Procedures for Reimbursement of General Aviation Operators and Service Providers in the Washington, DC Area, 17381-17393 [E7-6350]

Agencies

• Office of the Secretary
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 72, Number 67 (Monday, April 9, 2007)]
[Rules and Regulations]
[Pages 17381-17393]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-6350]


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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: Final rule.

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SUMMARY: This rule provides reimbursement to fixed-base 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.

DATES: This rule is effective May 9, 2007.

FOR FURTHER INFORMATION CONTACT: Interested persons with questions 
about this regulation should 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. Interested persons 
with questions about how to apply for assistance, the status of 
application reviews, etc. should contact Tim Carmody, U.S. Department 
of Transportation, Office of Aviation Analysis, 400 7th Street, SW., 
Room 6417, Washington, DC 20590; telephone 202-366-2348. Application 
materials and data sources that may assist applicants in preparing 
applications are available at the Department of Transportation, Office 
of the Secretary's Web site at https://ostpxweb.dot.gov/aviation/
index.html under ``Programs,'' and then ``General Aviation Operator and 
Services Reimbursement: Procedures for Reimbursement of General 
Aviation Operators and Service Providers in the Washington, DC Area.''

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. While DCA 
and the three Maryland airports have since been reopened to transient 
general aviation traffic, the volume of general aviation activity has 
not returned to pre-September 11, 2001 levels due to continuing 
security restrictions, and the South Capitol Street Heliport was not 
reopened to general aviation traffic and is now used exclusively by the 
Washington DC Metropolitan Police. Because of the reduction in general 
aviation activity at these locations, the fixed-base operators and 
service providers that supported general aviation were also affected, 
with many claiming that they were incurring sustained and significant 
financial losses due to the closures.
    These fixed-base operators and service providers were not eligible 
for either compensation or loan guarantees under the Air Transportation 
Safety and System Stabilization Act, Pub. L. 107-42 (Sept. 22, 2001), 
which had been enacted to provide compensation to ``air carriers'' who 
had incurred financial losses due to the terrorist attacks. Under that 
program, approximately $4.6 billion has been paid to qualifying air 
carriers.
    In 2003, the United States House of Representatives Committee on 
Appropriations requested that the Department of Transportation (DOT) 
prepare a report detailing the documented financial losses by holders 
of real property leases at the five affected 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 onto the Office of the Secretary's Web site, at the address 
noted above. (See For Further Information Contact).
    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 stated on a pre-tax basis between what the companies projected 
for the study period and the actual pre-tax net income for that period, 
and included both losses in pre-tax net income and one-time costs 
attributable directly to compliance with new restrictions or 
regulations resulting from the terrorist attacks. In formulating its

[[Page 17382]]

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-base 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 fixed-
base 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.
    On October 4, 2006, the Department published in the Federal 
Register a Notice of Proposed Rulemaking (NPRM) in order to implement 
this Act (71 FR 58546 et seq.). There, the Department proposed 
definitions of various terms found in the Act; the eligibility 
requirements for applicants; the methodology for determining the losses 
to be reimbursed, including the forms by which applications would be 
made; the time periods at each airport for which reimbursement of 
losses would be made; the procedures for verifying and auditing claims; 
and various other matters. The Department invited comments on its 
proposals, and 16 responsive comments were received.
    Below, we summarize the comments that we received and describe our 
response to those comments, including, where appropriate, the 
modifications we are making based upon those comments.

Eligibility of Airports Per Se To Apply for Reimbursement

    One commenter, a small airport, contended that airports should be 
eligible for reimbursement for their losses under the Rule, because 
they ``provide leaseholds to those who operate, service, and otherwise 
support general aviation aircraft,'' and simply by doing so provide 
``general aviation ground support services.''
    DOT Response: DOT believes that Section 185 should not be read, and 
was not meant to be read, to include airports per se as ``providers of 
general aviation ground support services'' eligible for reimbursement 
under this program. First, providing a facility that others may use for 
general aviation support is not the same as itself providing 
``services'' to general aviation, and the latter formulation represents 
an interpretation that is more faithful to the language Congress 
actually used. Second, Congress clearly knows what an ``airport'' is, 
and if it intended that airports ``as airports'' be reimbursed for 
losses it surely would have plainly provided for that in Section 185, 
rather than using the less direct ``providers of general aviation 
services'' language it chose. Finally, Congress, DOT, and other public 
authorities have used other vehicles to provide financial assistance to 
airports to reflect increased security and other requirements after the 
September 11 terrorist attacks, under which we understand various 
airports here recovered at least some elements of their added costs. 
The history of this legislation indicates that it was designed to 
assist those general aviation entities who were not eligible under 
other programs to recover their losses after 9/11.
    Of course, if an airport here can show that it served as a fixed-
base operator, or provider of general aviation ground support services 
as those terms are defined in Section 331.3 of the Rule, then it would 
qualify in that capacity for reimbursement under this program.

