[Federal Register Volume 60, Number 23 (Friday, February 3, 1995)]
[Rules and Regulations]
[Pages 6919-6930]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2674]
Federal Register / Vol. 60, No. 23 / Friday, February 3, 1995 / Rules
and Regulations
[[Page 6919]]
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 302
[Docket No. 49830]
RIN 2105-AC18
Rules of Practice for Proceedings Concerning Airport Fees
AGENCY: Office of the Secretary, DOT.
ACTION: Final rule.
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SUMMARY: This final rule establishes specific procedural rules under
which the Department of Transportation will handle complaints by air
carriers and foreign air carriers for a determination of the
reasonableness of a fee increase or newly established fee imposed upon
the carrier by the owner or operator of an airport. It also establishes
rules that would apply to requests by the owner or operator of an
airport for such a determination. The final rule responds to the
mandate in the recently enacted Federal Aviation Administration
Authorization Act of 1994 requiring the Department to issue regulations
establishing procedures for acting upon such complaints by air carriers
and requests by airport owners and operators.
EFFECTIVE DATE: This rule is effective on February 3, 1995.
FOR FURTHER INFORMATION CONTACT: Robert Klothe, Office of Regulation
and Enforcement, Office of the General Counsel, United States
Department of Transportation, 400 Seventh Street, SW, Washington, DC
20590, telephone (202) 366-9307.
SUPPLEMENTARY INFORMATION:
Background
This rulemaking had its origins in two related notices on the
subject of Federal policy on airport rates and charges issued by the
Office of the Secretary of Transportation (OST) and the Federal
Aviation Administration on June 9, 1994. A jointly-issued notice
entitled ``Proposed Policy Regarding Airport Rates and Charges''
(Proposed Policy) listed and explained the proposed Federal policy on
the rates and charges that an airport proprietor can charge to
aeronautical users of the airport. (59 FR 29874); a supplemental notice
concerning the proposed policy was issued on October 12, 1994 (59 FR
51836). The FAA also issued a notice of proposed rulemaking entitled
``Rules of Practice for Federally Assisted Airports'' setting forth
procedures for the filing, investigation, and adjudication of
complaints against airports for alleged violation of Federal
requirements under the Airport and Airway Improvement Act of 1982, as
amended, and the Anti-Head Tax Act provisions of the Federal Aviation
Act (59 FR 29880); subpart J of the proposed rule provided special
procedures for the expedited review of complaints by airlines involving
the fees charged by an airport proprietor.
Subsequently, Congress passed the FAA Authorization Act of 1994,
which was signed into law on August 23, 1994. Section 113 of the FAA
Authorization Act included specific provisions for the resolution of
airport-air carrier disputes concerning airport fees. The procedures
contemplated by the FAA Authorization Act were substantially different
from those proposed by the FAA. Accordingly, the FAA withdrew its NPRM
on September 16, 1994, insofar as it applied to the resolution of the
reasonableness of airport fees charged to air carriers. (59 FR 47568).
However, the remaining procedures proposed in the FAA NPRM, which would
apply to the various other kinds of complaints filed against airports
relating to Federal requirements, are not affected by the FAA
Authorization Act, and the comment period on the remaining proposals
closed on December 1, 1994.
In lieu of the procedures proposed by the FAA for handling air
carrier complaints about airport rates and charges, the Office of the
Secretary issued a new NPRM on October 24, 1994. As contemplated by the
FAA Authorization Act, the October 24 NPRM stated that the procedures
contained in 14 CFR Part 302 would generally govern air carrier
complaints as well as requests by airport owners or operators for a
determination of the reasonableness of airports fees and charges.
Discussion of Comments
The Department received twelve comments on the NPRM. They were
submitted by the Air Transport Association (ATA), the Aircraft Owners
and Pilots Association (AOPA), the Airports Council International--
North America (ACI-NA), the American Association of Airport Executives
(AAAE), the General Aviation Manufacturers Association (GAMA), the
International Air Transport Association (IATA), Japan Airlines Company
(JAL), the Los Angeles Department of Airports, the Maryland Aviation
Administration, the Massachusetts Port Authority (Massport), the
Metropolitan Washington Airports Authority, and the National Business
Aircraft Association, Inc. (NBAA).
Although there were numerous requests for changes to particular
provisions, the comments generally expressed support for the overall
concept of the proposed rule. The proposed regulatory approach, i.e.,
consolidating all complaints as soon as the first carrier files a
complaint under the new subpart, received several supporting comments
and no opposition. Accordingly, the final rule follows this approach
with only minor modifications. We turn now to a discussion of the
issues most widely addressed in the comments. Other comments are
addressed in the section-by-section analysis.
Party Status
A number of commenters addressed issues involving who should be
able to make use of the expedited procedures contained in the new
subpart. JAL expressed specific support for our proposal to allow
foreign air carriers to use the expedited procedures along with U.S.
air carriers. AAAE stated that it considers this proposal acceptable,
and ACI-NA also indicated that it did not object, although ACI-NA added
that ``a foreign air carrier, like any other carrier, which initiates
or joins a case should not be allowed to pursue remedies in other
forums, in order to avoid duplicative proceedings which could lead to
inconsistent or conflicting results.'' Only the Los Angeles Department
of Airports opposed including foreign air carriers. It claims that
``Congress intentionally provided the expedited procedures only to U.S.
carriers,'' and suggests that making this forum available to foreign
carriers forfeits a bargaining position for the United States and
contravenes the principle of international reciprocity.
The final rule adopts the proposal to allow foreign air carriers to
file complaints under subpart F. As we noted in the NPRM, we anticipate
that both domestic and foreign carriers will dispute airport fees they
believe to be unreasonable. Since the economic and other issues
involved in determining the reasonableness of a fee are essentially the
same whether the complainant carrier is U.S. or foreign, it will be
simpler for the carriers, the airport and the Department to make that
determination in a single proceeding. Therefore, while the FAA
Authorization Act was only directed at complaints by U.S. carriers, we
will include foreign carriers on our own initiative.
With respect to the comment that foreign carriers filing claims
under subpart F should be barred from seeking remedies in other forums,
we note that the various bilateral agreements on air service between
the United States and [[Page 6920]] other countries govern the rights
of foreign air carriers in this regard.
GAMA, AOPA, and NBAA all argue that we should further expand the
applicability of this subpart to cover complaints by general aviation
operators. In their view, the arguments for including foreign air
carriers apply with equal force to general aviation users. While we
recognize that there may be cases in which an airport imposes
essentially similar fees on both general aviation and air carrier
operations, we cannot grant the request to expand the expedited
procedures to general aviation operators. The FAA Authorization Act
requires the Secretary to determine the reasonableness of a challenged
fee within 120 days after a complaint is filed and indicates a
preference for oral evidentiary procedures, to the extent that such
procedures are consistent with the 120-day timeframe. Our procedures
must carry out the Congressional intent. If general aviation operators
are permitted to make use of this subpart, however, the scope of the
hearing would be dramatically expanded. It is possible that there would
be dozens, conceivably even hundreds, of additional parties, possibly
with divergent interests. If this happened, it would so overwhelm the
Department's resources that it could become impossible for the
Department to meet the statutory deadline.
The Metropolitan Washington Airports Authority argues that there is
an integral relationship between the fees paid by ``signatory'' and
``non-signatory'' carriers. (Signatory carriers are airlines that have
entered into a use or operating agreement with the airport operator.)
Therefore, ``it is important for the procedures to specify that the
airport can join as indispensable parties the signatory airlines when
the airports rates and charges are challenged by a non signatory
airline.'' The final rule does not incorporate this suggestion. If a
carrier (signatory or otherwise) would be affected by the outcome of a
complaint filed by another carrier at the same airport, it may well
choose to participate in the proceeding, such as by filing an answer to
the complaint. The NPRM's proposal to require service of any complaint
on other carriers (discussed more fully below) was made partly to
facilitate such participation. But there is no reason to require the
participation of carriers with no complaint of their own and no
interest in the fee being challenged.
