[Federal Register Volume 69, Number 111 (Wednesday, June 9, 2004)]
[Proposed Rules]
[Pages 32298-32311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13050]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 158

[Docket No. FAA-2004-17999; Notice No. 04-09]
RIN 2120-AI15


Passenger Facility Charge Program, Non-Hub Pilot Program and 
Related Changes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FAA is proposing a pilot program to test new application 
and application approval procedures for the passenger facility charge 
(PFC) program. This pilot program will run for 3 years and is available 
to non-hub airports. Besides the pilot program, this proposed rule also 
contains several changes designed to streamline the PFC application 
procedures for all PFC applications and improve the existing PFC 
program. The FAA is proposing these changes in response to 
Congressional direction found in the Vision 100--Century of Aviation 
Reauthorization Act.

DATES: Send your comments on or before August 9, 2004.

ADDRESSES: You may send comments (Identified by Docket Number FAA-2004-
17999) using any of the following methods:
     DOT Docket Web site: Go to http://dms.dot.gov and follow 
the instructions for sending your comments electronically.
     Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Fax: 1-202-493-2251.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    For more information on the rulemaking process, see the 
SUPPLEMENTARY INFORMATION section of this document.
    Privacy: We will post all comments we receive, without change, to 
http://dms.dot.gov, including any personal information you provide. For 
more information, see the Privacy Act discussion in the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: To read background documents or comments received, go to 
http://dms.dot.gov at any time or to Room PL-401 on the plaza level of 
the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Sheryl Scarborough, Airports Financial 
Analysis & Passenger Facility Charge Branch, APP-510, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591; 
telephone: (202) 267-8825; facsimile: (202) 267-5302; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites interested persons to join in this rulemaking by 
filing written comments, data, or views. We also invite comments about 
the economic, environmental, energy, or federalism impacts that might 
result from adopting the proposals in this document. The most helpful 
comments reference a specific portion of the proposal, explain the 
reason for any recommended change, and include supporting data. We ask 
that you send us two copies of written comments.
    We will file in the docket all comments we receive, as well as a 
report summarizing each substantive public contact with FAA personnel 
about this proposed rulemaking. The docket is available for public 
inspection before and after the comment closing date. If you wish to 
review the docket in person, go to the address in the ADDRESSES section 
of this preamble between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays. You may also review the docket using the 
Internet at the web address in the ADDRESSES section.
    Privacy Act: Using the search function of our docket web site, 
anyone can find and read the comments received into any of our dockets. 
This includes the name of the individual sending the comment (or 
signing the comment for an association, business, labor union). You may 
review DOT's complete Privacy Act Statement in the Federal Register 
published on April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov.
    Before acting on this proposal, we will consider all comments we 
receive on or before the closing date for comments. We will consider 
comments filed late if it is possible to do so without incurring 
expense or delay. We may change this proposal because of the comments 
we receive.
    If you want the FAA to acknowledge receipt of your comments on this 
proposal, include with your comments a preaddressed, stamped postcard 
on which the docket number appears. We will stamp the date on the 
postcard and mail it to you.

Availability of Rulemaking Documents

    You can get an electronic copy using the Internet by:
    (1) Searching the Department of Transportation's electronic Docket 
Management System (DMS) Web page (http://dms.dot.gov/search);
    (2) Visiting the Office of Rulemaking's Web page at http://www.faa.gov/avr/arm/index.cfm; or
    (3) Accessing the Government Printing Office's Web page at http://

[[Page 32299]]

www.access.gpo.gov/su--docs/aces/aces140.html.
    You can also get a copy by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the docket number, notice number, or amendment number 
of this rulemaking.

Background

History

    The Aviation Safety and Capacity Expansion Act of 1990, codified 
under 49 U.S.C. 40117, created the passenger facility charge (PFC) 
program on November 5, 1990. The Aviation Safety and Capacity Expansion 
Act of 1990 allowed a public agency to impose a PFC of $1, $2, or $3 
for each enplaned passenger at commercial service airports that the 
public agency controls. The public agency can then use this PFC revenue 
to finance FAA-approved, eligible airport-related projects. The FAA's 
regulations that govern the PFC program are at 14 CFR part 158 and 
became effective on June 28, 1991.
    The first major revisions to the PFC Program occurred on May 30, 
2000. At that time, a final rule was issued that incorporated changes 
mandated by the Federal Aviation Administration Authorization Act of 
1994, the Federal Aviation Reauthorization Act of 1996, the Wendell H. 
Ford Aviation Investment and Reform Act for the 21st Century (AIR-21), 
and the recodification of the Federal Aviation Act of 1958. While this 
final rule made many changes to the PFC program, the most significant 
change increased the permitted PFC level by allowing public agencies to 
impose a $4 or $4.50 PFC as authorized in AIR-21.
    On December 12, 2003, President Bush signed the Vision 100--Century 
of Aviation Reauthorization Act (Vision 100) into law. Vision 100 
mandates many changes to the PFC program and this proposed rule 
addresses several of these changes. This notice proposes revisions to 
part 158 to implement a 3-year non-hub pilot program and related 
streamlining provisions. Vision 100 requires the FAA to propose 
regulations implementing the pilot program within 180 days of enactment 
of the Vision 100 pilot program section. A separate rulemaking in the 
future will address the other statutory and non-statutory changes to 
the PFC program that are not subject to the statutory deadline.

Statement of the Issue

    To impose a PFC, use PFC revenue, or amend an approved PFC, all 
public agencies must apply for FAA approval through the same process by 
following the application rules set forth in part 158. The application 
and approval process is the same for airports of all sizes, every 
project type, and projects previously reviewed by the FAA in other 
contexts. Vision 100 requires streamlining the general PFC process and 
creating a pilot program for non-hub airports to test certain 
streamlining procedures and to reduce the burdens on public agencies 
and the FAA under the existing procedures. One such burden involves re-
creating paperwork that has already been filed with, and, in some 
cases, reviewed by the FAA. For example, non-hub airports often apply 
to use PFC revenue either as their matching share for an Airport 
Improvement Program (AIP) grant or as a supplement to AIP funding. In 
these cases, the FAA has already reviewed the project under the AIP 
grant procedures. This duplication of efforts creates inefficiencies 
for both non-hub airports and the FAA.
    In 2002, the FAA examined the PFC program to identify ways to 
preserve the public interest goals and the existing checks and balances 
while removing unnecessary, duplicative, and time-consuming steps. The 
FAA undertook a study of applications and projects approved over the 
previous five years. This study examined the distribution of PFC 
funding among projects and airport types. The FAA also studied the 
extent to which AIP grants partially funded PFC projects. Finally, the 
FAA examined the characteristics of projects generating air carrier 
objections during the consultation process and the FAA's public notice 
and comment process. As a result of this study, the FAA recommended 
enactment of the non-hub pilot program and other PFC streamlining 
initiatives included in Vision 100 and this rulemaking. The results of 
this study are discussed more fully in the section-by-section analysis 
below.

General Discussion of the Proposals

    The FAA is required by statute and regulation to issue the final 
agency decision on each PFC application within 120 days of the receipt 
of the application. The current PFC application and review process is 
the same for all airports regardless of the size of the airport, the 
PFC collection amount, or the nature of the projects. This process has 
grown in complexity as the program has matured, leading to calls from 
airports and air carriers to speed up the process.
    Vision 100 mandates creating a pilot program for non-hub airports 
to test new PFC application and application approval procedures. This 
NPRM proposes regulations to create the Non-Hub Airport Pilot Program 
(pilot program). The entire text of the pilot program subsection in 
Vision 100 reads:

    ``(1) PILOT PROGRAM FOR PASSENGER FACILITY FEE AUTHORIZATIONS AT 
NONHUB AIRPORTS.--
    ``(1) IN GENERAL.--The Secretary shall establish a pilot program 
to test alternative procedures for authorizing eligible agencies for 
nonhub airports to impose passenger facility fees. An eligible 
agency may impose in accordance with the provisions of this 
subsection a passenger facility fee under this section. For purposes 
of the pilot program, the procedures in this subsection shall apply 
instead of the procedures otherwise provided in this section.
    ``(2) NOTICE AND OPPORTUNITY FOR CONSULTATION.--The eligible 
agency must provide reasonable notice and an opportunity for 
consultation to air carriers and foreign air carriers in accordance 
with subsection (c)(2) and must provide reasonable notice and 
opportunity for public comment in accordance with subsection (c)(3).
    ``(3) NOTICE OF INTENTION.--The eligible agency must submit to 
the Secretary a notice of intention to impose a passenger facility 
fee under this subsection. This notice shall include--
    ``(A) information that the Secretary may require by regulation 
on each project for which authority to impose a passenger facility 
fee is sought;
    ``(B) the amount of revenue from passenger facility fees that is 
proposed to be collected for each project; and
    ``(C) the level of the passenger facility fee that is proposed.
    ``(4) ACKNOWLEDGEMENT OF RECEIPT AND INDICATION OF OBJECTION.--
The Secretary shall acknowledge receipt of the notice and indicate 
any objection to the imposition of a passenger facility fee under 
this subsection for any project identified in the notice within 30 
days after receipt of the eligible agency's notice.
    ``(5) AUTHORITY TO IMPOSE FEE.--Unless the Secretary objects 
within 30 days after receipt of the eligible agency's notice, the 
eligible agency is authorized to impose a passenger facility fee in 
accordance with the terms of its notice under this subsection.
    ``(6) REGULATIONS.--Not later than 180 days after the date of 
enactment of this subsection, the Secretary shall propose such 
regulations as may be necessary to carry out this subsection.
    ``(7) SUNSET.--This subsection shall cease to be effective 
beginning on the date that is 3 years after the date of issuance of 
regulations to carry out this subsection.
    ``(8) ACKNOWLEDGEMENT NOT AN ORDER.--An acknowledgement issued 
under paragraph (4) shall not be considered an order issued by the 
Secretary for purposes of section 46110.''.


