```

[Federal Register Volume 78, Number 175 (Tuesday, September 10, 2013)]
[Notices]
[Pages 55330-55336]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-21905]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

RIN 2120-AF90

Policy Regarding Airport Rates and Charges

AGENCY: Department of Transportation, Federal Aviation Administration.

ACTION: Notice; publication of entire policy statement as amended.

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SUMMARY: This action publishes the entire Department of Transportation 
(``Department''), Federal Aviation Administration (``FAA''), ``Policy 
Regarding Airport Rates and Charges'' (``Policy'') to reflect all 
deletions from and amendments to the policy to date. The Policy was 
originally published in the Federal Register on June 21, 1996 (``1996 
Rates and Charges Policy''). In response to a subsequent petition for 
review, the U.S. Court of Appeals for the District of Columbia Circuit 
issued a decision in 1997 that vacated the challenged provisions of the 
1996 Rates and Charges Policy and the Secretary's supporting discussion 
in the preamble. In 2008, the Department and FAA adopted three 
amendments to the Policy, to allow operators of congested airports to 
use landing fees to provide incentives to air carriers to use the 
airport at less congested times or to use alternate airports to meet 
regional air service needs. The Federal Register notice publishing 
those amendments set out the amendments, but did not publish an entire 
version of the policy as amended. As a convenience for the public and 
for regulated entities, this notice publishes the entire Policy 
Regarding Airport Rates and Charges currently in effect in a single 
document. The FAA is not adopting or proposing any new amendments to 
the Policy in this notice.

DATES: This Policy statement reflects the most recent amendments to the 
Policy Regarding Airport Rates and Charges, which took effect on July 
14, 2008.

ADDRESSES: To read background documents or comments received, go to 
http://www.regulations.gov at any time or to Room W12-140 on the ground 
floor of the West Building, 1200 New Jersey Avenue SE., Washington, DC, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Randall S. Fiertz, Director, Office of 
Airport Compliance and Management Analysis, ACO-1, Federal Aviation 
Administration, 800 Independence Avenue SW., Washington, DC 20591, 
telephone (202) 267-3085; facsimile (202) 267-5769; email 
Randall.Fiertz@faa.gov.

SUPPLEMENTARY INFORMATION: 

Availability of Documents

    You can get an electronic copy of this notice and all other 
documents in this docket using the Internet by:
    (1) Searching the Federal eRulemaking portal (http://www.regulations.gov/search);
    (2) Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies; or
    (3) Accessing the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.

Authority for This Proceeding

    This notice is published under the authority described in Subtitle 
VII, Part B, Chapter 471, Sec.  47129 of Title 49 United States Code. 
Under subsection (b) of Sec.  47129, the Secretary of Transportation is 
required to publish policy statements establishing standards or 
guidelines the Secretary will use in determining the reasonableness of 
airport fees charged to airlines under Sec.  47129.

Background

    The Department of Transportation (Department) and the Federal 
Aviation Administration (FAA) published a Policy Regarding Airport 
Rates and Charges in the Federal Register on June 21, 1996 (61 FR 
31994). (``1996 Rates and Charges Policy''). The statement of policy 
was required by Sec.  113 of the FAA Authorization Act of 1994, Public 
Law 103-305 (August 23, 1994), now codified at 49 U.S.C., 47129, 
Specific sections of the 1996 Rates and Charges Policy (namely, 
paragraphs 2.4, 2.4.1, 2.4.1(a), 2.5.1, 2.5.1(a)-(e), 2.5.3(a), 2.6 and 
other portions of the Policy necessarily implicated by the Court's 
holding) were subsequently vacated by the United States Court of 
Appeals for the District of Columbia Circuit in Air Transport Ass'n of 
America v. DOT, 119 F.3d 38, amended by 129 F.3d 625 (D.C. Cir. 1997). 
In July 2008, following notice and opportunity for public comment, the 
Department and FAA adopted three

[[Page 55331]]

amendments to the Policy (73 FR 40430, July 14, 2008). The amendments 
are intended to provide greater flexibility to operators of congested 
airports to use landing fees to provide incentives to air carriers to 
use the airport at less congested times or to use alternate airports to 
meet regional air service needs. The amendments to the Policy were 
affirmed by the United States Court of Appeals for the District of 
Columbia Circuit, Air Transport Ass'n v. DOT, 613 F.3d 206 (D.C. Cir. 
2010). In 2012, Congress included foreign air carriers (in addition to 
air carriers) under Sec.  47129. See, Sec.  148 of the FAA 
Authorization Act of 2012, Public Law 112-95, 126 Stat. 11 (Feb. 14, 
2012)
    The FAA has received requests for a complete official version of 
the Policy, as amended since 1996, and FAA understands the convenience 
of a complete statement of the policy for anyone needing to refer to 
the contents of this Policy. Accordingly, by this notice, FAA is 
publishing an official version of the entire Policy Regarding Airport 
Rates and Charges that reflects all of the changes to the language of 
the Policy since 1996, and is republished solely for the convenience of 
stating a complete version of the Policy in a single document.