Evidence To Be Submitted With Complaints, Requests and Answers
A number of commenters addressed the proposal in the NPRM that
carrier complaints should contain all supporting evidence and
testimony, and that answers should similarly be complete with all
evidence and testimony on which the party intends to rely.
IATA commented that a carrier might not have access to much of the
information necessary to its complaint unless the airport had agreed to
furnish it. IATA requested that the final rule make clear that
information within the custody of the airport could be used by the
carrier if it was able to obtain the information only after the
complaint was filed. ATA raised the same issue, but suggested that we
provide for a formal discovery process within the 30-day period
following the complaint.
The Department's Policy Regarding Airport Rates and Charges,
published in today's Federal Register, states that airports should
consult with carriers in advance of changing fees, and should provide
adequate information to permit carriers to evaluate the justification
for the change and the reasonableness of the new or increased fee. We
expect that airports will comply with this policy.
The Department finds the IATA and ATA concerns valid. However, we
believe that the conduct of discovery in the 30-day period following
the complaint would be a burden to the airport owner or operator and to
the government. Moreover, any discovery conducted would be unnecessary,
and therefore excessive, if the complaint is subsequently dismissed
because the Secretary determines that there is no significant dispute.
Accordingly, the Department will provide, where necessary, special
procedures for the exchange or disclosure of information by the
parties.
Airport parties had equivalent objections with respect to the
proposed requirements for the timing and completeness of answers. ACI-
NA, AAAE, the Los Angeles Department of Airports, and Massport all
argued that airports should not have to submit their entire response
with the answer. They believe that answering parties should only have
to submit a brief in response to a complaint, and should be able to
supplement their submission with exhibits and testimony at a later
point in the proceeding.
In addition, they claim that it is unfair that complainants will
have up to 60 days to gather evidence and prepare exhibits and
testimony, while, under the proposal, respondents would be required to
submit their complete response seven calendar days after the complaint
is filed. AAAE and ACI-NA suggested that we allow answers to be filed
21 days after the initial complaint. The Los Angeles Department of
Airports agreed, and also suggested the recommended 21-day period
should not start until the last day that complaints could be filed
(i.e., on the 60th day after notice of the fee or the seventh day after
the first complaint is filed). This would give parties a total of up to
28 days to file answers. Massport asked for a 14 calendar-day answer
period, and the Metropolitan Washington Airports Authority recommended
14 days for the initial complaint and seven days for any additional
complaints. The Maryland Aviation Administration requested seven
business days instead of seven calendar days.
We will retain the requirement that answers contain all testimony
and exhibits on which the answering party intends to rely. The carriers
pointed out that airport owners and operators possess much of the
information that they might need to introduce in challenging a fee.
However, there is no fee information in the hands of the carriers that
an airport would need to support the reasonableness of the fee. In view
of the extremely short decisional deadlines imposed by the FAA
Authorization Act, it is important that we have the most information
possible at the beginning of a proceeding. While it is true, as
commenters noted, that complaining carriers have up to 60 days to file
complaints, we do not agree that this gives complainants an unfair
advantage. We expect airports to have all the economic evidence they
need in support of a new or increased fee before the fee is increased
rather than after a complaint is filed. While an answer must, of
course, respond to the specific matters raised in a complaint, an
airport should not have to generate significant new data.
On the other hand, we believe that it is reasonable to allow some
additional time to prepare and submit answers. In the case of
complaints, it will be easier for both the answering party and the
Department if answers are consolidated to address both the initial
complaint and any follow-on complaints. Accordingly, the final rule
provides that answers will be due 14 calendar days after the initial
complaint is filed. Thus, if there are follow-on complaints, the
answering parties will still have a minimum of seven days to address
them. We will also allow 14 days for answers to requests for
determination.
Determination of ``Significant Dispute''
Within 30 days after a carrier files a complaint, the FAA
Authorization Act requires the Department to determine whether there is
a ``significant dispute;'' if not, the statute requires the Secretary
[[Page 6921]] to dismiss the complaint. Accordingly, a number of
commenters addressed issues associated with the Secretary's
determination.
IATA pointed out that the language in proposed Sec. 302.611 stated
that the Secretary would issue an order within 30 days determining
whether a carrier complaint presented a significant dispute, but there
was no corresponding language on requests for determination submitted
by an airport owner or operator. As the preamble in the NPRM indicated,
it has been our intention to issue such orders within 30 days. However,
as provided in Sec. 302.619(c), when both a complaint and a request for
determination have been filed with respect to the same airport fee, the
statutorily-imposed 120-day schedule for resolving complaints controls
the course of the proceeding. That is, as required by the FAA
Authorization Act, the Secretary will determine whether there is a
significant dispute within 30 days of the date the first complaint is
filed. In such cases, the determination may come more than 30 days
after the date of the airport request. In light of IATA's comment, we
have revised the language of Sec. 302.613 to clarify this point.
The comments of both IATA and ATA ask that any order dismissing a
complaint for lack of a significant dispute should be clearly stated to
be final and appealable. IATA goes on to argue the proposed rule would
leave an airport owner or operator in a better position following
dismissal of a request for determination than a carrier would be
following dismissal of a complaint. We disagree, and we find that no
change is necessary in the final rule. If the Secretary dismisses a
complaint after finding that there is no significant dispute within the
meaning of the FAA Authorization Act, the order of dismissal is subject
to the same judicial review as any other order of the Secretary. (If
the Secretary instead finds that the complaint fails to meet the
procedural requirements of this subpart, the order will set forth the
conditions under which a revised complaint may be filed.)
IATA asks that Sec. 302.611 ``provide some reasonably accurate
guidelines and standards of review'' under which the Secretary will
review complaints to determine whether they present a significant
dispute. ATA suggests that we employ the standards of Federal Rule of
Civil Procedure 12(b)(6), accepting any complaint as constituting a
significant dispute as long as it ``states a claim for relief under
Section 47129.'' In the alternative, it suggests we employ the
standards for grant of summary judgment under Federal Rule of Civil
Procedure 56. Under this approach, as ATA states, ``a 'significant
dispute' would exist whenever there was a genuine issue of material
fact or law.''
Accepting either of ATA's recommendations would mean that the
Department would set for hearing virtually all complaints brought, no
matter how trivial. We believe that this is inconsistent with the
statutory intent. If Congress had meant for the Department to hear
every complaint in which a claim is made, it surely would not have
mandated in Sec. 47129(c)(2) that ``the Secretary shall dismiss any
complaint if no significant dispute exists.'' (Emphasis added.)
Congress established the extraordinary dispute resolution program in
Sec. 47129 to ensure that carriers and airports can obtain a prompt
decision when there is an important fee dispute. It plainly understood
that the Department has limited resources; if the expedited procedures
are employed any time a complainant can state a claim or establish that
there is a fact in dispute, the Department could be unable to respond
adequately when there are truly significant fee disputes. Moreover,
while we are sympathetic to IATA's request for clear guidelines and
standards for review, we believe that the circumstances at each airport
and the facts behind each fee dispute vary too widely for us to be able
to set out specific standards in the final rule. As we proposed,
however, Sec. 302.611 states that we will set forth our reasoning in
any order dismissing a complaint on the grounds that the alleged
dispute is not significant.
AAAE objected to the statement in the preamble that one piece of
evidence that a dispute is significant would be that the complaining
carrier had attempted to resolve the dispute with the airport but had
been unsuccessful. AAAE points out, ``Airports and their tenant air
carriers can have legitimate, and even vehement disagreements about
issues that are, objectively, minor.'' We agree with AAAE that the
intensity of the discussions between airports and carriers does not by
itself mean that there is a significant dispute within the meaning of
Sec. 47129. Nevertheless, as the preamble to the NPRM stated, the
failure of direct negotiations ``would be some indication, although not
necessarily proof, that there is a significant dispute.''
