[Federal Register Volume 59, Number 179 (Friday, September 16, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-23022] [[Page Unknown]] [Federal Register: September 16, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 13 and 16 [Docket No. 27783; Notice No. 94-18A] RIN 2120-AF-43 Rules of Practice for Federally Assisted Airport Proceedings AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Proposed rule; partial withdrawal and extension of comment period. ----------------------------------------------------------------------- SUMMARY: On June 9, 1994, the Office of the Secretary of Transportation and the FAA published a notice of proposed rulemaking (NPRM) entitled, ``Rules of Practice for Federally Assisted Airport Proceedings.'' The recently enacted Federal Aviation Administration Authorization Act of 1994 requires that DOT and FAA, in the handling of a complaint by an airline that an airport fee is not reasonable, use certain procedures that are substantially different from the procedures proposed in the NPRM. This notice revises the proposal in the NPRM by withdrawing proposed Subpart J, the special procedures for the handling of airport fee complaints, and extends the comment period for commenting on the remaining proposal. DOT will propose separate procedures to implement the airport fee provisions of the new legislation. DATES: The comment period for Notice 94-18 as revised by this partial withdrawal is extended from September 15, 1994, to December 1, 1994. ADDRESSES: Comments should be mailed, in triplicate, to: Federal Aviation Administration, Office of Chief Counsel, Attention: Rules Docket (AGC-10), Docket No. 27783, 800 Independence Avenue, SW., Washington, DC 20591. All comments must be marked: ``Docket No. 27783.'' Comments on this Notice may be examined in room 915G on weekdays, except on Federal holidays, between 8:30 a.m. and 5 p.m. FOR FURTHER INFORMATION CONTACT: Mr. Barry Molar, Airports Law Branch (AGC-610), Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591, telephone (202) 267-3473. SUPPLEMENTARY INFORMATION: On June 9, 1994, the Office of the Secretary of Transportation (OST) and the FAA issued two related notices on the subject of Federal policy on airport rates and charges. A notice of proposed policy entitled ``Proposed Policy Regarding Airport Rates and Charges,'' (Proposed Policy) listed and explained the principles that the OST and the FAA believe define Federal policy on the rates and charges that an airport proprietor can charge to aeronautical users of the airport. (59 FR 29874). Notice 94-18, a notice of proposed rulemaking entitled ``Rules of Practice for Federally Assisted Airports,'' proposed detailed procedures for the filing, investigation, and adjudication of complaints against airports for alleged violation of Federal requirements under the airport and Airway Improvement Act of 1982, as amended, and the Anti-Head Tax Act provisions of the Federal Aviation Act (59 FR 29880). The NPRM provided a comment period extending until August 8, 1994, and was extended until September 15, 1994 (59 FR 41192; August 10, 1994). Subpart J of the proposed rule provided special procedures for complaints by airlines involving the fees charged by an airport proprietor. In brief, Subpart J provided an expedited formal investigation that included an evidentiary investigative hearing presided over by a designated FAA employee. The presiding officer would issue a report of investigation to the Assistant Administrator for Airports generally within 90 days of the complaint. Within 120 days of the complaint, the Assistant Administrator would issue an initial determination of whether the airport fee at issue violated Federal requirements that fees be fair and reasonable and not unjustly discriminatory. An initial determination would be subject to final decision by the Administrator as a result of direct written appeal or, in certain circumstances, of appeal from the initial decision of an FAA hearing officer in an adjudicatory hearing requested by the respondent. Federal Aviation Authorization Act of 1994 The FAA Authorization Act of 1994, Public Law 103-305 (1994 Authorization Act) was signed into law on August 23, 1994. Section 113 of the 1994 Authorization Act included specific provisions for the resolution of airport-air carrier disputes concerning airport fees. To a substantial degree, those provisions are different from and inconsistent with the Subpart J procedures proposed earlier by the OST and the FAA. Section 113 in its entirety reads as follows: SEC. 113. RESOLUTION OF AIRPORT-AIR CARRIER DISPUTES CONCERNING AIRPORT FEES. (a) IN GENERAL.--Subchapter I of chapter 471 of subtitle VII is amended-- (1) by redesignating section 47129 (and any references thereto) as section 47131; and (2) by inserting after section 47128 the following new section: ``S 47129. Resolution of airport-air carrier disputes concerning airport fees ``(a) AUTHORITY TO REQUEST SECRETARY'S DETERMINATION.-- ``(1) IN GENERAL.