Rules of Practice for Proceedings Concerning Airport Fees

Federal RegisterFeb 3, 1995

Ask Donna

What actually matters in this document.

Text

SUMMARY: This final rule establishes 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. It also establishes

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

airport for such a determination. The final rule responds 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.

EFFECTIVE DATE: This rule is effective on February 3, 1995.

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

20590, telephone (202) 366-9307.

SUPPLEMENTARY INFORMATION:

Background

This rulemaking had its origins in two related notices on the

subject of Federal policy on airport rates and charges issued by the

Office of the Secretary of Transportation (OST) and the Federal

Aviation Administration on June 9, 1994. A jointly-issued notice

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.

Subsequently, Congress passed the FAA Authorization Act of 1994,

which 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. The procedures

contemplated by the FAA Authorization Act were substantially different

from those proposed by the FAA. Accordingly, 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, and the comment period on the remaining proposals

closed on December 1, 1994.

In lieu of the procedures proposed by the FAA for handling air

carrier complaints about airport rates and charges, the Office of the

Secretary issued a new NPRM on October 24, 1994. As contemplated by the

FAA Authorization Act, the October 24 NPRM stated that the procedures

contained in 14 CFR Part 302 would generally govern air carrier

complaints as well as requests by airport owners or operators for a

determination of the reasonableness of airports fees and charges.

Discussion of Comments

The Department received twelve comments on the NPRM. They were

submitted by the Air Transport Association (ATA), the Aircraft Owners

and Pilots Association (AOPA), the Airports Council International--

North America (ACI-NA), the American Association of Airport Executives

(AAAE), the General Aviation Manufacturers Association (GAMA), the

International Air Transport Association (IATA), Japan Airlines Company

(JAL), the Los Angeles Department of Airports, the Maryland Aviation

Administration, the Massachusetts Port Authority (Massport), the

Metropolitan Washington Airports Authority, and the National Business

Aircraft Association, Inc. (NBAA).

Although there were numerous requests for changes to particular

provisions, the comments generally expressed support for the overall

concept of the proposed rule. The proposed regulatory approach, i.e.,

consolidating all complaints as soon as the first carrier files a

complaint under the new subpart, received several supporting comments

and no opposition. Accordingly, the final rule follows this approach

with only minor modifications. We turn now to a discussion of the

issues most widely addressed in the comments. Other comments are

addressed in the section-by-section analysis.

Party Status

A number of commenters addressed issues involving who should be

able to make use of the expedited procedures contained in the new

subpart. JAL expressed specific support for our proposal to allow

foreign air carriers to use the expedited procedures along with U.S.

air carriers. AAAE stated that it considers this proposal acceptable,

and ACI-NA also indicated that it did not object, although ACI-NA added

that ``a foreign air carrier, like any other carrier, which initiates

or joins a case should not be allowed to pursue remedies in other

forums, in order to avoid duplicative proceedings which could lead to

inconsistent or conflicting results.'' Only the Los Angeles Department

of Airports opposed including foreign air carriers. It claims that

``Congress intentionally provided the expedited procedures only to U.S.

carriers,'' and suggests that making this forum available to foreign

carriers forfeits a bargaining position for the United States and

contravenes the principle of international reciprocity.

The final rule adopts the proposal to allow foreign air carriers to

file complaints under subpart F. As we noted in the NPRM, we anticipate

that both domestic and foreign carriers will dispute airport fees they

believe to be unreasonable. Since the economic and other issues

involved in determining the reasonableness of a fee are essentially the

same whether the complainant carrier is U.S. or foreign, it will be

simpler for the carriers, the airport and the Department to make that

determination in a single proceeding. Therefore, while the FAA

Authorization Act was only directed at complaints by U.S. carriers, we

will include foreign carriers on our own initiative.

With respect to the comment that foreign carriers filing claims

under subpart F should be barred from seeking remedies in other forums,

we note that the various bilateral agreements on air service between

the United States and [[Page 6920]] other countries govern the rights

of foreign air carriers in this regard.

GAMA, AOPA, and NBAA all argue that we should further expand the

applicability of this subpart to cover complaints by general aviation

operators. In their view, the arguments for including foreign air

carriers apply with equal force to general aviation users. While we

recognize that there may be cases in which an airport imposes

essentially similar fees on both general aviation and air carrier

operations, we cannot grant the request to expand the expedited

procedures to general aviation operators. The FAA Authorization Act

requires the Secretary to determine the reasonableness of a challenged

fee within 120 days after a complaint is filed and indicates a

preference for oral evidentiary procedures, to the extent that such

procedures are consistent with the 120-day timeframe. Our procedures

must carry out the Congressional intent. If general aviation operators

are permitted to make use of this subpart, however, the scope of the

hearing would be dramatically expanded. It is possible that there would

be dozens, conceivably even hundreds, of additional parties, possibly

with divergent interests. If this happened, it would so overwhelm the

Department's resources that it could become impossible for the

Department to meet the statutory deadline.

The Metropolitan Washington Airports Authority argues that there is

an integral relationship between the fees paid by ``signatory'' and

``non-signatory'' carriers. (Signatory carriers are airlines that have

entered into a use or operating agreement with the airport operator.)

Therefore, ``it is important for the procedures to specify that the

airport can join as indispensable parties the signatory airlines when

the airports rates and charges are challenged by a non signatory

airline.'' The final rule does not incorporate this suggestion. If a

carrier (signatory or otherwise) would be affected by the outcome of a

complaint filed by another carrier at the same airport, it may well

choose to participate in the proceeding, such as by filing an answer to

the complaint. The NPRM's proposal to require service of any complaint

on other carriers (discussed more fully below) was made partly to

facilitate such participation. But there is no reason to require the

participation of carriers with no complaint of their own and no

interest in the fee being challenged.

