58546 Federal Register / Vol. 71, No. 192 / Wednesday, October 4, 2006 / Proposed Rules 

annual fees are due. The Finance Office 

has requested that the annual fee due 

date be changed from January 1 to 

February 28 to allow their automated 

systems to be uploaded with December 

31 year-end information. The revision of 

7 CFR 3565.53(b) will facilitate the 

automation of the annual fee calculation 

process. 

List of Subjects in 7 CFR Part 3565 

Guaranteed loans, Low and moderate 

income housing, Surety bonds. 

For the reasons set forth in the 

preamble, Title 7, Chapter XXXV of the 

Code of Federal Regulations is proposed 

to be amended as follows: 

PART 3565—GUARANTEED RURAL 

RENTAL HOUSING PROGRAM 

1. The authority citation for part 3565 

continues to read as follows: 

Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 42 

U.S.C. 1480. 

Subpart B—Guarantee Requirements 

2. Section 3565.53(b) is revised to 

read as follows: 

§ 3565.53 Guarantee fees. 

* * * * * 

(b) Annual guarantee fee. An annual 

guarantee fee of at least 50 basis points 

(one-half percent) of the outstanding 

principal amount of the loan will be 

charged each year or portion of a year 

that the guarantee is in effect. This fee 

will be collected on February 28, of each 

calendar year. 

* * * * * 

Dated: September 15, 2006. 

Russell T. Davis, 

Administrator, Rural Housing Service. 

[FR Doc. E6–16399 Filed 10–3–06; 8:45 am] 

BILLING CODE 3410–XV–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

14 CFR Part 331 

[Docket OST–2006–25906] 

RIN 2105–AD61 

Procedures for Reimbursement of 

General Aviation Operators and 

Service Providers in the Washington, 

DC Area 

AGENCY: Office of the Secretary, DOT. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: On November 30, 2005, 

President Bush signed into law the 

Transportation, Treasury, Housing and 

Urban Development, the Judiciary, the 

District of Columbia, and Independent 

Agencies Appropriation Act, 2006 

(Pub.L. 109–115, 119 Stat. 2396, 

hereafter the Act, or the 2006 

Appropriation Act). Section 185 of the 

Act authorized the Department of 

Transportation to provide 

reimbursement to fixed-based general 

aviation operators and providers of 

general aviation ground support services 

at five metropolitan Washington, DC 

area airports, for the direct and 

incremental financial losses they 

incurred while the airports were closed 

due to Federal Government actions 

taken after the terrorist attacks on 

September 11, 2001. The airports are: 

Ronald Reagan Washington National 

Airport; College Park Airport in College 

Park, Maryland; Potomac Airfield in 

Fort Washington, Maryland; 

Washington Executive/Hyde Field in 

Clinton, Maryland; and Washington 

South Capitol Street Heliport in 

Washington, DC. A total of up to 

$17,000,000 was appropriated for this 

purpose. This proposed rule would 

establish the eligibility requirements 

and application procedures for those 

who may qualify for assistance under 

this statute. 

DATES: Comments should be received by 

November 3, 2006. 

ADDRESSES: Interested persons should 

send comments to Docket Clerk, Docket 

OST–2006–25906, Department of 

Transportation, 400 7th Street, SW., 

Room PL–401, Washington, DC 20590. 

We request that, in order to minimize 

burdens on the dockets staff, 

commenters send three copies of their 

comments to the docket. Commenters 

wishing to have their submissions 

acknowledged should include a 

stamped, self-addressed postcard with 

their comments. The Docket Clerk will 

date stamp the postcard and return it to 

the commenter. Comments will be 

available for inspection at the above 

address from 10 a.m. to 5 p.m., Monday 

through Friday. Comments also may be 

sent electronically to the Dockets 

Management System (DMS) at the 

following internet address: http:// 

dms.dot.gov/. Commenters who wish to 

file comments electronically should 

follow the instructions on the DMS Web 

site. Interested persons can also review 

comments through this same Web site. 

FOR FURTHER INFORMATION CONTACT: 

James R. Dann, U.S. Department of 

Transportation, Office of General 

Counsel, 400 7th Street, SW., Room 

10102, Washington, DC 20590. 

Telephone 202–366–9154. Data sources 

to assist applicants in preparing 

portions of their applications are 

available at the Department of 

Transportation, Office of the Secretary’s 

Web site at http://ostpxweb.dot.gov/ 

aviation/index.html, under ‘‘Programs.’’

SUPPLEMENTARY INFORMATION: Following 

the terrorist attacks on the United States 

on September 11, 2001, general aviation 

activity in the Washington, DC 

metropolitan area was suspended. Five 

airports were most affected: Ronald 

Reagan Washington National Airport 

(DCA); College Park Airport in College 

Park, Maryland; Potomac Airfield in 

Fort Washington, Maryland; 

Washington Executive/Hyde Field in 

Clinton, Maryland; and Washington 

South Capitol Street Heliport in 

Washington, DC. General aviation 

operations remain limited at DCA and 

the three Maryland airports, and the 

South Capitol Street Heliport is now 

used exclusively by the Washington DC 

Metropolitan Police. Because of the 

reduction in general aviation activity at 

these locations, the fixed-based 

operators and service providers that 

supported general aviation were also 

affected. In addition, some such entities 

have had to incur additional costs 

associated with new security regulations 

in order to keep their businesses 

functioning. 

Soon after the terrorist attacks, 

Congress enacted the Air Transportation 

Safety and System Stabilization Act, 

Public Law 107–42 (Sept. 22, 2001) (the 

Stabilization Act). The Stabilization Act 

directed that compensation be provided 

to ‘‘air carriers’’ for the direct losses 

they incurred as a result of the 

Government’s orders halting air traffic, 

and the incremental losses they 

incurred between September 11 and 

December 31, 2001, as a direct result of 

the terrorist attacks. Under this 

authority, approximately $4.6 billion 

has been distributed to qualifying 

carriers, providing them assistance as 

they sought to avoid bankruptcy and 

recover financially in the aftermath of 

September 11. Such carriers were also 

made eligible for loan guarantees under 

a different title of the Act. However, as 

noted, relief was limited in the statute 

to ‘‘air carriers,’’ a term defined at 49 

U.S.C. 40102. Because the fixed-based 

operators and service providers at issue 

here did not fall within that definition, 

they were not eligible for either 

compensation or loan guarantees under 

the Stabilization Act. 

In 2003, the United States House of 

Representatives Committee on 

Appropriations requested that the 

Department of Transportation prepare a 

report detailing the documented 

financial losses by holders of real 

property leases at the five affected 


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airports that were attributable to the 

Federal actions since September 11, 

2001. (House Report 108–243, July 30, 

2003, p. 8.) The Committee stated that 

such a report would assist the Congress 

in considering ‘‘potential federal 

reimbursement for a portion of these 

unusual financial losses.’’ In October, 

2005, the Secretary of Transportation 

submitted to the Committee the 

requested report, which was entitled: 

Estimated Financial Losses to Selected 

General Aviation Entities in the 

Washington, DC Area Final Report 

(October 2005 DOT study). A copy of 

this Report has been placed into Docket 

2006–25906. 

The October 2005 DOT study 

identified sixteen general aviation 

leaseholders at the five airports, and 

estimated the financial losses that each 

incurred during its study period (which 

ran from September 11, 2001 to January 

23, 2004) due to the Federal actions 

taken after the terrorist attacks. The 

estimates reflected the difference in net 

income between what the companies 

projected for the study period and the 

actual net income for that period, and 

included both losses in net income and 

one-time costs attributable directly to 

compliance with new restrictions or 

regulations resulting from the terrorist 

attacks. In formulating its estimates, the 

Department’s consultant relied 

primarily on voluntary information 

provided by each entity, and while 

interviews were conducted to confirm 

the general reasonableness and 

consistency of the numbers provided, 

no independent analysis, audit or 

certification was conducted. Therefore, 

the October 2005 DOT study advised 

that these estimates were merely 

preliminary and meant solely to inform 

Congress in determining whether and in 

what amount to appropriate funds to 

reimburse these general aviation 

entities. The October 2005 DOT study 

also indicated that, if compensation 

were to be made available, ‘‘the 

financial data establishing the basis for 

any payment, especially forecast 

revenue, cost and net income, should 

* * * be subject to a more rigorous 

verification regime.’’ (Estimated 

Financial Losses to Selected General 

Aviation Entities in the Washington, DC 

Area Final Report, at fn. 3.) 

The total estimated financial losses 

for the period reviewed were 

$10,443,936, with more than half of that 

amount being reported for one firm, 

Signature Flight Support. The estimates 

were in current dollars and reflected no 

consideration for the time value of 

money. 

On November 30, 2005, the 

Transportation, Treasury, Housing and 

Urban Development, the Judiciary, the 

District of Columbia, and Independent 

Agencies Appropriation Act, 2006, 

became law. Section 185 of the Act 

provides for the reimbursement of 

‘‘fixed-based general aviation operators 

and the providers of general aviation 

ground support services’’ at the five 

cited airports for the ‘‘direct and 

incremental financial losses incurred 

while such airports were closed to 

general aviation operations, or as of the 

date of enactment of this provision in 

the case of airports that have not 

reopened to such operations, by these 

operators and service providers solely 

due to actions of the Federal 

Government following the terrorist 

attacks on the United States that 

occurred on September 11, 2001.’’ The 

Act provides up to $17 million to 

reimburse these general aviation 

entities; however, it states that, of the 

$17 million provided, an amount not to 

exceed $5 million, if necessary, is to be 

available on a pro rata basis to fixedbased general aviation operators and the 

providers of general aviation ground 

support services located at the three 

Maryland airports: College Park Airport 

in College Park, Maryland; Potomac 

Airfield in Fort Washington, Maryland; 

and Washington Executive/Hyde Field 

in Clinton, Maryland. 

Section 185 further states that the 

appropriated funds included the cost of 

‘‘an independent verification regime;’’

that no funds shall be obligated or 

distributed to such general aviation 

entities until an independent audit is 

completed; that losses incurred as the 

result of violations of law, or through 

fault or negligence of such entities or of 

third parties (including airports) are not 

eligible for reimbursement; and that the 

obligation and expenditure of funds are 

conditional upon full release of the 

United States Government for all claims 

for financial losses resulting from such 

actions. 

Section-by-Section Analysis 

Section 331.1 What is the purpose of 

this Part? 

This section states the proposed 

purpose of part 331, which is to carry 

out the statutory provisions of the Act 

with respect to compensating fixedbased general aviation operators and 

providers of general aviation ground 

support services at five metropolitan 

Washington, DC area airports. 

Section 331.3 What do the terms used 

in this part mean? 

This definitions section proposes to 

incorporate terms from the Act or other 

existing sources. This section also 

proposes to define additional terms 

necessary to implement the procedures 

to provide reimbursement under the 

Act. 

Entities that meet the definition of a 

‘‘fixed-based general aviation operator’’

or a ‘‘provider of general aviation 

ground support services’’ with 

operations at one or more of the five 

named airports on September 11, 2001 

would be eligible under the plain 

statutory language to apply for 

reimbursement of eligible losses under 

the 2006 Appropriation Act. 

