[Federal Register Volume 59, Number 204 (Monday, October 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26385]
[[Page Unknown]]
[Federal Register: October 24, 1994]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 302
Docket No. 49830 Notice No. 94-19
RIN 2105-AC18
Rules of Practice for Proceedings Concerning Airport Fees
AGENCY: Department of Transportation; Office of the Secretary.
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: This notice proposes to establish 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. This notice also
proposes rules that would apply to requests by the owner or operator of
an airport for such a determination. The rulemaking is intended to
respond 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.
DATES: Comments on the proposed rule are due November 4, 1994. Because
the statute requires the Department to issue a final rule by November
21, 1994, it will be difficult or impossible to consider late-filed
comments or to entertain requests for an extension of the comment
period.
ADDRESSES: Comments should be sent to the Docket Clerk, Docket No.
49830, Department of Transportation, 400 7th Street, SW.,Room 4107,
Washington, DC 20590. To facilitated consideration of the comments, we
ask commenters to file twelve copies of each comment. We also encourage
commenters who wish to do so to submit comments to the Department
through the Internet; our Internet address is dockets@postmaster.dot.gov.\1\ Note, however, that at this time the
Department considers only the paper copies filed with the Docket Clerk
to be the official comments. Comments will be available for inspection
at this address from 9:00 a.m. to 5:00 p.m.. Monday through Friday.
Commenters who wish the Department to acknowledge the receipt of their
comments should include a stamped, self-addressed postcard with their
comments. The Docket Clerk will date-stamp the postcard and mail it
back to the commenter.
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\1\Our x.400 e-mail address is G=DOT/S=dockets/QUI=qmail/O=hq/
p=gov+dot/a=attmail/c=us.
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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
20591, telephone (202) 366-9307.
SUPPLEMENTARY INFORMATION:
Procedural Background
On June 9, 1994, the Office of the Secretary of Transportation
(OST) and the Federal Aviation Administration 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
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.
In brief, the special procedures in the FAA proposal would have
provided an expedited formal investigation that included an evidentiary
investigative hearing presided over by a designated FAA employee. The
presiding officer would have issued a report of investigation to the
FAA's Assistant Administrator for Airports, generally within 90 days of
the complaint. Within 120 days of the complaint, the Assistant
Administrator would have been required to 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 have been 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.
The Federal Aviation Authorization Act of 1994
The FAA Authorization Act of 1994 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. 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) DEFINITION.--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 ``47131''; and
(2) by inserting after the item relating to section 47128 the
following:
47129. Resolution of airport-air carrier disputes concerning
airport fees.
Because of the substantial differences between the procedures
contemplated by the FAA Authorization Act and those proposed by the
FAA, 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. In order to permit
additional time for commenters to consider the proposal as revised, OST
and the FAA extended the comment period to December 1, 1994. In the
same notice, the FAA noted that OST and the FAA were considering new
regulations to implement the new law, and intended to publish a
proposed rule for public comment as soon as practicable. We are today
publishing that new proposed rule.
The statutory mandates to issue these procedural regulations and to
issue any final orders in cases brought under the new law are directed
toward the Secretary of Transportation. For that reason, the Office of
the Secretary is issuing this notice. Because of the short time
available to draft the proposed rule, however, the Secretary has not
yet determined whether to delegate this function to another official of
the Department, including an Assistant Secretary or the FAA
Administrator. That determination will be made by the time this
rulemaking is completed. Regardless of the deciding official, the final
order in a proceeding brought under this Subpart will constitute a
final order of the Secretary.
Summary of Regulatory Approach
Section 113 of the FAA Authorization Act prescribes a clear basic
procedure for the hearing of an air carrier complaint and issuance of a
final agency determination as to whether an airport fee is fair and
reasonable. When applied to a complaint by a single carrier, the
procedure does not present any apparent conflicts or difficulties.
