Update and Clarification of the Passenger Facility Charge Regulations, 66319-66336 [2023-20559]
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Federal Register / Vol. 88, No. 186 / Wednesday, September 27, 2023 / Proposed Rules
parts. The unsafe condition, if not addressed,
could result in failure of one or more engines,
loss of thrust control, and loss of the
airplane.
(f) Compliance
Comply with this AD within the
compliance times specified, unless already
done.
(g) Required Actions
Except as specified in paragraph (h) of this
AD: Perform all required actions within the
compliance times specified in, and in
accordance with, European Union Aviation
Safety Agency (EASA) AD 2023–0115, dated
June 7, 2023 (EASA AD 2023–0115).
(h) Exceptions to EASA AD 2023–0115
(1) Where EASA AD 2023–0115 defines the
AMP as the approved Aircraft Maintenance
Programme containing the tasks on the basis
of which the scheduled maintenance is
conducted to ensure the continuing
airworthiness of each operated engine, this
AD defines the AMP as the aircraft
maintenance program containing the tasks on
the basis of which the scheduled
maintenance is conducted to ensure the
continuing airworthiness of each operated
airplane.
(2) Where EASA AD 2023–0115 refers to its
effective date, this AD requires using the
effective date of this AD.
(3) This AD does not require compliance
with paragraphs (1), (2), (4), and (5) of EASA
AD 2023–0115.
(4) Where paragraph (3) of EASA AD 2023–
0115 specifies revising the approved AMP
within 12 months after the effective date of
EASA AD 2023–0115, this AD requires
revising the airworthiness limitations section
of the existing approved engine maintenance
or inspection program, as applicable, within
90 days after the effective date of this AD.
(5) This AD does not adopt the Remarks
paragraph of EASA AD 2023–0115.
ddrumheller on DSK120RN23PROD with PROPOSALS1
(i) Provisions for Alternative Actions and
Intervals
After performing the actions required by
paragraph (g) of this AD, no alternative
actions and associated thresholds and
intervals, including life limits, are allowed
unless they are approved as specified in the
provisions of the ‘‘Ref. Publications’’ section
of EASA AD 2023–0115.
(j) Alternative Methods of Compliance
(AMOCs)
(1) The Manager, AIR–520, Continued
Operational Safety Branch, FAA, has the
authority to approve AMOCs for this AD, if
requested using the procedures found in 14
CFR 39.19. In accordance with 14 CFR 39.19,
send your request to your principal inspector
or local Flight Standards District Office, as
appropriate. If sending information directly
to the manager of the branch, send it to the
attention of the person identified in
paragraph (k) of this AD and email to: ANEAD-AMOC@faa.gov.
(2) Before using any approved AMOC,
notify your appropriate principal inspector,
or lacking a principal inspector, the manager
of the local flight standards district office/
certificate holding district office.
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(k) Additional Information
For more information about this AD,
contact Sungmo Cho, Aviation Safety
Engineer, FAA, 2200 South 216th Street, Des
Moines, WA 98198; phone: (781) 238–7241;
email: sungmo.d.cho@faa.gov.
(l) Material Incorporated by Reference
(1) The Director of the Federal Register
approved the incorporation by reference of
the service information listed in this
paragraph under 5 U.S.C. 552(a) and 1 CFR
part 51.
(2) You must use this service information
as applicable to do the actions required by
this AD, unless the AD specifies otherwise.
(i) European Union Aviation Safety Agency
(EASA) AD 2023–0115, dated June 7, 2023.
(ii) [Reserved]
(3) For EASA AD 2023–0115, contact
EASA, Konrad-Adenauer-Ufer 3, 50668
Cologne, Germany; phone: +49 221 8999 000;
email: ADs@easa.europa.eu; website:
easa.europa.eu. You may find this EASA AD
on the EASA website at ad.easa.europa.eu.
(4) You may view this service information
at FAA, Airworthiness Products Section,
Operational Safety Branch, 1200 District
Avenue, Burlington, MA 01803. For
information on the availability of this
material at the FAA, call (817) 222–5110.
(5) You may view this service information
that is incorporated by reference at the
National Archives and Records
Administration (NARA). For information on
the availability of this material at NARA,
email: fr.inspection@nara.gov, or go to:
www.archives.gov/federal-register/cfr/ibrlocations.html.
Issued on September 22, 2023.
Victor Wicklund,
Deputy Director, Compliance & Airworthiness
Division, Aircraft Certification Service.
[FR Doc. 2023–21090 Filed 9–25–23; 4:15 pm]
BILLING CODE 4910–13–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 158
[Docket No.: FAA–2022–1315; Notice No.
23–14]
RIN 2120–AL86
Update and Clarification of the
Passenger Facility Charge Regulations
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
The FAA proposes to amend
its Passenger Facility Charge regulations
to implement changes to an existing
pilot program that resides within the
Passenger Facility Charge program. This
Congressionally mandated pilot
program simplifies the process for
public agencies controlling commercial
SUMMARY:
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66319
service airports to obtain FAA authority
to impose and use Passenger Facility
Charges to fund airport development
projects. The FAA also proposes to
reaffirm existing program requirements
and update or remove obsolete
references within the Passenger Facility
Charge regulations. Further, this
proposed action removes certain
Passenger Facility Charge program
requirements eliminated in the 2018
FAA reauthorization legislation.
DATES: Send comments on or before
November 27, 2023.
ADDRESSES: Send comments identified
by docket number FAA–2022–1315
using any of the following methods:
• Federal eRulemaking Portal: Go to
www.regulations.gov and follow the
online instructions for sending your
comments electronically.
• Mail: Send comments to Docket
Operations, M–30; U.S. Department of
Transportation (DOT), 1200 New Jersey
Avenue SE, Room W12–140, West
Building Ground Floor, Washington, DC
20590–0001.
• Hand Delivery or Courier: Take
comments to Docket Operations in
Room W12–140 of the West Building
Ground Floor at 1200 New Jersey
Avenue SE, Washington, DC, between 9
a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
• Fax: Fax comments to Docket
Operations at 202–493–2251.
Privacy: In accordance with 5 U.S.C.
553(c), DOT solicits comments from the
public to better inform its rulemaking
process. DOT posts these comments,
without edit, including any personal
information the commenter provides, to
www.regulations.gov, as described in
the system of records notice (DOT/ALL–
14 FDMS), which can be reviewed at
www.dot.gov/privacy.
Docket: Background documents or
comments received may be read at
www.regulations.gov at any time.
Follow the online instructions for
accessing the docket or go to the Docket
Operations in Room W12–140 of the
West Building Ground Floor at 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: For
technical questions concerning this
action, contact Jane Johnson, Office of
Airports, Airports Policy Branch, APP–
510, Federal Aviation Administration,
800 Independence Avenue SW, Room
619, Washington, DC 20591; telephone
(202) 267–5878; email jane.johnson@
faa.gov.
SUPPLEMENTARY INFORMATION:
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Federal Register / Vol. 88, No. 186 / Wednesday, September 27, 2023 / Proposed Rules
Table of Contents
I. Executive Summary
I. Executive Summary
II. Overview of the Proposal
III. Authority for this Rulemaking
IV. History of the PFC Program
V. Discussion of the Proposal
A. 2018 Reauthorization Act
1. Changes to Project Eligibility for PFC
Levels Above $3
2. Changes to Applications and Notices of
Intent
B. PFC Program Oversight
1. Reporting, Recordkeeping and Audit
Requirements
2. Federal Oversight, Informal Resolution,
and Termination
C. Miscellaneous Amendments
1. Changes to Subpart A
2. Changes to Subpart B
3. Changes to Subpart C
4. Changes to Subpart D
5. Changes to Subpart E
6. Changes to Subpart F
7. Changes to Appendix A
8. Section Cross-Reference Table
VI. Regulatory Notices and Analyses
A. Regulatory Evaluation
1. Need for the Regulation
2. Baseline for the Analysis
3. Benefits
4. Costs
5. Regulatory Alternatives
B. Regulatory Flexibility Determination
C. International Trade Impact Assessment
D. Unfunded Mandates Assessment
E. Paperwork Reduction Act
F. International Compatibility
G. Environmental Analysis
VII. Executive Order Determinations
A. Executive Order 13132, Federalism
B. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Government
C. Executive Order 13211, Regulations
That Significantly Affect Energy Supply,
Distribution, or Use
D. Executive Order 13609, International
Cooperation
VIII. Additional Information
A. Comments Invited
B. Availability of Rulemaking Documents
The FAA proposes to amend its PFC
regulations to implement changes to a
Congressionally mandated pilot
program that simplifies the process for
public agencies controlling commercial
service airports to obtain FAA authority
to impose and use PFCs to fund airport
development projects. The FAA also
proposes to reaffirm existing PFC
program requirements and update or
remove obsolete references within the
PFC regulations. Further, this proposed
action removes certain PFC program
requirements eliminated in the 2018
FAA reauthorization legislation.
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List of Abbreviations and Acronyms
Frequently Used in This Document
AIP—Airport Improvement Program
ALP—Airport Layout Plan
CBI—Confidential Business Information
CFR—Code of Federal Regulations
DOT—U.S. Department of Transportation
FAA—Federal Aviation Administration
FOIA—Freedom of Information Act
ICAO—International Civil Aviation
Organization
IRFA—Initial Regulatory Flexibility Analysis
NEPA—National Environmental Policy Act
NPIAS—National Plan of Integrated Airport
Systems
NPRM—Notice of Proposed Rulemaking
OIG—Office of Inspector General
OMB—Office of Management and Budget
PFC—Passenger Facility Charge
RFA—Regulatory Flexibility Act
RIA—Regulatory Impact Analysis
SBA—Small Business Administration
U.S.C.—United States Code
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II. Overview of the Proposal
The FAA Reauthorization Act of 2018
(2018 Reauthorization Act),1 codified at
49 U.S.C. 40117, mandated several
changes to the Passenger Facility Charge
(PFC) program. The 2018
Reauthorization Act removed previously
existing PFC program requirements and
mandated changes for other PFC
program requirements. This rulemaking
action proposes to amend the PFC
regulations in part 158 to implement the
mandated changes.
The FAA also proposes to amend the
PFC regulations to improve PFC
program oversight. On December 18,
2018, the U.S. Department of
Transportation, Office of Inspector
General (OIG) issued Report No.
AV2019015, ‘‘Most Public Agencies
Comply with Passenger Facility Charge
Program Requirements, But FAA Can
Improve the Use of Its Oversight Tools.’’
In that report, the OIG made several
recommendations to improve the FAA’s
oversight and administration of the PFC
program.2 These recommendations
pertained primarily to PFC reporting,
recordkeeping, and audit procedures.
Through this rulemaking, and as
detailed in sections V.B.1. and V.B.2,
the FAA is proposing to formalize in
regulations policies that the FAA
implemented in May 2019, in response
to the OIG’s recommendations.3
Further, the FAA is proposing several
miscellaneous amendments to the PFC
regulations, including but not limited
to: replacing obsolete references,
correcting grammar or rewording
language for clarity, and re-organizing
and re-numbering sections to facilitate
other amendments proposed in this
rulemaking action. See section V.C.10.
in this preamble for a cross-reference
1 Public
Law 115–254, October 5, 2018.
Report No. AV2019015 at 3.
3 See PFC Update 71–19, ‘‘Oversight of Public
Agency Passenger Facility Charge (PFC) Program,’’
issued April 1, 2019, on the FAA internet website.
table listing CFR units that the FAA
proposes to rename, re-number, or both.
III. Authority for This Rulemaking
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the United States Code
(U.S.C.). Subtitle I, section 106 describes
the authority of the FAA Administrator.
Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority. This rulemaking is
promulgated under the authority
described in subtitle VII, part A, subpart
I, section 40117. Under that section, the
FAA is charged with prescribing
regulations to impose a passenger
facility fee to finance eligible airportrelated projects.
This rulemaking is also promulgated
pursuant to 49 U.S.C. 106(g), 40116,
47106, 47111, 47114–47116, 47524, and
47526.
IV. History of the PFC Program
The PFC program was established by
the Aviation Safety and Capacity
Expansion Act of 1990 (Pub. L. 101–508;
enacted November 5, 1990) which
authorized the Secretary of
Transportation (Secretary) to approve
local imposition of PFCs of $1, $2, or $3
per enplaned passenger and to use PFC
revenue for approved projects. That Act
also required the Secretary to issue
regulations necessary to implement this
authority. The Act directed the
Secretary to develop an application
procedure, establish terms and
conditions for granting PFC authority,
set up a system for collecting, handling,
and remitting PFC revenue to the
appropriate public agency, and establish
recordkeeping and audit requirements
and procedures for termination. On May
22, 1991, the FAA issued a final rule
adopting new regulations to establish
the PFC program in part 158.4
Pursuant to the Wendell H. Ford
Aviation Investment and Reform Act for
the 21st Century (AIR 21), the FAA
issued a final rule amending part 158 on
May 23, 2000.5 That action amended the
PFC regulations to incorporate
administrative and statutory changes in
the procedures to establish PFCs,
including increasing the PFC level that
a public agency may charge from $1, $2,
or $3 to $4 or $4.50.
On January 7, 2005, the FAA issued
a final rule further amending part 158.6
In that rulemaking action, the FAA
created a new pilot program, as
statutorily mandated by Vision 100—
Century of Aviation Reauthorization
2 OIG
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4 56
FR 24254 (May 29, 1991).
FR 34536 (May 30, 2000).
6 70 FR 14927 (March 23, 2005).
5 65
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Federal Register / Vol. 88, No. 186 / Wednesday, September 27, 2023 / Proposed Rules
Act 7 (Vision 100), to test alternative
procedures to authorize public agencies
to impose PFCs and use PFC revenue for
eligible projects at non-hub airports.
Specifically, the FAA added current
§ 158.30 to prescribe the procedures a
public agency controlling a non-hub 8
airport must follow when notifying the
FAA of its intent to impose a PFC and
to use PFC revenue on a project. That
section also set forth criteria and
standards for FAA review and
acknowledgment of any notice of intent
filed under the pilot program, and FAA
objection to a proposed project. Since
Vision 100 required the pilot program to
be in effect for three years from the date
the final rule was enacted, the final rule
included a sunset provision of May 9,
2008.
The Federal Aviation Extension Act of
2008 9 authorized the non-hub pilot
program to continue through September
30, 2008. However, when § 158.30
expired on May 9, 2008, there were no
effective regulations in place to guide
public agencies and the FAA regarding
the use of these alternative procedures.
Therefore, the FAA published a notice
in the Federal Register informing public
agencies of the program’s continuing
statutory authority, and the FAA
periodically issued internal agency
guidance in the form of PFC updates to
inform agency personnel of how to
administer the non-hub pilot program.
The FAA Modernization and Reform
Act of 2012 subsequently eliminated the
expiration date from 49 U.S.C. 40117(l)
and the FAA continued implementing
the non-hub pilot program in
accordance with the statute in the
absence of effective regulations.10 The
agency continued to use the same forms
and procedures that were developed
before the sunset of § 158.30, thereby
allowing for seamless program
continuation.
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V. Discussion of the Proposal
The FAA is proposing to amend the
PFC program regulations. These
proposed amendments are grouped into
the following three categories based on
the rationale for the proposed change:
2018 Reauthorization Act, PFC Program
Oversight, and Miscellaneous
Amendments.
7 Vision
100, 49 U.S.C. 40117(l) (December 12,
2003).
8 Non-hub airport means a commercial service
airport that has less than 0.05 percent of the
passenger boardings. 49 U.S.C. 47102(14).
9 Public Law 110–253, June 30, 2008.
10 Although § 158.30 expired on May 9, 2008, the
text of the regulation continues to be printed in the
Code of Federal Regulations because of the
corresponding removal of the expiration date in the
2012 Act. This rulemaking action would remove
that obsolete language.
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A. 2018 Reauthorization Act
This rulemaking action proposes the
following changes to the PFC program
as mandated by the 2018
Reauthorization Act: (1) changes related
to project eligibility for PFC levels above
$3, and (2) changes related to
applications and notices of intent for
small- 11, medium- 12, and large-hub 13
airports.
1. Changes to Project Eligibility for PFC
Levels Above $3
(a) Background
At the inception of the PFC program,
public agencies received authority to
impose a PFC of $1, $2, or $3. The
project eligibility requirements are
contained in current § 158.15, ‘‘Project
eligibility at PFC levels of $1, $2 or $3.’’
AIR 21 modified the PFC program by
allowing a public agency to apply to the
FAA to increase the PFC level that it
may charge to $4 or $4.50 in certain
instances. Project Eligibility
requirements at PFC Levels of $4 or
$4.50 are found in current § 158.17.
Section 158.17 (a)(1) requires these
projects to also meet the eligibility
requirements of § 158.15.
AIR 21 limited projects funded at a $4
or $4.50 PFC level to those that could
not be paid for from funds reasonably
expected to be available under the
Airport Improvement Program (AIP).
The requirement for this AIP funds
reasonability determination is found in
current § 158.17(a)(2).
AIR 21 also conditioned the funding
of surface transportation or terminal
projects at the $4 or $4.50 level on a
finding that the public agency had made
adequate provision for financing the
airside needs 14 of the airport. The
requirement for this airside needs
determination is found in current
§ 158.17(a)(3).
Further, AIR 21 established additional
eligibility requirements for projects at
medium- and large-hub airports. A
project at a medium- or large-hub
airport was eligible for PFC funding at
$4 or $4.50 only if the project would
make a significant contribution to:
improving air carrier safety and
security; increasing competition among
11 Small hub airport means a commercial service
airport that has at least 0.05 percent but less than
0.25 percent of the passenger boardings. 49 U.S.C.
47102(25).
12 Medium hub airport means a commercial
service airport that has at least 0.25 percent but less
than 1.0 percent of the passenger boardings. 49
U.S.C. 47102(13).
13 Large hub airport means a commercial service
airport that has at least 1.0 percent of the passenger
boardings. 49 U.S.C. 47102(11).
14 Airside needs include runways, taxiways,
aprons, and aircraft gates.
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66321
air carriers; reducing current or
anticipated congestion; or reducing the
impact of aviation noise on people
living near the airport. These
requirements are contained in current
§ 158.17(b).
(b) Removal of AIP Funds Reasonability
Determination
The 2018 Reauthorization Act
amended 49 U.S.C. 40117(b)(4) by
removing the AIP funds reasonability
determination requirement found in
current § 158.17(a)(2). With this change
in legislation, the FAA no longer uses
this determination to set the collection
level for which the project is approved.
On May 9, 2019, the FAA issued PFC
Update 72–19, ‘‘Changes to the
Passenger Facility Charge Levels Above
$3,’’ directing FAA personnel to cease
applying this requirement while
reviewing PFC applications. In this
rulemaking action, the FAA proposes to
formally remove this requirement from
the PFC regulations.
(c) Removal of Significant Contribution
Determination
The 2018 Reauthorization Act also
eliminated the significant contribution
requirement found in current
§ 158.17(b). As a result, the FAA no
longer uses it to determine the
collection level for which a project is
approved and no longer requires public
agencies to submit information related
to significant contribution. PFC Update
72–19 directs FAA personnel to no
longer apply this requirement in
reviewing PFC applications and the
FAA proposes to remove the
requirement from the PFC regulations.
Moving forward, the FAA would rely on
airside needs as the determining factor.
(d) Retention of Airside Needs
Determination
The 2018 Reauthorization Act retains
the airside needs determination under
49 U.S.C. 40117(d)(4) found in current
§ 158.17(a)(3). Since the airside needs
determination is the only requirement
remaining within § 158.17 after making
the 2018 Reauthorization Act changes,
aside from the requirement to comply
with § 158.15, the FAA proposes to
combine these two sections.
Specifically, the FAA proposes to move
the airside needs requirement in
§ 158.17(a)(3) to § 158.15 by adding a
new proposed paragraph (d) to current
§ 158.15 and restating the airside needs
requirement, which continues to remain
effective. The FAA also proposes to
rename § 158.15 as ‘‘Project
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Federal Register / Vol. 88, No. 186 / Wednesday, September 27, 2023 / Proposed Rules
eligibility’’ 15 and delete the current text
of § 158.17 in its entirety. Consolidating
the project eligibility requirements into
one section and changing the section
title will improve accessibility and
comprehension of the requirements.
The FAA also proposes administrative
amendments to replace references to
former § 158.17(a)(3) throughout part
158 with references to proposed
§ 158.15(d). These administrative
amendments are discussed further
under section V.C. below.
2. Changes to Applications and Notices
of Intent
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(a) Background
The statutory provisions initially
authorizing the PFC program required
public agencies to submit an application
to the FAA to obtain authority to impose
PFCs and use PFC revenue. However,
Vision 100 established the notice of
intent process, mandating that the FAA
create a pilot program to test alternative
procedures for authorizing eligible
agencies for non-hub airports to impose
PFCs and use PFC revenue.
Under the non-hub pilot program,
only public agencies controlling nonhub airports could use alternative
procedures to impose PFCs and use PFC
revenue on eligible projects under 49
U.S.C. 40117(l). In lieu of submitting an
application in accordance with 49
U.S.C. 40117(c), as prescribed in current
§ 158.25, public agencies controlling
non-hub airports simply could submit a
notice of intent to impose a PFC and use
PFC revenue. Under these alternative
procedures, within 30 days of receipt of
the public agency’s notice, the FAA
either objected to the public agency’s
proposed project(s) or acknowledged the
public agency’s notice of intent.
The 2018 Reauthorization Act
amended 49 U.S.C. 40117(l) by
removing all references to non-hub
airports. This legislative change
effectively directed the FAA to extend
the pilot program to small-, medium-,
and large-hub airports, permitting these
airports to also obtain authority to
impose PFCs and use PFC revenue using
alternative notice of intent procedures.
(b) PFC Update 73–20 and Partial
Implementation of Program Changes
Immediately following enactment of
the 2018 Reauthorization Act, the FAA
considered several options for
implementing the PFC program changes.
15 Prior to AIR 21 and the subsequent final rule
allowing for the $4 or $4.50 PFC level, all project
eligibility requirements were listed in § 158.15,
which was titled Project eligibility. In this
rulemaking, the FAA proposes to return to that
former structure of the PFC regulation for project
eligibility.
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Since the FAA had been successfully
implementing notice of intent
procedures for non-hub airports for
several years, such procedures seemed
most appropriate for PFC authorizations
for small-, medium-, and large-hub
airports. However, rulemaking to amend
part 158 would have been required to
change the application requirements for
public agencies.
Recognizing the immediate need for
expeditious processing of PFC
applications, the FAA internally
implemented program changes to the
maximum extent possible. On January
22, 2020, the FAA issued PFC Update
73–20, ‘‘Streamlined Procedures for
Passenger Facility Charge (PFC)
Authorizations at Small-, Medium-, and
Large-Hub Airports.’’ This interim
internal guidance partially implemented
the program change by streamlining the
FAA’s internal review of PFC projects
meeting specific criteria for small-,
medium-, and large-hub airports. This
interim internal guidance did not
change the PFC application procedures
for public agencies. All applications
were still required to meet the statutory
and regulatory requirements of 49
U.S.C. 40117 and part 158.
PFC Update 73–20 indicated that all
PFC applications received by the FAA
from small-, medium-, or large-hub
airports are to be processed using the
streamlined procedures identified in the
PFC update unless such applications are
excluded in accordance with applicable
PFC guidance. Therefore, all PFC
applications not excluded under PFC
Update 73–20 are to be treated as a
notice of intent with FAA review and
acknowledgment or objection within 30
days.
(c) Proposed Amendments for Full
Implementation of Program Changes
The FAA proposes to amend part 158
to allow for the full implementation of
program changes originating from the
2018 Reauthorization Act. The FAA’s
proposed regulations largely mirror the
provisions of PFC Update 73–20 to
implement the notice of intent pilot
program.
The FAA proposes to revise § 158.30
to reflect the 2018 Reauthorization Act
program changes and remove the sincerescinded section expiration date,
which will provide consistency with
current practice and law. Current
§ 158.30 prescribes regulations for
notice of intent PFC authorizations for
non-hub airports; however, § 158.30(h)
indicates that § 158.30 expired on May
9, 2008. The FAA also intends to move
some of the provisions found in § 158.30
to other sections within part 158 to
improve readability of the notice of
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intent requirements. The FAA is
proposing this re-organization of
§ 158.30 to allow for the inclusion of
notice of intent provisions stemming
from PFC Update 73–20 and the FAA’s
partial implementation of the program
changes. These proposed changes are
discussed in the following paragraphs.