Rates and Charges Policy

    The FAA is publishing the full text of the current Policy Regarding 
Airport Rates and Charges, which has been in effect since the most 
recent amendment of the policy on July 14, 2008, as follows:

Policy Regarding Airport Rates and Charges

Introduction

    It is the fundamental position of the Department that the issue of 
rates and charges is best addressed at the local level by agreement 
between users and airports. The Department is adopting this Policy 
Statement on the standards applicable to airport fees imposed for 
aeronautical use of the airport to provide guidance to airport 
proprietors and aeronautical users, to encourage direct negotiation 
between these parties, to minimize the need for direct Federal 
intervention to resolve differences over airport fees and to establish 
the standards which the Department will apply in addressing airport fee 
disputes under 49 U.S.C., 47129 and in addressing questions of airport 
proprietors' compliance with Federal requirements governing airport 
fees.

Applicability of the Policy

A. Scope of Policy
    Under the terms of grant agreements administered by FAA for airport 
improvement, all aeronautical users are entitled to airport access on 
fair and reasonable terms without unjust discrimination. Therefore, the 
Department considers that the principles and guidance set forth in this 
policy statement apply to all aeronautical uses of the airport. The 
Department recognizes, however, that airport proprietors may use 
different mechanisms and methodologies to establish fees for different 
facilities, e.g., for the airfield and terminal area, and for different 
aeronautical users, e.g., air carriers and fixed-base operators. 
Various elements of the policy reflect these differences. In addition, 
the Department will take these differences into account if we are 
called upon to resolve a dispute over aeronautical fees or otherwise 
consider whether an airport sponsor is in compliance with its 
obligation to provide access on fair and reasonable terms without 
unjust discrimination.
B. Aeronautical Use and Users
    The Department considers the aeronautical use of an airport to be 
any activity that involves, makes possible, is required for the safety 
of, or is otherwise directly related to, the operation of aircraft. 
Aeronautical use includes services provided by air carriers related 
directly and substantially to the movement of passengers, baggage, mail 
and cargo on the airport. Persons, whether individuals or businesses, 
engaged in aeronautical uses involving the operation of aircraft, or 
providing flight support directly related to the operation of aircraft, 
are considered to be aeronautical users.
    Conversely, the Department considers that the operation by U.S. or 
foreign air carriers of facilities such as a reservations center, 
headquarters office, or flight kitchen on an airport does not 
constitute an aeronautical use subject to the principles and guidance 
contained in this policy statement with respect to reasonableness and 
unjust discrimination. Such facilities need not be located on an 
airport. A carrier's decision to locate such facilities is based on the 
negotiation of a lease or sale of property. Accordingly, the Department 
relies on the normal forces of competition for nonaeronautical 
commercial or industrial property to assure that fees for such property 
are not excessive.
C. Applicability of Sec.  113 of the FAA Authorization Act of 1994
    Section 113 of the Federal Aviation Authorization Act of 1994 
(``Authorization Act''), 49 U.S.C. 47129, directs the Secretary of 
Transportation to issue a determination on the reasonableness of 
certain fees imposed on air carriers and foreign air carriers in 
response to carrier complaints or a request for determination by an 
airport proprietor. Section 47129 further directs the Secretary to 
publish final regulations, policy statements, or guidelines 
establishing procedures for deciding cases under Sec.  47129 and the 
standards to be used by the Secretary in determining whether a fee is 
reasonable. Section 47129 also provides for the issuance of credits or 
refunds in the event that the Secretary determines a fee is 
unreasonable after a complaint is filed. Section 47129(e) excludes from 
the applicability of Sec.  47129 a fee imposed pursuant to a written 
agreement with air carriers or foreign air carriers, a fee imposed 
pursuant to a financing agreement or covenant entered into before the 
date of enactment of the statute (August 23, 1994), and an existing fee 
not in dispute on August 23, 1994. Section 47129(f) further provides 
that Sec.  47129 shall not adversely affect the rights of any party 
under an existing airport agreement with an air carrier or foreign air 
carrier or the ability of an airport to meet its obligations under a 
financing agreement or covenant that is in effect on August 23, 1994.
    The Department does not interpret Sec.  47129 to repeal or narrow 
the scope of the basic requirement that fees imposed on all 
aeronautical users be reasonable and not unjustly discriminatory or to 
narrow the obligation on the Secretary to receive satisfactory 
assurances that, inter alia, airport sponsors will provide access on 
reasonable terms before approving Airport Improvement Program (``AIP'') 
grants. Moreover, the Department does not interpret Sections 47129(e) 
and (f) to preclude the Department from adopting policy guidance to 
carry out the Department's statutory obligation to assure that 
aeronautical fees are being imposed at AIP-funded airports in a manner 
that is consistent with the obligation to provide airport access on 
reasonable terms.
