[Federal Register Volume 59, Number 204 (Monday, October 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26385]


[[Page Unknown]]

[Federal Register: October 24, 1994]


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DEPARTMENT OF TRANSPORTATION
14 CFR Part 302

Docket No. 49830 Notice No. 94-19
RIN 2105-AC18

 

Rules of Practice for Proceedings Concerning Airport Fees

AGENCY: Department of Transportation; Office of the Secretary.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: This notice proposes to establish 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. This notice also 
proposes rules that would apply to requests by the owner or operator of 
an airport for such a determination. The rulemaking is intended to 
respond 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.

DATES: Comments on the proposed rule are due November 4, 1994. Because 
the statute requires the Department to issue a final rule by November 
21, 1994, it will be difficult or impossible to consider late-filed 
comments or to entertain requests for an extension of the comment 
period.

ADDRESSES: Comments should be sent to the Docket Clerk, Docket No. 
49830, Department of Transportation, 400 7th Street, SW.,Room 4107, 
Washington, DC 20590. To facilitated consideration of the comments, we 
ask commenters to file twelve copies of each comment. We also encourage 
commenters who wish to do so to submit comments to the Department 
through the Internet; our Internet address is dot_
[email protected].\1\ Note, however, that at this time the 
Department considers only the paper copies filed with the Docket Clerk 
to be the official comments. Comments will be available for inspection 
at this address from 9:00 a.m. to 5:00 p.m.. Monday through Friday. 
Commenters who wish the Department to acknowledge the receipt of their 
comments should include a stamped, self-addressed postcard with their 
comments. The Docket Clerk will date-stamp the postcard and mail it 
back to the commenter.
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    \1\Our x.400 e-mail address is G=DOT/S=dockets/QUI=qmail/O=hq/
p=gov+dot/a=attmail/c=us.
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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 
20591, telephone (202) 366-9307.

SUPPLEMENTARY INFORMATION:

Procedural Background

    On June 9, 1994, the Office of the Secretary of Transportation 
(OST) and the Federal Aviation Administration 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 
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.
    In brief, the special procedures in the FAA proposal would have 
provided an expedited formal investigation that included an evidentiary 
investigative hearing presided over by a designated FAA employee. The 
presiding officer would have issued a report of investigation to the 
FAA's Assistant Administrator for Airports, generally within 90 days of 
the complaint. Within 120 days of the complaint, the Assistant 
Administrator would have been required to 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 have been 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.

The Federal Aviation Authorization Act of 1994

    The FAA Authorization Act of 1994 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. 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) DEFINITION.--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 ``47131''; and
    (2) by inserting after the item relating to section 47128 the 
following:
    47129. Resolution of airport-air carrier disputes concerning 
airport fees.

    Because of the substantial differences between the procedures 
contemplated by the FAA Authorization Act and those proposed by the 
FAA, 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. In order to permit 
additional time for commenters to consider the proposal as revised, OST 
and the FAA extended the comment period to December 1, 1994. In the 
same notice, the FAA noted that OST and the FAA were considering new 
regulations to implement the new law, and intended to publish a 
proposed rule for public comment as soon as practicable. We are today 
publishing that new proposed rule.
    The statutory mandates to issue these procedural regulations and to 
issue any final orders in cases brought under the new law are directed 
toward the Secretary of Transportation. For that reason, the Office of 
the Secretary is issuing this notice. Because of the short time 
available to draft the proposed rule, however, the Secretary has not 
yet determined whether to delegate this function to another official of 
the Department, including an Assistant Secretary or the FAA 
Administrator. That determination will be made by the time this 
rulemaking is completed. Regardless of the deciding official, the final 
order in a proceeding brought under this Subpart will constitute a 
final order of the Secretary.