[[Page 32300]]


    Vision 100 states the pilot program will only apply to non-hub 
airports and will end three years after the date of issuance of 
regulations to carry out the pilot program subsection. Vision 100 
defines a non-hub airport as a commercial service airport that has less 
than 0.05 percent of the passenger boardings in the U.S. in the prior 
calendar year on an aircraft in service in air commerce. The FAA 
estimates that non-hub airports account for over 70 percent of all 
commercial service airports and approximately 15 percent of aircraft 
operations nationwide. The FAA also estimates that non-hub airports 
account for about 60 percent of the PFC applications processed over the 
last 5 years. Non-hub airports produce roughly 2 percent of total 
annual PFC revenue.
    The pilot program will:
    (1) Require a public agency to consult with air carriers before 
filing an application to the FAA to collect or use a PFC. Vision 100 
limits the consultation process to only those air carriers with a 
significant business interest at the airport (the significant business 
interest standard is also found in statutory changes to the general PFC 
program);
    (2) Require a public agency to provide reasonable notice to and 
opportunity for comment by the public before filing an application to 
the FAA to collect or use a PFC (this notice and comment requirement is 
also included in statutory changes to the general PFC provisions);
    (3) Reduce the information a public agency files with the FAA. 
Instead of filing the information required by 14 CFR 158.25, a public 
agency will file a notice including information such as:
    (a) The proposed PFC level and amount to be collected,
    (b) The proposed duration of the collection,
    (c) A list of projects to be financed with PFC revenue along with 
the amount of PFC revenue to be used on each project, and
    (d) Information about consultation with the air carriers and the 
public comment process;
    (4) Require the FAA to acknowledge receipt of notice of intent 
filed by the public agency and state any objections to the notice 
within 30 days after receipt of the notice; and
    (5) Authorize a public agency to impose a PFC unless the FAA states 
an objection to imposition within the 30-day time period.
    The pilot program differs from current practice in at least three 
ways:
    (1) The pilot program reduces the information a public agency must 
file with the FAA;
    (2) The pilot program changes the FAA approval process by allowing 
a public agency to collect and use a PFC when the FAA acknowledges 
receipt of the notice of intent and the FAA does not object to the PFC; 
and
    (3) The FAA's acknowledgment letter is not an agency final order 
for purposes of appeal to the U.S. Court of Appeals.
    The FAA believes the pilot program will streamline the PFC process, 
as required by Congress. In addition, the pilot program will reduce the 
burden on public agencies and the FAA for a great number of PFC 
applications that make up a small percentage of total PFC revenue.
    Vision 100 also contained several statutory changes that apply to 
the general PFC program. Some of these general statutory changes also 
apply to the pilot program.
    First, Vision 100 limits the pool of air carriers a PFC applicant 
must contact during the consultation process, prior to submitting an 
application to the FAA. Under the proposed change, all PFC applicants 
(including pilot program applicants) need only contact air carriers 
with a significant business interest at an airport the public agency 
controls. This change is executed by adding a definition of significant 
business interest to the definitions section (Sec.  158.3) and amending 
the consultation with air carriers provisions (Sec.  158.23).
    Second, Vision 100 adds a new requirement that PFC applicants 
publish a notice and provide an opportunity for the public to comment 
on the proposed PFC. This public comment provision is required whether 
a public agency is applying to impose a new PFC (under the general 
program or the pilot program) or amending a PFC. A second public 
comment period is required when a public agency applies to use a PFC 
(under the general program or the pilot program). This section is 
discussed below under new Sec.  158.24.
    Third, Vision 100 streamlines the PFC application process by 
eliminating the past requirement that the FAA publish a public notice 
in the Federal Register for each PFC application. Under Vision 100, any 
publication in the Federal Register by the FAA is optional. This 
section is discussed below under Sec.  158.27.
    Fourth, because Vision 100 requires the FAA to streamline the 
application process, the FAA is proposing to streamline the amendment 
process to bring parity between the two processes. The FAA proposes to 
streamline the amendment process for both the pilot program and the 
general PFC process. This section is discussed below under Sec.  
158.37.
    Fifth, this notice proposes several other administrative changes 
due to substantive changes created by Vision 100. These administrative 
changes include changing the application format to include and exclude 
requirements that Vision 100 changed. These changes are discussed below 
under Sec. Sec.  158.25 and 158.29.

Section-by-Section Discussion of the Proposals

    The section-by-section discussion of the NPRM is organized by the 
three types of changes this document proposes. First, this discussion 
addresses the Vision 100 statutory changes related to implementing the 
pilot program. These changes include defining ``non-hub airport'' in 
Sec.  158.3 and the new Sec.  158.30.
    Next, this discussion reviews the statutory changes mandated by 
Vision 100 applicable to both the pilot program and the general PFC 
program. These changes include proposed changes to Sec. Sec.  158.3 
(definitions--definition of ``significant business interest'') and 
158.23 (air carrier consultation), as well as a discussion of new Sec.  
158.24 (public comment process). These changes are necessary to ensure 
that public agencies understand what is required to meet the air 
carrier consultation and public comment processes. In addition, changes 
to Sec.  158.37 (amendments), which is not a part of Vision 100, are 
discussed. The changes to the amendment process are necessary to ensure 
that amending a PFC program established under the pilot program process 
is no more difficult than establishing the program.
    Finally, this section-by-section discussion ends with a review of 
the changes to the general PFC program that do not apply to the pilot 
program. Sections 158.25 (application), 158.27 (review of 
applications), and 158.29 (the Administrator's decision) are changed 
because of provisions in Vision 100 that relate to or complement the 
changes to Sec. Sec.  158.3 and 158.23 as well as the new Sec.  158.24.

Vision 100 Statutory Changes Creating a Non-hub Airport Pilot Program

Section 158.3 Definitions

    The proposed rule will add the definition of ``non-hub airport'' to 
part 158.
    Before enactment of Vision 100, terms such as large, medium, small 
and non-hub airports were not statutorily

[[Page 32301]]

defined. Vision 100 added definitions to all of these terms in section 
225 of that Act. The current part 158 defines ``large and medium hub'' 
airports but does not include definitions of ``small hub'' or ``non-
hub'' airports. Part 158 has had many procedures that are specific to 
large and medium hub airports but no procedures or requirements that 
are specific to small hub or non-hub airports. Vision 100 requires the 
FAA to create a pilot program to streamline the application process for 
non-hub airports as well as the FAA's processing of those applications. 
To comply with the statutory change, the proposed rule will define 
``non-hub airport'' to identify which airports are eligible for the 
pilot program. Section 225 of Vision 100 defines a ``non-hub airport'' 
as ``a commercial service airport (as defined in 49 U.S.C. 47102) that 
has less than 0.05 percent of the passenger boardings.'' The term 
``passenger boardings'' is also defined in Sec.  225 as follows:

    ``(A) means, unless the context indicates otherwise, revenue 
passenger boardings in the United States in the prior calendar year 
on an aircraft in service in air commerce, as the Secretary 
determines under regulations the Secretary prescribes; and
    ``(B) includes passengers who continue on an aircraft in 
international flight that stops at an airport in the 48 contiguous 
States, Alaska, or Hawaii for a nontraffic purpose.''

    The definition of non-hub airport in Sec.  225 is the same 
definition used in the FAA's AIP grant program and National Plan of 
Integrated Airports. Therefore, public agencies familiar with the FAA's 
Airport programs should be familiar with this definition of ``non-hub 
airport.'' Although Vision 100 defines a small-hub airport, the FAA is 
not including a definition of ``small hub airport'' in this rulemaking. 
The PFC program does not contain procedures or requirements specific to 
small hub airports, so there is no current need to define ``small hub 
airport'' in the PFC regulation.
    The PFC regulation currently defines ``passenger enplaned.'' Since 
this term is very similar to the term ``passenger boardings,'' we are 
not including a ``passenger boardings'' definition in this rulemaking.