    Therefore, the Department will apply the policy guidance in all 
cases in which we are called upon to determine if an airport sponsor is 
carrying out its obligation to make the airport available on reasonable 
terms. However, a dispute that is not subject to processing under the 
expedited procedures mandated by

[[Page 55332]]

Sec.  47129, including a dispute over matters described by Sec.  47129 
(e) and (f), will be processed by FAA under procedures applicable to 
airport compliance matters in general. In considering such a dispute, 
FAA's role is to determine whether the airport proprietor is in 
compliance with its grant obligations and statutory obligations 
relating to airport fees. The FAA proceeding is not intended to provide 
a mechanism for adjudicating the respective rights of the parties to a 
fee dispute.
    In addition, the Department will not entertain a complaint about 
the reasonableness of a fee set by agreement filed by a party to the 
agreement setting the disputed fee. In the case of a complaint about 
the reasonableness of a fee set by agreement filed by an aeronautical 
user who is not a party to the agreement, the Department may take into 
account the existence of an agreement between air carriers or foreign 
air carriers, and the airport proprietor, in making a determination on 
the complaint.
    Further, FAA will not ordinarily investigate the reasonableness of 
a general aviation airport's fees absent evidence of a progressive 
accumulation of surplus aeronautical revenues.
D. Components of Airfield
    The Department considers the airfield assets to consist of ramps or 
aprons not subject to preferential or exclusive lease or use 
agreements, runways, taxiways, and land associated with these 
facilities. The Department also considers the airfield to include land 
acquired for the purpose of assuring land-use compatibility with the 
airfield, if the land is included in the rate base associated with the 
airfield under the provisions of this policy.

Principles Applicable to Airport Rates and Charges

    1. In general, the Department relies upon airport proprietors, 
aeronautical users, and the market and institutional arrangements 
within which they operate, to ensure compliance with applicable legal 
requirements. Direct Federal intervention will be available, however, 
where needed.
    2. Rates, fees, rentals, landing fees, and other service charges 
(``fees'') imposed on aeronautical users for aeronautical use of 
airport facilities (``aeronautical fees'') must be fair and reasonable.
    3. Aeronautical fees may not unjustly discriminate against 
aeronautical users or user groups.
    4. Airport proprietors must maintain a fee and rental structure 
that in the circumstances of the airport makes the airport as 
financially self-sustaining as possible.
    5. In accordance with relevant Federal statutory provisions 
governing the use of airport revenue, airport proprietors may expend 
revenue generated by the airport only for statutorily allowable 
purposes.
    6. Fees imposed on international operations must also comply with 
the international obligations of the United States, which include the 
requirements that the fees be just, reasonable, not unjustly 
discriminatory, equitably apportioned among categories of users, no 
less favorable to foreign airlines than to U.S. airlines, and not in 
excess of the full cost to the competent charging authorities of 
providing the facilities and services efficiently and economically at 
the airport or within the airport system.

Local Negotiation and Resolution

    1. In general, the Department relies upon airport proprietors, 
aeronautical users, and the market and institutional arrangements 
within which they operate, to ensure compliance with applicable legal 
requirements. Direct Federal intervention will be available, however, 
where needed.
    1.1 The Department encourages direct resolution of differences at 
the local level between aeronautical users and the airport proprietor. 
Such resolution is best achieved through adequate and timely 
consultation between the airport proprietor and the aeronautical users 
about airport fees.
    1.1.1 Airport proprietors should consult with aeronautical users 
well in advance, if practical, of introducing significant changes in 
charging systems and procedures or in the level of charges. The 
proprietor should provide adequate information to permit aeronautical 
users to evaluate the airport proprietor's justification for the change 
and to assess the reasonableness of the proposal. For consultations to 
be effective, airport proprietors should give due regard to the views 
of aeronautical users and to the effect upon them of changes in fees. 
Likewise, aeronautical users should give due regard to the views of the 
airport proprietor and the financial needs of the airport.
    1.1.2 To further the goal of effective consultation, Appendix 1 of 
this policy statement contains a description of information that the 
Department considers would be useful to the U.S. and foreign air 
carriers and other aeronautical users to permit meaningful consultation 
and evaluation of a proposal to modify fees.
    1.1.3 Airport proprietors should consider the public interest in 
establishing airport fees, and aeronautical users should consider the 
public interest in consulting with airports on setting such fees.