However, the fees charged air carriers at airports generally apply to a
number of carriers, and the Department believes multiple complaints
with respect to a particular airport fee would be more likely than a
single complaint. The procedures adopted, therefore, must provide for
the orderly disposition of all the complaints concerning a particular
fee increase.
Certain objectives of the required procedure are clear and need to
be considered in the development of implementing regulations for
Section 113. First, the procedure adopted must produce a final
determination about the reasonableness of the fee within 120 days after
a complaint is filed. Second, the section guarantees a hearing before
an administrative law judge of every air carrier complaint that the
Secretary finds to be a significant dispute. Because the procedure
requires a hearing in accordance with 14 CFR Part 302 before an
administrative law judge, the provisions of the Administrative
Procedure Act apply to the hearing, indicating a Congressional intent
that the hearing and decisionmaking involve the use of oral evidentiary
procedures, to the extent consistent with the expedited time frame.
Section 113 specifically provides that the Secretary may modify
existing Part 302 procedures ``to ensure an orderly disposition of the
matter'' within the 120-day period. Third, through a surety bond or
similar security instrument that the airport operator must obtain,
Section 113 is intended to assure that funds are available to refund or
credit disputed fees that are paid by an air carrier and subsequently
found to be unreasonable.
With these objectives in mind, the Department has considered three
basic approaches in developing this proposal to implement the statutory
mandate. These are: (1) Consider the filing of each complaint as a
separate, unrelated, event; (2) Consolidate and consider all complaints
after the end of the statutorily-imposed 60-day limit on filing; and
(3) Consolidate all other complaints as soon as the first carrier files
a complaint. Each of these approaches has both advantages and
disadvantages.
Of the three approaches, number (1) is perhaps the simplest to
describe and understand. Under this approach, the Department would
decide each complaint separately, as it arises. When there are multiple
complaints with respect to the fees at a particular airport, each
complaint would be evaluated to determine whether it described a
significant dispute, and, if so, it would be assigned for hearing
before an administrative law judge.
If numerous carriers file individual complaints, however, it is
apparent that this procedure would rapidly become infeasible.
Individual handling of separate complaints would result in the
assignment of complaints about the same airport fee to different
administrative law judges; separate and possibly inconsistent decisions
by different judges would unfairly burden the airport proprietor and
the complainants; and, with each complaint being set for a separate
hearing, the Department's resources could be quickly overwhelmed,
frustrating the statute's purpose of achieving a final determination by
the Secretary within 120 days.
Moreover, some complainants might find themselves seriously
disadvantaged. An example is a case in which the first complaint is
filed immediately after notice of the fee, and the second complaint is
filed 40 days later. As required by the Authorization Act in new
section 49 U.S.C. 47129(c)(2), the Secretary would issue an order on
the first complaint, defining issues and assigning the case for
hearing, within 30 days, i.e., before the second complaint is filed.
The second complaint may raise new issues not addressed by the first,
but there would be insufficient time for amendment of the order with
the 120-day period already running on the first. In addition, while the
Authorization Act requires an airport owner or operator to obtain a
surety bond within 20 days after a complaint is filed, it makes no
provision for requiring extension of that bond beyond 120 days. As a
result, the bond is likely to expire before the Secretary issues a
determination on the later-filing carrier's complaint. (While in theory
it might be possible for an airport owner or operator to obtain a
separate bond for each complaint, it does not appear that the statute
contemplates such a requirement. Instead, it speaks of a bond to cover
``the amount in dispute that is due during the 120-day period''
following the initial complaint. )
The first complaint would also likely proceed to final
determination well before the second. Since the Secretary is compelled
to issue a determination of the reasonableness of the airport fee
within 120 days, the second complainant might be bound by the decision
in the first case. In this connection, it should be noted that the FAA
Authorization Act repeatedly refers to ``a determination'' by the
Secretary as to ``whether such fee is reasonable.'' That is, the
statutory language focuses on a single determination about
reasonableness. Arguably, therefore, if the Secretary finds in the
first case that the fee ``is reasonable,'' that finding could bind all
other complaints.