Section 158.30 Pilot Program for PFC Authorization at Non-Hub Airports

    The proposed rule will create a new Sec.  158.30 to comply with 
Vision 100's requirement to set up a pilot program to streamline the 
application process for non-hub airports.
    The FAA's 2002 examination of the PFC program determined that about 
60 percent of the applications processed over the previous five years 
were for non-hub airports. In addition, nearly 50 percent of the PFC 
projects at non-hub airports over the study period provided either the 
local matching funds for AIP grants or supplemented AIP grants. A high 
percentage of the total PFC collections at non-hub airports were for 
airside projects, such as runways, taxiways and aprons, or for safety 
or security equipment, such as aircraft rescue and firefighting 
vehicles. Furthermore, only 2.3 percent of the nationwide approved PFC 
collections were for projects at non-hub airports. Based on these 
findings, the Congressional changes mandated by Vision 100 creating a 
pilot program should improve the application process for non-hub 
airports.
    The pilot program will reduce the information a public agency must 
provide the FAA to gain approval to impose a PFC. Currently, a public 
agency must provide a detailed description and justification for any 
project proposed for PFC funding. In addition, the public agency must 
provide information on how the project meets at least one PFC objective 
or significant contribution finding. The public agency must also 
provide detailed project funding information as well as answer several 
questions about other requirements contained in Sec. Sec.  158.27 and 
158.29. The format required for each project requires an average of 6 
pages of information per project.
    In contrast, under Sec.  158.30, the public agency will provide a 
completed FAA Form 5500-1 PFC Application and summary project 
information. If a proposed project is not in an existing AIP grant, the 
public agency will have to provide certain additional information. A 
public agency will not have to provide as detailed a description or 
justification as in the general PFC process. In addition, the public 
agency is not required to discuss the PFC objective in as great a 
detail as is required in the general PFC process or those projects 
included in AIP grants. Thus, public agencies should be able to provide 
the necessary information for all projects on 1 or 2 pages.
    Section 158.30(a) includes a general description of the intent of 
the pilot program. This subsection also discusses that a public agency 
may request the authority to only impose a PFC under the pilot program. 
A public agency may also request authority to both impose a PFC and use 
that PFC revenue in the same notice. Finally, a public agency may 
request authority to use PFC revenue previously approved for 
collection. These options are the same as those available to other 
public agencies using the application procedures under Sec.  158.25. 
Thus, the pilot program allows the same flexibility as the current 
application procedures to apply for various PFC authorities.
    Sections 158.30(b) and 158.30(c) set forth the information that a 
public agency must include when notifying the FAA of its intent to 
impose and/or use a PFC under Sec.  158.30. All notices of intent filed 
under Sec.  158.30 must include consultation with air carriers pursuant 
to Sec.  158.23 and a public comment period pursuant to Sec.  158.24. 
This section-by-section discussion reviews these two sections later. 
All notices of intent under Sec.  158.30 filed with the FAA must also 
include a copy of all comments received during the consultation and 
public comment processes. In addition, the notice of intent must 
include the public agency's reasons for proceeding with the notice of 
intent for any particular project that has been subject to disagreement 
or negative comments during the consultation or public comment 
processes.
    Section 158.30(b) sets forth the information required for a notice 
of intent to impose a PFC. Similarly, Sec.  158.30(c) sets forth the 
information required for a notice of intent to use PFC revenue. The 
primary difference between the two notices of intent is the requirement 
to provide airport layout plan (ALP), airspace, and environmental 
information for those projects for which the public agency is 
requesting to use PFC revenue. Section 158.30(c) also contains 
additional requirements if the notice of intent to use PFC revenue is 
not filed concurrently with the notice of intent to impose a PFC.
    The FAA has designed a form for use in the current PFC application 
process that has already received Office of Management and Budget 
approval (FAA Form 5500-1 PFC Application). This form includes an 
application sheet with blocks for general application information and a 
certification and signature section. The form also includes two 
attachment forms, one for project information and the other for 
information on how the various projects meet ALP, airspace, and 
environmental requirements. The pilot program will use the application 
sheet and, in some instances, the ALP, airspace, and environmental 
requirements attachment.
    The pilot program will use these forms because they have been in 
use in the PFC program for several years. They are also available for 
download from the FAA's PFC web-page. These forms

[[Page 32302]]

provide an easy format for information on:
    (1) The airport where the PFC's will be collected;
    (2) The airport or airports where it will be used;
    (3) The total amount proposed to be collected and used; and
    (4) The PFC level proposed for collection.
    The application sheet also includes certifications about compliance 
with the PFC statute and regulation as well as PFC assurances.
    A significant way in which the pilot program differs from the 
current program is the requirement to provide specific project 
information. The current application process requires detailed 
information about each project so the FAA can evaluate the eligibility 
and justification for each project. As discussed above, the FAA 
believes most projects proposed at non-hub airports are projects that 
the FAA is familiar with because of its management of the AIP program. 
The FAA's 2002 study of the PFC program revealed that most projects at 
non-hub airports involve runways, taxiways, aprons, equipment and 
simple terminal work. These types of projects are generally non-
controversial. The majority of these projects are duplicative of AIP 
grant projects. In addition, the FAA has a wealth of knowledge about 
the need for airside and safety improvements at most commercial service 
airports. The FAA has gained this knowledge through its participation 
in various airport planning efforts and airport certification programs. 
This is why the FAA has proposed that public agencies need only file 
limited project information in the pilot program.
    The FAA is proposing that the pilot program distinguish between 
projects already in an existing AIP grant and those projects that are 
not. To be included in an AIP grant, the FAA must determine that a 
project is eligible and justified under the AIP program. In accordance 
with the provisions of Sec.  158.15(b)(1)-(5), planning and development 
projects that are eligible under the AIP program are also eligible 
under the PFC program. Thus, by determining that a project is eligible 
for an AIP grant, the FAA has also determined that the project meets 
PFC eligibility requirements. In addition, projects included in AIP 
grants must meet requirements identical with the PFC requirements on 
ALP, airspace, and environmental compliance. Therefore, the FAA is 
proposing in the pilot program that, for those projects already in an 
existing AIP grant, the public agency will provide:
    (1) The title of the project;
    (2) The PFC funds sought for the project; and
    (3) The AIP grant number associated with the project.
    For projects not currently included in an AIP grant, the FAA will 
require more information. This is because the FAA does not have a 
decision on record approving the eligibility or justification of the 
project. The FAA also does not have information on how the project 
meets the ALP, airspace, and environmental requirements. Therefore, 
besides the project title and PFC funds sought, the public agency will 
have to provide information on the project description and 
justification. This information must be detailed enough to allow the 
FAA to make determinations on eligibility, justification, and the 
extent to which the project meets a PFC objective. However, as 
mentioned above, the FAA is familiar with most types of projects the 
public agency may propose so this information will likely be brief. The 
FAA's 2002 study of the PFC program revealed that most projects at non-
hub airports involve runways, taxiways, aprons, equipment and simple 
terminal work. The FAA expects that the types of projects submitted 
under the pilot program will be consistent with the types of projects 
submitted by non-hub airports in the past. To determine that ALP, 
airspace, and environmental requirements are met, the public agency 
will have to file FAA form 5500-1, Attachment G. This attachment is 
designed to allow completion without repetition of the same information 
for each project.
    The FAA intends to develop a form or a series of forms for use in 
providing the information required by Sec.  158.30(b)(2) independently 
from this rule. However, the FAA encourages public agencies not to wait 
for this form's availability to file a notice of intent.
    The criteria and standards the FAA will use to review any notice of 
intent filed under the pilot program are set forth in Sec.  158.30(d). 
The FAA will use the same criteria and standards currently used in the 
PFC decision making process and are found in Sec. Sec.  158.15, 158.17 
and 158.29. These criteria and standards are proposed to be 
incorporated in Sec.  158.30(d)(2)-(3). The FAA's review of the notice 
of intent will be different depending on the AIP grant status of the 
projects. However, review of the public agency's consultation and 
public comment processes will be the same regardless of the AIP status 
of the projects.
    The FAA has already made determinations on project eligibility and 
justification for projects in existing AIP grants. Therefore, the FAA 
will not duplicate that decision making in its pilot program review 
process for existing AIP projects. However, for those projects not 
included in existing AIP grants, the FAA will make eligibility and 
justification determinations.
    Currently, the FAA approves, partially approves, or disapproves all 
PFC applications. However, the FAA will not approve or disapprove a 
public agency notice of intent under the pilot program (Sec.  
158.30(e)). Rather, the FAA will acknowledge the public agency's notice 
of intent within 30 days of receipt of the notice of intent. This 
represents a savings of up to 90 days from the current application 
process. This acknowledgment will either agree with all proposed 
projects, object to some or all the proposed projects, or object to the 
notice of intent in its entirety.
    The FAA will object to a project if it determines the project is 
not eligible or justified. In addition, for a project proposed for use 
authority, the FAA will object if the project does not meet ALP, 
airspace, or environmental requirements. Finally, the FAA will object 
to a project if an interested party raises an objection during the air 
carrier consultation or public comment process and the FAA determines 
that the public agency did not adequately address this objection in its 
notice of intent.
    The FAA will object to a notice in its entirety if the FAA 
determines the consultation process did not comply with Sec. Sec.  
158.23 and 158.24 and/or the FAA objects to all projects in the notice 
of intent.
    In all cases, the FAA will provide the public agency with its 
reasons for any objections.
    Once the FAA issues an acknowledgment letter, Sec.  158.30(f) sets 
forth the actions a public agency may take. If the FAA does not object 
to either a project or the notice of intent in its entirety, the public 
agency may implement its PFC program following the information in its 
notice of intent. If the FAA objects to a project, the public agency 
may not collect or use PFC revenue on that project. If the FAA objects 
to the notice of intent in its entirety, the public agency may not 
implement the PFC program proposed in that notice.
    Even though the pilot program creates a separate application 
process, once the FAA acknowledges a notice, Sec.  158.30(f) requires 
the public agency to comply with all sections of part 158 except for 
Sec.  158.25.
    The language in Sec.  158.30(g) sets forth the Vision 100 mandate 
that any FAA

[[Page 32303]]

acknowledgement issued under this pilot program will not be considered 
an order issued by the Secretary. Therefore, these acknowledgments will 
not be subject to appeal to the U.S. Court of Appeals. This is in 
contrast to the FAA's current PFC decisions. Such decisions are 
considered to be orders issued by the Secretary and, can be appealed. 
However, since the FAA's acknowledgement letter will include the FAA's 
reasons for any objections, the public agency will potentially be able 
to fix any identified problems and resubmit its request. Therefore, the 
FAA does not believe that the lack of appeal rights will be a detriment 
to filing for PFC authority under the pilot program procedures. The FAA 
notes that there has never been an appeal of a PFC decision for a non-
hub airport filed with the U.S. Court of Appeals. The FAA reminds non-
hub airports that the pilot program is optional and, alternatively, 
they may file an application under the procedures of Sec.  158.25, 
which includes the right to judicial review.
    Finally, Sec.  158.30(h) incorporates the Vision 100 requirement 
that the pilot program will be in effect for 3 years from the date the 
final rule is enacted.