Summary of Regulatory Approach

    Section 113 of the FAA Authorization Act prescribes a clear basic 
procedure for the hearing of an air carrier complaint and issuance of a 
final agency determination as to whether an airport fee is fair and 
reasonable. When applied to a complaint by a single carrier, the 
procedure does not present any apparent conflicts or difficulties. 
However, the fees charged air carriers at airports generally apply to a 
number of carriers, and the Department believes multiple complaints 
with respect to a particular airport fee would be more likely than a 
single complaint. The procedures adopted, therefore, must provide for 
the orderly disposition of all the complaints concerning a particular 
fee increase.
    Certain objectives of the required procedure are clear and need to 
be considered in the development of implementing regulations for 
Section 113. First, the procedure adopted must produce a final 
determination about the reasonableness of the fee within 120 days after 
a complaint is filed. Second, the section guarantees a hearing before 
an administrative law judge of every air carrier complaint that the 
Secretary finds to be a significant dispute. Because the procedure 
requires a hearing in accordance with 14 CFR Part 302 before an 
administrative law judge, the provisions of the Administrative 
Procedure Act apply to the hearing, indicating a Congressional intent 
that the hearing and decisionmaking involve the use of oral evidentiary 
procedures, to the extent consistent with the expedited time frame. 
Section 113 specifically provides that the Secretary may modify 
existing Part 302 procedures ``to ensure an orderly disposition of the 
matter'' within the 120-day period. Third, through a surety bond or 
similar security instrument that the airport operator must obtain, 
Section 113 is intended to assure that funds are available to refund or 
credit disputed fees that are paid by an air carrier and subsequently 
found to be unreasonable.
    With these objectives in mind, the Department has considered three 
basic approaches in developing this proposal to implement the statutory 
mandate. These are: (1) Consider the filing of each complaint as a 
separate, unrelated, event; (2) Consolidate and consider all complaints 
after the end of the statutorily-imposed 60-day limit on filing; and 
(3) Consolidate all other complaints as soon as the first carrier files 
a complaint. Each of these approaches has both advantages and 
disadvantages.
    Of the three approaches, number (1) is perhaps the simplest to 
describe and understand. Under this approach, the Department would 
decide each complaint separately, as it arises. When there are multiple 
complaints with respect to the fees at a particular airport, each 
complaint would be evaluated to determine whether it described a 
significant dispute, and, if so, it would be assigned for hearing 
before an administrative law judge.
    If numerous carriers file individual complaints, however, it is 
apparent that this procedure would rapidly become infeasible. 
Individual handling of separate complaints would result in the 
assignment of complaints about the same airport fee to different 
administrative law judges; separate and possibly inconsistent decisions 
by different judges would unfairly burden the airport proprietor and 
the complainants; and, with each complaint being set for a separate 
hearing, the Department's resources could be quickly overwhelmed, 
frustrating the statute's purpose of achieving a final determination by 
the Secretary within 120 days.
    Moreover, some complainants might find themselves seriously 
disadvantaged. An example is a case in which the first complaint is 
filed immediately after notice of the fee, and the second complaint is 
filed 40 days later. As required by the Authorization Act in new 
section 49 U.S.C. 47129(c)(2), the Secretary would issue an order on 
the first complaint, defining issues and assigning the case for 
hearing, within 30 days, i.e., before the second complaint is filed. 
The second complaint may raise new issues not addressed by the first, 
but there would be insufficient time for amendment of the order with 
the 120-day period already running on the first. In addition, while the 
Authorization Act requires an airport owner or operator to obtain a 
surety bond within 20 days after a complaint is filed, it makes no 
provision for requiring extension of that bond beyond 120 days. As a 
result, the bond is likely to expire before the Secretary issues a 
determination on the later-filing carrier's complaint. (While in theory 
it might be possible for an airport owner or operator to obtain a 
separate bond for each complaint, it does not appear that the statute 
contemplates such a requirement. Instead, it speaks of a bond to cover 
``the amount in dispute that is due during the 120-day period'' 
following the initial complaint. )
    The first complaint would also likely proceed to final 
determination well before the second. Since the Secretary is compelled 
to issue a determination of the reasonableness of the airport fee 
within 120 days, the second complainant might be bound by the decision 
in the first case. In this connection, it should be noted that the FAA 
Authorization Act repeatedly refers to ``a determination'' by the 
Secretary as to ``whether such fee is reasonable.'' That is, the 
statutory language focuses on a single determination about 
reasonableness. Arguably, therefore, if the Secretary finds in the 
first case that the fee ``is reasonable,'' that finding could bind all 
other complaints.
    Approach (2) addresses many of the above concerns. Under this 
approach, the Department would require all complaints to be filed on 
the 60th day after an airport has given carriers written notice of a 
new or increased fee, that is, at the end of the period specified by 
the FAA Authorization Act. At that point, the Department would 
establish a single proceeding, consisting of all complaints that have 
been filed by the carriers.
    Since all complaints would be filed at the same time, they could 
readily be considered in a consolidated proceeding; any that present 
significant disputes would be assigned for hearing before a single 
administrative law judge. Although there might be several parties and 
