[Federal Register Volume 60, Number 23 (Friday, February 3, 1995)]
[Rules and Regulations]
[Pages 6919-6930]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2674]




  Federal Register / Vol. 60, No. 23 / Friday, February 3, 1995 / Rules 
and Regulations   
[[Page 6919]] 

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 302

[Docket No. 49830]
RIN 2105-AC18


Rules of Practice for Proceedings Concerning Airport Fees

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

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SUMMARY: This final rule establishes specific procedural rules under 
which the Department of Transportation will handle complaints by air 
carriers and foreign air carriers for a determination of the 
reasonableness of a fee increase or newly established fee imposed upon 
the carrier by the owner or operator of an airport. It also establishes 
rules that would apply to requests by the owner or operator of an 
airport for such a determination. The final rule responds to the 
mandate in the recently enacted Federal Aviation Administration 
Authorization Act of 1994 requiring the Department to issue regulations 
establishing procedures for acting upon such complaints by air carriers 
and requests by airport owners and operators.

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

FOR FURTHER INFORMATION CONTACT: Robert Klothe, Office of Regulation 
and Enforcement, Office of the General Counsel, United States 
Department of Transportation, 400 Seventh Street, SW, Washington, DC 
20590, telephone (202) 366-9307.

SUPPLEMENTARY INFORMATION:

Background

    This rulemaking had its origins in two related notices on the 
subject of Federal policy on airport rates and charges issued by the 
Office of the Secretary of Transportation (OST) and the Federal 
Aviation Administration on June 9, 1994. A jointly-issued notice 
entitled ``Proposed Policy Regarding Airport Rates and Charges'' 
(Proposed Policy) listed and explained the proposed Federal policy on 
the rates and charges that an airport proprietor can charge to 
aeronautical users of the airport. (59 FR 29874); a supplemental notice 
concerning the proposed policy was issued on October 12, 1994 (59 FR 
51836). The FAA also issued a notice of proposed rulemaking entitled 
``Rules of Practice for Federally Assisted Airports'' setting forth 
procedures for the filing, investigation, and adjudication of 
complaints against airports for alleged violation of Federal 
requirements under the Airport and Airway Improvement Act of 1982, as 
amended, and the Anti-Head Tax Act provisions of the Federal Aviation 
Act (59 FR 29880); subpart J of the proposed rule provided special 
procedures for the expedited review of complaints by airlines involving 
the fees charged by an airport proprietor.
    Subsequently, Congress passed the FAA Authorization Act of 1994, 
which was signed into law on August 23, 1994. Section 113 of the FAA 
Authorization Act included specific provisions for the resolution of 
airport-air carrier disputes concerning airport fees. The procedures 
contemplated by the FAA Authorization Act were substantially different 
from those proposed by the FAA. Accordingly, the FAA withdrew its NPRM 
on September 16, 1994, insofar as it applied to the resolution of the 
reasonableness of airport fees charged to air carriers. (59 FR 47568). 
However, the remaining procedures proposed in the FAA NPRM, which would 
apply to the various other kinds of complaints filed against airports 
relating to Federal requirements, are not affected by the FAA 
Authorization Act, and the comment period on the remaining proposals 
closed on December 1, 1994.
    In lieu of the procedures proposed by the FAA for handling air 
carrier complaints about airport rates and charges, the Office of the 
Secretary issued a new NPRM on October 24, 1994. As contemplated by the 
FAA Authorization Act, the October 24 NPRM stated that the procedures 
contained in 14 CFR Part 302 would generally govern air carrier 
complaints as well as requests by airport owners or operators for a 
determination of the reasonableness of airports fees and charges.

Discussion of Comments

    The Department received twelve comments on the NPRM. They were 
submitted by the Air Transport Association (ATA), the Aircraft Owners 
and Pilots Association (AOPA), the Airports Council International--
North America (ACI-NA), the American Association of Airport Executives 
(AAAE), the General Aviation Manufacturers Association (GAMA), the 
International Air Transport Association (IATA), Japan Airlines Company 
(JAL), the Los Angeles Department of Airports, the Maryland Aviation 
Administration, the Massachusetts Port Authority (Massport), the 
Metropolitan Washington Airports Authority, and the National Business 
Aircraft Association, Inc. (NBAA).
    Although there were numerous requests for changes to particular 
provisions, the comments generally expressed support for the overall 
concept of the proposed rule. The proposed regulatory approach, i.e., 
consolidating all complaints as soon as the first carrier files a 
complaint under the new subpart, received several supporting comments 
and no opposition. Accordingly, the final rule follows this approach 
with only minor modifications. We turn now to a discussion of the 
issues most widely addressed in the comments. Other comments are 
addressed in the section-by-section analysis.

Party Status

    A number of commenters addressed issues involving who should be 
able to make use of the expedited procedures contained in the new 
subpart. JAL expressed specific support for our proposal to allow 
foreign air carriers to use the expedited procedures along with U.S. 
air carriers. AAAE stated that it considers this proposal acceptable, 
and ACI-NA also indicated that it did not object, although ACI-NA added 
that ``a foreign air carrier, like any other carrier, which initiates 
or joins a case should not be allowed to pursue remedies in other 
forums, in order to avoid duplicative proceedings which could lead to 
inconsistent or conflicting results.'' Only the Los Angeles Department 
of Airports opposed including foreign air carriers. It claims that 
``Congress intentionally provided the expedited procedures only to U.S. 
carriers,'' and suggests that making this forum available to foreign 
carriers forfeits a bargaining position for the United States and 
contravenes the principle of international reciprocity.
    The final rule adopts the proposal to allow foreign air carriers to 
file complaints under subpart F. As we noted in the NPRM, we anticipate 
that both domestic and foreign carriers will dispute airport fees they 
believe to be unreasonable. Since the economic and other issues 
involved in determining the reasonableness of a fee are essentially the 
same whether the complainant carrier is U.S. or foreign, it will be 
simpler for the carriers, the airport and the Department to make that 
determination in a single proceeding. Therefore, while the FAA 
Authorization Act was only directed at complaints by U.S. carriers, we 
will include foreign carriers on our own initiative.
    With respect to the comment that foreign carriers filing claims 
under subpart F should be barred from seeking remedies in other forums, 
we note that the various bilateral agreements on air service between 
the United States and [[Page 6920]] other countries govern the rights 
of foreign air carriers in this regard.
    GAMA, AOPA, and NBAA all argue that we should further expand the 
applicability of this subpart to cover complaints by general aviation 
operators. In their view, the arguments for including foreign air 
carriers apply with equal force to general aviation users. While we 
recognize that there may be cases in which an airport imposes 
essentially similar fees on both general aviation and air carrier 
operations, we cannot grant the request to expand the expedited 
procedures to general aviation operators. The FAA Authorization Act 
requires the Secretary to determine the reasonableness of a challenged 
fee within 120 days after a complaint is filed and indicates a 
preference for oral evidentiary procedures, to the extent that such 
procedures are consistent with the 120-day timeframe. Our procedures 
must carry out the Congressional intent. If general aviation operators 
are permitted to make use of this subpart, however, the scope of the 
hearing would be dramatically expanded. It is possible that there would 
be dozens, conceivably even hundreds, of additional parties, possibly 
with divergent interests. If this happened, it would so overwhelm the 
Department's resources that it could become impossible for the 
Department to meet the statutory deadline.
    The Metropolitan Washington Airports Authority argues that there is 
an integral relationship between the fees paid by ``signatory'' and 
``non-signatory'' carriers. (Signatory carriers are airlines that have 
entered into a use or operating agreement with the airport operator.) 
Therefore, ``it is important for the procedures to specify that the 
airport can join as indispensable parties the signatory airlines when 
the airports rates and charges are challenged by a non signatory 
airline.'' The final rule does not incorporate this suggestion. If a 
carrier (signatory or otherwise) would be affected by the outcome of a 
complaint filed by another carrier at the same airport, it may well 
choose to participate in the proceeding, such as by filing an answer to 
the complaint. The NPRM's proposal to require service of any complaint 
on other carriers (discussed more fully below) was made partly to 
facilitate such participation. But there is no reason to require the 
participation of carriers with no complaint of their own and no 
interest in the fee being challenged.