Eligibility of General Aviation Entities That Did Not Operate at One of 
the Five Airports on September 11, 2001

    Glenwood Aviation, a leaseholder and fixed-base general aviation 
operator at the South Capitol Street Heliport who initiated operations 
there after the September 11 attacks (specifically, on October 1, 
2002), expressed concern that certain language in the NPRM preamble, 
proposed rule, and application forms could be construed as precluding 
it from qualifying for reimbursement. DOT's language causing this 
concern generally referenced eligible applicants as limited to those 
that had operations at one or more of the five airports on September 
11, 2001. The commenter stated that, in fact, Section 185 imposes no 
such restriction, and should be read more broadly to include the 
commenter within the class eligible for reimbursement.
    DOT Response: The relevant language of Section 185 appropriates 
funds to reimburse general aviation operators and the providers of 
general aviation ground support services ``at'' the five airports for 
direct and incremental financial losses, incurred while the airports 
were closed solely due to the actions of the Federal government after 
the terrorist attacks of September 11, 2001. Thus, the commenter is 
correct in asserting that the legislative language does not limit 
general aviation entities eligible for reimbursement to those operating 
at one or more of the airports on September 11, 2001.
    The commenter does not disclose, in its comment, how it became the 
fixed-base operator at South Capitol Street, and in particular, whether 
it has any contractual relationship with its predecessor, Air Pegasus. 
Air Pegasus

[[Page 17383]]

abandoned its lease to operate at that facility on September 30, 2002, 
and Glenwood Aviation states that it began its operations on October 1, 
2002, the following day. If Glenwood is simply asserting rights to 
reimbursement based on an assignment of these rights to it by Air 
Pegasus, the Department would consider its application so long as there 
is a full disclosure of this basis for doing so, the necessary 
information from Air Pegasus was supplied, and copies of the 
contractual documents are attached.
    However, if the commenter's theory of recovery is not as an 
assignee, there is a further issue: Section 185 limits reimbursement to 
those losses that were incurred ``solely due to the actions of the 
Federal government following the terrorist attacks on the United States 
that occurred on September 11, 2001'' (emphasis supplied). On October 
1, 2002, when the commenter began its operations at South Capitol 
Street, the Federal government had already taken its actions to close 
that facility to general aviation operations. The commenter knew or had 
constructive knowledge of that closure, and presumptively assumed the 
risk when it negotiated the lease and began its operations that 
security or other considerations could require that the facility remain 
closed for some time, and perhaps never be reopened at all. Further, 
the status and uncertain future of the heliport should have permitted 
one then negotiating for a lease to obtain terms reflecting this risk-
laden situation. Thus, in these instances, the notion that a ``loss'' 
was incurred ``solely'' due to actions taken by the Federal government 
following the attacks--and not due at least in part to miscalculation 
of risk or failure to adequately provide for it--is difficult to 
envision.
    Nonetheless, because the statute itself does not foreclose 
reimbursement to applicants that were not operating at one of the 
airports on September 11, we will not foreclose reimbursement to this 
or other similarly-situated parties without affording them an 
opportunity to demonstrate, to DOT's satisfaction, that they can meet 
the other requirements of the statute and regulation. To meet those 
requirements, they would still need to supply an actual or, if none 
exists, a reasonable forecast showing post-9/11 business expectations 
absent the actions of the Federal government following the September 11 
terrorist attacks, and show further that any claimed losses were solely 
due to those actions.
    DOT will therefore modify Sec.  331.5 to read as follows: ``If you 
are or were a fixed-base 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, and incurred direct or incremental losses during the applicable 
reimbursement periods stated at Sec.  331.13 that were solely due to 
the actions of the Federal government following the terrorist attacks 
on the United States on September 11, 2001, you may apply for 
reimbursement under this part * * *. ''
    DOT will also modify the application form item 3 on Appendix A to 
read ``At which of the following airports did the applicant operate as 
a fixed-base operator or provider of general aviation ground support 
services during the eligible period for reimbursement?''
    These modifications do not reflect any change to the reimbursement 
methodology that will be employed, or to the showing of loss and sole 
cause for loss that will be necessary to have an application approved.