Vision 100 Statutory Changes Applicable to the General PFC Program

Section 158.3 Definitions

    The proposed rule will add the definition of ``significant business 
interest'' to part 158.
    Before enactment of Vision 100, 49 U.S.C. 40117(c)(2) and current 
Sec.  158.23 required public agencies to provide notice to all air 
carriers and foreign air carriers operating at the airport. Vision 100 
modifies 49 U.S.C. 40117(c)(2) to limit the public agency notice 
requirement to carriers with a ``significant business interest'' at the 
airport. Therefore, the FAA proposes to revise Sec.  158.23 to comply 
with the statutory change, limiting public agency notice to carriers 
with a ``significant business interest'' at the airport. However, part 
158 does not define the term ``significant business interest,'' and 
that phrase is an integral part of the modified PFC process. Based on 
this change, the proposed rule will provide such a definition, using 
the following definition from Sec.  123(a)(1) of Vision 100:
    ``* * * an air carrier or foreign air carrier that had no less 
than 1.0 percent of passenger boardings at the airport in the prior 
calendar year, had at least 25,000 passenger boardings at the 
airport in the prior calendar year, or provides scheduled service at 
the airport.''

Section 158.23 Consultation with air carriers and foreign air carriers

    As discussed in the definitions section, Sec.  158.23 currently 
requires public agencies to consult with all air carriers and foreign 
air carriers before filing a PFC application and before seeking certain 
amendments to a previously approved PFC. 49 U.S.C. 40117(c)(2) is the 
basis for this section. As discussed above, Sec.  123(a) of Vision 100 
modified 49 U.S.C. 40117(c)(2), with the following:

    ``(F) For the purposes of this section, an eligible agency 
providing notice and an opportunity for consultation to an air 
carrier or foreign air carrier is deemed to have satisfied the 
requirements of this paragraph if the eligible agency limits such 
notices and consultations to air carriers and foreign air carriers 
that have a significant business at the airport. In the 
subparagraph, the term `significant business interest' means an air 
carrier or foreign air carrier that had no less than 1.0 percent of 
passenger boardings at the airport in the prior calendar year, had 
at least 25,000 passenger boardings at the airport in the prior 
calendar year, or provides scheduled service at the airport.''

    To comply with the statutory change, the proposed rule limits the 
required consultation to only those air carriers and foreign air 
carriers having a significant business interest at the airport.
    Vision 100 modifies the carrier consultation requirements by 
dropping the requirement that the public agency consult with all air 
carriers and foreign air carriers who have operated at the airport 
during the previous year. Vision 100 substitutes in its place a 
requirement that the public agency consult with carriers having a 
significant business interest at the airport. The FAA notes that the 
Vision 100 definition of significant business interest would capture 
all carriers that have filed consultation comments on the various PFC 
applications over the last five years.
    However, the FAA notes that the definition of a carrier with a 
significant business interest at the airport may create possible 
confusion in certain situations. Under Sec.  158.11, a public agency 
may request to exclude a class of carriers from the requirement to 
collect the PFC. The public agency is not required to consult with 
carriers that are a part of a proposed excluded class.
    One possible excluded class is a carrier or carriers flying to a 
particular isolated community. If designated as an excluded class, a 
carrier may thus be exempt from collecting a PFC for a specific flight 
under Sec.  158.11(2) but also qualify as having a significant business 
interest at the airport because of its other operations. The exemption 
in Sec.  158.11 is regulatory and based on FAA discretion while the 
significant business interest notice requirement in Vision 100 is 
statutory. Because of the statutory requirement, if a public agency 
determines that a carrier has a significant business interest in its 
airport, the FAA will not approve the public agency's request under 
Sec.  158.11 to avoid consultation with that carrier. This is the case 
even if the public agency would otherwise be able to use the exemption. 
The FAA notes that an air carrier need only provide scheduled service 
to qualify as a significant business interest under the statutory 
definition.
    Vision 100 also requires that non-hub airports participating in the 
pilot program must follow the same significant business interest notice 
requirements as all other PFC applicants. Therefore, proposed Sec.  
158.23 requires participating pilot program public agencies to follow 
the significant business interest notice requirements. For further 
discussion of non-nub pilot program requirements see the discussion of 
proposed Sec.  158.30.

Section 158.24 Notice and Opportunity for Public Comment

    Before enactment of Vision 100, public agencies were not required 
by statute or regulation to seek public comment of proposed PFC's. Only 
the FAA was so required. This occurred after the public agency filed 
the PFC application for FAA approval. Public agencies were only 
required to consult with all air carriers at an airport, not with the 
public. Vision 100 now requires public agencies to seek public comment 
before filing a PFC application with the FAA. Section 123(a)(3) of 
Vision 100 amends 49 U.S.C. 40117(c) by inserting the following:

    ``(3) Before submitting an application, the eligible agency must 
provide reasonable notice and an opportunity for public comment. The 
Secretary shall prescribe regulations that define reasonable notice 
and provide for at least the following under this paragraph;
    ``(A) A requirement that the eligible agency provide public 
notice of intent to collect a passenger facility fee so as to inform 
those interested persons and agencies that may be affected. The 
public notice may include--
    ``(i) publication in local newspapers of general circulation;
    ``(ii) publication in other local media; and
    ``(iii) posting the notice on the agency's Internet website.
    ``(B) A requirement for submission of public comments no sooner 
than 30 days, and no later than 45 days, after the date of the 
publication of the notice.
    ``(C) A requirement that the agency include in its application 
or notice submitted under

[[Page 32304]]

subparagraph (A) copies of all comments received under subparagraph 
(B).''

    To comply with this statutory change, the proposed rule will create 
a new Sec.  158.24 that requires public agencies to provide reasonable 
notice and an opportunity for public comment. Public agencies must 
comply with this notice requirement before filing with the FAA an 
application to collect a PFC or a notice of intent to impose or use a 
PFC under the non-hub pilot program. The goal of this requirement is to 
provide notice and the opportunity to comment to the public of the 
potential existence of a PFC that may affect them. The public will have 
the opportunity to provide comments based on a detailed notice, before 
the public agency files a PFC application or a non-hub pilot program 
notice of intent with the FAA.
    In determining what constituted a reasonable notice, the FAA looked 
at the information that public agencies must provide in the 
consultation notice and at the air carrier consultation meeting. 
Information on any proposed excluded class of carriers was deemed 
unnecessary for the public comment process.
    A requirement that the public agency provide information on the 
class of carriers it proposes to exclude was not included among the 
requirements of the public comment notice. In the FAA's 2002 
examination of the PFC program, the FAA found there were no comments 
filed during the air carrier consultation about a proposed excluded 
class of carriers. Similarly, there were no comments filed in response 
to the FAA's Federal Register notice about a proposed excluded class of 
carriers.
    Based on the existing consultation process requirements, the FAA is 
proposing that a reasonable public notice must contain the following 
items:
    (1) A description of each project the public agency proposes to 
fund with the PFC. The FAA expects that this description could be as 
brief as, for example, ``extend taxiway A 500 feet to the north''. 
However, the description must be more than, for example, ``airfield 
pavements.'' It must clearly identify the proposed work;
    (2) A brief justification for each project the public agency 
proposes to fund with the PFC. The public agency must make available a 
more detailed justification or justification documents upon request of 
the public. A more detailed project justification is not included in 
the public comment process for two reasons. First, a discussion of a 
project's justification may be complex in nature, requiring information 
that could far exceed the intended scope of the public comment notice. 
Second, most proposed projects are also in the public agency's airport 
master plan and/or environmental documents and the public has an 
opportunity to comment on these projects through other means. The FAA 
believes that reasonable public notice should not require that the 
public agency duplicate other processes. Thus, the proposed rule does 
not include a requirement to provide detailed project justification in 
the public comment notice.
    (3) The PFC level for each project;
    (4) The estimated amount of PFC revenue the public agency will use 
for each project;
    (5) The proposed charge effective date for the application or 
notice of intent;
    (6) The estimated charge expiration date for the application or 
notice of intent;
    (7) The estimated total PFC revenue the public agency will collect 
for the application or notice of intent; and,
    (8) The name of and contact information for the person within the 
public agency to whom comments should be sent.
    The public agency must make the notice available to interested 
parties through one or more of the following methods:
    (1) Publication in a local newspaper,
    (2) Publication in other local media,
    (3) Posting on the public agency's Web site, or
    (4) Some other method acceptable to the FAA.
    The FAA added the fourth option, ``other methods acceptable to the 
FAA,'' to those in Vision 100 to increase the flexibility available to 
the public agencies. The FAA advises that if a public agency wishes to 
use an alternative method, it must first discuss the method with the 
FAA to make sure the method is acceptable. In general, the FAA will 
expect the public agency to use a method of publication that is readily 
available to most of the local community. The public agency may also 
wish to provide this notice to air carriers who do not meet the 
definition of a significant business interest under Sec.  158.23. This 
could be accomplished by posting the notice with fixed base operators 
or similar common areas on the airport or in national trade 
publications.
    To comply with Vision 100, the proposed rule also directs the 
public agency to establish a comment period of between 30 and 45 days. 
This comment period starts on the day after the date of publication of 
the notice.
    Finally, as noted above, this public comment period is required for 
both general PFC applications and for those participating in the non-
hub airport pilot program. The discussion of proposed Sec.  158.30 
contains further details on the non-hub pilot program.