ACI-NA and IATA disagree sharply on our authority to dismiss
airport requests for determination when there is no significant
dispute. ACI-NA stated that the Department was correct in determining
that the FAA Authorization Act makes no provision for dismissal on that
basis (in contrast with its specific requirement to dismiss carrier
complaints that do not present a significant dispute). IATA, on the
other hand, claimed that our failure to provide for dismissal of an
airport owner or operator's request ``is clearly arbitrary and
capricious.'' As IATA's comments note, however, the statutory language
on dismissals, in Sec. 47129(c)(2), ``on its face appears to be
applicable only to complaints and air carriers.'' (Emphasis in
original.) While IATA suggests that this ``may be the result of
legislative oversight,'' we believe this language is plain, and we will
adopt the NPRM's proposal to proceed to a final order on the merits
when an airport properly submits a request for determination.
Service of Documents
In order to ensure compliance with the extremely short time frames
provided by the FAA Authorization Act for action on fee disputes, the
NPRM proposed special service requirements. The proposal contained
three main elements: (1) Complaints and requests for determination
would have to be served on all carriers providing service to the
airport; (2) For most filings, service would have to be made by hand,
by electronic transmission, or by overnight express delivery; and (3)
Parties would actually have to receive the documents no later than the
day they are filed.
The NPRM stated that the Department realized that these service
requirements could pose a burden in some situations, but it also
expressed our belief that they are necessary to permit a consolidated
hearing for all complaints. Nevertheless, we specifically invited
comment on the service proposals, and particularly on an additional
proposal to substitute service of complaints or requests for
determination on members of any airline negotiating committee at the
airport rather than on all carriers serving the airport. A number of
commenters responded to this invitation.
To begin with, AAAE and ACI-NA supported the proposal to allow
service of documents on airline committee members at those airports
having such committees. The Metropolitan Washington Airports Authority
claimed that it should be adequate to serve the committee itself,
without serving the individual carrier members. ATA, however, strongly
argued that service on the airline committee members would not provide
adequate notice to other carriers serving the airport; it advocated
requiring service on all carriers serving the airport, preferably at
their [[Page 6922]] headquarters' offices. Complaints by carriers drive
the schedule for determining the reasonableness of airport fees. It is
essential that carriers have adequate notice when a document is filed,
particularly an initiating complaint, which starts the seven-day period
for follow-on complaints. In light of ATA's comments, therefore, the
final rule does not provide for serving the members of the airport's
carrier committee.\1\ Nevertheless, we continue to be concerned about
the potential burden of a literal application of a requirement to serve
``all carriers.'' As the comments of the Metropolitan Washington
Airports Authority pointed out, ``the requirement to serve 'all'
carriers could become an unnecessary procedural hurdle that prevents
the expeditious resolution of a fee dispute,'' because it could be read
to require service on even the most infrequent users of the airport.
The Metropolitan Washington Airports Authority recommended that service
be limited to carriers that operated at the airport within the 30 days
prior to the filing, while AAAE and ACI-NA suggested using the Air
Carrier Activity Information System (ACAIS) as the basis for
determining which carriers should be served. As these parties note,
airports already use the list of carriers on the ACAIS in determining
which carriers to serve with respect to Passenger Facility Charges
under 14 CFR Part 158. Accordingly, we believe that the ACAIS list can
similarly serve as the basis for an acceptable means of compliance with
the service requirements of subpart F as well.
\1\For the same reason, we will not adopt ATA's contingent
suggestion to allow carriers to serve only a written notice that a
complaint had been filed, along with instructions on how to obtain
complete copies. We believe interested persons must have immediate,
full information about the filing. (In any event, ATA stated that
its suggestion assumed additional time would be allowed for follow-
on complaints).
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While the ACAIS list provides an objective and convenient starting
point for parties needing to serve all carriers, it must be recognized
that the list is based on carriers that served the airport during the
preceding year, and thus may not include new entrants. In addition,
carriers operating under 14 CFR Part 135 are not required to submit
data for ACAIS, although many do so voluntarily. Therefore, as ACI-NA
proposed, any party intending to make use of the ACAIS list for service
must also serve any other carrier known to be operating at the airport
but not on the list. This is the same practice that is followed with
respect to PFC applications.
The ACAIS list is routinely made available to airport operators.
However, since carriers do not file PFC applications, we recognize that
they have not previously used the ACAIS list to identify carriers for
the purposes of service. The Department's Office of Aviation Analysis
will provide the names of the carriers on the most recently published
ACAIS list at the request of a carrier considering filing a complaint
about a newly established or newly increased airport fee. Not all
information from ACAIS will be available on request. Much of the data
is potentially sensitive, and we believe most carriers would not want
it made available to competitors. Therefore, only carrier identities
will be released through this process.
The Los Angeles Department of Airports objected to the requirement
to certify that the parties served have actually received the
documents, arguing that it cannot know when a document will be
received. It argued that parties should only have to certify that the
documents were sent. We disagree. The short response time required by
these procedures makes it essential that the receiving party receives
the maximum notice possible that a complaint, request, or responsive
document has been filed. Moreover, while we recognize that this
constitutes an additional burden on the filer, that burden is not
insurmountable. All three of the specified service methods allow the
sender to ascertain quickly that the receiving party has received the
filing. In the case of hand delivery, receipt is obvious. For
electronic transmission, both facsimile machines and many electronic
mail systems provide for receipts from the recipients. And the
availability of immediate proof of delivery is a widely-advertised
service of major overnight express delivery companies.
The Los Angeles Department of Airports also argues that hand
delivery and overnight express may not be available to serve foreign
air carriers, and it suggests that we permit utilization of ``the next
most-expeditious, commercially available manner for sending documents
to the country in which the foreign air carrier must be served.'' Since
in many cases this would make it difficult or impossible to achieve
service in time to allow meaningful responsive pleadings, we cannot
agree. Overnight express delivery is increasingly available
commercially throughout the world, although it is true that the service
is not available everywhere. However, that is one reason why the NPRM
also proposed to permit service by electronic transmission. There are
few if any places in the world where facsimile service and/or
electronic mail are unavailable. Indeed, it is hard to imagine in
today's market that a carrier could conduct international operations
without having some capacity to receive electronic communications.
Moreover, many carriers, even foreign air carriers, will not need to be
served with complaints or requests for determination in their home
country. Unless a carrier indicates that a different person should
receive service for the purposes of this subpart, the final rule
authorizes service on the person responsible for communicating with the
airport on behalf of the air carrier or foreign air carrier about
airport fees. This person will be familiar with fee disputes involving
the airport, and is a logical contact point for routing the document
quickly to other key carrier personnel.
In addition to the foregoing, one additional point warrants mention
with regard to the service of documents. All exhibits and briefs
prepared on electronic spreadsheet or word processing programs should
be accompanied by standard-format computer diskettes containing those
submissions. Word processing and spreadsheets files must be readable by
current versions of one or more of the following programs, or in such
other format as may be specified by notice in the Federal Register:
Microsoft Word, Word Perfect, Ami Pro, Microsoft Excel, Lotus, Quattro
Pro, or ASCII tab-delineated files. Parties should submit one copy of
each diskette to the docket section, one copy to the office of the
Chief Administrative Law Judge (M-50), and one copy to the Chief,
Economic and Financial Analysis Division (X-55), of the Office of
Aviation Analysis. Submissions in electronic form will assist the
Department and the administrative law judge in quickly analyzing the
record and in preparing decisions under these expedited procedures. The
paper copy will be the official record copy, but filers shall certify
that files on the diskette are true copies of the data file used to
prepare the printed versions of the exhibits or briefs. Filers should
ensure that files on the diskettes are locked.
Section-by-Section Analysis
Section 302.601 Applicability
Section 302.601 describes the kinds of proceedings for which the
Department will employ the expedited procedures contained in subpart F.