The Department understands that a 

‘‘fixed based general aviation operator,’’

(FBO), customarily refers to an entity 

based at a particular airport that 

provides services and support to general 

aviation, which may include fuel and 

oil, aircraft storage and tie-down, 

airframe and engine maintenance, 

avionics repair, baggage handling, 

deicing, and the provision of air charter 

services. We expect that most, if not all, 

eligible FBOs will have been 

leaseholders identified in the October 

2005 DOT study. The Department 

would tentatively further define a 

‘‘provider of general aviation ground 

support services’’ as a non-FBO 

operating at an airport that supplies 

such or similar services exclusively or 

predominantly to support general 

aviation activities, extending as well to 

flight schools, security services, aircraft 

and avionics maintenance, etc. The 

reference to ‘‘services’’ in the statute 

would seem to preclude non-FBO 

entities from qualifying that provided 

only products to general aviation, e.g., a 

parts supplier. 

The Department notes that the 

October 2005 DOT study performed 

under House Report 108–243 was 

limited to ‘‘holders of real property 

leases’’ at the airports. Because the 2006 

Appropriation Act used different 

language to describe the entities that 

were to be eligible for reimbursement, 

the Department believes that 

reimbursement for losses is not 

necessarily limited to only those sixteen 

entities that were identified in the 

October 2005 DOT study. As the 

Department expects that case-by-case 

determinations may be necessary, we 

propose that any entity that applies for 

reimbursement under the Program 

describe itself, the services it provides 

or provided, the airport or airports at 

which it provided those services, and 

certify that it meets the regulatory 

definitions, in order to facilitate an 

eligibility determination by the 

Department. 

We also propose common usage 

definitions for ‘‘losses’’ and ‘‘incurred,’’

as we did in the regulations 


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implementing the Stabilization Act. See 

67 FR 54062 (August 20, 2002). Thus, 

‘‘losses’’ refer to something that is gone 

and cannot be recovered, and 

‘‘incurred’’ means to become liable or 

subject to (as to incur debt). Applying 

these definitions, for example, a 

temporary loss that is recovered later, or 

is expected to be recovered later, would 

not be eligible for reimbursement. 

The Department proposes to define 

the statutory phrase ‘‘direct and 

incremental losses’’ to mean those 

losses that resulted from the Federal 

Government’s closure of the five 

Washington area airports to general 

aviation operations. ‘‘Direct and 

incremental losses’’ would include 

losses incurred on September 11, 2001 

through the end of the eligibility 

reimbursement period for each airport. 

The Department proposes to read 

‘‘direct and incremental losses’’ as a 

single category because of the difficulty 

in apportioning losses between direct 

losses and incremental losses while an 

airport was closed. 

As discussed in more detail in Section 

331.13, the eligibility period is different 

for each of the five Washington area 

airports. For the reasons set forth in 

Section 331.13, the Department is 

proposing that the term ‘‘closed’’ or 

‘‘closure’’ be defined so as to carry out 

the intent of Congress in establishing 

the eligible period for reimbursement 

for each airport. For Washington 

National Airport, ‘‘closed’’ or ‘‘closure’’

would mean the time between 

September 11, 2001 and the date that 

general aviation operations were 

generally permitted to resume. For the 

Washington South Capitol Street 

Heliport, which was closed at the date 

that Section 185 of the Act was enacted, 

‘‘closed’’ or ‘‘closure’’ would mean the 

time between September 11, 2001 and 

November 30, 2005. For the three 

Maryland airports, because general 

aviation operations resumed more 

gradually, ‘‘closed’’ or ‘‘closure’’ would 

mean the time between September 11, 

2001 and the date that transient traffic 

was generally permitted to return. 

Finally, the Department proposes that, 

for purposes of determining eligibility 

under the Act, ‘‘forecast’’ should be 

defined as an objective and reliable 

projection of the revenue that would 

have been earned and the expenses that 

would have been incurred during the 

eligible reimbursement period had the 

attacks of September 11, 2001 not 

occurred. The Department believes that 

applicants either prepared such 

forecasts before September 11, 2001, or 

have the ability to prepare or 

reconstruct such reasonable forecasts 

based on financial records generated 

and maintained in the ordinary course 

of business. 

Section 331.5 Who may apply for 

reimbursement under this part? 

This part specifies the applicants 

eligible for reimbursement under the 

Act. The Department proposes that 

applicants submitting claims under the 

Act for losses incurred at two or more 

airports complete separate applications. 

For example, if an applicant provided 

fixed-based general aviation or general 

aviation ground support at Ronald 

Reagan Washington National Airport 

and College Park Airport in College 

Park, Maryland, then the applicant 

would complete two applications. 

Section 331.7 What losses will be 

reimbursed? 

Under subsection (a) the Department 

proposes the method that would be 

applied to determine reimbursement. 

The Department proposes that losses 

should be measured under the same 

general approach utilized in the October 

2005 DOT study, i.e., the difference in 

net income between what an eligible 

applicant forecast (or would have 

reasonably expected) for the applicable 

reimbursement period, and the actual 

net income it earned for that period. The 

Department deemed this ‘‘lost profits’’

approach to be the most reasonable one 

for purposes of its October 2005 study, 

and it was the same approach that was 

utilized in providing compensation to 

air carriers under the Air Transportation 

Safety and System Stabilization Act. 

Thus, the Department has had 

considerable experience in analyzing 

and approving compensation claims 

under such a regime. Moreover, since 

Congress likely relied on the analysis 

and estimates made by the Department 

and the Department’s consultant in the 

October 2005 DOT study when it 

enacted the 2006 Appropriation Act, 

this approach would seem most 

consistent with Congress’ expectations 

regarding the cost to be incurred for the 

program. 

Under subsection (b) the Department 

proposes that if applicants make a claim 

for extraordinary, non-recurring, or 

unusual adjustments, they would also 

be requested to demonstrate that such 

losses were fully attributable to the 

Federal Government’s actions, that the 

claim be made in conformity with 

Generally Accepted Accounting 

Principles (GAAP), that the expenses of 

the loss were fully borne within the 

applicable statutory reimbursement 

period, that the charge was not 

discretionary in nature, and that 

reimbursement would not be 

duplicative of other relief. The 

Department notes that it appears that 

Congress intended one-time costs that 

were necessarily incurred in order to 

comply with Federal Government 

security requirements to be 

reimbursable, and we propose that they 

be. However, under the Air 

Transportation Safety and System 

Stabilization Act compensation 

program, a number of applicants sought 

reimbursement for various types of 

extraordinary, non-recurring, or unusual 

charges, which DOT generally found not 

to be eligible. For example, the 

Department typically rejected claims for 

impairment of long-lived assets, relying 

in part on guidelines published by the 

Financial Accounting Standards Board 

(FASB) recognizing that ‘‘impairment of 

long-lived assets as a result of the 

September 11 events would in many 

cases be impossible to measure 

separately from impairment due to the 

general economic slowdown that was 

generally acknowledged to be under 

way.’’ (Emerging Issues Task Force 

Meeting Minutes, at 4.) Therefore the 

Department is proposing that 

extraordinary, non-recurring, or unusual 

adjustments be separately explained by 

each applicant in order to determine 

eligibility. Each such claim would 

prompt a case-by-case review to 

determine whether it should be 

reimbursed under the Act, using the 

same type of analysis that was 

employed in the Air Transportation 

Safety and System Stabilization Act 

cases. 

Subsection (c) proposes that 

temporary losses recovered after the 

terrorist attacks of September 11, 2001, 

or that applicants expect to recover, 

should not be eligible for 

reimbursement. 

The Department proposes in 

subsection (d) that if an applicant 

engaged in any aviation or non-aviation 

income-producing activities after 

September 11, 2001, such income 

should mitigate its losses and so reduce 

reimbursement. If, for example, an 

applicant after September 11, 2001 

contracted out its services for some of 

its maintenance and avionics repair 

work to other carriers or at other 

airports, that income would serve to 

reduce its reimbursement under this 

Act. 

Similarly, the Department proposes in 

subsection (e) that so-called ‘‘cost 

savings’’ cannot be claimed and 

manipulated into a basis for additional 

reimbursement. Such ‘‘cost savings’’

arise from instances in which an 

applicant achieves after September 11 a 

reduction in actual expenses as 

compared to its forecast expenses in 

expense categories it claims were not 


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1The Department’s GRA Study considered as 

‘‘direct losses’’ those losses incurred during the 

period of ‘‘full’’ closure—through March, 2002—

and as ‘‘incremental losses’’ those losses incurred 

after the reopening of the airports that were 

nonetheless attributable to the Federal actions taken 

as a result of the September 11 terrorist attacks. The 

language of section 185 limits reimbursement to the 

direct and incremental losses incurred while the 

airports were ‘‘closed’’ to GA operations, leaving 

unsettled whether Congress was altering the time 

periods for which calculations of loss would be 

made from the approach taken in the Study. 

affected by the Federal Government’s 

closure of airports. We assume that 

potentially eligible general aviation 

entities would, like most businesses, try 

to maintain strict controls on 

expenditures, especially in cases in 

which revenue shortfalls are being 

anticipated (such as after the terrorist 

attacks). We perceive this as simply 

good business practice, so that these 

savings should reduce reimbursement 

needs. See 67 FR 18473 (Apr. 16, 2002); 

Federal Express Corp. v. Mineta, 434 

F.3d 597 (DC Cir., 2006). 

The Department proposes in 

subsection (f) that applicants not be 

reimbursed for the lost time value of 

money. As noted above, the October 

2005 DOT study questioned whether 

reimbursement pursuant to Section 185 

should account for the time value of 

money, through payment of interest on 

lost profits for the period of time the 

funds were not available for use. The 

Department has tentatively determined 

that, as a legal matter, it is precluded 

from payment of interest under the 

circumstances present here. See, e.g., 

United States v. Alcea Bank of 

Tillamooks, 341 U.S. 48, 49 (1951) 

(noting that, ‘‘[i]t is the ‘traditional rule’

that interest on claims against the 

United States cannot be recovered in the 

absence of an express provision to the 

contrary in the relevant statute or 

contract’’). We are aware of no 

exceptions that would apply here so as 

to make such payment here allowable. 

The Department also proposes to 

exclude lobbying fees and attorneys’

fees in subsection (g). The October 2005 

DOT study did not address the 

compensability of reasonable lobbying 

and attorney’s fees. However, a question 

has arisen as to whether the program 

should provide reimbursement for those 

professional service fees, such as those 

incurred in seeking and obtaining the 

legislative relief ultimately embodied in 

Section 185. The Department proposes 

that such fees not be eligible for 

reimbursement. We note initially that a 

Federal statute (31 U.S.C 1352) prohibits 

using appropriated funds to compensate 

lobbying costs for specific activities. To 

implement this provision, the 

Department adopted regulations as 

generally prescribed by the Office of 

Management and Budget (OMB), that 

broadly limit the expenditure of 

appropriated funds by recipients of ‘‘a 

Federal contract, grant, loan, or 

cooperative agreement’’ for lobbying 

costs. See 49 CFR 20.100. While 

‘‘reimbursement’’ is not included among 

the covered Federal actions, the 

Department believes that it should be 

here, in order to achieve consistency 

with the spirit and intent of these 

provisions, and therefore would not 

reimburse with appropriated funds 

expenditures for such specified 

activities. Accordingly, such costs 

would need to be broken out and 

excluded from an applicant’s claim. 