Evidence To Be Submitted With Complaints, Requests and Answers

A number of commenters addressed the proposal in the NPRM that

carrier complaints should contain all supporting evidence and

testimony, and that answers should similarly be complete with all

evidence and testimony on which the party intends to rely.

IATA commented that a carrier might not have access to much of the

information necessary to its complaint unless the airport had agreed to

furnish it. IATA requested that the final rule make clear that

information within the custody of the airport could be used by the

carrier if it was able to obtain the information only after the

complaint was filed. ATA raised the same issue, but suggested that we

provide for a formal discovery process within the 30-day period

following the complaint.

The Department's Policy Regarding Airport Rates and Charges,

published in today's Federal Register, states that airports should

consult with carriers in advance of changing fees, and should provide

adequate information to permit carriers to evaluate the justification

for the change and the reasonableness of the new or increased fee. We

expect that airports will comply with this policy.

The Department finds the IATA and ATA concerns valid. However, we

believe that the conduct of discovery in the 30-day period following

the complaint would be a burden to the airport owner or operator and to

the government. Moreover, any discovery conducted would be unnecessary,

and therefore excessive, if the complaint is subsequently dismissed

because the Secretary determines that there is no significant dispute.

Accordingly, the Department will provide, where necessary, special

procedures for the exchange or disclosure of information by the

parties.

Airport parties had equivalent objections with respect to the

proposed requirements for the timing and completeness of answers. ACI-

NA, AAAE, the Los Angeles Department of Airports, and Massport all

argued that airports should not have to submit their entire response

with the answer. They believe that answering parties should only have

to submit a brief in response to a complaint, and should be able to

supplement their submission with exhibits and testimony at a later

point in the proceeding.

In addition, they claim that it is unfair that complainants will

have up to 60 days to gather evidence and prepare exhibits and

testimony, while, under the proposal, respondents would be required to

submit their complete response seven calendar days after the complaint

is filed. AAAE and ACI-NA suggested that we allow answers to be filed

21 days after the initial complaint. The Los Angeles Department of

Airports agreed, and also suggested the recommended 21-day period

should not start until the last day that complaints could be filed

(i.e., on the 60th day after notice of the fee or the seventh day after

the first complaint is filed). This would give parties a total of up to

28 days to file answers. Massport asked for a 14 calendar-day answer

period, and the Metropolitan Washington Airports Authority recommended

14 days for the initial complaint and seven days for any additional

complaints. The Maryland Aviation Administration requested seven

business days instead of seven calendar days.

We will retain the requirement that answers contain all testimony

and exhibits on which the answering party intends to rely. The carriers

pointed out that airport owners and operators possess much of the

information that they might need to introduce in challenging a fee.

However, there is no fee information in the hands of the carriers that

an airport would need to support the reasonableness of the fee. In view

of the extremely short decisional deadlines imposed by the FAA

Authorization Act, it is important that we have the most information

possible at the beginning of a proceeding. While it is true, as

commenters noted, that complaining carriers have up to 60 days to file

complaints, we do not agree that this gives complainants an unfair

advantage. We expect airports to have all the economic evidence they

need in support of a new or increased fee before the fee is increased

rather than after a complaint is filed. While an answer must, of

course, respond to the specific matters raised in a complaint, an

airport should not have to generate significant new data.

On the other hand, we believe that it is reasonable to allow some

additional time to prepare and submit answers. In the case of

complaints, it will be easier for both the answering party and the

Department if answers are consolidated to address both the initial

complaint and any follow-on complaints. Accordingly, the final rule

provides that answers will be due 14 calendar days after the initial

complaint is filed. Thus, if there are follow-on complaints, the

answering parties will still have a minimum of seven days to address

them. We will also allow 14 days for answers to requests for

determination.

Determination of ``Significant Dispute''

Within 30 days after a carrier files a complaint, the FAA

Authorization Act requires the Department to determine whether there is

a ``significant dispute;'' if not, the statute requires the Secretary

[[Page 6921]] to dismiss the complaint. Accordingly, a number of

commenters addressed issues associated with the Secretary's

determination.

IATA pointed out that the language in proposed Sec. 302.611 stated

that the Secretary would issue an order within 30 days determining

whether a carrier complaint presented a significant dispute, but there

was no corresponding language on requests for determination submitted

by an airport owner or operator. As the preamble in the NPRM indicated,

it has been our intention to issue such orders within 30 days. However,

as provided in Sec. 302.619(c), when both a complaint and a request for

determination have been filed with respect to the same airport fee, the

statutorily-imposed 120-day schedule for resolving complaints controls

the course of the proceeding. That is, as required by the FAA

Authorization Act, the Secretary will determine whether there is a

significant dispute within 30 days of the date the first complaint is

filed. In such cases, the determination may come more than 30 days

after the date of the airport request. In light of IATA's comment, we

have revised the language of Sec. 302.613 to clarify this point.

The comments of both IATA and ATA ask that any order dismissing a

complaint for lack of a significant dispute should be clearly stated to

be final and appealable. IATA goes on to argue the proposed rule would

leave an airport owner or operator in a better position following

dismissal of a request for determination than a carrier would be

following dismissal of a complaint. We disagree, and we find that no

change is necessary in the final rule. If the Secretary dismisses a

complaint after finding that there is no significant dispute within the

meaning of the FAA Authorization Act, the order of dismissal is subject

to the same judicial review as any other order of the Secretary. (If

the Secretary instead finds that the complaint fails to meet the

procedural requirements of this subpart, the order will set forth the

conditions under which a revised complaint may be filed.)