ATA complained that we should not be issuing a procedural rule separate
from [[Page 6923]] the policy statement that will govern consideration
of airport fee disputes. (As noted above, the FAA's Supplemental Notice
of Proposed Policy was published in the Federal Register on October 12,
1994 (59 FR 51836). The comment period closed on the proposed policy on
October 26, 1994, and a final policy statement is published elsewhere
in today's Federal Register.) ATA urges us to consolidate these
proceedings and allow additional comment on a consolidated proposal. We
disagree. Because of the extremely short deadline for issuing rules
governing these proceedings, the Department decided that the best
course was to proceed in this two-stage fashion. Relatively few changes
were needed in the proposed policy statement after the adoption of the
FAA Authorization Act, while the FAA's previously proposed procedures
had to be completely rewritten. If we had waited until the new proposed
procedures were ready so that we could issue a consolidated document,
the highly-abbreviated public comment period that was necessary in this
proceeding would have had to apply to both the proposed procedures and
the proposed policy statement.
As discussed above, the final rule adopts the proposal to include
complaints by foreign air carriers, but complaints by other airport
users would not be heard under this subpart. Subpart F also contains
the procedural rules for reviewing an airport owner or operator's
request for a determination of the reasonableness of an airport fee.
By statute, a fee is subject to review under this subpart only
after it has been ``imposed'' on air carriers. As was proposed,
Sec. 302.601(a) states that a fee is considered to be imposed as soon
as the airport owner or operator has taken all steps necessary under
its procedures to establish the fee. Under the FAA Authorization Act in
new 49 U.S.C. 47129(a)(1)(B), one essential element to those procedures
is providing written notice to carriers of any new or increased fee.
Also as proposed, the 60-day filing period for complaints begins to run
as soon as the requirements for imposing a fee are met, whether or not
the fee is being paid by the carriers. ACI-NA points out that this
``may help resolve fee disputes before the airport is actually counting
on receiving the amounts in dispute, and would thus be less disruptive
of airport planning and financing.'' To the extent that it encourages
airports to avoid raising fees on short notice, it should be less
disruptive of carrier planning as well.
AAAE commented that the language in Sec. 302.601 should be made
consistent with the final language in the policy statement.
Specifically, it suggests adding the words ``for aeronautical use'' to
describe the kinds of fees imposed by airports on carriers that may be
challenged under this subpart. The Department agrees that the language
of the procedural rule should be parallel to that in the policy
statement, and the suggested change has been adopted.
Paragraph (b) of Sec. 302.601 sets out the three limitations on
applicability contained in the Authorization Act. The Secretary would
not entertain complaints about a fee imposed pursuant to a written
agreement with carriers using the facilities of an airport; a fee
imposed pursuant to a financing agreement or covenant entered into
prior to August 23, 1994, or any other existing fee not in dispute as
of August 23, 1994. August 23, 1994 is the date the Authorization Act
was enacted.
Some commenters suggested additional provisions. ACI-NA, for
example, recommends that ``Airlines should not be allowed to challenge
a fee increase that is the result of the recalculation of airline fees
due to the airport's loss of one or more air carriers, or the
substantial diminution of service by one or more air carriers.'' We do
not agree that this should be added to the final rule. If a fee is
increased as a result of a proper recalculation of charges, the
increase will be found reasonable. However, that is no basis for
denying a carrier's right to file a complaint under this subpart. ATA
would have us limit the exclusions on using subpart F to challenge fees
imposed pursuant to agreements with carriers or pursuant to a financing
agreement. These exclusions should apply, ATA believes, only if the
agreements contain a basis for determining how fees are to be set.
``[S]ome airports require air carriers to sign operating agreements
that provide * * * that the carrier is required to pay whatever fees
are established by the airport operator.'' We will not adopt ATA's
comment; the statutory language is clear that these rules may not be
used to challenge fees based on agreements.
Section 302.603 Complaint by an Air Carrier or Foreign Air Carrier;
Request for Determination by an Airport Owner or Operator
This section describes the requirements for carrier complaints and
airport requests for determination. In keeping with the proposal,
paragraph (a) states that both complaints and requests would be
submitted in accordance with the usual technical requirements of
proceedings under 14 CFR Part 302. (14 CFR Sec. 302.3 specifies such
matters as the number of copies to be filed, the size of pages that may
be used, and the filing address.) ATA's comments stated that the
proposed rule failed ``to specify the type and form of briefs to be
presented upon the filing of complaints.'' ATA is thus incorrect.
As noted above, no commenter objected in principle to the basic
procedure proposed in the NPRM for consolidating all complaints and any
request for determination once any carrier has filed a complaint under
this subpart. The final rule adopts the language of the NPRM. Following
the first complaint, other air carriers or foreign air carriers wishing
to file their own complaints would have seven days to do so. An airport
owner or operator's request for determination would also have to be
submitted no later than seven days after a carrier complaint. The
Authorization Act specifies that all complaints would have to be
submitted within 60 days of the written notice, even if this is less
than seven days after the initial complaint. The law does not provide
for entertaining later complaints. No potential complainant, having had
54 or more days to prepare, will be disadvantaged by the immutability
of the 60-day filing limit. As indicated above, JAL's request to extend
the statutory deadline for foreign carriers is denied. While there is
no statutory limitation on submitting airport requests for
determination, no commenter objected to our proposal to impose a
similar 60-day limit on such requests, and that proposal is also made
final here. As noted in the NPRM, airport fee increases become
incontestable under this subpart 60 days after the airport provides
written notice to carriers of the imposition of a new or increased fee.
The early determination of the reasonableness of a fee, which is the
purpose of the Act, would be undermined by allowing more time. There is
no point in expending Departmental resources on airport requests
brought after that date.
Section 302.605 Contents of Complaint or Request for Determination
Most of the issues pertaining to this section have been fully
discussed above. The following is only a brief summary of the
requirements in the final rule.
Carriers filing complaints and airports filing requests for
determination will generally be expected to submit documentation that
contains the filing party's entire position and supporting evidence. We
recognize, however, that an airport may control information or
documents that a complaining carrier would need. If that is the case,
and the carrier has unsuccessfully attempted to obtain the necessary
information, Sec. 302.605 now provides that the carrier
[[Page 6924]] must state that fact in the complaint. As discussed
above, the Department anticipates that airports will promptly disclose
any necessary information.
The carrier filing the complaint or the airport owner or operator
filing the request must serve the complaint or request and accompanying
documents on all carriers serving the airport using the expedited
procedures proposed in the NPRM. If a complaint has already been filed
with respect to a particular airport's fees, additional complaints are
due seven days after the initial complaint. All complaints must be
filed within 60 days after the carrier has received written notice of a
new or increased fees.
The final rule retains the language that the filing carrier or
airport would have to certify that it had previously attempted to
resolve any fee dispute directly. In addition, as noted above, the
filing party must certify that any submission on computer diskette is a
true copy of the data file used to prepare the brief or exhibit.
Section 302.607 Answers to a Complaint or Request for Determination
As discussed above, the most significant change in this section
involves the time for filing answers to complaints or requests for
determination. Answers will be due 14 days after the first complaint is
filed rather than seven days after each complaint. Answers are to
respond to both the initiating complaint and any follow-on complaints,
which will continue to be due seven days after the initial complaint.
This will respond to requests that we make it possible for parties to
submit a consolidated answer to all complaints, while still allowing
the Department sufficient time to review complaints or requests and the
answers submitted.
Under the final rule, therefore, upon receiving a copy of a
complaint filed by another carrier, an air carrier or foreign air
carrier could file its own complaint within seven days or an answer to
the first complaint within 14 days. As noted in the preamble to the
NPRM, it is technically permissible for a party to submit both its own
complaint and an answer to the initiating complaint. However, because
of the limited time available for the Department to review complaints
and answers, parties are strongly urged to avoid duplicative filings.
Naturally, answers, including answers in support of a complainant's
position, do not give the answering party status as an additional
complainant, nor may answers raise new objections to a fee or fees in
dispute. A carrier that wants to raise any new arguments in opposition
to the fee should do so in a follow-on complaint under Sec. 302.603.
Both the airport owner or operator and any carrier serving the
airport may file an answer to a complaint under this subpart. In the
case of an airport request for determination, any carrier serving the
airport would be authorized to file an answer. While only carriers
subject to a new or increased fee at the airport may submit a follow-on
complaint under Sec. 302.603, any carrier at the airport may submit an
answer.