Approach (2) addresses many of the above concerns. Under this
approach, the Department would require all complaints to be filed on
the 60th day after an airport has given carriers written notice of a
new or increased fee, that is, at the end of the period specified by
the FAA Authorization Act. At that point, the Department would
establish a single proceeding, consisting of all complaints that have
been filed by the carriers.
Since all complaints would be filed at the same time, they could
readily be considered in a consolidated proceeding; any that present
significant disputes would be assigned for hearing before a single
administrative law judge. Although there might be several parties and
more than one issue to be decided, this approach would still be far
more efficient for both the parties and the Department. The surety bond
would cover the entire period of the proceeding, and would thus be
available to ensure repayment of an unreasonable fee paid by any
complaining carrier. There would be no concern that a late-filing
carrier would be disadvantaged in comparison to a carrier that files
early, because all complaints would be filed simultaneously at the end
of the 60-day period. (Alternatively, the Department could accept an
earlier-filed complaint, but hold it in abeyance until the 60-day
period had elapsed.) The Department would then proceed to issue a final
determination within 120 days after the end of the complaint-filing
period.
Although this would provide a simpler and more manageable approach
to resolving carrier complaints, we have tentatively rejected it as
potentially not in keeping with the intent of the FAA Authorization
Act. As noted above, one clear statutory purpose was to provide that
complaints would be heard and decided within 120 days after they are
filed. But by specifying that all complaints are to be filed at the end
of the 60-day period, a carrier that is ready to file at an earlier
point would not receive a determination within 120 days of that earlier
date. In our view, this may not be in accord with the language of the
statute.
Approach (3), which is embodied in this Notice of Proposed
Rulemaking, also addresses many of the difficulties presented by
Approach (1). As discussed below, we recognize that this approach too
presents some difficulties, and it may not fully satisfy everyone.
However, given the statutory mandate, we believe it represents the best
solution to the problems described above.
As in Approach (1), the Department would begin to act on a
complaint as soon as it is filed, which may be any time within the 60-
day statutory filing limit. As provided by the statute, the Secretary
would issue a final determination on the reasonableness of the
challenged fee within 120 days after the first such complaint is filed.
However, in order to ensure that all other carriers have an opportunity
to present their own arguments during the proceeding, the complaining
carrier would be required to serve a copy of the complaint on all other
carriers serving the airport, as well as on the airport owner or
operator. Special service procedures, described later, would be
required. Once the first complaint (which may be a joint complaint by
multiple carriers) is filed and served, any other carrier would then
have seven calendar days to file its own complaint with respect to the
same airport fee or fees. Participation in the proceeding following the
initiating complaint would thus be through an answer to the complaint
or the filing of a separate complaint and participation in the hearing
before the administrative law judge.
The advantages of this approach are essentially the same as those
of Approach (2). It permits a consolidated hearing in which to evaluate
the fee, and a simultaneous decision on all complaints. It gives effect
to the statutory intent to require airports to provide surety for the
repayment of improperly collected fees. And it avoids an unmanageable
strain on the Department's resources, thus making possible the orderly
disposition of the issues contemplated by the statute. In addition, it
accomplishes these goals without compromising the additional goal of
resolving disputes within 120 days. All complaints, including those
filed after the initiating complaint, could be decided within 120 days
of the filing of the initial complaint.
The main disadvantage of Approach (3), of course, is that some
carriers might be forced to file their complaints earlier than they
would otherwise choose. We are particularly interested in having
commenters address whether or not this would be a burdensome
restriction on complainants. Our concern is that an early filing by
even one complainant could deprive other carriers of the opportunity to
use more time to prepare and coordinate well-supported complaints. (On
the other hand, we are aware that fee disputes between airports and
airlines can often be anticipated, and therefore it might be that
carriers can be expected to coordinate with each other before any
complaint is filed.)