First, the FAA proposes to amend
current § 158.30 by renaming the section
heading ‘‘Notices of intent.’’ While
§ 158.30(a) through (c) would remain
largely the same, the FAA is proposing
to make several changes. For example,
the FAA proposes revising current
paragraph (a) by removing language that
limits the applicability of § 158.30 to
non-hub airports. The FAA is also
proposing minor changes to the project
information requirements of current
§ 158.30(b). That paragraph requires
public agencies to submit grant-related
information when a PFC project is also
funded by an AIP grant. The FAA
proposes to replace references to AIP
grants with ‘‘FAA awarded airport
grant’’ so as to include information
about other grants also funding the
project, such as those authorized under
the Bipartisan Infrastructure Law (BIL).
Further, the FAA is adding a new
paragraph, proposed § 158.30(b)(8),
requiring public agencies to submit
detailed cost information for non-AIP
funded projects that exceed $10 million.
Second, the FAA proposes to move
the text of current § 158.31, ‘‘Duration of
authority to impose a PFC after project
implementation’’ to an amended
§ 158.33, and move the text of current
§ 158.30(d), which includes the notice
of intent review requirements, to an
amended and proposed § 158.31,
‘‘Review of notices of intent.’’ In turn,
the FAA proposes to move the current
text of § 158.33, ‘‘Duration of authority
to impose a PFC before project
implementation,’’ to a newly added
proposed § 158.34.
Proposed § 158.31 describes the
FAA’s rules for reviewing notices of
intent and outlines two stages of FAA
review. The first stage of review, which
is prescribed in proposed § 158.31(a),
addresses the types of applications and
projects ineligible for notice of intent
consideration. The second stage of
review, which is prescribed in
§ 158.31(b), addresses the FAA’s
determinations on projects eligible for
notice of intent consideration.
Under proposed § 158.31(a), the FAA
will review notices of intent to identify
projects ineligible for consideration
under this streamlined process. The
FAA intends to notify public agencies in
writing within 30 days if the FAA
determines that a project is ineligible for
the notice of intent procedure. This
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notification process, outlined in
proposed § 158.31(a), was not
prescribed in PFC Update 73–20.
The projects ineligible for
consideration under proposed
§ 158.31(a)(1) through (a)(8) are
identical to those ineligible for the
streamlined procedures under PFC
Update 73–20. In determining the types
of projects ineligible for streamlined
procedures under PFC Update 73–20,
the FAA considered the agency’s
internal delegations of authority as
delineated in PFC Order 5500.1,
‘‘Passenger Facility Charge,’’ issued
August 9, 2001. That document
identifies certain types of PFC projects
and applications that cannot be
processed by the FAA’s region and
district offices because they require a
higher level of internal FAA review and
coordination within agency
headquarters. Applications involving
significant policy precedent, significant
legal issues, significant controversy,
multimodal projects, and significant
noise, access, or revenue diversion
issues are not eligible for streamlined
processing under PFC Update 73–20.
For reasons discussed in the next few
paragraphs, the FAA proposes to
incorporate these provisions within the
regulations.
Under proposed § 158.31(a)(1), the
FAA intends to review notices of intent
for significant impacts on policy
precedent. The FAA’s disposition
regarding a proposed PFC project could
represent a significant policy precedent
if the agency’s decision would establish
or change the FAA’s policy on a project
or issue. FAA review of such a project
would typically require more than the
30 days afforded by the notice of intent
process because the FAA would need to
evaluate any potential impacts resulting
from a change in policy.
Similarly, under proposed
§ 158.31(a)(2), the FAA intends to
review notices of intent for projects with
significant legal issues, as determined
by the FAA’s Office of the Chief Counsel
or Office of Airports. Projects with
significant legal issues involve matters
that may result in litigation or may
include projects where NEPA or
environmental litigation are present.
Such projects might also include
circumstances where a Director within
the FAA’s Office of Airports has made
a determination that the public agency
has been found to be noncompliant in
14 CFR part 16 proceedings, or the
public agency is presently a respondent
in 14 CFR part 16 proceedings. Again,
such projects need a level of review that
requires more than the 30 days afforded
by the notice of intent process.
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PFC projects that are the subject of
significant controversy are also
ineligible for streamlined procedures in
accordance with § 158.31(a)(3).
Significant controversy is evidenced by
opposition expressed during a public
agency’s consultation with air carriers.
Other indicators of potential significant
controversy include adverse public
comments or opposition to the FAA’s
proposed action from other airport
authorities, airport users, Federal, State,
or local governments, elected officials or
communities. Likewise, multimodal
projects or projects involving significant
airport noise, access, or revenue
diversion issues are also ineligible for
these alternative procedures in
accordance with proposed § 158.31(a)(4)
and (a)(5). Significant airport noise,
access, or revenue diversion issues
concern those assessing compliance
with 49 U.S.C. 47521 et seq. (ANCA)
and 49 U.S.C. 47111(e) (Action on Grant
Assurances Concerning Airport
Revenues).
The FAA also considered PFC Update
62–10, ‘‘Passenger Facility Charge
Delegation of Authority,’’ issued March
11, 2010, in determining the types of
projects ineligible for streamlined
procedures under PFC Update 73–20.
That document identifies additional
types of PFC projects and applications
that cannot be processed by the FAA’s
regional and district offices. These
include debt service on otherwise
ineligible projects or blending of two or
more PFC decisions to obtain a uniform
collection level. Such projects and
applications require specialized review
because they tend to be unique and
multifaceted. The next few paragraphs
discuss the FAA’s intent to retain these
exclusions as proposed § 158.31(a)(6)
and (a)(7).
In proposed § 158.31(a)(6), the FAA
proposes to exclude applications
involving debt service from the notice of
intent streamlined procedures due to
the complexity of these applications.
When applying to use PFC revenue for
certain debt service projects, the FAA
encourages each airport to thoroughly
discuss in its application those factors it
believes most clearly indicate the
airport’s financial need. The FAA will
consider the airport’s plans to return to
financial stability in its deliberations on
the application. If incurring new debt,
for any purpose, will help the airport
return to financial stability as soon as
possible, the public agency should
discuss this factor in the application.
The FAA also expects an airport
attempting to demonstrate that it faces
a financial crisis to discuss factors likely
to affect its ability to make required
payments in the future. Notice of intent
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procedures would not be appropriate in
such instances because the FAA’s
evaluation process is too extensive to be
completed within 30 days. A longer
time frame for review is necessary
because this gives the public agency
time to respond to any requests for
information from the FAA should the
application not contain all of the
necessary documentation. For example,
if during the course of review, the FAA
finds that the public agency needs to
provide a plan to return to financial
stability, 30 days is insufficient to allow
for the public agency to develop and
submit the plan in order to move
forward with the application. Since
there is not sufficient time allotted for
adequate review under the notice of
intent process, the FAA proposes to
exclude these types of projects and
applications.
The FAA proposes to exclude
applications for the blending of two or
more PFC decisions to obtain a uniform
collection level under proposed
§ 158.31(a)(7) for reasons similar to debt
service on otherwise ineligible projects.
Prior to the 2018 Reauthorization Act,
public agencies sought to blend PFC
applications to enable PFC collections at
the higher $4 or $4.50 amount when
significant contribution was a
determining factor. Since the significant
contribution determination has been
eliminated and public agencies no
longer need to demonstrate significant
contribution to collect PFCs at the $4 or
$4.50 level, the FAA does not anticipate
receiving many public agency
applications for blending. However, in
the rare event that a public agency does
seek to blend applications, the FAA has
found that such action requires a
specialized review and analysis that is
likely to exceed the 30 days afforded by
the notice of intent process. Therefore,
the FAA excluded blending under PFC
Update 73–20 and proposes that
application blending should remain
ineligible for the streamlined notice of
intent procedures.
Finally, PFC Update 73–20 describes
one more type of PFC project ineligible
for streamlined processing. Terminal
building projects in excess of $25
million, except stand-alone passenger
boarding bridges, are also ineligible for
streamlined processing under PFC
Update 73–20. The FAA proposes to
retain this exclusion as proposed
§ 158.31(a)(8) for reasons discussed in
the following paragraphs.
The initial justification for non-hub
airport notice of intent procedures was
to achieve PFC program efficiency by
eliminating duplicative efforts. In 2002,
the FAA examined the PFC program to
identify ways to remove unnecessary,
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duplicative, and time-consuming steps.
The FAA found that while non-hub
airports accounted for about 60 percent
of the PFC applications processed over
the prior five years, they only produced
roughly two percent of the total annual
PFC revenue. Further, the FAA found
that non-hub airports often apply to use
PFC revenue either as their matching
share for an AIP grant or as a
supplement to AIP funding. In such
cases involving AIP funds, the FAA has
already reviewed the project under the
AIP grant procedures, thereby
producing a duplication of efforts that
created inefficiencies for both non-hub
airports and the FAA. Thus, overall,
enactment of the non-hub pilot program
eliminated duplication, improved
program efficiency, and supported
expedited review of PFC projects for
non-hub airports.
Under the non-hub pilot program for
notices of intent, when PFC projects did
not include AIP funds, the FAA
required public agencies to submit
project information sufficient for the
FAA to review and consider whether
the project is eligible for PFCs, meets a
PFC objective, and is justified before
acknowledging or objecting to a
proposed PFC project. While terminal
projects for non-hub airports typically
fell into this category, the scale of such
projects and the level of complexity
tend to be minimal due to the nature of
non-hub operations, allowing for review
within the 30-day timeframe. However,
in partially implementing program
changes under PFC Update 73–20, the
FAA concluded that terminal building
projects for small-, medium-, and largehub airports, on the other hand, may
need more than the 30 days afforded
under the notice of intent process.
Endeavoring to retain PFC program
efficiencies gained through the notice of
intent process while still allowing for
adequate review and evaluation of
terminal projects, the FAA implemented
a $25 million threshold for terminal
projects under PFC Update 73–20
regardless of airport hub size. Since
inception of the PFC program, the vast
majority of non-hub terminal PFC
projects were less than $25 million. The
$25 million threshold allows nearly all
non-hub airport terminal projects to
continue to obtain PFC authority
through the notice of intent process as
they have done historically and allows
a vast majority of terminal projects for
small-, medium-, and large-hub airports
to also use this process.
Terminal projects at or over $25
million, in most cases, require a more
extensive review on the part of the FAA
to ensure the project has been fully
assessed. Concluding from years of
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experience with terminal projects, the
FAA found that projects above $25
million tend to involve more systems
and components than smaller projects
and have a greater potential to include
spaces and equipment ineligible for
funding under the PFC program.
Therefore, these projects require a more
comprehensive review, such as
comparison against comparable projects,
which would take more than the 30-day
notice of intent period. The FAA does
not propose changes to this limitation
found in proposed § 158.31. The
numerous components associated with
projects at or over $25 million generally
require a more extensive review on the
part of the FAA to ensure the project has
been fully assessed. The application
evaluation process may include
determining if the submission includes
sufficient documentation to demonstrate
adequate justification for the project;
determining whether the project is
eligible for PFC funds; assessing the
project objective and justification
provided by the public agency;
reviewing submission of detailed
financial information; evaluating
modifications to standards; assessing
impacts to airport geometry; and
determining whether it is necessary to
engage in interagency coordination.
There may be a need to coordinate with
border control agencies or other Federal
agencies on the impact of this
application and project with respect to
these agencies’ equities. Other review
factors can include amount and
duration of the PFC; compliance with
airport revenue use requirements;
alternative uses; air carrier and public
comments; compliance with the Airport
Noise and Capacity Act of 1990 (ACNA);
airport layout plan (ALP), airspace, and
National Environmental Policy Act
(NEPA) requirements; the schedule for
project implementation; and financial
viability of the project. Since many of
these determinations and factors are
present when a project reaches the $25
million threshold, such projects cannot
be streamlined.
(d) PFC Update 50–06 and 2018
Reauthorization Pilot Program
Implementation
The FAA proposes a minor revision to
the information that public agencies
must submit to the FAA with a notice
of intent when seeking authority to
impose a PFC. Specifically, the FAA
proposes to add §§ 158.25(b)(8) and
158.30(b)(3)(iv) directing public
agencies to submit detailed cost
information, as required by the
Administrator. The FAA’s policy on
requesting this information from public
agencies is currently outlined in PFC
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Update 50–06, ‘‘Detailed basis of cost
information, new project certifications,
and changes to the Final Agency
Decision,’’ issued September 8, 2006.
The FAA issued PFC Update 50–06 in
response to Village of Bensenville, et al.
v. Federal Aviation Administration, a
U.S. Court of Appeals, District of
Columbia Circuit decision, that found
the FAA had not adequately
demonstrated that it had reviewed the
cost estimates for an Environmental
Impact Statement (EIS) project and that
the FAA’s records did not support its
findings in its decision.16 With the
issuance of PFC Update 50–06, the FAA
began requesting the submission of
detailed cost information with PFC
applications under the authority of
current § 158.25(b)(18), which directs
public agencies to submit ‘‘[s]uch
additional information as the
Administrator may require.’’
Attachment B to the PFC Application
Form 5500–1 explicitly requires public
agencies to submit cost details sufficient
to identify eligible and ineligible costs
if the project amount is over $10
million, as a result of the decision by
the court.
The detailed cost submission
requirement for small-, medium-, and
large-hub airports has not changed with
the availability of the notice of intent
process, but this requirement will now
apply to non-hub airports. Prior to the
2018 Reauthorization Act, non-hub
airports obtaining PFC authority
through the notice of intent process
were not subject to the detailed cost
submission requirements. In PFC
Update 50–06, the FAA stated that most
non-hub pilot program projects have
either existing or planned AIP funding,
and these grants involve an FAA review
of the costs. Also, most non-hub pilot
program projects request less than $10
million in PFC funding authority.
Further, the FAA indicated the 30-day
pilot program-processing period does
not provide enough time for the FAA to
review detailed cost estimates for
multiple projects. Section 158.30(b)(7)
(which expired on May 9, 2008—See
footnote 1) directed public agencies to
include ‘‘any additional information the
Administrator may require’’ with a
notice of intent. The FAA proposes to
include this language in § 158.30(b)(7).
Similarly, the FAA does not propose to
change current policy that non-hub
airports must provide detailed cost
information when submitting an
application under § 158.25 and the
project amount is over $10 million.
16 Village of Bensenville, et al. v. Federal Aviation
Administration, 376 F.3d 1114, 1122 (D.C. Cir.
2004).
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Since the 2018 Reauthorization Act
effectively eliminated any distinction
between hub and non-hub notice of
intent submissions, the requirement for
detailed cost information now extends
to non-hub airports. The FAA proposes
to add a new subparagraph
§ 158.30(b)(3)(iv) to clearly indicate
within the PFC regulations that
submission of cost detail information
may be required as part of a notice of
intent filing, regardless of hub size. The
FAA anticipates the impact of this
provision on public agencies will be
minimal. Since the FAA proposes to
restrict the types of projects eligible for
streamlined procedures, the FAA
expects that very few projects would
require this comprehensive review of
material within the 30-day period.
Further, public agencies already possess
detailed cost information for proposed
projects in most cases. Adding this
requirement merely directs public
agencies to submit such information to
the FAA for consideration along with a
notice of intent filing.
ddrumheller on DSK120RN23PROD with PROPOSALS1
B. PFC Program Oversight
The proposed regulatory changes to
program oversight stem from PFC
Update 71–19 and a review of current
policies. The proposed changes
formalize the policies contained in PFC
Update 71–19, improve the informal
resolution process, and restructure the
current layout of the oversight
regulations found in part 158 to improve
accessibility and program compliance.
1. Reporting, Recordkeeping and Audit
Requirements
On April 1, 2019, the FAA issued PFC
Update 71–19, Oversight of Public
Agency Passenger Facility Charge (PFC)
Program, in response to certain
recommendations from the OIG,
contained in Report # AV2019015. In
that report, the OIG asserted that the
FAA lacked a process to ensure that
independent audit reports are timely
and include required information. The
OIG recommended that the FAA
establish specific timeframes for issuing
audit reports and verify that public
agencies’ independent audits are
performed annually.
Public agencies are required to
conduct an audit of their PFC accounts
at least annually in accordance with
current § 158.67(c). To ensure that these
audit reports are submitted in a timely
manner, PFC Update 71–19 directs the
FAA to request that public agencies
submit annual PFC audit reports 30
calendar days after receipt of the
auditor’s report or 9 months after the
end of the audit period. The FAA
proposes to amend § 158.69 to formalize
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this guidance to now require public
agencies to provide a copy of their
annual audit to the Administrator
within 30 calendar days after receipt of
the audit or 9 months after the end of
the audit period, whichever is less. The
FAA also proposes to separate the
requirements of current § 158.67(c) into
four sub-paragraphs to separate four
unique existing requirements. These
sub-paragraphs have been renumbered
as § 158.67(c)(1)-(4).
Further, the FAA is proposing two
additional subparagraphs,
§ 158.67(c)(5)-(6) to § 158.67(c).
Proposed § 158.67(c)(5) requires PFC
audits to include a schedule of revenues
and expenditures of the PFC account.
This schedule should include the
beginning balance in the PFC account
on the first day of the fiscal year, PFC
Collections for each quarter, PFC
Interest Earned for each quarter,
disbursements on projects by
application for each quarter, and the
PFC account closing balance. Current
FAA policy concerning the submission
of a PFC schedule is found in FAA
Order 5500.1, Passenger Facility Charge,
August 9, 2001, Paragraph 7–18.b.
AUDIT, which indicates that the auditor
must, as a minimum, provide opinions
as well as a schedule of PFC
transactions. Currently, PFC schedule
guidance is included in FAA Order
5500.1. The FAA proposes to make this
a requirement in the PFC regulations.
Proposed § 158.67(c)(6) requires PFC
audits to be performed on an actual
basis unless some form of reconciliation
documentation is provided by the
auditor. This proposal moves current
industry practice into a regulatory
requirement in order to allow for the
real-time accounting of actual total
collected towards the total PFC
collection. This requirement will
improve transparency and ensure that
PFC funds are being collected accurately
and are accounted for properly.
2. Federal Oversight of Compliance,
Informal Resolution, and Termination
The FAA proposes to rename current
subpart ‘‘E¥Termination’’ as subpart
‘‘E¥Federal Oversight of Compliance,
Informal Resolution, and Termination’’
and move current § 158.71, which
prescribes regulations for Federal
oversight, into subpart E. The FAA
proposes to consolidate the regulations
in subparts D and E, which ensure
public agency compliance with the
requirements of part 158 and 49 U.S.C.
40117, into the same subpart. The FAA
anticipates that consolidating the
regulations in subparts D and E will
improve access to public agency
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obligations and therefore improve
compliance.
The annual PFC audit provides
validation of and reconciliation between
the public agency’s audited financial
statements and the PFC financial data in
the FAA’s System of Airports Reporting
(SOAR) database. The FAA relies on
SOAR data to evaluate whether the PFC
collection period is appropriate. Some
public agencies have inconsistently
submitted required annual audit reports.
Inaccurate or absent data impairs the
FAA’s oversight and ability to fulfill its
statutory obligations under 49 U.S.C.
40117(d)(1) and 40117(h).
In some instances, after receiving a
public agency’s audit report, the FAA
may decide to review the imposition
and use of PFC revenue. In these cases,
the public agency should provide a
timely and sufficient response to any
FAA inquiry. Accordingly, the FAA
proposes to amend current § 158.71 by
adding language indicating the
Administrator may take further action
including, but not limited to, informal
resolution, termination, or other action,
as appropriate. The FAA also proposes
to re-number that section as § 158.83
and rename it ‘‘Federal oversight of
compliance’’ to more clearly reflect the
provisions.
The FAA also proposes to amend the
informal resolution provisions of
current § 158.83 by removing the
requirement that the FAA audit, review,
or both audit and review a public
agency’s use of PFC revenue or a public
agency’s collection and remittance of
PFC revenue under the oversight
authority of current § 158.71 before
commencing an informal resolution
process with a public agency. As
discussed previously, the OIG found the
FAA lacks a process to ensure that
independent audit reports are timely
and include required information. This
proposal is part of a larger effort to
create a compliance-oriented subpart
with a clear escalation process. A
compliance-oriented subpart with a
clear escalation process also would
enable the FAA to engage in informal
resolution to address various PFC
collection and use issues without the
FAA having to first audit the public
agency or initiate termination
procedures. The FAA also proposes to
re-number this section as § 158.85.
C. Miscellaneous Amendments
The FAA is proposing miscellaneous
amendments to the PFC regulations. A
discussion of these miscellaneous
amendments follows.
The FAA proposes to re-organize and
re-number several sections within part
158 to facilitate other amendments
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proposed in this rulemaking action. In
instances where revised section
numbers are referenced elsewhere in the
PFC regulations, the FAA proposes to
make corresponding administrative
amendments to those references within
the PFC regulations.
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1. Changes to Subpart A
(a) Section 158.3—Definitions
The FAA proposes to amend the
following definitions:
• Approved project. The FAA
proposes to replace the reference to
§ 158.30 with § 158.32. This is a
technical correction.
• Bond financing costs. The FAA
proposes to add language to include the
cost of financing other indebtedness,
which is consistent with PFC Order
5500.1, Appendix 4, August 9, 2001.
• Charge effective date. The FAA
proposes to insert the word ‘‘first’’
before the word ‘‘date’’ and replace the
word ‘‘obliged’’ with the word ‘‘start
collecting.’’ These amendments provide
further detail on the FAA’s expectation
for the charge effective date.
• Charge expiration date. The FAA
proposes to replace the phrase ‘‘cease to
collect’’ with the phrase ‘‘stop
collecting.’’ This is not a substantive
change.
• Debt service. The FAA proposes to
move the word ‘‘items’’ from behind the
word ‘‘such’’ to before the word ‘‘such.’’
This is not a substantive change.
• Exclusive long-term lease or use
agreement. The FAA proposes to add
language to this definition that applies
to exclusive leases of less than five years
that have automatic renewal or
carryover options, or to leases that have
the effect of granting exclusive use
rights. This proposed change is not a
substantive change but has been made
to align the definition with PFC
assurances 5 and 6.
• Implementation of an approved
project. The FAA proposes to replace
the word ‘‘nonconstruction’’ with ‘‘nonconstruction.’’ This is not a substantive
change.
• Notice of intent (to impose or use
PFC revenue). The FAA proposes to
amend the definition by removing the
limited applicability to non-hub
airports. This amendment is consistent
with the 2018 Reauthorization Act. The
FAA also proposes to replace the
reference to § 158.30 with § 158.32. This
amendment harmonizes with the renumbering of certain sections. This is a
proposed substantive change to account
for program changes made by the 2018
Reauthorization Act.
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(b) Section 158.11—Requests for Air
Carrier, Foreign Air Carrier, or Isolated
Community Exclusion
The FAA proposes to shorten the title
of this section by revising it from
‘‘Public agency request not to require
collection of PFCs by a class of air
carriers or foreign air carriers or for
service to isolated communities’’ to
‘‘Requests for air carrier, foreign air
carrier, or isolated community
exclusion.’’
the only provisions of current
§ 158.17(a)(1) that would remain in
proposed § 158.17 are those relating to
the project meeting the eligibility
requirements of § 158.15 and the airside
needs requirements of current
§ 158.17(a)(3). Therefore, the FAA
proposes to delete current § 158.17 and
move the airside needs requirement to
a new paragraph within § 158.15(d).
(c) Section 158.13—Use of PFC Revenue
Currently, § 158.13 is titled ‘‘Use of
PFC Revenue’’ and § 158.18 is titled
‘‘Use of PFC revenue to pay for debt
service for non-eligible projects.’’ Both
sections pertain to the use of PFC
revenue. Current § 158.13(e) provides an
exception for the use of PFC revenue to
pay for debt service for non-eligible
projects and references current § 158.18.
Rather than making this reference, for
simplicity, the FAA proposes to move
the language contained in § 158.18 into
§ 158.13(e) and delete § 158.18 entirely.
Additionally, since the last sentence
of paragraph (f) pertains to auditing, the
FAA proposes to move that language to
the auditing requirements for approved
projects combining PFC revenue and
Federal grant funds within subpart D.
Specifically, the FAA proposes to
incorporate this language into § 158.67.
The FAA proposes to re-number
current § 158.19 as § 158.17. This
amendment reflects re-numbering
changes to part 158.
(f) Section 158.20—Submission of
Required Documents
The FAA proposes four amendments
to this section: (1) re-number current
§ 158.20 as § 158.19, (2) revise
paragraph (a) to allow for electronic
submission of documents, (3) revise
paragraph (b) because the databased
referenced has been completed, and (4)
move the section from subpart B to
subpart A.
The FAA now has the capability of
receiving documents electronically,
which it did not have at the time the
regulation was written. The FAA’s PFC
online database, System of Airports
Reporting (SOAR), for collecting
required reports is complete and this
proposed change reflects this update.