    1.1.4 Airport proprietors and aeronautical users should consult and 
make a good-faith effort to reach agreement. Absent agreement, airport 
proprietors are free to act in accordance with their proposals, subject 
to review by the Secretary or the Administrator on complaint by the 
user or, in the case of fees subject to 49 U.S.C. 47129, upon request 
by the airport operator, or, in unusual circumstances, on the 
Department's initiative.
    1.1.5 To facilitate local resolution and reduce the need for direct 
Federal intervention to resolve differences over aeronautical fees, the 
Department encourages airport proprietors and aeronautical users to 
include alternative dispute resolution procedures in their lease and 
use agreements.
    1.1.6 Any newly established fee or fee increase that is the subject 
of a complaint under 49 U.S.C. 47129 that is not dismissed by the 
Secretary must be paid to the airport proprietor under protest by the 
complainant. Unless the airport proprietor and complainant agree 
otherwise, the airport proprietor will obtain a letter of credit, or 
surety bond, or other suitable credit instrument in accordance with the 
provisions of 49 U.S.C. 47129(d). Pending issuance of a final order 
determining reasonableness, an airport proprietor may not deny a 
complainant currently providing air service at the airport reasonable 
access to airport facilities or services, or otherwise interfere with 
that complainant's prices, routes, or services, as a means of enforcing 
the fee, if the complainant has complied with the requirements for 
payment under protest.
    1.2 Where airport proprietors and aeronautical users have been 
unable, despite all reasonable efforts, to resolve disputes between 
them, the Department will act to resolve the issues raised in the 
dispute.
    1.2.1 In the case of a fee imposed on one or more U.S. air carriers 
or foreign air carriers, the Department will issue a determination on 
the reasonableness of the fee upon the filing of a written request for 
a determination by the airport proprietor or, if the Department 
determines that a significant dispute exists, upon the filing of a 
complaint by one or more U.S. air carriers or foreign air carriers, in 
accordance with 49 U.S.C. 47129 and implementing regulations. Pursuant 
to the provisions of 49 U.S.C. 47129, the Department may only determine 
whether a fee is

[[Page 55333]]

reasonable or unreasonable, and may not set the level of the fee.
    1.2.2 The Department will first offer its good offices to help 
parties reach a mutually satisfactory outcome in a timely manner. 
Prompt resolution of these disputes is always desirable since extensive 
delay can lead to uncertainty for the public and a hardening of the 
parties' positions. U.S. air carriers and foreign air carriers may 
request the assistance of the Department in advance of or in lieu of 
the formal complaint procedure described in 1.2.1; however, the 60-day 
period for filing a complaint under Sec.  47129 shall not be extended 
or tolled by such a request.
    1.2.3 In the case of fees imposed on other aeronautical users, 
where negotiations between the parties are unsuccessful and a complaint 
is filed alleging that airport fees violate an airport proprietor's 
Federal grant obligations, the Department will, where warranted, 
exercise the agency's broad statutory authority to review the legality 
of those fees and to issue such determinations and take such actions as 
are appropriate based on that review. Other aeronautical users may also 
request the assistance of the Department in advance of, or in lieu of, 
the filing of a formal complaint with FAA.
    1.3 Airport proprietors must retain the ability to respond to local 
conditions with flexibility and innovation. An airport proprietor is 
encouraged to achieve consensus and agreement with its aeronautical 
users before implementing a practice that would represent a major 
departure from this guidance. However, the requirements of any law, 
including the requirements for the use of airport revenue, may not be 
waived, even by agreement with the aeronautical users.

Fair and Reasonable Fees

    2. Rates, fees, rentals, landing fees, and other service charges 
(``fees'') imposed on aeronautical users for the aeronautical use of 
the airport (``aeronautical fees'') must be fair and reasonable.
    2.1 Federal law does not require a single approach to airport rate-
setting. Fees may be set according to a ``residual'' or 
``compensatory'' rate-setting methodology, or any combination of the 
two, or according to another rate-setting methodology, as long as the 
methodology used is applied consistently to similarly situated 
aeronautical users and conforms with the requirements of this policy. 
Airport proprietors may set fees for aeronautical use of airport 
facilities by ordinance, statute or resolution, regulation, or 
agreement.
    2.1.1 Aeronautical users may receive a cross-credit of 
nonaeronautical revenues only if the airport proprietor agrees. 
Agreements providing for such cross-crediting are commonly referred to 
as ``residual agreements'' and generally provide a sharing of 
nonaeronautical revenues with aeronautical users. The aeronautical 
users may in turn agree to assume part or all of the liability for 
nonaeronautical costs. An airport proprietor may cross-credit 
nonaeronautical revenues to aeronautical users even in the absence of 
such an agreement, but an airport proprietor may not require 
aeronautical users to cover losses generated by nonaeronautical 
facilities except by agreement.