more than one issue to be decided, this approach would still be far 
more efficient for both the parties and the Department. The surety bond 
would cover the entire period of the proceeding, and would thus be 
available to ensure repayment of an unreasonable fee paid by any 
complaining carrier. There would be no concern that a late-filing 
carrier would be disadvantaged in comparison to a carrier that files 
early, because all complaints would be filed simultaneously at the end 
of the 60-day period. (Alternatively, the Department could accept an 
earlier-filed complaint, but hold it in abeyance until the 60-day 
period had elapsed.) The Department would then proceed to issue a final 
determination within 120 days after the end of the complaint-filing 
period.
    Although this would provide a simpler and more manageable approach 
to resolving carrier complaints, we have tentatively rejected it as 
potentially not in keeping with the intent of the FAA Authorization 
Act. As noted above, one clear statutory purpose was to provide that 
complaints would be heard and decided within 120 days after they are 
filed. But by specifying that all complaints are to be filed at the end 
of the 60-day period, a carrier that is ready to file at an earlier 
point would not receive a determination within 120 days of that earlier 
date. In our view, this may not be in accord with the language of the 
statute.
    Approach (3), which is embodied in this Notice of Proposed 
Rulemaking, also addresses many of the difficulties presented by 
Approach (1). As discussed below, we recognize that this approach too 
presents some difficulties, and it may not fully satisfy everyone. 
However, given the statutory mandate, we believe it represents the best 
solution to the problems described above.
    As in Approach (1), the Department would begin to act on a 
complaint as soon as it is filed, which may be any time within the 60-
day statutory filing limit. As provided by the statute, the Secretary 
would issue a final determination on the reasonableness of the 
challenged fee within 120 days after the first such complaint is filed. 
However, in order to ensure that all other carriers have an opportunity 
to present their own arguments during the proceeding, the complaining 
carrier would be required to serve a copy of the complaint on all other 
carriers serving the airport, as well as on the airport owner or 
operator. Special service procedures, described later, would be 
required. Once the first complaint (which may be a joint complaint by 
multiple carriers) is filed and served, any other carrier would then 
have seven calendar days to file its own complaint with respect to the 
same airport fee or fees. Participation in the proceeding following the 
initiating complaint would thus be through an answer to the complaint 
or the filing of a separate complaint and participation in the hearing 
before the administrative law judge.
    The advantages of this approach are essentially the same as those 
of Approach (2). It permits a consolidated hearing in which to evaluate 
the fee, and a simultaneous decision on all complaints. It gives effect 
to the statutory intent to require airports to provide surety for the 
repayment of improperly collected fees. And it avoids an unmanageable 
strain on the Department's resources, thus making possible the orderly 
disposition of the issues contemplated by the statute. In addition, it 
accomplishes these goals without compromising the additional goal of 
resolving disputes within 120 days. All complaints, including those 
filed after the initiating complaint, could be decided within 120 days 
of the filing of the initial complaint.
    The main disadvantage of Approach (3), of course, is that some 
carriers might be forced to file their complaints earlier than they 
would otherwise choose. We are particularly interested in having 
commenters address whether or not this would be a burdensome 
restriction on complainants. Our concern is that an early filing by 
even one complainant could deprive other carriers of the opportunity to 
use more time to prepare and coordinate well-supported complaints. (On 
the other hand, we are aware that fee disputes between airports and 
airlines can often be anticipated, and therefore it might be that 
carriers can be expected to coordinate with each other before any 
complaint is filed.)
    In any event, having complaints that are better prepared and 
coordinated would assist the Department in rendering a final decision 
addressing all possible issues relating to reasonableness within the 
statutory time-frame. The Department therefore solicits comments on 
possible filing requirements that would help ensure that any complaint 
filed under this subpart is well-documented and fully coordinated. One 
such possibility might be to require the first carrier to file a 
complaint about the fees at a particular airport to give other carriers 
at least seven days advance notice of its intention to file the 
complaint. Of course, this approach would itself present at least one 
problem, namely that carriers would be unable to file a complaint under 
this subpart for the first seven days following imposition of the fee. 
There may also be potential difficulty in ascertaining compliance with 
an advance notice requirement and in ensuring that it does not unduly 
interfere with the opportunity to file a complaint near the end of the 
60-day statutory limit. Commenters are invited to address these issues, 
and, if they support an approach along these lines, to recommend any 
ways to avoid the potential problems.
    For the reasons stated above, and despite the drawback described, 
we have tentatively concluded that Approach (3) is less objectionable 
than either handling complaints individually or allowing some early-
filed complaints to remain unresolved for more than 120 days. We 
believe the procedure proposed in this notice would meet substantially 
all of the objectives of Section 113. Nevertheless, we are interested 
both in commenters' views about the other two approaches described and 
in any suggestions for a solution that we have not yet considered. If a 
plan is presented that is superior to our proposal, it may be 
incorporated into the final rule in this proceeding.