The FAA proposes to move this section
to subpart A because electronic
submission provisions should pertain to
all documents, not just applications.
(d) Section 158.15—Project Eligibility
The FAA proposes two amendments
to this section: (1) change the section
title to remove dollar amounts, and (2)
add a new paragraph (d) which contains
the airside needs test language from
§ 158.17(a)(3). This second amendment
is necessary because most of the
requirements of § 158.17 were removed
by the 2018 Reauthorization Act and the
FAA is proposing to delete § 158.17 and
move any surviving requirements to
§ 158.15.
As discussed in section V.A.1. of the
preamble, the FAA is amending
§ 158.17(a)(3) to revise the airside needs
requirement to align with the 2018
Reauthorization Act. The 2018
Reauthorization Act retains the airside
needs requirement of 49 U.S.C.
40117(d)(4), which provides that in the
case of an eligible surface transportation
or terminal project, a PFC project cannot
be approved at a collection level higher
than $3 unless the FAA determines that
the public agency has made adequate
provision for financing the airside needs
of the airport.17
After removal of the funds
reasonability determination and the
significant contribution requirement,
17 49
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(e). Section 158.19—Requirement for
Competition Plans
2. Changes to Subpart B
(a) Section 158.21—General
The FAA proposes to amend current
§ 158.21 to indicate that a public agency
may either submit an application and
obtain approval from the Administrator
to impose a PFC and use PFC revenue
or submit a notice of intent to impose
a PFC and use PFC revenue. Currently
this section only references PFC
applications and FAA approval of PFC
applications, not notices of intent and
FAA acknowledgment of notices of
intent.
(b) Section 158.25—Applications
The FAA proposes to add a new subparagraph, § 158.25(b)(8), directing
public agencies to submit detailed cost
information, as required by the
Administrator. This proposed paragraph
is similar to the cost detail information
required by proposed § 158.30(b)(3)(iv)
discussed in section IV.A.2., the
rationale for which is described in that
portion of the preamble.
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Federal Register / Vol. 88, No. 186 / Wednesday, September 27, 2023 / Proposed Rules
3. Changes to Subpart C
(a) Section 158.37 Amendment of
Approved PFC
The FAA proposes to amend § 158.37
by adding a new paragraph (b)(1)
requiring the Administrator to find the
public agency has complied with the
Reporting, Recordkeeping and Audit
requirements before approving a PFC
amendment as discussed in section
V.B.1. This amendment encourages
public agency compliance with audit
and recordkeeping requirements and
supports the FAA’s oversight of PFC
audits. Further, this action informs
public agencies of the need to submit
PFC audit reports before submitting
requests for amendments.
(b) Section 158.43 Public Agency
Notification to Collect PFCs
The FAA proposes moving the last
sentence of paragraph (c) to new
paragraph (e) without change. This
proposed change separates requirements
for public agencies and air carriers to
ensure that requirements for each of
these entities are clear and accessible.
(c) Section 158.45—Collection of PFCs
on Tickets Issued in the U.S.
The FAA proposes to insert ‘‘on the
return’’ after ‘‘last two enplaning
airports.’’ This proposed amendment
change clarifies when PFCs can be
collected and harmonizes with
§ 158.9(a).
4. Changes to Subpart D
(a) Section 158.63—Reporting
Requirements: Public Agency
The FAA proposes to amend
paragraph (a)(2) by adding
‘‘reimbursements’’ to the list of
information that must be included in
quarterly reports. This proposed change
clarifies that the public agency must
report expenditures to outside entities
as well as reimbursements to itself. This
change is necessary so that the FAA can
66327
verify that the reimbursement is
consistent with appropriate regulations,
policies, and standards. It also provides
the FAA with the relevant information
to fulfill its recordkeeping and auditing
responsibilities under 49 U.S.C.
40117(g).
§ 158.89(a). These amendments also
reflect re-numbering changes to part
158.
(b) Section 158.67—Recordkeeping and
Auditing: Public Agency
The FAA proposes to amend
paragraph (c) to add the word ‘‘either’’
in front of the number 50 and ‘‘75
percent’’ after the word ‘‘or’’ to reflect
the total reduction. These amendments
use plain language for clarification and
do not change the regulatory provisions.
The FAA proposes to change the title
of this section from ‘‘Recordkeeping and
auditing: Public agency’’ to ‘‘Accounting
and auditing: Public agency.’’ This
change supports general improvement
in the FAA oversight of the PFC
program by making audit requirements
clearer for public agencies.
(c) Section 158.69—Recordkeeping and
Auditing: Collecting Carriers
The FAA proposes to change the title
of this section from ‘‘Recordkeeping and
auditing: Collecting carriers’’ to
‘‘Accounting and auditing: Collecting
carriers.’’ This change supports general
improvement in the FAA oversight of
the PFC program by making audit
requirements clearer for public agencies.
5. Changes to Subpart E
(a) Section 158.85—Termination of
Authority To Impose PFCs
The FAA proposes to re-number
current § 158.85 as § 158.87. This
amendment reflects re-numbering
changes to part 158.
(b). Section 158.87—Loss of Federal
Airport Grant Funds
Currently the requirements for loss of
Federal airport grant funds are found in
§ 158.87. The FAA proposes to
redesignate these requirements as
§ 158.89. This amendment reflects renumbering changes to part 158.
Additionally, the FAA proposes to
replace a reference to § 158.83with
§ 158.85 and also replace a reference to
§ 158.85 with § 158.87 within proposed
6. Changes to Subpart F
(a) Section 158.95—Implementation of
Reduction
7. Changes to Appendix A
Public agencies must comply with
PFC assurances when implementing a
project funded with PFC revenue.
However, the assurances only reference
PFC applications and FAA approval of
PFC applications, not notices of intent
and FAA acknowledgment of notices of
intent. The FAA proposes to revise
paragraphs A. 2 and A. 3 to reflect that
the requirement to comply with PFC
assurances also applies to notices of
intent and FAA acknowledgment of
notices of intent.
8. Section Cross-Reference Table
This section cross reference table is a
re-designation listing of renumbered
CFR units. This table also shows the old
CFR unit numbers of former provisions
along with corresponding new CFR unit
numbers and current provisions. In
instances where the FAA proposes to
move a requirement from one section to
another section, interested persons can
look up the former section number for
the requirement and find the new
section number for that requirement.
Similarly, in cases where the FAA is not
proposing to change regulatory
requirements within a section but
proposes to re-number a section,
interested persons can use the table to
easily identify the new section number.
TABLE 2—CROSS-REFERENCE LISTING CURRENT AND PROPOSED CFR SECTIONS
Current Provisions/CFR Reference
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§ 158.11 .................................
§ 158.17(a)(1) ........................
§ 158.17(a)(3) ........................
§ 158.18 .................................
Proposed Provisions/CFR References
Public agency request not to require collection of PFCs by
a class of air carriers or foreign air carriers or for service
to isolated communities.
Project eligibility at PFC levels of $4 or $4.50 ......................
§ 158.11
§ 158.15
§ 158.15(d)
§ 158.13(e)
§ 158.19 .................................
Use of PFC revenue to pay for debt service for non-eligible
projects.
Requirement for competition plans .......................................
§ 158.20 .................................
Submission of required documents .......................................
§ 158.19
§ 158.25(b)(8) ........................
§ 158.25(b)(9) ........................
§ 158.25(b)(10) ......................
§ 158.25(b)(11) ......................
Applications ...........................................................................
§ 158.25(b)(9)
§ 158.25(b)(10)
§ 158.25(b)(11)
§ 158.25(b)(12)
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§ 158.17
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Requests for air carrier, foreign air carrier, or isolated
community exclusion.
Project eligibility.
Use of PFC revenue.
Requirement for competition
plans.
Submission of required documents.
Applications.
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TABLE 2—CROSS-REFERENCE LISTING CURRENT AND PROPOSED CFR SECTIONS—Continued
§ 158.25(b)(12) ......................
§ 158.25(b)(13) ......................
§ 158.25(b)(14) ......................
§ 158.25(b)(15) ......................
§ 158.25(b)(16) ......................
§ 158.25(b)(17) ......................
§ 158.30(a) .............................
§ 158.30(b) .............................
§ 158.30(c) .............................
§ 158.30(d) .............................
PFC Authorization at Non-Hub Airports ................................
FAA review of notices of intent. ............................................
§ 158.30(e) .............................
§ 158.30(f) ..............................
§ 158.30(g) .............................
§ 158.31 .................................
FAA acknowledgment of notices of intent .............................
§ 158.33 .................................
Duration of authority to impose a PFC before project implementation.
§ 158.34
§ 158.67 .................................
Recordkeeping and auditing: Public agency .........................
§ 158.67
§ 158.69 .................................
Recordkeeping and auditing: Collecting carriers ..................
§ 158.69
§ 158.71 .................................
§ 158.83 .................................
§ 158.85 .................................
Federal oversight ...................................................................
Informal resolution. ................................................................
Termination of authority to impose PFCs .............................
§ 158.83
§ 158.85
§ 158.87
§ 158.87 .................................
Loss of Federal airport grant funds .......................................
§ 158.89
Duration of authority to impose a PFC after project implementation.
VI. Regulatory Notices and Analyses
ddrumheller on DSK120RN23PROD with PROPOSALS1
§ 158.25(b)(13)
§ 158.25(b)(14)
§ 158.25(b)(15)
§ 158.25(b)(16)
§ 158.25(b)(17)
§ 158.25(b)(18)
§ 158.30(a)
§ 158.30(b)
§ 158.30(c)
§ 158.31(b)
Federal agencies consider impacts of
regulatory actions under a variety of
Executive orders and other
requirements. First, Executive Order
12866 and Executive Order 13563 direct
that each Federal agency shall propose
or adopt a regulation only upon a
reasoned determination that the benefits
of the intended regulation justify the
costs. Second, the Regulatory Flexibility
Act of 1980 (Pub. L. 96–354) requires
agencies to analyze the economic
impact of regulatory changes on small
entities. Third, the Trade Agreements
Act (Pub. L. 96–39) prohibits agencies
from setting standards that create
unnecessary obstacles to the foreign
commerce of the United States. Fourth,
the Unfunded Mandates Reform Act of
1995 (Pub. L. 104–4) requires agencies
to prepare a written assessment of the
costs, benefits, and other effects of
proposed or final rules that include a
Federal mandate that may result in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector, of $100,000,000 or more
(adjusted annually for inflation) in any
one year. The current threshold after
adjustment for inflation is $177,000,000,
using the most current (2021) Implicit
Price Deflator for the Gross Domestic
Product. This portion of the preamble
summarizes the FAA’s analysis of the
economic impacts of this rulemaking.
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In conducting these analyses, the FAA
has determined that this rulemaking:
will result in benefits that justify costs;
is not an economically ‘‘significant
regulatory action’’ as defined in section
3(f) of Executive Order 12866; will not
have a significant economic impact on
a substantial number of small entities;
will not create unnecessary obstacles to
the foreign commerce of the United
States; and will not impose an unfunded
mandate on State, local, or tribal
governments, or on the private sector.
A. Regulatory Evaluation
1. Need for the Regulation
The proposed rule would amend the
PFC regulations to: first, codify changes
that have been self-implemented
through the 2018 Reauthorization Act;
second, improve PFC program oversight
and administration based on the OIG
report’s recommendations primarily
concerning reporting, recordkeeping
and audit processes; and third, replace
obsolete references, correct grammar or
reword language for clarity, and reorganize and re-number sections of part
158.
2. Baseline for the Analysis
Five major sources of airport capital
development funding are (1) the AIP; (2)
PFCs imposed pursuant to Federal law;
(3) tax-exempt bonds; (4) state and local
grants; and (5) airport operating revenue
from tenant lease and other revenue-
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§ 158.32(a)
§ 158.32(b)
§ 158.32(c)
§ 158.33
Notices of intent.
FAA review of notices of intent.
FAA acknowledgment of notices of intent.
Duration of authority to impose a PFC after project
implementation.
Duration of authority to impose a PFC before project
implementation.
Accounting and auditing:
Public agency.
Accounting and auditing: Collecting carriers.
Federal oversight.
Informal resolution.
Termination of authority to
impose PFCs.
Loss of Federal airport grant
funds.
generating activities such as landing
fees.
The AIP has been providing Federal
grants for airport development and
planning since the passage of the
Airport and Airway Improvement Act of
1982 (Pub. L. 97–248). AIP funding is
usually spent on projects that support
aircraft operations such as runways,
taxiways, aprons, noise abatement, land
purchase, and safety or emergency
equipment. The funds obligated for AIP
are drawn from the airport and airway
trust fund, which is supported by a
variety of user fees and fuel taxes.
Airports use different combinations of
these sources depending on the
individual airport’s financial situation
and the type of project being
considered. Smaller airports’ individual
grants are of much smaller dollar
amounts than the grants going to large
and medium hub airports. Therefore,
the smaller airports are much more
dependent on AIP to meet their capital
needs. Larger airports are much more
likely to issue tax-exempt bonds or
finance capital projects with the
proceeds of PFCs.
The PFC program was established in
1990 and modified in 2005 to institute
a pilot program for non-hub airports to
streamline the application process in
order for them to access the PFC
revenues more efficiently and rapidly.
The streamlined application process
ensures the non-hub airports’ PFC
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Federal Register / Vol. 88, No. 186 / Wednesday, September 27, 2023 / Proposed Rules
applications be treated as a notice of
intent with the FAA review and
acknowledgment within 30 days instead
of 120 days.
PFC Update 73–20 published in
January 2020 gave notice that the FAA
would review and acknowledge all
allowed PFC applications received from
small-, medium-, or large-hub airports
within 30 days using streamlined
procedures. This rulemaking proposes
to codify this significant policy change
into the FAA’s part 158 regulations.
According to the National Plan of
Integrated Airport Systems (NPIAS),
which details the amounts and types of
airport development eligible for Federal
funding under the AIP over the next five
years, there are nearly 3,300 public-use
airports within the national airport
system. The 2023–2027 NPIAS 18
published on September 30, 2022,
identified 238 non-hub, 80 small-hub,
35 medium-hub and 30 large-hub
airports in addition to 2,904 other
public-use airports.
This proposed rulemaking would
affect 145 small-, medium-, and largehub airports. As explained in the
preceding paragraphs, proposed changes
do not concern either the 2,904 other
airports that do not use PFC revenues or
the 238 non-hub airports that are
currently benefiting from the
streamlined application process over the
last two decades.
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3. Benefits
The FAA examined the proposed
changes and identified one provision
that would benefit approximately 145
small-, medium-, and large-hub airports.
Specifically, these airports would
continue to use the streamlined
application process shortening the
FAA’s review and acknowledgment
period to 30 days from 120 days beyond
the expiration of the PFC Update 73–20.
The FAA recognizes these gains in
efficiency and faster service time to the
affected airports. However, these
benefits, which would continue to
accrue to those airports, are not
quantified or monetized.
4. Costs
The FAA has evaluated the cost
impacts to the stakeholders involved in
this proposed rulemaking, which
includes the airports and the FAA. As
discussed in the preceding preamble
section, the FAA determined that the
proposed changes would have no
additional cost impacts to airports and
the FAA.
18 ‘‘Appendix A: List of NPIAS Airports’’
following this link: www.faa.gov/airports/planning_
capacity/npias/current Last accessed on November
16, 2022.
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5. Regulatory Alternatives
This rulemaking proposes
amendments to the PFC regulations to
address statutorily mandated program
changes, program oversight
improvements, and minor
administrative changes, such as
removing or correcting obsolete
references.
There are no legally supportable
regulatory alternatives to implementing
the statutory requirements for the
proposed changes. The alternative to
rulemaking would be to leave the
existing system of orders, guidance, and
policy documents in place. However,
this is untenable long-term as
decentralized program requirements
hinder the FAA’s ability to ensure
compliance and transparency.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act (RFA)
of 1980 19, as amended by the Small
Business Regulatory Enforcement
Fairness Act of 1996 20 and the Small
Business Jobs Act of 2010 21, requires
Federal agencies to consider the effects
of the regulatory action on small
businesses and other small entities and
to minimize any significant economic
impact. The term ‘‘small entities’’
comprises small businesses and not-forprofit organizations that are
independently owned and operated and
are not dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000.
The FAA identified 145 airports that
are owned and operated by both small
and non-small entities. In order to
estimate the number of small entities,
the FAA used the Table of Size
Standards 22 issued by the Small
Business Administration (SBA) for the
North American Industry Classification
System (NAICS) and found two NAICS
codes that these airports would fall
under: 488111 (Air Traffic Control) and
488119 (Other Airport Operations).
SBA’s size standards generally define
small businesses based on the number
of employees or annual receipts. For
these two NAICS codes, the size
standard is established as $35 million
(i.e., entities with annual receipts under
$35 million are qualified as small
businesses).
19 Public Law 96–354, 94 Stat. 1164, 5 U.S.C.
601–612.
20 Public Law 104–121, 110 Stat. 857, Mar. 29,
1996.
21 Public Law 111–240, 124 Stat. 2504 Sept. 27,
2010.
22 Small Business Administration (SBA). 2022.
Table of Size Standards. Effective July 14, 2022.
www.sba.gov/document/support-table-sizestandards.
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Using the U.S. Census data for 488111
and 488119 NAICS codes,23 the FAA
estimated that, with the exception of 13
airports reporting over $35 million
annual revenue, the remaining 132
airports are classified as small entities.
The FAA did not identify any
economic impacts on small entities that
would be affected by the proposed rule.
Therefore, the FAA proposes to certify
that the rule will not have a significant
economic impact on a substantial
number of small entities. The FAA
welcomes comments on the basis for
this certification.
C. International Trade Impact
Assessment
The Trade Agreements Act of 1979,24
as amended by the Uruguay Round
Agreements Act,25 prohibits Federal
agencies from establishing standards or
engaging in related activities that create
unnecessary obstacles to the foreign
commerce of the United States.
Pursuant to these Acts, the
establishment of standards is not
considered an unnecessary obstacle to
the foreign commerce of the United
States, so long as the standard has a
legitimate domestic objective, such as
the protection of safety, and does not
operate in a manner that excludes
imports that meet this objective. The
statute also requires consideration of
international standards and, where
appropriate, that they be the basis for
U.S. standards.
The FAA has assessed the effect of
this proposed rule and determined that
its purpose is to ensure the safety of
U.S. civil aviation. Therefore, this
proposed rule is in compliance with the
Trade Agreements Act.
D. Unfunded Mandates Assessment
Title II of the Unfunded Mandates
Reform Act of 1995 26 requires each
Federal agency to prepare a written
statement assessing the effects of any
Federal mandate in a proposed or final
agency rule that may result in an
expenditure of $100 million or more (in
1995 dollars) in any one year by State,
local, and tribal governments, in the
aggregate, or by the private sector; such
a mandate is deemed to be a ‘‘significant
regulatory action.’’ The FAA currently
uses an inflation-adjusted value of $177
million in lieu of $100 million. This
proposed rule does not contain such a
23 www.data.census.gov/cedsci/table?q=488119&
g=0100000US&n=488111&
tid=CBP2020.CB2000CBP Last accessed November
3, 2022.
24 Public Law 96–39
25 Public Law 103–465
26 Public Law 104–4.
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Federal Register / Vol. 88, No. 186 / Wednesday, September 27, 2023 / Proposed Rules
mandate; therefore, the requirements of
Title II of the Act do not apply.
paragraph 5–6.6 and involves no
extraordinary circumstances.
E. Paperwork Reduction Act
VIII. Executive Order Determinations
The Paperwork Reduction Act of
1995 27 requires that the FAA consider
the impact of paperwork and other
information collection burdens imposed
on the public. According to the 1995
amendments to the Paperwork
Reduction Act 28, an agency may not
collect or sponsor the collection of
information, nor may it impose an
information collection requirement
unless it displays a currently valid
Office of Management and Budget
(OMB) control number.
The FAA has determined that there
would be no new information collection
associated with this proposed
rulemaking. The Office of Management
and Budget (OMB) previously approved
the FAA to collect such information
under the provisions of the Paperwork
Reduction Act of 1995 29 via OMB
Control Number 2120–0557.
On November 22, 2021, OMB
approved a revision of the FAA’s
previously approved information
collection. That revision reflected
changes in the estimated burden
resulting from the 2018 Reauthorization
Act and the FAA’s implementation of
PFC Update 73–20. While this
rulemaking proposes to codify these
changes into the regulations, there are
no new information collection actions
resulting directly from this rulemaking
action.
A. Executive Order 13132, Federalism
The FAA has analyzed this proposed
rule under the principles and criteria of
Executive Order (E.O.) 13132,
Federalism. The agency has determined
that this action would not have a
substantial direct effect on the States, or
the relationship between the Federal
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, and, therefore,
would not have Federalism
implications.
F. International Compatibility
In keeping with U.S. obligations
under the Convention on International
Civil Aviation, it is FAA policy to
conform to International Civil Aviation
Organization (ICAO) Standards and
Recommended Practices to the
maximum extent practicable. The FAA
has determined that there are no ICAO
Standards and Recommended Practices
that correspond to these proposed
regulations.
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G. Environmental Analysis
FAA Order 1050.1F identifies FAA
actions that are categorically excluded
from preparation of an environmental
assessment or environmental impact
statement under the National
Environmental Policy Act in the
absence of extraordinary circumstances.
The FAA has determined this
rulemaking action qualifies for the
categorical exclusion identified in
B. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
Consistent with Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,30 and
FAA Order 1210.20, American Indian
and Alaska Native Tribal Consultation
Policy and Procedures,31 the FAA
ensures that Federally Recognized
Tribes (Tribes) are given the opportunity
to provide meaningful and timely input
regarding proposed Federal actions that
have the potential to affect uniquely or
significantly their respective Tribes. At
this point, the FAA has not identified
any unique or significant effects,
environmental or otherwise, on tribes
resulting from this proposed rule.
C. Executive Order 13211, Regulations
That Significantly Affect Energy Supply,
Distribution, or Use
The FAA analyzed this proposed rule
under E.O. 13211, Actions Concerning
Regulations that Significantly Affect
Energy Supply, Distribution, or Use
(May 18, 2001). The agency has
determined that it would not be a
‘‘significant energy action’’ under the
Executive order and would not be likely
to have a significant adverse effect on
the supply, distribution, or use of
energy.
D. Executive Order 13609, International
Cooperation
Executive Order 13609, ‘‘Promoting
International Regulatory Cooperation,’’
promotes international regulatory
cooperation to meet shared challenges
involving health, safety, labor, security,
environmental, and other issues and to
reduce, eliminate, or prevent
unnecessary differences in regulatory
30 65
FR 67249 (Nov. 6, 2000).
Order No. 1210.20 (Jan. 28, 2004),
available at https://www.faa.gov/documentLibrary/
media/1210.pdf.
27 44
U.S.C. 3507(d).
28 5 CFR 1320.8(b)(2)(vi).
29 44 U.S.C. 3507(d).
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31 FAA
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requirements. The FAA has analyzed
this action under the policies and
agency responsibilities of Executive
Order 13609 and has determined that
this action would have no effect on
international regulatory cooperation.
VIII. Additional Information
A. Comments Invited
The FAA invites interested persons to
participate in this rulemaking by
submitting written comments, data, or
views. The agency also invites
comments relating to the economic,
environmental, energy, or federalism
impacts that might result from adopting
the proposals in this document. The
most helpful comments reference a
specific portion of the proposal, explain
the reason for any recommended
change, and include supporting data. To
ensure the docket does not contain
duplicate comments, commenters
should send only one copy of written
comments, or if comments are filed
electronically, commenters should
submit only one time.
The FAA will file in the docket all
comments it receives, as well as a report
summarizing each substantive public
contact with FAA personnel concerning
this proposed rulemaking. Before acting
on this proposal, the FAA will consider
all comments it receives on or before the
closing date for comments. The FAA
will consider comments filed after the
comment period has closed if it is
possible to do so without incurring
expense or delay. The agency may
change this proposal in light of the
comments it receives.
Confidential Business Information:
Confidential Business Information (CBI)
is commercial or financial information
that is both customarily and actually
treated as private by its owner. Under
the Freedom of Information Act
(FOIA),32 CBI is exempt from public
disclosure. If your comments responsive
to this NPRM contain commercial or
financial information that is customarily
treated as private, that you actually treat
as private, and that is relevant or
responsive to this NPRM, it is important
that you clearly designate the submitted
comments as CBI. Please mark each
page of your submission containing CBI
as ‘‘PROPIN.’’ The FAA will treat such
marked submissions as confidential
under the FOIA, and they will not be
placed in the public docket of this
NPRM. Submissions containing CBI
should be sent to the person in the FOR
FURTHER INFORMATION CONTACT section of
this document. Any commentary that
the FAA receives which is not
32 5
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specifically designated as CBI will be
placed in the public docket for this
rulemaking.