Evidence To Be Submitted With Complaints, Requests and Answers

    A number of commenters addressed the proposal in the NPRM that 
carrier complaints should contain all supporting evidence and 
testimony, and that answers should similarly be complete with all 
evidence and testimony on which the party intends to rely.
    IATA commented that a carrier might not have access to much of the 
information necessary to its complaint unless the airport had agreed to 
furnish it. IATA requested that the final rule make clear that 
information within the custody of the airport could be used by the 
carrier if it was able to obtain the information only after the 
complaint was filed. ATA raised the same issue, but suggested that we 
provide for a formal discovery process within the 30-day period 
following the complaint.
    The Department's Policy Regarding Airport Rates and Charges, 
published in today's Federal Register, states that airports should 
consult with carriers in advance of changing fees, and should provide 
adequate information to permit carriers to evaluate the justification 
for the change and the reasonableness of the new or increased fee. We 
expect that airports will comply with this policy.
    The Department finds the IATA and ATA concerns valid. However, we 
believe that the conduct of discovery in the 30-day period following 
the complaint would be a burden to the airport owner or operator and to 
the government. Moreover, any discovery conducted would be unnecessary, 
and therefore excessive, if the complaint is subsequently dismissed 
because the Secretary determines that there is no significant dispute. 
Accordingly, the Department will provide, where necessary, special 
procedures for the exchange or disclosure of information by the 
parties.
    Airport parties had equivalent objections with respect to the 
proposed requirements for the timing and completeness of answers. ACI-
NA, AAAE, the Los Angeles Department of Airports, and Massport all 
argued that airports should not have to submit their entire response 
with the answer. They believe that answering parties should only have 
to submit a brief in response to a complaint, and should be able to 
supplement their submission with exhibits and testimony at a later 
point in the proceeding.
    In addition, they claim that it is unfair that complainants will 
have up to 60 days to gather evidence and prepare exhibits and 
testimony, while, under the proposal, respondents would be required to 
submit their complete response seven calendar days after the complaint 
is filed. AAAE and ACI-NA suggested that we allow answers to be filed 
21 days after the initial complaint. The Los Angeles Department of 
Airports agreed, and also suggested the recommended 21-day period 
should not start until the last day that complaints could be filed 
(i.e., on the 60th day after notice of the fee or the seventh day after 
the first complaint is filed). This would give parties a total of up to 
28 days to file answers. Massport asked for a 14 calendar-day answer 
period, and the Metropolitan Washington Airports Authority recommended 
14 days for the initial complaint and seven days for any additional 
complaints. The Maryland Aviation Administration requested seven 
business days instead of seven calendar days.
    We will retain the requirement that answers contain all testimony 
and exhibits on which the answering party intends to rely. The carriers 
pointed out that airport owners and operators possess much of the 
information that they might need to introduce in challenging a fee. 
However, there is no fee information in the hands of the carriers that 
an airport would need to support the reasonableness of the fee. In view 
of the extremely short decisional deadlines imposed by the FAA 
Authorization Act, it is important that we have the most information 
possible at the beginning of a proceeding. While it is true, as 
commenters noted, that complaining carriers have up to 60 days to file 
complaints, we do not agree that this gives complainants an unfair 
advantage. We expect airports to have all the economic evidence they 
need in support of a new or increased fee before the fee is increased 
rather than after a complaint is filed. While an answer must, of 
course, respond to the specific matters raised in a complaint, an 
airport should not have to generate significant new data.
    On the other hand, we believe that it is reasonable to allow some 
additional time to prepare and submit answers. In the case of 
complaints, it will be easier for both the answering party and the 
Department if answers are consolidated to address both the initial 
complaint and any follow-on complaints. Accordingly, the final rule 
provides that answers will be due 14 calendar days after the initial 
complaint is filed. Thus, if there are follow-on complaints, the 
answering parties will still have a minimum of seven days to address 
them. We will also allow 14 days for answers to requests for 
determination.

Determination of ``Significant Dispute''

    Within 30 days after a carrier files a complaint, the FAA 
Authorization Act requires the Department to determine whether there is 
a ``significant dispute;'' if not, the statute requires the Secretary 
[[Page 6921]] to dismiss the complaint. Accordingly, a number of 
commenters addressed issues associated with the Secretary's 
determination.
    IATA pointed out that the language in proposed Sec. 302.611 stated 
that the Secretary would issue an order within 30 days determining 
whether a carrier complaint presented a significant dispute, but there 
was no corresponding language on requests for determination submitted 
by an airport owner or operator. As the preamble in the NPRM indicated, 
it has been our intention to issue such orders within 30 days. However, 
as provided in Sec. 302.619(c), when both a complaint and a request for 
determination have been filed with respect to the same airport fee, the 
statutorily-imposed 120-day schedule for resolving complaints controls 
the course of the proceeding. That is, as required by the FAA 
Authorization Act, the Secretary will determine whether there is a 
significant dispute within 30 days of the date the first complaint is 
filed. In such cases, the determination may come more than 30 days 
after the date of the airport request. In light of IATA's comment, we 
have revised the language of Sec. 302.613 to clarify this point.
    The comments of both IATA and ATA ask that any order dismissing a 
complaint for lack of a significant dispute should be clearly stated to 
be final and appealable. IATA goes on to argue the proposed rule would 
leave an airport owner or operator in a better position following 
dismissal of a request for determination than a carrier would be 
following dismissal of a complaint. We disagree, and we find that no 
change is necessary in the final rule. If the Secretary dismisses a 
complaint after finding that there is no significant dispute within the 
meaning of the FAA Authorization Act, the order of dismissal is subject 
to the same judicial review as any other order of the Secretary. (If 
the Secretary instead finds that the complaint fails to meet the 
procedural requirements of this subpart, the order will set forth the 
conditions under which a revised complaint may be filed.)
    IATA asks that Sec. 302.611 ``provide some reasonably accurate 
guidelines and standards of review'' under which the Secretary will 
review complaints to determine whether they present a significant 
dispute. ATA suggests that we employ the standards of Federal Rule of 
Civil Procedure 12(b)(6), accepting any complaint as constituting a 
significant dispute as long as it ``states a claim for relief under 
Section 47129.'' In the alternative, it suggests we employ the 
standards for grant of summary judgment under Federal Rule of Civil 
Procedure 56. Under this approach, as ATA states, ``a 'significant 
dispute' would exist whenever there was a genuine issue of material 
fact or law.''
    Accepting either of ATA's recommendations would mean that the 
Department would set for hearing virtually all complaints brought, no 
matter how trivial. We believe that this is inconsistent with the 
statutory intent. If Congress had meant for the Department to hear 
every complaint in which a claim is made, it surely would not have 
mandated in Sec. 47129(c)(2) that ``the Secretary shall dismiss any 
complaint if no significant dispute exists.'' (Emphasis added.) 
Congress established the extraordinary dispute resolution program in 
Sec. 47129 to ensure that carriers and airports can obtain a prompt 
decision when there is an important fee dispute. It plainly understood 
that the Department has limited resources; if the expedited procedures 
are employed any time a complainant can state a claim or establish that 
there is a fact in dispute, the Department could be unable to respond 
adequately when there are truly significant fee disputes. Moreover, 
while we are sympathetic to IATA's request for clear guidelines and 
standards for review, we believe that the circumstances at each airport 
and the facts behind each fee dispute vary too widely for us to be able 
to set out specific standards in the final rule. As we proposed, 
however, Sec. 302.611 states that we will set forth our reasoning in 
any order dismissing a complaint on the grounds that the alleged 
dispute is not significant.
    AAAE objected to the statement in the preamble that one piece of 
evidence that a dispute is significant would be that the complaining 
carrier had attempted to resolve the dispute with the airport but had 
been unsuccessful. AAAE points out, ``Airports and their tenant air 
carriers can have legitimate, and even vehement disagreements about 
issues that are, objectively, minor.'' We agree with AAAE that the 
intensity of the discussions between airports and carriers does not by 
itself mean that there is a significant dispute within the meaning of 
Sec. 47129. Nevertheless, as the preamble to the NPRM stated, the 
failure of direct negotiations ``would be some indication, although not 
necessarily proof, that there is a significant dispute.''
    ACI-NA and IATA disagree sharply on our authority to dismiss 
airport requests for determination when there is no significant 
dispute. ACI-NA stated that the Department was correct in determining 
that the FAA Authorization Act makes no provision for dismissal on that 
basis (in contrast with its specific requirement to dismiss carrier 
complaints that do not present a significant dispute). IATA, on the 
other hand, claimed that our failure to provide for dismissal of an 
airport owner or operator's request ``is clearly arbitrary and 
capricious.'' As IATA's comments note, however, the statutory language 
on dismissals, in Sec. 47129(c)(2), ``on its face appears to be 
applicable only to complaints and air carriers.'' (Emphasis in 
original.) While IATA suggests that this ``may be the result of 
legislative oversight,'' we believe this language is plain, and we will 
adopt the NPRM's proposal to proceed to a final order on the merits 
when an airport properly submits a request for determination.

