

the Secretary, if the Secretary fails to issue an order within 120 days

after a complaint is filed. This requirement is reflected in Section

302.621(c). The Authorization Act imposes this requirement only with

respect to complaints by air carriers. Therefore, while the Department

intends to resolve airport requests for determination within 120 days

after they are filed, Section 302.621 does not contain any provision

for automatic adoption of the administrative law judge's decision. Of

course, when an airport request is considered in a consolidated

proceeding along with a carrier complaint, the airport request will be

processed under the same schedule as the complaint.

Regulatory Evaluation Summary

This NPRM proposes the adoption of new procedures for the filing

and adjudication of complaints by air carriers and foreign air carriers

alleging that an airport has imposed an unreasonable fee or charge on

the complaining carrier. It also proposes corresponding procedures

under which an aiport owner or operator may request and receive a

determination of the reasonableness of a fee or charge it has imposed

on one or more air carriers or foreign air carriers. The new procedures

would be substituted for existing procedures under 14 CFR Part 13, and

impose no new substantive requirements on either carriers or airports.

Accordingly, the Department tentatively concludes that the economic

impact of the proposed rule would be minimal and that further

calculation of the economic effects is not warranted.

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (RFA) was enacted by

Congress to ensure that small entities are not unnecessarily or

disproportionately burdened by government regulations. The RFA requires

a Regulatory Flexibility Analysis if a rule would have a significant

economic impact, either detrimental or beneficial, on a substantial

number of small entities. This proposal contains procedural

requirements for processing carrier complaints and airport requests.

The Department concludes that the proposed rule would not have a

significant economic impact on a substantial number of small entities.

Federalism Implications

The regulations proposed in this NPRM would not have substantial

direct effects on the States, on the relationship between the national

government and the States, or on the distribution of power and

responsibilities among the various levels of government. Therefore, in

accordance with Executive Order 12612, it is determined that this

proposal would not have sufficient federalism implications to warrant

the preparation of a Federalism Assessment.

Paperwork Reduction Act

This proposed rule contains no information collection requirements

that require approval of the Office of Management and Budget pursuant

to the Paperwork Reduction Act of 1980 (44 U.S.C. 3507 et seq.).

Conclusion

Although the Department has concluded that the economic effects of

this proposal are minimal, the proposal is considered significant under

Executive Order 12866 because of the public interest in this

rulemaking. The Department 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).

The Proposed Amendments

Accordingly, the Department of Transportation proposes to adopt a

new Subpart F to amend 14 CFR part 302 as follows:

1. The authority citation for 14 CFR Part 302 is revised to read:

Authority: 5 U.S.C. 551 et seq., 39 U.S.C. 5402; 42 U.S.C. 4321,

49 U.S.C. 40101, 40102, 40113, 40114, Chapters 411-415, 41702,

41705, 41706, 41901, 41907, 41909, 41910, 42111, 46301, 46302,

46303, 46105, 47129.

2. A new Subpart F is added to 14 CFR Part 302 to read as follows:

PART 302--RULES OF PRACTICE IN PROCEEDINGS

Subpart F--Rules Applicable to Proceedings Concerning Airport Fees

Sec.

302.601 Applicability of this subpart.

302.603 Complaint by an air carrier or foreign air carrier; request

for determination by an airport owner or operator.

302.605 Contents of complaint or request for determination.

302.607 Answers to a complaint or request for determination.

302.609 Replies.

302.611 Review of complaints.

302.613 Review of requests for determination.

302.615 Decision by administrative law judge.

302.617 Petitions for discretionary review.

302.619 Completion of proceedings.

302.621 Final order.

Subpart F--Rules Applicable to Proceedings Concerning Airport Fees

Sec. 302.601 Applicability of this subpart.

(a) This subpart contains the specific rules that apply to a

complaint filed by one or more air carriers or foreign air carriers,

pursuant to 49 U.S.C. Section 47129(a), for a determination of the

reasonableness of a fee increase or a newly established fee imposed

upon the air carrier or foreign air carrier by the owner or operator of

an airport. This subpart also applies to requests by the owner or

operator of an airport for such a determination. An airport owner or

operator has imposed a fee on an air carrier or foreign air carrier

when it has taken all steps necessary under its procedures to establish

the fee, whether or not the fee is being collected or carriers are

currently required to pay it.

(b) This subpart does not apply to--

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

or foreign air carriers using the facilities of an airport;

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

entered into prior to August 23, 1994 or

(3) any other existing fee not in dispute as of August 23, 1994.

Sec. 302.603 Complaint by an air carrier or foreign air carrier;

request for determination by an airport owner or operator.