B. Availability of Rulemaking
Documents
An electronic copy of rulemaking
documents may be obtained from the
internet by—
1. Searching the Federal eRulemaking
Portal at www.regulations.gov;
2. Visiting the FAA’s Regulations and
Policies web page at www.faa.gov/
regulations_policies; or
3. Accessing the Government Printing
Office’s web page at www.GovInfo.gov.
Copies may also be obtained by
sending a request to the Federal
Aviation Administration, Office of
Rulemaking, ARM–1, 800 Independence
Avenue SW, Washington, DC 20591, or
by calling (202) 267–9677. Commenters
must identify the docket or notice
number of this rulemaking.
All documents the FAA considered in
developing this proposed rule,
including economic analyses and
technical reports, may be accessed from
the internet through the Federal
eRulemaking Portal.
List of Subjects in 14 CFR Part 158
Air carriers, Airports, Passenger
facility charge, Public agencies,
Reporting and recordkeeping
requirements.
The Proposed Amendments
In consideration of the foregoing, the
Federal Aviation Administration
proposes to amend 14 CFR part 158 as
follows:
PART 158—PASSENGER FACILITY
CHARGES (PFCS)
1. The authority citation for part 158
continues to read as follows:
■
Authority: 49 U.S.C. 106(g), 40116–40117,
47106, 47111, 47114–47116, 47524, 47526.
2. In part 158, remove the text ‘‘PFC’s’’
wherever it appears, and add in its place
the text ‘‘PFCs’’.
■ 3. Amend § 158.3 by revising the
definitions for ‘‘Approved project’’,
Bond financing costs’’, ‘‘Charge effective
date’’, Charge expiration date’’, ‘‘Debt
service’’, ‘‘Exclusive long-term lease or
use agreement’’, ‘‘FAA Airports office’’,
‘‘Financial need’’, ‘‘Implementation of
an approved project’’, and ‘‘Notice of
intent (to impose or use PFC revenue)’’
to read as follows:
ddrumheller on DSK120RN23PROD with PROPOSALS1
■
§ 158.3
Definitions.
*
*
*
*
*
Approved project means a project for
which the FAA has approved using PFC
revenue under this part. The FAA may
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also approve specific projects contained
in a single or multi-phased project or
development described in an airport
capital plan separately. This includes
projects acknowledged by the FAA
under § 158.32.
Bond financing costs means the costs
of financing a bond (or other
indebtedness, except debt service) and
includes such costs as those associated
with issuance, underwriting discount,
original issue discount, capitalized
interest, debt service reserve funds,
initial credit enhancement costs, and
initial trustee and paying agent fees.
Charge effective date means the first
date on which carriers are required to
start collecting a PFC.
Charge expiration date means the date
on which carriers are required to stop
collecting a PFC.
*
*
*
*
*
Debt service means payments for
items such as principal and interest,
sinking funds, call premiums, periodic
credit enhancement fees, trustee and
paying agent fees, coverage, and
remarketing fees.
Exclusive long-term lease or use
agreement means an exclusive lease or
use agreement between a public agency
and an air carrier or foreign air carrier
with a term of 5 years or more. This
term also applies to exclusive leases of
less than 5 years that have automatic
renewal or carryover options, or to
leases that have the effect of granting
exclusive use rights.
FAA Airports office means a regional,
district or field office of the Federal
Aviation Administration that
administers Federal airport-related
matters.
Financial need means that a public
agency cannot meet its operational or
debt service obligations and does not
have at least a 2-month capital reserve
fund.
*
*
*
*
*
Implementation of an approved
project means: (1) With respect to
construction, issuance to a contractor of
notice to proceed or the start of physical
construction; (2) with respect to nonconstruction projects other than
property acquisition, commencement of
work by a contractor or public agency to
carry out the statement of work; or (3)
with respect to property acquisition
projects, commencement of title search,
surveying, or appraisal for a significant
portion of the property to be acquired.
*
*
*
*
*
Notice of intent (to impose or use PFC
revenue) means a notice under § 158.30
from a public agency that the public
agency intends to impose a PFC or use
PFC revenue. Except for §§ 158.25 and
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158.32, ‘‘notice of intent’’ can be used
interchangeably with ‘‘application.’’
*
*
*
*
*
■ 4. Revise the section heading to
§ 158.11 to read as follows:
§ 158.11 Requests for air carrier, foreign
air carrier, or isolated community exclusion.
*
*
*
*
*
5. Amend § 158.13 by revising
paragraphs (e) and (f) to read as follows:
■
§ 158.13
Use of PFC revenue.
*
*
*
*
*
(e) Exception providing for the use of
PFC revenue to pay for debt service for
non-eligible projects. The FAA may
authorize a public agency to impose a
PFC to make payments for debt service
on indebtedness incurred to carry out at
the airport a project that is not eligible
if the FAA determines it is necessary
because of the financial need of the
airport.
(1) A public agency may request
authority to impose a PFC and use PFC
revenue under this section using the
PFC application procedures in § 158.25.
The public agency must document its
financial position and explain its
financial recovery plan that uses all
available resources.
(2) The FAA reviews the application
using the procedures in § 158.27. The
FAA will issue its decision on the
public agency’s request under § 158.29.
(f) Combination of PFC revenue and
Federal grant funds. A public agency
may combine PFC revenue and airport
grant funds to carry out an approved
project.
*
*
*
*
*
■ 6. Amend § 158.15 by revising the
section heading and adding paragraph
(d) to read as follows:
§ 158.15
Project eligibility.
*
*
*
*
*
(d) A surface transportation or
terminal project is eligible for PFC
funding at a level above $3 if the public
agency has made adequate provision for
financing the airside needs of the
airport, including runways, taxiways,
aprons, and aircraft gates.
§ 158.17
■
[Removed]
7. Remove § 158.17.
§ 158.19
[Redesignated as § 158.17]
8. Redesignate § 158.19 as § 158.17.
9. Redesignate § 158.20 as § 158.19
and revise newly redesignated
paragraphs (a) introductory text and (b)
to read as follows:
■
■
§ 158.19 Submission of required
documents.
(a) Submittals and documents
required by this part may be transmitted
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to the appropriate recipient (the public
agency, air carrier, the FAA, or any
combination thereof) electronically or
via email, courier, facsimile, or U.S.
Postal Service.
*
*
*
*
*
(b) Public agencies and air carriers
may use the FAA’s national PFC
database to post their required quarterly
reports, and, in that case, do not have
to distribute the reports in any other
way.
§ 158.20
[Reserved]
10. Reserve § 158.20.
11. Revise the heading to subpart B to
read as follows:
■
■
Subpart B—Applications and Notices
of Intent
*
■
*
*
*
*
12. Revise § 158.21 to read as follows:
§ 158.21
General.
This subpart specifies the application
and notice of intent requirements under
which a public agency may obtain
authorization to impose a PFC and use
PFC revenue on a project. This subpart
specifies the consultation, notice and
public comment, application, and notice
of intent requirements under which a
public agency may obtain approval or
acknowledgment to impose a PFC and
use PFC revenue on a project. This
subpart also establishes the procedures
for the Administrator’s review and
approval of applications and
amendments, procedures for FAA
acknowledgment of notices of intent,
and requirements for use of excess PFC
revenue.
■ 13. Amend § 158.24 by revising
paragraph (a)(2) to read as follows:
ddrumheller on DSK120RN23PROD with PROPOSALS1
§ 158.24 Notice and opportunity for public
comment.
(a) * * *
(2) The notice must allow the public
to file comments for at least 30 days, but
no more than 45 days, after the date of
publication of the notice or posting on
the public agency’s internet website, as
applicable.
*
*
*
*
*
■ 14. Amend § 158.25 by revising
paragraphs (b)(7) through (18), (c)(1)(i),
(c)(1)(ii) introductory text, (c)(1)(iii),
(c)(2)(iii)(C), (c)(2)(iv) introductory text,
and (c)(2)(v) to read as follows:
§ 158.25
Applications
*
*
*
*
*
(b) * * *
(7) The project justification, including
the extent to which the project achieves
one or more of the objectives set forth
in § 158.15(a) and (if a PFC level above
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$3 is requested) the requirements of
§ 158.15.
(i) For any project for terminal
development, including gates and
related areas, the public agency shall
discuss any existing conditions that
limit competition between and among
air carriers and foreign air carriers at the
airport, any initiatives it proposes to
foster opportunities for enhanced
competition between and among such
carriers, and the expected results of
such initiatives; or
(ii) For any terminal development
project at a covered airport, the public
agency shall submit a competition plan
in accordance with § 158.17.
(8) Detailed cost information, in a
form and manner acceptable to the
Administrator.
(9) The charge to be imposed for each
project.
(10) The proposed charge effective
date.
(11) The estimated charge expiration
date.
(12) Information on the consultation
with air carriers and foreign air carriers
having a significant business interest at
the airport and the public comment
process, including:
(i) A list of such carriers and those
notified;
(ii) A list of carriers that
acknowledged receipt of the notice
provided under § 158.23(a);
(iii) Lists of carriers that certified
agreement and that certified
disagreement with the project;
(iv) Information on which method
under § 158.24(b) the public agency
used to meet the public notice
requirement; and
(v) A summary of substantive
comments by carriers contained in any
certifications of disagreement with each
project and disagreements with each
project provided by the public, and the
public agency’s reasons for continuing
despite such disagreements.
(13) If the public agency is also filing
a request under § 158.11—
(i) The request;
(ii) A copy of the information
provided to the carriers under
§ 158.23(a)(3);
(iii) A copy of the carriers’ comments
with respect to such information;
(iv) A list of any class or classes of
carriers that would not be required to
collect a PFC if the request is approved;
and
(v) The public agency’s reasons for
submitting the request in the face of
opposing comments.
(14) A copy of information regarding
the financing of the project presented to
the carriers and foreign air carriers
under § 158.23 of this part and as
revised during the consultation.
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(15) A copy of all comments received
as a result of the carrier consultation
and public comment processes.
(16) For an application not
accompanied by a concurrent
application for authority to use PFC
revenue:
(i) A description of any alternative
methods being considered by the public
agency to accomplish the objectives of
the project;
(ii) A description of alternative uses of
the PFC revenue to ensure such revenue
will be used only on eligible projects in
the event the proposed project is not
ultimately approved for use of PFC
revenue;
(iii) A timetable with projected dates
for completion of project formulation
activities and submission of an
application to use PFC revenue; and
(iv) A projected date of project
implementation and completion.
(17) A signed statement certifying that
the public agency will comply with the
assurances set forth in appendix A to
this part.
(18) Other information as required by
the Administrator.
(c) * * *
(1) * * *
(i) The information required under
paragraphs (b)(1) through (18) of this
section;
(ii) An FAA Form 5500–1 and
applicable attachments:
*
*
*
*
*
(iii) The information required by
§§ 158.25(b)(17) and 158.25(b)(18).
(2) * * *
(iii) * * *
(C) For any project that has changed
since receiving impose authority, the
public agency must file updated project
information for that project clearly
describing the changes to the project.
(iv) An FAA Form 5500–1 and
applicable attachments:
*
*
*
*
*
(v) The information required by
§§ 158.25(b)(17) and 158.25(b)(18).
■ 15. Amend § 158.29 by:
■ a. Revising paragraphs (a)(1)(ii), (iii)
and (viii);
■ b. Adding paragraph (a)(1)(ix); and
■ c. Revising paragraphs (a)(2), (b)(1)(ii)
and (iii), (b)(1)(iv)(2), and (d).
The revisions and addition read as
follows:
§ 158.29
The Administrator’s decision.
(a) * * *
(ii) The project will achieve the
objectives and criteria set forth in
§ 158.15 except for those projects
approved under § 158.13(e).
(iii) If a PFC level above $3 is being
approved, the project meets the criteria
set forth in § 158.15(d);
*
*
*
*
*
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(viii) If applicable, the public agency
has submitted a competition plan in
accordance with § 158.17.
(ix) The public agency has
demonstrated compliance with the
Reporting, Recordkeeping and Audit
requirements of subpart D of this part in
a form and manner acceptable to the
Administrator.
(2) The Administrator notifies the
public agency in writing of the decision
on the application. The notification will
list the projects and alternative uses that
may qualify for PFC financing under
§ 158.15, and (if a PFC level above $3 is
being approved) § 158.15(d), PFC level,
total approved PFC revenue including
the amounts approved at $3 and less,
$4, $4.50, or any combination thereof,
duration of authority to impose and
earliest permissible charge effective
date.
(b) * * *
(1) * * *
(ii) The project will achieve the
objectives and criteria set forth in
§ 158.15 except for those projects
approved under § 158.13(e).
(iii) If a PFC level above $3 is being
approved, the project meets the criteria
set forth in § 158.15(d); and
(iv) * * *
(2) The Administrator notifies the
public agency in writing of the decision
on the application. The notification will
list the approved projects, PFC level,
total approved PFC revenue, total
approved for collection, including the
amounts approved at $3 and less, $4, or
$4.50, or any combination thereof and
any limit on the duration of authority to
impose a PFC as prescribed under
§ 158.34.
*
*
*
*
*
(d) The FAA provides notice of PFC
approvals and disapprovals on the FAA
internet website.
■ 16. Amend § 158.30 by:
■ a. Revising the section heading;
■ b. Revising paragraphs (a), (b)
introductory text, (b)(1) and (2), and
(b)(3)(ii) and (iii);
■ c. Adding paragraph (b)(3)(iv);
■ d. Revising paragraphs (b)(7), (c)
introductory text, (c)(1)(ii), and (c)(2)(i);
and
■ e. Removing paragraphs (d) through
(h).
The revisions and addition read as
follows:
§ 158.30
Notices of intent.
(a) General. A public agency may
notify the FAA of its intent to impose
a PFC prior to or concurrently with a
notice of intent to use PFC revenue. A
public agency must file a notice of
intent in the manner and form
prescribed by the Administrator and
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must include the information required
under paragraphs (b), (c), or both, of this
section.
(b) Notice of intent to impose a PFC.
The public agency must file a separate
notice of intent for each airport at which
the public agency plans on imposing a
PFC. An authorized official of the public
agency must sign the notice of intent.
Unless otherwise directed by the
Administrator, the notice of intent must
include:
(1) A completed FAA Form 5500–1,
PFC Application (current version)
without attachments except as required
below;
(2) Project information including the
project title, amount of PFC funds
sought, PFC level sought, and the grant
agreement number if an existing FAA
awarded airport grant already covers
this project.
(3) If the project is not funded by an
existing FAA awarded airport grant, the
notice of intent must include the
information in paragraph (b)(2) of this
section in addition to the following:
*
*
*
*
*
(ii) A description of how the project
meets one of the PFC objectives in
§ 158.15(a),
(iii) A description of how the project
meets the adequate justification
requirement in § 158.15(c), and
(iv) Detailed cost information, in a
form and manner acceptable to the
Administrator.
*
*
*
*
*
(7) Other information as required by
the Administrator.
(c) Notice of intent to use PFC
revenue. A public agency must file:
(1) * * *
*
*
*
*
*
(ii) All applicable requirements
pertaining to the Airport Layout Plan
(ALP) for the airport, airspace studies
for the project, and the National
Environmental Policy Act of 1969
(NEPA), have been satisfied for all
projects not included in an existing
Federal airport program grant.
(2) * * *
(i) Follow further consultation with
air carriers and the opportunity for
public comment under §§ 158.23 and
158.24 of this part. A meeting with the
air carriers is optional if all information
is the same as that provided with the
impose authority notice;
*
*
*
*
*
■ 17. Revise § 158.31 to read as follows:
§ 158.31
Review of notices of intent.
(a) The FAA will review the notice of
intent to identify projects ineligible for
notice of intent consideration. The FAA
will notify the public agency in writing
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66333
within 30 days if the FAA determines
that projects involving the following are
ineligible for notice of intent procedures
as a result of:
(1) Significant policy precedent.
(2) Significant legal issues.
(3) Significant controversy, as
evidenced by significant opposition to
the FAA’s proposed action by the
applicant or other airport authorities,
airport users, Federal, State or local
agencies, elected officials, or
communities.
(4) Multimodal projects.
(5) Significant airport noise, access, or
revenue diversion issues, including
compliance with 49 U.S.C. 47521 and
49 U.S.C. 47111(e).
(6) Debt Service on otherwise
ineligible projects.
(7) Blending of two or more PFC
decisions to obtain a uniform collection
level.
(8) Terminal building projects in
excess of $25 million, except standalone passenger boarding bridges.
(b) The FAA will review the notice of
intent to determine that:
(1) The amount and duration of the
PFC will not result in revenue that
exceeds the amount necessary to finance
the project(s);
(2) Each proposed project meets the
requirements of § 158.15;
(3) Each project proposed at a PFC
level above $3.00 meets the
requirements of § 158.15(d);
(4) All applicable airport layout plan,
airspace, and environmental
requirements have been met for each
project;
(5) Any request by the public agency
to exclude a class of carriers from the
requirement to collect the PFC is
reasonable, not arbitrary,
nondiscriminatory, and otherwise
complies with the law; and
(6) The consultation and public
comment processes complied with
§§ 158.23 and 158.24.
(7) The public agency has complied
with the Reporting, Recordkeeping and
Audit requirements of subpart D of this
part.
(c) The FAA will also make a
determination regarding the public
agency’s compliance with 49 U.S.C.
47524 and 47526 governing airport
noise and access restrictions and 49
U.S.C. 47107(b) governing the use of
airport revenue. Finally, the FAA will
review all comments filed during the air
carrier consultation and public
comment processes.
■ 18. Add § 158.32 to read as follows:
§ 158.32 FAA acknowledgment of notices
of intent.
(a) Within 30 days of receipt of the
public agency’s notice of intent about its
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PFC program, the FAA will issue a
written acknowledgment of the public
agency’s notice. The FAA’s
acknowledgment may concur with all
proposed projects, may object to some
or all proposed projects, or may object
to the notice of intent in its entirety. The
FAA’s acknowledgment will include the
reason(s) for any objection.
(b) If the FAA does not object to a
project or the notice of intent in its
entirety, the public agency may
implement its PFC program. The public
agency’s implementation must be
consistent with the information
specified in its notice of intent. If the
FAA objects to a project, the public
agency may not collect or use PFC
revenue on that project. If the FAA
objects to the notice of intent in its
entirety, the public agency may not
implement the PFCs proposed in that
notice. When implementing a PFC
under this section, a public agency must
comply with all sections of part 158,
except for § 158.25.
(c) An FAA acknowledgment issued
under this section is not considered an
order issued by the Secretary for
purposes of 49 U.S.C. 46110 (Judicial
Review).
■ 19. Revise § 158.33 to read as follows:
§ 158.33 Duration of authority to impose a
PFC after project implementation.
A public agency that has begun
implementing an approved project may
impose a PFC until—
(a) The charge expiration date is
reached;
(b) The total PFC revenue collected
plus interest earned thereon equals the
allowable cost of the approved project;
(c) The authority to collect the PFC is
terminated by the Administrator under
subpart E of this part; or
(d) The public agency is determined
by the Administrator to be in violation
of 49 U.S.C. 47524 and 47526, and the
authority to collect the PFC is
terminated under that statute’s
implementing regulations under this
title.
■ 20. Add § 158.34 to read as follows:
ddrumheller on DSK120RN23PROD with PROPOSALS1
§ 158.34 Duration of authority to impose a
PFC before implementation.
(a) A public agency shall not impose
a PFC beyond the lesser of the
following—
(1) 2 years after approval to use PFC
revenue on an approved project if the
project has not been implemented;
(2) 5 years after the charge effective
date; or
(3) 5 years after the FAA’s decision on
the application (if the charge effective
date is more than 60 days after the
decision date) if an approved project is
not implemented.
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(b) If, in the Administrator’s
judgment, the public agency has not
made sufficient progress toward
implementation of an approved project
within the times specified in paragraph
(a) of this section, the Administrator
begins termination proceedings under
subpart E of this part.
(c) The authority to impose a PFC
following approval shall automatically
expire without further action by the
Administrator on the following dates:
(1) 3 years after the charge effective
date; or 3 years after the FAA’s decision
on the application if the charge effective
date is more than 60 days after the
decision date unless—
(i) The public agency has filed an
application for approval to use PFC
revenue for an eligible project that is
pending before the FAA;
(ii) An application to use PFC revenue
has been approved; or
(iii) A request for extension (not to
exceed 2 years) to submit an application
for project approval, under § 158.35, has
been granted; or
(2) 5 years after the charge effective
date; or 5 years after the FAA’s decision
on the application (if the charge
effective date is more than 60 days after
the decision date) unless the public
agency has obtained project approval.
(d) If the authority to impose a PFC
expires under paragraph (c) of this
section, the public agency must provide
the FAA with a list of the air carriers
and foreign air carriers operating at the
airport and all other collecting carriers
that have remitted PFC revenue to the
public agency in the preceding 12
months. The FAA notifies each of the
listed carriers to terminate PFC
collection no later than 30 days after the
date of notification by the FAA.
(e) Restriction on reauthorization to
impose a PFC. Whenever the authority
to impose a PFC has expired or been
terminated under this section, the
Administrator will not grant new
approval to impose a PFC in advance of
implementation of an approved project.
§ 158.35
[Amended]
21. Amend § 158.35, in paragraph (d),
by removing the citation ‘‘§ 158.33’’ and
adding in its place the citation
‘‘§ 158.34’’.
■ 22. Amend § 158.37 by revising
paragraphs (b)(1) introductory text,
(b)(1)(i), (b)(6) and (7), and (c) to read as
follows:
■
§ 158.37
Amendment of approved PFC.
*
*
*
*
*
(b) * * *
(1) The public agency has
demonstrated compliance with the
Reporting, Recordkeeping and Audit
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requirements of subpart D of this part in
a form and manner acceptable to the
Administrator.
(i) Further consultation with the air
carriers and foreign air carriers and seek
public comment in accordance with
§§ 158.23 and 158.24 when applying for
those requests to:
*
*
*
*
*
(6) A description of how each project
meets the requirements of § 158.15(d),
for each project proposed for an increase
of the PFC level above $3.00 at a
medium or large hub airport;
(7) A signed statement certifying that
the public agency has met the
requirements of § 158.15(d), if
applicable, for any amendment
proposing to increase the PFC level
above $3.00 at a medium or large hub
airport; and
*
*
*
*
*
(c) The Administrator will approve,
partially approve or disapprove the
amendment request and notify the
public agency of the decision within 30
days of receipt of the request. If a PFC
level of more than $3.00 is approved,
the Administrator must find the project
meets the requirements of §§ 158.15(d)
and 158.17, if applicable, before the
public agency can implement the new
PFC level.
*
*
*
*
*
■ 23. Amend § 158.43 by revising
paragraph (c) and adding paragraph (e)
to read as follows:
§ 158.43 Public agency notification to
collect PFCs.
*
*
*
*
*
(c) The public agency must notify air
carriers required to collect PFCs at its
airport and the FAA of changes in the
charge expiration date at least 30 days
before the existing charge expiration
date or new charge expiration date,
whichever comes first.
*
*
*
*
*
(e) Each notified air carrier must
notify its agents, including other issuing
carriers, of such changes.
■ 24. Amend § 158.45 by revising
paragraph (c) to read as follows:
§ 158.45 Collection of PFCs on tickets
issued in the U.S.
*
*
*
*
*
(c) For each one-way trip shown on
the complete itinerary of an air travel
ticket, issuing air carriers and their
agents shall collect a PFC from a
passenger only for the first two airports
where PFCs are imposed. For each
round trip, a PFC shall be collected only
for enplanements at the first two
enplaning airports and the last two
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Federal Register / Vol. 88, No. 186 / Wednesday, September 27, 2023 / Proposed Rules
enplaning airports on the return where
PFCs are imposed.
*
*
*
*
*
■ 25. Amend subpart D by revising the
subpart heading to read as follows:
Subpart D—Reporting, Accounting,
and Audits
26. Amend § 158.63 by revising
paragraph (a)(2) to read as follows:
■
§ 158.63
agency.
Reporting requirements: Public
(a) * * *
(2) Cumulative actual PFC revenue
received, interest earned, project
expenditures, reimbursements, and the
amount committed for use on currently
approved projects, including the
quarter;
*
*
*
*
*
■ 27. Amend§ 158.67 by:
■ a. Revising the section heading;
■ b. Revising paragraphs (c)(1) through
(3); and
■ c. Adding paragraphs (c)(4) through
(6) and (d) through (g).
