Proposed Termination of Eligibility of Airport Grant Funds and Authority to Collect or Impose Passenger Facility Charges at Aspen- Pitkin County Airport, Pitkin County, CO

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. 27648]

Proposed Termination of Eligibility of Airport Grant Funds and

Authority to Collect or Impose Passenger Facility Charges at Aspen-

Pitkin County Airport, Pitkin County, CO

AGENCY: Federal Aviation Administration, DOT.

ACTION: Notice of proposed termination.

-----------------------------------------------------------------------

SUMMARY: The Federal Aviation Administration (FAA) is proposing to

terminate the eligibility of Pitkin County (County), Colorado, owner

and operator of Aspen-Pitkin County Airport (ASE), for airport grant

funds and to disapprove its application to impose or collect passenger

facility charges (PFC) because it appears that Pitkin County has

improperly imposed an aircraft access restriction at ASE. This notices

is issued in accordance with Sections 9304(e) and 9307 of the Airport

Noise and Capacity Act of 1990 (ANCA), 49 U.S.C. App. 2153(e) and 2156,

and 14 CFR 161.505. This Notice has summarized the available

information in order to facilitate any interested party's ability to

comment or object.

DATES: Interested parties may file comments or objections to the FAA's

proposed termination of the County's airport grant eligibility and

disapproval of the of the County's passenger facility charge

application. The FAA hereby sets the minimum 30-day comment period as

provided in subpart F section 161.505(c).

Comments and objections must be postmarked on or before April 22,

1994.

ADDRESSES: Send or deliver comments and objections in triplicate to

Federal Aviation Administration, Office of the Chief Counsel, Attn:

Rules Docket (AGC-200), Docket No. 27594, Room 915G, 800 Independence

Avenue, SW., Washington, DC 20591. Comments may be examined in the

Washington DC Docket weekdays except Federal holidays, between 8:30

a.m. and 5:00 p.m.

The FAA's Notice of Apparent Violation (NOAV) and the County's

Response are available for review at the Washington DC docket office;

the FAA regional office, 1601 Lind Avenue, SW, Renton, Washington

98055-4056, telephone (206) 227-2600; and at the FAA Airports District

Office in Denver, 5440 Roslyn, Suite 300, Denver, Colorado 80216-6026,

telephone (303) 286-5541. A copy is also available on the airport

through the Aspen Airport Traffic Control Tower, Pitkin County Airport,

0150 West Airport Road, 81611; telephone (303) 925-3703. Contact those

offices to determine review hours.

FOR FURTHER INFORMATION CONTACT: Victoria L. Catlett, Office of Airport

Planning and Programming, Federal Aviation Administration, 800

Independence Avenue SW, Washington DC 20591; telephone (202) 267-3263.

SUPPLEMENTARY INFORMATION:

Background

The Airport Noise and Capacity Act of 1990 (ANCA) requires an

airport proprietor, as a condition of receiving grant funds under the

Airport Improvement Program and of collecting and imposing passenger

facility charges: (1) To conduct a public review process and cost-

benefit analysis of any noise or access restriction affecting Stage 2

aircraft if the restriction was not proposed before October 1, 1990;

and (2) to obtain agreement from each affected operator or approval of

the Secretary of Transportation for any restriction affecting Stage 3

aircraft not in effect before October 1, 1990.

ASE is a commercial service airport which serves Aspen, Colorado.

Pitkin County is the proprietor of ASE and operates ASE through the

Board of County Commissioners (Board). ASE is now open each day from 7

a.m. to one-half hour after sunset. An exception until 11 p.m. exists

for two air carriers (United Express and Continental Express) that

maintain private navigation aids at the airport. In its current form,

the exception to ASE's nighttime curfew is only available to scheduled

carriers operating Stage 3 or exempt aircraft, which arrive or depart

before 11 p.m. and who have access to an on-site instrument landing

system which is privately owned. The current operating hours of ASE are

set out in County Ordinance 90-12.

In the past, Ordinance 89-3 (October 24, 1989) regulated hours of

operation at ASE. It prohibited general aviation aircraft from taking

off or landing during the period one-half hour after sunset to 7 a.m.