As stated above, answering parties would generally be expected to
set out all of their responsive arguments, testimony and exhibits in
their answer.
The answering party will serve the complaining carrier or carriers
or the airport owner or operator requesting the determination by hand,
by electronic transmission, or by overnight express delivery. The
answering party must certify that the answer and accompanying documents
will be received no later than the day the answer is due, and that any
submission on computer diskette is a true copy of the data file used to
prepare the brief or exhibit. Answers need only be served on the party
to which the answer is directed.
Section 302.609 Replies
ACI-NA argued that we should eliminate the opportunity to file
replies, claiming that they are unnecessary, and that the requirement
that they be filed two calendar days after the answer makes the
opportunity to reply illusory. We see no need to eliminate the
opportunity to file replies, although we emphasize that replies are
voluntary submissions.
While no other party suggested eliminating replies altogether,
Massport, the Maryland Aviation Administration, and AAAE all
recommended that we allow two business days rather than two calendar
days. In part, it appears that this recommendation may stem from a
misunderstanding of our procedures. AAAE, for example, states that
``The rules as proposed would require that a party replying to an
answer filed on a Friday file its reply on Sunday evening, when the
agency is not even open for business.'' This is simply wrong. As
provided in our rules of practice (14 CFR Sec. 302.16), any filing that
would be due on a Saturday, Sunday, or government holiday is
automatically due instead on the next business day. Accordingly, when
an answer is due on a Thursday or Friday, any reply to the answer would
be due by close of business on the following Monday (or the first
business day thereafter). In such a case, the replying party would thus
have at least three calendar days to prepare and submit its reply,
although we recognize that two of those days are on the weekend.
In accordance with our proposal, only the carrier originating a
complaint or the airport originating a request for determination would
be authorized to file a reply. Except as provided in subpart A of 14
CFR Part 302, replies by any other party would not be accepted, nor
would further responsive pleadings. For that reason, the NPRM did not
propose to require that replies be served under the expedited
procedures required for complaints, requests for determination, and
answers. The NPRM specifically invited commenters to address whether
expedited procedures were necessary for replies, but no party did so.
We conclude that ordinary service as provided by 14 CFR Sec. 302.8
(including service by mail) will suffice for replies. As with
complaints, requests for determination, and answers, however, the
replying party must certify that any submission on computer diskette is
a true copy of the data file used to prepare the brief or exhibit.
Section 302.611 Review of Complaints
As was proposed, paragraph (a) of Sec. 302.611 provides that the
Secretary will determine within 30 days after a complaint is filed
whether a significant dispute exists and whether the complaint meets
the procedural requirements of subpart F. If the Secretary determines
that there is no significant dispute, he or she will issue an order
dismissing the complaint, as required by the FAA Authorization Act. The
Secretary's order will include an explanation of the reasons for the
determination. If the Secretary determines that the complaint does not
meet the procedural requirements of this subpart (for example, the
complaint was not properly served on the airport owner or operator),
the Secretary will dismiss the complaint without prejudice. In this
case, the order would explain any conditions necessary for the
complaint to be re-filed.
When one or more properly filed complaints have been submitted, the
Secretary will issue an instituting order consolidating all complaints
that raise significant issues and any request for determination. The
instituting order will assign the consolidated case to an
administrative law judge and describe the issues to be considered and
the parties that will participate.
In addition, Sec. 302.611 now provides that the instituting order
may contain special provisions for exchange or disclosure of
information by the parties. [[Page 6925]] As discussed above, the
Department presumes that airports will provide all information
necessary for carriers to understand the basis and justification for
any new or increased airport fee. However, we have included this
provision to clarify the Department's ability to ensure that adequate
information is made available.
Finally, the Secretary's order will state when the administrative
law judge must issue a recommended decision (60 days after the
instituting order, unless the order specifies a shorter period).
Section 302.613 Review of Requests for Determination
An airport owner or operator's request for determination of the
reasonableness of an airport fee will generally be handled in the same
manner as a carrier complaint. As discussed above, we have revised the
language of Sec. 302.613 to clarify the timing for action on an
airport's request.
When only an airport request has been filed, and not a carrier
complaint, the Secretary will determine within 30 days whether there is
a significant dispute and whether the procedural requirements of the
subpart have been met. Properly submitted requests raising a
significant dispute will be assigned to an administrative law judge in
the same manner as carrier complaints, with appropriate guidelines on
the scope of the issues and the parties to participate. If there is a
procedural deficiency, the request will be dismissed without prejudice,
and the order of dismissal will set forth the terms and conditions
under which a revised request could be filed.
However, when both an airport request and one or more carrier
complaints have been filed, the Secretary will proceed under the
statutorily prescribed schedule for resolving the complaint. As
required by the FAA Authorization Act, the Secretary will determine
whether any complaint presents a significant dispute within 30 days
after the first complaint is submitted. If the first complaint is filed
after the airport owner or operator's request, the request will be
reviewed in conjunction with the complaints, and the consolidated
instituting order may be issued more than 30 days following the
request.
As discussed above, the Secretary will not dismiss an airport owner
or operator's request for determination on the basis that it does not
raise a significant issue. In such cases, the Secretary would usually
proceed directly to issue a final order determining whether the fee is
reasonable. While this determination would ordinarily not require any
additional procedures, the Secretary would retain discretion to require
whatever additional procedures are necessary in a particular case.
ACI-NA notes that paragraph (b) differs from paragraph (c) in that
the latter specifies that the Secretary's determination with respect to
reasonableness will be issued within 120 days after the airport request
is filed. ACI-NA asks that we insert the 120-day language in paragraph
(b) as well. While ACI-NA is correct that the two provisions should be
parallel, Sec. 302.619(b) contains the completion time applicable to
all requests for determination. Therefore, to avoid confusion, the
final rule deletes the last sentence of proposed paragraph (c).
Section 302.615 Decision by Administrative Law Judge
As provided by the FAA Authorization Act, Sec. 302.615 requires the
administrative law judge to issue a recommended decision within 60 days
after the case is assigned by the Secretary for hearing, unless the
instituting order specifies a shorter period.
ATA asked that we set out in this subpart specific requirements for
hearings on airport fee disputes. It recommended that ``the Rule
provide clear definition as to the nature of these hearings and a
standardized approach to the resolution of the complicated factual and
legal issues raised by airport fee disputes. As presently crafted, the
NPRM would apparently rely upon the Secretary's order to draft a
different approach in each and every case. Aside from the logical
impracticality of such an unpredictable approach, we believe it to be
so lacking in procedural guidance as to be fundamentally inconsistent
with the requirements of Section 47129. As an alternative, we propose
that the Secretary incorporate the procedures governing hearings set
forth in 14 CFR part 302, subpart A, as modified in order to meet the
time constraints imposed by Section 47129.''
ATA appears to be suggesting that the Department lacks authority to
impose specific requirements on the conduct of individual proceedings.
This is simply incorrect, and indeed one important purpose of an
instituting order is to tailor the general rules to the needs of a
particular case. However, with respect to ATA's alternative suggestion
that we rely generally on subpart A procedures, no change from the NPRM
language is necessary. We have made it clear throughout this rulemaking
that subpart A procedures will apply in the absence of a specific
applicable provision in this subpart or a direction in the instituting
order. As the FAA Authorization Act expressly states, following
assignment of the proceeding to an administrative law judge, ``the
matter shall be handled in accordance with part 302 of title 14, Code
of Federal Regulations, or as modified by the Secretary to ensure an
orderly disposition of the matter within the 120-day period and any
specifically applicable provisions of this section.'' (49 U.S.C.
47129(c)(2)). Similarly, subpart A of part 302 states as follows:
Subpart A of this part sets forth general rules applicable to
all types of proceedings. Each of the other subparts of this part
sets forth special rules applicable to the type of proceedings
described in the title of the subpart. Therefore, for information as
to applicable rules, reference should be made to subpart A and to
the rules in the subpart relating to the particular type of
proceeding 14 CFR 302.1(b).