Section-by-Section Analysis

Section 302.601  Applicability

    This section describes the kinds of proceedings for which the 
Department would employ the expedited procedures contained in this 
Subpart. As required by the 1994 FAA Authorization Act, complaints by 
air carriers would be reviewed under these procedural rules. In 
addition, paragraph (a) of proposed Section 302.601 states that a 
comparable complaint brought by a foreign air carrier would be treated 
in the same manner. This Subpart also contains the procedural rules for 
reviewing an airport owner or operator's request for a determination of 
the reasonableness of an airport fee.
    The Authorization Act requires the Secretary to determine the 
reasonableness of an airport fee after a complaint is filed by ``one or 
more air carriers (as defined in section 40102 of this subtitle).'' 
Since the definition of ``air carrier'' in 49 U.S.C. Section 40102 is 
limited to ``a citizen of the United States * * *'' this rule could be 
limited to complaints by U.S. airlines. However, as noted, the 
Department has tentatively concluded that foreign air carriers should 
have access to the same procedures. The economic and other issues that 
enter into a determination of reasonableness of an airport fee are the 
same, irrespective of whether the complainant is a domestic or foreign 
carrier. Accordingly, if both U.S. and foreign air carriers believe an 
airport fee increase is unreasonable, they both may be expected to 
dispute it. The interests of the carriers, the airport, and the 
Department are likely to be best served if the reasonableness of the 
fee can be determined in a single proceeding. A potential problem, 
however, arises from the fact that the procedures of proposed Subpart F 
are highly abbreviated; by statute, carrier complaints are barred 
unless they are brought within 60 days of the airport's written notice 
of the new fee or fee increase. This requirement may pose special 
problems for foreign air carriers. Accordingly, we invite comments from 
foreign air carriers as to whether to include their complaints within 
this Subpart.
    Section 302.601(a) states that Subpart F also applies to a request 
by an airport owner or operator for a determination of the 
reasonableness of a fee it has imposed on one or more air carriers. The 
FAA Authorization Act requires the Department to make such a 
determination when requested in writing by an airport. However, the 
Authorization Act does not state any time limits for the Department's 
action on the request.
    This Subpart proposes procedures for handling airport requests for 
determination that are much the same as those for air carrier 
complaints. Most importantly, the Secretary's determination that a fee 
is reasonable or unreasonable will be made within 120 days. However, 
there are a number of differences that derive from the different 
statutory treatment of air carrier complaints and airport requests for 
determination. These will be discussed in more detail in connection 
with the sections where they apply.
    The Authorization Act requires the Secretary to issue a 
determination about the reasonableness of a fee that has been 
``imposed'' on carriers. Section 601(a) provides that a fee would be 
considered to have been imposed once the airport owner or operator had 
taken all steps necessary under its procedures to establish the fee. 
Airport owners and operators have different internal procedures, and so 
the steps necessary will vary from airport to airport. However, as the 
Authorization Act indicates in new Section 47129(a)(1)(B), airports 
must always give carriers written notice when imposing a new or 
increased fee.
    Because Subpart F would be limited to fees actually imposed, the 
Department does not propose to consider requests for advisory opinions 
about airport fees that are still under consideration by the airport 
owner or operator. In general, fee changes should be based on 
discussion between airports and carriers, as they almost always are 
today. The procedures contained in this Subpart are intended to resolve 
significant disputes when negotiations have failed.
    On the other hand, paragraph (a) points out that a fee may be 
considered to have been imposed even if it is not yet being paid by the 
carriers. For example, if an airport owner or operator provides written 
notice on January 1 that a fee will increase on February 1, an air 
carrier may immediately file a complaint under this Subpart. There may 
even be situations in which a carrier would be forced to bring any 
complaint before it had to pay the fee. The Authorization Act provides 
for carrier complaints only for 60 days after the carrier receives the 
written notice. If an airport provides more than 60 days' notice of a 
fee, the filing period would expire before the fee is first collected.
    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.

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. 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.)
    The statutory language in new 49 U.S.C. section 47129(a) provides 
for a (single) determination of the reasonableness of an airport's 
disputed fees. If there were a multiplicity of separate proceedings 
with respect to the same airport fee or fees, it is possible that each 
case would present only part of the information that would be relevant 
and necessary to the Secretary's determination. At worst, multiple 
cases could lead to inconsistent decisions. Moreover, both airports and 
carriers would be unnecessarily burdened if they had to litigate more 
than one case about a particular airport's fees. The Secretary must act 
rapidly in order to resolve any issues in a carrier complaint within 
the 120-day deadline imposed by the FAA Authorization Act.
    Therefore, to ensure an orderly disposition of carrier complaints, 
proposed Sec. 302.603 would provide procedures to ensure that the 
Secretary can consolidate all related proceedings. Once a carrier 
submits a complaint under this Subpart, 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. Of course, as provided by the Authorization Act, 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 Department proposes to apply the same 60-day limit to 
airport requests. The statute did not state any specific limit on the 
timing of airport requests, but fee increases may not be contested 
under this Subpart after the 60-day limit. Any decision on an airport 
request filed after that date would amount to a legally moot advisory 
opinion.