IATA asks that Sec. 302.611 ``provide some reasonably accurate

guidelines and standards of review'' under which the Secretary will

review complaints to determine whether they present a significant

dispute. ATA suggests that we employ the standards of Federal Rule of

Civil Procedure 12(b)(6), accepting any complaint as constituting a

significant dispute as long as it ``states a claim for relief under

Section 47129.'' In the alternative, it suggests we employ the

standards for grant of summary judgment under Federal Rule of Civil

Procedure 56. Under this approach, as ATA states, ``a 'significant

dispute' would exist whenever there was a genuine issue of material

fact or law.''

Accepting either of ATA's recommendations would mean that the

Department would set for hearing virtually all complaints brought, no

matter how trivial. We believe that this is inconsistent with the

statutory intent. If Congress had meant for the Department to hear

every complaint in which a claim is made, it surely would not have

mandated in Sec. 47129(c)(2) that ``the Secretary shall dismiss any

complaint if no significant dispute exists.'' (Emphasis added.)

Congress established the extraordinary dispute resolution program in

Sec. 47129 to ensure that carriers and airports can obtain a prompt

decision when there is an important fee dispute. It plainly understood

that the Department has limited resources; if the expedited procedures

are employed any time a complainant can state a claim or establish that

there is a fact in dispute, the Department could be unable to respond

adequately when there are truly significant fee disputes. Moreover,

while we are sympathetic to IATA's request for clear guidelines and

standards for review, we believe that the circumstances at each airport

and the facts behind each fee dispute vary too widely for us to be able

to set out specific standards in the final rule. As we proposed,

however, Sec. 302.611 states that we will set forth our reasoning in

any order dismissing a complaint on the grounds that the alleged

dispute is not significant.

AAAE objected to the statement in the preamble that one piece of

evidence that a dispute is significant would be that the complaining

carrier had attempted to resolve the dispute with the airport but had

been unsuccessful. AAAE points out, ``Airports and their tenant air

carriers can have legitimate, and even vehement disagreements about

issues that are, objectively, minor.'' We agree with AAAE that the

intensity of the discussions between airports and carriers does not by

itself mean that there is a significant dispute within the meaning of

Sec. 47129. Nevertheless, as the preamble to the NPRM stated, the

failure of direct negotiations ``would be some indication, although not

necessarily proof, that there is a significant dispute.''

ACI-NA and IATA disagree sharply on our authority to dismiss

airport requests for determination when there is no significant

dispute. ACI-NA stated that the Department was correct in determining

that the FAA Authorization Act makes no provision for dismissal on that

basis (in contrast with its specific requirement to dismiss carrier

complaints that do not present a significant dispute). IATA, on the

other hand, claimed that our failure to provide for dismissal of an

airport owner or operator's request ``is clearly arbitrary and

capricious.'' As IATA's comments note, however, the statutory language

on dismissals, in Sec. 47129(c)(2), ``on its face appears to be

applicable only to complaints and air carriers.'' (Emphasis in

original.) While IATA suggests that this ``may be the result of

legislative oversight,'' we believe this language is plain, and we will

adopt the NPRM's proposal to proceed to a final order on the merits

when an airport properly submits a request for determination.

Service of Documents

In order to ensure compliance with the extremely short time frames

provided by the FAA Authorization Act for action on fee disputes, the

NPRM proposed special service requirements. The proposal contained

three main elements: (1) Complaints and requests for determination

would have to be served on all carriers providing service to the

airport; (2) For most filings, service would have to be made by hand,

by electronic transmission, or by overnight express delivery; and (3)

Parties would actually have to receive the documents no later than the

day they are filed.

The NPRM stated that the Department realized that these service

requirements could pose a burden in some situations, but it also

expressed our belief that they are necessary to permit a consolidated

hearing for all complaints. Nevertheless, we specifically invited

comment on the service proposals, and particularly on an additional

proposal to substitute service of complaints or requests for

determination on members of any airline negotiating committee at the

airport rather than on all carriers serving the airport. A number of

commenters responded to this invitation.

To begin with, AAAE and ACI-NA supported the proposal to allow

service of documents on airline committee members at those airports

having such committees. The Metropolitan Washington Airports Authority

claimed that it should be adequate to serve the committee itself,

without serving the individual carrier members. ATA, however, strongly

argued that service on the airline committee members would not provide

adequate notice to other carriers serving the airport; it advocated

requiring service on all carriers serving the airport, preferably at

their [[Page 6922]] headquarters' offices. Complaints by carriers drive

the schedule for determining the reasonableness of airport fees. It is

essential that carriers have adequate notice when a document is filed,

particularly an initiating complaint, which starts the seven-day period

for follow-on complaints. In light of ATA's comments, therefore, the

final rule does not provide for serving the members of the airport's

carrier committee.\1\ Nevertheless, we continue to be concerned about

the potential burden of a literal application of a requirement to serve

``all carriers.'' As the comments of the Metropolitan Washington

Airports Authority pointed out, ``the requirement to serve 'all'

carriers could become an unnecessary procedural hurdle that prevents

the expeditious resolution of a fee dispute,'' because it could be read

to require service on even the most infrequent users of the airport.

The Metropolitan Washington Airports Authority recommended that service

be limited to carriers that operated at the airport within the 30 days

prior to the filing, while AAAE and ACI-NA suggested using the Air

Carrier Activity Information System (ACAIS) as the basis for

determining which carriers should be served. As these parties note,

airports already use the list of carriers on the ACAIS in determining

which carriers to serve with respect to Passenger Facility Charges

under 14 CFR Part 158. Accordingly, we believe that the ACAIS list can

similarly serve as the basis for an acceptable means of compliance with

the service requirements of subpart F as well.