Service of Documents

    In order to ensure compliance with the extremely short time frames 
provided by the FAA Authorization Act for action on fee disputes, the 
NPRM proposed special service requirements. The proposal contained 
three main elements: (1) Complaints and requests for determination 
would have to be served on all carriers providing service to the 
airport; (2) For most filings, service would have to be made by hand, 
by electronic transmission, or by overnight express delivery; and (3) 
Parties would actually have to receive the documents no later than the 
day they are filed.
    The NPRM stated that the Department realized that these service 
requirements could pose a burden in some situations, but it also 
expressed our belief that they are necessary to permit a consolidated 
hearing for all complaints. Nevertheless, we specifically invited 
comment on the service proposals, and particularly on an additional 
proposal to substitute service of complaints or requests for 
determination on members of any airline negotiating committee at the 
airport rather than on all carriers serving the airport. A number of 
commenters responded to this invitation.
    To begin with, AAAE and ACI-NA supported the proposal to allow 
service of documents on airline committee members at those airports 
having such committees. The Metropolitan Washington Airports Authority 
claimed that it should be adequate to serve the committee itself, 
without serving the individual carrier members. ATA, however, strongly 
argued that service on the airline committee members would not provide 
adequate notice to other carriers serving the airport; it advocated 
requiring service on all carriers serving the airport, preferably at 
their [[Page 6922]] headquarters' offices. Complaints by carriers drive 
the schedule for determining the reasonableness of airport fees. It is 
essential that carriers have adequate notice when a document is filed, 
particularly an initiating complaint, which starts the seven-day period 
for follow-on complaints. In light of ATA's comments, therefore, the 
final rule does not provide for serving the members of the airport's 
carrier committee.\1\ Nevertheless, we continue to be concerned about 
the potential burden of a literal application of a requirement to serve 
``all carriers.'' As the comments of the Metropolitan Washington 
Airports Authority pointed out, ``the requirement to serve 'all' 
carriers could become an unnecessary procedural hurdle that prevents 
the expeditious resolution of a fee dispute,'' because it could be read 
to require service on even the most infrequent users of the airport. 
The Metropolitan Washington Airports Authority recommended that service 
be limited to carriers that operated at the airport within the 30 days 
prior to the filing, while AAAE and ACI-NA suggested using the Air 
Carrier Activity Information System (ACAIS) as the basis for 
determining which carriers should be served. As these parties note, 
airports already use the list of carriers on the ACAIS in determining 
which carriers to serve with respect to Passenger Facility Charges 
under 14 CFR Part 158. Accordingly, we believe that the ACAIS list can 
similarly serve as the basis for an acceptable means of compliance with 
the service requirements of subpart F as well.

    \1\For the same reason, we will not adopt ATA's contingent 
suggestion to allow carriers to serve only a written notice that a 
complaint had been filed, along with instructions on how to obtain 
complete copies. We believe interested persons must have immediate, 
full information about the filing. (In any event, ATA stated that 
its suggestion assumed additional time would be allowed for follow-
on complaints).
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    While the ACAIS list provides an objective and convenient starting 
point for parties needing to serve all carriers, it must be recognized 
that the list is based on carriers that served the airport during the 
preceding year, and thus may not include new entrants. In addition, 
carriers operating under 14 CFR Part 135 are not required to submit 
data for ACAIS, although many do so voluntarily. Therefore, as ACI-NA 
proposed, any party intending to make use of the ACAIS list for service 
must also serve any other carrier known to be operating at the airport 
but not on the list. This is the same practice that is followed with 
respect to PFC applications.
    The ACAIS list is routinely made available to airport operators. 
However, since carriers do not file PFC applications, we recognize that 
they have not previously used the ACAIS list to identify carriers for 
the purposes of service. The Department's Office of Aviation Analysis 
will provide the names of the carriers on the most recently published 
ACAIS list at the request of a carrier considering filing a complaint 
about a newly established or newly increased airport fee. Not all 
information from ACAIS will be available on request. Much of the data 
is potentially sensitive, and we believe most carriers would not want 
it made available to competitors. Therefore, only carrier identities 
will be released through this process.
    The Los Angeles Department of Airports objected to the requirement 
to certify that the parties served have actually received the 
documents, arguing that it cannot know when a document will be 
received. It argued that parties should only have to certify that the 
documents were sent. We disagree. The short response time required by 
these procedures makes it essential that the receiving party receives 
the maximum notice possible that a complaint, request, or responsive 
document has been filed. Moreover, while we recognize that this 
constitutes an additional burden on the filer, that burden is not 
insurmountable. All three of the specified service methods allow the 
sender to ascertain quickly that the receiving party has received the 
filing. In the case of hand delivery, receipt is obvious. For 
electronic transmission, both facsimile machines and many electronic 
mail systems provide for receipts from the recipients. And the 
availability of immediate proof of delivery is a widely-advertised 
service of major overnight express delivery companies.
    The Los Angeles Department of Airports also argues that hand 
delivery and overnight express may not be available to serve foreign 
air carriers, and it suggests that we permit utilization of ``the next 
most-expeditious, commercially available manner for sending documents 
to the country in which the foreign air carrier must be served.'' Since 
in many cases this would make it difficult or impossible to achieve 
service in time to allow meaningful responsive pleadings, we cannot 
agree. Overnight express delivery is increasingly available 
commercially throughout the world, although it is true that the service 
is not available everywhere. However, that is one reason why the NPRM 
also proposed to permit service by electronic transmission. There are 
few if any places in the world where facsimile service and/or 
electronic mail are unavailable. Indeed, it is hard to imagine in 
today's market that a carrier could conduct international operations 
without having some capacity to receive electronic communications. 
Moreover, many carriers, even foreign air carriers, will not need to be 
served with complaints or requests for determination in their home 
country. Unless a carrier indicates that a different person should 
receive service for the purposes of this subpart, the final rule 
authorizes service on the person responsible for communicating with the 
airport on behalf of the air carrier or foreign air carrier about 
airport fees. This person will be familiar with fee disputes involving 
the airport, and is a logical contact point for routing the document 
quickly to other key carrier personnel.
    In addition to the foregoing, one additional point warrants mention 
with regard to the service of documents. All exhibits and briefs 
prepared on electronic spreadsheet or word processing programs should 
be accompanied by standard-format computer diskettes containing those 
submissions. Word processing and spreadsheets files must be readable by 
current versions of one or more of the following programs, or in such 
other format as may be specified by notice in the Federal Register: 
Microsoft Word, Word Perfect, Ami Pro, Microsoft Excel, Lotus, Quattro 
Pro, or ASCII tab-delineated files. Parties should submit one copy of 
each diskette to the docket section, one copy to the office of the 
Chief Administrative Law Judge (M-50), and one copy to the Chief, 
Economic and Financial Analysis Division (X-55), of the Office of 
Aviation Analysis. Submissions in electronic form will assist the 
Department and the administrative law judge in quickly analyzing the 
record and in preparing decisions under these expedited procedures. The 
paper copy will be the official record copy, but filers shall certify 
that files on the diskette are true copies of the data file used to 
prepare the printed versions of the exhibits or briefs. Filers should 
ensure that files on the diskettes are locked.