Section 302.605  Contents of Complaint or Request for Determination

    In order to ensure that all interested parties have an opportunity 
to review and respond to complaints and requests for determination, 
Sec. 302.605 proposes two special requirements on their filing and 
service. First, the complaint or request must contain the filing 
party's entire position and supporting evidence. The complaint or 
request would have to be accompanied by a brief explaining the party's 
arguments, and any supporting exhibits and testimony. In order to 
clarify the nature of the dispute and to verify the timeliness of the 
filing, a copy of the airport owner or operator's written notice to the 
carrier would also be required.
    As proposed, a complaining carrier would be required to serve the 
airport owner or operator and all other air carriers and foreign air 
carriers serving the airport with a copy of the complaint, brief, and 
all testimony and supporting exhibits. An airport owner or operator 
requesting a determination would serve all carriers at the airport. We 
recognize that the requirement to serve all carriers might sometimes be 
burdensome. Moreover, many airports have an established airline 
committee responsible for negotiating airport fees and charges with the 
airport owner or operator. These committees have various titles, 
including Airline Properties Committee, Airport Affairs Committee, 
Airline Negotiating Committee, and Airline Top Committee. Section 
302.605 proposes to authorize service of the complaint or request on 
all members of the airline committee in lieu of all carriers serving 
the airport. We invite commenters to address whether service on members 
of these committees would be adequate to ensure that all interested 
carriers have an opportunity to review complaints and requests for 
determination; we also invite commenters to recommend any alternative 
service requirements.
    In addition, because proposed Sec. 302.603 would require any other 
complaints or request for determination to be submitted within seven 
days of the first complaint, ordinary service by first class mail would 
not be permitted. The filing party would be required to accomplish 
service by hand, by electronic transmission (such as facsimile or 
electronic mail) or by overnight express delivery. The filing carrier 
or airport would also have to certify that the parties served had 
actually received the documents by the time they are filed or would 
receive them no later than the day of the filing. The Department 
recognizes that these additional service requirements might pose a 
burden on some parties, but we think they are necessary to make a 
proper consolidation of all complaints, and thus to an orderly 
disposition of the fee or fees in dispute.
    Finally, the filing carrier or airport would also be required to 
certify that it had previously attempted to resolve the fee dispute 
directly. We believe this requirement is necessary to facilitate our 
statutorily-required decision about whether a significant dispute 
exists. If attempts at direct resolution have failed, that would be 
some indication, athough not necessarily proof, that there is a 
signifiant dispute. We do not, however, intend to evaluate the amount 
or adequacy of any efforts at a direct resolution of the dispute. We 
ask only that an attempt be made before the complaint or request is 
submitted.

Section 302.607  Answers to a Complaint or Request for Determination

    When a complaint is filed under this Subpart, Sec. 302.607 would 
provide that the airport owner or operator and any other air carrier or 
foreign air carrier serving the airport may file an answer to the 
complaint. In the case of an airport request for determination, any 
carrier serving the airport would be authorized to file an answer. 
Procedurally, answers would be filed in the same manner as described 
above for complaints. The answer would consist of a single submission 
including all the answering party's responsive arguments, testimony and 
exhibits. The answering party would be required to serve the carrier 
filing the complaint or airport owner or operator requesting the 
determination by hand, by electronic transmission, or by overnight 
express delivery. The answering party would have to certify that the 
answer and accompanying documents would be received no later than the 
day the answer is due. Section 302.607 does not propose to require 
answers to be served on other carriers.
    Under the proposal, answers would be due seven calendar days after 
the complaint or request for determination is filed. In the case of 
carrier complaints, this is the same day on which other carriers would 
be required to file any other complaint with respect to the same 
airport fee or fees. Therefore, upon receiving a copy of a complaint 
filed by another carrier, an air carrier or foreign air carrier could 
file its own complaint or an answer to the first complaint. The 
proposed rules would not prohibit a carrier from filing both an answer 
and a complaint, but the Department encourages all parties to avoid 
filing unnecessarily duplicative documents. It should be noted that any 
additional complaints filed are also subject to an answer under 
Sec. 302.607; any such answer would be due seven calendar days after 
the complaint, or a total of 14 days after the initial complaint.

Section 302.609  Replies

    Only the carrier originating a complaint or the airport originating 
a request for determination would be authorized to file a reply. The 
complaining air carrier or foreign air carrier could reply to an answer 
to the complaint, and the airport owner or operator could reply to an 
answer to the request for determination. In both cases, the reply would 
be due two calendar days after answers are filed. Replies by any other 
party would generally not be accepted, nor would further responsive 
pleadings. Such documents are governed by the requirements of Subpart A 
of 14 CFR Part 302. Because of the short deadline proposed for filing 
replies and the fact that the Department does not anticipate accepting 
further pleadings, proposed Sec. 302.609 does not contain the special 
service requirements (hand, electronic, or overnight delivery, with 
service completed by the day of filing) proposed for initial pleadings 
and answers. Ordinary service as provided by 14 CFR Sec. 302.8 
(including service by mail) would still be required. Commenters are 
invited to address whether there is a need for additional service 
requirements for replies.

