03/05/2014 16:38 FAX 

AIRPORTS COUNOL 

INT£RHAllONAl 

1410002/0004 

March 3, 2014 Submitted Via Fax: (202) 493-2251 

Randall S_ Fiertz 

Director, Office of Airport Compliance and Management Analysis 

Federal Aviation Administration 

8001ndependenceAvenue,SVV 

Washington, DC 20591 

RE: Docket No. FAA-2013-0988- Policy and Procedures Concerning the Use of 

Airport Revenue: Proceeds From Taxes on Aviation Fuel 

Dear Mr. Fiertz: 

Thank you for the opportunity to submit comments regarding the Federal Register Notice of 

Proposed Clarification of Policy with respect to FAA's "Policy and Procedures Concerning the 

Use of Airport 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 by ACI-NA staff in coordination with our member airports. We also have encouraged 

our members and World Business Partners to submit their comments to you directly_ 

ACI-NA understands and supports the FAA's effort to protect revenue for airport and aviation 

purposes, however, we have serious concerns about the impossible position in which many, if 

not most, airport sponsors would find themselves if the Proposed Policy were to be 

implemented_ We believe it would be improper for FAA to hold airport sponsors, which 

generally are independent political subdivisions of states, responsible for the actions of nonsponsor state and local governments, over which airport sponsors have no authority or control. 

ACI-NA member airports feel so strongly about this matter that on February 5, 2014, the ACI-NA 

U.S. Policy Board adopted the following resolution: "The ACI-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 objects to both the proposed new paragraph "0.2" in Section VI of 

the Proposed Policy and the FAA's interpretation of that 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 for the purposes listed in paragraph 1_ This 

commitment is not limited to taxes on aviation fuel imposed by the airport 

operator, and includes taxes on aviation fuel imposed by state government and 

other local jurisdictions_ 

Airports Council International-North America • 

1615 L Street, NW, Suite 300 • Washington, D.C. 20036 • (202) 293-8500 
03/05/2014 16:39 FAX 1410003/0004 

(78 Fed. Reg. at 69793). In the preamble of the Notice, the FAA interprets paragraph "D.2" to 

mean that, 

[A]n airport operator or state government submitting an application under the 

Airport Improvement Program must provide assurance that revenues from state 

and local government taxes on aviation fuel are used for certain aviation-related 

purposes. (78 Fed. Reg at 68789) 

So, executing a grant application involves assuring FAA that fuel taxes collected 

on aviation fuel will only be used for certain aviation purposes. Neither section 

47107(b) nor section 47133 limits this requirement to taxes imposed by the 

airport sponsor; the assurance applies to any state or local government tax 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 power to control, and thus cannot give assurances on how, 

non-sponsor state or local governments will behave. ACI-NA is concerned deeply that airport 

sponsors may be held to be in non-compliance with the assurance and, thus, subject to 

penalties for the actions of other political entities that are outside the scope of control of the 

airport sponsor. In addition, such an assurance, as a condition of the receipt of a grant, would 

effectively make it impossible for any airport sponsor to accept new grants. We believe that it is 

unreasonable and arbitrary for FAA to purport to hold airport sponsors accountable for actions 

over which sponsors have no authority or control. 

Furthermore, ACI-NA believes the FAA's proposal impermissibly interferes with fundamental 

state taxing and spending powers in a manner that is well outside the statutory language in 49 

U.S. C. 47107(b) and 47133 regarding aviation fuel taxes and is incongruent with Executive 

Order 13132, 64 Fed. Reg. 43255 (Aug. 10, 1999) on federalism, which precludes federal 

agencies from this type of interference. It is not apparent in the Proposed Policy that FAA 

performed a federalism analysis, as required by the Executive Order, to examine the impacts of 

the Proposed Policy on state taxing authority and the intrusion of the Proposed Policy into the 

relationship between state and local governments and airport sponsors. 1 Making airport 

sponsors liable for the actions or inactions of non-sponsor government entities certainly would 

constitute an attempt to change the relationships among the federal government, state 

governments, and the political subdivisions of a state. 

Without describing the actual problem to be solved, the Proposed Policy fails to satisfy the 

requirement of the Executive Order to restrict the regulatory preemption of state and local laws 

to the minimum level necessary. The proposal also fails to demonstrate that an interpretation of 

the statute narrower than the FAA's broad interpretation would be insufficient to solve the 

problem, whatever that problem may be. This is very important in relation to a federal agency's 

1 Even though this provision of the Executive Order relates to the promulgation of a "regulation,n and the 

Revenue Use Policy is called a "policy," the provision applies; as the U.S. Court of Appeals 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." Air Transport Ass'n of America 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) 293-8500 
03/05/2014 16:40 FAX 1410004/0004 

3 

obligations under applicable federalism principles when the agency seeks to curtail the rights of 

state and local governments. 2 

As a result of these 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 of an existing policy. 

Thank you again for the opportunity to provide comments regarding the Proposed Policy. 

Please contact James Briggs, ACI-NA Vice President, Legal Affairs (jbriggs@aci-na.org) if you 

have any questions about these comments or would like to discuss them further. 

Sincerely, 

11/71~ 

Kevin M. Burke 

President and CEO 

2 See Gregoryv. Ashcroft, 501 U.S. 452 (1991); Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608,612 (1937) 

("How power shaH be distributed by a state among its governmental organs is commonly, if not always, a question 

for the state itself"); Bieneman v. City of Chicago, 864 F.2d 463 (7'h Cir. 1988) ("Neither the Constitution nor the 

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