    2.1.2 In other situations, an airport proprietor assumes all 
liability for airport costs and retains all airport revenues for its 
own use in accordance with Federal requirements. This approach to 
airport rate-setting is generally referred to as the compensatory 
approach.
    2.1.3 Airports frequently adopt rate-setting systems that employ 
elements of both approaches.
    2.1.4 An airport proprietor may impose a two-part landing fee 
consisting of a combination of a per-operation charge and a weight-
based charge provided that (1) the two-part fee reasonably allocates 
costs to users on a rational and economically justified basis; and (2) 
the total revenues from the two-part landing fee do not exceed the 
allowable costs of the airfield.
    (a) The proportionately higher costs per passenger for aircraft 
with fewer seats that will result from the per-operation component of a 
two-part fee may be justified by the effect of the fee on congestion 
and operating delays and the total number of passengers accommodated 
during congested hours.
    (b) An airport proprietor may exempt flights subsidized under the 
Essential Air Service Program from the general application of a 2-part 
landing fee, and instead charge those flights a landing fee that would 
have been charged if a conventional weight-based fee was in effect. To 
the extent an exemption reduces total airfield fees recovered, the 
difference may not be recovered by increasing charges to other 
operators currently operating at the airport.
    2.2 Revenues from fees imposed for use of the airfield (``airfield 
revenues'') may not exceed the costs to the airport proprietor of 
providing airfield services and airfield assets currently in 
aeronautical use unless:
    (a) Otherwise agreed to by the affected aeronautical users; or
    (b) The fee includes charges in accordance with paragraph 2.5.3 or 
paragraph 2.5.4(a), and there is a corresponding reduction in fees for 
users that would otherwise have paid those charges.
    2.3 The ``rate base'' is the total of all costs of providing 
airfield facilities and services to aeronautical users (which may 
include a share of public-use roadway costs allocated to the airfield 
in accordance with this policy) that may be recovered from aeronautical 
users through fees charged for providing airfield aeronautical services 
and facilities (``airfield fees''). Airport proprietors must employ a 
reasonable, consistent, and ``transparent'' (i.e., clear and fully 
justified) method of establishing the rate base and adjusting the rate 
base on a timely and predictable schedule.
    2.4 [Reserved]
    2.4.1 [Reserved]
    2.4.2 Airport proprietors may include reasonable environmental 
costs in the rate base to the extent that the airport proprietor incurs 
a corresponding actual expense. All revenues received based on the 
inclusion of these costs in the rate base are subject to Federal 
requirements on the use of airport revenue. Reasonable environmental 
costs include, but are not necessarily limited to, the following:
    (a) The costs of investigating and remediating environmental 
contamination caused by airfield operations at the airport at least to 
the extent that such investigation or remediation is required by or 
consistent with local, state or Federal environmental law, and to the 
extent such requirements are applied to other similarly situated 
enterprises.
    (b) the cost of mitigating the environmental impact of an airport 
development project (if the development project is one for which costs 
may be included in the rate base), at least to the extent that these 
costs are incurred in order to secure necessary approvals for such 
projects, including but not limited to approvals under the National 
Environmental Policy Act and similar state statutes;
    (c) the costs of aircraft noise abatement and mitigation measures, 
both on and off the airport, including but not limited to land 
acquisition and acoustical insulation expenses, to the extent that such 
measures are undertaken as part of a comprehensive and publicly-
disclosed airport noise compatibility program; and
    (d) the costs of insuring against future liability for 
environmental contamination caused by current airfield activities. 
Under this provision,

[[Page 55334]]

the costs of self-insurance may be included in the rate base only to 
the extent that they are incurred pursuant to a self-insurance program 
that conforms to applicable standards for self-insurance practices.
    2.4.3 Airport proprietors are encouraged to establish fees with due 
regard for economy and efficiency.
    2.4.4 The airport proprietor may include in the rate base amounts 
needed to fund debt service and other reserves and to meet cash flow 
requirements as specified in financing agreements or covenants (for 
facilities in use or in accordance with paragraph 2.5.3), including, 
but not limited to, reasonable amounts to meet debt-service coverage 
requirements; to fund cash reserves to protect against the risks of 
cash-flow fluctuations associated with normal airfield operations; and 
to fund reasonable cash reserves to protect against other 
contingencies.
    2.4.5 Unless otherwise agreed by aeronautical users, the airport 
proprietor must allocate capital and operating costs among cost centers 
in accordance with the following guidance, which is based on the 
principle of cost causation:
    (a) Costs of airfield facilities and services directly used by the 
aeronautical users may be fully included in the rate base, in a manner 
consistent with this policy. For example, the capital cost of a runway 
may be included in the rate base used to establish landing fees.
