Fees for Air Traffic Services for Certain Flights Through U.S.- Controlled Airspace

SUMMARY: The FAA is amending Title 14 of the Code of Federal

Regulations (14 CFR) to remove the interim rule that established fees

and collection procedures for FAA air traffic and related services

provided to certain aircraft that transit U.S.-controlled airspace but

neither take off from, nor land in, the United States. On January 30,

1998, the United States Court of Appeals for the District of Columbia

(court) vacated the FAA's interim final rule and remanded the rule to

the FAA for disposition. The FAA is taking this action in anticipation

of issuing another interim final rule for FAA air traffic and related

services as provided for in the 1996 FAA Reauthorization Act.

DATES: This rule is effective July 21, 1998.

FOR FURTHER INFORMATION CONTACT: Mr. Jeffrey Wharff, Office of Aviation

Policy, Federal Aviation Administration, 800 Independence Avenue SW.,

Washington, DC 20591, telephone (202) 267-7035.

SUPPLEMENTARY INFORMATION: On March 20, 1997, the FAA published

Amendment No. 187-727 (62 FR 13496), to announce the establishment of

fees for FAA air traffic and related services provided to certain

aircraft that transit U.S.-controlled airspace but neither take off

from, nor land in, the United States. The FAA invited public comment on

this interim final rule. The comment period closed on July 18, 1997. In

addition, the FAA held a public meeting on May 1, 1997. The FAA also

published two additional interim final rules that amended the original

interim final rule on May 2, 1997 (62 FR 24285) and October 2, 1997 (62

FR 51735).

Authority to Establish Fees

The Federal Aviation Reauthorization Act of 1996 (the Act) directed

the FAA to establish by interim final rule a fee schedule and

collection process for air traffic control and related services

provided to aircraft other than military and civilian aircraft of the

United States government or of a foreign government that neither take

off from, nor land in, the United States (42 U.S.C. 45301, as amended

by Pub. L. 104-264). Also, the Act directed the FAA to ensure that the

fees collected are directly related to the FAA's costs of providing the

services rendered.

United States Court of Appeals for the District of Columbia

Decision

On January 30, 1998, the court issued its opinion on seven

petitions consolidated in the case of Asiana Airlines et. al.

(petitioners), versus the Federal Aviation Administration and Acting

Administrator (respondents), 1998 U.S. App. Lexis 1286, App. No. 97-

1356 (1998).

The petitioners challenged the interim final rule asserting that

the FAA acted improperly in employing an expedited procedure before the

effective date of the interim final rule, and that the regulation

violated the anti-discrimination provisions of various international

aviation agreements. The court rejected the petitioners' claims that

FAA acted improperly in employing an expedited procedure before the

effective date of the interim final rule, and that the regulation

violated the antidiscrimination provisions of various international

aviation agreements. However, the court concluded that the FAA's

methodology of determining cost violated statutory requirements.

The court, therefore, vacated the interim final rule in its

entirety and remanded the interim final rule to the FAA for further

proceedings consistent with the opinion. The FAA anticipates that

another interim final rule consistent with the 1996 FAA Reauthorization

Act will be issued. The FAA will advise users of the details of any

future interim final rule prior to the effective date of any new fee

schedule imposed by interim final rule.

Discussion of Comments

As noted above, when the FAA issued the interim final rule on March

20, 1997, comments were requested concerning the rule. One hundred and

twenty comments were received. As the FAA is amending 14 CFR to remove

the interim final rule for fees and collection procedures for FAA air

traffic and related services, and will not be implementing the interim

final rule as a final rule, the comments received need no disposition.

Also, most of the issues raised by the commenters were addressed by the

court. In any future rulemakings pursuant to 49 U.S.C. 45301, the FAA

will seek comments on any interim final rule that will be implemented

as a final rule.

Accordingly, the FAA amends 14 CFR part 187, and Appendix B of part

187, by removing all references to fees and collection procedures for

FAA air traffic and related services provided to certain aircraft that

transit U.S.-controlled airspace but neither take off from, nor land

in, the United States.

List of Subjects in 14 CFR Part 187

Administrative practice and procedure, Air transportation.

The Amendment

The Federal Aviation Administration amends Title 14 of the Code of

Federal Regulations part 187 as follows:

PART 187--FEES

1. The authority citation for part 187 continues to read as

follows:

Authority: 31 U.S.C. 9701; 49 U.S.C. 106(g), 40104-40105, 40109,

40113-40114, 44702, 45301-45303.

2. Section 187.1 is amended by removing the following sentence:

``Appendix B to this part prescribes the fees for certain aircraft

flights that transit U.S.-controlled airspace.''

3. Section 187.15 is amended by removing paragraph (d).

4. Part 187 is amended by removing and reserving appendix B.

Issued in Washington, DC, on July 21, 1998.

Jane F. Garvey,

Administrator.

[FR Doc. 98-19875 Filed 7-23-98; 8:45 am]

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