Section-by-Section Analysis

Section 302.601  Applicability

    Section 302.601 describes the kinds of proceedings for which the 
Department will employ the expedited procedures contained in subpart F. 
ATA complained that we should not be issuing a procedural rule separate 
from [[Page 6923]] the policy statement that will govern consideration 
of airport fee disputes. (As noted above, the FAA's Supplemental Notice 
of Proposed Policy was published in the Federal Register on October 12, 
1994 (59 FR 51836). The comment period closed on the proposed policy on 
October 26, 1994, and a final policy statement is published elsewhere 
in today's Federal Register.) ATA urges us to consolidate these 
proceedings and allow additional comment on a consolidated proposal. We 
disagree. Because of the extremely short deadline for issuing rules 
governing these proceedings, the Department decided that the best 
course was to proceed in this two-stage fashion. Relatively few changes 
were needed in the proposed policy statement after the adoption of the 
FAA Authorization Act, while the FAA's previously proposed procedures 
had to be completely rewritten. If we had waited until the new proposed 
procedures were ready so that we could issue a consolidated document, 
the highly-abbreviated public comment period that was necessary in this 
proceeding would have had to apply to both the proposed procedures and 
the proposed policy statement.
    As discussed above, the final rule adopts the proposal to include 
complaints by foreign air carriers, but complaints by other airport 
users would not be heard under this subpart. Subpart F also contains 
the procedural rules for reviewing an airport owner or operator's 
request for a determination of the reasonableness of an airport fee.
    By statute, a fee is subject to review under this subpart only 
after it has been ``imposed'' on air carriers. As was proposed, 
Sec. 302.601(a) states that a fee is considered to be imposed as soon 
as the airport owner or operator has taken all steps necessary under 
its procedures to establish the fee. Under the FAA Authorization Act in 
new 49 U.S.C. 47129(a)(1)(B), one essential element to those procedures 
is providing written notice to carriers of any new or increased fee. 
Also as proposed, the 60-day filing period for complaints begins to run 
as soon as the requirements for imposing a fee are met, whether or not 
the fee is being paid by the carriers. ACI-NA points out that this 
``may help resolve fee disputes before the airport is actually counting 
on receiving the amounts in dispute, and would thus be less disruptive 
of airport planning and financing.'' To the extent that it encourages 
airports to avoid raising fees on short notice, it should be less 
disruptive of carrier planning as well.
    AAAE commented that the language in Sec. 302.601 should be made 
consistent with the final language in the policy statement. 
Specifically, it suggests adding the words ``for aeronautical use'' to 
describe the kinds of fees imposed by airports on carriers that may be 
challenged under this subpart. The Department agrees that the language 
of the procedural rule should be parallel to that in the policy 
statement, and the suggested change has been adopted.
    Paragraph (b) of Sec. 302.601 sets out the three limitations on 
applicability contained in the Authorization Act. The Secretary would 
not entertain complaints about a fee imposed pursuant to a written 
agreement with carriers using the facilities of an airport; a fee 
imposed pursuant to a financing agreement or covenant entered into 
prior to August 23, 1994, or any other existing fee not in dispute as 
of August 23, 1994. August 23, 1994 is the date the Authorization Act 
was enacted.
    Some commenters suggested additional provisions. ACI-NA, for 
example, recommends that ``Airlines should not be allowed to challenge 
a fee increase that is the result of the recalculation of airline fees 
due to the airport's loss of one or more air carriers, or the 
substantial diminution of service by one or more air carriers.'' We do 
not agree that this should be added to the final rule. If a fee is 
increased as a result of a proper recalculation of charges, the 
increase will be found reasonable. However, that is no basis for 
denying a carrier's right to file a complaint under this subpart. ATA 
would have us limit the exclusions on using subpart F to challenge fees 
imposed pursuant to agreements with carriers or pursuant to a financing 
agreement. These exclusions should apply, ATA believes, only if the 
agreements contain a basis for determining how fees are to be set. 
``[S]ome airports require air carriers to sign operating agreements 
that provide * * * that the carrier is required to pay whatever fees 
are established by the airport operator.'' We will not adopt ATA's 
comment; the statutory language is clear that these rules may not be 
used to challenge fees based on agreements.

Section 302.603  Complaint by an Air Carrier or Foreign Air Carrier; 
Request for Determination by an Airport Owner or Operator

    This section describes the requirements for carrier complaints and 
airport requests for determination. In keeping with the proposal, 
paragraph (a) states that both complaints and requests would be 
submitted in accordance with the usual technical requirements of 
proceedings under 14 CFR Part 302. (14 CFR Sec. 302.3 specifies such 
matters as the number of copies to be filed, the size of pages that may 
be used, and the filing address.) ATA's comments stated that the 
proposed rule failed ``to specify the type and form of briefs to be 
presented upon the filing of complaints.'' ATA is thus incorrect.
    As noted above, no commenter objected in principle to the basic 
procedure proposed in the NPRM for consolidating all complaints and any 
request for determination once any carrier has filed a complaint under 
this subpart. The final rule adopts the language of the NPRM. Following 
the first complaint, other air carriers or foreign air carriers wishing 
to file their own complaints would have seven days to do so. An airport 
owner or operator's request for determination would also have to be 
submitted no later than seven days after a carrier complaint. The 
Authorization Act specifies that all complaints would have to be 
submitted within 60 days of the written notice, even if this is less 
than seven days after the initial complaint. The law does not provide 
for entertaining later complaints. No potential complainant, having had 
54 or more days to prepare, will be disadvantaged by the immutability 
of the 60-day filing limit. As indicated above, JAL's request to extend 
the statutory deadline for foreign carriers is denied. While there is 
no statutory limitation on submitting airport requests for 
determination, no commenter objected to our proposal to impose a 
similar 60-day limit on such requests, and that proposal is also made 
final here. As noted in the NPRM, airport fee increases become 
incontestable under this subpart 60 days after the airport provides 
written notice to carriers of the imposition of a new or increased fee. 
The early determination of the reasonableness of a fee, which is the 
purpose of the Act, would be undermined by allowing more time. There is 
no point in expending Departmental resources on airport requests 
brought after that date.