\1\For the same reason, we will not adopt ATA's contingent

suggestion to allow carriers to serve only a written notice that a

complaint had been filed, along with instructions on how to obtain

complete copies. We believe interested persons must have immediate,

full information about the filing. (In any event, ATA stated that

its suggestion assumed additional time would be allowed for follow-

on complaints).

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

While the ACAIS list provides an objective and convenient starting

point for parties needing to serve all carriers, it must be recognized

that the list is based on carriers that served the airport during the

preceding year, and thus may not include new entrants. In addition,

carriers operating under 14 CFR Part 135 are not required to submit

data for ACAIS, although many do so voluntarily. Therefore, as ACI-NA

proposed, any party intending to make use of the ACAIS list for service

must also serve any other carrier known to be operating at the airport

but not on the list. This is the same practice that is followed with

respect to PFC applications.

The ACAIS list is routinely made available to airport operators.

However, since carriers do not file PFC applications, we recognize that

they have not previously used the ACAIS list to identify carriers for

the purposes of service. The Department's Office of Aviation Analysis

will provide the names of the carriers on the most recently published

ACAIS list at the request of a carrier considering filing a complaint

about a newly established or newly increased airport fee. Not all

information from ACAIS will be available on request. Much of the data

is potentially sensitive, and we believe most carriers would not want

it made available to competitors. Therefore, only carrier identities

will be released through this process.

The Los Angeles Department of Airports objected to the requirement

to certify that the parties served have actually received the

documents, arguing that it cannot know when a document will be

received. It argued that parties should only have to certify that the

documents were sent. We disagree. The short response time required by

these procedures makes it essential that the receiving party receives

the maximum notice possible that a complaint, request, or responsive

document has been filed. Moreover, while we recognize that this

constitutes an additional burden on the filer, that burden is not

insurmountable. All three of the specified service methods allow the

sender to ascertain quickly that the receiving party has received the

filing. In the case of hand delivery, receipt is obvious. For

electronic transmission, both facsimile machines and many electronic

mail systems provide for receipts from the recipients. And the

availability of immediate proof of delivery is a widely-advertised

service of major overnight express delivery companies.

The Los Angeles Department of Airports also argues that hand

delivery and overnight express may not be available to serve foreign

air carriers, and it suggests that we permit utilization of ``the next

most-expeditious, commercially available manner for sending documents

to the country in which the foreign air carrier must be served.'' Since

in many cases this would make it difficult or impossible to achieve

service in time to allow meaningful responsive pleadings, we cannot

agree. Overnight express delivery is increasingly available

commercially throughout the world, although it is true that the service

is not available everywhere. However, that is one reason why the NPRM

also proposed to permit service by electronic transmission. There are

few if any places in the world where facsimile service and/or

electronic mail are unavailable. Indeed, it is hard to imagine in

today's market that a carrier could conduct international operations

without having some capacity to receive electronic communications.

Moreover, many carriers, even foreign air carriers, will not need to be

served with complaints or requests for determination in their home

country. Unless a carrier indicates that a different person should

receive service for the purposes of this subpart, the final rule

authorizes service on the person responsible for communicating with the

airport on behalf of the air carrier or foreign air carrier about

airport fees. This person will be familiar with fee disputes involving

the airport, and is a logical contact point for routing the document

quickly to other key carrier personnel.

In addition to the foregoing, one additional point warrants mention

with regard to the service of documents. All exhibits and briefs

prepared on electronic spreadsheet or word processing programs should

be accompanied by standard-format computer diskettes containing those

submissions. Word processing and spreadsheets files must be readable by

current versions of one or more of the following programs, or in such

other format as may be specified by notice in the Federal Register:

Microsoft Word, Word Perfect, Ami Pro, Microsoft Excel, Lotus, Quattro

Pro, or ASCII tab-delineated files. Parties should submit one copy of

each diskette to the docket section, one copy to the office of the

Chief Administrative Law Judge (M-50), and one copy to the Chief,

Economic and Financial Analysis Division (X-55), of the Office of

Aviation Analysis. Submissions in electronic form will assist the

Department and the administrative law judge in quickly analyzing the

record and in preparing decisions under these expedited procedures. The

paper copy will be the official record copy, but filers shall certify

that files on the diskette are true copies of the data file used to

prepare the printed versions of the exhibits or briefs. Filers should

ensure that files on the diskettes are locked.

Section-by-Section Analysis

Section 302.601 Applicability

Section 302.601 describes the kinds of proceedings for which the

Department will employ the expedited procedures contained in subpart F.

ATA complained that we should not be issuing a procedural rule separate

from [[Page 6923]] the policy statement that will govern consideration

of airport fee disputes. (As noted above, the FAA's Supplemental Notice

of Proposed Policy was published in the Federal Register on October 12,

1994 (59 FR 51836). The comment period closed on the proposed policy on

October 26, 1994, and a final policy statement is published elsewhere

in today's Federal Register.) ATA urges us to consolidate these

proceedings and allow additional comment on a consolidated proposal. We

disagree. Because of the extremely short deadline for issuing rules

governing these proceedings, the Department decided that the best

course was to proceed in this two-stage fashion. Relatively few changes

were needed in the proposed policy statement after the adoption of the

FAA Authorization Act, while the FAA's previously proposed procedures

had to be completely rewritten. If we had waited until the new proposed

procedures were ready so that we could issue a consolidated document,

the highly-abbreviated public comment period that was necessary in this

proceeding would have had to apply to both the proposed procedures and

the proposed policy statement.

As discussed above, the final rule adopts the proposal to include

complaints by foreign air carriers, but complaints by other airport

users would not be heard under this subpart. Subpart F also contains

the procedural rules for reviewing an airport owner or operator's

request for a determination of the reasonableness of an airport fee.