Scheduled air carriers operating Stage 3 or exempt aircraft under Parts

135 or 121 of the Federal Aviation Regulations and who had access to

privately-owned, on-site instrument landing systems were permitted to

operate until 11 p.m. Ordinance 89-3 established a yearly, limited

exception to the prohibition on nighttime operations for general

aviation aircraft operators. General aviation aircraft operating under

instrument flight rules (IFR) were permitted to depart on Fridays,

Saturdays and Sundays until two and one-half hours past sunset local

time during ski season each year. The airport manager was also

authorized to grant similar departure exceptions during high-traffic

holiday periods such as Christmas Eve, New Year's Day and President's

Day.

On June 12, 1990 the Board introduced, first read, and set for

public hearing a draft ordinance ``(e) establishing the hours of

airside operations at the Aspen-Pitkin County Airport (Sardy Field).''

The draft ordinance would have expanded nighttime access at ASE to all

aircraft until 10 p.m. and necessarily provided more liberal access

than the ski season exception. The Board proposed this change, in part,

in response to concerns voiced by the FAA and general aviation user

groups about the potentially discriminatory nature of ASE's hours of

operation. The Board did not adopt the June 12, 1990 draft ordinance.

At an August 7, 1990 special session and hearing the Board tabled the

June 12, 1990 draft ordinance indefinitely.

The Board introduced, first read, and set for public hearing

Ordinance 90-12 on November 13, 1990. The Board adopted Ordinance 90-12

on November 27, 1990 which established the current operating hours. It

also repealed the ski season exception under Ordinance 89-3.

Over approximately a two year period, the FAA attempted to

informally resolve the ANCA issues with the County. The FAA repeatedly

raised concerns that Ordinance 90-12 did not appear to be grandfathered

either as to operations by Stage 2 or Stage 3 aircraft, nor exempt from

requirements under ANCA Sections 9304 (b) and (c). After extensive

correspondence and discussion, the FAA determined that the County had

not provided sufficient evidence to demonstrate that repeal of the ski

season exception through passage of Ordinance 90-12 was grandfathered.

The FAA determined that informal resolution had not been successful and

issued a Notice of Apparent Violation (NOAV) on September 30, 1993.

The NOAV advised the County of the FAA's position that the

existence, and continued enforcement, of Ordinance 90-12 was an

apparent ANCA violation and that the County's eligibility for airport

grant funds and authority to impose and collect passenger facility

charges was at issue, absent the County's agreement to rescind or

permanently not enforce Ordinance 90-12. The NOAV indicated that

contrary to the County's contentions, the June 12, 1990 draft ordinance

did not reference an intent to repeal ASE's ski season exception as an

alternative to liberalizing the curfew. The FAA interprets ``proposed''

in the context of ANCA and 14 CFR Part 161 to mean issuance of an

official proposal by the government body with authority to adopt the

proposal or ordinance. It does not appear that either the language of

the June 12, 1990 draft ordinance or the published notice in the Aspen

Times indicated that the Board was proposing to repeal the ski season

exception as an alternative to liberalizing access to ASE.

The County provided a Response to the FAA's NOAV and made the

following key arguments:

(1) When the Board tabled the draft ordinance by Resolution on

August 7, 1990, the Board repealed the ski season exception,

(2) The conduct of its County Manager and Airport Manager proves

that the ski season exception was repealed prior to October 1, 1990.

That is, a Board Resolution of August 7, 1990 authorized the County

Manager to direct the Airport Manager to notify the FAA National

Flight Data Center to delete the ski season exception,

(3) Adoption of Ordinance 90-12 on November 27, 1990, merely

codified, and/or ratified, the repeal of the ski season exception

which, the County continued to contend, occurred on August 7, 1990;

Ordinance 90-12 is irrelevant because it is merely a housekeeping

and codification measure, and

(4) Repeal was necessary because the Board was concerned about

the safety of its citizens.

In addition, the County responded that it would not agree to

rescind or permanently not enforce Ordinance 90-12, an alternate method

of compliance with ANCA or Part 161, as advised by the FAA in its NOAV.

The FAA has reviewed the evidence contained in the record and

carefully evaluated the County's claims. It is the FAA's preliminary

conclusion that the County's Response to the FAA's NOAV did not provide

any additional evidence or arguments which would indicate that repeal

of the ski season exception was proposed before October 1, 1990 within

the meaning of ANCA.