--The Secretary of Transportation shall issue a determination as to whether a fee imposed upon one or more air carriers (as defined in section 40102 of this subtitle) by the owner or operator of an airport is reasonable if-- ``(A) a written request for such determination is filed with the Secretary by such owner or operator; or ``(B) a written complaint requesting such determination is filed with the Secretary by an affected air carrier within 60 days after such carrier receives written notice of the establishment or increase of such fee. ``(2) CALCULATION OF FEE.--A fee subject to a determination of reasonableness under this section may be calculated pursuant to either a compensatory or residual fee methodology or any combination thereof. ``(3) SECRETARY NOT TO SET FEE.--In determining whether a fee is reasonable under this section, the Secretary may only determine whether the fee is reasonable or unreasonable and shall not set the level of the fee. ``(b) PROCEDURAL REGULATIONS.--Not later than 90 days after the date of the enactment of this section, the Secretary shall publish in the Federal Register final regulations, policy statements, or guidelines establishing-- ``(1) the procedures for acting upon any written request or complaint filed under subsection (a)(1); and ``(2) the standards or guidelines that shall be used by the Secretary in determining under this section whether an airport fee is reasonable. ``(c) DECISIONS BY SECRETARY.--The final regulations, policy statements, or guidelines required in subsection (b) shall provide the following: ``(1) Not more than 120 days after an air carrier files with the Secretary a written complaint relating to an airport fee, the Secretary shall issue a final order determining whether such fee is reasonable. ``(2) Within 30 days after such complaint is filed with the Secretary, the Secretary shall dismiss the complaint if no significant dispute exists or shall assign the matter to an administrative law judge; and thereafter the matter shall be handled in accordance with part 302 of title 14, Code of Federal Regulations, or as modified by the Secretary to ensure an orderly disposition of the matter within the 120-day period and any specifically applicable provisions of this section. ``(3) The administrative law judge shall issue a recommended decision within 60 days after the complaint is assigned or within such shorter period as the Secretary may specify. ``(4) If the Secretary, upon the expiration of 120 days after the filing of the complaint, has not issued a final order, the decision of the administrative law judge shall be deemed to be the final order of the Secretary. ``(5) Any party to the dispute may seek review of a final order of the Secretary under this subsection in the Circuit Court of Appeals for the District of Columbia Circuit or the court of appeals in the circuit where the airport which gives rise to the written complaint is located. ``(6) Any findings of fact in a final order of the Secretary under this subsection, if supported by substantial evidence, shall be conclusive if challenged in a court pursuant to this subsection. No objection to such a final order shall be considered by the court unless objection was urged before an administrative law judge or the Secretary at a proceeding under this subsection or, if not so urged, unless there were reasonable grounds for failure to do so. ``(d) PAYMENT UNDER PROTEST; GUARANTEE OF AIR CARRIER ACCESS.-- ``(1) PAYMENT UNDER PROTEST.-- ``(A) IN GENERAL.--Any fee increase or newly established fee which is the subject of a complaint that is not dismissed by the Secretary shall be paid by the complainant air carrier to the airport under protest. ``(B) REFERRAL OR CREDIT.--Any amounts paid under this subsection by a complainant air carrier to the airport under protest shall be subject to refund or credit to the air carrier in accordance with directions in the final order of the Secretary within 30 days of such order. ``(C) ASSURANCE OF TIMELY REPAYMENT.--In order to assure the timely repayment, with interest, of amounts in dispute determined not to be reasonable by the Secretary, the airport shall obtain a letter of credit, or surety bond, or other suitable credit facility, equal to the amount in dispute that is due during the 120-day period established by this section, plus interest, unless the airport and the complainant air carrier agree otherwise. ``(D) DEADLINE.--The letter of credit, or surety bond, or other suitable credit facility shall be provided to the Secretary within 20 days of the filing of the complaint and shall remain in effect for 30 days after the earlier of 120 days or the issuance of a timely final order by the Secretary determining whether such fee is reasonable. ``(2) GUARANTEE OF AIR CARRIER ACCESS.--Contingent upon an air carrier's compliance with the requirements of paragraph (1) and pending the issuance of a final order by the Secretary determining the reasonableness of a fee that is the subject of a complaint filed under subsection (a)(1)(B), an owner or operator of an airport may not deny an air carrier currently providing air service at the airport reasonable access to airport facilities or service, or otherwise interfere with an air carrier's prices, routes, or services, as a means of enforcing the fee. ``(e) APPLICABILITY.