[Federal Register Volume 59, Number 56 (Wednesday, March 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6795]


[[Page Unknown]]

[Federal Register: March 23, 1994]


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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.

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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