First, the usual meaning of ``tabled'' as applied to a piece of

legislation is that consideration of the legislation was postponed.

Tabling the June 1990 draft ordinance on August 7, 1990 left the

existing airport rules, including the ski season exception, in effect

at ASE.

Second, while the County argues that the Airport Manager's revision

of the FAA Airport Facilities Directory (A/FD) evidenced the County

officials' intent to repeal the ski season exception, that argument is

not dispositive of the ANCA issues. Revision of the A/FD did not have a

regulatory effect. It was not supported by an official proposal by the

Board of County Commissioners or any other government body with

authority to adopt the proposal. The Airport Manager does not have the

power to repeal or amend ordinances independent of the Board.

Third, the County's position that the notice and reading of

Ordinance No. 90-12 was a mere housekeeping measure is contradicted by

testimony at the August 7, 1990, hearing. In summarizing the options

available to the Board at the August 7, 1990, hearing, Commissioner

Ross noted that a significant change in the proposal to liberalize the

curfew would require another reading (Minutes of the Pitkin County

Board of County Commissioners, Special Meeting, August 7, 1990, p.2).

The difference between the June 12, 1990 proposal to liberalize the

curfew and repeal of the ski season exception appears to have been a

significant change, requiring public notice through another reading.

Therefore, the County appears to have been required to introduce and

read Ordinance 90-12 on November 13, 1990. This supports a conclusion

that repeal of the ski season exception was not proposed within the

meaning of ANCA prior to October 1, 1990.

Fourth, the FAA invited the County to provide technical data or

studies in support of its safety contentions. In its Response, the

County has reasserted the arguments it has made previously against all

night operations at Aspen (and other high-elevation mountain airports).

The airport itself is certificated by the FAA under 14 CFR Part 139,

and is served by an FAA air traffic control tower. The FAA does not

find, and the County apparently does not argue, that there is any

safety issue with the airport facility itself. With respect to arrival

and departure routes for Aspen, the FAA Flight Standards Service has

encouraged specialized training and planning for mountain flying

generally, but has not found a need for a prohibition at Aspen or other

Rocky Mountain airports.

Corrective Action

Pursuant to 14 CFR 161.505(c), the County may rescind or agree to

permanently not enforce Ordinance 90-12.

Related Matters

Both the Aircraft Owners and Pilots Association and the National

Business Aircraft Association have filed formal complaints under 14 CFR

Part 13 which allege that the curfew violates the obligation of the

County under its Federal grant assurances to allow access on fair and

reasonable terms, without unjust discrimination. A decision by the

County to adopt a restriction that relaxes the curfew and allows equal

access to all operators could render both this proceeding and the

formal complaints moot.

In accordance with Senate Report 103-150, the General Accounting

Office (GAO) has issued a Report on Mountain Flying which examined the

FAA's oversight of general aviation safety in mountainous areas. GAO

Report to the Chairman, Subcommittee on Aviation, Committee on

Commerce, Science, and Transportation, U.S. Senate. Aviation Safety,

FAA Can Better Prepare General Aviation Pilots for Mountain Flying

Risks, GAO/RCED-94-15 (December 1993) Overall, GAO recommended

additional efforts to prepare general aviation pilots for the greater

risks of flying in mountainous areas. In Chapter Four of the report GAO

presents its views of the legal and safety issues involved with Pitkin

County's prohibition against general aviation night operations at Aspen

Airport, but makes no recommendations.

Conclusion

Based on the available information, the FAA has determined to issue

this Notice of Proposed Termination. The FAA will review any additional

comments, statements and data which are submitted and any other

available information to determine whether the County has provided

satisfactory evidence of compliance or has taken satisfactory

corrective action. If the FAA finds satisfactory evidence of

compliance, the FAA will provide written notice to the County and

publish notice of compliance in the Federal Register. If the FAA

determines that the County has imposed an access restriction in

violation of ANCA or Part 161 the FAA will issue an order in accordance

with Part 161 terminating eligibility for new airport grants and

discontinuing payments of airport grant funds as well as disapproving

the County's PFC application.

Issued in Washington, DC on March 17, 1994.

David L. Bennett,

Assistant Chief Counsel, Airports and Environmental Law.

[FR Doc. 94-6795 Filed 3-22-94; 8:45 am]

BILLING CODE 4910-13-M