[Federal Register Volume 69, Number 149 (Wednesday, August 4, 2004)]
[Notices]
[Pages 47203-47205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17745]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration


Notice of the Federal Aviation Administration Overflight Fee 
Aviation Rulemaking Committee Charter

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of the Federal Aviation Administration Overflight Fee 
Aviation Rulemaking Committee Charter.

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SUMMARY: The FAA is publishing the Charter of the Overflight Fee 
Aviation Rulemaking Committee recently created after the FAA issued a 
final order on July 21, 2004, directing the disposition of certain 
fees.

SUPPLEMENTARY INFORMATION: The FAA created an Overflight Fee Aviation 
Rulemaking Committee on July 21, 2004 pursuant to the Administrator's 
authority under 49 U.S.C. 106(p)(5). The Charter of this Committee is 
published to provide the public notice as to the objectives, scope of 
activities, duties, organization and administration of the Committee. 
The Charter follows this notice.

Michael Chase,
Regulations Division, Office of the Chief Counsel.

Federal Aviation Administration Overflight Fee Aviation Rulemaking 
Committee Charter

    1. Purpose. This order constitutes the charter for the Overflight 
Fee Aviation Rulemaking Committee (the ``Committee'') that is 
designated and established pursuant to the Administrator's authority 
under 49 U.S.C. 106(p)(5).
    2. Distribution. This order is distributed at the director level in 
Washington headquarters and throughout the Office of the Associate 
Administrator for Financial Services and the Air Traffic Organization.
    3. Background. a. Section 273 of the Federal Aviation 
Reauthorization Act of 1996, 49 U.S.C. 45301 (the ``1996 Act''), 
authorized the FAA to impose fees on aircraft that traverse U.S.-
controlled airspace but neither take off nor land in the United States. 
Under the 1996 Act, ``[s]ervices for which costs may be recovered 
include the costs of air traffic control, navigation, weather services, 
training and emergency services which are available to facilitate safe 
transportation over the United States, and other services provided by 
the Administrator or by programs financed by the Administrator to 
flights that neither take off nor land in the United States.'' 49 
U.S.C. 45301(b)(1)(B). At the time of its enactment, section 273 
provided that the FAA Administrator ``shall ensure that each of the 
[overflight] fees * * * is directly related to the Administration's 
costs * * * of providing the service rendered.'' 49 U.S.C. 
45301(b)(1)(B)(1996). In November 2001, Section 273 was amended to 
state that the Administrator ``shall ensure that each of the fees * * * 
is reasonably related to the Administration's costs, as determined by 
the Administrator, of providing the service rendered * * *.'' Section 
119(d) of the Aviation and Transportation Security Act of 2001, Pub. L. 
107-71.
    b. In the years following enactment of the 1996 Act the FAA has 
issued two Interim Final Rules and a Final Rule attempting to establish 
those fees. In each instance, affected users successfully challenged 
the FAA's action in court. Additionally, the Congress has twice made 
changes to the basic statutory requirements related to overflight Fees. 
The most recent statutory change directly addressed the issue of 
overflight Fees. Section 229 of Vision 100 provides as follows:
    (a) Adoption and Legalization of Certain Rules--
    (1) Applicability and Effect of Certain Law--Notwithstanding 
section 141(d)(1) of the Aviation and Transportation Security Act (49 
U.S.C. 44901 note), section 45301(b)(1)(B) of title 49, United States 
Code, is deemed to apply to and to have effect with respect to the 
authority of the Administrator of the Federal Aviation Administration 
with respect to the interim final rule and final rule, relating to 
overflight fees, issued by the Administrator on May 30, 2000, and 
August 13, 2001, respectively.
    (2) Adoption and Legalization--The interim final rule and final 
rule referred to in subsection (a), including the fees issued pursuant 
to those rules, are adopted, legalized, and confirmed as fully to all 
intents and purposes as if the same had, by prior Act of Congress, been 
specifically adopted, authorized, and directed as of the date those 
rules were originally issued.
     (3) Fees to Which Applicable--This subsection applies to fees 
assessed after November 19, 2001, and before April 8, 2003, and fees 
collected after the requirements of subsection (b) have been met.
     (b) Deferred Collection of Fees--The Administrator shall defer 
collecting fees under section 45301(a)(1) of title 49, United States 
Code, until the Administrator (1) reports to Congress responding to the 
issues raised by the court in Air Transport Association of Canada v. 
Federal Aviation Administration and Administrator, FAA, decided on 
April 8, 2003, and (2) consults with users and other interested parties 
regarding the consistency of the fees established under such section 
with the international obligations of the United States.
     (c) Enforcement--The Administrator shall take an appropriate 
enforcement action under subtitle VII of title 49, United States Code, 
against any user that does not pay a fee under section 45301(a)(1) of 
such title.
     c. Only July 21, 2004, the FAA issued a Final Order that (i) 
addresses the FAA's authority to impose overflight fees under Section 
229 and other relevant law; (ii) provides, subject to conditions, 
refunds and/or credits for certain overflight fees previously paid; and 
(iii) assesses new overflight fees under the August 2001 Final Rule on 
both a retroactive and prospective basis.
     d. The Administrator deems it appropriate to create the Overflight 
Fees Aviation Rulemaking Committee to provide users an in-depth 
opportunity to evaluate the data supporting the fee