The revisions and additions read as
follows:
§ 158.67
agency.
Accounting and auditing: Public
ddrumheller on DSK120RN23PROD with PROPOSALS1
*
*
*
*
*
(c) Each public agency shall provide
for an audit of its PFC account for the
period the PFC is collected, held or
used, as follows:
(1) The public agency must conduct
an audit of its PFC account annually;
(2) The annual audit must be
performed by an accredited
independent public accountant and may
be of limited scope;
(3) The accountant shall express an
opinion of the fairness and
reasonableness of the public agency’s
procedures for receiving, holding, and
using PFC revenue;
(4) The accountant shall also express
an opinion on whether the quarterly
report required under § 158.63 fairly
represents the net transactions within
the PFC account;
(5) The public agency must provide a
schedule of revenue and expenditures of
the PFC account including: balance in
the account on the first day of the fiscal
year, PFC Collections for each Quarter,
PFC Interest Earned for each Quarter,
disbursements on projects by
application for each quarter, closing
balance; and
(6) The audit must be performed on
actual basis, unless the audit is
accompanied by reconciliation
documentation in a manner and form
acceptable to the Administrator.
(d) The audit may be—
VerDate Sep<11>2014
17:04 Sep 26, 2023
Jkt 259001
(1) Performed specifically for the PFC
account; or
(2) Conducted as part of an audit
under the Single Audit Act, 31 U.S.C.
75, provided the auditor specifically
addresses the PFC.
(e) Upon request, a copy of the audit
shall be provided to each collecting
carrier that remitted PFC revenue to the
public agency in the period covered by
the audit.
(f) A copy of the audit shall be
provided to the Administrator within 30
calendar days after receipt of the audit
or 9 months after the end of the audit
period, whichever is less.
(g) Each public agency that combines
PFC revenue and Federal grant funds to
carry out an approved project is subject
to the recordkeeping and auditing
requirements of this part, as well as the
reporting, recordkeeping, and auditing
requirements imposed by 49 U.S.C.
47107 Airport and Airway Improvement
Act of 1982 (AAIA).
■ 28. Revise the section heading to
§ 158.69 to read as follows:
§ 158.69 Accounting and auditing:
Collecting carriers.
*
*
§ 158.71
*
*
*
[Removed and Reserved]
29. Remove and reserve § 158.71.
30. Revise the subpart heading to
subpart E to read as follows:
■
■
Subpart E—Federal Oversight of
Compliance, Informal Resolution, and
Termination
■
31. Revise § 158.81 to read as follows:
§ 158.81
General.
This subpart contains the procedures
for Federal oversight of compliance,
informal resolution, and termination of
PFCs, and loss of Federal airport grant
funds for violations of this part or 49
U.S.C. 40117. This subpart does not
address the circumstances under which
the authority to collect PFCs may be
terminated for violations of 49 U.S.C.
47523 through 47528.
■ 32. Revise § 158.83 to read as follows:
§ 158.83
Federal oversight of compliance.
(a) The Administrator may
periodically audit, review, or both audit
and review, the receipt and use of PFC
revenue by a public agency. The
purpose of the audit or review is to
ensure that the public agency is in
compliance with the requirements of
this part and 49 U.S.C. 40117. The
Administrator may take further action
including, but not limited to, informal
resolution, termination, or other action,
as appropriate.
(b) The Administrator may
periodically audit, review, or both audit
PO 00000
Frm 00036
Fmt 4702
Sfmt 4702
66335
and review the collection and
remittance by the collecting carriers of
PFC revenue. The purpose of the audit
or review is to ensure collecting carriers
are in compliance with the requirements
of this part and 49 U.S.C. 40117. The
Administrator may take further, as
appropriate.
(c) Public agencies and carriers shall
allow any authorized representative of
the Administrator, the Secretary of
Transportation, or the Comptroller
General of the U.S., access to any of its
books, documents, papers, and records
pertinent to PFCs.
■ 33. Revise § 158.85 to read as follows:
§ 158.85
Informal resolution.
The Administrator may undertake
informal resolution with the public
agency or any other affected party if the
Administrator cannot determine that
PFC revenue is being collected, used, or
both collected and used on an approved
application for the approved projects in
accordance with the terms of the
Administrator’s approval to impose a
PFC for those projects or in compliance
with the requirements of this part and
with 49 U.S.C. 40117.
■ 34. Revise § 158.87 to read as follows:
§ 158.87 Termination of authority to
impose PFCs.
(a) The FAA begins proceedings to
terminate the public agency’s authority
to impose a PFC only if the
Administrator determines that informal
resolution is not successful.
(b) The Administrator publishes a
notice of proposed termination in the
Federal Register and supplies a copy to
the public agency. This notice will state
the scope of the proposed termination,
the basis for the proposed action and the
date for filing written comments or
objections by all interested parties. This
notice will also identify any corrective
actions the public agency can take to
avoid further proceedings. The due date
for comments and corrective action
shall be no less than 60 days after
publication of the notice.
(c) If corrective action has not been
taken as prescribed by the
Administrator, the FAA holds a public
hearing, and notice is given to the
public agency and published in the
Federal Register at least 30 days prior
to the hearing. The hearing will be in a
form determined by the Administrator
to be appropriate to the circumstances
and to the matters in dispute.
(d) The Administrator publishes the
final decision in the Federal Register.
Where appropriate, the Administrator
may prescribe corrective action,
including any corrective action the
public agency may yet take. A copy of
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the notice is also provided to the public
agency.
(e) Within 10 days of the date of
publication of the notice of the
Administrator’s decision, the public
agency shall—
(1) Advise the FAA in writing that it
will complete any corrective action
prescribed in the decision within 30
days; or
(2) Provide the FAA with a listing of
the air carriers and foreign air carriers
operating at the airport and all other
issuing carriers that have remitted PFC
revenue to the public agency in the
preceding 12 months.
(f) When the Administrator’s decision
does not provide for corrective action or
the public agency fails to complete such
action, the FAA provides a copy of the
Federal Register notice to each air
carrier and foreign air carrier identified
in paragraph (e) of this section. Such
carriers are responsible for terminating
or modifying PFC collection no later
than 30 days after the date of
notification by the FAA.
■ 35. Add § 158.89 to read as follows:
§ 158.89
funds.
Implementation of reduction.
ddrumheller on DSK120RN23PROD with PROPOSALS1
*
*
*
*
*
(c) If the projection of PFC revenue in
a fiscal year is inaccurate, the reduction
in apportioned funds may be increased
or decreased in the following fiscal year,
except that any further reduction shall
not cause the total reduction to exceed
either 50 percent or 75 percent of such
apportioned amount as would otherwise
be apportioned in any fiscal year.
■ 37. Amend appendix A to part 158 by
revising paragraphs (A)(2) and (3), and
(B)(5) to read as follows:
Appendix A to Part 158 Assurances
A. * * *
VerDate Sep<11>2014
17:04 Sep 26, 2023
Jkt 259001
Issued under authority provided by 49
U.S.C. 106(f) and 40117 in Washington, DC.
Shannetta R. Griffin,
Associate Administrator for Airports.
[FR Doc. 2023–20559 Filed 9–26–23; 8:45 am]
BILLING CODE 4910–13–P
Loss of Federal airport grant
(a) If the Administrator determines
that revenue derived from a PFC is
excessive or is not being used as
approved, the Administrator may
reduce the amount of funds otherwise
payable to the public agency under 49
U.S.C. 47114. Such a reduction may be
made as a corrective action under
§ 158.85 or § 158.87.
(b) The amount of the reduction under
paragraph (a) of this section shall equal
the excess collected, or the amount not
used in accordance with this part.
(c) A reduction under paragraph (a) of
this section shall not constitute a
withholding of approval of a grant
application or the payment of funds
under an approved grant within the
meaning of 49 U.S.C. 47111(d).
■ 36. Amend § 158.95 by revising
paragraph (c) to read as follows:
§ 158.95
2. These assurances are required to be
submitted as part of the application for
approval or acknowledgment of
authority to impose a PFC under the
provisions of 49 U.S.C. 40117.
3. Upon approval of an application or
acknowledgment of a notice of intent by
the Administrator, the public agency is
responsible for compliance with these
assurances.
B. * * *
5. Non-exclusivity of contractual
agreements. It will not enter into an
exclusive long-term lease or use
agreement with an air carrier or foreign
air carrier for projects funded by PFC
revenue. Such leases or use agreements
will not preclude the public agency
from funding, developing, or assigning
new capacity at the airport with PFC
revenue.
*
*
*
*
*
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 63
[EPA–HQ–OAR–2023–0330; FRL–4908.1–
01–OAR]
RIN 2060–AV20
Review of Final Rule Reclassification
of Major Sources as Area Sources
Under Section 112 of the Clean Air Act
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The EPA is proposing to add
requirements for sources to reclassify
from major source status to area source
status under the National Emission
Standards for Hazardous Air Pollutants
(NESHAP) program. The requirements
of this proposal would apply to all
sources that choose to reclassify,
including any sources which have
reclassified since January 25, 2018. The
EPA is proposing that sources
reclassifying from major source status to
area source status under the NESHAP
program must satisfy the following
criteria: any permit limitations taken to
reclassify from a major source of
hazardous air pollutants (HAP) under
the Clean Air Act to an area source of
HAP must be federally enforceable, any
such permit limitations must contain
safeguards to prevent emission increases
SUMMARY:
PO 00000
Frm 00037
Fmt 4702
Sfmt 4702
after reclassification beyond the
applicable major source NESHAP
requirements at time of reclassification,
and reclassification will only become
effective once a permit has been issued
containing enforceable conditions
reflecting the requirements proposed in
this action and electronic notification
has been submitted to the EPA.
Additionally, we are proposing
clarifications to reporting requirements
and updating language regarding
submittal of confidential business
information.
DATES:
Comments. Comments must be
received on or before November 13,
2023. Under the Paperwork Reduction
Act (PRA), comments on the
information collection provisions are
best assured of consideration if the
Office of Management and Budget
(OMB) receives a copy of your
comments on or before October 27,
2023.
Public hearing: If anyone contacts us
requesting a public hearing on or before
October 2, 2023, we will hold a virtual
public hearing. See SUPPLEMENTARY
INFORMATION for information on
requesting and registering for a public
hearing.
ADDRESSES: You may send comments,
identified by Docket ID No. EPA–HQ–
OAR–2023–0330, by any of the
following methods:
• Federal eRulemaking Portal:
https://www.regulations.gov/ (our
preferred method). Follow the online
instructions for submitting comments.
• Email: a-and-r-docket@epa.gov.
Include Docket ID No. EPA–HQ–OAR–
2023–0330 in the subject line of the
message.
• Fax: (202) 566–9744. Attention
Docket ID No. EPA–HQ–OAR–2023–
0330.
• Mail: U.S. Environmental
Protection Agency, EPA Docket Center,
Docket ID No. EPA–HQ–OAR–2023–
0330, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington,
DC 20460.
• Hand/Courier Delivery: EPA Docket
Center, WJC West Building, Room 3334,
1301 Constitution Avenue NW,
Washington, DC 20004. The Docket
Center’s hours of operation are 8:30
a.m.–4:30 p.m., Monday–Friday (except
federal holidays).
Instructions: All submissions received
must include the Docket ID No. for this
rulemaking. Comments received may be
posted without change to https://
www.regulations.gov/, including any
personal information provided. For
detailed instructions on sending
comments and additional information
E:\FR\FM\27SEP1.SGM
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]]>Agencies
[Federal Register Volume 88, Number 186 (Wednesday, September 27, 2023)]
[Proposed Rules]
[Pages 66319-66336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20559]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 158
[Docket No.: FAA-2022-1315; Notice No. 23-14]
RIN 2120-AL86
Update and Clarification of the Passenger Facility Charge
Regulations
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: The FAA proposes to amend its Passenger Facility Charge
regulations to implement changes to an existing pilot program that
resides within the Passenger Facility Charge program. This
Congressionally mandated pilot program simplifies the process for
public agencies controlling commercial service airports to obtain FAA
authority to impose and use Passenger Facility Charges to fund airport
development projects. The FAA also proposes to reaffirm existing
program requirements and update or remove obsolete references within
the Passenger Facility Charge regulations. Further, this proposed
action removes certain Passenger Facility Charge program requirements
eliminated in the 2018 FAA reauthorization legislation.
DATES: Send comments on or before November 27, 2023.
ADDRESSES: Send comments identified by docket number FAA-2022-1315
using any of the following methods:
Federal eRulemaking Portal: Go to www.regulations.gov and
follow the online instructions for sending your comments
electronically.
Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
Fax: Fax comments to Docket Operations at 202-493-2251.
Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments
from the public to better inform its rulemaking process. DOT posts
these comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
Docket: Background documents or comments received may be read at
www.regulations.gov at any time. Follow the online instructions for
accessing the docket or go to the Docket Operations in Room W12-140 of
the West Building Ground Floor at 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: For technical questions concerning
this action, contact Jane Johnson, Office of Airports, Airports Policy
Branch, APP-510, Federal Aviation Administration, 800 Independence
Avenue SW, Room 619, Washington, DC 20591; telephone (202) 267-5878;
email [email protected].
SUPPLEMENTARY INFORMATION:
[[Page 66320]]
Table of Contents
I. Executive Summary
II. Overview of the Proposal
III. Authority for this Rulemaking
IV. History of the PFC Program
V. Discussion of the Proposal
A. 2018 Reauthorization Act
1. Changes to Project Eligibility for PFC Levels Above $3
2. Changes to Applications and Notices of Intent
B. PFC Program Oversight
1. Reporting, Recordkeeping and Audit Requirements
2. Federal Oversight, Informal Resolution, and Termination
C. Miscellaneous Amendments
1. Changes to Subpart A
2. Changes to Subpart B
3. Changes to Subpart C
4. Changes to Subpart D
5. Changes to Subpart E
6. Changes to Subpart F
7. Changes to Appendix A
8. Section Cross-Reference Table
VI. Regulatory Notices and Analyses
A. Regulatory Evaluation
1. Need for the Regulation
2. Baseline for the Analysis
3. Benefits
4. Costs
5. Regulatory Alternatives
B. Regulatory Flexibility Determination
C. International Trade Impact Assessment
D. Unfunded Mandates Assessment
E. Paperwork Reduction Act
F. International Compatibility
G. Environmental Analysis
VII. Executive Order Determinations
A. Executive Order 13132, Federalism
B. Executive Order 13175, Consultation and Coordination With
Indian Tribal Government
C. Executive Order 13211, Regulations That Significantly Affect
Energy Supply, Distribution, or Use
D. Executive Order 13609, International Cooperation
VIII. Additional Information
A. Comments Invited
B. Availability of Rulemaking Documents
List of Abbreviations and Acronyms Frequently Used in This Document
AIP--Airport Improvement Program
ALP--Airport Layout Plan
CBI--Confidential Business Information
CFR--Code of Federal Regulations
DOT--U.S. Department of Transportation
FAA--Federal Aviation Administration
FOIA--Freedom of Information Act
ICAO--International Civil Aviation Organization
IRFA--Initial Regulatory Flexibility Analysis
NEPA--National Environmental Policy Act
NPIAS--National Plan of Integrated Airport Systems
NPRM--Notice of Proposed Rulemaking
OIG--Office of Inspector General
OMB--Office of Management and Budget
PFC--Passenger Facility Charge
RFA--Regulatory Flexibility Act
RIA--Regulatory Impact Analysis
SBA--Small Business Administration
U.S.C.--United States Code
I. Executive Summary
The FAA proposes to amend its PFC regulations to implement changes
to a Congressionally mandated pilot program that simplifies the process
for public agencies controlling commercial service airports to obtain
FAA authority to impose and use PFCs to fund airport development
projects. The FAA also proposes to reaffirm existing PFC program
requirements and update or remove obsolete references within the PFC
regulations. Further, this proposed action removes certain PFC program
requirements eliminated in the 2018 FAA reauthorization legislation.
II. Overview of the Proposal
The FAA Reauthorization Act of 2018 (2018 Reauthorization Act),\1\
codified at 49 U.S.C. 40117, mandated several changes to the Passenger
Facility Charge (PFC) program. The 2018 Reauthorization Act removed
previously existing PFC program requirements and mandated changes for
other PFC program requirements. This rulemaking action proposes to
amend the PFC regulations in part 158 to implement the mandated
changes.
---------------------------------------------------------------------------
\1\ Public Law 115-254, October 5, 2018.
---------------------------------------------------------------------------
The FAA also proposes to amend the PFC regulations to improve PFC
program oversight. On December 18, 2018, the U.S. Department of
Transportation, Office of Inspector General (OIG) issued Report No.
AV2019015, ``Most Public Agencies Comply with Passenger Facility Charge
Program Requirements, But FAA Can Improve the Use of Its Oversight
Tools.'' In that report, the OIG made several recommendations to
improve the FAA's oversight and administration of the PFC program.\2\
These recommendations pertained primarily to PFC reporting,
recordkeeping, and audit procedures. Through this rulemaking, and as
detailed in sections V.B.1. and V.B.2, the FAA is proposing to
formalize in regulations policies that the FAA implemented in May 2019,
in response to the OIG's recommendations.\3\
---------------------------------------------------------------------------
\2\ OIG Report No. AV2019015 at 3.
\3\ See PFC Update 71-19, ``Oversight of Public Agency Passenger
Facility Charge (PFC) Program,'' issued April 1, 2019, on the FAA
internet website.
---------------------------------------------------------------------------
Further, the FAA is proposing several miscellaneous amendments to
the PFC regulations, including but not limited to: replacing obsolete
references, correcting grammar or rewording language for clarity, and
re-organizing and re-numbering sections to facilitate other amendments
proposed in this rulemaking action. See section V.C.10. in this
preamble for a cross-reference table listing CFR units that the FAA
proposes to rename, re-number, or both.
III. Authority for This Rulemaking
The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code (U.S.C.). Subtitle I,
section 106 describes the authority of the FAA Administrator. Subtitle
VII, Aviation Programs, describes in more detail the scope of the
agency's authority. This rulemaking is promulgated under the authority
described in subtitle VII, part A, subpart I, section 40117. Under that
section, the FAA is charged with prescribing regulations to impose a
passenger facility fee to finance eligible airport-related projects.
This rulemaking is also promulgated pursuant to 49 U.S.C. 106(g),
40116, 47106, 47111, 47114-47116, 47524, and 47526.
IV. History of the PFC Program
The PFC program was established by the Aviation Safety and Capacity
Expansion Act of 1990 (Pub. L. 101-508; enacted November 5, 1990) which
authorized the Secretary of Transportation (Secretary) to approve local
imposition of PFCs of $1, $2, or $3 per enplaned passenger and to use
PFC revenue for approved projects. That Act also required the Secretary
to issue regulations necessary to implement this authority. The Act
directed the Secretary to develop an application procedure, establish
terms and conditions for granting PFC authority, set up a system for
collecting, handling, and remitting PFC revenue to the appropriate
public agency, and establish recordkeeping and audit requirements and
procedures for termination. On May 22, 1991, the FAA issued a final
rule adopting new regulations to establish the PFC program in part
158.\4\
---------------------------------------------------------------------------
\4\ 56 FR 24254 (May 29, 1991).
---------------------------------------------------------------------------
Pursuant to the Wendell H. Ford Aviation Investment and Reform Act
for the 21st Century (AIR 21), the FAA issued a final rule amending
part 158 on May 23, 2000.\5\ That action amended the PFC regulations to
incorporate administrative and statutory changes in the procedures to
establish PFCs, including increasing the PFC level that a public agency
may charge from $1, $2, or $3 to $4 or $4.50.
---------------------------------------------------------------------------
\5\ 65 FR 34536 (May 30, 2000).
---------------------------------------------------------------------------
On January 7, 2005, the FAA issued a final rule further amending
part 158.\6\ In that rulemaking action, the FAA created a new pilot
program, as statutorily mandated by Vision 100--Century of Aviation
Reauthorization
[[Page 66321]]
Act \7\ (Vision 100), to test alternative procedures to authorize
public agencies to impose PFCs and use PFC revenue for eligible
projects at non-hub airports. Specifically, the FAA added current Sec.
158.30 to prescribe the procedures a public agency controlling a non-
hub \8\ airport must follow when notifying the FAA of its intent to
impose a PFC and to use PFC revenue on a project. That section also set
forth criteria and standards for FAA review and acknowledgment of any
notice of intent filed under the pilot program, and FAA objection to a
proposed project. Since Vision 100 required the pilot program to be in
effect for three years from the date the final rule was enacted, the
final rule included a sunset provision of May 9, 2008.
---------------------------------------------------------------------------
\6\ 70 FR 14927 (March 23, 2005).
\7\ Vision 100, 49 U.S.C. 40117(l) (December 12, 2003).
\8\ Non-hub airport means a commercial service airport that has
less than 0.05 percent of the passenger boardings. 49 U.S.C.
47102(14).
---------------------------------------------------------------------------
The Federal Aviation Extension Act of 2008 \9\ authorized the non-
hub pilot program to continue through September 30, 2008. However, when
Sec. 158.30 expired on May 9, 2008, there were no effective
regulations in place to guide public agencies and the FAA regarding the
use of these alternative procedures. Therefore, the FAA published a
notice in the Federal Register informing public agencies of the
program's continuing statutory authority, and the FAA periodically
issued internal agency guidance in the form of PFC updates to inform
agency personnel of how to administer the non-hub pilot program.
---------------------------------------------------------------------------
\9\ Public Law 110-253, June 30, 2008.
---------------------------------------------------------------------------
The FAA Modernization and Reform Act of 2012 subsequently
eliminated the expiration date from 49 U.S.C. 40117(l) and the FAA
continued implementing the non-hub pilot program in accordance with the
statute in the absence of effective regulations.\10\ The agency
continued to use the same forms and procedures that were developed
before the sunset of Sec. 158.30, thereby allowing for seamless
program continuation.
---------------------------------------------------------------------------
\10\ Although Sec. 158.30 expired on May 9, 2008, the text of
the regulation continues to be printed in the Code of Federal
Regulations because of the corresponding removal of the expiration
date in the 2012 Act. This rulemaking action would remove that
obsolete language.
---------------------------------------------------------------------------
V. Discussion of the Proposal
The FAA is proposing to amend the PFC program regulations. These
proposed amendments are grouped into the following three categories
based on the rationale for the proposed change: 2018 Reauthorization
Act, PFC Program Oversight, and Miscellaneous Amendments.
A. 2018 Reauthorization Act
This rulemaking action proposes the following changes to the PFC
program as mandated by the 2018 Reauthorization Act: (1) changes
related to project eligibility for PFC levels above $3, and (2) changes
related to applications and notices of intent for small- \11\, medium-
\12\, and large-hub \13\ airports.
---------------------------------------------------------------------------
\11\ Small hub airport means a commercial service airport that
has at least 0.05 percent but less than 0.25 percent of the
passenger boardings. 49 U.S.C. 47102(25).
\12\ Medium hub airport means a commercial service airport that
has at least 0.25 percent but less than 1.0 percent of the passenger
boardings. 49 U.S.C. 47102(13).
\13\ Large hub airport means a commercial service airport that
has at least 1.0 percent of the passenger boardings. 49 U.S.C.
47102(11).
---------------------------------------------------------------------------
1. Changes to Project Eligibility for PFC Levels Above $3
(a) Background
At the inception of the PFC program, public agencies received
authority to impose a PFC of $1, $2, or $3. The project eligibility
requirements are contained in current Sec. 158.15, ``Project
eligibility at PFC levels of $1, $2 or $3.'' AIR 21 modified the PFC
program by allowing a public agency to apply to the FAA to increase the
PFC level that it may charge to $4 or $4.50 in certain instances.
Project Eligibility requirements at PFC Levels of $4 or $4.50 are found
in current Sec. 158.17. Section 158.17 (a)(1) requires these projects
to also meet the eligibility requirements of Sec. 158.15.
AIR 21 limited projects funded at a $4 or $4.50 PFC level to those
that could not be paid for from funds reasonably expected to be
available under the Airport Improvement Program (AIP). The requirement
for this AIP funds reasonability determination is found in current
Sec. 158.17(a)(2).
AIR 21 also conditioned the funding of surface transportation or
terminal projects at the $4 or $4.50 level on a finding that the public
agency had made adequate provision for financing the airside needs \14\
of the airport. The requirement for this airside needs determination is
found in current Sec. 158.17(a)(3).
---------------------------------------------------------------------------
\14\ Airside needs include runways, taxiways, aprons, and
aircraft gates.