In any event, having complaints that are better prepared and
coordinated would assist the Department in rendering a final decision
addressing all possible issues relating to reasonableness within the
statutory time-frame. The Department therefore solicits comments on
possible filing requirements that would help ensure that any complaint
filed under this subpart is well-documented and fully coordinated. One
such possibility might be to require the first carrier to file a
complaint about the fees at a particular airport to give other carriers
at least seven days advance notice of its intention to file the
complaint. Of course, this approach would itself present at least one
problem, namely that carriers would be unable to file a complaint under
this subpart for the first seven days following imposition of the fee.
There may also be potential difficulty in ascertaining compliance with
an advance notice requirement and in ensuring that it does not unduly
interfere with the opportunity to file a complaint near the end of the
60-day statutory limit. Commenters are invited to address these issues,
and, if they support an approach along these lines, to recommend any
ways to avoid the potential problems.
For the reasons stated above, and despite the drawback described,
we have tentatively concluded that Approach (3) is less objectionable
than either handling complaints individually or allowing some early-
filed complaints to remain unresolved for more than 120 days. We
believe the procedure proposed in this notice would meet substantially
all of the objectives of Section 113. Nevertheless, we are interested
both in commenters' views about the other two approaches described and
in any suggestions for a solution that we have not yet considered. If a
plan is presented that is superior to our proposal, it may be
incorporated into the final rule in this proceeding.
Section-by-Section Analysis
Section 302.601 Applicability
This section describes the kinds of proceedings for which the
Department would employ the expedited procedures contained in this
Subpart. As required by the 1994 FAA Authorization Act, complaints by
air carriers would be reviewed under these procedural rules. In
addition, paragraph (a) of proposed Section 302.601 states that a
comparable complaint brought by a foreign air carrier would be treated
in the same manner. This Subpart also contains the procedural rules for
reviewing an airport owner or operator's request for a determination of
the reasonableness of an airport fee.
The Authorization Act requires the Secretary to determine the
reasonableness of an airport fee after a complaint is filed by ``one or
more air carriers (as defined in section 40102 of this subtitle).''
Since the definition of ``air carrier'' in 49 U.S.C. Section 40102 is
limited to ``a citizen of the United States * * *'' this rule could be
limited to complaints by U.S. airlines. However, as noted, the
Department has tentatively concluded that foreign air carriers should
have access to the same procedures. The economic and other issues that
enter into a determination of reasonableness of an airport fee are the
same, irrespective of whether the complainant is a domestic or foreign
carrier. Accordingly, if both U.S. and foreign air carriers believe an
airport fee increase is unreasonable, they both may be expected to
dispute it. The interests of the carriers, the airport, and the
Department are likely to be best served if the reasonableness of the
fee can be determined in a single proceeding. A potential problem,
however, arises from the fact that the procedures of proposed Subpart F
are highly abbreviated; by statute, carrier complaints are barred
unless they are brought within 60 days of the airport's written notice
of the new fee or fee increase. This requirement may pose special
problems for foreign air carriers. Accordingly, we invite comments from
foreign air carriers as to whether to include their complaints within
this Subpart.
Section 302.601(a) states that Subpart F also applies to a request
by an airport owner or operator for a determination of the
reasonableness of a fee it has imposed on one or more air carriers. The
FAA Authorization Act requires the Department to make such a
determination when requested in writing by an airport. However, the
Authorization Act does not state any time limits for the Department's
action on the request.
This Subpart proposes procedures for handling airport requests for
determination that are much the same as those for air carrier
complaints. Most importantly, the Secretary's determination that a fee
is reasonable or unreasonable will be made within 120 days. However,
there are a number of differences that derive from the different
statutory treatment of air carrier complaints and airport requests for
determination. These will be discussed in more detail in connection
with the sections where they apply.
