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### AIRPORTSCOUNOL INT£RHAllONAl 1410002/0004

March 3, 2014 Submitted Via Fax: (202) 493-2251
Randall S_ Fiertz Director, Office ofAirport Compliance and ManagementAnalysis Federal Aviation Administration 8001ndependenceAvenue,SVV Washington, DC 20591 

### RE: Docket No. FAA-2013-0988- Policy and ProceduresConcerning the Use of Airport Revenue: Proceeds From Taxes on Aviation Fuel
Dear Mr. Fiertz: Thank you forthe opportunity to submit comments regarding the Federal Register Notice of Proposed Clarification of Policywith respect to FAA's "Policy and Procedures Concerning the Use ofAirport Revenue: Proceeds from Taxes on Aviation Fuel", Docket No_ FAA 2013-0988, 78 Fed. Reg. 69789 (Nov. 21, 2013) (the "Proposed Policy). These comments have been developed byACI-NA staff in coordination with our memberairports. We also have encouraged our members and World Business Partners to submittheircomments to you directly_ ACI-NA understands and supports the FAA's effortto protect revenue for airport and aviation purposes, however, we have serious concerns aboutthe impossible position in which many, 

### if not most, airport sponsorswould find themselves ifthe Proposed Policy were to be implemented_ We believe itwould be improperfor FAAto hold airport sponsors, which generally are independent political subdivisions ofstates, responsible forthe actions of nonsponsor state and local governments, overwhich airport sponsors have no authority orcontrol. ACI-NA memberairports feel so strongly aboutthis matterthat on February 5, 2014, theACI-NA U.S. Policy Board adopted thefollowing resolution: "TheACI-NA U_S_ Policy Board strongly opposes FAA's proposal to require airports to give assurances that state or local governments will not use taxes on aviation fuel for non-aviation related purposes." Specifically, ACI-NA strongly objectsto both the proposed new paragraph "0.2" in Section VI of the Proposed Policy and the FAA's interpretation ofthat paragraph. Proposed paragraph "0.2" states, Airport sponsors that are subject to an AlP grant agreement have agreed, as a condition of receiving a grant, that the proceeds from a state or local government tax on aviation fuel will be used only forthe purposes listed in paragraph 1_ This commitment is not limited totaxes on aviation fuel imposed by the airport operator, and includes taxes on aviation fuel imposed by state government and other localjurisdictions_

Airports Council International-North America • 1615 L Street, NW, Suite 300 • Washington, D.C. 20036 • (202) 293-850003/05/2014 16:39 FAX 1410003/0004

(78 Fed.Reg. at 69793). Inthe preamble ofthe Notice, the FAA interprets paragraph "D.2"to mean that, [A]n airport operator orstate government submitting an application underthe Airport Improvement Program must provide assurancethat revenues from state and local governmenttaxes on aviation fuel are used for certain aviation-related purposes. (78 Fed.Reg at 68789) So, executing a grant application involves assuring FAAthatfuel taxes collected on aviation fuel will only be used for certain aviation purposes. Neithersection 47107(b) norsection 47133 limits this requirement to taxes imposed bythe airport sponsor; the assurance applies to any state or local governmenttax on aviation fuel. (78 Fed.Reg. at 69793. 

### (ld. at 68789 and 69793). 

### 2

Airport sponsors are in no position to provide assurances for other political entities. Airport sponsors have no legal or political powerto control, and thus cannot give assurances on how, non-sponsorstate orlocal governments will behave. ACI-NA is concerned deeplythat airport sponsors may be held to be in non-compliancewith the assurance and, thus, subjectto penalties forthe actions ofother political entities that are outside the scope ofcontrol ofthe airport sponsor. In addition, such an assurance, as a condition ofthe receipt ofa grant, would effectively make it impossibleforany airport sponsorto accept newgrants. We believe that it is unreasonable and arbitrary for FAAto purportto hold airport sponsors accountablefor actions overwhich sponsors have no authority or control. Furthermore, ACI-NA believes the FAA's proposal impermissibly interferes with fundamental statetaxing and spending powers in a mannerthat iswell outside the statutory language in 49 U.S.C. 47107(b) and 47133 regarding aviation fuel taxes and is incongruentwith Executive Order 13132, 64 Fed. Reg. 43255 (Aug. 10, 1999) on federalism, which precludes federal agenciesfrom this type of interference. It is not apparent in the Proposed Policy that FAA performed a federalism analysis, as required bythe Executive Order, to examine the impacts of the Proposed Policy on state taxing authority and the intrusion ofthe Proposed Policy into the relationship between state and local governments and airport sponsors. 1 Making airport sponsors liable forthe actions or inactions ofnon-sponsorgovernment entities certainly would constitute an attemptto change the relationships among the federal government, state governments, and the political subdivisions ofa state. Without describing the actual problem to be solved, the Proposed Policy fails to satisfy the requirement ofthe Executive Orderto restrict the regulatory preemption ofstate and local laws to the minimum level necessary. The proposal also fails to demonstrate that an interpretation of the statute narrowerthan the FAA's broad interpretation would be insufficient to solve the problem, whateverthat problem may be. This is very important in relation to a federal agency's

1 Even though this provision ofthe Executive Order relates to the promulgation ofa "regulation,n and the Revenue Use Policy is called a "policy," the provision applies; as the U.S. Court ofAppeals for the D.C. Circuit stated, in reviewing the similarly promulgated Rates and Charges Policy, "Although he calls it a Final "Policy," the Secretary has clearly promulgated a rule." AirTransport Ass'n ofAmerica v. Dept. of Transp., 119 F. 3d 38, 40 n.3 (D.C. Cir. 1997). Airports Council International-North America • 1615 L Street, NW, Suite 300 •Washington, D.C. 20006 • (202) 293-850003/05/2014 16:40 FAX 1410004/0004



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obligations under applicable federalism principles when the agency seeks to curtail the rights of state and local governments. 2
As a result ofthese concerns, ACI-NA requests that FAA reconsider this Notice of Proposed Clarification of Policy to ensure airport sponsors are not placed in an untenable position between the federal government and their state and local governments. Please note that this Proposed Policy clearly is a "new policy" and not merely a "clarificationD ofan existing policy.
Thank you again forthe opportunityto provide comments regarding the Proposed Policy. Please contact James Briggs, ACI-NA Vice President, Legal Affairs (jbriggs@aci-na.org) ifyou have any questions aboutthese comments orwould like to discuss them further. Sincerely,

# 11/71~ Kevin M. Burke President and CEO

2 See Gregoryv. Ashcroft, 501 U.S. 452 (1991); HighlandFarms Dairy, Inc. v. Agnew, 300 U.S. 608,612 (1937) ("Howpower shaH bedistributed by a state among its governmental organs is commonly, ifnot always, a question for the state itself"); Bienemanv. City of Chicago, 864 F.2d 463 (7'h Cir. 1988) ("Neitherthe Constitution northe Federal Aviation Act, as amended by the Noise Control Act of 1972, determines how Illinois apportions its governmental powers.") Airports Council International-North America • 1615 L Street, NW, Suite 300 ·Washington, D.C. 20006 • (202) 293-8500