--This section does not apply to-- ``(1) a fee imposed pursuant to a written agreement with air carriers using the facilities of an airport; ``(2) a fee imposed pursuant to a financing agreement or covenant entered into prior to the date of the enactment of this section; or ``(3) any other existing fee not in dispute as of such date of enactment. ``(f) EFFECT ON EXISTING AGREEMENTS.--Nothing in this section shall adversely affect-- ``(1) the rights of any party under any existing written agreement between an air carrier and the owner or operator of an airport; or ``(2) the ability of an airport to meet its obligations under a financing agreement, or covenant, that is in force as of the date of the enactment of this section. ``(g) DEFINITIONS.--In this section, the term `fee' means any rate, rental charge, landing fee, or other service charge for the use of airport facilities.''. (b) CONFORMING AMENDMENT.--The analysis to such chapter is amended-- (1) by striking ``47129'' and inserting ``37131''; and (2) by inserting after the item relating to section 47128 the following: ``47129. Resolution of airport-air carrier disputes concerning airport fees.''. Rulemaking To Implement Section 113 The OST and the FAA are in the process of reviewing the provisions of Section 113. Because the rules previously proposed are in many respects not consistent with Section 113, the OST and the FAA are considering new regulations to implement the new law, and currently intend to publish a proposed rule for public comment as soon as the review is complete. Notwithstanding the 90-day period prescribed in the 1994 Authorization Act to complete rulemaking, the OST and the FAA will provide an opportunity to comment on the proposal, although commenters can expect a relatively brief period for public comment in view of the 90-day period for rulemaking provided in the legislation. We anticipate publication of proposed regulations by October 15, 1994 with a comment period of approximately 15 days. Related Actions By a separate notice being published simultaneously in the Federal Register, OST is extending the comment period on the Proposed Policy until October 15, 1994 and announcing our intention to issue a supplemental notice. We anticipate that the supplemental notice will be published not later than October 1, 1994. Amendment of Notice 94-18 In consideration of the differences between the rules proposed in the NPRM and the provisions of Section 113 of the 1994 Authorization Act, the OST and the FAA believe that there is no further reason to seek public comment on the special provisions in the NPRM for air carrier complaints related to whether airport fees are reasonable. At the same time, the remaining procedures proposed in the NPRM, which would apply to the various other kinds of complaints filed against airports relating to Federal requirements, are not affected by the 1994 Authorization Act. Accordingly, the OST and the FAA are withdrawing Subpart J of the rule proposed in the NPRM, and are continuing the proposal of all remaining provisions of the NPRM. In order to permit additional time for commenters to consider the proposal as revised by the withdrawal of Subpart J, the OST and the FAA are extending the comment period. Comments on the proposed rule are now due on or before December 1, 1994. Regulatory Evaluation Summary The NPRM proposed the adoption of a new procedure for the filing, investigation, and adjudication of complaints against airports for violation of certain statutes administered by the FAA. The new procedures would be substituted for existing procedures under 14 CFR part 13. With the exception of the deletion of the procedure for resolution of complaints by airlines regarding airport fees, the rule proposed in the NPRM has not changed. Accordingly, as stated in the NPRM, the expected economic impact of this proposed amendment would be so minimal that a full Regulatory Evaluation is not warranted. Conclusion For the reasons discussed in the preamble, the FAA has determined that this change to the proposed regulation is not economically significant under Executive Order 12866. However, due to the public interest in this rulemaking, this proposed rule is considered significant under the Executive Order. The FAA certifies that this proposal, if adopted, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. This proposal is considered significant under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1978). List of Subjects 14 CFR Part 13 Enforcement procedures, Investigations, Penalties. 14 CFR Part 16 Enforcement procedures, Investigations. Partial Withdrawal of the Proposed Amendments Accordingly, the Federal Aviation Administration proposes to amend part 13 and adopt new part 16 of the Federal Aviation Regulations (14 CFR parts 13 and 16) as proposed in Notice 94-18, except that proposed Subpart J of the proposed rule, entitled ``Subpart J--Alternate Procedure for Certain Complaints Concerning Airport Rates and Charges,'' and related references to Subpart J in the index of the proposed rule, are hereby withdrawn. Issued in Washington, DC, on September 12, 1994. Cynthia Rich, Assistant Administrator for Airports. [FR Doc. 94-23022 Filed 9-13-94; 3:34 pm] BILLING CODE 4910-13-M