Reimbursement Methodology

    A number of commenters raised concerns about the inclusiveness of 
the rule's methodology for determining the eligibility of losses. They 
maintained that losses due to foreclosure on homes, loss in value of 
real property, the adverse effect on their credit, fixed expenses, 
required maintenance, the cost of loans, personal savings invested in 
the business, and debts and wages that had gone unpaid should 
constitute eligible losses for which there would be reimbursement. 
Several also indicated that DOT's ``lost profits'' approach failed to 
recognize that some GA entities were small businesses, which tended to 
reinvest in the business rather than ``take profits.''
    DOT Response: As background, the reimbursement methodology proposed 
by DOT in the NPRM relied on an applicant's forecast of revenues and 
expenses had the 9/11 attacks not occurred, which would then be 
compared with the actual revenues and expenses that occurred for the 
period of eligibility. As proposed, the claimant would generally be 
reimbursed for the difference in forecast revenues and expenses and 
actual revenues and expenses for the period.
    Some of the loss items asked about by commenters would be addressed 
within this reimbursement scheme. For example, their forecasts would 
presumably itemize their projected ``fixed expenses,'' ``maintenance,'' 
``wages,'' etc., and their actual expenses for those same items over 
the reimbursement period would be tallied. However, personal (as 
opposed to business) losses are not compensable under Section 185, nor 
can DOT reimburse for speculative losses or for losses that were not 
fully borne, in the normal course of business, during the allowable 
eligibility period.
    As to debt and equity investment represented by loans and use of 
personal funds, these would normally be reported as ``debt and equity 
investment'' on the balance sheet of the business as offsets to 
increased cash in compliance with accounting principles. The 
reimbursement methodology proposed by DOT would permit carrying the 
interest on the loan as a non-operating business expense on the income 
statement. This expense, along with other non-operating expenses and 
operating expenses would be, in essence, subtracted from forecast 
revenues to produce an adjusted income, to be compared against forecast 
income in determining the amount of any loss. Funds ``reinvested'' back 
into a company constitute an investment that would be carried as 
additional capital invested (an increase in equity), or retained 
earnings, on the balance sheet. These retained earnings or additional 
invested capital increase the value of the firm that inures to the 
benefit of equity holders on a continuing basis, and so would not be 
reimbursed as a loss within the proposed methodology.
    DOT believes its methodology for determining loss is appropriately 
comprehensive and fully satisfies the intent of Congress. We therefore 
are not proposing any modifications to it as a result of the comment 
process.

Tax Treatment Issues

    One commenter questioned whether the intent of the legislation is 
to reimburse for damages rather than replacement of income, in which 
case the Rule should specify that any reimbursements should be tax-
free. Another commenter urged that the Department's reference to net 
income be clarified to specify income before taxes, and that any other 
calculations of amount should be based on income before tax.
    DOT Response: DOT does not view the language or intent of the 
legislation as providing reimbursement for damages, and disagrees that 
payments under the reimbursement program should be tax-free. DOT agrees 
with the second comment, viewing Section 185 as providing for 
reimbursement of losses through payments that essentially serve as 
replacement revenues to offset the losses incurred while the airports 
were closed due to Federal government actions. These replacement 
revenues, like normal business revenues, would be subject to taxes. 
Since the reimbursements granted here would be

[[Page 17384]]

subject to taxation, they should not be calculated on the basis of 
taxes that have already been paid. For clarification, we are therefore 
revising Sec.  331.7 to change four references to ``net income'' to 
read ``net income before taxes'' instead, and, in the application form, 
modifying the reimbursement claim form by using the term ``adjusted 
income,'' which reflects the net of operating revenues and expenses and 
certain prescribed non-operating expenses and revenues upon which taxes 
are calculated.