    (b) Costs of airport facilities and services used for both 
aeronautical and nonaeronautical uses (shared costs) may be included in 
the rate base if the facility or service in question supports the 
airfield activity reflected in that rate base. The portion of shared 
costs allocated to aeronautical users and among aeronautical uses 
should not exceed an amount that reflects the respective aeronautical 
purposes and proportionate aeronautical uses of the facility in 
relation to each other and in relation to the nonaeronautical use of 
the facility, and must be allocated by a reasonable, ``transparent'' 
and not unjustly discriminatory methodology. Aeronautical users may not 
be allocated all costs of facilities or services that are used by both 
aeronautical and nonaeronautical users unless they agree to that 
allocation. Likewise, the airfield may not be allocated all of the 
aeronautical share of commonly-used facilities or services, unless the 
airfield is the only aeronautical use the facility or service supports.
    2.5 Airport proprietors must comply with the following practices in 
establishing the rate base, provided, however, that one or more 
aeronautical users may agree to a rate base that deviates from these 
practices in the establishment of those users' fees.
    2.5.1 [Reserved]
    2.5.2 When assets in the rate-base have different costs, the 
airport proprietor may combine the costs of comparable assets to 
develop a single cost basis for those assets.
    2.5.3 The proprietor of a congested airport may include in the 
rate-base used to determine airfield charges during congested hours a 
portion of the costs of an airfield project under construction so long 
as (1) all planning and environmental approvals have been obtained for 
the project; (2) the proprietor has obtained financing for the project; 
(3) construction has commenced on the project; and (4) the added costs 
for current operators would have the effect of reducing or preventing 
congestion and operating delays at that airport.
    (a) The airport proprietor must deduct from the total costs of the 
projects any principal and interest collected during the period of 
construction in determining the amount of project costs to be 
capitalized and amortized once the project is commissioned and put in 
service.
    (b) The amount of project costs included in current charges may not 
exceed an amount corresponding to costs actually incurred during the 
construction period, calculated in accordance with a commercially 
reasonable amortization period based on the expected term for the 
permanent financing of the project.
    2.5.4 The rate base of an airport may include costs associated with 
another airport currently in use only if: (1) The proprietor of the 
first airport is also the proprietor of the other airport; (2) the 
other airport is currently in use; and (3) the costs of the other 
airport to be included in the first airport's rate base are reasonably 
related to the aviation benefits that the other airport provides or is 
expected to provide to the aeronautical users of the first airport.
    (a) Element no. 3 above will be presumed to be satisfied if:
    (1) The other airport is designated as a reliever airport for the 
first airport in the FAA's National Plan of Integrated Airport Systems 
(``NPIAS''); or
    (2) The first airport is a congested airport; the other airport has 
been designated by FAA as a secondary airport serving the community, 
metropolitan area or region served by the first airport; and adding 
airfield costs of the second airport to the rate base of the first 
airport during congested hours would have the effect of reducing or 
preventing congestion and operating delays at that airport in those 
hours.
    (b) In the case of a methodology of charging for a system of 
airports that is in place on the effective date of this policy, the 
Department will consider an airport proprietor's claim that the 
methodology is reasonable, even if all three elements are not 
satisfied.
    (c) If an airport proprietor closes an operating airport as part of 
an approved plan for the construction and opening of a new airport, 
reasonable costs of disposition of the closed airport facility may be 
included in the rate base of the new airport, to the extent that such 
costs exceed the proceeds from the disposition. The Department would 
not ordinarily consider redevelopment costs to be a reasonable cost of 
disposition.
    (d) Pending reasonable disposition of the closed airport, the 
airport proprietor may charge airfield users at the new airport for 
reasonable maintenance costs of the old airport, provided that those 
costs are refunded or credited-back to those users upon the receipt of 
the proceeds from a whole or partial disposition.
    (e) Costs of the second airport that may be included in the rate 
base of the first airport are limited to customary airfield cost center 
charges. The total airfield revenue recovered from the users of both 
airports cannot exceed the total allowable costs of the two airports 
combined.
    2.6 [Reserved]
    2.6.1 Reasonable methodologies may include, but are not limited to, 
historic cost valuation, direct negotiation with aeronautical users, or 
objective determinations of fair market value.
    2.6.2 If an airport proprietor determines fees for such other 
facilities on the basis of HCA costs, the airport proprietor must 
follow the guidance set forth in paragraph 2.4.5 for the allocation of 
shared costs.
    2.7 At all times, airport proprietors must comply with the 
following practices:
    2.7.1 Indirect costs may not be included in the fees charged for 
aeronautical use of the airport unless they are based on a reasonable, 
``transparent'' cost allocation formula calculated consistently for 
other units or cost centers within the control of the airport sponsor.
    2.7.2 The costs of airport development or planning projects paid 
for with Federal Government grants and contributions or passenger 
facility charges (PFCs) may not be included in the fees charged for 
aeronautical use of the airport.