In order to assist the Department 

evaluate the reasonableness of claims it 

receives from applicants, it proposes in 

subsection (h) that the applicants’

calculations of revenues, expenses and 

income be based on financial 

documents customarily maintained by 

the applicants in the course of 

conducting business. 

Section 331.9 What funds will the 

Department distribute under this part? 

The Department proposes to disburse 

up to the full amount of reimbursement 

it determines is payable to applicants 

under section 185 of the Act. 

Section 335.11 What are the limits on 

reimbursement to operators or 

providers? 

Congress has limited reimbursements 

to losses incurred as a direct result of 

actions by the Federal Government and 

to losses incurred within a finite period 

of time. As discussed above, even if 

losses may be properly reported under 

generally accepted accounting 

principles (GAAP) within that period, if 

they are actually experienced over a 

longer or different period of time, and/ 

or if they are not fully attributable to the 

Federal Government’s actions to close 

airports, they may not be properly 

reimbursable under the Act. 

The Department proposes in 

subsection (a) to reimburse applicants 

subject to the subpart C set-aside for 

eligible operators or providers at College 

Park Airport in College Park, Maryland; 

Potomac Airfield in Fort Washington, 

Maryland; and Washington Executive/ 

Hyde Field in Clinton, Maryland. The 

Department further proposes that the 

amount available to each applicant be 

subject to the Department’s cost of 

independently verifying claims for 

reimbursement, as explained in Section 

331.17. 

In subsection (b), the Department 

proposes that, if an overpayment is 

made to an applicant for any reason, the 

Federal Government would collect the 

overpayment amount in accordance 

with the Federal Claims Collection Act 

of 1996 (31 U.S.C. 3701 et seq.). 

Section 185 requires that, as a 

condition for payment, parties provide a 

full release to the United States from all 

claims for financial losses resulting from 

actions of the Federal Government 

following the terrorist attacks of 

September 11, 2001. The Department 

proposes in subsection (c) to utilize a 

standard release form. 

Section 331.13 What is the eligible 

reimbursement period under this part? 

Section 185 provides funds to 

reimburse GA entities for eligible losses 

‘‘incurred while such airports were 

closed to general aviation operations, or, 

if an airport has not reopened to such 

operations, as of the date of enactment 

of Public Law 109–115’’ (i.e., November 

30, 2005). Because four of the five the 

airports in question were subject to 

differing levels of restriction in general 

aviation activity over time, the language 

‘‘while such airports were closed to 

general aviation operations’’ requires 

the Department to interpret whether the 

eligible period is that during which the 

airports were closed to all general 

aviation operations, or to some or any 

general aviation operations.1

As background, the period of closure 

for all five airports began on September 

11, 2001, when immediately after the 

terrorist attacks, the Federal Aviation 

Administration (FAA) prohibited all 

aircraft operations within the territorial 

airspace of the U.S. Exceptions were 

made only for certain military, law 

enforcement, and emergency-related 

aircraft operations. This general 

prohibition was lifted in part on 

September 13, 2001. 

Due to continuing security concerns 

in Washington, DC airspace, restrictions 

remained in place on aircraft operations 

in the DC metropolitan area. On October 

4, 2001, limited air carrier operations 

were permitted to resume at Ronald 

Reagan Washington National Airport 

(‘‘DCA’’), but general aviation activity 

there and elsewhere in the metropolitan 

area was limited to repositioning of 

aircraft and operations under limited 

waivers. Under Notice to Airmen 

(NOTAM) 1/3354 of December 19, 2001, 

the FAA continued with minor 

exceptions the total prohibition on all 

Part 91 flight operations within 15-miles 

of the Washington Monument. 

At DCA, official State and Federal 

government operations, and other flights 

operating under limited waivers, 

generated about 20 general aviation 

flights per month through 2004. These 


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flights required special security 

arrangements, including pilot and 

passenger background checks and the 

presence of law enforcement personnel 

on board. Because of these restrictions, 

much DCA general aviation activity 

migrated to Washington Dulles Airport, 

Baltimore—Washington International 

Airport, or other facilities. On May 25, 

2005, the Department of Homeland 

Security proposed a broader reopening 

of DCA to various GA operations, 

including corporate aircraft and charter 

flights. Up to 48 GA flights per day 

would be allowed, although only for 

operations from authorized originating 

‘‘gateway’’ airports. Operations were 

subject to stringent security measures, 

including: Advanced registration and 

qualification of operators and crews; 

Transportation Security Administration 

(‘‘TSA’’) inspection of crews and 

passengers; submission of manifests 24 

hours in advance of the flight; enhanced 

background checks; and the presence of 

a law enforcement officer on board each 

flight. On October 18, 2005, flights 

under the new rules resumed at DCA. 

The FAA’s Special Federal Aviation 

Regulation (SFAR) 94, issued as a Final 

Rule on February 19, 2002 (67 FR 7537), 

set out procedures under which College 

Park Airport, Potomac Airfield, and 

Washington Executive/Hyde Field (the 

‘‘three Maryland airports’’ ) could be 

partially reopened to general aviation 

traffic. SFAR 94 permitted the three 

Maryland airports to develop security 

procedures that, if approved by the FAA 

Administrator, would allow pilots that 

had been based there to resume some 

operations. These procedures 

encompassed such matters as 

identification of an airport security 

coordinator, maintenance of a record of 

all individuals and aircrafts authorized 

to operate from the airport, 

implementation of robust security 

monitoring and security awareness 

procedures, etc. Although SFAR 94 

allowed the resumption of some 

operations under tightly controlled 

security requirements, based pilots were 

still unable to conduct pattern 

operations or flights to another affected 

airport. In addition, transient aircraft 

operations continued to be prohibited. 

Based on SFAR 94, and the FAA’s 

NOTAM 2/1257 that was published on 

February 14, 2002, College Park and 

Potomac airports were able to reopen to 

limited resident GA operations on 

February 23, 2002. Washington 

Executive/Hyde Field followed on 

March 2, 2002. 

SFAR 94 was reissued on February 

14, 2003 for an additional two years, 

and, on February 10, 2005, new rules 

were issued that authorized the 

resumption of transient operations on a 

restricted basis. 70 FR 7150. Under 

these restrictions, pilots were required 

to: Submit background information on 

themselves, including fingerprints; to 

undergo a terrorist threat assessment, 

criminal records check, and check of his 

or her FAA record for certain violations; 

and be briefed on procedures for 

operating at the airport. Further, pilots 

who wished to operate aircraft from or 

to any of the three Maryland airports 

were required to file a flight plan in 

advance, obtain air traffic control 

clearances and a discrete transponder 

code, and follow the arrival and 

departure procedures that were required 

by the FAA. See 49 CFR Part 1562. The 

flights into the three Maryland airports 

under these restricted procedures began 

after these rules became effective on 

February 13, 2005. 

The restrictions on general aviation 

operations in Washington airspace have 

obviously translated into a significantly 

lower volume of operations than had 

been in place prior to the terrorist 

attacks. At DCA, in the year 2000, there 

had been 60,225 GA operations. In 

contrast, the Department of Homeland 

Security stated that, between January of 

2003 and March of 2004, there had been 

a total of 146. 

The October 2005 DOT study found 

that local operations at College Park 

Airport fell from 19,657 in 2001 to 2,500 

in 2002 and 2,000 in 2003. Itinerant 

operations were reported as dropping 

from 4,800 in 2001 to zero in both 2002 

and 2003. 

At Potomac Airfield, the October 2005 

DOT study reported local and itinerant 

operations as staying constant for the 

three years, but considered that such 

data ‘‘may not be totally accurate 

because they show exactly the same 

number of operations each year.’’

Estimated Financial Losses to 

Selected General Aviation Entities in the 

Washington, DC Area Final Report, at 

fn. 11. 

At Washington Executive/Hyde Field, 

the October 2005 DOT study found that 

local operations were constant at 34,580 

in 2001 and 2002 (which conclusion 

may suffer from the same inaccuracy in 

reporting as affected Potomac Airfield) 

but fell to 6,970 in 2003. As to itinerant 

operations, the October 2005 DOT study 

reported a fall from 1,900 in 2001 to 30 

in 2002 and 10 in 2003. 

The Washington South Capitol Street 

Heliport is now closed to GA 

operations. According to the 

Department’s consultant, the 

Washington Metropolitan Police 

Department helicopter operation unit is 

now the exclusive user of the heliport. 

The reduction in traffic volumes has 

translated into financial losses for the 

fixed-based general aviation operators 

and providers of general aviation 

ground support services at the airports. 

The October 2005 DOT study reported 

financial losses for the general aviation 

leaseholders at the airports as being 

most severe in 2002, cumulating at 

almost $5.3 million. However, the losses 

extended as well into 2003, cumulating 

at over $3.4 million and into the early 

part of 2004. 

In construing the language of section 

185 as to the period each of the five 

airports was ‘‘closed to general aviation 

operations,’’ one approach would be for 

the Department to consider the period of 

closure to run until the first general 

aviation operations were permitted (on 

other than the special waiver, highly 

restricted basis in effect immediately 

after September 11, 2001). For DCA, that 

would be until October 18, 2005; for 

College Park and Potomac airports it 

would be until February 23, 2002; and 

for Washington Executive/Hyde Field, it 

would be until March 2, 2002. (For 

Washington South Capitol Street 

Heliport, it seems clear that the period 

of reimbursement eligibility would run 

for the full period from September 11, 

2001 to November 30, 2005.) Another 

option would be to consider the three 

Maryland airports ‘‘closed’’ until the 

airports were more broadly reopened to 

include transient traffic, if even on a 

restricted basis, i.e. February 13, 2005. 

A final alternative would be to interpret 

the language to extend the time to the 

full September 11, 2001 to November 

30, 2005 period, on the basis that some 

of the pre-September 11 general aviation 

traffic had not returned due to the 

restrictions, and so the airports might be 

thought of as not being ‘‘fully open’’

even to the present day. 

The Department has tentatively 

determined that the respective periods 

of eligibility should be from September 

11, 2001 until October 18, 2005 for 

DCA; until February 13, 2005 for the 

three Maryland airports, although 

limited for Washington Executive/Hyde 

Field as discussed below; and until 

November 30, 2005 for the Washington 

South Capitol Street Heliport. 

Comments on these proposed 

timeframes are welcomed. The 

following chart sets forth the proposed 

periods of eligibility for reimbursement: 


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Airport 

Period of eligibility for reimbursement 

Begin date End date 

Ronald Reagan Washington National Airport ................................................................................. September 11, 2001 .. October 18, 2005. 

College Park Airport in College Park, Maryland ............................................................................. September 11, 2001 .. February 13, 2005. 