Section 158.37 Amendment of Approved PFC

    There is no statutory provision controlling amendments, even after 
the enactment of Vision 100. The PFC amendment process is controlled 
solely by FAA regulation, under Sec.  158.37, based on the FAA's 
discretion. This allows for flexibility in the public agency's 
management of its PFC program.
    Under existing Sec.  158.37, there are two different procedures 
used by public agencies to amend PFC decisions. The first method 
applies when the public agency seeks to:
    (1) Decrease the total amount of PFC revenue approved for 
collection,
    (2) Decrease the PFC level to be collected from each passenger, or
    (3) Increase the amount being collected by 15 percent or less of 
the total approved for collection.
    This method allows the change to go into effect without the 
consultation or approval of the FAA. However, FAA policy is to issue a 
letter acknowledging the changes. The FAA usually issues this letter 
between 30 and 60 days of the date of the public agency's notice. The 
public agency also does not have to consult with air carriers before 
implementing changes under this method of amendment process. However, 
the public agency must notify the collecting air carriers and the FAA 
of a change due to this amendment process.
    The second method applies when the public agency seeks to:
    (1) Increase the PFC level to be collected from each passenger,
    (2) Materially alter the scope of an approved project,
    (3) Increase the total approved PFC revenue by more than 15 
percent, or
    (4) Establish or amend a class of carriers which is to be excluded 
from the requirement to collect the PFC.
    This method requires the public agency to apply to the FAA for 
approval of the amendment request. This method also requires the public 
agency to undertake consultation with the air carriers before filing 
the amendment application. The FAA will process an amendment filed 
under the second method in one of two ways.
    First, if there is no carrier disagreement to the proposed 
amendment actions, the FAA will evaluate the amendment application and 
issue its decision within 30 days of receipt of the application.

[[Page 32305]]

    Alternatively, if there is carrier disagreement to one or more of 
the proposed amendment actions, the FAA will evaluate the amendment 
application as well as any disagreements presented during the 
consultation process. Under these procedures, the FAA has the option of 
publishing a Federal Register notice seeking public comment on the 
proposed amendment actions. If there is a notice, the FAA will include 
any comments received because of the notice in its analysis of the 
amendment request. The FAA will issue its decision within 120 days of 
receipt of the amendment application.
    In part because of the statutory streamlining changes contained in 
Vision 100, the FAA has decided to change the amendment procedures 
because they should not be more complicated than the initial 
application rules.
    Furthermore, the FAA's experience with the current regulation leads 
to the conclusion that several of the current amendment procedures are 
confusing to public agencies. The areas of confusion mostly center on:
    (1) When a public agency must conduct additional consultation;
    (2) What constitutes a material change in the scope of the project; 
and
    (3) How to determine if a request to increase PFC revenue is above 
the 15 percent threshold.
    In addition, the FAA has identified a concern that a public agency 
could make a major increase in the PFC's dedication to one project 
while at the same time decreasing the PFC's on another project. A 
public agency could thus avoid the requirement for further air carrier 
consultation. The FAA believes actions of this type undermine the 
intent of the air carrier consultation provision.
    The proposed rule will revise this section to streamline the PFC 
amendment procedures. The revisions to Sec.  158.37 will create only 
one procedure for public agencies to use when seeking to amend PFC 
decisions. It will also assure that the FAA processes non-controversial 
amendments promptly. The proposed revisions to the amendment rules will 
continue to provide flexibility to the public agencies by allowing them 
to change approved projects, increase or decrease the PFC level, and 
otherwise respond quickly when financial or technical changes in a 
project are necessary.
    Section 158.37(a) discusses the types of actions for which an 
amendment is allowed and those for which one is not allowed. Allowable 
actions will include:
    (1) Increasing or decreasing the PFC level to be charged to a 
passenger;
    (2) Changing the scope of a project;
    (3) Increasing or decreasing the amount of PFC revenue to be used 
on a project; and
    (4) Establishing or amending an excluded class of carriers.
    The new language deletes the term ``materially alter the scope of 
an approved project'' as a basis for an amendment since this term has 
caused much of the confusion. A public agency may still alter a project 
description, which will now be called a change of scope. The amendment 
rules limit the changes that a public agency can make. Changing the 
scope of a project by amendment must remain true to the nature and 
structure of the approved project. Changing approved projects to a 
different type of project, adding new unrelated work elements, or 
constructing the same type of project for a different purpose than a 
project previously approved by the FAA, are new projects. These types 
of modifications require processing as a new application, rather than 
as an amendment.
    Examples of changing the scope include:
    (1) Trying to amend an approved taxiway construction project to 
include extending a runway; and
    (2) Trying to amend an approved facility construction project to 
include the same type of facility but at a different location. For 
example, a request to amend a taxiway construction project approved for 
one side of the airfield to add taxiway construction on the opposite 
side of the airfield will be unacceptable.
    Another change to the rule is that increases and decreases of PFC 
revenue will be calculated on a project-by-project basis, rather than 
as a change in the total amount approved for an application. In 
addition, the FAA is proposing that an increase of more than 25 percent 
above the original approved amount for a project be the threshold to 
determine if the opportunity for additional consultation and public 
comment is needed. These changes should address the cause for some of 
the public agencies' confusion as well as addressing the FAA's concern 
about significant funding changes.
    Under the new Sec.  158.37(b), any public agency requesting an 
amendment must receive approval from the FAA. The amendment application 
will include a description of the proposed amendment. The public agency 
must provide justification for the amendment if it includes a change in 
the scope of the project or an increase in the total approved PFC 
revenue for a project. In addition, public agencies of large and medium 
hub airports must provide a discussion on how the project meets the 
significant contribution requirement of Sec.  158.17(b), for any 
project in the amendment seeking to increase the PFC level above $3.00.
    The public agency must follow the air carrier consultation and 
public comment requirements of Sec. Sec.  158.23 and 158.24 if the 
amendment request is to:
    (1) Increase the original PFC amount for any project by more than 
25 percent;
    (2) Change the scope of a project; or
    (3) Increase the PFC level.
    The public agency must also include copies of any comments received 
during the carrier consultation and public comment processes in its 
amendment request. This requirement ensures that all interested parties 
have the opportunity to provide comments on significant changes to the 
approved PFC program.
    Section 158.37(c) provides the FAA's decision-making procedures for 
amendments. The FAA must either approve, partially approve or 
disapprove each amendment request within 30 days of the FAA's receipt 
of the request. In deciding, the FAA will consider whether the 
amendment is within the structure of the approved project and whether 
the project costs are reasonable and necessary for accomplishing the 
approved project. The FAA will also consider any comments filed during 
the consultation and public comment processes before reaching a 
decision.
    Finally, to assure proper PFC collections, Sec.  158.37(d) requires 
the public agency to notify the carriers of any change to the approved 
PFC resulting from an amendment. In addition, the effective date of any 
new PFC level must be no earlier than the first day of a month that is 
at least 30 days from the date the public agency notifies the carriers.
    As noted above, the proposed PFC amendment procedures apply to both 
general PFC applications and non-hub airport pilot program notices of 
intent.

Section 158.25 Applications

    The proposed rule makes several changes to this section. Most of 
these changes are necessary to conform to the changes in other sections 
of part 158 called for by Vision 100 and as discussed above. The other 
changes to this section streamline procedures in keeping with the 
intent of Vision 100.
    The modifications proposed in Sec. Sec.  158.25(a), 
158.25(c)(1)(i), 158.25(c)(1)(ii) and 158.25(c)(2)(ii)(A)-(C) specify 
that a public agency must

[[Page 32306]]

use FAA Form 5500-1 (latest edition) and all applicable Attachments 
when filing a PFC application under this section. When Part 158 was 
issued in 1991, the FAA had not developed PFC application forms. Rather 
than delay implementing the program while waiting for forms to be 
developed and approved for use, the regulation stated that public 
agencies should file a PFC application in a manner and form prescribed 
by the Administrator. Since then, the FAA has developed an application 
form that the Office of Management and Budget has approved for use. 
This current version of the application form has been in use, with 
minor modifications, since 2000.
    The proposed rule will change Sec.  158.25(b)(11) to be consistent 
with the change to Sec.  158.23 limiting consultation to only those 
carriers with a significant business interest at the airport. This 
proposed rule will also change Sec.  158.25(b)(11) to include the 
requirement for a public comment period under new Sec.  158.24. This 
new language will require public agencies to treat comments received 
from the public in a manner similar to the way they treat comments from 
air carriers under the existing rules.
    The proposed rule will also create a new Sec.  158.25(b)(14) to 
incorporate the requirement in Vision 100 that public agencies include 
a copy of all comments received during the air carrier consultation and 
public comment processes in the PFC application. Section 123(a)(1) of 
Vision 100 amends 49 U.S.C. 40117(c) by adding the following to the end 
of paragraph (2):

    (E) The agency must include in its application or notice 
submitted under subparagraph (A) copies of all certifications of 
agreement or disagreement received under subparagraph (D).

    The FAA notes that many public agencies already voluntarily include 
copies of the certifications of agreement and disagreement filed by the 
air carriers during the consultation process.
    The proposed rule will also change Sec. Sec.  158.25(c)(1)(i) and 
158.25(c)(2)(i). These paragraphs set forth the requirements for 
applications seeking authority to use PFC revenue. Currently, such 
applications require much of the same information that public agencies 
previously filed with their applications for authority to impose the 
PFC. This is the case even if that information has not changed. The 
proposed changes will allow public agencies to incorporate much of the 
prior information by reference if nothing has changed since the FAA 
approved the impose authority application. These changes will 
streamline this process and remove duplicative information.
    Finally, the last sentence in Sec.  158.25(a) will be changed. It 
currently states that an application that will be ``* * * in a manner 
and form prescribed by the Administrator.'' The new sentence will refer 
to the actual application. Based on this change, all other sentences in 
Sec.  158.25 with the old application reference will change to the new 
application reference under the proposed rule.