Section 302.605  Contents of Complaint or Request for Determination

    Most of the issues pertaining to this section have been fully 
discussed above. The following is only a brief summary of the 
requirements in the final rule.
    Carriers filing complaints and airports filing requests for 
determination will generally be expected to submit documentation that 
contains the filing party's entire position and supporting evidence. We 
recognize, however, that an airport may control information or 
documents that a complaining carrier would need. If that is the case, 
and the carrier has unsuccessfully attempted to obtain the necessary 
information, Sec. 302.605 now provides that the carrier 
[[Page 6924]] must state that fact in the complaint. As discussed 
above, the Department anticipates that airports will promptly disclose 
any necessary information.
    The carrier filing the complaint or the airport owner or operator 
filing the request must serve the complaint or request and accompanying 
documents on all carriers serving the airport using the expedited 
procedures proposed in the NPRM. If a complaint has already been filed 
with respect to a particular airport's fees, additional complaints are 
due seven days after the initial complaint. All complaints must be 
filed within 60 days after the carrier has received written notice of a 
new or increased fees.
    The final rule retains the language that the filing carrier or 
airport would have to certify that it had previously attempted to 
resolve any fee dispute directly. In addition, as noted above, the 
filing party must certify that any submission on computer diskette is a 
true copy of the data file used to prepare the brief or exhibit.

Section 302.607  Answers to a Complaint or Request for Determination

    As discussed above, the most significant change in this section 
involves the time for filing answers to complaints or requests for 
determination. Answers will be due 14 days after the first complaint is 
filed rather than seven days after each complaint. Answers are to 
respond to both the initiating complaint and any follow-on complaints, 
which will continue to be due seven days after the initial complaint. 
This will respond to requests that we make it possible for parties to 
submit a consolidated answer to all complaints, while still allowing 
the Department sufficient time to review complaints or requests and the 
answers submitted.
    Under the final rule, therefore, upon receiving a copy of a 
complaint filed by another carrier, an air carrier or foreign air 
carrier could file its own complaint within seven days or an answer to 
the first complaint within 14 days. As noted in the preamble to the 
NPRM, it is technically permissible for a party to submit both its own 
complaint and an answer to the initiating complaint. However, because 
of the limited time available for the Department to review complaints 
and answers, parties are strongly urged to avoid duplicative filings. 
Naturally, answers, including answers in support of a complainant's 
position, do not give the answering party status as an additional 
complainant, nor may answers raise new objections to a fee or fees in 
dispute. A carrier that wants to raise any new arguments in opposition 
to the fee should do so in a follow-on complaint under Sec. 302.603.
    Both the airport owner or operator and any carrier serving the 
airport may file an answer to a complaint under this subpart. In the 
case of an airport request for determination, any carrier serving the 
airport would be authorized to file an answer. While only carriers 
subject to a new or increased fee at the airport may submit a follow-on 
complaint under Sec. 302.603, any carrier at the airport may submit an 
answer.
    As stated above, answering parties would generally be expected to 
set out all of their responsive arguments, testimony and exhibits in 
their answer.
    The answering party will serve the complaining carrier or carriers 
or the airport owner or operator requesting the determination by hand, 
by electronic transmission, or by overnight express delivery. The 
answering party must certify that the answer and accompanying documents 
will be received no later than the day the answer is due, and that any 
submission on computer diskette is a true copy of the data file used to 
prepare the brief or exhibit. Answers need only be served on the party 
to which the answer is directed.

Section 302.609  Replies

    ACI-NA argued that we should eliminate the opportunity to file 
replies, claiming that they are unnecessary, and that the requirement 
that they be filed two calendar days after the answer makes the 
opportunity to reply illusory. We see no need to eliminate the 
opportunity to file replies, although we emphasize that replies are 
voluntary submissions.
    While no other party suggested eliminating replies altogether, 
Massport, the Maryland Aviation Administration, and AAAE all 
recommended that we allow two business days rather than two calendar 
days. In part, it appears that this recommendation may stem from a 
misunderstanding of our procedures. AAAE, for example, states that 
``The rules as proposed would require that a party replying to an 
answer filed on a Friday file its reply on Sunday evening, when the 
agency is not even open for business.'' This is simply wrong. As 
provided in our rules of practice (14 CFR Sec. 302.16), any filing that 
would be due on a Saturday, Sunday, or government holiday is 
automatically due instead on the next business day. Accordingly, when 
an answer is due on a Thursday or Friday, any reply to the answer would 
be due by close of business on the following Monday (or the first 
business day thereafter). In such a case, the replying party would thus 
have at least three calendar days to prepare and submit its reply, 
although we recognize that two of those days are on the weekend.
    In accordance with our proposal, only the carrier originating a 
complaint or the airport originating a request for determination would 
be authorized to file a reply. Except as provided in subpart A of 14 
CFR Part 302, replies by any other party would not be accepted, nor 
would further responsive pleadings. For that reason, the NPRM did not 
propose to require that replies be served under the expedited 
procedures required for complaints, requests for determination, and 
answers. The NPRM specifically invited commenters to address whether 
expedited procedures were necessary for replies, but no party did so. 
We conclude that ordinary service as provided by 14 CFR Sec. 302.8 
(including service by mail) will suffice for replies. As with 
complaints, requests for determination, and answers, however, the 
replying party must certify that any submission on computer diskette is 
a true copy of the data file used to prepare the brief or exhibit.

Section 302.611  Review of Complaints

    As was proposed, paragraph (a) of Sec. 302.611 provides that the 
Secretary will determine within 30 days after a complaint is filed 
whether a significant dispute exists and whether the complaint meets 
the procedural requirements of subpart F. If the Secretary determines 
that there is no significant dispute, he or she will issue an order 
dismissing the complaint, as required by the FAA Authorization Act. The 
Secretary's order will include an explanation of the reasons for the 
determination. If the Secretary determines that the complaint does not 
meet the procedural requirements of this subpart (for example, the 
complaint was not properly served on the airport owner or operator), 
the Secretary will dismiss the complaint without prejudice. In this 
case, the order would explain any conditions necessary for the 
complaint to be re-filed.
    When one or more properly filed complaints have been submitted, the 
Secretary will issue an instituting order consolidating all complaints 
that raise significant issues and any request for determination. The 
instituting order will assign the consolidated case to an 
administrative law judge and describe the issues to be considered and 
the parties that will participate.
    In addition, Sec. 302.611 now provides that the instituting order 
may contain special provisions for exchange or disclosure of 
information by the parties. [[Page 6925]] As discussed above, the 
Department presumes that airports will provide all information 
necessary for carriers to understand the basis and justification for 
any new or increased airport fee. However, we have included this 
provision to clarify the Department's ability to ensure that adequate 
information is made available.
    Finally, the Secretary's order will state when the administrative 
law judge must issue a recommended decision (60 days after the 
instituting order, unless the order specifies a shorter period).

Section 302.613  Review of Requests for Determination

    An airport owner or operator's request for determination of the 
reasonableness of an airport fee will generally be handled in the same 
manner as a carrier complaint. As discussed above, we have revised the 
language of Sec. 302.613 to clarify the timing for action on an 
airport's request.
    When only an airport request has been filed, and not a carrier 
complaint, the Secretary will determine within 30 days whether there is 
a significant dispute and whether the procedural requirements of the 
subpart have been met. Properly submitted requests raising a 
significant dispute will be assigned to an administrative law judge in 
the same manner as carrier complaints, with appropriate guidelines on 
the scope of the issues and the parties to participate. If there is a 
procedural deficiency, the request will be dismissed without prejudice, 
and the order of dismissal will set forth the terms and conditions 
under which a revised request could be filed.
    However, when both an airport request and one or more carrier 
complaints have been filed, the Secretary will proceed under the 
statutorily prescribed schedule for resolving the complaint. As 
required by the FAA Authorization Act, the Secretary will determine 
whether any complaint presents a significant dispute within 30 days 
after the first complaint is submitted. If the first complaint is filed 
after the airport owner or operator's request, the request will be 
reviewed in conjunction with the complaints, and the consolidated 
instituting order may be issued more than 30 days following the 
request.
    As discussed above, the Secretary will not dismiss an airport owner 
or operator's request for determination on the basis that it does not 
raise a significant issue. In such cases, the Secretary would usually 
proceed directly to issue a final order determining whether the fee is 
reasonable. While this determination would ordinarily not require any 
additional procedures, the Secretary would retain discretion to require 
whatever additional procedures are necessary in a particular case.
    ACI-NA notes that paragraph (b) differs from paragraph (c) in that 
the latter specifies that the Secretary's determination with respect to 
reasonableness will be issued within 120 days after the airport request 
is filed. ACI-NA asks that we insert the 120-day language in paragraph 
(b) as well. While ACI-NA is correct that the two provisions should be 
parallel, Sec. 302.619(b) contains the completion time applicable to 
all requests for determination. Therefore, to avoid confusion, the 
final rule deletes the last sentence of proposed paragraph (c).