Potomac Airfield in Fort Washington, Maryland .............................................................................. September 11, 2001 .. February 13, 2005. 

Washington Executive/Hyde Field in Clinton, Maryland ................................................................. September 11, 2001

September 29, 2002 ..

May 16, 2002. 

February 13, 2005. 

Washington South Capitol St. Heliport in Washington, D.C. .......................................................... September 11, 2001 .. November 30, 2005. 

In so proposing, we considered that 

Congress must not, at the time it enacted 

section 185, considered all five of the 

airports to still be ‘‘closed.’’ If it did, it 

would simply have provided that the 

period for reimbursement would extend 

through the date the statute was 

enacted. To give meaning to the phrase 

‘‘while closed to general aviation 

operations’’ in the Act, at least one of 

the airports must have been thought of 

as having reopened prior to the date of 

enactment. Of the remaining two 

approaches, we have tentatively decided 

to use the February 13, 2005 date for the 

three Maryland airports, rather than the 

alternative dates in 2002. The GA 

entities potentially eligible for 

reimbursement at the three Maryland 

airports continued to sustain serious 

financial losses well past the dates that 

the airports were reopened for some 

resident based operations, and it seems 

inconsistent with the clear remedial 

purpose of section 185 to restrict 

reimbursement only for losses incurred 

by these entities through February or 

March of 2002. Moreover, given these 

continuing financial impacts, it seemed 

inequitable to permit reimbursements at 

DCA over a four year period, but restrict 

such reimbursements at the three 

Maryland airports for less than six 

months. And, although restrictions 

continue at the three Maryland airports, 

they do as well at DCA, and similar 

treatment among them would seem to be 

best achieved by using the February 13, 

2005 and October 18, 2005 dates. 

The Department notes that section 

185 also provides that losses incurred as 

a result of violations of law, or through 

fault or negligence, of such operators 

and service providers or of third parties 

(including airports) are not eligible for 

reimbursement. In this connection, the 

Department understands that 

Washington Executive Airport/Hyde 

Field was reclosed on May 17, 2002, 

because of a security violation, and not 

reopened again until September 28, 

2002. See 70 FR 45256 (Aug. 4, 2005). 

The Department therefore tentatively 

believes that that period must be 

excluded from the reimbursement 

calculus, only for Washington Executive 

Airport/Hyde Field. The Department 

also believes that Potomac Airfield was 

closed from November 1 to December 

16, 2005 for a violation of its security 

program. However, because that period 

would be outside the tentative 

reimbursement period of September 11, 

2001 to February 13, 2005, 

reimbursements under this program 

would not be affected. The Department 

would welcome comments on this issue, 

particularly as to whether these 

exclusions should extend to other 

periods or situations. 

Section 331.15 How will other grants, 

subsidies, or incentives be treated by the 

Department? 

The Department understands that 

Potomac Airfield, College Park Airport, 

and Washington Executive Airport/ 

Hyde Field, at least, received Federal 

grants under the Airport Improvement 

Program to reimburse them for the cost 

of operations and capital improvements 

associated with implementing security 

programs. State and local authorities 

may have provided grants as well. The 

Department is proposing that any 

applicants who received, directly or 

indirectly, post-September 11 grants 

report them as revenues, because such 

grants should have the effect of reducing 

reimbursable losses. The Department is 

also proposing to add a question on 

receipt of any such grants in the 

Background and Eligibility Form to 

ensure proper focus on this issue. 

Section 331.17 How will the 

Department verify and audit claims 

under this part? 

This part proposes the method by 

which the Department would handle 

verification and auditing of claims. It is 

clear that Congress intended that these 

appropriated funds be used carefully 

and responsibly to reimburse only 

eligible entities for their eligible losses. 

To that end, section 185 would provide 

funds for an ‘‘independent verification 

regime,’’ and would require that an 

independent audit be completed before 

funds were distributed to eligible 

general aviation entities. Accordingly, 

the Department’s Office of the Inspector 

General (OIG) was consulted as to how 

to most efficiently and effectively 

implement this mandate. In part 

because there may be a wide range in 

the dollar amount of claims, we are 

proposing, with OIG concurrence, a 

flexible approach to achieve Congress’s 

objectives. First, all applicants would be 

required to certify the accuracy and 

completeness of their claims, under 

penalty of law. The Department has 

considerable experience with such 

certification requirements, can refer 

suspected violations to the Department 

of Justice, and itself has an enforcement 

program under authority of the Program 

Fraud and Civil Penalties Act (31 U.S.C. 

3801 note, Pub. L. 99–509; 49 CFR Part 

31). For verification purposes, 

applicants would also be required to 

retain all financial records for the period 

covered by their claim, as well as all 

data used in support of their claim 

(including actual monthly result data 

from 1999 forward). 

Department staff including attorneys, 

accountants, and analysts, who have 

extensive experience in reviewing the 

financial data of aviation firms, would 

initially review each claim in detail, 

contacting the individual applicants and 

consulting with OIG as questions arise 

in order to verify the accuracy of the 

information provided. Larger claims, 

and any questioned claims, would be 

subject to individual audits. The 

Department proposes that this auditing 

process should be flexible. Where an 

audit is warranted, the Department 

would forward the claim to either the 

OIG or an independent auditor. Claims 

believed to be fraudulent would be 

referred to the Department of Justice for 

possible criminal or civil enforcement 

actions The Department believes that 

this process, relying on the audit 

capabilities of the OIG and/or 

independent auditors, and the 

enforcement capabilities of both DOT 

and the Department of Justice, would 

meet Congress’ intent that only 

meritorious claims be reimbursed. 

Under section 185, expenses 

necessitated by independent verification 

and auditing activities may be paid with 

funds appropriated in the Act. While 

the Department does not anticipate that 

the verification activities performed by 

its analysts would necessitate payment 


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from the appropriated funds, the 

Department recognizes that the costs of 

an audit, particularly for larger claims, 

could be considerable. Therefore, the 

Department is proposing to retain the 

flexibility to recover the costs of audits 

from the amount of reimbursement that 

eligible applicants would have received 

if their claims did not necessitate audits 

in the first place. For example, if the 

cost to audit a questioned claim of 

$100,000 is $5,000, then the applicant 

would receive $95,000 in 

reimbursement once the Department 

determined that the payment was 

appropriate. 

Section 331.19 Who will approve 

reimbursement once an application has 

been received and a claim has been 

verified and/or audited? 

This part proposes to give the 

Assistant Secretary for Aviation and 

International Affairs authority to 

determine eligibility and authorize 

reimbursement under the Act. Expertise 

on aviation policy resides with the 

Assistant Secretary for Aviation and 

International Affairs. This official has 

administered similar programs and is 

supported by a professional staff of 

aviation analysts and economists who 

are knowledgeable on such matters. 

Subpart B—Application Procedures 

Section 331.21 What information must 

operators or providers submit in their 

applications for reimbursement? 

In order to calculate and support a 

reimbursement claim, the Department 

proposes that an applicant complete the 

form which is found in Appendix A and 

submit the information it requires, 

including eligibility information and a 

summary calculation of the financial 

data supporting an applicant’s claim for 

reimbursement, as shown in the 

following table (which is incorporated 

into Appendix A): 

FINANCIAL DATA

Column A Column B Column C 

Pre 9–11–01 Forecast or afterthe-fact estimate for the eligible period* 

Actual results for the eligible 

period* Column A minus Column B 

Line 1—Total Operating Revenues.

Line 2—Total Operating Expenses.

Line 3—Total Operating Income or (Loss).

Line 4—Non-operating Revenue.

Line 5—Non-operating Expenses.

Line 6—Non-operating income(loss).

Total—Line 3 plus line 6.

The Department proposes in the 

Background and Eligibility Form to 

require the submission of an applicant’s 

profit and loss statements, or such 

financial records generated as a routine 

matter for the use of management, for 

the years 1999 through 2005. Similarly, 

the Department proposes to require the 

submission of actual forecasts that 

applicants prepared for both these 

baseline periods and for any part of the 

reimbursement periods. The Department 

further proposes that, where 

appropriate, after-the-fact forecasts 

should be allowed. After-the-fact 

forecasts are discussed in more detail 

under subsection (f) of this section. 

All financial records submitted in 

support on an application would be 

subject to the same certification 

requirement as the other information 

that is submitted through the 

Background and Eligibility Form. These 

data would enable the Department to 

establish baseline business trends and 

forecast experience for applicants prior 

to the September 11, 2001 terrorist 

attacks, which would be used as 

benchmarks to test the reasonableness of 

the applicants’ reimbursement claims. 

The Department would use the 

applicant’s actual and forecast results 

for the appropriate reimbursement 

period, together with such sources as 

macroeconomic data, individualized 

applicant business trend information, 

and the applicant’s explanations, to 

make its determinations on the payment 

of claims. 

In calculating their revenues and 

expenses, the Department proposes that 

applicants utilize already existing 

financial data, supplemented as 

necessary by footnotes or explanations 

pertinent to the reimbursement 

application. Financial schedules, such 

as income statements, statements of 

operations, forecasts of operating 

results, budget documents or other 

similar information, may be used as the 

reference sources for completing the 

table in Appendix A. The Department 

suggests that these documents be a 

starting point under the assumption that 

most businesses maintain financial 

statements as a routine part of doing 

business, or for other reasons such as 

income tax preparation, loan 

applications, or contract negotiations. 

The Department believes that use of 

these documents, rather than requiring 

the completion of that detailed new 

forms, would facilitate the 

reimbursement process, especially for 

the smaller companies typically engaged 

in fewer activities. 

As the eligibility periods, for the most 

part, begin and end on days other than 

the first or last days of the month, 

quarter or year, the Department 

proposes in subsection (b) that data 

from already existing financial 

statements would be adjusted, on a prorata basis, to comply with the eligibility 

periods. 

The Department anticipates that some 

applicants may have prepared multiple 

forecasts for the same time period of 

time. Therefore, the Department 

proposes in subsection (c) that, if 

multiple forecasts were prepared, 

applicants utilize the one most recently 

approved, prior to September 11, 2001, 

so long as it was otherwise objective and 

reliable. 

In subsection (d), the Department 

proposes that information provided by 

applicants for use in the October 2005 

DOT study should not be merely recited 

for purposes of the application. While 


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the October 2005 DOT study noted that 

the losses it reported were likely to 

‘‘reasonably approximate’’ the general 

aviation leaseholder’s total losses (at 

least through January 23, 2004), it also 

advised that the financial data 

establishing the basis for a payment 

should ‘‘be subject to a more rigorous 

verification regime.’’ The Department 

proposes that applicants not simply rely 

on the estimates as then reported; if they 

do, the Department would have the right 

to reject their claim or forward it for full 

verification follow-up, including audit. 

Applicants who reiterate the losses 

reported in the October 2005 DOT study 

should make fully transparent the bases 

for those estimates, and provide a basis 

for testing the reasonableness of the 

estimates by supplying supporting data. 

In subsection (e) the Department 

proposes that failure to complete the 

required information constitutes 

grounds for a rejection. This subsection 

would adhere to Congress’s desire that 

the appropriated funds be expended 

prudently. The proposed language in 

subsection (e) leaves the Department 

discretion in determining whether or 

not the missing information warrants a 

rejection. Subsection (e) also seeks to 

clarify that the burden to substantiate 

claims should rest with applicants and 

not the Department. 