(a) Any air carrier or foreign air carrier may file a complaint

with the Secretary for a determination as to the reasonableness of any

fee imposed on the carrier by the owner or operator of an airport. Any

airport owner or operator may also request such a determination with

respect to a fee it has imposed on one or more air carriers. The

complaint or request for determination shall conform to the

requirements of this subpart and 14 CFR 302.3 concerning the form and

filing of documents.

(b) If an air carrier or foreign air carrier has previously filed a

complaint with respect to the same airport fee or fees, any complaint

by another carrier and any airport request for determination shall be

filed no later than 7 calendar days following the initial complaint. In

addition, all complaints or requests for determination must be filed on

or before the 60th day after the carrier receives written notice of the

establishment or increase of the fee.

(c) To ensure an orderly disposition of the matter, all complaints

and any request for determination filed with respect to the same

airport fee or fees will, as provided in Secs. 302.611 and 302.613, be

considered in a consolidated proceeding.

Sec. 302.605 Contents of complaint or request for determination.

(a) The complaint or request for determination shall set forth the

entire grounds for requesting a determination of the reasonableness of

the airport fee. The complaint or request shall include a copy of the

airport owner or operator's written notice to the carrier of the

imposition of the fee, a statement of position with a brief, and all

supporting testimony and exhibits on which the filing party intends to

rely. In lieu of submitting duplicative exhibits or testimony, the

filing party may incorporate by reference testimony and exhibits

already filed in the same proceeding.

(b) When a carrier files a complaint, it must also submit the

following certifications:

(1) The carrier has served the complaint, brief, and all supporting

testimony and exhibits on the airport owner or operator and all other

air carriers and foreign air carriers serving the airport by hand, by

electronic transmission, or by overnight express delivery. (At airports

with a committee of carriers responsible for negotiating airport fees

and charges, the complaining carrier may instead serve all members of

that committee and the airport owner and operator);

(2) The parties served have received the complaint, brief, and all

supporting testimony and exhibits or will receive them no later than

the date the complaint is filed; and

(3) The carrier has previously attempted to resolve the dispute

directly with the airport owner or operator.

(c) When an airport owner or operator files a request for

determination, it must also submit the following certifications:

(1) The airport owner or operator has served the request, brief,

and all supporting testimony and exhibits on all air carriers and

foreign air carriers serving the airport by hand, by electronic

transmission, or by overnight express delivery. (At airports with a

committee of carriers responsible for negotiating airport fees and

charges, the complaining carrier may instead serve all members of that

committee.);

(2) The carriers served have received the request, brief, and all

supporting testimony and exhibits or will receive them no later than

the date the request is filed; and

(3) The airport owner or operator has previously attempted to

resolve the dispute directly with the carriers.

Sec. 302.607 Answers to a complaint or request for determination.

(a) (1) When an air carrier or foreign air carrier files a

complaint under this subpart, the owner or operator of an airport and

any other air carrier or foreign air carrier serving the airport may

file an answer to the complaint as provided in paragraphs (b) and (c)

of this section.

(2) When the owner or operator of an airport files a request for

determination of the reasonableness of a fee it has imposed, any air

carrier or foreign air carrier serving the airport may file an answer

to the request.

(b) The answer to a complaint or request for determination shall

set forth the answering party's entire response. The answer shall

include a statement of position with a brief and any supporting

testimony and exhibits on which the answering party intends to rely. In

lieu of submitting duplicative exhibits or testimony, the filing party

may incorporate by reference testimony and exhibits already filed in

the same proceeding.

(c) Answers to a complaint or request for determination shall be

filed no later than seven calendar days after the filing date of the

complaint.

(d) The answering party must also submit the following

certifications:

(1) The answering party has served the answer, brief, and all

supporting testimony and exhibits by hand, by electronic transmission,

or by overnight express delivery on the carrier filing the complaint or

the airport owner or operator requesting the determination; and

(2) The parties served have received the answer and exhibits or

will receive them no later than the filing date of the answer.

Sec. 302.609 Replies.

(a) The carrier submitting a complaint may file a reply to any or

all of the answers to the complaint. The airport owner or operator

submitting a request for determination may file a reply to any or all

of the answers to the request for determination.

(b) The reply shall be limited to new matters raised in the

answers. It shall constitute the replying party's entire response to

the answers. It shall be in the form of a reply brief and may include

supporting testimony and exhibits responsive to new matters raised in

the answers. In lieu of submitting duplicative exhibits or testimony,

the replying party may incorporate by reference testimony and exhibits

already filed in the same proceeding.

(c) The reply shall be filed no later than two calendar days after

answers are filed.

(d) The carrier or airport owner or operator submitting the reply

must certify that it has served the reply and all supporting testimony

and exhibits on the party or parties submitting the answer to which the

reply is directed.