Mitigation of Losses

    One commenter, who had been able to recapture some losses by moving 
operations to another, non-impacted airport, argued that ``although it 
is possible to estimate, it would be complex and somewhat judgmental 
for [it] to attempt to measure secondary effects at other locations, 
not reflected in any financial documents, that may be attributable in 
part to the closure by the government of operations at DCA and to 
determine how this may or may not have affected [its] DCA's losses.'' 
It further asserted that, as a company with operations around the 
world, it engaged in many aviation and non-aviation income-producing 
activities before and after September 11, 2001, which have no 
relationship with the shutdown of DCA and should not be a factor 
relating to its reimbursement.
    DOT Response: DOT is proposing no change to the Rule in this 
regard. If an applicant was able to derive increased profits at another 
airport or airports as a result of diversion of traffic due to closure 
of one or more of the eligible airports, then those increases should 
serve to offset its reimbursable losses. While quantifying that offset 
amount may be ``complex and somewhat judgmental,'' the commenter 
conceded that it was possible to estimate, and DOT staff and, if 
necessary, an independent audit can help to ensure that an appropriate 
adjustment is made. If a narrower methodology were adopted, focusing 
only on an entity's revenues and expenses associated with an eligible 
airport and ignoring the fact that some operations had migrated to 
another airport and produced income there, it could produce a windfall 
profit for the entity that DOT believes was not intended by Congress.

Time Value of Money

    The intent of Congress was to reimburse eligible claimants for 
``the direct and incremental financial losses incurred.'' In the NPRM, 
we proposed that applicants would report forecasted net income for the 
applicable reimbursement period and actual net income earned for that 
period. We explicitly excluded from the reimbursement the time value of 
money through the payment of interest on lost profits for the period of 
time the funds were available for use, tentatively determining that, as 
a legal matter, the Department 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). While several commentators 
asserted that interest should be reimbursable in the context of 
compensation paid pursuant to a governmental taking, such as the 
closure of airports, we do not believe that this comparison is valid. 
As noted below, the analogy to a governmental taking is inapt. A closer 
analogy is to the compensation paid under the Air Transportation Safety 
and System Stabilization Act, Pub. Law 107-42. That compensation, which 
was distributed in up to three tranches over time, did not include 
interest payments in any of the three distributions, including payments 
made even into 2004 and 2005. While the time period for applicants 
under Section 185 does differ from the time periods for applicants 
under the Stabilization Act, we believe that the payment of interest 
should be excluded here as it was there.
    One commenter asserted that, however the Department must treat 
interest, ``time value of money'' represents a different concept and 
may and should be paid. In its view, the time value of money reflects 
the erosion in the value of money due to inflation, as well as the fact 
that funds available for use today can be put to productive use that 
will increase returns in the future. However, the erosion in the value 
of money is compensated for by paying interest, and, as explained, DOT 
is precluded by law from paying interest. However, as to lost capital 
earnings, the reimbursement calculus does permit an applicant to 
receive compensation if it can successfully demonstrate that its 
forecast showed a likely increase in net income that was planned for 
further investment at a reasonable rate, which increase and investment 
did not occur due to Federal government actions after September 11. In 
doing so, applicants must provide suitable supporting documentation for 
their specific claims because it would be highly speculative to 
hypothesize as to how earnings would have been reinvested and how those 
investments would fare, especially in the volatile economic climate 
after September 11. DOT will not simply provide a generalized ``time 
value'' percentage to all claims, which would effectively be a payment 
in lieu of interest.

Fifth Amendment Taking

    A large fixed-base operator argued that reimbursement under this 
program should follow just compensation principles of the Fifth 
Amendment, specifically in the payment of interest. This commenter 
asserted that the intent of Section 185 was to reimburse claimants for 
the effective taking of their property, in accordance with the Fifth 
Amendment to the Constitution.
    DOT Response: DOT has not used a Fifth Amendment takings approach 
in proposing its methodology for reimbursing eligible GA entities. This 
action is consistent with and follows from the decision of the United 
States Court of Appeals for the Federal Circuit, in Air Pegasus of DC, 
Inc. v. United States, 424 F. 3d 1206 (2005). In affirming a decision 
by the United States Court of Federal Claims, the Federal Circuit there 
found that the Federal regulations restricting aviation activity in the 
District of Columbia area did not effect a taking of the private 
property of Air Pegasus, a lessee of real property at the South Capitol 
Street Heliport. Fifth Amendment takings precedents are thus not 
applicable to our Rulemaking here.