Subsection (f) proposes to allow the 

use of ‘‘after-the-fact’’ forecasts. If preSeptember 11, 2001 forecasts were not 

prepared at all, or prepared for less than 

the full reimbursement period, the rule 

would require applicants to make a 

good faith effort to quantify their 

expected operating results for the part of 

the reimbursement period not covered 

by its actual forecasts. The Department 

expects that not all of the fixed-based 

general aviation operators and providers 

of general aviation ground support 

services routinely forecasted projected 

revenues and expenses, (and, for those 

that did, they may have done so only in 

a rough or summary ‘‘year-end’’ fashion 

that would not permit ready 

calculations of losses due to September 

11-related events). Further, the losses 

eligible for reimbursement here can 

extend over several years, for which 

reliable forecasts may not be available, 

and even when firms utilize advanced 

forecasting methods, there is necessarily 

a range of reasonableness in any such 

exercise that makes precise 

determinations of loss impossible. 

However, the Department believes that 

Congress readily understood that 

precise calculations of losses cannot be 

practically obtained, and that goodfaith, carefully considered estimates 

would need to be used in determining 

losses, with those estimates subject to 

independent verification and audit to 

prevent overreaching and fraud. 

In subsection (g), the Department 

proposes that the Background and 

Eligibility Form, along with supporting 

financial documents, be certified as 

having been prepared under the 

supervision of the applicant’s President, 

Chief Executive Officer, or Chief 

Operating Officer, and as being true and 

accurate to the best of his or her 

knowledge. Subsection (g) further 

proposes that applicants acknowledge 

in their certifications that the 

submission of false or deceptive data is 

punishable under law by fine and/or 

imprisonment. 

To assist the Department with 

verification of claims, and to facilitate 

any necessary audits, the Department 

proposes in subsection (h) that 

applicants retain all materials that they 

relied upon to establish their claim for 

reimbursable losses. 

The Department proposes under 

subsection (i) to seek information on 

other specific types of expenses, 

including mitigating expenses, lobbying 

expenses, and special expenses. 

In subsection (j), the Department 

proposes that if an applicant believes 

the release by the Department to the 

public of information provided by the 

applicant would cause substantial harm 

to the applicant’s competitive position, 

the applicant may request that the 

Department hold such submissions 

confidential. In preference to ‘‘blanket’’

requests, confidentiality requests should 

be specific to particular data submitted, 

as it is very unlikely that all submitted 

data could cause competitive harm if 

released to the public. 

Section 331.23 In what format must 

applications be submitted? 

The Department proposes in 

subsection (a) that the Background and 

Eligibility Form found at Appendix A be 

submitted in hardcopy format and, if 

possible, electronic format. The 

Department also proposes to make the 

Background and Eligibility Form 

available in electronic format. 

In order to facilitate the review and 

manipulation of financial data for 

verification purposes within the 

Department, subsection (b) proposes 

that supporting financial records be 

submitted in electronic format. 

Under subsection (c), the Department 

proposes that faxes and e-mails not be 

accepted because of the difficulties they 

create in handling large volumes of 

documents. 

Section 331.25 To what address must 

operators or providers send their 

applications? 

In order to expedite the timely receipt 

and review of applications, the 

Department is proposing in subsection 

(b) that applications be submitted via an 

express package service (e.g., Federal 

Express, DHL, UPS). Alternatively, 

applicants may wish to hand deliver 

applications to the Department. The 

Department would make arrangements 

to receive such packages in a method 

that would be consistent with current 

Departmental office security procedures. 

The Department proposes that the 

address stated in the rule be mandatory. 

Accordingly, the Department proposes 

in subsection (c) to not accept 

applications sent elsewhere. 

Section 331.27 When are applications 

due under this part? 

Reimbursement is expected to provide 

potential applicants, particularly small 

entities, with significant relief. The 

Department expects that most, if not all, 

potential applicants are aware of the 

reimbursement available under this 

rule, and that they are in a position to 

quickly comply with its requirements in 

order to expedite their reimbursement 

payments. The Department would take 

steps to post all relevant information on 

its Web site and coordinate with the 

management at the five airports to 

ensure that all potential applicants are 

promptly advised of the issuance of the 

final rule. For the foregoing reasons, the 

Department proposes to expedite the 

time requirement for submitting 

applications. We believe that a period of 

30 calendar days from the date of 

publication of the final rule provides 

sufficient time to complete and submit 

an application. The Department 

welcomes comment from potential 

applicants on the sufficiency of this 

proposed period. 

Subpart C—Set-Aside for Operators or 

Providers at Certain Airports 

Section 331.31 What funds are 

available to applicants under this 

subpart? 

The 2006 Appropriation Act provides 

that, from the full $17 million 

appropriated, an amount not to exceed 

$5 million shall be available on a prorata basis, if necessary, to fixed-based 

general aviation operators and providers 

of general aviation ground support 

services at the three Maryland airports—

College Park, Potomac Airfield, and 

Washington Executive/Hyde Field. The 

Department tentatively construes this 

language as necessitating a separate 


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totaling of the eligible losses incurred at 

these three airports. 

Section 331.33 Which operators and 

providers are eligible for the set-aside 

under this subpart? 

The Department reads the plain 

language of the Act to restrict eligibility 

under this subpart to fixed-based 

general aviation operators and providers 

of general aviation ground support 

services at the three Maryland airports—

College Park, Potomac Airfield, and 

Washington Executive/Hyde Field. 

Section 331.35 What is the basis upon 

which operators and providers will be 

reimbursed through the set-aside under 

this subpart? 

For the $5 million set-aside for the 

three Maryland airports, the Department 

proposes to apply the same procedures 

set forth in subpart B of this part. The 

Department reads section 185 of the Act 

to require an additional procedure if 

total eligible losses at the three 

Maryland airports exceed $5 million. In 

the event that eligible losses at the three 

Maryland airports total more than $5 

million, the Department proposes that a 

proportionate amount should be paid to 

each eligible entity. For the reasons set 

forth in Section 331.17, the Department 

proposes to deduct from an applicant’s 

reimbursement amount the cost of any 

independent audit associated with a 

questioned claim, before distributing 

funds to the applicant. 

Regulatory Analyses and Notices 

This NPRM is nonsignificant for 

purposes of Executive Order 12866 and 

the Department of Transportation’s 

Regulatory Policies and Procedures. The 

NPRM proposes procedures to provide 

reimbursement to eligible applicants 

from funds appropriated by Congress. 

The Department administers a number 

of programs entailing similar 

procedures. This NPRM therefore does 

not represent a significant departure 

from existing regulations and policy. 

Furthermore, once implemented, this 

rule would have only minimal cost 

impacts on regulated parties. 

Federalism 

This rule does not directly affect 

States, the relationship between the 

national government and the States, or 

the distribution of power among the 

national government and the States, 

such that consultation with States and 

local governments is required under 

Executive Order 13132. 

Regulatory Flexibility Act 

The Department certifies that this rule 

would not have significant economic 

effects on a substantial number of small 

entities. In the aggregate, the cost among 

all applicants for gathering information 

and submitting an application should 

range from $2,501 to $5,003. 

Paperwork Reduction Act 

This rule contains information 

collection requirements subject to the 

Paperwork Reduction Act of 1995, 

specifically the application documents 

that fixed-based general aviation 

operators and providers of general 

aviation ground support services must 

submit to the Department to obtain 

compensation. The title, description, 

and respondent description of the 

information collections are shown 

below as well as an estimate of the 

annual recordkeeping and periodic 

reporting burden. Included in the 

estimate is the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

Title: Procedures (and Form) for 

Reimbursement of General Aviation 

Operators and Service Providers in 

Washington, DC Area. 

Need for Information: The 

information is required to administer 

the requirements of the Act. 

Use of Information: The Department 

of Transportation would use the data 

submitted by the fixed-based general 

aviation operators and providers of 

general aviation ground support services 

to determine their reimbursement for 

direct and incremental financial losses 

incurred while the airports were closed 

due to Federal Government actions 

taken after the terrorist attacks on 

September 11, 2001. 

Frequency: For this final rule, the 

Department would collect the 

information once from fix-based general 

aviation operators and providers of 

general aviation ground support 

services. 

Respondents: The respondents 

include an estimated 24 fixed-based 

general aviation operators and providers 

of general aviation ground support 

service. This estimate is based on the 

number of fixed-based general aviation 

operators and providers of general 

aviation ground support services 

identified in the October 2005 DOT 

study. 

Burden Estimate: Total applicant 

burden of between $2,501 and $5,003 

based on a burden of between three (3) 

and six (6) hours per applicant and a 

weighted average cost per hour of 

$34.74. 

Form(s): The data would be collected 

on the Form entitled, ‘‘Background and 

Eligibility Information for Applicants 

Filing for Reimbursement Under Section 

185 of Public Law 109–115,’’ and 

included at Appendix A to this part. 

Average Burden Hours per 

Respondent: A weighted average of four 

(4) hours per application. 

The Department has requested 

approval from the Office of Management 

and Budget for this information 

collection. 

Other Statutes and Executive Orders 

There are a number of other statutes 

and Executive Orders that apply to the 

rulemaking process that the Department 

must consider in all rulemakings, but 

which the Department has determined 

are not sufficiently implicated by this 

NPRM to require further action. 

Specifically, this NPRM does not impact 

the human environment under the 

National Environmental Policy Act, 

does not concern constitutionally 

protected property rights such that 

Executive Order 12630 is implicated, 

does not involve policies with tribal 

implications such the Executive Order 

13175 is invoked, does not concern civil 

justice reform under Executive Order 

12988, does not involve the protection 

of children from environmental risks 

under Executive Order 13045, and will 

not result in expenditures by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more in any one year. 

Comment Period 

This rule concerns a small group of 

potential applicants and others who 

might be interested, and the Department 

believes that most, if not all, are aware 

of the provisions of the statute. The 

Department therefore concludes that 30 

days is sufficient time for the receipt of 

comments from the public. 

List of Subjects in 14 CFR Part 331 

Air transportation, Airports, Airspace, 

Claims, Grant programs, Reporting and 

recordkeeping requirements. 

Issued this 19th day of September, 2006, at 

Washington, DC. 

Maria Cino, 

Acting Secretary of Transportation. 

For the reasons set forth in the 

preamble, the Department proposes to 

add 14 CFR part 331 to read as follows: 

PART 331—PROCEDURES FOR 

REIMBURSEMENT OF GENERAL 

AVIATION OPERATORS AND SERVICE 

PROVIDERS IN THE WASHINGTON, DC 

AREA 

Subpart A—General Provisions 

331.1 What is the purpose of this part? 

331.3 What do the terms used in this part 

mean? 


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331.5 Who may apply for reimbursement 

under this part? 

331.7 What losses will be reimbursed? 

331.9 What funds will the Department 

distribute under this part? 

331.11 What are the limits on 

reimbursement to operators or providers? 

