[Federal Register Volume 59, Number 179 (Friday, September 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23022]


[[Page Unknown]]

[Federal Register: September 16, 1994]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

 14 CFR Parts 13 and 16

[Docket No. 27783; Notice No. 94-18A]
RIN 2120-AF-43

 

Rules of Practice for Federally Assisted Airport Proceedings

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Proposed rule; partial withdrawal and extension of comment 
period.

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

SUMMARY: On June 9, 1994, the Office of the Secretary of Transportation 
and the FAA published a notice of proposed rulemaking (NPRM) entitled, 
``Rules of Practice for Federally Assisted Airport Proceedings.'' The 
recently enacted Federal Aviation Administration Authorization Act of 
1994 requires that DOT and FAA, in the handling of a complaint by an 
airline that an airport fee is not reasonable, use certain procedures 
that are substantially different from the procedures proposed in the 
NPRM. This notice revises the proposal in the NPRM by withdrawing 
proposed Subpart J, the special procedures for the handling of airport 
fee complaints, and extends the comment period for commenting on the 
remaining proposal. DOT will propose separate procedures to implement 
the airport fee provisions of the new legislation.

DATES: The comment period for Notice 94-18 as revised by this partial 
withdrawal is extended from September 15, 1994, to December 1, 1994.

ADDRESSES: Comments should be mailed, in triplicate, to: Federal 
Aviation Administration, Office of Chief Counsel, Attention: Rules 
Docket (AGC-10), Docket No. 27783, 800 Independence Avenue, SW., 
Washington, DC 20591. All comments must be marked: ``Docket No. 
27783.'' Comments on this Notice may be examined in room 915G on 
weekdays, except on Federal holidays, between 8:30 a.m. and 5 p.m.

FOR FURTHER INFORMATION CONTACT: Mr. Barry Molar, Airports Law Branch 
(AGC-610), Office of the Chief Counsel, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591, 
telephone (202) 267-3473.

SUPPLEMENTARY INFORMATION: On June 9, 1994, the Office of the Secretary 
of Transportation (OST) and the FAA issued two related notices on the 
subject of Federal policy on airport rates and charges. A notice of 
proposed policy entitled ``Proposed Policy Regarding Airport Rates and 
Charges,'' (Proposed Policy) listed and explained the principles that 
the OST and the FAA believe define Federal policy on the rates and 
charges that an airport proprietor can charge to aeronautical users of 
the airport. (59 FR 29874). Notice 94-18, a notice of proposed 
rulemaking entitled ``Rules of Practice for Federally Assisted 
Airports,'' proposed detailed 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). The NPRM provided a comment period 
extending until August 8, 1994, and was extended until September 15, 
1994 (59 FR 41192; August 10, 1994).
    Subpart J of the proposed rule provided special procedures for 
complaints by airlines involving the fees charged by an airport 
proprietor. In brief, Subpart J provided an expedited formal 
investigation that included an evidentiary investigative hearing 
presided over by a designated FAA employee. The presiding officer would 
issue a report of investigation to the Assistant Administrator for 
Airports generally within 90 days of the complaint. Within 120 days of 
the complaint, the Assistant Administrator would issue an initial 
determination of whether the airport fee at issue violated Federal 
requirements that fees be fair and reasonable and not unjustly 
discriminatory. An initial determination would be subject to final 
decision by the Administrator as a result of direct written appeal or, 
in certain circumstances, of appeal from the initial decision of an FAA 
hearing officer in an adjudicatory hearing requested by the respondent.

Federal Aviation Authorization Act of 1994

    The FAA Authorization Act of 1994, Public Law 103-305 (1994 
Authorization Act) was signed into law on August 23, 1994. Section 113 
of the 1994 Authorization Act included specific provisions for the 
resolution of airport-air carrier disputes concerning airport fees. To 
a substantial degree, those provisions are different from and 
inconsistent with the Subpart J procedures proposed earlier by the OST 
and the FAA. Section 113 in its entirety reads as follows:

SEC. 113. RESOLUTION OF AIRPORT-AIR CARRIER DISPUTES CONCERNING AIRPORT 
FEES.