Lobbying Expenses

    One commenter questioned the NPRM's general preclusion of legal and 
lobbying expenses as eligible for reimbursement. The commenter argued 
that general lobbying and legal expenses are reasonable expenses, and a 
necessary cost of doing business. However, it allowed that lobbying 
expenses specifically incurred in an effort to ``obtain funding for the 
shutdown'' may be excluded by law.
    DOT Response: The Department believes this comment has merit, and 
accordingly will modify Sec.  331.7(g) of the Rule to read: ``Lobbying 
and attorneys'' fees incurred to promote reimbursement for losses 
resulting from the terrorist attacks or enact Section 185 of Pub. L. 
109-115 are not eligible for reimbursement.'' The Department will also 
modify Sec.  331.21(i) of the Rule to change ``lobbying expenses'' to 
``lobbying expenses incurred to promote reimbursement for losses 
resulting from the terrorist attacks or enact Section 185 of Pub. L. 
109-115.''

Eligible Reimbursement Period

    Section 185 provides reimbursement for losses incurred while the 
five airports ``were closed to general aviation operations, or [up to] 
the date of

[[Page 17385]]

enactment of this provision [i.e., November 30, 2005] in the case of 
airports that have not reopened to such operations. * * * '' Only one 
airport, the South Capitol Street Heliport, remained closed to general 
aviation traffic through November 30, 2005. The other four airports 
were reopened to general aviation in stages: (1) First, after September 
11, 2001, but only via special waiver, (2) then, opened to limited 
general aviation operations for based aircraft, (3) and then, opened to 
include transient traffic. Due to continuing security restrictions, in 
no case has general aviation activity reached the same level as it had 
before September 11, 2001. Because the statute speaks in terms of 
binary ``closed'' and ``reopened'' airports, admitting of no 
intermediate stages, the issue arises as to what point during the 
reopening process the airports ceased to be ``closed'' and should be 
considered ``reopened'' for purposes of determining the ending date for 
any reimbursement payments.
    The NPRM addressed the issue at length. It proposed that the 
airports be considered reopened for purposes of the statute as of the 
date that transient traffic was permitted back. Under that proposal, 
the ending date for eligibility for reimbursement at Ronald Reagan 
Washington National Airport would be October 18, 2005; for College 
Park, Potomac, and Washington Executive/Hyde Field would be February 
13, 2005; and for the South Capitol Street Heliport, since it was never 
reopened to transient general aviation traffic, the date of enactment 
of the Act, or November 30, 2005.
    Three commenters with interests at one of the Maryland airports, 
and one national association on behalf of Ronald Reagan Washington 
National Airport, argued that general aviation activity at these 
airports remains subject to security restrictions and that the airports 
are not operating at their pre-9/11 levels. While not contesting the 
fact that the four airports allow transient traffic to land, these 
commenters urged that the eligibility period be extended to the latest 
possible ending date in recognition of the fact general aviation 
aircraft do not have the same practical access to these airports as 
they did before September 11, 2001.
    DOT Response: DOT agrees that the levels of general aviation 
activity at none of the five airports have returned to those 
experienced prior to September 11, 2001. However, it is clear that, 
aside from the South Capitol Street heliport, the airports are no 
longer closed to general aviation traffic and have reopened to some 
degree; the question is whether they have ``reopened'' in the sense 
that Congress provided in the Act. The commenters did not address the 
Department's reasoning, in the NPRM, that Congress must not have 
considered all five airports to be ``closed'' at the time it passed the 
statute. Had it done so, Congress would have simply provided for 
reimbursement through the date of enactment of the Act for each of the 
airports, and not provided for a case-by-case determination as to when 
each ``reopened.'' Congress of course was aware of the continuing 
security requirements and operational restrictions at the airports, and 
nothing in relevant legislative history indicates any basis other than 
airport ``reopening'' as the point at which eligibility for 
reimbursement was to terminate. The Department believes that the 
interpretation it proposed in the NPRM is the one most consistent with 
the Act's language, and provides for a reasonably generous and 
consistent treatment among the airports. As a result, we have not 
modified the ending dates for the reimbursement periods in this Final 
Rule.