[[Page 47204]]

amounts and provide advice and recommendations on the appropriate 
amounts for future Overflight Fees.
     4. Objectives and Scope of Activities. The Committee's primary 
task is to identify the services rendered to overflights by the FAA, to 
determine the FAA's costs of providing services to overflights, and, 
based upon that determination, to make recommendations to the 
Administrator regarding the level of future overflight fees that would 
be consistent with the provisions of the 1996 Act, as amended.
     5. Duties. a. The Committee is to evaluate information regarding 
the services rendered to overflights by the FAA and the costs of 
providing those services to overflights, and, based on that evaluation, 
to make recommendations regarding future overflight fees, including 
possible modifications to, or replacement of, the fees currently being 
charged by the FAA.
     b. The Committee, and any working group thereof, shall be given 
access to FAA's financial and accounting system and records, and to 
personnel within the financial department, for the purpose of examining 
and analyzing the issues and data pertaining to the costs incurred by 
the FAA to provide air traffic control and related services to 
overflights. The committee, and any working group thereof, also shall 
have access to personnel of the Air Traffic Organization with knowledge 
pertaining to the nature and level of services provided to aircraft 
generally, and specifically with respect to overflights, and relevant 
documents and information possessed by the Air Traffic Organization, to 
assist the committee in its examination and analysis of the actual 
costs incurred by the agency to render services to overflights.
    c. The Committee and any working group thereof, may request 
relevant information and views from entities outside the FAA pertaining 
to the tasks undertaken by the Committee.
    d. At the discretion of the Chair, the Committee may conduct public 
meeting(s) to provide interested parties outside the Committee an 
opportunity to present information and views relevant to the tasks 
undertaken by the Committee.
    e. The Committee shall provide its recommendations to the 
Administrator by December 30, 2005, unless that deadline is extended by 
the Administrator.
    6. Organization and Administration. a. Except for the Chair, the 
Committee shall consist of representatives of the airline industry and 
other system users that are subject to the FAA's imposition of 
overflight fees. The Committee shall be led by:
    (i) A Chair, who shall be appointed by the Associate Administrator 
for Financial Services, and shall be a full-time employee of the FAA; 
and
    (ii) A Vice Chair, who shall not be employed by the FAA and who 
shall be a representative of foreign air carriers or trade associations 
of those carriers, or other system users who are subject to Overflight 
Fees.
    b. In addition to the Chair and Vice Chair, the Committee shall be 
comprised of at least 15 but not more than 25 employees or other 
representatives of the foreign air carriers (or trade associations of 
those carriers) or other system users that are subject to the FAA's 
overflight fees. The members shall be selected by the FAA and, to the 
extent possible, the membership also shall be geographically diverse 
and include representatives that conduct primarily enroute overflights 
and primarily oceanic overflights. Further, the members should include 
persons possessing relevant knowledge and experience with regard to (i) 
the nature of enroute and/or oceanic overflights; (ii) air traffic 
control procedures; (iii) air navigation systems; (iv) cost accounting 
matters; and/or (v) legal and regulatory issues pertaining to the FAA 
and overflight fees. Each organization or entity, selected for 
membership on the Committee may designate one representative and one 
alternate to serve on the Committee. Each member of the Committee shall 