---------------------------------------------------------------------------
Further, AIR 21 established additional eligibility requirements for
projects at medium- and large-hub airports. A project at a medium- or
large-hub airport was eligible for PFC funding at $4 or $4.50 only if
the project would make a significant contribution to: improving air
carrier safety and security; increasing competition among air carriers;
reducing current or anticipated congestion; or reducing the impact of
aviation noise on people living near the airport. These requirements
are contained in current Sec. 158.17(b).
(b) Removal of AIP Funds Reasonability Determination
The 2018 Reauthorization Act amended 49 U.S.C. 40117(b)(4) by
removing the AIP funds reasonability determination requirement found in
current Sec. 158.17(a)(2). With this change in legislation, the FAA no
longer uses this determination to set the collection level for which
the project is approved. On May 9, 2019, the FAA issued PFC Update 72-
19, ``Changes to the Passenger Facility Charge Levels Above $3,''
directing FAA personnel to cease applying this requirement while
reviewing PFC applications. In this rulemaking action, the FAA proposes
to formally remove this requirement from the PFC regulations.
(c) Removal of Significant Contribution Determination
The 2018 Reauthorization Act also eliminated the significant
contribution requirement found in current Sec. 158.17(b). As a result,
the FAA no longer uses it to determine the collection level for which a
project is approved and no longer requires public agencies to submit
information related to significant contribution. PFC Update 72-19
directs FAA personnel to no longer apply this requirement in reviewing
PFC applications and the FAA proposes to remove the requirement from
the PFC regulations. Moving forward, the FAA would rely on airside
needs as the determining factor.
(d) Retention of Airside Needs Determination
The 2018 Reauthorization Act retains the airside needs
determination under 49 U.S.C. 40117(d)(4) found in current Sec.
158.17(a)(3). Since the airside needs determination is the only
requirement remaining within Sec. 158.17 after making the 2018
Reauthorization Act changes, aside from the requirement to comply with
Sec. 158.15, the FAA proposes to combine these two sections.
Specifically, the FAA proposes to move the airside needs requirement in
Sec. 158.17(a)(3) to Sec. 158.15 by adding a new proposed paragraph
(d) to current Sec. 158.15 and restating the airside needs
requirement, which continues to remain effective. The FAA also proposes
to rename Sec. 158.15 as ``Project
[[Page 66322]]
eligibility'' \15\ and delete the current text of Sec. 158.17 in its
entirety. Consolidating the project eligibility requirements into one
section and changing the section title will improve accessibility and
comprehension of the requirements.
---------------------------------------------------------------------------
\15\ Prior to AIR 21 and the subsequent final rule allowing for
the $4 or $4.50 PFC level, all project eligibility requirements were
listed in Sec. 158.15, which was titled Project eligibility. In
this rulemaking, the FAA proposes to return to that former structure
of the PFC regulation for project eligibility.
---------------------------------------------------------------------------
The FAA also proposes administrative amendments to replace
references to former Sec. 158.17(a)(3) throughout part 158 with
references to proposed Sec. 158.15(d). These administrative amendments
are discussed further under section V.C. below.
2. Changes to Applications and Notices of Intent
(a) Background
The statutory provisions initially authorizing the PFC program
required public agencies to submit an application to the FAA to obtain
authority to impose PFCs and use PFC revenue. However, Vision 100
established the notice of intent process, mandating that the FAA create
a pilot program to test alternative procedures for authorizing eligible
agencies for non-hub airports to impose PFCs and use PFC revenue.
Under the non-hub pilot program, only public agencies controlling
non-hub airports could use alternative procedures to impose PFCs and
use PFC revenue on eligible projects under 49 U.S.C. 40117(l). In lieu
of submitting an application in accordance with 49 U.S.C. 40117(c), as
prescribed in current Sec. 158.25, public agencies controlling non-hub
airports simply could submit a notice of intent to impose a PFC and use
PFC revenue. Under these alternative procedures, within 30 days of
receipt of the public agency's notice, the FAA either objected to the
public agency's proposed project(s) or acknowledged the public agency's
notice of intent.
The 2018 Reauthorization Act amended 49 U.S.C. 40117(l) by removing
all references to non-hub airports. This legislative change effectively
directed the FAA to extend the pilot program to small-, medium-, and
large-hub airports, permitting these airports to also obtain authority
to impose PFCs and use PFC revenue using alternative notice of intent
procedures.
(b) PFC Update 73-20 and Partial Implementation of Program Changes
Immediately following enactment of the 2018 Reauthorization Act,
the FAA considered several options for implementing the PFC program
changes. Since the FAA had been successfully implementing notice of
intent procedures for non-hub airports for several years, such
procedures seemed most appropriate for PFC authorizations for small-,
medium-, and large-hub airports. However, rulemaking to amend part 158
would have been required to change the application requirements for
public agencies.
Recognizing the immediate need for expeditious processing of PFC
applications, the FAA internally implemented program changes to the
maximum extent possible. On January 22, 2020, the FAA issued PFC Update
73-20, ``Streamlined Procedures for Passenger Facility Charge (PFC)
Authorizations at Small-, Medium-, and Large-Hub Airports.'' This
interim internal guidance partially implemented the program change by
streamlining the FAA's internal review of PFC projects meeting specific
criteria for small-, medium-, and large-hub airports. This interim
internal guidance did not change the PFC application procedures for
public agencies. All applications were still required to meet the
statutory and regulatory requirements of 49 U.S.C. 40117 and part 158.
PFC Update 73-20 indicated that all PFC applications received by
the FAA from small-, medium-, or large-hub airports are to be processed
using the streamlined procedures identified in the PFC update unless
such applications are excluded in accordance with applicable PFC
guidance. Therefore, all PFC applications not excluded under PFC Update
73-20 are to be treated as a notice of intent with FAA review and
acknowledgment or objection within 30 days.
(c) Proposed Amendments for Full Implementation of Program Changes
The FAA proposes to amend part 158 to allow for the full
implementation of program changes originating from the 2018
Reauthorization Act. The FAA's proposed regulations largely mirror the
provisions of PFC Update 73-20 to implement the notice of intent pilot
program.
The FAA proposes to revise Sec. 158.30 to reflect the 2018
Reauthorization Act program changes and remove the since-rescinded
section expiration date, which will provide consistency with current
practice and law. Current Sec. 158.30 prescribes regulations for
notice of intent PFC authorizations for non-hub airports; however,
Sec. 158.30(h) indicates that Sec. 158.30 expired on May 9, 2008. The
FAA also intends to move some of the provisions found in Sec. 158.30
to other sections within part 158 to improve readability of the notice
of intent requirements. The FAA is proposing this re-organization of
Sec. 158.30 to allow for the inclusion of notice of intent provisions
stemming from PFC Update 73-20 and the FAA's partial implementation of
the program changes. These proposed changes are discussed in the
following paragraphs.
First, the FAA proposes to amend current Sec. 158.30 by renaming
the section heading ``Notices of intent.'' While Sec. 158.30(a)
through (c) would remain largely the same, the FAA is proposing to make
several changes. For example, the FAA proposes revising current
paragraph (a) by removing language that limits the applicability of
Sec. 158.30 to non-hub airports. The FAA is also proposing minor
changes to the project information requirements of current Sec.
158.30(b). That paragraph requires public agencies to submit grant-
related information when a PFC project is also funded by an AIP grant.
The FAA proposes to replace references to AIP grants with ``FAA awarded
airport grant'' so as to include information about other grants also
funding the project, such as those authorized under the Bipartisan
Infrastructure Law (BIL). Further, the FAA is adding a new paragraph,
proposed Sec. 158.30(b)(8), requiring public agencies to submit
detailed cost information for non-AIP funded projects that exceed $10
million.
Second, the FAA proposes to move the text of current Sec. 158.31,
``Duration of authority to impose a PFC after project implementation''
to an amended Sec. 158.33, and move the text of current Sec.
158.30(d), which includes the notice of intent review requirements, to
an amended and proposed Sec. 158.31, ``Review of notices of intent.''
In turn, the FAA proposes to move the current text of Sec. 158.33,
``Duration of authority to impose a PFC before project
implementation,'' to a newly added proposed Sec. 158.34.
Proposed Sec. 158.31 describes the FAA's rules for reviewing
notices of intent and outlines two stages of FAA review. The first
stage of review, which is prescribed in proposed Sec. 158.31(a),
addresses the types of applications and projects ineligible for notice
of intent consideration. The second stage of review, which is
prescribed in Sec. 158.31(b), addresses the FAA's determinations on
projects eligible for notice of intent consideration.
Under proposed Sec. 158.31(a), the FAA will review notices of
intent to identify projects ineligible for consideration under this
streamlined process. The FAA intends to notify public agencies in
writing within 30 days if the FAA determines that a project is
ineligible for the notice of intent procedure. This
[[Page 66323]]
notification process, outlined in proposed Sec. 158.31(a), was not
prescribed in PFC Update 73-20.
The projects ineligible for consideration under proposed Sec.
158.31(a)(1) through (a)(8) are identical to those ineligible for the
streamlined procedures under PFC Update 73-20. In determining the types
of projects ineligible for streamlined procedures under PFC Update 73-
20, the FAA considered the agency's internal delegations of authority
as delineated in PFC Order 5500.1, ``Passenger Facility Charge,''
issued August 9, 2001. That document identifies certain types of PFC
projects and applications that cannot be processed by the FAA's region
and district offices because they require a higher level of internal
FAA review and coordination within agency headquarters. Applications
involving significant policy precedent, significant legal issues,
significant controversy, multimodal projects, and significant noise,
access, or revenue diversion issues are not eligible for streamlined
processing under PFC Update 73-20. For reasons discussed in the next
few paragraphs, the FAA proposes to incorporate these provisions within
the regulations.
Under proposed Sec. 158.31(a)(1), the FAA intends to review
notices of intent for significant impacts on policy precedent. The
FAA's disposition regarding a proposed PFC project could represent a
significant policy precedent if the agency's decision would establish
or change the FAA's policy on a project or issue. FAA review of such a
project would typically require more than the 30 days afforded by the
notice of intent process because the FAA would need to evaluate any
potential impacts resulting from a change in policy.
Similarly, under proposed Sec. 158.31(a)(2), the FAA intends to
review notices of intent for projects with significant legal issues, as
determined by the FAA's Office of the Chief Counsel or Office of
Airports. Projects with significant legal issues involve matters that
may result in litigation or may include projects where NEPA or
environmental litigation are present. Such projects might also include
circumstances where a Director within the FAA's Office of Airports has
made a determination that the public agency has been found to be
noncompliant in 14 CFR part 16 proceedings, or the public agency is
presently a respondent in 14 CFR part 16 proceedings. Again, such
projects need a level of review that requires more than the 30 days
afforded by the notice of intent process.
PFC projects that are the subject of significant controversy are
also ineligible for streamlined procedures in accordance with Sec.
158.31(a)(3). Significant controversy is evidenced by opposition
expressed during a public agency's consultation with air carriers.
Other indicators of potential significant controversy include adverse
public comments or opposition to the FAA's proposed action from other
airport authorities, airport users, Federal, State, or local
governments, elected officials or communities. Likewise, multimodal
projects or projects involving significant airport noise, access, or
revenue diversion issues are also ineligible for these alternative
procedures in accordance with proposed Sec. 158.31(a)(4) and (a)(5).
Significant airport noise, access, or revenue diversion issues concern
those assessing compliance with 49 U.S.C. 47521 et seq. (ANCA) and 49
U.S.C. 47111(e) (Action on Grant Assurances Concerning Airport
Revenues).
The FAA also considered PFC Update 62-10, ``Passenger Facility
Charge Delegation of Authority,'' issued March 11, 2010, in determining
the types of projects ineligible for streamlined procedures under PFC
Update 73-20. That document identifies additional types of PFC projects
and applications that cannot be processed by the FAA's regional and
district offices. These include debt service on otherwise ineligible
projects or blending of two or more PFC decisions to obtain a uniform
collection level. Such projects and applications require specialized
review because they tend to be unique and multifaceted. The next few
paragraphs discuss the FAA's intent to retain these exclusions as
proposed Sec. 158.31(a)(6) and (a)(7).
In proposed Sec. 158.31(a)(6), the FAA proposes to exclude
applications involving debt service from the notice of intent
streamlined procedures due to the complexity of these applications.
When applying to use PFC revenue for certain debt service projects, the
FAA encourages each airport to thoroughly discuss in its application
those factors it believes most clearly indicate the airport's financial
need. The FAA will consider the airport's plans to return to financial
stability in its deliberations on the application. If incurring new
debt, for any purpose, will help the airport return to financial
stability as soon as possible, the public agency should discuss this
factor in the application. The FAA also expects an airport attempting
to demonstrate that it faces a financial crisis to discuss factors
likely to affect its ability to make required payments in the future.
Notice of intent procedures would not be appropriate in such instances
because the FAA's evaluation process is too extensive to be completed
within 30 days. A longer time frame for review is necessary because
this gives the public agency time to respond to any requests for
information from the FAA should the application not contain all of the
necessary documentation. For example, if during the course of review,
the FAA finds that the public agency needs to provide a plan to return
to financial stability, 30 days is insufficient to allow for the public
agency to develop and submit the plan in order to move forward with the
application. Since there is not sufficient time allotted for adequate
review under the notice of intent process, the FAA proposes to exclude
these types of projects and applications.
The FAA proposes to exclude applications for the blending of two or
more PFC decisions to obtain a uniform collection level under proposed
Sec. 158.31(a)(7) for reasons similar to debt service on otherwise
ineligible projects. Prior to the 2018 Reauthorization Act, public
agencies sought to blend PFC applications to enable PFC collections at
the higher $4 or $4.50 amount when significant contribution was a
determining factor. Since the significant contribution determination
has been eliminated and public agencies no longer need to demonstrate
significant contribution to collect PFCs at the $4 or $4.50 level, the
FAA does not anticipate receiving many public agency applications for
blending. However, in the rare event that a public agency does seek to
blend applications, the FAA has found that such action requires a
specialized review and analysis that is likely to exceed the 30 days
afforded by the notice of intent process. Therefore, the FAA excluded
blending under PFC Update 73-20 and proposes that application blending
should remain ineligible for the streamlined notice of intent
procedures.
Finally, PFC Update 73-20 describes one more type of PFC project
ineligible for streamlined processing. Terminal building projects in
excess of $25 million, except stand-alone passenger boarding bridges,
are also ineligible for streamlined processing under PFC Update 73-20.
The FAA proposes to retain this exclusion as proposed Sec.
158.31(a)(8) for reasons discussed in the following paragraphs.
The initial justification for non-hub airport notice of intent
procedures was to achieve PFC program efficiency by eliminating
duplicative efforts. In 2002, the FAA examined the PFC program to
identify ways to remove unnecessary,
[[Page 66324]]
duplicative, and time-consuming steps. The FAA found that while non-hub
airports accounted for about 60 percent of the PFC applications
processed over the prior five years, they only produced roughly two
percent of the total annual PFC revenue. Further, the FAA found that
non-hub airports often apply to use PFC revenue either as their
matching share for an AIP grant or as a supplement to AIP funding. In
such cases involving AIP funds, the FAA has already reviewed the
project under the AIP grant procedures, thereby producing a duplication
of efforts that created inefficiencies for both non-hub airports and
the FAA. Thus, overall, enactment of the non-hub pilot program
eliminated duplication, improved program efficiency, and supported
expedited review of PFC projects for non-hub airports.
Under the non-hub pilot program for notices of intent, when PFC
projects did not include AIP funds, the FAA required public agencies to
submit project information sufficient for the FAA to review and
consider whether the project is eligible for PFCs, meets a PFC
objective, and is justified before acknowledging or objecting to a
proposed PFC project. While terminal projects for non-hub airports
typically fell into this category, the scale of such projects and the
level of complexity tend to be minimal due to the nature of non-hub
operations, allowing for review within the 30-day timeframe. However,
in partially implementing program changes under PFC Update 73-20, the
FAA concluded that terminal building projects for small-, medium-, and
large-hub airports, on the other hand, may need more than the 30 days
afforded under the notice of intent process.
Endeavoring to retain PFC program efficiencies gained through the
notice of intent process while still allowing for adequate review and
evaluation of terminal projects, the FAA implemented a $25 million
threshold for terminal projects under PFC Update 73-20 regardless of
airport hub size. Since inception of the PFC program, the vast majority
of non-hub terminal PFC projects were less than $25 million. The $25
million threshold allows nearly all non-hub airport terminal projects
to continue to obtain PFC authority through the notice of intent
process as they have done historically and allows a vast majority of
terminal projects for small-, medium-, and large-hub airports to also
use this process.
Terminal projects at or over $25 million, in most cases, require a
more extensive review on the part of the FAA to ensure the project has
been fully assessed. Concluding from years of experience with terminal
projects, the FAA found that projects above $25 million tend to involve
more systems and components than smaller projects and have a greater
potential to include spaces and equipment ineligible for funding under
the PFC program. Therefore, these projects require a more comprehensive
review, such as comparison against comparable projects, which would
take more than the 30-day notice of intent period. The FAA does not
propose changes to this limitation found in proposed Sec. 158.31. The
numerous components associated with projects at or over $25 million
generally require a more extensive review on the part of the FAA to
ensure the project has been fully assessed. The application evaluation
process may include determining if the submission includes sufficient
documentation to demonstrate adequate justification for the project;
determining whether the project is eligible for PFC funds; assessing
the project objective and justification provided by the public agency;
reviewing submission of detailed financial information; evaluating
modifications to standards; assessing impacts to airport geometry; and
determining whether it is necessary to engage in interagency
coordination. There may be a need to coordinate with border control
agencies or other Federal agencies on the impact of this application
and project with respect to these agencies' equities. Other review
factors can include amount and duration of the PFC; compliance with
airport revenue use requirements; alternative uses; air carrier and
public comments; compliance with the Airport Noise and Capacity Act of
1990 (ACNA); airport layout plan (ALP), airspace, and National
Environmental Policy Act (NEPA) requirements; the schedule for project
implementation; and financial viability of the project. Since many of
these determinations and factors are present when a project reaches the
$25 million threshold, such projects cannot be streamlined.
(d) PFC Update 50-06 and 2018 Reauthorization Pilot Program
Implementation
The FAA proposes a minor revision to the information that public
agencies must submit to the FAA with a notice of intent when seeking
authority to impose a PFC. Specifically, the FAA proposes to add
Sec. Sec. 158.25(b)(8) and 158.30(b)(3)(iv) directing public agencies
to submit detailed cost information, as required by the Administrator.
The FAA's policy on requesting this information from public agencies is
currently outlined in PFC Update 50-06, ``Detailed basis of cost
information, new project certifications, and changes to the Final
Agency Decision,'' issued September 8, 2006.
The FAA issued PFC Update 50-06 in response to Village of
Bensenville, et al. v. Federal Aviation Administration, a U.S. Court of
Appeals, District of Columbia Circuit decision, that found the FAA had
not adequately demonstrated that it had reviewed the cost estimates for
an Environmental Impact Statement (EIS) project and that the FAA's
records did not support its findings in its decision.\16\ With the
issuance of PFC Update 50-06, the FAA began requesting the submission
of detailed cost information with PFC applications under the authority
of current Sec. 158.25(b)(18), which directs public agencies to submit
``[s]uch additional information as the Administrator may require.''
Attachment B to the PFC Application Form 5500-1 explicitly requires
public agencies to submit cost details sufficient to identify eligible
and ineligible costs if the project amount is over $10 million, as a
result of the decision by the court.
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\16\ Village of Bensenville, et al. v. Federal Aviation
Administration, 376 F.3d 1114, 1122 (D.C. Cir. 2004).
---------------------------------------------------------------------------
The detailed cost submission requirement for small-, medium-, and
large-hub airports has not changed with the availability of the notice
of intent process, but this requirement will now apply to non-hub
airports. Prior to the 2018 Reauthorization Act, non-hub airports
obtaining PFC authority through the notice of intent process were not
subject to the detailed cost submission requirements. In PFC Update 50-
06, the FAA stated that most non-hub pilot program projects have either
existing or planned AIP funding, and these grants involve an FAA review
of the costs. Also, most non-hub pilot program projects request less
than $10 million in PFC funding authority. Further, the FAA indicated
the 30-day pilot program-processing period does not provide enough time
for the FAA to review detailed cost estimates for multiple projects.
Section 158.30(b)(7) (which expired on May 9, 2008--See footnote 1)
directed public agencies to include ``any additional information the
Administrator may require'' with a notice of intent. The FAA proposes
to include this language in Sec. 158.30(b)(7). Similarly, the FAA does
not propose to change current policy that non-hub airports must provide
detailed cost information when submitting an application under Sec.
158.25 and the project amount is over $10 million.
[[Page 66325]]
Since the 2018 Reauthorization Act effectively eliminated any
distinction between hub and non-hub notice of intent submissions, the
requirement for detailed cost information now extends to non-hub
airports. The FAA proposes to add a new subparagraph Sec.
158.30(b)(3)(iv) to clearly indicate within the PFC regulations that
submission of cost detail information may be required as part of a
notice of intent filing, regardless of hub size. The FAA anticipates
the impact of this provision on public agencies will be minimal. Since
the FAA proposes to restrict the types of projects eligible for
streamlined procedures, the FAA expects that very few projects would
require this comprehensive review of material within the 30-day period.
Further, public agencies already possess detailed cost information for
proposed projects in most cases. Adding this requirement merely directs
public agencies to submit such information to the FAA for consideration
along with a notice of intent filing.
B. PFC Program Oversight
The proposed regulatory changes to program oversight stem from PFC
Update 71-19 and a review of current policies. The proposed changes
formalize the policies contained in PFC Update 71-19, improve the
informal resolution process, and restructure the current layout of the
oversight regulations found in part 158 to improve accessibility and
program compliance.
1. Reporting, Recordkeeping and Audit Requirements
On April 1, 2019, the FAA issued PFC Update 71-19, Oversight of
Public Agency Passenger Facility Charge (PFC) Program, in response to
certain recommendations from the OIG, contained in Report # AV2019015.
In that report, the OIG asserted that the FAA lacked a process to
ensure that independent audit reports are timely and include required
information. The OIG recommended that the FAA establish specific
timeframes for issuing audit reports and verify that public agencies'
independent audits are performed annually.
Public agencies are required to conduct an audit of their PFC
accounts at least annually in accordance with current Sec. 158.67(c).
To ensure that these audit reports are submitted in a timely manner,
PFC Update 71-19 directs the FAA to request that public agencies submit
annual PFC audit reports 30 calendar days after receipt of the
auditor's report or 9 months after the end of the audit period. The FAA
proposes to amend Sec. 158.69 to formalize this guidance to now
require public agencies to provide a copy of their annual audit to the
Administrator within 30 calendar days after receipt of the audit or 9
months after the end of the audit period, whichever is less. The FAA
also proposes to separate the requirements of current Sec. 158.67(c)
into four sub-paragraphs to separate four unique existing requirements.
These sub-paragraphs have been renumbered as Sec. 158.67(c)(1)-(4).
Further, the FAA is proposing two additional subparagraphs, Sec.
158.67(c)(5)-(6) to Sec. 158.67(c). Proposed Sec. 158.67(c)(5)
requires PFC audits to include a schedule of revenues and expenditures
of the PFC account. This schedule should include the beginning balance
in the PFC account on the first day of the fiscal year, PFC Collections
for each quarter, PFC Interest Earned for each quarter, disbursements
on projects by application for each quarter, and the PFC account
closing balance. Current FAA policy concerning the submission of a PFC
schedule is found in FAA Order 5500.1, Passenger Facility Charge,
August 9, 2001, Paragraph 7-18.b. AUDIT, which indicates that the
auditor must, as a minimum, provide opinions as well as a schedule of
PFC transactions. Currently, PFC schedule guidance is included in FAA
Order 5500.1. The FAA proposes to make this a requirement in the PFC
regulations.
Proposed Sec. 158.67(c)(6) requires PFC audits to be performed on
an actual basis unless some form of reconciliation documentation is
provided by the auditor. This proposal moves current industry practice
into a regulatory requirement in order to allow for the real-time
accounting of actual total collected towards the total PFC collection.
This requirement will improve transparency and ensure that PFC funds
are being collected accurately and are accounted for properly.
2. Federal Oversight of Compliance, Informal Resolution, and
Termination
The FAA proposes to rename current subpart ``E-Termination'' as
subpart ``E-Federal Oversight of Compliance, Informal Resolution, and
Termination'' and move current Sec. 158.71, which prescribes
regulations for Federal oversight, into subpart E. The FAA proposes to
consolidate the regulations in subparts D and E, which ensure public
agency compliance with the requirements of part 158 and 49 U.S.C.