Hyde Field Closure

    A number of commenters having their businesses or interests at Hyde 
Field argued that excluding any reimbursements for the period that 
airport was closed for the second time due to a security violation is 
not in keeping with the intent of the legislation and would create an 
undue hardship for them. Typically, they further asserted that they 
were not responsible for any violations, that the closure was for a 
minor security violation that should have taken but a few days to 
resolve, and that the length of the closure was due to government 
delay.
    DOT Response: Section 185 states, ``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 reimbursements.'' While the commenters 
may be correct that they themselves may not have been at fault or 
otherwise responsible for the security violation that closed the 
airport, neither was the United States, and the statute authorizes 
reimbursement only for losses that were ``solely due to the actions of 
the Federal government following the terrorist attacks on the United 
States that occurred on September 11, 2001.'' Moreover, the 
exclusionary language is directed at a situation like the one at Hyde 
Field, and the legislative intent is clear that reimbursements not be 
available if the losses were proximately caused by third parties and 
not the United States. As a consequence, the Department determines that 
Hyde Field and its general aviation service providers will not be 
eligible for reimbursement during the period that the airport was 
closed as a result of violations of the law.

Washington, DC Air Defense Identification Zone (ADIZ)

    One comment raised concerns about the economic impact of the 
Washington, DC Air Defense Zone (ADIZ) on other airports and businesses 
in the Washington, DC metropolitan area. The comment further proposed 
that the ADIZ should be rescinded or modified to reduce the economic 
impact on airports.
    DOT Response: Any losses that are not covered by Section 185 of the 
2006 Appropriations Act are outside the scope of this rule and 
compensation for such losses is beyond the authority of the Department. 
Modifications to the ADIZ, the flight restrictions and maintenance of 
the ADIZ security zone are also not within the scope of this Rule.

Independent Audit Costs

    The NPRM preamble stated that ``larger claims, and any questioned 
claims, would be subject to audit,'' and that the Department is 
``proposing to retain the flexibility to recover the costs of the audit 
from the amount of reimbursement.'' While the NPRM did not go on to 
explain the reasoning behind the latter proposal, it was intended to 
provide an incentive for applicants to resolve their reimbursement 
claims short of an audit. It would also prevent audit costs from always 
being spread as overhead across the entire program, which could 
unfairly reduce reimbursements on a pro rata basis for small entities 
whose applications did not give rise to any issues on review.
    One commenter, a large entity, asserted that the large size of a 
claim should not dictate that it must be audited, and that audits 
should only occur where claims are unresolved after DOT consultation. 
It also argued that Section 185 provides funding for both audits and 
reimbursement of all eligible losses up to the $17 million ceiling. 
Thus, in its view, ``Full reimbursement should be made for any accepted 
claim unless all the funds available have been expended and the 
Department has no choice but to reimburse an applicant for less than 
its accepted claim for losses.'' Several other commenters asserted that 
Section 185 does not provide for any reductions in reimbursement for 
audit costs, one adding that the costs of an

[[Page 17386]]

audit can be substantial, and if this offset principle were effectuated 
it could swallow up the entire amount of a claim.
    DOT Response: While larger claims are more likely to involve 
significant issues and to require an audit, the decision to audit a 
claim will be based on the Department's evaluation of the completeness 
and reasonableness of a claimant's entire application. While DOT has 
the flexibility to offset the cost of an audit against the 
reimbursement amount, it will do so only when reimbursements would need 
to be reduced because ceiling amounts have been reached, and where the 
reason for the audit involved questioned amounts that could not be 
resolved informally. Moreover, the maximum offset would be one-third of 
the total audit cost incurred by the Department. A reduction by one-
third is considered sufficient to achieve the aims of dissuading 
unsupported claims and encouraging cooperation during the resolution 
process.
    It is, of course, entirely possible that an audit would sustain the 
full amount of an applicant's claim, in which case the claim would be 
paid in full (subject of course to the overall $17 million ceiling). 
Only applicants whose claims are not supported by audits would have 
their verified reimbursement allocations reduced, by a maximum of one-
third of their total Departmental audit costs.