By statute, a fee is subject to review under this subpart only

after it has been ``imposed'' on air carriers. As was proposed,

Sec. 302.601(a) states that a fee is considered to be imposed as soon

as the airport owner or operator has taken all steps necessary under

its procedures to establish the fee. Under the FAA Authorization Act in

new 49 U.S.C. 47129(a)(1)(B), one essential element to those procedures

is providing written notice to carriers of any new or increased fee.

Also as proposed, the 60-day filing period for complaints begins to run

as soon as the requirements for imposing a fee are met, whether or not

the fee is being paid by the carriers. ACI-NA points out that this

``may help resolve fee disputes before the airport is actually counting

on receiving the amounts in dispute, and would thus be less disruptive

of airport planning and financing.'' To the extent that it encourages

airports to avoid raising fees on short notice, it should be less

disruptive of carrier planning as well.

AAAE commented that the language in Sec. 302.601 should be made

consistent with the final language in the policy statement.

Specifically, it suggests adding the words ``for aeronautical use'' to

describe the kinds of fees imposed by airports on carriers that may be

challenged under this subpart. The Department agrees that the language

of the procedural rule should be parallel to that in the policy

statement, and the suggested change has been adopted.

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.

Some commenters suggested additional provisions. ACI-NA, for

example, recommends that ``Airlines should not be allowed to challenge

a fee increase that is the result of the recalculation of airline fees

due to the airport's loss of one or more air carriers, or the

substantial diminution of service by one or more air carriers.'' We do

not agree that this should be added to the final rule. If a fee is

increased as a result of a proper recalculation of charges, the

increase will be found reasonable. However, that is no basis for

denying a carrier's right to file a complaint under this subpart. ATA

would have us limit the exclusions on using subpart F to challenge fees

imposed pursuant to agreements with carriers or pursuant to a financing

agreement. These exclusions should apply, ATA believes, only if the

agreements contain a basis for determining how fees are to be set.

``[S]ome airports require air carriers to sign operating agreements

that provide * * * that the carrier is required to pay whatever fees

are established by the airport operator.'' We will not adopt ATA's

comment; the statutory language is clear that these rules may not be

used to challenge fees based on agreements.

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. In keeping with the proposal,

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.) ATA's comments stated that the

proposed rule failed ``to specify the type and form of briefs to be

presented upon the filing of complaints.'' ATA is thus incorrect.

As noted above, no commenter objected in principle to the basic

procedure proposed in the NPRM for consolidating all complaints and any

request for determination once any carrier has filed a complaint under

this subpart. The final rule adopts the language of the NPRM. Following

the first complaint, 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. The

Authorization Act specifies that 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 law does not provide

for entertaining later complaints. No potential complainant, having had

54 or more days to prepare, will be disadvantaged by the immutability

of the 60-day filing limit. As indicated above, JAL's request to extend

the statutory deadline for foreign carriers is denied. While there is

no statutory limitation on submitting airport requests for

determination, no commenter objected to our proposal to impose a

similar 60-day limit on such requests, and that proposal is also made

final here. As noted in the NPRM, airport fee increases become

incontestable under this subpart 60 days after the airport provides

written notice to carriers of the imposition of a new or increased fee.

The early determination of the reasonableness of a fee, which is the

purpose of the Act, would be undermined by allowing more time. There is

no point in expending Departmental resources on airport requests

brought after that date.

Section 302.605 Contents of Complaint or Request for Determination

Most of the issues pertaining to this section have been fully

discussed above. The following is only a brief summary of the

requirements in the final rule.

Carriers filing complaints and airports filing requests for

determination will generally be expected to submit documentation that

contains the filing party's entire position and supporting evidence. We

recognize, however, that an airport may control information or

documents that a complaining carrier would need. If that is the case,

and the carrier has unsuccessfully attempted to obtain the necessary

information, Sec. 302.605 now provides that the carrier

[[Page 6924]] must state that fact in the complaint. As discussed

above, the Department anticipates that airports will promptly disclose

any necessary information.

The carrier filing the complaint or the airport owner or operator

filing the request must serve the complaint or request and accompanying

documents on all carriers serving the airport using the expedited

procedures proposed in the NPRM. If a complaint has already been filed

with respect to a particular airport's fees, additional complaints are

due seven days after the initial complaint. All complaints must be

filed within 60 days after the carrier has received written notice of a

new or increased fees.

The final rule retains the language that the filing carrier or

airport would have to certify that it had previously attempted to

resolve any fee dispute directly. In addition, as noted above, the

filing party must certify that any submission on computer diskette is a

true copy of the data file used to prepare the brief or exhibit.

Section 302.607 Answers to a Complaint or Request for Determination

As discussed above, the most significant change in this section

involves the time for filing answers to complaints or requests for

determination. Answers will be due 14 days after the first complaint is

filed rather than seven days after each complaint. Answers are to

respond to both the initiating complaint and any follow-on complaints,

which will continue to be due seven days after the initial complaint.

This will respond to requests that we make it possible for parties to

submit a consolidated answer to all complaints, while still allowing

the Department sufficient time to review complaints or requests and the

answers submitted.

Under the final rule, therefore, upon receiving a copy of a

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

carrier could file its own complaint within seven days or an answer to

the first complaint within 14 days. As noted in the preamble to the

NPRM, it is technically permissible for a party to submit both its own

complaint and an answer to the initiating complaint. However, because

of the limited time available for the Department to review complaints

and answers, parties are strongly urged to avoid duplicative filings.

Naturally, answers, including answers in support of a complainant's

position, do not give the answering party status as an additional

complainant, nor may answers raise new objections to a fee or fees in

dispute. A carrier that wants to raise any new arguments in opposition

to the fee should do so in a follow-on complaint under Sec. 302.603.