have one vote.
    c. Members may permit their employees and consultants (including 
financial, technical and legal professionals) to attend any Committee 
meeting and review Committee documents.
    d. Additional FAA personnel may participate, as directed by the 
Associate Administrator for Financial Services, as adjunct non-members 
of the Committee.
    e. The Committee may retain the services of a non-government 
economic consultant selected by the Committee Chair and Vice Chair.
    f. The Associate Administrator for Financial Services is the 
sponsor of the Committee. The Associate Administrator for Financial 
Services shall receive all Committee recommendations and reports. The 
Associate Administrator shall also be responsible for providing 
administrative support for the Committee and shall provide a 
secretariat. The Chair and Vice Chair shall jointly be responsible for 
establishment of the procedures, consistent with this charter, under 
which the Committee shall operate. The Chair and Vice Chair may jointly 
establish working groups. These working groups will report to the 
Committee at each regular Committee meeting, and will be established 
for the length of the specific assigned task only.
    g. Meetings shall be held as frequently as needed, but no less than 
once each quarter, unless the Chair and Vice Chair agree. The Chair and 
Vice Chair shall jointly determine when a meeting is required and where 
it will be held. Meetings shall not be conducted in the absence of the 
Chair and the Vice Chair, unless the Chair or Vice Chair designates 
another individual to represent that respective person at the meeting.
    h. The Chair and Vice Chair shall jointly formulate an agenda for 
each meeting. The Chair shall arrange notification to all members of 
the time, place and agenda for any meeting through the secretariat and 
shall ensure that, to the extent practicable, any materials to be 
considered at the meeting are distributed to Committee members in 
advance. The Chair and Vice Chair shall jointly conduct the meeting. 
The Committee is not required to keep minutes, but may elect to do so. 
Committee recommendations to the Administrator must be approved by at 
least a two-thirds vote of the members. The Chair shall have the right 
to submit a separate report or recommendation to the Administrator.
    7. Compensation. All non-government Committee members shall serve 
without compensation from the U.S. government, and shall bear all costs 
related to their participation on the Committee.
    8. Public Participation. Unless otherwise decided by the Chair, all 
meetings of the Committee shall be closed. Interested persons wishing 
to attend a meeting who are not members of the Committee (or employees 
or consultants invited by a member) must request and receive approval 
in advance of the meeting from the Chair.
    9. Availability of Records. Subject to the provisions of the 
Freedom of Information Act, Title 5 U.S.C. 522, records, reports, 
agendas, working papers, and other documents that are made available 
to, prepared by, or prepared for the Committee shall be available for 
public inspection and copying at the FAA Office of Rulemaking, 800 
Independence Avenue, SW., Washington, DC 20591. Fees shall be charged 
for the information furnished to the public in accordance with the fee 
schedule published in part 7 of title 49, Code of Federal Regulations.
    10. Public Interest. The formation of the Committee is determined 
to be in the public interest in connection with

[[Page 47205]]

the performance of duties imposed on the FAA by law.
    11. Effective Date and Duration. This Committee is effective on 
August 1, 2004. The Committee shall remain in existence for two years 
after that date unless sooner terminated or extended by the 
Administrator.

    Dated: July 21, 2004.
Marion C. Blakey,
Administrator.
[FR Doc. 04-17745 Filed 8-3-04; 8:45 am]
BILLING CODE 4910-13-M