Section 302.615  Decision by Administrative Law Judge

    As provided by the FAA Authorization Act, Sec. 302.615 requires the 
administrative law judge to issue a recommended decision within 60 days 
after the case is assigned by the Secretary for hearing, unless the 
instituting order specifies a shorter period.
    ATA asked that we set out in this subpart specific requirements for 
hearings on airport fee disputes. It recommended that ``the Rule 
provide clear definition as to the nature of these hearings and a 
standardized approach to the resolution of the complicated factual and 
legal issues raised by airport fee disputes. As presently crafted, the 
NPRM would apparently rely upon the Secretary's order to draft a 
different approach in each and every case. Aside from the logical 
impracticality of such an unpredictable approach, we believe it to be 
so lacking in procedural guidance as to be fundamentally inconsistent 
with the requirements of Section 47129. As an alternative, we propose 
that the Secretary incorporate the procedures governing hearings set 
forth in 14 CFR part 302, subpart A, as modified in order to meet the 
time constraints imposed by Section 47129.''
    ATA appears to be suggesting that the Department lacks authority to 
impose specific requirements on the conduct of individual proceedings. 
This is simply incorrect, and indeed one important purpose of an 
instituting order is to tailor the general rules to the needs of a 
particular case. However, with respect to ATA's alternative suggestion 
that we rely generally on subpart A procedures, no change from the NPRM 
language is necessary. We have made it clear throughout this rulemaking 
that subpart A procedures will apply in the absence of a specific 
applicable provision in this subpart or a direction in the instituting 
order. As the FAA Authorization Act expressly states, following 
assignment of the proceeding to an administrative law judge, ``the 
matter shall be handled in accordance with part 302 of title 14, Code 
of Federal Regulations, or as modified by the Secretary to ensure an 
orderly disposition of the matter within the 120-day period and any 
specifically applicable provisions of this section.'' (49 U.S.C. 
47129(c)(2)). Similarly, subpart A of part 302 states as follows:

    Subpart A of this part sets forth general rules applicable to 
all types of proceedings. Each of the other subparts of this part 
sets forth special rules applicable to the type of proceedings 
described in the title of the subpart. Therefore, for information as 
to applicable rules, reference should be made to subpart A and to 
the rules in the subpart relating to the particular type of 
proceeding 14 CFR 302.1(b).

    ACI-NA argued that a prehearing conference should be mandatory for 
all parties in any proceeding brought under this subpart in which an 
oral hearing is scheduled. Although ACI-NA points out that this is 
common practice in the federal courts and many state courts, we do not 
believe that it is desirable to include this requirement in the rule. 
Once the case is assigned for hearing, we anticipate that the 
administrative law judge will frequently choose to order a prehearing 
conference. There might even be situations in which it would be 
appropriate for the Secretary to require a prehearing conference, in 
which case the instituting order will direct one be held. However, 
there is no reason for the final rule to make a prehearing conference 
mandatory in all cases.

Section 302.617   Petitions for Discretionary Review

    The Los Angeles Department of Airports objected to our proposal to 
provide for the filing of petitions for discretionary review of the 
administrative law judge's recommended decision. Instead, it argues 
that the FAA Authorization Act mandates Secretarial review of the 
recommended decision. It advocated allowing seven days for parties to 
provide exceptions to the recommended decision, and an additional seven 
days in which to file cross-exceptions.
    As we stated in the preamble to the NPRM, we anticipate that the 
Secretary will issue all final orders in proceedings under subpart F. 
Nevertheless, we do not agree that the Authorization Act makes this 
mandatory. In fact, the statute specifically anticipates that the 
Secretary might not issue a final order: It provides that the 
administrative law [[Page 6926]] judge's recommended decision is to be 
considered the Secretary's final order if the Secretary does not act 
within 120 days after a complaint is filed. Accordingly, we will adopt 
the proposed structure of providing for discretionary review of the 
recommended decision.
    As we proposed, a party to the proceeding will be able to file a 
petition for discretionary review of the administrative law judge's 
decision within five days after the recommended decision is served. The 
petitioner will serve all parties by hand, electronic transmission or 
overnight express delivery, and will certify that all parties had 
received the petition or would receive it by the date of filing. Any 
other party could then submit an answer, which would be due four days 
after the petition is filed. AAAE and ACI-NA stated that answers should 
be subject to the same expedited service requirements as petitions, but 
they did not explain why this would be necessary. The Department does 
not anticipate permitting further pleadings at this stage of the 
proceeding, and we do not believe that the burden of expedited service 
is justified.

Section 302.619   Completion of Proceeding

    This section sets out the completion dates for proceedings 
conducted under this subpart. No comments were submitted on it, and it 
is unchanged from the NPRM.
    Paragraph (a) states that the Secretary will issue a final order 
determining whether the disputed fee is reasonable within 120 days 
after the filing of a complaint by an air carrier or foreign air 
carrier, unless the complaint is dismissed as provided in proposed 
Sec. 302.611. This is the time limit for resolving air carrier 
complaints set forth in the FAA Authorization Act.
    Paragraphs (b) and (c) address proceedings involving requests for 
determination by airport owners and operators. Although the FAA 
Authorization Act does not impose a time limit on such requests, 
Sec. 302.619 provides a 120-day limit on these proceedings as well. 
When an airport has filed a request for determination but there are no 
carrier complaints with respect to the same fee, paragraph (b) states 
that the Secretary would issue a final order within 120 days of the 
request. However, as noted in Sec. 302.613, the Department will 
consolidate proceedings concerning the same airport fee or fees that 
are the subject of both a carrier complaint and an airport request for 
determination. In this situation, paragraph (c) provides that the 
timetable for resolving carrier complaints would control the schedule 
for action by the Department. Thus, if a carrier complaint is filed 
before the airport request, the Department would issue a final order in 
the consolidated proceeding in less than 120 days after the airport's 
request for determination. If one or more carriers file a complaint 
after the airport request, the 120-day period would begin on the day 
the first carrier complaint is filed.