Section 158.27 Review of Applications

    Before enactment of Vision 100, 49 U.S.C. 40117(c)(3) and current 
Sec.  158.27(c)(2) required the FAA to publish a notice in the Federal 
Register of its intent to rule on an application. This notice invites 
public comment about the pending application and sets forth specific 
information about the proposed PFC.
    Section 123(a)(4) of Vision 100 amends 49 U.S.C. 40117(c)(4) 
(redesignated from 49 U.S.C. 40117(c)(3)) by striking ``shall'' and 
inserting ``may.'' This statutory change allows the FAA the option of 
publishing a notice in the Federal Register rather than requiring the 
notice. To comply with the statute, the proposed rule changes 
Sec. Sec.  158.27(c)(2), 158.27(c)(3) and 158.25(c)(4) to incorporate 
this statutory change by making the Federal Register notice optional.
    The FAA expects that it will publish a notice in the Federal 
Register only for those applications with significant issues or public 
controversy. The FAA generally views intermodal ground transportation 
access projects as significant because they connect to off-airport 
transit systems and because they can be quite costly. In addition, when 
a terminal project involves airline competition or leasing, the FAA is 
also likely to consider it significant. The FAA has found that terminal 
projects involving competition or leasing may be perceived as 
benefiting one carrier over another and, thus, require more Federal 
scrutiny. In addition, terminal projects are often financed with 
significant amounts of PFC revenue. Finally, the FAA will analyze 
comments received as a result of both the airline consultation and the 
public comment processes and may publish a Federal Register notice if 
there are issues raised during these processes that are controversial. 
This change will enable the FAA to issue non-controversial decisions in 
as few as 45 to 60 days rather than the current standard of 75 to 120 
days.

Section 158.29 The Administrator's Decision

    The proposed rule will change Sec.  158.29(c)(2) to include a 
reference to the new Sec.  158.24 (public comment). If the FAA has 
disapproved an application or a project, Sec.  158.29(c)(2) sets forth 
the requirements to reapply for PFC approval. The regulation currently 
requires that the public agency comply with the air carrier 
consultation requirements of Sec.  158.23 before resubmitting an 
application. The FAA has determined that compliance with Sec.  158.24 
should also be a requirement for any action under Sec.  158.29(c)(2).

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. We have determined that there 
is no current new information collection requirements associated with 
this proposed rule.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA has 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to these proposed regulations.

Economic Assessment, Regulatory Flexibility Determination, Trade Impact 
Assessment, and Unfunded Mandates Assessment

    Proposed changes to Federal regulations must undergo several 
economic analyses. First, Executive Order 12866 directs that each 
Federal agency propose or adopt a regulation only upon a determination 
that the benefits of the intended regulation justify its costs. Second, 
the Regulatory Flexibility Act of 1980 requires agencies to analyze the 
economic impact of regulatory changes on small entities. Third, the 
Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from 
setting standards that create unnecessary obstacles to the foreign 
commerce of the United States. In developing U.S. standards, this Trade 
Act also requires agencies to consider international standards and, 
where appropriate, use them as the basis of U.S. standards. Fourth, the 
Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires 
agencies to prepare a written assessment of the costs,

[[Page 32307]]

benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by private sector, of $100 
million or more annually (adjusted for inflation).
    In conducting these analyses, FAA has determined this rule (1) has 
benefits that justify its costs, is not a ``significant regulatory 
action'' as defined in section 3(f) of Executive Order 12866, and is 
not ``significant'' as defined in DOT's Regulatory Policies and 
Procedures; (2) will not have a significant economic impact on a 
substantial number of small entities; (3) will have a neutral trade 
impact; and (4) does not impose an unfunded mandate on state, local, or 
tribal governments, or on the private sector. These analyses, available 
in the docket, are summarized below.

Total Costs and Benefits of This Rulemaking

    The estimated net cost saving of this proposed rule is estimated at 
$3,550,000 or $2,544,850, discounted. Although the pilot program would 
terminate after 3 years, the other proposed provisions would continue. 
Airports are estimated to have net cost savings over a 10-year period 
of $3,075,000 or $2,211,250, discounted. The FAA is estimated to have 
net cost savings of $475,000 over a 10-year period or $333,600, 
discounted. Air carriers would incur only minimal costs in adjusting to 
the proposed changes to Part 158.

Who Is Potentially Affected by This Rulemaking

    Commercial airports, air carriers servicing these airports and the 
traveling public using these airports.

Our Cost Assumptions and Sources of Information

     Discount rate--7%.
     Period of analysis--2005-2007 for savings associated with 
the pilot program and 2005-2014 for proposed regulatory changes.
     Monetary values expressed in 2003 dollars.
    Costs (per individual action):

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Airport cost to notify and consult with an air carrier              $175
 regarding a PFC application.................................
Airport cost to solicit and include public comment on PFC           $600
 application.................................................
Airport cost (non-hub airports) to file a PFC application....     $5,000
Airport cost-savings for PFC use application.................     $5,000
Airport cost-savings for PFC amendment.......................     $1,667
FAA cost of Federal Register notice..........................       $500
------------------------------------------------------------------------

    These cost figures are based on the results of a study conducted by 
the FAA, the FAA's experience with the administration of the PFC 
program, and as part of figures determined for paperwork reduction 
analysis.

Alternatives We Considered

    The FAA hired a consultant to review past PFC records of decisions 
and other related materials to assess whether certain PFC procedures 
could be streamlined. On the basis of the study, the FAA put forward 
several ideas for streamlining the PFC process as part of the 
Administration's Reauthorization proposal. Many of these proposals were 
incorporated into the Vision 100 law.

Benefits of This Rulemaking

    The FAA estimates that the net effect of the proposed changes would 
be a decrease in cost for airports and have a neutral effect on air 
carriers and airline passengers.

Cost of This Rulemaking

    Airports would realize net cost savings over a 10-year period of 
$3,075,000 or $2,211,300, discounted.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) directs the FAA to fit 
regulatory requirements to the scale of the business, organizations, 
and governmental jurisdictions subject to the regulation. We are 
required to determine whether a proposed or final action will have a 
``significant economic impact on a substantial number of small 
entities'' as they are defined in the Act. If we find that the action 
will have a significant impact, we must do a ``regulatory flexibility 
analysis.''
    The FAA has determined that this proposed rule will not impose 
costs on small commercial service airports. Rather, costs associated 
with this proposed rule will be limited to only what is authorized by 
statute. Moreover, actual PFC collection authority is not affected by 
the proposal and all costs are fully recoverable through the PFC, if 
necessary, by small adjustments in the period of PFC collection. The 
FAA estimates that a small airport will realize net cost-savings of 
approximately $9,400 annually under the proposed rule.
    The FAA conducted the required review of this proposed rule and 
determined that it will not have a significant economic impact. 
Accordingly, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 
605(b), the FAA certifies that this proposed rule will not have a 
significant impact on a substantial number of small entities. The FAA 
seeks public comments regarding this finding and requests that all 
comments be accompanied with detailed supporting data.

Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
establishing any standards or engaging in related activities that 
create unnecessary obstacles to the foreign commerce of the United 
States. Legitimate domestic objectives, such as safety, are not 
considered unnecessary obstacles. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards. The FAA has assessed the 
potential effect of this proposed rule and has determined that, to the 
extent it imposes any costs affecting international entities, it will 
impose the same costs on domestic and international entities for 
comparable services, and thus has a neutral trade impact.

Unfunded Mandates Assessment

    The Unfunded Mandates Reform Act of 1995 (the Act) is intended, 
among other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of the Act 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in an expenditure of $100 million or more (adjusted 
annually for inflation) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.''
    This proposed rule does not contain such a mandate. The 
requirements of Title II of the Act, therefore, do not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, Federalism. We determined that this 
action would not have a substantial direct effect 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, and therefore would not have federalism implications.

Plain English

    Executive Order 12866 (58 FR 51735, Oct. 4, 1993) requires each 
agency to write regulations that are simple and

[[Page 32308]]

easy to understand. We invite your comments on how to make these 
proposed regulations easier to understand, including answers to 
questions such as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain unnecessary technical 
language or jargon that interferes with their clarity?
     Would the regulations be easier to understand if they were 
divided into more (but shorter) sections?
     Is the description in the preamble helpful in 
understanding the proposed regulations?
    Please send your comments to the address specified in the ADDRESSES 
section.

Environmental Analysis

    FAA Order 1050.1D defines FAA actions that may be categorically 
excluded from preparation of a National Environmental Policy Act (NEPA) 
environmental impact statement. In accordance with FAA Order 1050.1D, 
appendix 4, paragraph 4(j), this proposed rulemaking action qualifies 
for a categorical exclusion.

Regulations That Significantly Affect Energy Supply, Distribution, or 
Use

    The FAA has analyzed this NPRM under Executive Order 13211, Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). We have determined that it is not 
a ``significant energy action'' under the executive order because it is 
not a ``significant regulatory action'' under Executive Order 12866, 
and it is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy.

List of Subjects in 14 CFR Part 158

    Air carriers, Airports, Passenger facility charge, Public agencies, 
Collection compensation.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend part 158 of title 14, Code of Federal 
Regulations, as follows:

PART 158--PASSENGER FACILITY CHARGES (PFC'S)

    1. The authority citation for part 158 continues to read as 
follows:

    Authority: 49 U.S.C. 106(g), 40116-40117, 47106, 47111, 47114-
47116, 47524, 47526.

    2. Amend Sec.  158.3 to add the following definitions:


Sec.  158.3  Definitions.

* * * * *
    Non-hub airport means a commercial service airport (as defined in 
49 U.S.C. 47102) that has less than 0.05 percent of the passenger 
boardings in the U.S. in the prior calendar year on an aircraft in 
service in air commerce.
* * * * *
    Significant business interest means an air carrier or foreign air 
carrier that:
    (1) Had no less than 1.0 percent of passenger boardings at that 
airport in the prior calendar year,
    (2) Had at least 25,000 passenger boardings at the airport in that 
prior calendar year, or
    (3) Provides scheduled service at that airport.
* * * * *
    3. Amend Sec.  158.23 by revising paragraph (a) introductory text 
to read as follows:


Sec.  158.23  Consultation with air carriers and foreign air carriers.