Section 302.611  Review of Complaints

    This section provides for a preliminary evaluation by the Secretary 
to determine whether a carrier's complaint is subject to review under 
Subpart F. Unless a significant dispute exists, the FAA Authorization 
Act requires the Secretary to dismiss any complaint within 30 days 
after it is filed; when there is a significant dispute, the matter must 
be referred to an administrative law judge within that time.
    Accordingly, paragraph (a) of Sec. 302.611 proposes that the 
Secretary will determine whether a significant dispute exists and 
whether the complaint meets the procedural requirements of Subpart F 
within 30 days after the complaint is filed. If the Secretary 
determines that there is no significant dispute, the order dismissing 
the complaint would include an explanation of the reasons for that 
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 would dismiss the complaint without prejudice. In this 
case, the order would explain any conditions necessary for the 
complaint to be re-filed.
    Assuming, however, that the complaint raises a significant dispute 
and meets the procedural requirements, the Secretary would issue an 
instituting order consolidating all complaints and any request for 
determination, and assigning the consolidated case to an administrative 
law judge. The instituting order would describe the issues to be 
considered and the parties that will participate in the hearing. For 
example, the Secretary could determine that some of the matters raised 
in a complaint do not raise a significant dispute, in which case the 
instituting order would limit the scope of the proceeding. The 
instituting order could similarly place limits on the parties, such as 
by excluding a complainant that is not an air carrier or foreign air 
carrier. The order would state when the administrative law judge would 
be required to 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

    Proposed Sec. 302.613 provides that an airport owner or operator's 
request for determination of the reasonableness of an airport fee would 
generally be handled in the same manner as a carrier complaint. Within 
30 days after the airport's request is filed, the Secretary would 
determine whether there is a significant dispute and whether the 
procedural requirements of the Subpart have been met. Properly 
submitted requests raising a significant dispute would be assigned to 
an administrative law judge, with appropriate guidelines on the scope 
of the issues and the parties to participate. If there is a procedural 
deficiency, the request would 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, the FAA Authorization Act does not appear to permit the 
Secretary to dismiss an airport owner or operator's requests for 
determination on the basis that it does not raise a significant issue. 
As noted above in Sec. 302.613, when an air carrier files a complaint, 
the statute states that ``the Secretary shall dismiss the complaint if 
no significant dispute exists.'' With respect to a request by an 
airport owner or operator, however, the statute provides only that the 
Secretary ``shall issue a determination as to whether a fee imposed 
upon one or more air carriers * * * is reasonable * * * a written 
request for such determination is filed with the Secretary by such 
owner or operator.''
    Accordingly, section 302.613 does not propose to dismiss airport 
requests that do not present a significant dispute. Instead, the 
Secretary would generally issue a final order determining whether the 
fee is reasonable. This would sometimes occur without additional 
procedures, but the Secretary would retain discretion to determine in a 
particular case that additional procedures are necessary.

Section 302.615  Decision by Administrative Law Judge

    This proposed section merely restates the requirement of the FAA 
Authorization Act that the administrative law judge must issue a 
recommended decision within 60 days after the case is assigned by the 
Secretary for hearing. As permitted by the statute, this section also 
states that the Secretary may specify a shorter period for the 
recommended decision.

Section 302.617  Petitions for Discretionary Review

    Any party to the proceeding could file a petition for discretionary 
review of the administrative law judge's decision within five days 
after the recommended decision is served. The petitioner would serve 
all parties. As with other documents under this Subpart, service would 
be by hand, electronic transmission or overnight express delivery, and 
the petition would have to certify that all parties had received the 
petition or would receive it by the date of filing. Petitions would be 
limited to 20 pages in length, as provided in 14 CFR 302.28(a).
    Any other party could then submit an answer, which would be due 
four days after the petition is filed. Under 14 CFR Sec. 302.28(b), 
answers to petitions would be limited to 15 pages.

Section 302.619  Completion of Proceeding

    This section sets out the completion dates for proceedings 
conducted under this Subpart.
    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 proposes 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 Section 302.613, the Department proposes 
to 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. 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.
    There are two reasons for proposing to let the filing of a carrier 
complaint determine the time for issuing a final order. Most important, 
the Authorization Act mandates a 120-day resolution with respect to 
carrier complaints. An airport's subsequent request for determination 
cannot extend this period. Moreover, even when the airport's request is 
the first document filed in the proceeding, a complaint by an air 
carrier may raise new and significant issues. It is likely that the 
resolution of these issues will take most or all of the time permitted 
by the Authorization Act.