ACI-NA argued that a prehearing conference should be mandatory for
all parties in any proceeding brought under this subpart in which an
oral hearing is scheduled. Although ACI-NA points out that this is
common practice in the federal courts and many state courts, we do not
believe that it is desirable to include this requirement in the rule.
Once the case is assigned for hearing, we anticipate that the
administrative law judge will frequently choose to order a prehearing
conference. There might even be situations in which it would be
appropriate for the Secretary to require a prehearing conference, in
which case the instituting order will direct one be held. However,
there is no reason for the final rule to make a prehearing conference
mandatory in all cases.
Section 302.617 Petitions for Discretionary Review
The Los Angeles Department of Airports objected to our proposal to
provide for the filing of petitions for discretionary review of the
administrative law judge's recommended decision. Instead, it argues
that the FAA Authorization Act mandates Secretarial review of the
recommended decision. It advocated allowing seven days for parties to
provide exceptions to the recommended decision, and an additional seven
days in which to file cross-exceptions.
As we stated in the preamble to the NPRM, we anticipate that the
Secretary will issue all final orders in proceedings under subpart F.
Nevertheless, we do not agree that the Authorization Act makes this
mandatory. In fact, the statute specifically anticipates that the
Secretary might not issue a final order: It provides that the
administrative law [[Page 6926]] judge's recommended decision is to be
considered the Secretary's final order if the Secretary does not act
within 120 days after a complaint is filed. Accordingly, we will adopt
the proposed structure of providing for discretionary review of the
recommended decision.
As we proposed, a party to the proceeding will be able to file a
petition for discretionary review of the administrative law judge's
decision within five days after the recommended decision is served. The
petitioner will serve all parties by hand, electronic transmission or
overnight express delivery, and will certify that all parties had
received the petition or would receive it by the date of filing. Any
other party could then submit an answer, which would be due four days
after the petition is filed. AAAE and ACI-NA stated that answers should
be subject to the same expedited service requirements as petitions, but
they did not explain why this would be necessary. The Department does
not anticipate permitting further pleadings at this stage of the
proceeding, and we do not believe that the burden of expedited service
is justified.
Section 302.619 Completion of Proceeding
This section sets out the completion dates for proceedings
conducted under this subpart. No comments were submitted on it, and it
is unchanged from the NPRM.
Paragraph (a) states that the Secretary will issue a final order
determining whether the disputed fee is reasonable within 120 days
after the filing of a complaint by an air carrier or foreign air
carrier, unless the complaint is dismissed as provided in proposed
Sec. 302.611. This is the time limit for resolving air carrier
complaints set forth in the FAA Authorization Act.
Paragraphs (b) and (c) address proceedings involving requests for
determination by airport owners and operators. Although the FAA
Authorization Act does not impose a time limit on such requests,
Sec. 302.619 provides a 120-day limit on these proceedings as well.
When an airport has filed a request for determination but there are no
carrier complaints with respect to the same fee, paragraph (b) states
that the Secretary would issue a final order within 120 days of the
request. However, as noted in Sec. 302.613, the Department will
consolidate proceedings concerning the same airport fee or fees that
are the subject of both a carrier complaint and an airport request for
determination. In this situation, paragraph (c) provides that the
timetable for resolving carrier complaints would control the schedule
for action by the Department. Thus, if a carrier complaint is filed
before the airport request, the Department would issue a final order in
the consolidated proceeding in less than 120 days after the airport's
request for determination. If one or more carriers file a complaint
after the airport request, the 120-day period would begin on the day
the first carrier complaint is filed.
Section 302.621 Final Order
Following review of the recommended decision, the Secretary will
issue a final determination with respect to the reasonableness of an
airport fee that is the subject of a complaint or a request under this
subpart. The Secretary's order will set forth the reasoning underlying
the determination, and, if a fee is determined to be unreasonable, the
order will provide for a refund or credit of the unreasonable charge.
As noted in the NPRM, the exact terms under which the refund or credit
would be ordered would vary with the particular circumstances of each
case, but the Department intends to ensure prompt action.
The FAA Authorization Act, in new 49 U.S.C. Section 47129 (a) (3),
limits the Secretary's order to determining reasonableness, and the
order would not set the level of the fee. The Maryland Aviation
Administration expressed concern in its comments that disputes may not
really be resolved within the 120-day limit unless the Department
states what a reasonable fee would be. In the absence of such a
statement, a revised fee would still be subject to challenge. Because
the limitation on the Secretary's authority is a matter of statute,
there is nothing we can do in this rulemaking to change it. However,
the Secretary's order will attempt to set out the analysis underlying
the decision as clearly as possible. If a fee is found unreasonable, we
hope and expect that parties will be able to establish a reasonable fee
after reviewing the decision and analysis.
The Maryland Aviation Administration also states that ``the
Department, or as may be required, the framers of the underlying
statutory scheme, should consider whether the Department should award
costs to airports'' when a disputed fee is found reasonable. As the
commenter appears to appreciate, the Department does not have authority
to award costs to the prevailing party in a fee dispute under subpart
F. Accordingly, the comment is beyond the scope of this rulemaking.
ACI-NA asks that the rule clarify that ``any finding of
unreasonableness resulting from a complaint filed by a non-signatory
carrier does not affect the underlying rates for signatory carriers,
since the signatory fees may not be challenged.'' No rule change is
needed here. However, it is obvious that no fee will be found to be
unreasonable under subpart F unless it is the subject of a complaint or
a request for determination.
As stated above, the Department expects the Secretary to issue all
final orders. However, if the Secretary fails to issue an order within
120 days after a complaint is filed, the FAA Authorization Act requires
that the administrative law judge's decision be deemed the final order
of the Secretary. Section 302.621(c) restates this requirement. There
is no corresponding legislative requirement with respect to airport
requests for determination. Therefore Section 302.621 does not contain
any provision for automatic adoption of the administrative law judge's
decision. The Department nevertheless intends to resolve airport
requests for determination within 120 days after they are filed.
Justification for Immediate Effectiveness
Section 553 of the Administrative Procedure Act provides that the
effective date of a new rule should be at least 30 days after it is
published, unless the agency finds good cause for a shorter period.
In enacting the FAA Authorization Act, the Congress made it clear
that it intends for fee disputes between carriers and airports to be
resolved promptly. Congress required that the Department issue this
rule within 90 days of enactment of the Authorization Act, and mandated
that all proceedings brought under the new procedures lead to a final
order within 120 days. The Department will be unable to process any
carrier complaints under this subpart until the procedures are
effective. Accordingly, the Department finds that good cause exists to
make this rule effective on publication in the Federal Register.
Regulatory Evaluation Summary
This final rule contains new procedures for the filing and
adjudication of complaints by air carriers and foreign air carriers
alleging that an airport has imposed an unreasonable fee or charge on
the complaining carrier. It also sets forth corresponding procedures
under which an airport owner or operator may request and receive a
determination of the reasonableness of a fee or charge it
[[Page 6927]] has imposed on one or more air carriers or foreign air
carriers. The new procedures replace existing procedures under 14 CFR
part 13, and impose no new substantive requirements on either carriers
or airports. The only commenter to question the tentative conclusion in
the NPRM that the economic effect of the proposed rule would be minimal
was the Maryland Aviation Administration, which argues that ``[t]he
cost to provide expert witnesses and legal counsel if it is determined
that there is a `significant dispute' may well prove to be material.''
The Maryland Aviation Administration did not attempt to quantify the
costs it believed involved. More importantly, it did not establish that
the costs are actually the result of the procedural rules at issue here
rather than the general cost of the litigation authorized by 49 U.S.C.
47129. Accordingly, the Department concludes that the economic impact
of the final rule is minimal and that further calculation of the
economic effects is not warranted.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily or
disproportionately burdened by government regulations. The RFA requires
a Regulatory Flexibility Analysis if a rule would have a significant
economic impact, either detrimental or beneficial, on a substantial
number of small entities. This rule contains procedural requirements
for processing carrier complaints and airport requests. The Department
concludes that the rule will not have a significant economic impact on
a substantial number of small entities.