The Authorization Act requires the Secretary to issue a
determination about the reasonableness of a fee that has been
``imposed'' on carriers. Section 601(a) provides that a fee would be
considered to have been imposed once the airport owner or operator had
taken all steps necessary under its procedures to establish the fee.
Airport owners and operators have different internal procedures, and so
the steps necessary will vary from airport to airport. However, as the
Authorization Act indicates in new Section 47129(a)(1)(B), airports
must always give carriers written notice when imposing a new or
increased fee.
Because Subpart F would be limited to fees actually imposed, the
Department does not propose to consider requests for advisory opinions
about airport fees that are still under consideration by the airport
owner or operator. In general, fee changes should be based on
discussion between airports and carriers, as they almost always are
today. The procedures contained in this Subpart are intended to resolve
significant disputes when negotiations have failed.
On the other hand, paragraph (a) points out that a fee may be
considered to have been imposed even if it is not yet being paid by the
carriers. For example, if an airport owner or operator provides written
notice on January 1 that a fee will increase on February 1, an air
carrier may immediately file a complaint under this Subpart. There may
even be situations in which a carrier would be forced to bring any
complaint before it had to pay the fee. The Authorization Act provides
for carrier complaints only for 60 days after the carrier receives the
written notice. If an airport provides more than 60 days' notice of a
fee, the filing period would expire before the fee is first collected.
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.
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. 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.)
The statutory language in new 49 U.S.C. section 47129(a) provides
for a (single) determination of the reasonableness of an airport's
disputed fees. If there were a multiplicity of separate proceedings
with respect to the same airport fee or fees, it is possible that each
case would present only part of the information that would be relevant
and necessary to the Secretary's determination. At worst, multiple
cases could lead to inconsistent decisions. Moreover, both airports and
carriers would be unnecessarily burdened if they had to litigate more
than one case about a particular airport's fees. The Secretary must act
rapidly in order to resolve any issues in a carrier complaint within
the 120-day deadline imposed by the FAA Authorization Act.
Therefore, to ensure an orderly disposition of carrier complaints,
proposed Sec. 302.603 would provide procedures to ensure that the
Secretary can consolidate all related proceedings. Once a carrier
submits a complaint under this Subpart, 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. Of course, as provided by the Authorization Act, 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 Department proposes to apply the same 60-day limit to
airport requests. The statute did not state any specific limit on the
timing of airport requests, but fee increases may not be contested
under this Subpart after the 60-day limit. Any decision on an airport
request filed after that date would amount to a legally moot advisory
opinion.
Section 302.605 Contents of Complaint or Request for Determination
In order to ensure that all interested parties have an opportunity
to review and respond to complaints and requests for determination,
Sec. 302.605 proposes two special requirements on their filing and
service. First, the complaint or request must contain the filing
party's entire position and supporting evidence. The complaint or
request would have to be accompanied by a brief explaining the party's
arguments, and any supporting exhibits and testimony. In order to
clarify the nature of the dispute and to verify the timeliness of the
filing, a copy of the airport owner or operator's written notice to the
carrier would also be required.
As proposed, a complaining carrier would be required to serve the
airport owner or operator and all other air carriers and foreign air
carriers serving the airport with a copy of the complaint, brief, and
all testimony and supporting exhibits. An airport owner or operator
requesting a determination would serve all carriers at the airport. We
recognize that the requirement to serve all carriers might sometimes be
burdensome. Moreover, many airports have an established airline
committee responsible for negotiating airport fees and charges with the
airport owner or operator. These committees have various titles,
including Airline Properties Committee, Airport Affairs Committee,
Airline Negotiating Committee, and Airline Top Committee. Section
302.605 proposes to authorize service of the complaint or request on
all members of the airline committee in lieu of all carriers serving
the airport. We invite commenters to address whether service on members
of these committees would be adequate to ensure that all interested
carriers have an opportunity to review complaints and requests for
determination; we also invite commenters to recommend any alternative
service requirements.