Reimbursement for Professional Fees Used in the Application Process

    A trade association argued that fees for professional service used 
in the application process for reimbursement should be eligible for 
repayment by the Federal government. The association stated that many 
of the applicants are small businesses that do not have the resources 
to outsource attorney or accountant services to assist in the 
application process, and that the application process required 
activities that would not be necessary absent the events of September 
11 and the subsequent airport closures.
    DOT Response: Upon review, DOT agrees that the application process 
would benefit, overall, if claimants were able to utilize the services 
of professionals familiar with accounting standards and rules in 
submitting their applications. Particularly where applicants are 
subject to audit and, potentially, to have to pay the costs of that 
audit if any part of their claim is rejected, DOT believes they should 
have professionals available to them to help ensure that their 
applications comply with generally accepted accounting standards and 
thereby meet the Department's requirements. Accordingly, we are 
amending the application form to include a separate line item for 
professional accounting services required in the submission of the 
application, which DOT may reimburse at 80%. (A sharing of cost will 
reduce the prospect for the provision of unnecessary services.) No 
reimbursements will be made for more general accounting or other legal 
or professional services, and all claims will be subject to a review 
for reasonableness. Invoices for services rendered must be attached to 
the application form to allow for prompt determinations to be made on 
allowability. The reimbursement would also be capped at a maximum 
amount of $2,000, which should be more than sufficient in at least the 
great majority of cases for an accountant to provide the services 
needed.

Submission Period

    Several commenters requested an extension of our proposed 
submission deadline of 30 calendar days from the effective date of the 
Final Rule. Two suggested a minimum submission period of 90 days. We 
recognize that some small claimants may need additional time to compile 
their supporting data; however, consideration of giving extra time must 
also factor in other concerns that potential applicants are interested 
in receiving their reimbursement as soon as possible. On this point, a 
trade association had complained that DOT had already taken 
considerable time to publish the NPRM, and called for the remainder of 
the process to be ``clear, concise, and timely.'' In order to balance 
these competing concerns, and also to provide sufficient time for 
accounting professionals to assist applicants, we are establishing a 
submission period of 60 calendar days from the effective date of the 
final rule. We believe that this extension will benefit potential 
applicants that require additional time without burdening all 
applications with 90-day waits.

Funds Available if Set-Aside Reimbursements Underrun $5 Million

    Section 185 requires at least $5 million to be set aside for claims 
originating from College Park Airport, Potomac Airpark, and Washington 
Executive/Hyde Field. One commenter requested that DOT clarify what it 
will do with any funds remaining after all claims are processed from 
these three airports.
    DOT Response: Under the statutory language, after the claims from 
these designated airports are processed, if there are any funds 
remaining from the $5 million set-aside, then that money will be 
available to reimburse valid claims originating from other airports.
    To clarify this point in the Rule, DOT will add a Section 331.37, 
to read as follows:
Sec.  331.37. What will happen to any remaining funds if operators 
and providers at the three Maryland airports make reimbursable 
claims totaling less than $5 million?

    If the operators and providers who are eligible for the $5 
million set-aside do not exhaust the funds designated under the set-
aside, then any remaining money from the set-aside will be made 
available for other valid claims made under this Part.

Assistance Available During the Application Process

    A trade association commented that many of the applicants eligible 
for reimbursement are small businesses and do not regularly develop 
full financial statements and forecasts. The association therefore 
requested that Departmental staff be flexible and provide as much 
assistance as possible to the applicants that need help.
    DOT Response: As discussed above, DOT will provide fee 
reimbursements, to a limited degree, to enable small businesses to 
obtain professional assistance in preparing their applications. We have 
also posted other potentially useful information on DOT's Web site. DOT 
personnel will, to the extent resources permit, answer general 
questions and provide information on such matters as reimbursement 
eligibility and processing status. However, DOT staff will not be able 
to assist in the actual preparation of the applications, or provide tax 
or accounting advice or interpretations.

Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule is nonsignificant for purposes of Executive Order 12866 
and the Department of Transportation's Regulatory Policies and 
Procedures. The rule establishes procedures to provide reimbursement to 
eligible applicants from funds appropriated by Congress. The Department 
administers a number of programs entailing similar procedures. This 
rule 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 the States, the relationship 
between the national government and the States, or the distribution of 
power among the

[[Page 17387]]

national government and the States, such that consultation with the 
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. Many of the 
applicants for reimbursements are likely to be small entities. However, 
the overall benefits to be provided to applicants are modest in size 
and application costs themselves are likely to be low. 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-base 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 will use the 
data submitted by the fixed-base 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 will collect the 
information once from fixed-base general aviation operators and 
providers of general aviation ground support services.
    Respondents: The respondents include an estimated 24 fixed-base 
general aviation operators and providers of general aviation ground 
support service. This estimate is based on the number of fixed-base 
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 will be collected on the Form entitled, 
``Application Form for Reimbursement Under Section 185 of Public Law 
109-115,'' and referenced in 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 rule to require further action. 
Specifically, this rule 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 
that 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.