Sec. 302.611 Review of complaints.

(a) Within 30 days after a complaint is filed under this subpart,

the Secretary will determine whether the complaint meets the procedural

requirements of this subpart and whether a significant dispute exists,

and take appropriate action pursuant to paragraph (b), (c), or (d) of

this section.

(b) If the Secretary determines that a significant dispute exists,

he or she will issue an instituting order assigning the complaint for

hearing before an administrative law judge. The instituting order will

establish the scope of the issues to be considered and the procedures

to be employed and will indicate the parties to participate in the

hearing. The instituting order will consolidate into a single

proceeding all complaints and any request for determination with

respect to the fee or fees in dispute.

(c) The Secretary will dismiss any complaint if he or she finds

that no significant dispute exists. The order dismissing the complaint

will contain a concise explanation of the reasons for the determination

that the dispute is not significant.

(d) If the Secretary determines that the complaint does not meet

the procedural requirements of this subpart, the complaint will be

dismissed without prejudice to filing a new complaint. The order of the

Secretary will set forth the terms and conditions under which a revised

complaint may be filed.

Sec. 302.613 Review of requests for determination.

(a) Following review of the pleadings and exhibits filed in

connection with an airport owner or operator's request for

determination of the reasonableness of a fee, the Secretary will

determine whether the request meets the procedural requirements of this

subpart and whether a significant dispute exists.

(b) If the Secretary determines that a significant dispute exists,

he or she will issue an instituting order assigning the request for

hearing before an administrative law judge. The instituting order will

establish the scope of the issues to be considered and the procedures

to be employed and will indicate the parties to participate in the

hearing. The instituting order will consolidate into a single

proceeding all complaints and any request for determination with

respect to the fee or fees in dispute.

(c) If the Secretary finds that the request for determination

presents no significant dispute, the Secretary will either issue a

final order as provided in Sec. 302.621 of this subpart or set forth

the schedule for any additional procedures required to complete the

proceeding. The determination will be issued within 120 days after the

filing of the request by the airport owner or operator.

(d) If the Secretary determines that the request does not meet the

procedural requirements of this subpart, the request for determination

will be dismissed without prejudice to filing a new request. The order

of the Secretary will set forth the terms and conditions under which a

revised request may be filed.

Sec. 302.615 Decision by administrative law judge.

The administrative law judge shall issue a decision recommending a

disposition of a complaint or request for determination within 60 days

after the date of the instituting order, unless a shorter period is

specified by the Secretary.

Sec. 302.617 Petitions for discretionary review.

(a) Within 5 calendar days after service of a decision by an

administrative law judge, any party may file with the Secretary a

petition for discretionary review of the administrative law judge's

decision.

(b) Petitions for discretionary review shall comply with 14 CFR

302.28(a). The petitioner must also submit the following

certifications:

(1) The petitioner has served the petition by hand, by electronic

transmission, or by overnight express delivery on all parties to the

proceeding; and

(2) The parties served have received the petition or will receive

it no later than the date the petition is filed.

(c) Any party may file an answer in support of or in opposition to

any petition for discretionary review. The answer shall be filed within

4 calendar days after service of the petition for discretionary review.

The answer shall comply with the page limits specified in 14 CFR

302.28(b).

Sec. 302.619 Completion of proceedings.

(a) When a complaint with respect to an airport fee or fees has

been filed under this subpart and has not been dismissed, the Secretary

will issue a determination as to whether the fee is reasonable within

120 days after the complaint is filed.

(b) When a request for determination has been filed under this

subpart and has not been dismissed, the Secretary will issue a

determination as to whether the fee is reasonable within 120 days after

the date the request for determination is filed.

(c) When both a complaint and a request for determination have been

filed with respect to the same airport fee or fees and have not been

dismissed, the Secretary will issue a determination as to whether the

fee is reasonable within 120 days after the complaint is filed.

Sec. 302.621 Final order.

(a) When a complaint or request for determination stands submitted

to the Secretary for final decision on the merits, he or she may

dispose of the issues presented by entering an appropriate order, which

will include a statement of the reasons for his or her findings and

conclusions. Such an order shall be deemed a final order of the

Secretary.

(b) The final order of the Secretary shall include, where

necessary, directions regarding an appropriate refund or credit of the

fee increase or newly established fee which is the subject of the

complaint or request for determination.

(c) If the Secretary has not issued a final order within 120 days

after the filing of a complaint by an air carrier or foreign air

carrier, the decision of the administrative law judge shall be deemed

to be the final order of the Secretary.

Issued in Washington, DC, on October 20, 1994.

Federico Pena,

Secretary.

[FR Doc. 94-26385 Filed 10-20-94; 12:29 pm]

BILLING CODE 4910-62-P