Section 302.621  Final Order

    Section 302.621 would provide for the issuance of a final order by 
the Secretary when a proceeding brought under this Subpart, whether by 
complaint or request for determination, is ripe for decision. The 
Secretary would issue a written order containing his or her 
determination as to whether or not the disputed airport fee is 
reasonable.
    Section 302.621 proposes that the order would set out the reasoning 
underlying the Secretary's determination, and, if a fee is determined 
to be unreasonable, the order would provide for a refund or credit of 
the unreasonable charge. 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 Department anticipates that the Secretary will issue all final 
orders. However, the FAA Authorization Act expressly provides that the 
administrative law judge's decision will be deemed the final order of 
the Secretary, if the Secretary fails to issue an order within 120 days 
after a complaint is filed. This requirement is reflected in Section 
302.621(c). The Authorization Act imposes this requirement only with 
respect to complaints by air carriers. Therefore, while the Department 
intends to resolve airport requests for determination within 120 days 
after they are filed, Section 302.621 does not contain any provision 
for automatic adoption of the administrative law judge's decision. Of 
course, when an airport request is considered in a consolidated 
proceeding along with a carrier complaint, the airport request will be 
processed under the same schedule as the complaint.

Regulatory Evaluation Summary

    This NPRM proposes the adoption of 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 proposes corresponding procedures 
under which an aiport owner or operator may request and receive a 
determination of the reasonableness of a fee or charge it has imposed 
on one or more air carriers or foreign air carriers. The new procedures 
would be substituted for existing procedures under 14 CFR Part 13, and 
impose no new substantive requirements on either carriers or airports. 
Accordingly, the Department tentatively concludes that the economic 
impact of the proposed rule would be 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 proposal contains procedural 
requirements for processing carrier complaints and airport requests. 
The Department concludes that the proposed rule would not have a 
significant economic impact on a substantial number of small entities.

Federalism Implications

    The regulations proposed in this NPRM would 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 
proposal would not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment.

Paperwork Reduction Act

    This proposed 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 proposal are minimal, the proposal is considered significant under 
Executive Order 12866 because of the public interest in this 
rulemaking. The Department 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).

The Proposed Amendments

    Accordingly, the Department of Transportation proposes to adopt a 
new Subpart F to amend 14 CFR part 302 as follows:
    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:

PART 302--RULES OF PRACTICE IN PROCEEDINGS

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. Section 47129(a), for a determination of the 
reasonableness of a fee increase or a newly established fee 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 14 CFR 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 
establishment or increase of the fee.
    (c) To ensure an orderly disposition of the matter, all complaints 
and any request for determination filed with respect to the same 
airport fee or fees will, as provided in Secs. 302.611 and 302.613, be 
considered in a consolidated proceeding.


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. 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 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) When a carrier files a complaint, it must also submit the 
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. (At airports 
with a committee of carriers responsible for negotiating airport fees 
and charges, the complaining carrier may instead serve all members of 
that committee and the airport owner and operator);
    (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; and
    (3) The carrier has previously attempted to resolve the dispute 
directly with the airport owner or operator.
    (c) 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. (At airports with a 
committee of carriers responsible for negotiating airport fees and 
charges, the complaining carrier may instead serve all members of that 
committee.);
    (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; and
    (3) The airport owner or operator has previously attempted to 
resolve the dispute directly with the carriers.


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. 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 filing party 
may incorporate by reference testimony and exhibits already filed in 
the same proceeding.
    (c) Answers to a complaint or request for determination shall be 
filed no later than seven calendar days after the filing date of the 
complaint.
    (d) The answering party must also submit the following 
certifications:
    (1) The answering party has served the answer, brief, and all 
supporting testimony and exhibits by hand, by electronic transmission, 
or by overnight express delivery on the carrier filing the complaint or 
the airport owner or operator requesting the determination; and
    (2) The parties served have received the answer and exhibits or 
will receive them no later than the filing date of the answer.


Sec. 302.609  Replies.

    (a) The carrier submitting a complaint may file a reply to any or 
all of the answers to the complaint. The airport owner or operator 
submitting a request for determination may file a reply to any or all 
of the answers to the request for determination.
    (b) The reply shall be limited to new matters raised in the 
answers. It shall constitute the replying party's entire response to 
the answers. It shall be in the form of a reply brief and may include 
supporting testimony and exhibits responsive to new matters raised in 
the answers. In lieu of submitting duplicative exhibits or testimony, 
the replying party may incorporate by reference testimony and exhibits 
already filed in the same proceeding.
    (c) The reply shall be filed no later than two calendar days after 
answers are filed.
    (d) The carrier or airport owner or operator submitting the reply 
must certify that it has served the reply and all supporting testimony 
and exhibits on the party or parties submitting the answer to which the 
reply is directed.


Sec. 302.611  Review of complaints.