    (a) IN GENERAL.--Subchapter I of chapter 471 of subtitle VII is 
amended--
    (1) by redesignating section 47129 (and any references thereto) 
as section 47131; and
    (2) by inserting after section 47128 the following new section:

``S 47129. Resolution of airport-air carrier disputes concerning 
airport fees

    ``(a) AUTHORITY TO REQUEST SECRETARY'S DETERMINATION.--
    ``(1) IN GENERAL.--The Secretary of Transportation shall issue a 
determination as to whether a fee imposed upon one or more air 
carriers (as defined in section 40102 of this subtitle) by the owner 
or operator of an airport is reasonable if--
    ``(A) a written request for such determination is filed with the 
Secretary by such owner or operator; or
    ``(B) a written complaint requesting such determination is filed 
with the Secretary by an affected air carrier within 60 days after 
such carrier receives written notice of the establishment or 
increase of such fee.
    ``(2) CALCULATION OF FEE.--A fee subject to a determination of 
reasonableness under this section may be calculated pursuant to 
either a compensatory or residual fee methodology or any combination 
thereof.
    ``(3) SECRETARY NOT TO SET FEE.--In determining whether a fee is 
reasonable under this section, the Secretary may only determine 
whether the fee is reasonable or unreasonable and shall not set the 
level of the fee.
    ``(b) PROCEDURAL REGULATIONS.--Not later than 90 days after the 
date of the enactment of this section, the Secretary shall publish 
in the Federal Register final regulations, policy statements, or 
guidelines establishing--
    ``(1) the procedures for acting upon any written request or 
complaint filed under subsection (a)(1); and
    ``(2) the standards or guidelines that shall be used by the 
Secretary in determining under this section whether an airport fee 
is reasonable.
    ``(c) DECISIONS BY SECRETARY.--The final regulations, policy 
statements, or guidelines required in subsection (b) shall provide 
the following:
    ``(1) Not more than 120 days after an air carrier files with the 
Secretary a written complaint relating to an airport fee, the 
Secretary shall issue a final order determining whether such fee is 
reasonable.
    ``(2) Within 30 days after such complaint is filed with the 
Secretary, the Secretary shall dismiss the complaint if no 
significant dispute exists or shall assign the matter to an 
administrative law judge; and thereafter the matter shall be handled 
in accordance with part 302 of title 14, Code of Federal 
Regulations, or as modified by the Secretary to ensure an orderly 
disposition of the matter within the 120-day period and any 
specifically applicable provisions of this section.
    ``(3) The administrative law judge shall issue a recommended 
decision within 60 days after the complaint is assigned or within 
such shorter period as the Secretary may specify.
    ``(4) If the Secretary, upon the expiration of 120 days after 
the filing of the complaint, has not issued a final order, the 
decision of the administrative law judge shall be deemed to be the 
final order of the Secretary.
    ``(5) Any party to the dispute may seek review of a final order 
of the Secretary under this subsection in the Circuit Court of 
Appeals for the District of Columbia Circuit or the court of appeals 
in the circuit where the airport which gives rise to the written 
complaint is located.
    ``(6) Any findings of fact in a final order of the Secretary 
under this subsection, if supported by substantial evidence, shall 
be conclusive if challenged in a court pursuant to this subsection. 
No objection to such a final order shall be considered by the court 
unless objection was urged before an administrative law judge or the 
Secretary at a proceeding under this subsection or, if not so urged, 
unless there were reasonable grounds for failure to do so.
    ``(d) PAYMENT UNDER PROTEST; GUARANTEE OF AIR CARRIER ACCESS.--
    ``(1) PAYMENT UNDER PROTEST.--
    ``(A) IN GENERAL.--Any fee increase or newly established fee 
which is the subject of a complaint that is not dismissed by the 
Secretary shall be paid by the complainant air carrier to the 
airport under protest.
    ``(B) REFERRAL OR CREDIT.--Any amounts paid under this 
subsection by a complainant air carrier to the airport under protest 
shall be subject to refund or credit to the air carrier in 
accordance with directions in the final order of the Secretary 
within 30 days of such order.
    ``(C) ASSURANCE OF TIMELY REPAYMENT.--In order to assure the 
timely repayment, with interest, of amounts in dispute determined 
not to be reasonable by the Secretary, the airport shall obtain a 
letter of credit, or surety bond, or other suitable credit facility, 
equal to the amount in dispute that is due during the 120-day period 
established by this section, plus interest, unless the airport and 
the complainant air carrier agree otherwise.
    ``(D) DEADLINE.--The letter of credit, or surety bond, or other 
suitable credit facility shall be provided to the Secretary within 
20 days of the filing of the complaint and shall remain in effect 
for 30 days after the earlier of 120 days or the issuance of a 
timely final order by the Secretary determining whether such fee is 
reasonable.
    ``(2) GUARANTEE OF AIR CARRIER ACCESS.--Contingent upon an air 
carrier's compliance with the requirements of paragraph (1) and 
pending the issuance of a final order by the Secretary determining 
the reasonableness of a fee that is the subject of a complaint filed 
under subsection (a)(1)(B), an owner or operator of an airport may 
not deny an air carrier currently providing air service at the 
airport reasonable access to airport facilities or service, or 
otherwise interfere with an air carrier's prices, routes, or 
services, as a means of enforcing the fee.
    ``(e) APPLICABILITY.--This section does not apply to--
    ``(1) a fee imposed pursuant to a written agreement with air 
carriers using the facilities of an airport;
    ``(2) a fee imposed pursuant to a financing agreement or 
covenant entered into prior to the date of the enactment of this 
section; or
    ``(3) any other existing fee not in dispute as of such date of 
enactment.
    ``(f) EFFECT ON EXISTING AGREEMENTS.--Nothing in this section 
shall adversely affect--
    ``(1) the rights of any party under any existing written 
agreement between an air carrier and the owner or operator of an 
airport; or
    ``(2) the ability of an airport to meet its obligations under a 
financing agreement, or covenant, that is in force as of the date of 
the enactment of this section.
    ``(g) DEFINITIONS.--In this section, the term `fee' means any 
rate, rental charge, landing fee, or other service charge for the 
use of airport facilities.''.
    (b) CONFORMING AMENDMENT.--The analysis to such chapter is 
amended--
    (1) by striking ``47129'' and inserting ``37131''; and
    (2) by inserting after the item relating to section 47128 the 
following:
    ``47129. Resolution of airport-air carrier disputes concerning 
airport fees.''.