331.13 What is the eligible reimbursement 

period under this part? 

331.15 How will other grants, subsidies, or 

incentives be treated by the Department? 

331.17 How will the Department verify and 

audit claims under this part? 

331.19 Who will approve reimbursement 

once an application has been received 

and a claim has been verified and/or 

audited? 

Subpart B—Application Procedures 

331.21 What information must operators or 

providers submit in their applications for 

reimbursement? 

331.23 In what format must applications be 

submitted? 

331.25 To what address must operators or 

providers send their applications? 

331.27 When are applications due under 

this part? 

Subpart C—Set-Aside for Operators and 

Providers at Certain Airports 

331.31 What funds are available to 

applicants under this subpart? 

331.33 Which operators and providers are 

eligible for the set-aside under this 

subpart? 

331.35 What is the basis upon which 

operators and providers will be 

reimbursed through the set-aside under 

this subpart? 

Appendix A to Part 331—Background and 

Eligibility Information for Applicants Filing 

for Reimbursement under Section 185 of 

Public Law 109–115 

Subpart A—General Provisions 

§ 331.1 What is the purpose of this part? 

The purpose of this part is to establish 

procedures to implement section 185 of 

the Transportation, Treasury, Housing 

and Urban Development, the Judiciary, 

the District of Columbia, and 

Independent Agencies Appropriation 

Act, 2006 (‘‘the Act’’ or ‘‘the 2006 

Appropriation Act’’), Public Law 109–

115, 119 Stat. 2396. Section 185 is 

intended to reimburse certain fixedbased general aviation operators or 

providers of general aviation ground 

support services at five airports in the 

Washington, DC metropolitan area for 

direct and incremental losses due to the 

actions of the Federal Government to 

close airports to general aviation 

operations following the terrorist attacks 

of September 11, 2001. 

§ 331.3 What do the terms used in this part 

mean? 

The following terms apply to this 

part: 

Airport means Ronald Reagan 

Washington National Airport; College 

Park Airport in College Park, Maryland; 

Potomac Airfield in Fort Washington, 

Maryland; Washington Executive/Hyde 

Field in Clinton, Maryland; or 

Washington South Capitol Street 

Heliport in Washington, DC. 

Closed or closure means the period of 

time until the first general aviation 

operations were generally permitted at 

Ronald Reagan Washington National 

Airport; until November 30, 2005 at 

Washington South Capitol Street 

Heliport; or the earliest that transient 

traffic was generally permitted to return 

to the three Maryland airports. 

Department means the U.S. 

Department of Transportation and all its 

components, including the Office of the 

Secretary (OST) and the Federal 

Aviation Administration (FAA). 

Direct and incremental losses means 

losses incurred by a fixed-based general 

aviation operator or a provider of 

general aviation ground support services 

as a result of the Federal Government’s 

closure of an airport following the 

terrorist attacks against the United 

States on September 11, 2001. These 

losses do not include any losses that 

would have been incurred had the 

terrorist attacks on the United States of 

September 11, 2001 not occurred. 

Fixed-based general aviation operator 

means an entity based at a particular 

airport that provides services to and 

support for general aviation activities, 

including the provision of fuel and oil, 

aircraft storage and tie-down, airframe 

and engine maintenance, avionics 

repair, baggage handling, deicing, and 

the provision of air charter services. The 

term does not include an entity that 

exclusively provides products for 

general aviation activities (e.g. a parts 

supplier). 

Forecast or forecast data means a 

projection of revenue and expenses 

during the eligible reimbursement 

period had the attacks of September 11, 

2001 not occurred. 

Incurred means to become liable or 

subject to (as in ‘‘to incur a debt’’). 

Loss means something that is gone 

and cannot be recovered. 

Provider of general aviation ground 

support services means an entity that 

does not qualify as a fixed-based general 

aviation operator but operates at a 

particular airport and supplies services, 

either exclusively or predominantly, to 

support general aviation activities, 

including flight schools or security 

services. The term does not include an 

entity that exclusively provides 

products for general aviation activities 

(e.g. a parts or equipment supplier). 

You means fixed-based general 

aviation operators or providers of 

general aviation ground support 

services. 

§ 331.5 Who may apply for reimbursement 

under this part? 

If you are an eligible fixed-based 

general aviation operator or provider of 

general aviation ground support services 

(collectively ‘‘operators or providers’’) at 

an eligible airport or airports in the 

Washington, DC area, you may apply for 

reimbursement for direct and 

incremental losses under this part. If 

you are applying for reimbursement 

based on losses at more than one 

airport, then you must submit separate 

applications for each airport. For 

example, if you are a provider of general 

aviation ground support services at 

Ronald Reagan Washington National 

Airport and Potomac Airfield in Fort 

Washington, Maryland, you must 

submit two separate applications. 

§ 331.7 What losses will be reimbursed? 

(a) You may be reimbursed for the 

difference between the net income you 

actually or reasonably forecast for the 

eligible reimbursement period and the 

actual net income you earned during the 

eligible reimbursement period. If you 

did not forecast net income for the 

eligible reimbursement period or any 

part of the eligible reimbursement 

period, you may be reimbursed for the 

difference between what you can show 

you would have reasonably expected to 

earn as net income during that period 

had the airport at which you are or were 

an operator or provider not closed, and 

the actual net income you earned during 

the eligible reimbursement period. 

(b) If you make a claim for 

extraordinary, non-recurring, or unusual 

adjustments, you must demonstrate that 

such adjustments were fully attributable 

to the Federal Government’s closure of 

the five Washington-area airports, are in 

conformity with Generally Accepted 

Accounting Principles, were fully borne 

within the statutory reimbursement 

period, that the loss was not 

discretionary in nature, and that 

reimbursement would not be 

duplicative of other relief. 

(c) A temporary loss that you 

recovered after the attacks of September 

11, 2001, or that you expect to recover, 

is not eligible for reimbursement under 

this part. You will not be reimbursed for 

those losses incurred through your own 

fault, negligence, or violation of law, or 

because of the actions of a third party 

(e.g. an airport). 

(d) If you engaged in any non-aviation 

income-producing activities after 

September 11, 2001, such income must 

be reported under question number 5 on 

the Background and Eligibility Form. 


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(e) So called ‘‘cost savings’’ claims 

(i.e. increasing the claimed amount of 

reimbursement by reducing actual 

expenses to ‘‘adjust’’ for savings in 

expense categories asserted not to have 

been affected by the terrorist attacks) are 

not eligible for reimbursement. 

(f) You cannot claim reimbursement 

for the lost time value of money (i.e. 

interest on lost profits for the period of 

time the funds were not available for 

your use). 

(g) Lobbying fees and attorneys’ fees 

are not eligible for reimbursement. 

(h) Your calculation of revenues, 

expenses and income must be based on 

financial documents maintained in the 

ordinary course of business that were 

prepared for the eligible reimbursement 

period, such as income statements, 

statements of operations, profit-and-loss 

statements, operating forecasts, budget 

documents or other similar documents. 

§ 331.9 What funds will the Department 

distribute under this part? 

The Department will distribute the 

full amount of reimbursement it 

determines is payable to you under 

section 185 of the Act. 

§ 331.11 What are the limits on 

reimbursement to operators or providers? 

(a) You are eligible to receive 

reimbursement subject to the subpart C 

set-aside for eligible operators or 

providers at College Park Airport in 

College Park, Maryland; Potomac 

Airfield in Fort Washington, Maryland; 

and Washington Executive/Hyde Field 

in Clinton, Maryland. The amount 

available to you as reimbursement may 

be reduced to cover the cost of 

independent verification and auditing, 

as set forth in Section 331.17. 

(b) If you receive more reimbursement 

than the amount to which you are 

entitled under section 185 of the Act or 

the subpart C set-aside, the Department 

will notify you of the basis for the 

determination and the amount that you 

must repay to the Department. The 

Department will follow collection 

procedures under the Federal Claims 

Collection Act of 1966 (31 U.S.C. 3701 

et seq.) to the extent required by law, in 

recovering such overpayments. 

(c) Payment will not be made to you 

until you have agreed to release the 

United States Government for all claims 

for financial losses resulting from the 

closure of the five airports in the 

Washington, DC area. The Department 

will provide a release form to applicants 

that must be completed before any 

payment is made under Section 185. 

§ 331.13 What is the eligible 

reimbursement period under this part? 

The eligible reimbursement period for 

direct and incremental losses differs by 

airport: 

(a) For Ronald Reagan Washington 

National Airport the eligibility period 

for reimbursement is from September 

11, 2001 until October 18, 2005. 

(b) For College Park Airport in College 

Park, Maryland, the eligibility period for 

reimbursement is from September 11, 

2001 until February 13, 2005. 

(c) For Potomac Airfield in Fort 

Washington, Maryland, the eligibility 

period for reimbursement is from 

September 11, 2001 until February 13, 

2005. 

(d) For the Washington South Capitol 

Street Heliport in Washington, DC, the 

eligibility period for reimbursement is 

from September 11, 2001 to November 

30, 2005. 

(e) For Washington Executive/Hyde 

Field in Clinton, Maryland, there are 

two eligibility periods for 

reimbursement. The first period is from 

September 11, 2001 until May 16, 2002. 

The second period is from September 

29, 2002 until February 13, 2005. 

§ 331.15 How will other grants, subsidies, 

or incentives be treated by the Department? 

Grants, subsidies, or incentives that 

you have received during the eligible 

reimbursement period, either directly or 

indirectly, from Federal, State, and local 

entities, to reimburse you for the cost of 

operations and capital improvements 

associated with implementing security 

programs, or maintaining or providing 

general aviation services and facilities, 

will be considered revenues and should 

be reported as such on your application. 

§ 331.17 How will the Department verify 

and audit claims under this part? 

Departmental staff will initially 

review each claim in detail, and contact 

you should questions arise. If they are 

unable to satisfactorily resolve the 

matter following consultation with you, 

your claim will be forwarded to the 

Office of the Inspector General, or 

another independent auditor, for 

verification and, if necessary, an audit. 

In addition, the Department may consult 

with, or make referrals to, other 

government agencies, including the 

Department of Justice. 

§ 331.19 Who will approve reimbursement 

once an application has been received and 

a claim has been verified and/or audited? 

The Assistant Secretary of Aviation 

and International Affairs will make a 

final determination of your eligibility 

and authorize reimbursement to you. 

Subpart B—Application Procedures 

§ 331.21 What information must operators 

or providers submit in their applications for 

reimbursement? 

(a) You must submit the form entitled 

Background and Eligibility Information 

for Applicants Filing for Compensation 

Under Section 185 of Public Law 109– 

115 (‘‘Background and Eligibility 

Form’’), which is found in Appendix A 

to this part, along with the profit and 

loss statements, forecasts, or other 

financial documents (collectively 

‘‘supporting financial documents’’) 

generated as a routine matter for the 

purposes of managing your business, 

and relied upon in completing your 

application. 

(b) To the extent that your calculation 

of revenues, expenses and incomes are 

based on monthly records, you must 

adjust your calculation, on a pro-rata 

basis, to conform to the eligibility 

period. For example, if you utilize a 

monthly financial record to prepare a 

calculation of your September 2001 

revenues, you should apportion your 

results for the period between 

September 11 and September 30, 2001. 