40117, into the same subpart. The FAA anticipates that consolidating
the regulations in subparts D and E will improve access to public
agency obligations and therefore improve compliance.
The annual PFC audit provides validation of and reconciliation
between the public agency's audited financial statements and the PFC
financial data in the FAA's System of Airports Reporting (SOAR)
database. The FAA relies on SOAR data to evaluate whether the PFC
collection period is appropriate. Some public agencies have
inconsistently submitted required annual audit reports. Inaccurate or
absent data impairs the FAA's oversight and ability to fulfill its
statutory obligations under 49 U.S.C. 40117(d)(1) and 40117(h).
In some instances, after receiving a public agency's audit report,
the FAA may decide to review the imposition and use of PFC revenue. In
these cases, the public agency should provide a timely and sufficient
response to any FAA inquiry. Accordingly, the FAA proposes to amend
current Sec. 158.71 by adding language indicating the Administrator
may take further action including, but not limited to, informal
resolution, termination, or other action, as appropriate. The FAA also
proposes to re-number that section as Sec. 158.83 and rename it
``Federal oversight of compliance'' to more clearly reflect the
provisions.
The FAA also proposes to amend the informal resolution provisions
of current Sec. 158.83 by removing the requirement that the FAA audit,
review, or both audit and review a public agency's use of PFC revenue
or a public agency's collection and remittance of PFC revenue under the
oversight authority of current Sec. 158.71 before commencing an
informal resolution process with a public agency. As discussed
previously, the OIG found the FAA lacks a process to ensure that
independent audit reports are timely and include required information.
This proposal is part of a larger effort to create a compliance-
oriented subpart with a clear escalation process. A compliance-oriented
subpart with a clear escalation process also would enable the FAA to
engage in informal resolution to address various PFC collection and use
issues without the FAA having to first audit the public agency or
initiate termination procedures. The FAA also proposes to re-number
this section as Sec. 158.85.
C. Miscellaneous Amendments
The FAA is proposing miscellaneous amendments to the PFC
regulations. A discussion of these miscellaneous amendments follows.
The FAA proposes to re-organize and re-number several sections
within part 158 to facilitate other amendments
[[Page 66326]]
proposed in this rulemaking action. In instances where revised section
numbers are referenced elsewhere in the PFC regulations, the FAA
proposes to make corresponding administrative amendments to those
references within the PFC regulations.
1. Changes to Subpart A
(a) Section 158.3--Definitions
The FAA proposes to amend the following definitions:
Approved project. The FAA proposes to replace the
reference to Sec. 158.30 with Sec. 158.32. This is a technical
correction.
Bond financing costs. The FAA proposes to add language to
include the cost of financing other indebtedness, which is consistent
with PFC Order 5500.1, Appendix 4, August 9, 2001.
Charge effective date. The FAA proposes to insert the word
``first'' before the word ``date'' and replace the word ``obliged''
with the word ``start collecting.'' These amendments provide further
detail on the FAA's expectation for the charge effective date.
Charge expiration date. The FAA proposes to replace the
phrase ``cease to collect'' with the phrase ``stop collecting.'' This
is not a substantive change.
Debt service. The FAA proposes to move the word ``items''
from behind the word ``such'' to before the word ``such.'' This is not
a substantive change.
Exclusive long-term lease or use agreement. The FAA
proposes to add language to this definition that applies to exclusive
leases of less than five years that have automatic renewal or carryover
options, or to leases that have the effect of granting exclusive use
rights. This proposed change is not a substantive change but has been
made to align the definition with PFC assurances 5 and 6.
Implementation of an approved project. The FAA proposes to
replace the word ``nonconstruction'' with ``non-construction.'' This is
not a substantive change.
Notice of intent (to impose or use PFC revenue). The FAA
proposes to amend the definition by removing the limited applicability
to non-hub airports. This amendment is consistent with the 2018
Reauthorization Act. The FAA also proposes to replace the reference to
Sec. 158.30 with Sec. 158.32. This amendment harmonizes with the re-
numbering of certain sections. This is a proposed substantive change to
account for program changes made by the 2018 Reauthorization Act.
(b) Section 158.11--Requests for Air Carrier, Foreign Air Carrier, or
Isolated Community Exclusion
The FAA proposes to shorten the title of this section by revising
it from ``Public agency request not to require collection of PFCs by a
class of air carriers or foreign air carriers or for service to
isolated communities'' to ``Requests for air carrier, foreign air
carrier, or isolated community exclusion.''
(c) Section 158.13--Use of PFC Revenue
Currently, Sec. 158.13 is titled ``Use of PFC Revenue'' and Sec.
158.18 is titled ``Use of PFC revenue to pay for debt service for non-
eligible projects.'' Both sections pertain to the use of PFC revenue.
Current Sec. 158.13(e) provides an exception for the use of PFC
revenue to pay for debt service for non-eligible projects and
references current Sec. 158.18. Rather than making this reference, for
simplicity, the FAA proposes to move the language contained in Sec.
158.18 into Sec. 158.13(e) and delete Sec. 158.18 entirely.
Additionally, since the last sentence of paragraph (f) pertains to
auditing, the FAA proposes to move that language to the auditing
requirements for approved projects combining PFC revenue and Federal
grant funds within subpart D. Specifically, the FAA proposes to
incorporate this language into Sec. 158.67.
(d) Section 158.15--Project Eligibility
The FAA proposes two amendments to this section: (1) change the
section title to remove dollar amounts, and (2) add a new paragraph (d)
which contains the airside needs test language from Sec. 158.17(a)(3).
This second amendment is necessary because most of the requirements of
Sec. 158.17 were removed by the 2018 Reauthorization Act and the FAA
is proposing to delete Sec. 158.17 and move any surviving requirements
to Sec. 158.15.
As discussed in section V.A.1. of the preamble, the FAA is amending
Sec. 158.17(a)(3) to revise the airside needs requirement to align
with the 2018 Reauthorization Act. The 2018 Reauthorization Act retains
the airside needs requirement of 49 U.S.C. 40117(d)(4), which provides
that in the case of an eligible surface transportation or terminal
project, a PFC project cannot be approved at a collection level higher
than $3 unless the FAA determines that the public agency has made
adequate provision for financing the airside needs of the airport.\17\
---------------------------------------------------------------------------
\17\ 49 U.S.C. 40117(d)(4)
---------------------------------------------------------------------------
After removal of the funds reasonability determination and the
significant contribution requirement, the only provisions of current
Sec. 158.17(a)(1) that would remain in proposed Sec. 158.17 are those
relating to the project meeting the eligibility requirements of Sec.
158.15 and the airside needs requirements of current Sec.
158.17(a)(3). Therefore, the FAA proposes to delete current Sec.
158.17 and move the airside needs requirement to a new paragraph within
Sec. 158.15(d).
(e). Section 158.19--Requirement for Competition Plans
The FAA proposes to re-number current Sec. 158.19 as Sec. 158.17.
This amendment reflects re-numbering changes to part 158.
(f) Section 158.20--Submission of Required Documents
The FAA proposes four amendments to this section: (1) re-number
current Sec. 158.20 as Sec. 158.19, (2) revise paragraph (a) to allow
for electronic submission of documents, (3) revise paragraph (b)
because the databased referenced has been completed, and (4) move the
section from subpart B to subpart A.
The FAA now has the capability of receiving documents
electronically, which it did not have at the time the regulation was
written. The FAA's PFC online database, System of Airports Reporting
(SOAR), for collecting required reports is complete and this proposed
change reflects this update. The FAA proposes to move this section to
subpart A because electronic submission provisions should pertain to
all documents, not just applications.
2. Changes to Subpart B
(a) Section 158.21--General
The FAA proposes to amend current Sec. 158.21 to indicate that a
public agency may either submit an application and obtain approval from
the Administrator to impose a PFC and use PFC revenue or submit a
notice of intent to impose a PFC and use PFC revenue. Currently this
section only references PFC applications and FAA approval of PFC
applications, not notices of intent and FAA acknowledgment of notices
of intent.
(b) Section 158.25--Applications
The FAA proposes to add a new sub-paragraph, Sec. 158.25(b)(8),
directing public agencies to submit detailed cost information, as
required by the Administrator. This proposed paragraph is similar to
the cost detail information required by proposed Sec. 158.30(b)(3)(iv)
discussed in section IV.A.2., the rationale for which is described in
that portion of the preamble.
[[Page 66327]]
3. Changes to Subpart C
(a) Section 158.37 Amendment of Approved PFC
The FAA proposes to amend Sec. 158.37 by adding a new paragraph
(b)(1) requiring the Administrator to find the public agency has
complied with the Reporting, Recordkeeping and Audit requirements
before approving a PFC amendment as discussed in section V.B.1. This
amendment encourages public agency compliance with audit and
recordkeeping requirements and supports the FAA's oversight of PFC
audits. Further, this action informs public agencies of the need to
submit PFC audit reports before submitting requests for amendments.
(b) Section 158.43 Public Agency Notification to Collect PFCs
The FAA proposes moving the last sentence of paragraph (c) to new
paragraph (e) without change. This proposed change separates
requirements for public agencies and air carriers to ensure that
requirements for each of these entities are clear and accessible.
(c) Section 158.45--Collection of PFCs on Tickets Issued in the U.S.
The FAA proposes to insert ``on the return'' after ``last two
enplaning airports.'' This proposed amendment change clarifies when
PFCs can be collected and harmonizes with Sec. 158.9(a).
4. Changes to Subpart D
(a) Section 158.63--Reporting Requirements: Public Agency
The FAA proposes to amend paragraph (a)(2) by adding
``reimbursements'' to the list of information that must be included in
quarterly reports. This proposed change clarifies that the public
agency must report expenditures to outside entities as well as
reimbursements to itself. This change is necessary so that the FAA can
verify that the reimbursement is consistent with appropriate
regulations, policies, and standards. It also provides the FAA with the
relevant information to fulfill its recordkeeping and auditing
responsibilities under 49 U.S.C. 40117(g).
(b) Section 158.67--Recordkeeping and Auditing: Public Agency
The FAA proposes to change the title of this section from
``Recordkeeping and auditing: Public agency'' to ``Accounting and
auditing: Public agency.'' This change supports general improvement in
the FAA oversight of the PFC program by making audit requirements
clearer for public agencies.
(c) Section 158.69--Recordkeeping and Auditing: Collecting Carriers
The FAA proposes to change the title of this section from
``Recordkeeping and auditing: Collecting carriers'' to ``Accounting and
auditing: Collecting carriers.'' This change supports general
improvement in the FAA oversight of the PFC program by making audit
requirements clearer for public agencies.
5. Changes to Subpart E
(a) Section 158.85--Termination of Authority To Impose PFCs
The FAA proposes to re-number current Sec. 158.85 as Sec. 158.87.
This amendment reflects re-numbering changes to part 158.
(b). Section 158.87--Loss of Federal Airport Grant Funds
Currently the requirements for loss of Federal airport grant funds
are found in Sec. 158.87. The FAA proposes to redesignate these
requirements as Sec. 158.89. This amendment reflects re-numbering
changes to part 158. Additionally, the FAA proposes to replace a
reference to Sec. 158.83with Sec. 158.85 and also replace a reference
to Sec. 158.85 with Sec. 158.87 within proposed Sec. 158.89(a).
These amendments also reflect re-numbering changes to part 158.
6. Changes to Subpart F
(a) Section 158.95--Implementation of Reduction
The FAA proposes to amend paragraph (c) to add the word ``either''
in front of the number 50 and ``75 percent'' after the word ``or'' to
reflect the total reduction. These amendments use plain language for
clarification and do not change the regulatory provisions.
7. Changes to Appendix A
Public agencies must comply with PFC assurances when implementing a
project funded with PFC revenue. However, the assurances only reference
PFC applications and FAA approval of PFC applications, not notices of
intent and FAA acknowledgment of notices of intent. The FAA proposes to
revise paragraphs A. 2 and A. 3 to reflect that the requirement to
comply with PFC assurances also applies to notices of intent and FAA
acknowledgment of notices of intent.
8. Section Cross-Reference Table
This section cross reference table is a re-designation listing of
renumbered CFR units. This table also shows the old CFR unit numbers of
former provisions along with corresponding new CFR unit numbers and
current provisions. In instances where the FAA proposes to move a
requirement from one section to another section, interested persons can
look up the former section number for the requirement and find the new
section number for that requirement. Similarly, in cases where the FAA
is not proposing to change regulatory requirements within a section but
proposes to re-number a section, interested persons can use the table
to easily identify the new section number.
Table 2--Cross-Reference Listing Current and Proposed CFR Sections
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Current Provisions/CFR ReferProposed Provisions/CFR References
----------------------------------------------------------------------------------------------------------------
Sec. 158.11........................ Public agency request not to Sec. 158.11 Requests for air
require collection of PFCs carrier, foreign air
by a class of air carriers carrier, or isolated
or foreign air carriers or community exclusion.
for service to isolated
communities.
Sec. 158.17(a)(1).................. Project eligibility at PFC Sec. 158.15 Project eligibility.
Sec. 158.17(a)(3).................. levels of $4 or $4.50. Sec. 158.15(d)
Sec. 158.18........................ Use of PFC revenue to pay for Sec. 158.13(e) Use of PFC revenue.
debt service for non-
eligible projects.
Sec. 158.19........................ Requirement for competition Sec. 158.17 Requirement for
plans. competition plans.
Sec. 158.20........................ Submission of required Sec. 158.19 Submission of required
documents. documents.
Sec. 158.25(b)(8).................. Applications................. Sec. Applications.
158.25(b)(9)
Sec. 158.25(b)(9).................. Sec.
158.25(b)(10)
Sec. 158.25(b)(10)................. Sec.
158.25(b)(11)
Sec. 158.25(b)(11)................. Sec.
158.25(b)(12)
[[Page 66328]]
Sec. 158.25(b)(12)................. Sec.
158.25(b)(13)
Sec. 158.25(b)(13)................. Sec.
158.25(b)(14)
Sec. 158.25(b)(14)................. Sec.
158.25(b)(15)
Sec. 158.25(b)(15)................. Sec.
158.25(b)(16)
Sec. 158.25(b)(16)................. Sec.
158.25(b)(17)
Sec. 158.25(b)(17)................. Sec.
158.25(b)(18)
Sec. 158.30(a)..................... PFC Authorization at Non-Hub Sec. 158.30(a) Notices of intent.
Sec. 158.30(b)..................... Airports. Sec. 158.30(b)
Sec. 158.30(c)..................... Sec. 158.30(c)
Sec. 158.30(d)..................... FAA review of notices of Sec. 158.31(b) FAA review of notices
intent.. of intent.
Sec. 158.30(e)..................... FAA acknowledgment of notices Sec. 158.32(a) FAA acknowledgment of
Sec. 158.30(f)..................... of intent. Sec. 158.32(b) notices of intent.
Sec. 158.30(g)..................... Sec. 158.32(c)
Sec. 158.31........................ Duration of authority to Sec. 158.33 Duration of authority
impose a PFC after project to impose a PFC after
implementation. project
implementation.
Sec. 158.33........................ Duration of authority to Sec. 158.34 Duration of authority
impose a PFC before project to impose a PFC before
implementation. project
implementation.
Sec. 158.67........................ Recordkeeping and auditing: Sec. 158.67 Accounting and
Public agency. auditing: Public
agency.
Sec. 158.69........................ Recordkeeping and auditing: Sec. 158.69 Accounting and
Collecting carriers. auditing: Collecting
carriers.
Sec. 158.71........................ Federal oversight............ Sec. 158.83 Federal oversight.
Sec. 158.83........................ Informal resolution.......... Sec. 158.85 Informal resolution.
Sec. 158.85........................ Termination of authority to Sec. 158.87 Termination of
impose PFCs. authority to impose
PFCs.
Sec. 158.87........................ Loss of Federal airport grant Sec. 158.89 Loss of Federal airport
funds. grant funds.
----------------------------------------------------------------------------------------------------------------
VI. Regulatory Notices and Analyses
Federal agencies consider impacts of regulatory actions under a
variety of Executive orders and other requirements. First, Executive
Order 12866 and Executive Order 13563 direct that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify the costs. Second,
the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires
agencies to analyze the economic impact of regulatory changes on small
entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. Fourth, the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to
prepare a written assessment of the costs, benefits, and other effects
of proposed or final rules that include a Federal mandate that may
result in the expenditure by State, local, and tribal governments, in
the aggregate, or by the private sector, of $100,000,000 or more
(adjusted annually for inflation) in any one year. The current
threshold after adjustment for inflation is $177,000,000, using the
most current (2021) Implicit Price Deflator for the Gross Domestic
Product. This portion of the preamble summarizes the FAA's analysis of
the economic impacts of this rulemaking.
In conducting these analyses, the FAA has determined that this
rulemaking: will result in benefits that justify costs; is not an
economically ``significant regulatory action'' as defined in section
3(f) of Executive Order 12866; will not have a significant economic
impact on a substantial number of small entities; will not create
unnecessary obstacles to the foreign commerce of the United States; and
will not impose an unfunded mandate on State, local, or tribal
governments, or on the private sector.
A. Regulatory Evaluation
1. Need for the Regulation
The proposed rule would amend the PFC regulations to: first, codify
changes that have been self-implemented through the 2018
Reauthorization Act; second, improve PFC program oversight and
administration based on the OIG report's recommendations primarily
concerning reporting, recordkeeping and audit processes; and third,
replace obsolete references, correct grammar or reword language for
clarity, and re-organize and re-number sections of part 158.
2. Baseline for the Analysis
Five major sources of airport capital development funding are (1)
the AIP; (2) PFCs imposed pursuant to Federal law; (3) tax-exempt
bonds; (4) state and local grants; and (5) airport operating revenue
from tenant lease and other revenue-generating activities such as
landing fees.
The AIP has been providing Federal grants for airport development
and planning since the passage of the Airport and Airway Improvement
Act of 1982 (Pub. L. 97-248). AIP funding is usually spent on projects
that support aircraft operations such as runways, taxiways, aprons,
noise abatement, land purchase, and safety or emergency equipment. The
funds obligated for AIP are drawn from the airport and airway trust
fund, which is supported by a variety of user fees and fuel taxes.
Airports use different combinations of these sources depending on
the individual airport's financial situation and the type of project
being considered. Smaller airports' individual grants are of much
smaller dollar amounts than the grants going to large and medium hub
airports. Therefore, the smaller airports are much more dependent on
AIP to meet their capital needs. Larger airports are much more likely
to issue tax-exempt bonds or finance capital projects with the proceeds
of PFCs.
The PFC program was established in 1990 and modified in 2005 to
institute a pilot program for non-hub airports to streamline the
application process in order for them to access the PFC revenues more
efficiently and rapidly. The streamlined application process ensures
the non-hub airports' PFC
[[Page 66329]]
applications be treated as a notice of intent with the FAA review and
acknowledgment within 30 days instead of 120 days.
PFC Update 73-20 published in January 2020 gave notice that the FAA
would review and acknowledge all allowed PFC applications received from
small-, medium-, or large-hub airports within 30 days using streamlined
procedures. This rulemaking proposes to codify this significant policy
change into the FAA's part 158 regulations.
According to the National Plan of Integrated Airport Systems
(NPIAS), which details the amounts and types of airport development
eligible for Federal funding under the AIP over the next five years,
there are nearly 3,300 public-use airports within the national airport
system. The 2023-2027 NPIAS \18\ published on September 30, 2022,
identified 238 non-hub, 80 small-hub, 35 medium-hub and 30 large-hub
airports in addition to 2,904 other public-use airports.
---------------------------------------------------------------------------
\18\ ``Appendix A: List of NPIAS Airports'' following this link:
www.faa.gov/airports/planning_capacity/npias/current Last accessed
on November 16, 2022.
---------------------------------------------------------------------------
This proposed rulemaking would affect 145 small-, medium-, and
large-hub airports. As explained in the preceding paragraphs, proposed
changes do not concern either the 2,904 other airports that do not use
PFC revenues or the 238 non-hub airports that are currently benefiting
from the streamlined application process over the last two decades.
3. Benefits
The FAA examined the proposed changes and identified one provision
that would benefit approximately 145 small-, medium-, and large-hub
airports. Specifically, these airports would continue to use the
streamlined application process shortening the FAA's review and
acknowledgment period to 30 days from 120 days beyond the expiration of
the PFC Update 73-20. The FAA recognizes these gains in efficiency and
faster service time to the affected airports. However, these benefits,
which would continue to accrue to those airports, are not quantified or
monetized.
4. Costs
The FAA has evaluated the cost impacts to the stakeholders involved
in this proposed rulemaking, which includes the airports and the FAA.
As discussed in the preceding preamble section, the FAA determined that
the proposed changes would have no additional cost impacts to airports
and the FAA.
5. Regulatory Alternatives
This rulemaking proposes amendments to the PFC regulations to
address statutorily mandated program changes, program oversight
improvements, and minor administrative changes, such as removing or
correcting obsolete references.
There are no legally supportable regulatory alternatives to
implementing the statutory requirements for the proposed changes. The
alternative to rulemaking would be to leave the existing system of
orders, guidance, and policy documents in place. However, this is
untenable long-term as decentralized program requirements hinder the
FAA's ability to ensure compliance and transparency.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act (RFA) of 1980 \19\, as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996 \20\ and
the Small Business Jobs Act of 2010 \21\, requires Federal agencies to
consider the effects of the regulatory action on small businesses and
other small entities and to minimize any significant economic impact.
The term ``small entities'' comprises small businesses and not-for-
profit organizations that are independently owned and operated and are
not dominant in their fields, and governmental jurisdictions with
populations of less than 50,000.
---------------------------------------------------------------------------
\19\ Public Law 96-354, 94 Stat. 1164, 5 U.S.C. 601-612.
\20\ Public Law 104-121, 110 Stat. 857, Mar. 29, 1996.
\21\ Public Law 111-240, 124 Stat. 2504 Sept. 27, 2010.
---------------------------------------------------------------------------
The FAA identified 145 airports that are owned and operated by both
small and non-small entities. In order to estimate the number of small
entities, the FAA used the Table of Size Standards \22\ issued by the
Small Business Administration (SBA) for the North American Industry
Classification System (NAICS) and found two NAICS codes that these
airports would fall under: 488111 (Air Traffic Control) and 488119
(Other Airport Operations). SBA's size standards generally define small
businesses based on the number of employees or annual receipts. For
these two NAICS codes, the size standard is established as $35 million
(i.e., entities with annual receipts under $35 million are qualified as
small businesses).
---------------------------------------------------------------------------
\22\ Small Business Administration (SBA). 2022. Table of Size
Standards. Effective July 14, 2022. www.sba.gov/document/support-table-size-standards.
---------------------------------------------------------------------------
Using the U.S. Census data for 488111 and 488119 NAICS codes,\23\
the FAA estimated that, with the exception of 13 airports reporting
over $35 million annual revenue, the remaining 132 airports are
classified as small entities.
---------------------------------------------------------------------------
\23\ www.data.census.gov/cedsci/table?q=488119&g=0100000US&n=488111&tid=CBP2020.CB2000CBP Last
accessed November 3, 2022.
---------------------------------------------------------------------------
The FAA did not identify any economic impacts on small entities
that would be affected by the proposed rule. Therefore, the FAA
proposes to certify that the rule will not have a significant economic
impact on a substantial number of small entities. The FAA welcomes
comments on the basis for this certification.
C. International Trade Impact Assessment
The Trade Agreements Act of 1979,\24\ as amended by the Uruguay
Round Agreements Act,\25\ prohibits Federal agencies from establishing
standards or engaging in related activities that create unnecessary
obstacles to the foreign commerce of the United States. Pursuant to
these Acts, the establishment of standards is not considered an
unnecessary obstacle to the foreign commerce of the United States, so
long as the standard has a legitimate domestic objective, such as the
protection of safety, and does not operate in a manner that excludes
imports that meet this objective. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards.
---------------------------------------------------------------------------
\24\ Public Law 96-39
\25\ Public Law 103-465
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The FAA has assessed the effect of this proposed rule and
determined that its purpose is to ensure the safety of U.S. civil
aviation. Therefore, this proposed rule is in compliance with the Trade
Agreements Act.
D. Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995 \26\ requires
each Federal agency to prepare a written statement assessing the
effects of any Federal mandate in a proposed or final agency rule that
may result in an expenditure of $100 million or more (in 1995 dollars)
in any one year by State, local, and tribal governments, in the
aggregate, or by the private sector; such a mandate is deemed to be a
``significant regulatory action.'' The FAA currently uses an inflation-
adjusted value of $177 million in lieu of $100 million. This proposed
rule does not contain such a
[[Page 66330]]
mandate; therefore, the requirements of Title II of the Act do not
apply.