Section 302.621   Final Order

    Following review of the recommended decision, the Secretary will 
issue a final determination with respect to the reasonableness of an 
airport fee that is the subject of a complaint or a request under this 
subpart. The Secretary's order will set forth the reasoning underlying 
the determination, and, if a fee is determined to be unreasonable, the 
order will provide for a refund or credit of the unreasonable charge. 
As noted in the NPRM, the exact terms under which the refund or credit 
would be ordered would vary with the particular circumstances of each 
case, but the Department intends to ensure prompt action.
    The FAA Authorization Act, in new 49 U.S.C. Section 47129 (a) (3), 
limits the Secretary's order to determining reasonableness, and the 
order would not set the level of the fee. The Maryland Aviation 
Administration expressed concern in its comments that disputes may not 
really be resolved within the 120-day limit unless the Department 
states what a reasonable fee would be. In the absence of such a 
statement, a revised fee would still be subject to challenge. Because 
the limitation on the Secretary's authority is a matter of statute, 
there is nothing we can do in this rulemaking to change it. However, 
the Secretary's order will attempt to set out the analysis underlying 
the decision as clearly as possible. If a fee is found unreasonable, we 
hope and expect that parties will be able to establish a reasonable fee 
after reviewing the decision and analysis.
    The Maryland Aviation Administration also states that ``the 
Department, or as may be required, the framers of the underlying 
statutory scheme, should consider whether the Department should award 
costs to airports'' when a disputed fee is found reasonable. As the 
commenter appears to appreciate, the Department does not have authority 
to award costs to the prevailing party in a fee dispute under subpart 
F. Accordingly, the comment is beyond the scope of this rulemaking.
    ACI-NA asks that the rule clarify that ``any finding of 
unreasonableness resulting from a complaint filed by a non-signatory 
carrier does not affect the underlying rates for signatory carriers, 
since the signatory fees may not be challenged.'' No rule change is 
needed here. However, it is obvious that no fee will be found to be 
unreasonable under subpart F unless it is the subject of a complaint or 
a request for determination.
    As stated above, the Department expects the Secretary to issue all 
final orders. However, if the Secretary fails to issue an order within 
120 days after a complaint is filed, the FAA Authorization Act requires 
that the administrative law judge's decision be deemed the final order 
of the Secretary. Section 302.621(c) restates this requirement. There 
is no corresponding legislative requirement with respect to airport 
requests for determination. Therefore Section 302.621 does not contain 
any provision for automatic adoption of the administrative law judge's 
decision. The Department nevertheless intends to resolve airport 
requests for determination within 120 days after they are filed.

Justification for Immediate Effectiveness

    Section 553 of the Administrative Procedure Act provides that the 
effective date of a new rule should be at least 30 days after it is 
published, unless the agency finds good cause for a shorter period.
    In enacting the FAA Authorization Act, the Congress made it clear 
that it intends for fee disputes between carriers and airports to be 
resolved promptly. Congress required that the Department issue this 
rule within 90 days of enactment of the Authorization Act, and mandated 
that all proceedings brought under the new procedures lead to a final 
order within 120 days. The Department will be unable to process any 
carrier complaints under this subpart until the procedures are 
effective. Accordingly, the Department finds that good cause exists to 
make this rule effective on publication in the Federal Register.

Regulatory Evaluation Summary

    This final rule contains new procedures for the filing and 
adjudication of complaints by air carriers and foreign air carriers 
alleging that an airport has imposed an unreasonable fee or charge on 
the complaining carrier. It also sets forth corresponding procedures 
under which an airport owner or operator may request and receive a 
determination of the reasonableness of a fee or charge it 
[[Page 6927]] has imposed on one or more air carriers or foreign air 
carriers. The new procedures replace existing procedures under 14 CFR 
part 13, and impose no new substantive requirements on either carriers 
or airports. The only commenter to question the tentative conclusion in 
the NPRM that the economic effect of the proposed rule would be minimal 
was the Maryland Aviation Administration, which argues that ``[t]he 
cost to provide expert witnesses and legal counsel if it is determined 
that there is a `significant dispute' may well prove to be material.'' 
The Maryland Aviation Administration did not attempt to quantify the 
costs it believed involved. More importantly, it did not establish that 
the costs are actually the result of the procedural rules at issue here 
rather than the general cost of the litigation authorized by 49 U.S.C. 
47129. Accordingly, the Department concludes that the economic impact 
of the final rule is minimal and that further calculation of the 
economic effects is not warranted.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) was enacted by 
Congress to ensure that small entities are not unnecessarily or 
disproportionately burdened by government regulations. The RFA requires 
a Regulatory Flexibility Analysis if a rule would have a significant 
economic impact, either detrimental or beneficial, on a substantial 
number of small entities. This rule contains procedural requirements 
for processing carrier complaints and airport requests. The Department 
concludes that the rule will not have a significant economic impact on 
a substantial number of small entities.

Federalism Implications

    The final rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Paperwork Reduction Act

    This rule contains no information collection requirements that 
require approval of the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1980 (44 U.S.C. 3507 et seq.).

Conclusion

    Although the Department has concluded that the economic effects of 
this rulemaking are minimal, this rule is considered significant under 
Executive Order 12866 because of the public interest in this 
rulemaking. The Department certifies that this rule will not have a 
significant economic impact, positive or negative, on a substantial 
number of small entities under the criteria of the Regulatory 
Flexibility Act. This rule is considered significant under DOT 
Regulatory Policies and Procedures (44 FR 11034; February 26, 1978).

List of Subjects in 14 CFR Part 302

    Administrative practice and procedure, Air carriers, Airports, 
Postal Service.

The Amendments

    Accordingly, the Department of Transportation amends 14 CFR part 
302 as follows:

PART 302--RULES OF PRACTICE IN PROCEEDINGS

    1. The authority citation for 14 CFR Part 302 is revised to read:

    Authority: 5 U.S.C. 551 et seq.; 39 U.S.C. 5402; 42 U.S.C. 4321; 
49 U.S.C. 40101, 40102, 40113, 40114, Chapters 411-415, 41702, 
41705, 41706, 41901, 41907, 41909, 41910, 42111, 46301, 46302, 
46303, 46105, 47129.

    2. A new subpart F is added to 14 CFR Part 302 to read as follows:

Subpart F--Rules Applicable to Proceedings Concerning Airport Fees

Sec.
302.601  Applicability of this subpart.
302.603  Complaint by an air carrier or foreign air carrier; request 
for determination by an airport owner or operator.
302.605  Contents of complaint or request for determination.
302.607  Answers to a complaint or request for determination.
302.609  Replies.
302.611  Review of complaints.
302.613  Review of requests for determination.
302.615  Decision by administrative law judge.
302.617  Petitions for discretionary review.
302.619  Completion of proceedings.
302.621  Final order.

Subpart F--Rules Applicable to Proceedings Concerning Airport Fees


Sec. 302.601  Applicability of this subpart.

    (a) This subpart contains the specific rules that apply to a 
complaint filed by one or more air carriers or foreign air carriers, 
pursuant to 49 U.S.C. 47129 (a), for a determination of the 
reasonableness of a fee increase or a newly established fee for 
aeronautical uses that is imposed upon the air carrier or foreign air 
carrier by the owner or operator of an airport. This subpart also 
applies to requests by the owner or operator of an airport for such a 
determination. An airport owner or operator has imposed a fee on an air 
carrier or foreign air carrier when it has taken all steps necessary 
under its procedures to establish the fee, whether or not the fee is 
being collected or carriers are currently required to pay it.
    (b) This subpart does not apply to--
    (1) A fee imposed pursuant to a written agreement with air carriers 
or foreign air carriers using the facilities of an airport;
    (2) A fee imposed pursuant to a financing agreement or covenant 
entered into prior to August 23, 1994; or
    (3) Any other existing fee not in dispute as of August 23, 1994.


Sec. 302.603  Complaint by an air carrier or foreign air carrier; 
request for determination by an airport owner or operator.

    (a) Any air carrier or foreign air carrier may file a complaint 
with the Secretary for a determination as to the reasonableness of any 
fee imposed on the carrier by the owner or operator of an airport. Any 
airport owner or operator may also request such a determination with 
respect to a fee it has imposed on one or more air carriers. The 
complaint or request for determination shall conform to the 
requirements of this subpart and Sec. 302.3 concerning the form and 
filing of documents.
    (b) If an air carrier or foreign air carrier has previously filed a 
complaint with respect to the same airport fee or fees, any complaint 
by another carrier and any airport request for determination shall be 
filed no later than 7 calendar days following the initial complaint. In 
addition, all complaints or requests for determination must be filed on 
or before the 60th day after the carrier receives written notice of the 
imposition of the new fee or the imposition of the increase in the fee.
    (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 be considered in a consolidated proceeding, as 
provided in Secs. 302.611 and 302.613.