    (a) Notice by public agency. A public agency must provide written 
notice to air carriers and foreign air carriers having a significant 
business interest at the airport where the PFC is proposed. A public 
agency must provide this notice before the public agency files an 
application with the FAA for authority to impose a PFC under Sec.  
158.25(b). In addition, public agencies must provide this notice before 
filing an application with the FAA for project approval under Sec.  
158.25(c). Public agencies must also provide this notice before filing 
a notice of intent to impose and/or use a PFC under Sec.  158.30. 
Finally, a public agency must provide this notice before filing a 
request to amend a previously approved PFC as discussed in Sec.  
158.37(b)(1). The notice shall include:
* * * * *
    4. Add Sec.  158.24 to read as follows:


Sec.  158.24  Notice and opportunity for public comment.

    (a) Notice by public agency. (1) A public agency must provide 
written notice and an opportunity for public comment before:
    (i) Filing an application with the FAA for authority to impose a 
PFC under Sec.  158.25(b);
    (ii) Filing an application with the FAA for project approval under 
Sec.  158.25(c);
    (iii) Filing a notice of intent to impose and/or use a PFC under 
Sec.  158.30; and
    (iv) Filing a request to amend a previously approved PFC as 
discussed in Sec.  158.37(b)(1).
    (2) The notice must allow the public to file comments for at least 
30 days, but no more than 45 days, after the date of publication of the 
notice or posting on the public agency's Web site, as applicable.
    (b) Notice contents. (1) The notice required by Sec.  158.24(a) 
must include:
    (i) A description of the project(s) the public agency is 
considering for funding by PFC's;
    (ii) A brief justification for each project the public agency is 
considering for funding by PFC's;
    (iii) The PFC level for each project;
    (iv) The estimated total PFC revenue the public agency will use for 
each project;
    (v) The proposed charge effective date for the application or 
notice of intent;
    (vi) The estimated charge expiration date for the application or 
notice of intent;
    (vii) The estimated total PFC revenue the public agency will 
collect for the application or notice of intent; and
    (viii) The name of and contact information for the person within 
the public agency to whom comments should be sent.
    (2) The public agency must make available a more detailed project 
justification or the justification documents to the public upon 
request.
    (c) Distribution of notice. The public agency must make the notice 
available to the public and interested agencies through one or more of 
the following methods:
    (1) Publication in local newspapers of general circulation;
    (2) Publication in other local media;
    (3) Posting the notice on the public agency's Internet website; or
    (4) Any other method acceptable to the Administrator.
    5. Revise Sec.  158.25 to read as follows:


Sec.  158.25  Applications.

    (a) General. This section specifies the information the public 
agency must file when applying for authority to impose a PFC and for 
authority to use PFC revenue on a project. A public agency may apply 
for such authority at any commercial service airport it controls. The 
public agency must use the proposed PFC to finance airport-related 
projects at that airport or at any existing or proposed airport that 
the public agency controls. A public agency may apply for authority to 
impose a PFC before or concurrent with an application to use PFC 
revenue. The public agency may file an application. If a public agency 
chooses to apply, it must do so by using FAA Form 5500-1, PFC 
Application (latest edition) and all applicable Attachments. The public 
agency must provide the information required under paragraphs (b) or 
(c), or both, of this section.
    (b) Application for authority to impose a PFC. This paragraph sets 
forth

[[Page 32309]]

the information to be submitted by all public agencies seeking 
authority to impose a PFC. A separate application shall be submitted 
for each airport at which a PFC is to be imposed. The application shall 
be signed by an authorized official of the public agency, and, unless 
otherwise authorized by the Administrator, must include the following:
    (1) The name and address of the public agency.
    (2) The name and telephone number of the official submitting the 
application on behalf of the public agency.
    (3) The official name of the airport at which the PFC is to be 
imposed.
    (4) The official name of the airport at which a project is 
proposed.
    (5) A copy of the airport capital plan or other documentation of 
planned improvements for each airport at which a PFC financed project 
is proposed.
    (6) A description of each project proposed.
    (7) The project justification, including the extent to which the 
project achieves one or more of the objectives set forth in Sec.  
158.15(a) and (if a PFC level above $3 is requested) the requirements 
of Sec.  158.17. In addition--
    (i) For any project for terminal development, including gates and 
related areas, the public agency shall discuss any existing conditions 
that limit competition between and among air carriers and foreign air 
carriers at the airport, any initiatives it proposes to foster 
opportunities for enhanced competition between and among such carriers, 
and the excepted results of such initiatives; or
    (ii) For any terminal development project at a covered airport, the 
public agency shall submit a competition plan in accordance with Sec.  
158.19.
    (8) The charge to be imposed for each project.
    (9) The proposed charge effective date.
    (10) The estimated charge expiration date.
    (11) Information on the consultation with air carriers and foreign 
air carriers having a significant business interest at the airport and 
the public comment process, including:
    (i) A list of such carriers and those notified;
    (ii) A list of carriers that acknowledged receipt of the notice 
provided Sec.  158.23(a);
    (iii) Lists of carriers that certified agreement and that certified 
disagreement with the project;
    (iv) Information on which method under Sec.  158.24(b) the public 
agency used to meet the public notice requirement; and
    (v) A summary of substantive comments by carriers contained in any 
certifications of disagreement with each project and disagreements with 
each project provided by the public, and the public agency's reasons 
for continuing despite such disagreements.
    (12) If the public agency is also filing a request under Sec.  
158.11--
    (i) The request;
    (ii) A copy of the information provided to the carriers under Sec.  
158.23(a)(3);
    (iii) A copy of the carriers' comments with respect to such 
information;
    (iv) A list of any class or classes of carriers that would not be 
required to collect a PFC if the request is approved; and
    (v) The public agency's reasons for submitting the request in the 
face of opposing comments.
    (13) A copy of information regarding the financing of the project 
presented to the carriers and foreign air carriers under Sec.  158.23 
of this part and as revised during the consultation.
    (14) A copy of all comments received as a result of the carrier 
consultation and public comment processes.
    (15) For an application not accompanied by a concurrent application 
for authority to use PFC revenue:
    (i) A description of any alternative methods being considered by 
the public agency to accomplish the objectives of the project;
    (ii) A description of alternative uses of the PFC revenue to ensure 
such revenue will be used only on eligible projects in the event the 
proposed project is not approved;
    (iii) A timetable with projected dates for completion of project 
formulation activities and submission of an application to use PFC 
revenue; and
    (iv) A projected date of project implementation and completion.
    (16) A signed statement certifying that the public agency will 
comply with the assurances set forth in Appendix A to this Part.
    (17) Such additional information as the Administrator may require.
    (c) Application for authority to use PFC revenue. A public agency 
may use PFC revenue only for projects approved under this paragraph. 
This paragraph sets forth the information that a public agency shall 
submit, unless otherwise authorized by the Administrator, when applying 
for the authority to use PFC revenue to finance specific projects.
    (1) An application submitted concurrently with an application for 
the authority to impose a PFC, must include:
    (i) FAA Form 5500-1 without attachments except as required below;
    (ii) For any projects where there have been no changes since the 
FAA approved authority to impose a PFC for those projects, a list of 
projects included in this application for use authority. The FAA will 
consider the information on these projects, filed with the impose 
authority application, incorporated by reference;
    (iii) For any project that has changed since receiving impose 
authority, the public agency must file an Attachment B for that project 
clearly describing the changes to the project; and
    (iv) An FAA Form 5500-1, Attachment G, Airport Layout Plan, 
Airspace, and Environmental Findings (latest edition) providing the 
following information:
    (A) For projects required to be shown on an ALP, the ALP depicting 
the project has been approved by the FAA and the date of such approval;
    (B) All environmental reviews required by the National 
Environmental Policy Act (NEPA) of 1969 have been completed and a copy 
of the final FAA environmental determination with respect to the 
project has been approved, and the date of such approval, if such 
determination is required; and
    (C) The final FAA airspace determination with respect to the 
project has been completed, and the date of such determination, if an 
airspace study is required.
    (v) The information required by Sec. Sec.  158.25(b)(16) and 
158.25(b)(17).
    (2) An application where the authority to impose a PFC has been 
previously approved:
    (i) Must not be filed until the public agency conducts further 
consultation with air carriers and foreign air carriers under Sec.  
158.23. However, the meeting required under Sec.  158.23(a)(4) is 
optional if there are no changes to the projects after approval of the 
impose authority and further opportunity for public comment under Sec.  
158.24; and
    (ii) Must include a summary of further air carrier consultation and 
the public agency's response to any disagreements submitted under the 
air carrier consultation and public comment processes conducted under 
paragraph (c)(2)(i) of this section;
    (iii) Must include the following, updated and changed where 
appropriate:
    (A) The information required under (c)(1)(i) of this section;
    (B) The information required under (c)(1)(ii) of this section; and
    (C) The information required by Sec. Sec.  158.25(b)(16) and 
158.25(b)(17).

[[Page 32310]]

    6. Amend Sec.  158.27 by revising paragraphs (c)(2), (c)(3) 
introductory text, and (c)(4) to read as follows:


Sec.  158.27  Review of applications.

* * * * *
    (c) * * *
    (2) The Administrator may opt to publish a notice in the Federal 
Register advising that the Administrator intends to rule on the 
application and inviting public comment, as set forth in paragraph (e) 
of this section. If the Administrator publishes a notice, the 
Administrator will provide a copy of the notice to the public agency.
    (3) If the Administrator publishes a notice, the public agency--
* * * * *
    (4) After reviewing the application and any public comments 
received from a Federal Register notice, the Administrator issues a 
final decision approving or disapproving the application, in whole or 
in part, before 120 days after the FAA Airports office received the 
application.
* * * * *
    7. Amend Sec.  158.29 by revising paragraph (c)(2) to read as 
follows:


Sec.  158.29  The Administrator's decision.