Both the airport owner or operator and any carrier serving the

airport may file an answer to a complaint under this subpart. In the

case of an airport request for determination, any carrier serving the

airport would be authorized to file an answer. While only carriers

subject to a new or increased fee at the airport may submit a follow-on

complaint under Sec. 302.603, any carrier at the airport may submit an

answer.

As stated above, answering parties would generally be expected to

set out all of their responsive arguments, testimony and exhibits in

their answer.

The answering party will serve the complaining carrier or carriers

or the airport owner or operator requesting the determination by hand,

by electronic transmission, or by overnight express delivery. The

answering party must certify that the answer and accompanying documents

will be received no later than the day the answer is due, and that any

submission on computer diskette is a true copy of the data file used to

prepare the brief or exhibit. Answers need only be served on the party

to which the answer is directed.

Section 302.609 Replies

ACI-NA argued that we should eliminate the opportunity to file

replies, claiming that they are unnecessary, and that the requirement

that they be filed two calendar days after the answer makes the

opportunity to reply illusory. We see no need to eliminate the

opportunity to file replies, although we emphasize that replies are

voluntary submissions.

While no other party suggested eliminating replies altogether,

Massport, the Maryland Aviation Administration, and AAAE all

recommended that we allow two business days rather than two calendar

days. In part, it appears that this recommendation may stem from a

misunderstanding of our procedures. AAAE, for example, states that

``The rules as proposed would require that a party replying to an

answer filed on a Friday file its reply on Sunday evening, when the

agency is not even open for business.'' This is simply wrong. As

provided in our rules of practice (14 CFR Sec. 302.16), any filing that

would be due on a Saturday, Sunday, or government holiday is

automatically due instead on the next business day. Accordingly, when

an answer is due on a Thursday or Friday, any reply to the answer would

be due by close of business on the following Monday (or the first

business day thereafter). In such a case, the replying party would thus

have at least three calendar days to prepare and submit its reply,

although we recognize that two of those days are on the weekend.

In accordance with our proposal, only the carrier originating a

complaint or the airport originating a request for determination would

be authorized to file a reply. Except as provided in subpart A of 14

CFR Part 302, replies by any other party would not be accepted, nor

would further responsive pleadings. For that reason, the NPRM did not

propose to require that replies be served under the expedited

procedures required for complaints, requests for determination, and

answers. The NPRM specifically invited commenters to address whether

expedited procedures were necessary for replies, but no party did so.

We conclude that ordinary service as provided by 14 CFR Sec. 302.8

(including service by mail) will suffice for replies. As with

complaints, requests for determination, and answers, however, the

replying party must certify that any submission on computer diskette is

a true copy of the data file used to prepare the brief or exhibit.

Section 302.611 Review of Complaints

As was proposed, paragraph (a) of Sec. 302.611 provides that the

Secretary will determine within 30 days after a complaint is filed

whether a significant dispute exists and whether the complaint meets

the procedural requirements of subpart F. If the Secretary determines

that there is no significant dispute, he or she will issue an order

dismissing the complaint, as required by the FAA Authorization Act. The

Secretary's order will include an explanation of the reasons for the

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 will dismiss the complaint without prejudice. In this

case, the order would explain any conditions necessary for the

complaint to be re-filed.

When one or more properly filed complaints have been submitted, the

Secretary will issue an instituting order consolidating all complaints

that raise significant issues and any request for determination. The

instituting order will assign the consolidated case to an

administrative law judge and describe the issues to be considered and

the parties that will participate.

In addition, Sec. 302.611 now provides that the instituting order

may contain special provisions for exchange or disclosure of

information by the parties. [[Page 6925]] As discussed above, the

Department presumes that airports will provide all information

necessary for carriers to understand the basis and justification for

any new or increased airport fee. However, we have included this

provision to clarify the Department's ability to ensure that adequate

information is made available.

Finally, the Secretary's order will state when the administrative

law judge must 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

An airport owner or operator's request for determination of the

reasonableness of an airport fee will generally be handled in the same

manner as a carrier complaint. As discussed above, we have revised the

language of Sec. 302.613 to clarify the timing for action on an

airport's request.

When only an airport request has been filed, and not a carrier

complaint, the Secretary will determine within 30 days whether there is

a significant dispute and whether the procedural requirements of the

subpart have been met. Properly submitted requests raising a

significant dispute will be assigned to an administrative law judge in

the same manner as carrier complaints, with appropriate guidelines on

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

procedural deficiency, the request will 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, when both an airport request and one or more carrier

complaints have been filed, the Secretary will proceed under the

statutorily prescribed schedule for resolving the complaint. As

required by the FAA Authorization Act, the Secretary will determine

whether any complaint presents a significant dispute within 30 days

after the first complaint is submitted. If the first complaint is filed

after the airport owner or operator's request, the request will be

reviewed in conjunction with the complaints, and the consolidated

instituting order may be issued more than 30 days following the

request.

As discussed above, the Secretary will not dismiss an airport owner

or operator's request for determination on the basis that it does not

raise a significant issue. In such cases, the Secretary would usually

proceed directly to issue a final order determining whether the fee is

reasonable. While this determination would ordinarily not require any

additional procedures, the Secretary would retain discretion to require

whatever additional procedures are necessary in a particular case.

ACI-NA notes that paragraph (b) differs from paragraph (c) in that

the latter specifies that the Secretary's determination with respect to

reasonableness will be issued within 120 days after the airport request

is filed. ACI-NA asks that we insert the 120-day language in paragraph

(b) as well. While ACI-NA is correct that the two provisions should be

parallel, Sec. 302.619(b) contains the completion time applicable to

all requests for determination. Therefore, to avoid confusion, the

final rule deletes the last sentence of proposed paragraph (c).