    (a) Within 30 days after a complaint is filed under this subpart, 
the Secretary will determine whether the complaint meets the procedural 
requirements of this subpart and whether a significant dispute exists, 
and take appropriate action pursuant to paragraph (b), (c), or (d) of 
this section.
    (b) If the Secretary determines that a significant dispute exists, 
he or she will issue an instituting order assigning the complaint for 
hearing before an administrative law judge. The instituting order will 
establish the scope of the issues to be considered and the procedures 
to be employed and will indicate the parties to participate in the 
hearing. The instituting order will consolidate into a single 
proceeding all complaints and any request for determination with 
respect to the fee or fees in dispute.
    (c) The Secretary will dismiss any complaint if he or she finds 
that no significant dispute exists. The order dismissing the complaint 
will contain a concise explanation of the reasons for the determination 
that the dispute is not significant.
    (d) If the Secretary determines that the complaint does not meet 
the procedural requirements of this subpart, the complaint will be 
dismissed without prejudice to filing a new complaint. The order of the 
Secretary will set forth the terms and conditions under which a revised 
complaint may be filed.


Sec. 302.613  Review of requests for determination.

    (a) Following review of the pleadings and exhibits filed in 
connection with an airport owner or operator's request for 
determination of the reasonableness of a fee, the Secretary will 
determine whether the request meets the procedural requirements of this 
subpart and whether a significant dispute exists.
    (b) If the Secretary determines that a significant dispute exists, 
he or she will issue an instituting order assigning the request for 
hearing before an administrative law judge. The instituting order will 
establish the scope of the issues to be considered and the procedures 
to be employed and will indicate the parties to participate in the 
hearing. The instituting order will consolidate into a single 
proceeding all complaints and any request for determination with 
respect to the fee or fees in dispute.
    (c) If the Secretary finds that the request for determination 
presents no significant dispute, the Secretary will either issue a 
final order as provided in Sec. 302.621 of this subpart or set forth 
the schedule for any additional procedures required to complete the 
proceeding. The determination will be issued within 120 days after the 
filing of the request by the airport owner or operator.
    (d) If the Secretary determines that the request does not meet the 
procedural requirements of this subpart, the request for determination 
will be dismissed without prejudice to filing a new request. The order 
of the Secretary will set forth the terms and conditions under which a 
revised request may be filed.


Sec. 302.615  Decision by administrative law judge.

    The administrative law judge shall issue a decision recommending a 
disposition of a complaint or request for determination within 60 days 
after the date of the instituting order, unless a shorter period is 
specified by the Secretary.


Sec. 302.617  Petitions for discretionary review.

    (a) Within 5 calendar days after service of a decision by an 
administrative law judge, any party may file with the Secretary a 
petition for discretionary review of the administrative law judge's 
decision.
    (b) Petitions for discretionary review shall comply with 14 CFR 
302.28(a). The petitioner must also submit the following 
certifications:
    (1) The petitioner has served the petition by hand, by electronic 
transmission, or by overnight express delivery on all parties to the 
proceeding; and
    (2) The parties served have received the petition or will receive 
it no later than the date the petition is filed.
    (c) Any party may file an answer in support of or in opposition to 
any petition for discretionary review. The answer shall be filed within 
4 calendar days after service of the petition for discretionary review. 
The answer shall comply with the page limits specified in 14 CFR 
302.28(b).


Sec. 302.619  Completion of proceedings.

    (a) When a complaint with respect to an airport fee or fees has 
been filed under this subpart and has not been dismissed, the Secretary 
will issue a determination as to whether the fee is reasonable within 
120 days after the complaint is filed.
    (b) When a request for determination has been filed under this 
subpart and has not been dismissed, the Secretary will issue a 
determination as to whether the fee is reasonable within 120 days after 
the date the request for determination is filed.
    (c) When both a complaint and a request for determination have been 
filed with respect to the same airport fee or fees and have not been 
dismissed, the Secretary will issue a determination as to whether the 
fee is reasonable within 120 days after the complaint is filed.


Sec. 302.621  Final order.

    (a) When a complaint or request for determination stands submitted 
to the Secretary for final decision on the merits, he or she may 
dispose of the issues presented by entering an appropriate order, which 
will include a statement of the reasons for his or her findings and 
conclusions. Such an order shall be deemed a final order of the 
Secretary.
    (b) The final order of the Secretary shall include, where 
necessary, directions regarding an appropriate refund or credit of the 
fee increase or newly established fee which is the subject of the 
complaint or request for determination.
    (c) If the Secretary has not issued a final order within 120 days 
after the filing of a complaint by an air carrier or foreign air 
carrier, the decision of the administrative law judge shall be deemed 
to be the final order of the Secretary.

    Issued in Washington, DC, on October 20, 1994.
Federico Pena,
Secretary.
[FR Doc. 94-26385 Filed 10-20-94; 12:29 pm]
BILLING CODE 4910-62-P