In addition, because proposed Sec. 302.603 would require any other
complaints or request for determination to be submitted within seven
days of the first complaint, ordinary service by first class mail would
not be permitted. The filing party would be required to accomplish
service by hand, by electronic transmission (such as facsimile or
electronic mail) or by overnight express delivery. The filing carrier
or airport would also have to certify that the parties served had
actually received the documents by the time they are filed or would
receive them no later than the day of the filing. The Department
recognizes that these additional service requirements might pose a
burden on some parties, but we think they are necessary to make a
proper consolidation of all complaints, and thus to an orderly
disposition of the fee or fees in dispute.
Finally, the filing carrier or airport would also be required to
certify that it had previously attempted to resolve the fee dispute
directly. We believe this requirement is necessary to facilitate our
statutorily-required decision about whether a significant dispute
exists. If attempts at direct resolution have failed, that would be
some indication, athough not necessarily proof, that there is a
signifiant dispute. We do not, however, intend to evaluate the amount
or adequacy of any efforts at a direct resolution of the dispute. We
ask only that an attempt be made before the complaint or request is
submitted.
Section 302.607 Answers to a Complaint or Request for Determination
When a complaint is filed under this Subpart, Sec. 302.607 would
provide that the airport owner or operator and any other air carrier or
foreign air carrier serving the airport may file an answer to the
complaint. In the case of an airport request for determination, any
carrier serving the airport would be authorized to file an answer.
Procedurally, answers would be filed in the same manner as described
above for complaints. The answer would consist of a single submission
including all the answering party's responsive arguments, testimony and
exhibits. The answering party would be required to serve the carrier
filing the complaint or airport owner or operator requesting the
determination by hand, by electronic transmission, or by overnight
express delivery. The answering party would have to certify that the
answer and accompanying documents would be received no later than the
day the answer is due. Section 302.607 does not propose to require
answers to be served on other carriers.
Under the proposal, answers would be due seven calendar days after
the complaint or request for determination is filed. In the case of
carrier complaints, this is the same day on which other carriers would
be required to file any other complaint with respect to the same
airport fee or fees. Therefore, upon receiving a copy of a complaint
filed by another carrier, an air carrier or foreign air carrier could
file its own complaint or an answer to the first complaint. The
proposed rules would not prohibit a carrier from filing both an answer
and a complaint, but the Department encourages all parties to avoid
filing unnecessarily duplicative documents. It should be noted that any
additional complaints filed are also subject to an answer under
Sec. 302.607; any such answer would be due seven calendar days after
the complaint, or a total of 14 days after the initial complaint.
Section 302.609 Replies
Only the carrier originating a complaint or the airport originating
a request for determination would be authorized to file a reply. The
complaining air carrier or foreign air carrier could reply to an answer
to the complaint, and the airport owner or operator could reply to an
answer to the request for determination. In both cases, the reply would
be due two calendar days after answers are filed. Replies by any other
party would generally not be accepted, nor would further responsive
pleadings. Such documents are governed by the requirements of Subpart A
of 14 CFR Part 302. Because of the short deadline proposed for filing
replies and the fact that the Department does not anticipate accepting
further pleadings, proposed Sec. 302.609 does not contain the special
service requirements (hand, electronic, or overnight delivery, with
service completed by the day of filing) proposed for initial pleadings
and answers. Ordinary service as provided by 14 CFR Sec. 302.8
(including service by mail) would still be required. Commenters are
invited to address whether there is a need for additional service
requirements for replies.
Section 302.611 Review of Complaints
This section provides for a preliminary evaluation by the Secretary
to determine whether a carrier's complaint is subject to review under
Subpart F. Unless a significant dispute exists, the FAA Authorization
Act requires the Secretary to dismiss any complaint within 30 days
after it is filed; when there is a significant dispute, the matter must
be referred to an administrative law judge within that time.