Section 302.615 Decision by Administrative Law Judge

As provided by the FAA Authorization Act, Sec. 302.615 requires the

administrative law judge to issue a recommended decision within 60 days

after the case is assigned by the Secretary for hearing, unless the

instituting order specifies a shorter period.

ATA asked that we set out in this subpart specific requirements for

hearings on airport fee disputes. It recommended that ``the Rule

provide clear definition as to the nature of these hearings and a

standardized approach to the resolution of the complicated factual and

legal issues raised by airport fee disputes. As presently crafted, the

NPRM would apparently rely upon the Secretary's order to draft a

different approach in each and every case. Aside from the logical

impracticality of such an unpredictable approach, we believe it to be

so lacking in procedural guidance as to be fundamentally inconsistent

with the requirements of Section 47129. As an alternative, we propose

that the Secretary incorporate the procedures governing hearings set

forth in 14 CFR part 302, subpart A, as modified in order to meet the

time constraints imposed by Section 47129.''

ATA appears to be suggesting that the Department lacks authority to

impose specific requirements on the conduct of individual proceedings.

This is simply incorrect, and indeed one important purpose of an

instituting order is to tailor the general rules to the needs of a

particular case. However, with respect to ATA's alternative suggestion

that we rely generally on subpart A procedures, no change from the NPRM

language is necessary. We have made it clear throughout this rulemaking

that subpart A procedures will apply in the absence of a specific

applicable provision in this subpart or a direction in the instituting

order. As the FAA Authorization Act expressly states, following

assignment of the proceeding to an administrative law judge, ``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.'' (49 U.S.C.

47129(c)(2)). Similarly, subpart A of part 302 states as follows:

Subpart A of this part sets forth general rules applicable to

all types of proceedings. Each of the other subparts of this part

sets forth special rules applicable to the type of proceedings

described in the title of the subpart. Therefore, for information as

to applicable rules, reference should be made to subpart A and to

the rules in the subpart relating to the particular type of

proceeding 14 CFR 302.1(b).

ACI-NA argued that a prehearing conference should be mandatory for

all parties in any proceeding brought under this subpart in which an

oral hearing is scheduled. Although ACI-NA points out that this is

common practice in the federal courts and many state courts, we do not

believe that it is desirable to include this requirement in the rule.

Once the case is assigned for hearing, we anticipate that the

administrative law judge will frequently choose to order a prehearing

conference. There might even be situations in which it would be

appropriate for the Secretary to require a prehearing conference, in

which case the instituting order will direct one be held. However,

there is no reason for the final rule to make a prehearing conference

mandatory in all cases.

Section 302.617 Petitions for Discretionary Review

The Los Angeles Department of Airports objected to our proposal to

provide for the filing of petitions for discretionary review of the

administrative law judge's recommended decision. Instead, it argues

that the FAA Authorization Act mandates Secretarial review of the

recommended decision. It advocated allowing seven days for parties to

provide exceptions to the recommended decision, and an additional seven

days in which to file cross-exceptions.

As we stated in the preamble to the NPRM, we anticipate that the

Secretary will issue all final orders in proceedings under subpart F.

Nevertheless, we do not agree that the Authorization Act makes this

mandatory. In fact, the statute specifically anticipates that the

Secretary might not issue a final order: It provides that the

administrative law [[Page 6926]] judge's recommended decision is to be

considered the Secretary's final order if the Secretary does not act

within 120 days after a complaint is filed. Accordingly, we will adopt

the proposed structure of providing for discretionary review of the

recommended decision.

As we proposed, a party to the proceeding will be able to file a

petition for discretionary review of the administrative law judge's

decision within five days after the recommended decision is served. The

petitioner will serve all parties by hand, electronic transmission or

overnight express delivery, and will certify that all parties had

received the petition or would receive it by the date of filing. Any

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

after the petition is filed. AAAE and ACI-NA stated that answers should

be subject to the same expedited service requirements as petitions, but

they did not explain why this would be necessary. The Department does

not anticipate permitting further pleadings at this stage of the

proceeding, and we do not believe that the burden of expedited service

is justified.

Section 302.619 Completion of Proceeding

This section sets out the completion dates for proceedings

conducted under this subpart. No comments were submitted on it, and it

is unchanged from the NPRM.

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 provides 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 Sec. 302.613, the Department will

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 the schedule

for action by the Department. 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.

Section 302.621 Final Order

Following review of the recommended decision, the Secretary will

issue a final determination with respect to the reasonableness of an

airport fee that is the subject of a complaint or a request under this

subpart. The Secretary's order will set forth the reasoning underlying

the determination, and, if a fee is determined to be unreasonable, the

order will provide for a refund or credit of the unreasonable charge.

As noted in the NPRM, 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 Maryland Aviation

Administration expressed concern in its comments that disputes may not

really be resolved within the 120-day limit unless the Department

states what a reasonable fee would be. In the absence of such a

statement, a revised fee would still be subject to challenge. Because

the limitation on the Secretary's authority is a matter of statute,

there is nothing we can do in this rulemaking to change it. However,

the Secretary's order will attempt to set out the analysis underlying

the decision as clearly as possible. If a fee is found unreasonable, we

hope and expect that parties will be able to establish a reasonable fee

after reviewing the decision and analysis.

The Maryland Aviation Administration also states that ``the

Department, or as may be required, the framers of the underlying

statutory scheme, should consider whether the Department should award

costs to airports'' when a disputed fee is found reasonable. As the

commenter appears to appreciate, the Department does not have authority

to award costs to the prevailing party in a fee dispute under subpart

F. Accordingly, the comment is beyond the scope of this rulemaking.

ACI-NA asks that the rule clarify that ``any finding of

unreasonableness resulting from a complaint filed by a non-signatory

carrier does not affect the underlying rates for signatory carriers,

since the signatory fees may not be challenged.'' No rule change is

needed here. However, it is obvious that no fee will be found to be

unreasonable under subpart F unless it is the subject of a complaint or

a request for determination.