Sec. 302.605  Contents of complaint or request for determination.

    (a) The complaint or request for determination shall set forth the 
entire grounds for requesting a determination of the reasonableness of 
the airport fee. [[Page 6928]] The complaint or request shall include a 
copy of the airport owner or operator's written notice to the carrier 
of the imposition of the fee, a statement of position with a brief, and 
all supporting testimony and exhibits available to the carrier on which 
the filing party intends to rely. In lieu of submitting duplicative 
exhibits or testimony, the filing party may incorporate by reference 
testimony and exhibits already filed in the same proceeding.
    (b) All exhibits and briefs prepared on electronic spreadsheet or 
word processing programs should be accompanied by standard-format 
computer diskettes containing those submissions. Word processing and 
spreadsheets files must be readable by current versions of one or more 
of the following programs, or in such other format as may be specified 
by notice in the Federal Register: Microsoft Word, Word Perfect, Ami 
Pro, Microsoft Excel, Lotus, Quattro Pro, or ASCII tab-delineated 
files. Parties should submit one copy of each diskette to the docket 
section, one copy to the office of the Chief Administrative Law Judge 
(M-50), and one copy to the Chief, Economic and Financial Analysis 
Division (X-55), of the Office of Aviation Analysis. Filers should 
ensure that files on the diskettes are unalterably locked.
    (c) 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. (Unless an 
air carrier or foreign air carrier has informed the complaining carrier 
that a different person should be served, service may be made on the 
person responsible for communicating with the airport on behalf of the 
carrier about airport fees.);
    (2) The parties served have received the complaint, brief, and all 
supporting testimony and exhibits or will receive them no later than 
the date the complaint is filed;
    (3) The carrier has previously attempted to resolve the dispute 
directly with the airport owner or operator;
    (4) When there is information on which the carrier intends to rely 
that is not included with the brief, exhibits, or testimony, the 
information has been omitted because the airport owner or operator has 
not made that information available to the carrier. The certification 
shall specify the date and form of the carrier's request for 
information from the airport owner or operator; and
    (5) Any submission on computer diskette is a true copy of the data 
file used to prepare the printed versions of the exhibits or briefs.
    (d) When an airport owner or operator files a request for 
determination, it must also submit the following certifications:
    (1) The airport owner or operator has served the request, brief, 
and all supporting testimony and exhibits on all air carriers and 
foreign air carriers serving the airport by hand, by electronic 
transmission, or by overnight express delivery. (Unless the air carrier 
or foreign air carrier has informed the airport owner or operator that 
a different person should be served, service may be made on the person 
responsible for communicating with the airport on behalf of the carrier 
about airport fees.);
    (2) The carriers served have received the request, brief, and all 
supporting testimony and exhibits or will receive them no later than 
the date the request is filed;
    (3) The airport owner or operator has previously attempted to 
resolve the dispute directly with the carriers; and
    (4) Any submission on computer diskette is a true copy of the data 
file used to prepare the printed versions of the exhibits or briefs.


Sec. 302.607  Answers to a complaint or request for determination.

    (a)(1) When an air carrier or foreign air carrier files a complaint 
under this subpart, the owner or operator of an airport and any other 
air carrier or foreign air carrier serving the airport may file an 
answer to the complaint as provided in paragraphs (b) and (c) of this 
section.
    (2) When the owner or operator of an airport files a request for 
determination of the reasonableness of a fee it has imposed, any air 
carrier or foreign air carrier serving the airport may file an answer 
to the request.
    (b) The answer to a complaint or request for determination shall 
set forth the answering party's entire response. When one or more 
additional complaints or a request for determination has been filed 
pursuant to Sec. 302.603(b) with respect to the same airport's fee or 
fees, the answer shall set forth the answering party's entire response 
to all complaints and any such request for determination. The answer 
shall include a statement of position with a brief and any supporting 
testimony and exhibits on which the answering party intends to rely. In 
lieu of submitting duplicative exhibits or testimony, the answering 
party may incorporate by reference testimony and exhibits already filed 
in the same proceeding.
    (c) Answers to a complaint shall be filed no later than fourteen 
calendar days after the filing date of the first complaint with respect 
to the fee or fees in dispute at a particular airport. Answers to a 
request for determination shall be filed no later than fourteen 
calendar days after the filing date of the request.
    (d) All exhibits and briefs prepared on electronic spreadsheet or 
word processing programs should be accompanied by standard-format 
computer diskettes containing those submissions. Word processing and 
spreadsheets files must be readable by current versions of one or more 
of the following programs, or in such other format as may be specified 
by notice in the Federal Register: Microsoft Word, Word Perfect, Ami 
Pro, Microsoft Excel, Lotus, Quattro Pro, or ASCII tab-delineated 
files. Parties should submit one copy of each diskette to the docket 
section, one copy to the office of the Chief Administrative Law Judge 
(M-50), and one copy to the Chief, Economic and Financial Analysis 
Division (X-55), of the Office of Aviation Analysis. Filers should 
ensure that files on the diskettes are unalterably locked.
    (e) 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;
    (2) The parties served have received the answer and exhibits or 
will receive them no later than the filing date of the answer; and
    (3) Any submission on computer diskette is a true copy of the data 
file used to prepare the printed versions of the exhibits or briefs.


Sec. 302.609  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 
[[Page 6929]] exhibits already filed in the same proceeding.
    (c) The reply shall be filed no later than two calendar days after 
answers are filed.
    (d) All exhibits and briefs prepared on electronic spreadsheet or 
word processing programs should be accompanied by standard-format 
computer diskettes containing those submissions. Word processing and 
spreadsheets files must be readable by current versions of one or more 
of the following programs, or in such other format as may be specified 
by notice in the Federal Register: Microsoft Word, Word Perfect, Ami 
Pro, Microsoft Excel, Lotus, Quattro Pro, or ASCII tab-delineated 
files. Parties should submit one copy of each diskette to the docket 
section, one copy to the office of the Chief Administrative Law Judge 
(M-50), and one copy to the Chief, Economic and Financial Analysis 
Division, (X-55) of the Office of Aviation Analysis. Filers should 
ensure that files on the diskettes are unalterably locked.
    (e) 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 and that any submission on computer diskette is a 
true copy of the data file used to prepare the printed versions of the 
exhibits or briefs.


Sec. 302.611  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--
    (1) Establish the scope of the issues to be considered and the 
procedures to be employed;
    (2) Indicate the parties to participate in the hearing;
    (3) Consolidate into a single proceeding all complaints and any 
request for determination with respect to the fee or fees in dispute; 
and
    (4) Include any special provisions for exchange or disclosure of 
information by the parties.
    (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) Except as provided in paragraph (e) of this section, within 30 
days after an airport owner or operator files a request for 
determination of the reasonableness of a fee under this subpart, 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 or set forth the schedule for 
any additional procedures required to complete the proceeding.
    (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.
    (e) When both a complaint and a request for determination have been 
filed with respect to the same airport fee or fees, the Secretary will 
issue a determination as to whether the complaint, the request, or both 
meet the procedural requirements of this subpart and whether a 
significant dispute exists within 30 days after the complaint is 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 
Sec. 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 
Sec. 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, [[Page 6930]] 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 January 30, 1995.
Federico Pena,
Secretary.
[FR Doc. 95-2674 Filed 1-31-95; 3:15 pm]
BILLING CODE 4910-62-P