Accordingly, paragraph (a) of Sec. 302.611 proposes that the
Secretary will determine whether a significant dispute exists and
whether the complaint meets the procedural requirements of Subpart F
within 30 days after the complaint is filed. If the Secretary
determines that there is no significant dispute, the order dismissing
the complaint would include an explanation of the reasons for that
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 would dismiss the complaint without prejudice. In this
case, the order would explain any conditions necessary for the
complaint to be re-filed.
Assuming, however, that the complaint raises a significant dispute
and meets the procedural requirements, the Secretary would issue an
instituting order consolidating all complaints and any request for
determination, and assigning the consolidated case to an administrative
law judge. The instituting order would describe the issues to be
considered and the parties that will participate in the hearing. For
example, the Secretary could determine that some of the matters raised
in a complaint do not raise a significant dispute, in which case the
instituting order would limit the scope of the proceeding. The
instituting order could similarly place limits on the parties, such as
by excluding a complainant that is not an air carrier or foreign air
carrier. The order would state when the administrative law judge would
be required to 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
Proposed Sec. 302.613 provides that an airport owner or operator's
request for determination of the reasonableness of an airport fee would
generally be handled in the same manner as a carrier complaint. Within
30 days after the airport's request is filed, the Secretary would
determine whether there is a significant dispute and whether the
procedural requirements of the Subpart have been met. Properly
submitted requests raising a significant dispute would be assigned to
an administrative law judge, with appropriate guidelines on the scope
of the issues and the parties to participate. If there is a procedural
deficiency, the request would 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, the FAA Authorization Act does not appear to permit the
Secretary to dismiss an airport owner or operator's requests for
determination on the basis that it does not raise a significant issue.
As noted above in Sec. 302.613, when an air carrier files a complaint,
the statute states that ``the Secretary shall dismiss the complaint if
no significant dispute exists.'' With respect to a request by an
airport owner or operator, however, the statute provides only that the
Secretary ``shall issue a determination as to whether a fee imposed
upon one or more air carriers * * * is reasonable * * * a written
request for such determination is filed with the Secretary by such
owner or operator.''
Accordingly, section 302.613 does not propose to dismiss airport
requests that do not present a significant dispute. Instead, the
Secretary would generally issue a final order determining whether the
fee is reasonable. This would sometimes occur without additional
procedures, but the Secretary would retain discretion to determine in a
particular case that additional procedures are necessary.
Section 302.615 Decision by Administrative Law Judge
This proposed section merely restates the requirement of the FAA
Authorization Act that the administrative law judge must issue a
recommended decision within 60 days after the case is assigned by the
Secretary for hearing. As permitted by the statute, this section also
states that the Secretary may specify a shorter period for the
recommended decision.
Section 302.617 Petitions for Discretionary Review
Any party to the proceeding could file a petition for discretionary
review of the administrative law judge's decision within five days
after the recommended decision is served. The petitioner would serve
all parties. As with other documents under this Subpart, service would
be by hand, electronic transmission or overnight express delivery, and
the petition would have to certify that all parties had received the
petition or would receive it by the date of filing. Petitions would be
limited to 20 pages in length, as provided in 14 CFR 302.28(a).
Any other party could then submit an answer, which would be due
four days after the petition is filed. Under 14 CFR Sec. 302.28(b),
answers to petitions would be limited to 15 pages.
Section 302.619 Completion of Proceeding
This section sets out the completion dates for proceedings
conducted under this Subpart.
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 proposes 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 Section 302.613, the Department proposes
to 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. 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.
There are two reasons for proposing to let the filing of a carrier
complaint determine the time for issuing a final order. Most important,
the Authorization Act mandates a 120-day resolution with respect to
carrier complaints. An airport's subsequent request for determination
cannot extend this period. Moreover, even when the airport's request is
the first document filed in the proceeding, a complaint by an air
carrier may raise new and significant issues. It is likely that the
resolution of these issues will take most or all of the time permitted
by the Authorization Act.