[[Page 55335]]

    (a) In the case of a PFC-funded project for terminal development, 
for gates and related areas, or for a facility that is occupied by one 
or more carriers on an exclusive or preferential use basis, the fees 
paid to use those facilities shall be no less than the fees charged for 
similar facilities that were not financed with PFC revenue.

Prohibition on Unjust Discrimination

    3. Aeronautical fees may not unjustly discriminate against 
aeronautical users or user groups.
    3.1 The airport proprietor must apply a consistent methodology in 
establishing fees for comparable aeronautical users of the airport. 
When the airport proprietor uses a cost-based methodology, aeronautical 
fees imposed on any aeronautical user or group of aeronautical users 
may not exceed the costs allocated to that user or user group under a 
cost allocation methodology adopted by the airport proprietor that is 
consistent with this guidance, unless aeronautical users otherwise 
agree.
    3.1.1 The prohibition on unjust discrimination does not prevent an 
airport proprietor from making reasonable distinctions among 
aeronautical users (such as signatory and nonsignatory carriers) and 
assessing higher fees on certain categories of aeronautical users based 
on those distinctions (such as higher fees for nonsignatory carriers, 
as compared to signatory carriers).
    3.2 A properly structured peak pricing system that allocates 
limited resources using price during periods of congestion will not be 
considered to be unjustly discriminatory. An airport proprietor may, 
consistent with the policies expressed in this policy statement, 
establish fees that enhance the efficient utilization of the airport.
    3.3 Relevant provisions of the Convention on International Civil 
Aviation (Chicago Convention) and many bilateral aviation agreements 
specify, inter alia, that charges imposed on foreign airlines must not 
be unjustly discriminatory, must not be higher than those imposed on 
domestic airlines engaged in similar international air services and 
must be equitably apportioned among categories of users. Charges to 
foreign air carriers for aeronautical use that are inconsistent with 
these principles will be considered unjustly discriminatory or unfair 
and unreasonable.
    3.4 Allowable costs--costs properly included in the rate base--must 
be allocated to aeronautical users by a transparent, reasonable, and 
not unjustly discriminatory rate-setting methodology. The methodology 
must be applied consistently and cost differences must be determined 
quantitatively, when practical.
    3.4.1 Common costs (costs not directly attributable to a specific 
user group or cost center) must be allocated according to a reasonable, 
transparent and not unjustly discriminatory cost allocation methodology 
that is applied consistently, and does not require any aeronautical 
user or user group to pay costs properly allocable to other users or 
user groups.

Requirement To Be Financially Self-Sustaining

    4. Airport proprietors must maintain a fee and rental structure 
that in the circumstances of the airport makes the airport as 
financially self-sustaining as possible.
    4.1 If market conditions or demand for air service do not permit 
the airport to be financially self-sustaining, the airport proprietor 
should establish long-term goals and targets to make the airport as 
financially self-sustaining as possible.
    4.1.1 Airport proprietors are encouraged, when entering into new or 
revised agreements or otherwise establishing rates, charges, and fees, 
to undertake reasonable efforts to make their particular airports as 
self sustaining as possible in the circumstances existing at such 
airports.
    (a) Absent agreement with aeronautical users, the obligation to 
make the airport as self-sustaining as possible does not permit the 
airport proprietor to establish fees for the use of the airfield that 
exceed the airport proprietor's airfield costs.
    (b) For those facilities for which this policy permits the use of 
fair market value, the Department does not construe the obligation on 
self-sustainability to compel the use of fair market value to establish 
fees.
    4.1.2 At some airports, market conditions may not permit an airport 
proprietor to establish fees that are sufficiently high to recover 
aeronautical costs and sufficiently low to attract and retain 
commercial aeronautical services. In such circumstances, an airport 
proprietor's decision to charge rates that are below those needed to 
achieve self-sustainability in order to assure that services are 
provided to the public is not inherently inconsistent with the 
obligation to make the airport as self-sustaining as possible in the 
circumstances.
    4.2 In establishing new fees, and generating revenues from all 
sources, airport owners and operators should not seek to create revenue 
surpluses that exceed the amounts to be used for airport system 
purposes and for other purposes for which airport revenues may be spent 
under 49 U.S.C. 47107(b)(1), including reasonable reserves and other 
funds to facilitate financing and to cover contingencies. While fees 
charged to nonaeronautical users may exceed the costs of service to 
those users, the surplus funds accumulated from those fees must be used 
in accordance with Sec.  47107(b).
    4.2.1 The Department assumes that the limitation on the use of 
airport revenue and effective market discipline for aeronautical 
services and facilities other than the airfield will be effective in 
holding aeronautical revenues, over time, to the airport proprietor's 
costs of providing aeronautical services and facilities, including 
reasonable capital costs. However, the progressive accumulation of 
substantial amounts of surplus aeronautical revenue may warrant an FAA 
inquiry into whether aeronautical fees are consistent with the airport 
proprietor's obligations to make the airport available on fair and 
reasonable terms.