* * * * *
    (c) * * *
    (2) A public agency reapplying for approval to impose or use a PFC 
must comply with Sec. Sec.  158.23, 158.24, and 158.25 of this part.
* * * * *
    8. Add Sec.  158.30 to subpart A to read as follows:


Sec.  158.30  Pilot Program for PFC Authorization at Non-Hub Airports.

    (a) General. This section specifies the procedures a public agency 
controlling a non-hub airport must follow when notifying the FAA of its 
intent to impose a PFC and to use PFC revenue on a project under this 
section. In addition, this section describes the FAA's rules for 
reviewing and acknowledging a notice of intent filed under this 
section. A public agency may notify the FAA of its intent to impose a 
PFC before or concurrent with a notice of intent to use PFC revenue. A 
public agency must file a notice of intent in the manner and form 
prescribed by the Administrator and must include the information 
required under paragraphs (b), (c), or both, of this section.
    (b) Notice of intent to impose a PFC. This paragraph sets forth the 
information a public agency must file to notify the FAA of its intent 
to impose a PFC under this section. The public agency must file a 
separate notice of intent for each airport at which the public agency 
plans on imposing a PFC. An authorized official of the public agency 
must sign the notice of intent and, unless authorized by the 
Administrator, must include:
    (1) A completed FAA Form 5500-1, PFC Application (latest edition) 
without attachments except as required below;
    (2) Project information (in the form and manner prescribed by the 
FAA) including the project title, PFC funds sought, PFC level sought, 
and, if an existing Airport Improvement Program (AIP) grant already 
covers this project, the grant agreement number.
    (3) If an existing AIP grant does not cover this project, the 
notice of intent must include the information in paragraph (b)(2) of 
this section as well as the following:
    (i) Additional information describing the proposed schedule for the 
project,
    (ii) A description of how this project meets one of the PFC 
objectives in Sec.  158.15(a), and
    (iii) A description of how this project meets the adequate 
justification requirement in Sec.  158.15(c).
    (4) A copy of any comments received by the public agency during the 
air carrier consultation and public comment processes (Sec.  158.23 and 
Sec.  158.24) and the public agency's response to any disagreements.
    (5) If applicable, a request to exclude a class of carriers from 
the requirement to collect the PFC (Sec.  158.11).
    (6) A signed statement certifying that the public agency will 
comply with the assurances set forth in Appendix A to this Part.
    (7) Any additional information the Administrator may require.
    (c) Notice of intent to use PFC revenue. A public agency may use 
PFC revenue only for projects included in notices filed under this 
paragraph or approved under Sec.  158.29. This paragraph sets forth the 
information that a public agency must file, unless otherwise authorized 
by the Administrator, in its notice of intent to use PFC revenue to 
finance specific projects under this section.
    (1) A notice of intent to use PFC revenue filed concurrently with a 
notice of intent to impose a PFC must include:
    (i) The information required under paragraphs (b)(1) through (7) of 
this section;
    (ii) A completed FAA Form 5500-1, Attachment G, Airport Layout 
Plan, Airspace, and Environmental Findings (latest edition) for all 
projects not included in an existing Federal airport grant program 
grant.
    (2) A notice of intent to use PFC revenue where the FAA has 
previously acknowledged a notice of intent to impose a PFC must:
    (i) Be preceded by further consultation with air carriers and the 
opportunity for public comment under Sec.  158.23 and Sec.  158.24 of 
this part. However, a meeting with the air carriers is optional if all 
information is the same as that provided with the impose authority 
notice;
    (ii) Include a copy of any comments received by the public agency 
during the air carrier consultation and public comment processes (Sec.  
158.23 and Sec.  158.24) and the public agency's response to any 
disagreements or negative comments; and
    (iii) Include any updated and changed information:
    (A) Required by paragraphs (b)(1), (2), (5), (6), and (7) of this 
section; and
    (B) Required by paragraph (c)(1)(ii) of this section.
    (d) FAA review of notices of intent. The FAA will review the notice 
of intent to determine that:
    (1) The amount and duration of the PFC will not result in revenue 
that exceeds the amount necessary to finance the project(s);
    (2) Each proposed project meets the requirements of Sec.  158.15;
    (3) Each project proposed at a PFC level above $3 meets the 
requirements of Sec.  158.17(a)(2) and (3);
    (4) All applicable airport layout plan, airspace, and environmental 
requirements have been met for each project;
    (5) Any request by the public agency to exclude a class of carriers 
from the requirement to collect the PFC is reasonable, not arbitrary, 
nondiscriminatory, and otherwise complies with the law; and
    (6) The consultation and public comment processes complied with 
Sec.  158.23 and Sec.  158.24.
    The FAA will also make a determination regarding the public 
agency's compliance with 49 U.S.C. 47524 and 47526 governing airport 
noise and access restrictions and 49 U.S.C. 47107(b) governing the use 
of airport revenue. Finally, the FAA will review all comments filed 
during the air carrier consultation and public comment processes.
    (e) FAA acknowledgment of notices of intent. Within 30 days of 
receipt of the public agency's notice of intent about its PFC program, 
the FAA will issue a written acknowledgment of the public agency's 
notice. The FAA's acknowledgment may concur with all proposed projects, 
may object to some or all proposed projects, or may object to the 
notice of intent in its entirety. The

[[Page 32311]]

FAA's acknowledgment will include the reason(s) for any objection(s).
    (f) Public agency actions following issuance of FAA acknowledgment 
letter. If the FAA does not object to either a project or the notice of 
intent in its entirety, the public agency may implement its PFC 
program. The public agency's implementation must follow the information 
specified in its notice of intent. If the FAA objects to a project, the 
public agency may not collect or use PFC revenue on that project. If 
the FAA objects to the notice of intent in its entirety, the public 
agency may not implement the PFC program proposed in that notice. When 
implementing a PFC under this section, except for Sec.  158.25, a 
public agency must comply with all sections of Part 158.
    (g) Acknowledgment not an order. An FAA acknowledgment issued under 
this section is not considered an order issued by the Secretary for 
purposes of 49 U.S.C. 46110 (Judicial Review).
    (h) Sunset provision. This section will expire 3 years after the 
date of enactment of the final rule.
    9. Revise Sec.  158.37 to read as follows:


Sec.  158.37  Amendment of approved PFC.

    (a)(1) A public agency may amend an approved PFC to:
    (i) Increase or decrease the level of PFC the public agency wants 
to collect from each passenger,
    (ii) Increase or decrease the total approved PFC revenue,
    (iii) Change the scope of an approved project,
    (iv) Delete an approved project, or
    (v) Establish a new class of carriers under Sec.  158.11 or amend 
any such class previously approved.
    (2) A public agency may not amend an approved PFC to add projects, 
change an approved project to a different facility type, or alter an 
approved project to accomplish a different purpose.
    (b) The public agency must file a request to the Administrator to 
amend an approved PFC decision. The request must include or 
demonstrate:
    (1)(i) Further consultation with the air carriers and foreign air 
carriers and seek public comment in accordance with Sec. Sec.  158.23 
and 158.24 when applying for those requests to:
    (A) Amend the approved PFC amount for a project by more than 25 
percent of the original approved amount,
    (B) Change the scope of a project, or
    (C) Increase the PFC level.
    (ii) No further consultation with air carriers and foreign air 
carriers or public comment is required by a public agency in accordance 
with Sec. Sec.  158.23 and 158.24 when applying for an amendment in the 
following situations:
    (A) To institute a decrease in the level of PFC to be collected 
from each passenger; or
    (B) To institute a decrease in the total PFC revenue; or
    (C) To institute an increase of 25 percent or less for any approved 
PFC project; or
    (D) To establish a new class of carriers under Sec.  158.11 or 
amend any such class previously approved.
    (2) A copy of any comments received from the processes in paragraph 
(b)(1)(i) of this section for the carrier consultation and the 
opportunity for public comment in accordance with Sec. Sec.  158.23 and 
158.24;
    (3) The public agency's reasons for continuing despite any 
objections;
    (4) A description of the proposed amendment;
    (5) Justification, if the amendment involves a change in the PFC 
amount for a project by more than 25 percent of the original approved 
amount, a change of the approved project scope, or an increase in total 
approved PFC revenue for the project;
    (6) A description of how each project meets the requirements of 
Sec.  158.17(b), for each project proposed for an increase of the PFC 
level above $3.00 at a medium or large hub airport;
    (7) A signed statement certifying that the public agency has met 
the requirements of Sec.  158.19 if applicable, for any amendment 
proposing to increase the PFC level above $3.00 at a medium or large 
hub airport; and
    (8) Any other information the Administrator may require.
    (c) The Administrator will approve, partially approve or disapprove 
the amendment request and notify the public agency of the decision 
within 30 days of receipt of the request. If a PFC level of more than 
$3 is approved, the Administrator must find the project meets the 
conditions of Sec.  158.17 and Sec.  158.19 if applicable, before the 
public agency can implement the new PFC level.
    (d) The public agency must notify the carriers of any change to the 
approved PFC resulting from an amendment. The effective date of any new 
PFC level must be no earlier than the first day of a month which is at 
least 30 days from the date the public agency notifies the carriers.

    Issued in Washington, DC, on June 4, 2004.
Dennis E. Roberts,
Director, Office of Airport Planning and Programming.
[FR Doc. 04-13050 Filed 6-4-04; 4:29 pm]
BILLING CODE 4910-13-P