Federalism Implications
The final rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Paperwork Reduction Act
This rule contains no information collection requirements that
require approval of the Office of Management and Budget pursuant to the
Paperwork Reduction Act of 1980 (44 U.S.C. 3507 et seq.).
Conclusion
Although the Department has concluded that the economic effects of
this rulemaking are minimal, this rule is considered significant under
Executive Order 12866 because of the public interest in this
rulemaking. The Department certifies that this rule will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. This rule is considered significant under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1978).
List of Subjects in 14 CFR Part 302
Administrative practice and procedure, Air carriers, Airports,
Postal Service.
The Amendments
Accordingly, the Department of Transportation amends 14 CFR part
302 as follows:
PART 302--RULES OF PRACTICE IN PROCEEDINGS
1. The authority citation for 14 CFR Part 302 is revised to read:
Authority: 5 U.S.C. 551 et seq.; 39 U.S.C. 5402; 42 U.S.C. 4321;
49 U.S.C. 40101, 40102, 40113, 40114, Chapters 411-415, 41702,
41705, 41706, 41901, 41907, 41909, 41910, 42111, 46301, 46302,
46303, 46105, 47129.
2. A new subpart F is added to 14 CFR Part 302 to read as follows:
Subpart F--Rules Applicable to Proceedings Concerning Airport Fees
Sec.
302.601 Applicability of this subpart.
302.603 Complaint by an air carrier or foreign air carrier; request
for determination by an airport owner or operator.
302.605 Contents of complaint or request for determination.
302.607 Answers to a complaint or request for determination.
302.609 Replies.
302.611 Review of complaints.
302.613 Review of requests for determination.
302.615 Decision by administrative law judge.
302.617 Petitions for discretionary review.
302.619 Completion of proceedings.
302.621 Final order.
Subpart F--Rules Applicable to Proceedings Concerning Airport Fees
Sec. 302.601 Applicability of this subpart.
(a) This subpart contains the specific rules that apply to a
complaint filed by one or more air carriers or foreign air carriers,
pursuant to 49 U.S.C. 47129 (a), for a determination of the
reasonableness of a fee increase or a newly established fee for
aeronautical uses that is imposed upon the air carrier or foreign air
carrier by the owner or operator of an airport. This subpart also
applies to requests by the owner or operator of an airport for such a
determination. An airport owner or operator has imposed a fee on an air
carrier or foreign air carrier when it has taken all steps necessary
under its procedures to establish the fee, whether or not the fee is
being collected or carriers are currently required to pay it.
(b) This subpart does not apply to--
(1) A fee imposed pursuant to a written agreement with air carriers
or foreign air carriers using the facilities of an airport;
(2) A fee imposed pursuant to a financing agreement or covenant
entered into prior to August 23, 1994; or
(3) Any other existing fee not in dispute as of August 23, 1994.
Sec. 302.603 Complaint by an air carrier or foreign air carrier;
request for determination by an airport owner or operator.
(a) Any air carrier or foreign air carrier may file a complaint
with the Secretary for a determination as to the reasonableness of any
fee imposed on the carrier by the owner or operator of an airport. Any
airport owner or operator may also request such a determination with
respect to a fee it has imposed on one or more air carriers. The
complaint or request for determination shall conform to the
requirements of this subpart and Sec. 302.3 concerning the form and
filing of documents.
(b) If an air carrier or foreign air carrier has previously filed a
complaint with respect to the same airport fee or fees, any complaint
by another carrier and any airport request for determination shall be
filed no later than 7 calendar days following the initial complaint. In
addition, all complaints or requests for determination must be filed on
or before the 60th day after the carrier receives written notice of the
imposition of the new fee or the imposition of the increase in the fee.
(c) To ensure an orderly disposition of the matter, all complaints
and any request for determination filed with respect to the same
airport fee or fees will be considered in a consolidated proceeding, as
provided in Secs. 302.611 and 302.613.
Sec. 302.605 Contents of complaint or request for determination.
(a) The complaint or request for determination shall set forth the
entire grounds for requesting a determination of the reasonableness of
the airport fee. [[Page 6928]] The complaint or request shall include a
copy of the airport owner or operator's written notice to the carrier
of the imposition of the fee, a statement of position with a brief, and
all supporting testimony and exhibits available to the carrier on which
the filing party intends to rely. In lieu of submitting duplicative
exhibits or testimony, the filing party may incorporate by reference
testimony and exhibits already filed in the same proceeding.
(b) All exhibits and briefs prepared on electronic spreadsheet or
word processing programs should be accompanied by standard-format
computer diskettes containing those submissions. Word processing and
spreadsheets files must be readable by current versions of one or more
of the following programs, or in such other format as may be specified
by notice in the Federal Register: Microsoft Word, Word Perfect, Ami
Pro, Microsoft Excel, Lotus, Quattro Pro, or ASCII tab-delineated
files. Parties should submit one copy of each diskette to the docket
section, one copy to the office of the Chief Administrative Law Judge
(M-50), and one copy to the Chief, Economic and Financial Analysis
Division (X-55), of the Office of Aviation Analysis. Filers should
ensure that files on the diskettes are unalterably locked.
(c) When a carrier files a complaint, it must also submit the
following certifications:
(1) The carrier has served the complaint, brief, and all supporting
testimony and exhibits on the airport owner or operator and all other
air carriers and foreign air carriers serving the airport by hand, by
electronic transmission, or by overnight express delivery. (Unless an
air carrier or foreign air carrier has informed the complaining carrier
that a different person should be served, service may be made on the
person responsible for communicating with the airport on behalf of the
carrier about airport fees.);
(2) The parties served have received the complaint, brief, and all
supporting testimony and exhibits or will receive them no later than
the date the complaint is filed;
(3) The carrier has previously attempted to resolve the dispute
directly with the airport owner or operator;
(4) When there is information on which the carrier intends to rely
that is not included with the brief, exhibits, or testimony, the
information has been omitted because the airport owner or operator has
not made that information available to the carrier. The certification
shall specify the date and form of the carrier's request for
information from the airport owner or operator; and
(5) Any submission on computer diskette is a true copy of the data
file used to prepare the printed versions of the exhibits or briefs.
(d) When an airport owner or operator files a request for
determination, it must also submit the following certifications:
(1) The airport owner or operator has served the request, brief,
and all supporting testimony and exhibits on all air carriers and
foreign air carriers serving the airport by hand, by electronic
transmission, or by overnight express delivery. (Unless the air carrier
or foreign air carrier has informed the airport owner or operator that
a different person should be served, service may be made on the person
responsible for communicating with the airport on behalf of the carrier
about airport fees.);
(2) The carriers served have received the request, brief, and all
supporting testimony and exhibits or will receive them no later than
the date the request is filed;
(3) The airport owner or operator has previously attempted to
resolve the dispute directly with the carriers; and
(4) Any submission on computer diskette is a true copy of the data
file used to prepare the printed versions of the exhibits or briefs.
Sec. 302.607 Answers to a complaint or request for determination.
(a)(1) When an air carrier or foreign air carrier files a complaint
under this subpart, the owner or operator of an airport and any other
air carrier or foreign air carrier serving the airport may file an
answer to the complaint as provided in paragraphs (b) and (c) of this
section.
(2) When the owner or operator of an airport files a request for
determination of the reasonableness of a fee it has imposed, any air
carrier or foreign air carrier serving the airport may file an answer
to the request.
(b) The answer to a complaint or request for determination shall
set forth the answering party's entire response. When one or more
additional complaints or a request for determination has been filed
pursuant to Sec. 302.603(b) with respect to the same airport's fee or
fees, the answer shall set forth the answering party's entire response
to all complaints and any such request for determination. The answer
shall include a statement of position with a brief and any supporting
testimony and exhibits on which the answering party intends to rely. In
lieu of submitting duplicative exhibits or testimony, the answering
party may incorporate by reference testimony and exhibits already filed
in the same proceeding.