Requirements Governing Revenue Application and Use

    5. In accordance with relevant Federal statutory provisions 
governing the use of airport revenue, airport proprietors may expend 
revenue generated by the airport only for statutorily allowable 
purposes.
    5.1 Additional information on the statutorily allowed uses of 
airport revenue is contained in separate guidance published by FAA 
pursuant to Sec.  112 of the FAA Authorization Act of 1994, which is 
codified at 49 U.S.C. 47107(l).
    5.2 The progressive accumulation of substantial amounts of airport 
revenues may warrant an FAA inquiry into the airport proprietor's 
application of revenues to the local airport system.

Congested Airports

    6. Congested Airports
    (a) The Department considers a currently congested airport to be--
    (1) An airport at which the number of operating delays is one per 
cent or more of the total operating delays at the 55 airports with the 
highest number of operating delays; or
    (2) An airport identified as congested by FAA listed in table 1 of 
FAA's Airport Capacity Benchmark Report 2004, or the most recent 
version of the Airport Capacity Benchmark Report.
    (b) The Department considers an airport to be a future congested 
airport if an airport is forecasted to meet a defined threshold level 
of congestion reported in the Future Airport Capacity

[[Page 55336]]

Task 2 study entitled Capacity Needs in the National Airspace System 
2007-2025: An analysis of Airports and Metropolitan Area Demand and 
Operational Capacity in the Future (FACT 2 Report), or any update to 
that report that FAA may publish from time-to-time.
    (c) A congested hour is an hour during which demand exceeds average 
runway capacity resulting in volume-related delays, or is anticipated 
to do so.
    6.1 Because charges provided in paragraphs 2.1.4, 2.5.3 and 2.5.4 
to address congestion can result in higher fees for some or all 
operators, it is especially important for airport operators proposing 
such charges to provide carriers in advance the information listed in 
Appendix 1, with special emphasis on data, analysis and forecasts used 
to justify the charges.
    6.2 The proprietor of a future congested airport may adopt measures 
to address congestion in accordance with paragraphs 2.1.4, 2.5.3 and 
2.5.4 of this policy, if the measures will not take effect or have any 
effect on airfield charges until a time when the airport meets the 
definition of a congested airport in paragraph 6(a) or is anticipated 
to do so. This kind of measure would typically identify the specific 
condition, e.g., operating delays that regularly exceed a certain level 
at the airport that would trigger the implementation of the special 
charges to address congestion.
    6.3 An airport proprietor may exempt flights subsidized under the 
Essential Air Service Program from charges imposed under paragraphs 
2.5.3 and 2.5.4 of this policy.

    Issued in Washington, DC, on August 23, 2013.
Susan L. Kurland,
Assistant Secretary for Aviation and International Affairs.
Christa Fornarotto,
Associate Administrator for Airports, Federal Aviation Administration,

Appendix 1--Information for Aeronautical User Charges Consultations

    The Department of Transportation ordinarily expects the 
following information to be available to aeronautical users in 
connection with consultations over changes in airport rates and 
charges:
    1. Historic Financial Information covering two fiscal years 
prior to the current year including, at minimum, a profit and loss 
statement, balance sheet and cash flow statement for the airport 
implementing the charges, and any financial reports prepared by the 
airport proprietor to satisfy the provisions of 49 U.S.C. 
47107(a)(19) and 47107(k).
    2. Justification. Economic, financial and/or legal justification 
for changes in the charging methodology or in the level of 
aeronautical rates and charges at the airport. Airports should 
provide information on the aeronautical costs they are including in 
the rate base.
    3. Traffic Information. Annual numbers of terminal passengers 
and aircraft movements for each of the two preceding years.
    4. Planning and Forecasting Information.
    (a) To the extent applicable to current or proposed fees, the 
long-term airport strategy setting out long-term financial and 
traffic forecasts, major capital projects and capital expenditure, 
and particular areas requiring strategic action. This material 
should include any material provided for public or government 
reviews of major airport developments, including analyses of demand 
and capacity and expenditure estimates.
    (b) Accurate, complete information specific to the airport for 
the current and the forecast year, including the current and 
proposed budgets, forecasts of airport charges revenue, the 
projected number of landings and passengers, expected operating and 
capital expenditures, debt service payments, contributions to 
restricted funds, or other required accounts or reserves.
    (c) To the extent the airport uses a residual or hybrid charging 
methodology, a description of key factors expected to affect 
commercial or other nonaeronautical revenues and operating costs in 
the current and following years.

[FR Doc. 2013-21905 Filed 9-9-13; 8:45 am]
BILLING CODE 4910-13-P
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