(c) If multiple forecasts were prepared 

for the same period, you must utilize the 

one most recently approved, prior to 

September 11, 2001, so long as it is 

otherwise objective and reliable. 

(d) If you provided information to the 

Department as part of its study entitled 

Estimated Financial Losses to Selected 

General Aviation Entities in the 

Washington, DC Area (Oct. 2005) (‘‘2005 

General Aviation Study’’), you should 

not simply reiterate the same data 

provided to the Department at that time; 

you must provide the most current 

information that is available to you. If 

you do reiterate that same data provided 

to the Department for the 2005 General 

Aviation Study, the basis for your 

estimates must be verifiable from the 

supporting financial documents that 

you submit with your application. 

(e) Failure to include all required 

information will delay consideration of 

your application by the Department and 

may result in a rejection. You have the 

burden to document and substantiate 

your claim; the Department will provide 

reimbursement only if it is satisfied that 

payment is fully supported. 

(f) If, prior to September 11, 2001, you 

did not prepare a forecast covering the 

entire eligible reimbursement period, or 

if the forecast you completed is not 

relevant to the information required by 

this part, you may submit an ‘‘after-thefact’’ estimate of the amount that you 

would have reasonably expected to 

accrue as net income had the airport at 

which you are or were an operator or 


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provider not closed. ‘‘After-the-fact’’

estimates must consider items particular 

to your business, including labor 

agreements and the terms of contracts in 

place at the time of the eligible 

reimbursement period, short-term or 

long-term budget documents, 

documents submitted in support of 

applications for loans or lines-of-credit, 

and other similar documents. You must 

explain the methodology that you used 

when preparing your reconstructed 

forecast. 

(g) You must certify that the 

information on the Background and 

Eligibility Form and all of the 

supporting financial documents that 

you are submitting is true and accurate 

under penalty of law and that you 

acknowledge that falsification of 

information may result in prosecution 

and the imposition of a fine and/or 

imprisonment. 

(h) You must retain all materials you 

relied upon to establish your claim for 

losses. 

(i) You must provide mitigating 

expenses, lobbying expenses, and 

special expenses, as well as 

extraordinary adjustments, as instructed 

on the Background and Eligibility Form. 

(j) If you believe that the release of 

financial information provided to the 

Department in support of your 

application would cause you substantial 

harm if released by the Department to 

the public upon an appropriately made 

request, you may request that the 

Department hold portions of your 

application as confidential. Your 

request must specify the portions of 

your application that should be held by 

the Department as confidential, and you 

must provide an explanation as to how 

the release of such information would 

cause you substantial harm. 

§ 331.23 In what format must applications 

be submitted? 

(a) Appendix A of this part must be 

submitted in hardcopy format and, if 

possible, in electronic format. The 

Department has made available an 

electronic version of this form at the 

following Web site: http:// 

ostpxweb.dot.gov/aviation/index.html. 

(Click on ‘‘Programs.’’) 

(b) All supporting financial 

documents must be submitted in 

electronic format utilizing a 3.5′′ inch 

floppy disk, compact disk, or flash 

memory stick. 

(c) Faxed and e-mailed applications 

are not acceptable and will not be 

considered. 

§ 331.25 To what address must operators 

or providers send their applications? 

(a) You must submit your application 

and all required supporting information, 

to the following address: U.S. 

Department of Transportation, Aviation 

Relief Desk (X–50), 400 7th Street, SW., 

Washington, DC 20590. 

(b) Your application must be 

submitted via courier or an express 

package service, such as Federal 

Express, UPS, or DHL. 

(c) If complete applications are not 

submitted to the address in paragraph 

(a) of this section, they will not be 

accepted by the Department. 

§ 331.27 When are applications due under 

this part? 

You must submit your application 

within 30 calendar days from the 

effective date of the final rule. 

Subpart C—Set-Aside for Operators 

and Providers at Certain Airports 

§ 331.31 What funds are available to 

applicants under this subpart? 

The Department is setting aside a sum 

of $5 million to reimburse eligible 

operators or providers, as set forth in 

section 185 of the Act. 

§ 331.33 Which operators and providers 

are eligible for the set-aside under this 

subpart? 

Operators or providers at the 

following three airports during the 

eligible reimbursement periods are 

eligible for the set-aside: 

(a) College Park Airport in College 

Park, Maryland; 

(b) Potomac Airfield in Fort 

Washington, Maryland; and 

(c) Washington Executive/Hyde Field 

in Clinton, Maryland. 

§ 331.35 What is the basis upon which 

operators or providers will be reimbursed 

through the set-aside under this subpart? 

Operators or providers eligible under 

this subpart will be reimbursed 

pursuant to the same procedures set 

forth in subpart B of this part. If total 

losses for all eligible claims at the three 

airports set forth in § 331.31 of this part 

are less than $5 million, then such 

claims will be paid in full. If the total 

losses for all eligible claims at the three 

airports set forth in § 331.31 of this part 

exceed $5 million, then the total losses 

will be divided on a pro rata basis, and 

a proportionate amount for each claim 

will be distributed to applicants. 

BILLING CODE 4910–9X–P 


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Instructions for Completing 

Background and Eligibility Information 

for Applicants Filing for 

Reimbursement Under Section 185 of 

Public Law 109–115 

1. Applicant name 

This is the person or legal entity who 

undertakes to act as a fixed-based general 

aviation operator or who provides general 

aviation ground support services, directly or 

by a lease or any other arrangement. 

2. Applicant address 

The applicant address is that location 

within the local tax authority jurisdiction 

that is held out to the public as the business 

or airport address. 

3. Airport of operation on September 11, 

2001 

This question asks the applicant to identify 

those airports in the Washington, DC area 

where it provided either fixed-based general 

aviation services or general aviation ground 

support services on September 11, 2001. 

Check as many airports as you served on 

September 11, 2001. 

4. Briefly describe the nature of the 

applicant’s operations as a fixed-based 

general aviation operator or a provider of 

general aviation ground support services at 

each airport during the eligible period for 

reimbursement. 

You should describe the specific fixedbased general aviation services or general 

aviation ground support services that you 

provided at each of the airports. 

5. Did the applicant or any part of it conduct 

non-fixed-based general aviation activities 

or provide non-aviation ground support 

services during the 2001 through 2005 

period? 

Check ‘‘Yes’’ if you conducted any nonfixed-based general aviation activities or 

provided non-aviation ground support 

services during the 2001 through 2005 

period. Describe the activities that you 

undertook during this period that did not 

directly support general aviation at the 

airport. 

6. Briefly describe how the events of 

September 11, 2001 affected the applicant’s 

operations as a fixed-based general aviation 

operator or a provider of general aviation 

ground support services. 

You should describe how the level and 

conduct of your operations as a fixed-based 

general aviation operator or your operations 

as a provider of general aviation ground 

support services were changed as a result of 

September 11, 2001 and the ensuing security 

restrictions that were imposed by the Federal 

Government. 

7. Did the applicant undertake any actions 

to lessen or offset the impact of the Federal 

Government’s closure of airports in the 

Washington, DC area following the attacks of 

September 11, 2001? 

Check ‘‘Yes’’ if you attempted to minimize 

the impact that the terrorist attacks of 

September 11, 2001, had on your business. 

Briefly describe your actions and the effect 

that they had on you. Include any activities 

or services undertaken after September 11, 

2001 that did not provide support for general 

aviation but that did provide revenues to 

sustain your business. 


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8. Has the applicant filed income taxes for 

any period between 1999 and 2005? 

Check ‘‘Yes’’ if you filed income taxes 

during this period, and indicate the filing 

status under which you filed your income tax 

returns. 

9. Baseline Financial Data and Forecasts. 

Attach to this Appendix copies of your profit 

and loss statements, or such financial 

records as you generated as a routine matter 

for the use of management, for the periods 

1999 through 2005, that show your actual 

financial results. Similarly, attach copies of 

any actual forecasts that you prepared for 

both these baseline periods and for any part 

of the reimbursement periods that were 

prepared prior to September 11, 2001. 

This question directs applicants to provide 

the Department with certain financial 

documents in order to verify and substantiate 

their claims. Documents that you have 

already prepared should be sufficient. When 

necessary, you should supplement these 

documents with footnotes or explanations 

that are pertinent to your reimbursement 

claim. The financial data may include such 

documents as income statements, statements 

of operations, forecasts of operating results, 

income projections, pro forma budget 

projections, budget documents, tax 

preparation support material, information 

presented in investment perspectives and 

registrations, or other similar information 

that in whole or in part cover the period from 

1999 through 2005. 

10. By regulation, the requested amount of 

reimbursement claimed below must be based 

on a comparison of actual operating results 

(revenues, expenses and profits or losses) 

with a company forecast of operating results 

that existed prior to September 11, 2001 if 

such a forecast was actually prepared. If the 

applicant did not prepare any such preSeptember 11 forecasts, or prepared them 

for less than the full reimbursement period, 

an after-the-fact estimate of what the 

applicant can document it reasonably 

expected to earn during the remaining 

eligible period may be submitted. If such an 

after-the-fact estimate is used, describe 

below the period for which it applies and the 

methodology that was used to determine it. 

Indicate here whether an ‘‘after-the-fact’’

forecast was prepared, and briefly describe 

the methodology used in preparing the 

forecast. Your methodology must take into 

account items relevant to your businesses, 

such as the terms of existing contracts, shortterm or long-term budget documents, 

documents submitted in support of 

applications for loans or lines-of-credit, 

existing labor agreements and leasing 

agreements, and other similar types of 

documents. 

In preparing your ‘‘after-the-fact’’ forecast, 

you may wish to consult a July 2001 report 

prepared for the FAA, entitled Forecasting 

Aviation Activity by Airport. This report was 

prepared by GRA, Incorporated (GRA), for 

the FAA’s Office of Aviation Policy Plans 

Statistical and Forecast Branch (APO–110). 

While the Department recognizes that fixed 

based general aviation operators and 

providers of general aviation ground support 

services are different entities from airports, 

the Department believes that this document 

offers relevant guidance to applicants who do 

not prepare forecasts as part of regular 

business operations. This July 2001 report 

may be accessed at: 

http://www.faa.gov/data_statistics/ 

aviation_data_statistics/forecasting/media/ 

AF1.doc. 

The July 2001 report explains the basic 

steps usually utilized in preparing forecasts, 

including: Identifying parameters and 

measures to forecast; collecting forecast 

information of expected revenues or 

expenses, including budgets; gathering and 

evaluating data; selecting a forecast method 

(such as regression and trend analysis, share 

analysis, or exponential smoothing); applying 

methods and evaluating results; and 

summarizing and documenting the results. 

Additionally, data sources to assist you in 

making adjustments to your forecast are 

available from the Department’s Web site at 

http://ostpxweb.dot.gov/aviation/index.html 

(Click on ‘‘Programs’’). The Department notes 

that, while it can answer questions for 

applicants that might arise while applicants 

develop forecasts, the Department is not in a 

position to propose or develop projections for 

applicants. 