(c) Answers to a complaint shall be filed no later than fourteen
calendar days after the filing date of the first complaint with respect
to the fee or fees in dispute at a particular airport. Answers to a
request for determination shall be filed no later than fourteen
calendar days after the filing date of the request.
(d) All exhibits and briefs prepared on electronic spreadsheet or
word processing programs should be accompanied by standard-format
computer diskettes containing those submissions. Word processing and
spreadsheets files must be readable by current versions of one or more
of the following programs, or in such other format as may be specified
by notice in the Federal Register: Microsoft Word, Word Perfect, Ami
Pro, Microsoft Excel, Lotus, Quattro Pro, or ASCII tab-delineated
files. Parties should submit one copy of each diskette to the docket
section, one copy to the office of the Chief Administrative Law Judge
(M-50), and one copy to the Chief, Economic and Financial Analysis
Division (X-55), of the Office of Aviation Analysis. Filers should
ensure that files on the diskettes are unalterably locked.
(e) The answering party must also submit the following
certifications:
(1) The answering party has served the answer, brief, and all
supporting testimony and exhibits by hand, by electronic transmission,
or by overnight express delivery on the carrier filing the complaint or
the airport owner or operator requesting the determination;
(2) The parties served have received the answer and exhibits or
will receive them no later than the filing date of the answer; and
(3) Any submission on computer diskette is a true copy of the data
file used to prepare the printed versions of the exhibits or briefs.
Sec. 302.609 Replies.
(a) The carrier submitting a complaint may file a reply to any or
all of the answers to the complaint. The airport owner or operator
submitting a request for determination may file a reply to any or all
of the answers to the request for determination.
(b) The reply shall be limited to new matters raised in the
answers. It shall constitute the replying party's entire response to
the answers. It shall be in the form of a reply brief and may include
supporting testimony and exhibits responsive to new matters raised in
the answers. In lieu of submitting duplicative exhibits or testimony,
the replying party may incorporate by reference testimony and
[[Page 6929]] exhibits already filed in the same proceeding.
(c) The reply shall be filed no later than two calendar days after
answers are filed.
(d) All exhibits and briefs prepared on electronic spreadsheet or
word processing programs should be accompanied by standard-format
computer diskettes containing those submissions. Word processing and
spreadsheets files must be readable by current versions of one or more
of the following programs, or in such other format as may be specified
by notice in the Federal Register: Microsoft Word, Word Perfect, Ami
Pro, Microsoft Excel, Lotus, Quattro Pro, or ASCII tab-delineated
files. Parties should submit one copy of each diskette to the docket
section, one copy to the office of the Chief Administrative Law Judge
(M-50), and one copy to the Chief, Economic and Financial Analysis
Division, (X-55) of the Office of Aviation Analysis. Filers should
ensure that files on the diskettes are unalterably locked.
(e) The carrier or airport owner or operator submitting the reply
must certify that it has served the reply and all supporting testimony
and exhibits on the party or parties submitting the answer to which the
reply is directed and that any submission on computer diskette is a
true copy of the data file used to prepare the printed versions of the
exhibits or briefs.
Sec. 302.611 Review of complaints.
(a) Within 30 days after a complaint is filed under this subpart,
the Secretary will determine whether the complaint meets the procedural
requirements of this subpart and whether a significant dispute exists,
and take appropriate action pursuant to paragraph (b), (c), or (d) of
this section.
(b) If the Secretary determines that a significant dispute exists,
he or she will issue an instituting order assigning the complaint for
hearing before an administrative law judge. The instituting order
will--
(1) Establish the scope of the issues to be considered and the
procedures to be employed;
(2) Indicate the parties to participate in the hearing;
(3) Consolidate into a single proceeding all complaints and any
request for determination with respect to the fee or fees in dispute;
and
(4) Include any special provisions for exchange or disclosure of
information by the parties.
(c) The Secretary will dismiss any complaint if he or she finds
that no significant dispute exists. The order dismissing the complaint
will contain a concise explanation of the reasons for the determination
that the dispute is not significant.
(d) If the Secretary determines that the complaint does not meet
the procedural requirements of this subpart, the complaint will be
dismissed without prejudice to filing a new complaint. The order of the
Secretary will set forth the terms and conditions under which a revised
complaint may be filed.
Sec. 302.613 Review of requests for determination.
(a) Except as provided in paragraph (e) of this section, within 30
days after an airport owner or operator files a request for
determination of the reasonableness of a fee under this subpart, the
Secretary will determine whether the request meets the procedural
requirements of this subpart and whether a significant dispute exists.
(b) If the Secretary determines that a significant dispute exists,
he or she will issue an instituting order assigning the request for
hearing before an administrative law judge. The instituting order will
establish the scope of the issues to be considered and the procedures
to be employed and will indicate the parties to participate in the
hearing. The instituting order will consolidate into a single
proceeding all complaints and any request for determination with
respect to the fee or fees in dispute.
(c) If the Secretary finds that the request for determination
presents no significant dispute, the Secretary will either issue a
final order as provided in Sec. 302.621 or set forth the schedule for
any additional procedures required to complete the proceeding.
(d) If the Secretary determines that the request does not meet the
procedural requirements of this subpart, the request for determination
will be dismissed without prejudice to filing a new request. The order
of the Secretary will set forth the terms and conditions under which a
revised request may be filed.
(e) When both a complaint and a request for determination have been
filed with respect to the same airport fee or fees, the Secretary will
issue a determination as to whether the complaint, the request, or both
meet the procedural requirements of this subpart and whether a
significant dispute exists within 30 days after the complaint is filed.
Sec. 302.615 Decision by administrative law judge.
The administrative law judge shall issue a decision recommending a
disposition of a complaint or request for determination within 60 days
after the date of the instituting order, unless a shorter period is
specified by the Secretary.
Sec. 302.617 Petitions for discretionary review.
(a) Within 5 calendar days after service of a decision by an
administrative law judge, any party may file with the Secretary a
petition for discretionary review of the administrative law judge's
decision.
(b) Petitions for discretionary review shall comply with
Sec. 302.28(a). The petitioner must also submit the following
certifications:
(1) The petitioner has served the petition by hand, by electronic
transmission, or by overnight express delivery on all parties to the
proceeding; and
(2) The parties served have received the petition or will receive
it no later than the date the petition is filed.
(c) Any party may file an answer in support of or in opposition to
any petition for discretionary review. The answer shall be filed within
4 calendar days after service of the petition for discretionary review.
The answer shall comply with the page limits specified in
Sec. 302.28(b).
Sec. 302.619 Completion of proceedings.
(a) When a complaint with respect to an airport fee or fees has
been filed under this subpart and has not been dismissed, the Secretary
will issue a determination as to whether the fee is reasonable within
120 days after the complaint is filed.
(b) When a request for determination has been filed under this
subpart and has not been dismissed, the Secretary will issue a
determination as to whether the fee is reasonable within 120 days after
the date the request for determination is filed.
(c) When both a complaint and a request for determination have been
filed with respect to the same airport fee or fees and have not been
dismissed, the Secretary will issue a determination as to whether the
fee is reasonable within 120 days after the complaint is filed.
Sec. 302.621 Final order.
(a) When a complaint or request for determination stands submitted
to the Secretary for final decision on the merits, he or she may
dispose of the issues presented by entering an appropriate order, which
will include a statement of the reasons for his or her findings and
conclusions. Such an order shall be deemed a final order of the
Secretary.
(b) The final order of the Secretary shall include, where
necessary, [[Page 6930]] directions regarding an appropriate refund or
credit of the fee increase or newly established fee which is the
subject of the complaint or request for determination.
(c) If the Secretary has not issued a final order within 120 days
after the filing of a complaint by an air carrier or foreign air
carrier, the decision of the administrative law judge shall be deemed
to be the final order of the Secretary.
Issued in Washington, DC, on January 30, 1995.
Federico Pena,
Secretary.
[FR Doc. 95-2674 Filed 1-31-95; 3:15 pm]
BILLING CODE 4910-62-P