List of Subjects in 14 CFR Part 331

    Air Transportation, Airports, Airspace, Claims, Grant programs, 
Reporting and recordkeeping requirements.

    Issued this 28th day of March, 2007, at Washington DC.
Mary E. Peters,
Secretary of Transportation.

0
For the reasons set forth in the preamble, the Department adds 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
Sec.
331.1 What is the purpose of this part?
331.3 What do the terms used in this part mean?
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 is the final decision maker on eligibility for, and 
amounts of reimbursement?
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?
331.37 What will happen to any remaining funds if operators and 
providers at the three Maryland airports make reimbursable claims 
totaling less than $5 million?

Appendix to Part 331--Application Form for Reimbursement Under Section 
185 of Public Law 109-115

    Authority: 49 U.S.C. 322(a).

Subpart A--General Provisions


Sec.  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 fixed-base 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.

[[Page 17388]]

Sec.  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-base 
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-base 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-base 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-base general aviation operators or providers of 
general aviation ground support services.


Sec.  331.5  Who may apply for reimbursement under this part?

    If you are or were an eligible fixed-base 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, and incurred direct or incremental losses during 
the applicable reimbursement periods stated at Sec.  331.13 that were 
solely due to the actions of the Federal government following the 
terrorist attacks on the United States on September 11, 2001, you may 
apply for reimbursement 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.


Sec.  331.7  What losses will be reimbursed?

    (a) You may be reimbursed an amount up to the difference between 
the adjusted income you actually or reasonably forecasted for the 
eligible reimbursement period and the actual adjusted income you earned 
during the eligible reimbursement period. If you did not forecast 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 
adjusted income during that period had the airport at which you are or 
were an operator or provider not been closed as the result of Federal 
government actions, and the actual adjusted income you earned during 
the eligible reimbursement period. Adjusted income is calculated on a 
pretax basis. It is the total of Operating Profit or Loss (i.e., Total 
Operating Revenues minus Total Operating Expenses) and Nonoperating 
Income (Loss); however, it excludes certain expenses, including 
lobbying expenses that were incurred to promote reimbursement for 
losses after the terrorist attacks or enact what became Section 185 of 
Pub. L. 109-115. Extraordinary, non-recurring, or unusual adjustments, 
and capital losses are normally ineligible for reimbursement. If you 
wish to claim for such an adjustment or loss, you must demonstrate that 
such adjustments were solely 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.
    (b) 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).
    (c) If you engaged in any non-aviation income-producing activities 
after September 11, 2001, such income must be reported under question 
number 5 in the appendix to this part.
    (d) 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.
    (e) 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).
    (f) Lobbying fees and attorneys' fees incurred to promote 
reimbursement for losses after the terrorist attacks or enact Section 
185 of Pub. L. 109-115 are not eligible for reimbursement.
    (g) 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.


Sec.  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. Payment may 
be made in one or more installments.


Sec.  331.11  What are the limits on reimbursement to operators or 
providers?

    (a) You are eligible to receive reimbursement subject to the set-
aside (subpart C of this part) for eligible operators or providers at 
College Park Airport in College Park, Maryland; Potomac Airfield in 
Fort Washington,

[[Page 17389]]

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 Sec.  
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 of the Act.


Sec.  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.


Sec.  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.


Sec.  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. If 
an audit is necessary, a ceiling amount reached, and the audit does not 
support the claimed amount, your reimbursement may be reduced to cover 
one-third the cost of the audit.


Sec.  331.19  Who is the final decision maker on eligibility for, and 
amounts of reimbursement?

    The Assistant Secretary of Aviation and International Affairs will 
make a final determination of your eligibility and the amount of 
reimbursement you will receive.

Subpart B--Application Procedures


Sec.  331.21  What information must operators or providers submit in 
their applications for reimbursement?

    (a) You must submit the Application Form for Reimbursement under 
Section 185 of Public Law 109-115 (``Application Form''), located in 
the appendix 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-the-fact'' estimate of the amount that you 
would have reasonably expected to accrue as adjusted income had the 
airport at which you are or were an operator or 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 application in the 
appendix to this part 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 
incurred to promote reimbursement for losses after the terrorist 
attacks or enact Section 185 of the Act, and special expenses, as well 
as extraordinary adjustments, as instructed in the appendix to this 
part.
    (j) If you need professional accounting services to assist in the 
preparation of your