As stated above, the Department expects the Secretary to issue all

final orders. However, if the Secretary fails to issue an order within

120 days after a complaint is filed, the FAA Authorization Act requires

that the administrative law judge's decision be deemed the final order

of the Secretary. Section 302.621(c) restates this requirement. There

is no corresponding legislative requirement with respect to airport

requests for determination. Therefore Section 302.621 does not contain

any provision for automatic adoption of the administrative law judge's

decision. The Department nevertheless intends to resolve airport

requests for determination within 120 days after they are filed.

Justification for Immediate Effectiveness

Section 553 of the Administrative Procedure Act provides that the

effective date of a new rule should be at least 30 days after it is

published, unless the agency finds good cause for a shorter period.

In enacting the FAA Authorization Act, the Congress made it clear

that it intends for fee disputes between carriers and airports to be

resolved promptly. Congress required that the Department issue this

rule within 90 days of enactment of the Authorization Act, and mandated

that all proceedings brought under the new procedures lead to a final

order within 120 days. The Department will be unable to process any

carrier complaints under this subpart until the procedures are

effective. Accordingly, the Department finds that good cause exists to

make this rule effective on publication in the Federal Register.

Regulatory Evaluation Summary

This final rule contains 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 sets forth corresponding procedures

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

determination of the reasonableness of a fee or charge it

[[Page 6927]] has imposed on one or more air carriers or foreign air

carriers. The new procedures replace existing procedures under 14 CFR

part 13, and impose no new substantive requirements on either carriers

or airports. The only commenter to question the tentative conclusion in

the NPRM that the economic effect of the proposed rule would be minimal

was the Maryland Aviation Administration, which argues that ``[t]he

cost to provide expert witnesses and legal counsel if it is determined

that there is a `significant dispute' may well prove to be material.''

The Maryland Aviation Administration did not attempt to quantify the

costs it believed involved. More importantly, it did not establish that

the costs are actually the result of the procedural rules at issue here

rather than the general cost of the litigation authorized by 49 U.S.C.

47129. Accordingly, the Department concludes that the economic impact

of the final rule is 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 rule contains procedural requirements

for processing carrier complaints and airport requests. The Department

concludes that the rule will not have a significant economic impact on

a substantial number of small entities.

Federalism Implications

The final rule will 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 rule does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

Paperwork Reduction Act

This 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 rulemaking are minimal, this rule is considered significant under

Executive Order 12866 because of the public interest in this

rulemaking. The Department certifies that this rule 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 rule is considered significant under DOT

Regulatory Policies and Procedures (44 FR 11034; February 26, 1978).

List of Subjects in 14 CFR Part 302

Administrative practice and procedure, Air carriers, Airports,

Postal Service.

The Amendments

Accordingly, the Department of Transportation amends 14 CFR part

302 as follows:

PART 302--RULES OF PRACTICE IN PROCEEDINGS

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:

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. 47129 (a), for a determination of the

reasonableness of a fee increase or a newly established fee for

aeronautical uses that is 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 Sec. 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

imposition of the new fee or the imposition of the increase in the fee.

and any request for determination filed with respect to the same

airport fee or fees will be considered in a consolidated proceeding, as

provided in Secs. 302.611 and 302.613.

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. [[Page 6928]] 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 available to the carrier 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) All exhibits and briefs prepared on electronic spreadsheet or

word processing programs should be accompanied by standard-format

computer diskettes containing those submissions. Word processing and

spreadsheets files must be readable by current versions of one or more

of the following programs, or in such other format as may be specified

by notice in the Federal Register: Microsoft Word, Word Perfect, Ami

Pro, Microsoft Excel, Lotus, Quattro Pro, or ASCII tab-delineated

files. Parties should submit one copy of each diskette to the docket

section, one copy to the office of the Chief Administrative Law Judge

(M-50), and one copy to the Chief, Economic and Financial Analysis

Division (X-55), of the Office of Aviation Analysis. Filers should

ensure that files on the diskettes are unalterably locked.

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. (Unless an

air carrier or foreign air carrier has informed the complaining carrier

that a different person should be served, service may be made on the

person responsible for communicating with the airport on behalf of the

carrier about airport fees.);

(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;

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

directly with the airport owner or operator;

(4) When there is information on which the carrier intends to rely

that is not included with the brief, exhibits, or testimony, the

information has been omitted because the airport owner or operator has

not made that information available to the carrier. The certification

shall specify the date and form of the carrier's request for

information from the airport owner or operator; and

(5) Any submission on computer diskette is a true copy of the data

file used to prepare the printed versions of the exhibits or briefs.

(d) 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. (Unless the air carrier

or foreign air carrier has informed the airport owner or operator that

a different person should be served, service may be made on the person

responsible for communicating with the airport on behalf of the carrier

about airport fees.);

(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;

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

resolve the dispute directly with the carriers; and

(4) Any submission on computer diskette is a true copy of the data

file used to prepare the printed versions of the exhibits or briefs.

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. When one or more

additional complaints or a request for determination has been filed

pursuant to Sec. 302.603(b) with respect to the same airport's fee or

fees, the answer shall set forth the answering party's entire response

to all complaints and any such request for determination. 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 answering

party may incorporate by reference testimony and exhibits already filed

in the same proceeding.

calendar days after the filing date of the first complaint with respect

to the fee or fees in dispute at a particular airport. Answers to a

request for determination shall be filed no later than fourteen

calendar days after the filing date of the request.

(d) All exhibits and briefs prepared on electronic spreadsheet or