Rulemaking To Implement Section 113

    The OST and the FAA are in the process of reviewing the provisions 
of Section 113. Because the rules previously proposed are in many 
respects not consistent with Section 113, the OST and the FAA are 
considering new regulations to implement the new law, and currently 
intend to publish a proposed rule for public comment as soon as the 
review is complete. Notwithstanding the 90-day period prescribed in the 
1994 Authorization Act to complete rulemaking, the OST and the FAA will 
provide an opportunity to comment on the proposal, although commenters 
can expect a relatively brief period for public comment in view of the 
90-day period for rulemaking provided in the legislation. We anticipate 
publication of proposed regulations by October 15, 1994 with a comment 
period of approximately 15 days.

Related Actions

    By a separate notice being published simultaneously in the Federal 
Register, OST is extending the comment period on the Proposed Policy 
until October 15, 1994 and announcing our intention to issue a 
supplemental notice. We anticipate that the supplemental notice will be 
published not later than October 1, 1994.

Amendment of Notice 94-18

    In consideration of the differences between the rules proposed in 
the NPRM and the provisions of Section 113 of the 1994 Authorization 
Act, the OST and the FAA believe that there is no further reason to 
seek public comment on the special provisions in the NPRM for air 
carrier complaints related to whether airport fees are reasonable. At 
the same time, the remaining procedures proposed in the NPRM, which 
would apply to the various other kinds of complaints filed against 
airports relating to Federal requirements, are not affected by the 1994 
Authorization Act. Accordingly, the OST and the FAA are withdrawing 
Subpart J of the rule proposed in the NPRM, and are continuing the 
proposal of all remaining provisions of the NPRM. In order to permit 
additional time for commenters to consider the proposal as revised by 
the withdrawal of Subpart J, the OST and the FAA are extending the 
comment period. Comments on the proposed rule are now due on or before 
December 1, 1994.

Regulatory Evaluation Summary

    The NPRM proposed the adoption of a new procedure for the filing, 
investigation, and adjudication of complaints against airports for 
violation of certain statutes administered by the FAA. The new 
procedures would be substituted for existing procedures under 14 CFR 
part 13. With the exception of the deletion of the procedure for 
resolution of complaints by airlines regarding airport fees, the rule 
proposed in the NPRM has not changed. Accordingly, as stated in the 
NPRM, the expected economic impact of this proposed amendment would be 
so minimal that a full Regulatory Evaluation is not warranted.

Conclusion

    For the reasons discussed in the preamble, the FAA has determined 
that this change to the proposed regulation is not economically 
significant under Executive Order 12866. However, due to the public 
interest in this rulemaking, this proposed rule is considered 
significant under the Executive Order. The FAA certifies that this 
proposal, if adopted, will not have a significant economic impact, 
positive or negative, on a substantial number of small entities under 
the criteria of the Regulatory Flexibility Act. This proposal is 
considered significant under DOT Regulatory Policies and Procedures (44 
FR 11034; February 26, 1978).

List of Subjects

14 CFR Part 13

    Enforcement procedures, Investigations, Penalties.

14 CFR Part 16

    Enforcement procedures, Investigations.

Partial Withdrawal of the Proposed Amendments

    Accordingly, the Federal Aviation Administration proposes to amend 
part 13 and adopt new part 16 of the Federal Aviation Regulations (14 
CFR parts 13 and 16) as proposed in Notice 94-18, except that proposed 
Subpart J of the proposed rule, entitled ``Subpart J--Alternate 
Procedure for Certain Complaints Concerning Airport Rates and 
Charges,'' and related references to Subpart J in the index of the 
proposed rule, are hereby withdrawn.

    Issued in Washington, DC, on September 12, 1994.
Cynthia Rich,
Assistant Administrator for Airports.
[FR Doc. 94-23022 Filed 9-13-94; 3:34 pm]
BILLING CODE 4910-13-M