11. Reimbursement Claim 

For purposes of completing the 

information in the reimbursement claim 

table, total operating revenues (line 1) 

include the inflow of funds to the applicant 

resulting from the sale of goods and services 

related to the activities of a fixed-based 

operator or a provider of general aviation 

services. Examples include, but are not 

limited to monetary amounts or value 

received for providing: Aircraft fuel or oil; 

delivery of aircraft fuel or oil; transient and 

long-term storing, tie down parking and 

sheltering of aircraft; maintenance, 

inspection, checking, upgrading of aircraft 

and aircraft related equipment and for 

polishing and cleaning property and 

equipment; for providing flight instruction 

services and materials; and miscellaneous 

items for purchase such as maps, books, 

flight clothing, sectional charts, devices and 

parts for aircraft, food services, hospitality 

services, auto rentals, aircraft custodial and 

sanitation services. 

Total operating expenses (line 2) include 

the cost to the applicant of providing the 

goods and services related to the activities of 

a fixed-based operator or a provider of 

general aviation services. Examples include, 

but are not limited to: Labor costs for all 

categories of employees (including 

compensation, vacation and sick leave pay, 

medical benefits, workmen’s compensation 

contributions, accruals or annuity payments 

to pension funds, training reimbursements, 

professional fees, licensing fees, educational 

or recreational activities for the benefit of the 

employee, stock incentives, etc.); the cost of 

fuel and oil including nonrefundable aircraft 

fuel and oil taxes; insurance; flight and 

ground equipment parts; general services 

purchased for flight or ground equipment 

maintenance; depreciation of flight and 

ground equipment; amortization of 

capitalized leases for flight and ground 

equipment; provisions for obsolescence and 

deterioration of spare parts; and rental 

expenses of flight and ground equipment. 

Advertising, promotion and publicity 

expenses, landing fees, clearance, customs 

and duties, utilities, bookkeeping, 

accounting, recordkeeping and legal services 

are also part of the total operating expenses. 

For reasons set forth elsewhere in section 

331.7 of this Part, you may not include 

lobbying expenses. 

Total operating income or loss is calculated 

by subtracting the total operating expenses 

from the total operating revenues. If the total 

operating revenues exceed the total operating 

expenses, the calculation results in a total 

operating income. If the total operating 

expenses exceed the total operating revenues, 

the calculation results in a total operating 

loss. 

Non-operating revenue and expenses 

include: Income and loss incident to 

commercial ventures not inherently related 

to the direct provision of fixed-based 

operator services or general aviation ground 

support services; other revenues and 

expenses attributable to financing or other 

activities that are extraneous to and not an 

integral part of general aviation services; and 

special recurrent items of a nonperiod nature. 

Examples of non-operating income 

include, but are not limited to: interest 

income; foreign exchange gains; equity 

income of an investor controlled company; 

intercompany transactions; dividend income; 

net unrealized gains on marketable equity 

securities; and capital gains. 

Examples of non-operating expenses 

include, but are not limited to: interest on 

long-term debt and capital leases; interest on 

short-term debt; imputed interest capitalized; 

amortization of discount and expense on 

debt; foreign exchange losses; fines or 

penalties imposed by governmental 

authorities; costs related to property held for 

future use; donations to charities, social and 

community welfare purposes; losses on 

reacquired and retired or resold debt 

securities; and losses on uncollectible nonoperating receivables. 

Non-operating income is the result of 

subtracting the non-operating expenses from 

the non-operating revenues. 

Total income in the sum of the total 

operating income or (loss)(line 3) plus line 6 

non-operating income. 

The difference between column A and B is 

the basis for column C. This constitutes the 

total amount of your claim for 

reimbursement. 

As the eligibility periods, for the most part, 

begin and end on days other than the first or 

last days of the month, quarter or year, data 

from already existing financial statements 

must be adjusted, on a pro-rata basis, to 

reflect the eligibility periods. For example, 

the period of eligibility for all applicants 

begins on September 11, 2001 and therefore, 

the only time period during the month of 

September that is eligible for reimbursement 

is September 11 through September 30, a 

period of 20 days. Applicants should be 

prepared to show both how they apportioned 

such financial data into the reimbursement 

periods, and why they chose the 

apportionment approach used. Applicants 


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Federal Register / Vol. 71, No. 192 / Wednesday, October 4, 2006 / Proposed Rules 58569 

can then use these estimates for the specified 

periods at the beginning and end of the 

eligible period to add to the financial 

amounts for 2002, 2003, and 2004 to 

calculate the total amounts sought in 

Appendix A. 

12. Has the applicant or any of its 

subsidiaries or affiliates received grants, 

subsidies, incentives or similar payments 

from local, state, or Federal governmental 

entities in support of the security, 

maintenance and provision of general 

aviation services and facilities furnished in 

response to the events of September 11, 

2001? (This includes payments under the 

Aviation and Transportation Security Act of 

2001 (Public Law 107–38) and the Airport 

Improvement Program under the Airport 

and Airway Improvement Act of 1982 

(Public Law 97–248).) 

This question requires that you disclose all 

grants, subsidies, or incentives that you 

received during the eligible reimbursement 

period, either directly or indirectly, from 

Federal, State, and local entities, to 

reimburse you for the cost of operations and 

capital improvements associated with 

implementing security programs, or 

maintaining or providing general aviation 

services and facilities. 

13. Has the applicant or any of its 

subsidiaries or affiliates incurred lobbying 

expenses, mitigating expenses, or special 

expenses (as described in the section 

captioned ‘‘What information must 

operators or providers submit in their 

applications for reimbursement?’’), or 

extraordinary adjustments. 

Check ‘‘Yes’’ if you incurred any such 

expenses or experienced any such 

adjustments. You must briefly describe the 

nature of such expenses and adjustments, 

including the amounts. Additionally, you 

must indicate whether or not such expenses 

or adjustments have been included in or 

excluded from the totals in the table at item 

number 11. 

Lobbying includes any amount paid to any 

person for influencing or attempting to 

influence an officer or employee of any 

agency, a Member of Congress, an officer or 

employee of Congress, or an employee of a 

Member of Congress. 

Mitigating expenses include the utilization 

of property, the provision of services and the 

sale of goods that were undertaken to 

mitigate losses arising from the Federal 

Government’s closure of airports attendant to 

the September 11, 2001 attack. These could 

include expenses incurred for the provision 

of services and sale of goods moved from 

restricted airports to unrestricted airports or 

compensation for non-aviation oriented 

goods and services provided at restricted 

airports. Mitigating expenses may also 

include expenses for aviation-related fixed 

assets or capital utilized outside of the 

restricted airport. 

Special expenses include, but are not 

limited to, moving expenses, additional 

security equipment and facilities, and loss on 

sale of assets that arose from the direct 

imposition of restrictions during the period 

September 11, 2001 through the applicable 

eligible date. Any item reported as Special 

Expenses shall not also be expensed in other 

expense categories that are reflected in the 

calculation of the reimbursement claim. 

Details regarding special expenses should be 

noted in footnotes. 

Extraordinary adjustments are events or 

transactions that are material to your 

business and unusual in nature and 

infrequent in occurrence. 

14. Certification 

You must certify that all information 

contained on the Background and Eligibility 

Form and the documents submitted in 

support of your application (e.g. profit and 

loss statements, actual forecasts, after-the-fact 

forecasts, etc.) are accurate. This certification 

is made under penalty of law. Falsification 

may be grounds for monetary and/or criminal 

sanctions. This certification must be made by 

a company CEO, COO, or CFO. 

[FR Doc. 06–8250 Filed 10–3–06; 8:45 am] 

BILLING CODE 4910–9X–C 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

21 CFR Part 1312 

[Docket No. DEA–282P] 

RIN 1117–AB03 

Authorized Sources of Narcotic Raw 

Materials 

AGENCY: Drug Enforcement 

Administration (DEA), Department of 

Justice. 

ACTION: Notice of proposed rule making 

(NPRM). 

SUMMARY: DEA proposes to amend its 

regulations to update the list of nontraditional countries authorized to 

export narcotic raw materials (NRM) to 

the United States. This change would 

replace Yugoslavia with Spain. This 

proposed rule seeks to maintain a 

consistent and reliable supply of 

narcotic raw materials from a limited 

number of countries consistent with 

United States obligations under 

international treaties and resolutions. 

DATES: Written comments must be 

postmarked, and electronic comments 

must be sent, on or before December 4, 

2006. 

ADDRESSES: To ensure proper handling 

of comments, please reference ‘‘Docket 

No. DEA–282P’’ on all written and 

electronic correspondence. Written 

comments being sent via regular mail 

should be sent to the Deputy Assistant 

Administrator, Office of Diversion 

Control, Drug Enforcement 

Administration, Washington, DC 20537, 

Attention: DEA Federal Register 

Representative/Liaison and Policy 

Section (ODL). Written comments sent 

via express mail should be sent to DEA 

Headquarters, Attention: DEA Federal 

Register Representative/ODL, 2401 

Jefferson-Davis Highway, Alexandria, 

VA 22301. Comments may be directly 

sent to DEA electronically by sending an 

electronic message to 

dea.diversion.policy@usdoj.gov. 

Comments may also be sent 

electronically through http:// 

www.regulations.gov using the 

electronic comment form provided on 

that site. An electronic copy of this 

document is also available at the 

http://www.regulations.gov Web site. 

DEA will accept attachments to 

electronic comments in Microsoft word, 

WordPerfect, Adobe PDF, or Excel file 

formats only. DEA will not accept any 

file formats other than those specifically 

listed here. 

FOR FURTHER INFORMATION CONTACT: 

Christine A. Sannerud, Ph.D., Chief, 

Drug and Chemical Evaluation Section, 

Office of Diversion Control, Drug 

Enforcement Administration, 

Washington, DC 20537, Telephone (202) 

307–7183. 

SUPPLEMENTARY INFORMATION: 

Legal Authority 

DEA enforces the Controlled 

Substances Act (CSA) (21 U.S.C. 801 et 

seq.), as amended. DEA regulations 

implementing this statute are published 

in Title 21 of the Code of Federal 

Regulations (CFR), parts 1300 to 1399. 

These regulations are designed to 

establish a framework for the legal 

distribution of controlled substances to 

deter their diversion for illegal purposes 

and to ensure an adequate and 

uninterrupted supply of these drugs for 

legitimate medical purposes. The CSA 

and its implementing regulations are 

consistent with United States treaty 

obligations that, among other things, 

address the production, import, and 

export of controlled substances. 

Controlled Substances 

Controlled substances are drugs that 

have a potential for abuse and 

addiction; these include substances 

classified as opiates, stimulants, 

depressants, hallucinogens, anabolic 

steroids, and drugs that are immediate 

precursors of these classes of 

substances. DEA lists controlled 

substances in 21 CFR part 1308. The 

substances are divided into five 

schedules: Schedule I substances have a 

high potential for abuse and have no 

accepted medical use. These substances 

may only be used for research, chemical 

analysis, or manufacture of other drugs. 

Schedule II–V substances have an 

accepted medical use and also have a 


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