Section 302.621 Final Order
Section 302.621 would provide for the issuance of a final order by
the Secretary when a proceeding brought under this Subpart, whether by
complaint or request for determination, is ripe for decision. The
Secretary would issue a written order containing his or her
determination as to whether or not the disputed airport fee is
reasonable.
Section 302.621 proposes that the order would set out the reasoning
underlying the Secretary's determination, and, if a fee is determined
to be unreasonable, the order would provide for a refund or credit of
the unreasonable charge. 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 Department anticipates that the Secretary will issue all final
orders. However, the FAA Authorization Act expressly provides that the
administrative law judge's decision will be deemed the final order of
the Secretary, if the Secretary fails to issue an order within 120 days
after a complaint is filed. This requirement is reflected in Section
302.621(c). The Authorization Act imposes this requirement only with
respect to complaints by air carriers. Therefore, while the Department
intends to resolve airport requests for determination within 120 days
after they are filed, Section 302.621 does not contain any provision
for automatic adoption of the administrative law judge's decision. Of
course, when an airport request is considered in a consolidated
proceeding along with a carrier complaint, the airport request will be
processed under the same schedule as the complaint.
Regulatory Evaluation Summary
This NPRM proposes the adoption of 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 proposes corresponding procedures
under which an aiport owner or operator may request and receive a
determination of the reasonableness of a fee or charge it has imposed
on one or more air carriers or foreign air carriers. The new procedures
would be substituted for existing procedures under 14 CFR Part 13, and
impose no new substantive requirements on either carriers or airports.
Accordingly, the Department tentatively concludes that the economic
impact of the proposed rule would be 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 proposal contains procedural
requirements for processing carrier complaints and airport requests.
The Department concludes that the proposed rule would not have a
significant economic impact on a substantial number of small entities.
Federalism Implications
The regulations proposed in this NPRM would 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
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Paperwork Reduction Act
This proposed 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 proposal are minimal, the proposal is considered significant under
Executive Order 12866 because of the public interest in this
rulemaking. The Department 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).
The Proposed Amendments
Accordingly, the Department of Transportation proposes to adopt a
new Subpart F to amend 14 CFR part 302 as follows:
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:
PART 302--RULES OF PRACTICE IN PROCEEDINGS
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. Section 47129(a), for a determination of the
reasonableness of a fee increase or a newly established fee 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 14 CFR 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
establishment or increase of 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, as provided in Secs. 302.611 and 302.613, be
considered in a consolidated proceeding.
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. 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 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) 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. (At airports
with a committee of carriers responsible for negotiating airport fees
and charges, the complaining carrier may instead serve all members of
that committee and the airport owner and operator);
(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; and
(3) The carrier has previously attempted to resolve the dispute
directly with the airport owner or operator.
(c) 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. (At airports with a
committee of carriers responsible for negotiating airport fees and
charges, the complaining carrier may instead serve all members of that
committee.);
(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; and
(3) The airport owner or operator has previously attempted to
resolve the dispute directly with the carriers.
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. 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 filing party
may incorporate by reference testimony and exhibits already filed in
the same proceeding.
(c) Answers to a complaint or request for determination shall be
filed no later than seven calendar days after the filing date of the
complaint.
(d) 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; and
(2) The parties served have received the answer and exhibits or
will receive them no later than the filing date of the answer.
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 exhibits
already filed in the same proceeding.
(c) The reply shall be filed no later than two calendar days after
answers are filed.
(d) 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.
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
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) 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) Following review of the pleadings and exhibits filed in
connection with an airport owner or operator's request for
determination of the reasonableness of a fee, 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 of this subpart or set forth
the schedule for any additional procedures required to complete the
proceeding. The determination will be issued within 120 days after the
filing of the request by the airport owner or operator.
(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.
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 14 CFR
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 14 CFR
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, 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 October 20, 1994.
Federico Pena,
Secretary.
[FR Doc. 94-26385 Filed 10-20-94; 12:29 pm]
BILLING CODE 4910-62-P