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\26\ Public Law 104-4.
---------------------------------------------------------------------------
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 \27\ requires that the FAA
consider the impact of paperwork and other information collection
burdens imposed on the public. According to the 1995 amendments to the
Paperwork Reduction Act \28\, an agency may not collect or sponsor the
collection of information, nor may it impose an information collection
requirement unless it displays a currently valid Office of Management
and Budget (OMB) control number.
---------------------------------------------------------------------------
\27\ 44 U.S.C. 3507(d).
\28\ 5 CFR 1320.8(b)(2)(vi).
---------------------------------------------------------------------------
The FAA has determined that there would be no new information
collection associated with this proposed rulemaking. The Office of
Management and Budget (OMB) previously approved the FAA to collect such
information under the provisions of the Paperwork Reduction Act of 1995
\29\ via OMB Control Number 2120-0557.
---------------------------------------------------------------------------
\29\ 44 U.S.C. 3507(d).
---------------------------------------------------------------------------
On November 22, 2021, OMB approved a revision of the FAA's
previously approved information collection. That revision reflected
changes in the estimated burden resulting from the 2018 Reauthorization
Act and the FAA's implementation of PFC Update 73-20. While this
rulemaking proposes to codify these changes into the regulations, there
are no new information collection actions resulting directly from this
rulemaking action.
F. International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these proposed regulations.
G. Environmental Analysis
FAA Order 1050.1F identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act in the absence of extraordinary circumstances. The FAA has
determined this rulemaking action qualifies for the categorical
exclusion identified in paragraph 5-6.6 and involves no extraordinary
circumstances.
VIII. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order (E.O.) 13132, Federalism. The agency has
determined that this action would not have a substantial direct effect
on the States, or the relationship between the Federal Government and
the States, or on the distribution of power and responsibilities among
the various levels of government, and, therefore, would not have
Federalism implications.
B. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
Consistent with Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments,\30\ and FAA Order 1210.20,
American Indian and Alaska Native Tribal Consultation Policy and
Procedures,\31\ the FAA ensures that Federally Recognized Tribes
(Tribes) are given the opportunity to provide meaningful and timely
input regarding proposed Federal actions that have the potential to
affect uniquely or significantly their respective Tribes. At this
point, the FAA has not identified any unique or significant effects,
environmental or otherwise, on tribes resulting from this proposed
rule.
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\30\ 65 FR 67249 (Nov. 6, 2000).
\31\ FAA Order No. 1210.20 (Jan. 28, 2004), available at https://www.faa.gov/documentLibrary/media/1210.pdf.
---------------------------------------------------------------------------
C. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this proposed rule under E.O. 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The agency has determined that it
would not be a ``significant energy action'' under the Executive order
and would not be likely to have a significant adverse effect on the
supply, distribution, or use of energy.
D. Executive Order 13609, International Cooperation
Executive Order 13609, ``Promoting International Regulatory
Cooperation,'' promotes international regulatory cooperation to meet
shared challenges involving health, safety, labor, security,
environmental, and other issues and to reduce, eliminate, or prevent
unnecessary differences in regulatory requirements. The FAA has
analyzed this action under the policies and agency responsibilities of
Executive Order 13609 and has determined that this action would have no
effect on international regulatory cooperation.
VIII. Additional Information
A. Comments Invited
The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. The agency
also invites comments relating to the economic, environmental, energy,
or federalism impacts that might result from adopting the proposals in
this document. The most helpful comments reference a specific portion
of the proposal, explain the reason for any recommended change, and
include supporting data. To ensure the docket does not contain
duplicate comments, commenters should send only one copy of written
comments, or if comments are filed electronically, commenters should
submit only one time.
The FAA will file in the docket all comments it receives, as well
as a report summarizing each substantive public contact with FAA
personnel concerning this proposed rulemaking. Before acting on this
proposal, the FAA will consider all comments it receives on or before
the closing date for comments. The FAA will consider comments filed
after the comment period has closed if it is possible to do so without
incurring expense or delay. The agency may change this proposal in
light of the comments it receives.
Confidential Business Information: Confidential Business
Information (CBI) is commercial or financial information that is both
customarily and actually treated as private by its owner. Under the
Freedom of Information Act (FOIA),\32\ CBI is exempt from public
disclosure. If your comments responsive to this NPRM contain commercial
or financial information that is customarily treated as private, that
you actually treat as private, and that is relevant or responsive to
this NPRM, it is important that you clearly designate the submitted
comments as CBI. Please mark each page of your submission containing
CBI as ``PROPIN.'' The FAA will treat such marked submissions as
confidential under the FOIA, and they will not be placed in the public
docket of this NPRM. Submissions containing CBI should be sent to the
person in the FOR FURTHER INFORMATION CONTACT section of this document.
Any commentary that the FAA receives which is not
[[Page 66331]]
specifically designated as CBI will be placed in the public docket for
this rulemaking.
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\32\ 5 U.S.C. 552.
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B. Availability of Rulemaking Documents
An electronic copy of rulemaking documents may be obtained from the
internet by--
1. Searching the Federal eRulemaking Portal at www.regulations.gov;
2. Visiting the FAA's Regulations and Policies web page at
www.faa.gov/regulations_policies; or
3. Accessing the Government Printing Office's web page at
www.GovInfo.gov.
Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.
Commenters must identify the docket or notice number of this
rulemaking.
All documents the FAA considered in developing this proposed rule,
including economic analyses and technical reports, may be accessed from
the internet through the Federal eRulemaking Portal.
List of Subjects in 14 CFR Part 158
Air carriers, Airports, Passenger facility charge, Public agencies,
Reporting and recordkeeping requirements.
The Proposed Amendments
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 158 as follows:
PART 158--PASSENGER FACILITY CHARGES (PFCS)
0
1. The authority citation for part 158 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40116-40117, 47106, 47111, 47114-
47116, 47524, 47526.
0
2. In part 158, remove the text ``PFC's'' wherever it appears, and add
in its place the text ``PFCs''.
0
3. Amend Sec. 158.3 by revising the definitions for ``Approved
project'', Bond financing costs'', ``Charge effective date'', Charge
expiration date'', ``Debt service'', ``Exclusive long-term lease or use
agreement'', ``FAA Airports office'', ``Financial need'',
``Implementation of an approved project'', and ``Notice of intent (to
impose or use PFC revenue)'' to read as follows:
Sec. 158.3 Definitions.
* * * * *
Approved project means a project for which the FAA has approved
using PFC revenue under this part. The FAA may also approve specific
projects contained in a single or multi-phased project or development
described in an airport capital plan separately. This includes projects
acknowledged by the FAA under Sec. 158.32.
Bond financing costs means the costs of financing a bond (or other
indebtedness, except debt service) and includes such costs as those
associated with issuance, underwriting discount, original issue
discount, capitalized interest, debt service reserve funds, initial
credit enhancement costs, and initial trustee and paying agent fees.
Charge effective date means the first date on which carriers are
required to start collecting a PFC.
Charge expiration date means the date on which carriers are
required to stop collecting a PFC.
* * * * *
Debt service means payments for items such as principal and
interest, sinking funds, call premiums, periodic credit enhancement
fees, trustee and paying agent fees, coverage, and remarketing fees.
Exclusive long-term lease or use agreement means an exclusive lease
or use agreement between a public agency and an air carrier or foreign
air carrier with a term of 5 years or more. This term also applies to
exclusive leases of less than 5 years that have automatic renewal or
carryover options, or to leases that have the effect of granting
exclusive use rights.
FAA Airports office means a regional, district or field office of
the Federal Aviation Administration that administers Federal airport-
related matters.
Financial need means that a public agency cannot meet its
operational or debt service obligations and does not have at least a 2-
month capital reserve fund.
* * * * *
Implementation of an approved project means: (1) With respect to
construction, issuance to a contractor of notice to proceed or the
start of physical construction; (2) with respect to non-construction
projects other than property acquisition, commencement of work by a
contractor or public agency to carry out the statement of work; or (3)
with respect to property acquisition projects, commencement of title
search, surveying, or appraisal for a significant portion of the
property to be acquired.
* * * * *
Notice of intent (to impose or use PFC revenue) means a notice
under Sec. 158.30 from a public agency that the public agency intends
to impose a PFC or use PFC revenue. Except for Sec. Sec. 158.25 and
158.32, ``notice of intent'' can be used interchangeably with
``application.''
* * * * *
0
4. Revise the section heading to Sec. 158.11 to read as follows:
Sec. 158.11 Requests for air carrier, foreign air carrier, or
isolated community exclusion.
* * * * *
0
5. Amend Sec. 158.13 by revising paragraphs (e) and (f) to read as
follows:
Sec. 158.13 Use of PFC revenue.
* * * * *
(e) Exception providing for the use of PFC revenue to pay for debt
service for non-eligible projects. The FAA may authorize a public
agency to impose a PFC to make payments for debt service on
indebtedness incurred to carry out at the airport a project that is not
eligible if the FAA determines it is necessary because of the financial
need of the airport.
(1) A public agency may request authority to impose a PFC and use
PFC revenue under this section using the PFC application procedures in
Sec. 158.25. The public agency must document its financial position
and explain its financial recovery plan that uses all available
resources.
(2) The FAA reviews the application using the procedures in Sec.
158.27. The FAA will issue its decision on the public agency's request
under Sec. 158.29.
(f) Combination of PFC revenue and Federal grant funds. A public
agency may combine PFC revenue and airport grant funds to carry out an
approved project.
* * * * *
0
6. Amend Sec. 158.15 by revising the section heading and adding
paragraph (d) to read as follows:
Sec. 158.15 Project eligibility.
* * * * *
(d) A surface transportation or terminal project is eligible for
PFC funding at a level above $3 if the public agency has made adequate
provision for financing the airside needs of the airport, including
runways, taxiways, aprons, and aircraft gates.
Sec. 158.17 [Removed]
0
7. Remove Sec. 158.17.
Sec. 158.19 [Redesignated as Sec. 158.17]
0
8. Redesignate Sec. 158.19 as Sec. 158.17.
0
9. Redesignate Sec. 158.20 as Sec. 158.19 and revise newly
redesignated paragraphs (a) introductory text and (b) to read as
follows:
Sec. 158.19 Submission of required documents.
(a) Submittals and documents required by this part may be
transmitted
[[Page 66332]]
to the appropriate recipient (the public agency, air carrier, the FAA,
or any combination thereof) electronically or via email, courier,
facsimile, or U.S. Postal Service.
* * * * *
(b) Public agencies and air carriers may use the FAA's national PFC
database to post their required quarterly reports, and, in that case,
do not have to distribute the reports in any other way.
Sec. 158.20 [Reserved]
0
10. Reserve Sec. 158.20.
0
11. Revise the heading to subpart B to read as follows:
Subpart B--Applications and Notices of Intent
* * * * *
0
12. Revise Sec. 158.21 to read as follows:
Sec. 158.21 General.
This subpart specifies the application and notice of intent
requirements under which a public agency may obtain authorization to
impose a PFC and use PFC revenue on a project. This subpart specifies
the consultation, notice and public comment, application, and notice of
intent requirements under which a public agency may obtain approval or
acknowledgment to impose a PFC and use PFC revenue on a project. This
subpart also establishes the procedures for the Administrator's review
and approval of applications and amendments, procedures for FAA
acknowledgment of notices of intent, and requirements for use of excess
PFC revenue.
0
13. Amend Sec. 158.24 by revising paragraph (a)(2) to read as follows:
Sec. 158.24 Notice and opportunity for public comment.
(a) * * *
(2) The notice must allow the public to file comments for at least
30 days, but no more than 45 days, after the date of publication of the
notice or posting on the public agency's internet website, as
applicable.
* * * * *
0
14. Amend Sec. 158.25 by revising paragraphs (b)(7) through (18),
(c)(1)(i), (c)(1)(ii) introductory text, (c)(1)(iii), (c)(2)(iii)(C),
(c)(2)(iv) introductory text, and (c)(2)(v) to read as follows:
Sec. 158.25 Applications
* * * * *
(b) * * *
(7) The project justification, including the extent to which the
project achieves one or more of the objectives set forth in Sec.
158.15(a) and (if a PFC level above $3 is requested) the requirements
of Sec. 158.15.
(i) For any project for terminal development, including gates and
related areas, the public agency shall discuss any existing conditions
that limit competition between and among air carriers and foreign air
carriers at the airport, any initiatives it proposes to foster
opportunities for enhanced competition between and among such carriers,
and the expected results of such initiatives; or
(ii) For any terminal development project at a covered airport, the
public agency shall submit a competition plan in accordance with Sec.
158.17.
(8) Detailed cost information, in a form and manner acceptable to
the Administrator.
(9) The charge to be imposed for each project.
(10) The proposed charge effective date.
(11) The estimated charge expiration date.
(12) Information on the consultation with air carriers and foreign
air carriers having a significant business interest at the airport and
the public comment process, including:
(i) A list of such carriers and those notified;
(ii) A list of carriers that acknowledged receipt of the notice
provided under Sec. 158.23(a);
(iii) Lists of carriers that certified agreement and that certified
disagreement with the project;
(iv) Information on which method under Sec. 158.24(b) the public
agency used to meet the public notice requirement; and
(v) A summary of substantive comments by carriers contained in any
certifications of disagreement with each project and disagreements with
each project provided by the public, and the public agency's reasons
for continuing despite such disagreements.
(13) If the public agency is also filing a request under Sec.
158.11--
(i) The request;
(ii) A copy of the information provided to the carriers under Sec.
158.23(a)(3);
(iii) A copy of the carriers' comments with respect to such
information;
(iv) A list of any class or classes of carriers that would not be
required to collect a PFC if the request is approved; and
(v) The public agency's reasons for submitting the request in the
face of opposing comments.
(14) A copy of information regarding the financing of the project
presented to the carriers and foreign air carriers under Sec. 158.23
of this part and as revised during the consultation.
(15) A copy of all comments received as a result of the carrier
consultation and public comment processes.
(16) For an application not accompanied by a concurrent application
for authority to use PFC revenue:
(i) A description of any alternative methods being considered by
the public agency to accomplish the objectives of the project;
(ii) A description of alternative uses of the PFC revenue to ensure
such revenue will be used only on eligible projects in the event the
proposed project is not ultimately approved for use of PFC revenue;
(iii) A timetable with projected dates for completion of project
formulation activities and submission of an application to use PFC
revenue; and
(iv) A projected date of project implementation and completion.
(17) A signed statement certifying that the public agency will
comply with the assurances set forth in appendix A to this part.
(18) Other information as required by the Administrator.
(c) * * *
(1) * * *
(i) The information required under paragraphs (b)(1) through (18)
of this section;
(ii) An FAA Form 5500-1 and applicable attachments:
* * * * *
(iii) The information required by Sec. Sec. 158.25(b)(17) and
158.25(b)(18).
(2) * * *
(iii) * * *
(C) For any project that has changed since receiving impose
authority, the public agency must file updated project information for
that project clearly describing the changes to the project.
(iv) An FAA Form 5500-1 and applicable attachments:
* * * * *
(v) The information required by Sec. Sec. 158.25(b)(17) and
158.25(b)(18).
0
15. Amend Sec. 158.29 by:
0
a. Revising paragraphs (a)(1)(ii), (iii) and (viii);
0
b. Adding paragraph (a)(1)(ix); and
0
c. Revising paragraphs (a)(2), (b)(1)(ii) and (iii), (b)(1)(iv)(2), and
(d).
The revisions and addition read as follows:
Sec. 158.29 The Administrator's decision.
(a) * * *
(ii) The project will achieve the objectives and criteria set forth
in Sec. 158.15 except for those projects approved under Sec.
158.13(e).
(iii) If a PFC level above $3 is being approved, the project meets
the criteria set forth in Sec. 158.15(d);
* * * * *
[[Page 66333]]
(viii) If applicable, the public agency has submitted a competition
plan in accordance with Sec. 158.17.
(ix) The public agency has demonstrated compliance with the
Reporting, Recordkeeping and Audit requirements of subpart D of this
part in a form and manner acceptable to the Administrator.
(2) The Administrator notifies the public agency in writing of the
decision on the application. The notification will list the projects
and alternative uses that may qualify for PFC financing under Sec.
158.15, and (if a PFC level above $3 is being approved) Sec.
158.15(d), PFC level, total approved PFC revenue including the amounts
approved at $3 and less, $4, $4.50, or any combination thereof,
duration of authority to impose and earliest permissible charge
effective date.
(b) * * *
(1) * * *
(ii) The project will achieve the objectives and criteria set forth
in Sec. 158.15 except for those projects approved under Sec.
158.13(e).
(iii) If a PFC level above $3 is being approved, the project meets
the criteria set forth in Sec. 158.15(d); and
(iv) * * *
(2) The Administrator notifies the public agency in writing of the
decision on the application. The notification will list the approved
projects, PFC level, total approved PFC revenue, total approved for
collection, including the amounts approved at $3 and less, $4, or
$4.50, or any combination thereof and any limit on the duration of
authority to impose a PFC as prescribed under Sec. 158.34.
* * * * *
(d) The FAA provides notice of PFC approvals and disapprovals on
the FAA internet website.
0
16. Amend Sec. 158.30 by:
0
a. Revising the section heading;
0
b. Revising paragraphs (a), (b) introductory text, (b)(1) and (2), and
(b)(3)(ii) and (iii);
0
c. Adding paragraph (b)(3)(iv);
0
d. Revising paragraphs (b)(7), (c) introductory text, (c)(1)(ii), and
(c)(2)(i); and
0
e. Removing paragraphs (d) through (h).
The revisions and addition read as follows:
Sec. 158.30 Notices of intent.
(a) General. A public agency may notify the FAA of its intent to
impose a PFC prior to or concurrently with a notice of intent to use
PFC revenue. A public agency must file a notice of intent in the manner
and form prescribed by the Administrator and must include the
information required under paragraphs (b), (c), or both, of this
section.
(b) Notice of intent to impose a PFC. The public agency must file a
separate notice of intent for each airport at which the public agency
plans on imposing a PFC. An authorized official of the public agency
must sign the notice of intent. Unless otherwise directed by the
Administrator, the notice of intent must include:
(1) A completed FAA Form 5500-1, PFC Application (current version)
without attachments except as required below;
(2) Project information including the project title, amount of PFC
funds sought, PFC level sought, and the grant agreement number if an
existing FAA awarded airport grant already covers this project.
(3) If the project is not funded by an existing FAA awarded airport
grant, the notice of intent must include the information in paragraph
(b)(2) of this section in addition to the following:
* * * * *
(ii) A description of how the project meets one of the PFC
objectives in Sec. 158.15(a),
(iii) A description of how the project meets the adequate
justification requirement in Sec. 158.15(c), and
(iv) Detailed cost information, in a form and manner acceptable to
the Administrator.
* * * * *
(7) Other information as required by the Administrator.
(c) Notice of intent to use PFC revenue. A public agency must file:
(1) * * *
* * * * *
(ii) All applicable requirements pertaining to the Airport Layout
Plan (ALP) for the airport, airspace studies for the project, and the
National Environmental Policy Act of 1969 (NEPA), have been satisfied
for all projects not included in an existing Federal airport program
grant.
(2) * * *
(i) Follow further consultation with air carriers and the
opportunity for public comment under Sec. Sec. 158.23 and 158.24 of
this part. A meeting with the air carriers is optional if all
information is the same as that provided with the impose authority
notice;
* * * * *
0
17. Revise Sec. 158.31 to read as follows:
Sec. 158.31 Review of notices of intent.
(a) The FAA will review the notice of intent to identify projects
ineligible for notice of intent consideration. The FAA will notify the
public agency in writing within 30 days if the FAA determines that
projects involving the following are ineligible for notice of intent
procedures as a result of:
(1) Significant policy precedent.
(2) Significant legal issues.
(3) Significant controversy, as evidenced by significant opposition
to the FAA's proposed action by the applicant or other airport
authorities, airport users, Federal, State or local agencies, elected
officials, or communities.
(4) Multimodal projects.
(5) Significant airport noise, access, or revenue diversion issues,
including compliance with 49 U.S.C. 47521 and 49 U.S.C. 47111(e).
(6) Debt Service on otherwise ineligible projects.
(7) Blending of two or more PFC decisions to obtain a uniform
collection level.
(8) Terminal building projects in excess of $25 million, except
stand-alone passenger boarding bridges.
(b) The FAA will review the notice of intent to determine that:
(1) The amount and duration of the PFC will not result in revenue
that exceeds the amount necessary to finance the project(s);
(2) Each proposed project meets the requirements of Sec. 158.15;
(3) Each project proposed at a PFC level above $3.00 meets the
requirements of Sec. 158.15(d);
(4) All applicable airport layout plan, airspace, and environmental
requirements have been met for each project;
(5) Any request by the public agency to exclude a class of carriers
from the requirement to collect the PFC is reasonable, not arbitrary,
nondiscriminatory, and otherwise complies with the law; and
(6) The consultation and public comment processes complied with
Sec. Sec. 158.23 and 158.24.
(7) The public agency has complied with the Reporting,
Recordkeeping and Audit requirements of subpart D of this part.
(c) The FAA will also make a determination regarding the public
agency's compliance with 49 U.S.C. 47524 and 47526 governing airport
noise and access restrictions and 49 U.S.C. 47107(b) governing the use
of airport revenue. Finally, the FAA will review all comments filed
during the air carrier consultation and public comment processes.
0
18. Add Sec. 158.32 to read as follows:
Sec. 158.32 FAA acknowledgment of notices of intent.
(a) Within 30 days of receipt of the public agency's notice of
intent about its
[[Page 66334]]
PFC program, the FAA will issue a written acknowledgment of the public
agency's notice. The FAA's acknowledgment may concur with all proposed
projects, may object to some or all proposed projects, or may object to
the notice of intent in its entirety. The FAA's acknowledgment will
include the reason(s) for any objection.
(b) If the FAA does not object to a project or the notice of intent
in its entirety, the public agency may implement its PFC program. The
public agency's implementation must be consistent with the information
specified in its notice of intent. If the FAA objects to a project, the
public agency may not collect or use PFC revenue on that project. If
the FAA objects to the notice of intent in its entirety, the public
agency may not implement the PFCs proposed in that notice. When
implementing a PFC under this section, a public agency must comply with
all sections of part 158, except for Sec. 158.25.
(c) An FAA acknowledgment issued under this section is not
considered an order issued by the Secretary for purposes of 49 U.S.C.
46110 (Judicial Review).
0
19. Revise Sec. 158.33 to read as follows:
Sec. 158.33 Duration of authority to impose a PFC after project
implementation.
A public agency that has begun implementing an approved project may
impose a PFC until--
(a) The charge expiration date is reached;
(b) The total PFC revenue collected plus interest earned thereon
equals the allowable cost of the approved project;
(c) The authority to collect the PFC is terminated by the
Administrator under subpart E of this part; or
(d) The public agency is determined by the Administrator to be in
violation of 49 U.S.C. 47524 and 47526, and the authority to collect
the PFC is terminated under that statute's implementing regulations
under this title.
0
20. Add Sec. 158.34 to read as follows:
Sec. 158.34 Duration of authority to impose a PFC before
implementation.
(a) A public agency shall not impose a PFC beyond the lesser of the
following--
(1) 2 years after approval to use PFC revenue on an approved
project if the project has not been implemented;
(2) 5 years after the charge effective date; or
(3) 5 years after the FAA's decision on the application (if the
charge effective date is more than 60 days after the decision date) if
an approved project is not implemented.
(b) If, in the Administrator's judgment, the public agency has not
made sufficient progress toward implementation of an approved project
within the times specified in paragraph (a) of this section, the
Administrator begins termination proceedings under subpart E of this
part.
(c) The authority to impose a PFC following approval shall
automatically expire without further action by the Administrator on the
following dates:
(1) 3 years after the charge effective date; or 3 years after the
FAA's decision on the application if the charge effective date is more
than 60 days after the decision date unless--
(i) The public agency has filed an application for approval to use
PFC revenue for an eligible project that is pending before the FAA;
(ii) An application to use PFC revenue has been approved; or
(iii) A request for extension (not to exceed 2 years) to submit an
application for project approval, under Sec. 158.35, has been granted;
or
(2) 5 years after the charge effective date; or 5 years after the
FAA's decision on the application (if the charge effective date is more
than 60 days after the decision date) unless the public agency has
obtained project approval.
(d) If the authority to impose a PFC expires under paragraph (c) of
this section, the public agency must provide the FAA with a list of the
air carriers and foreign air carriers operating at the airport and all
other collecting carriers that have remitted PFC revenue to the public
agency in the preceding 12 months. The FAA notifies each of the listed
carriers to terminate PFC collection no later than 30 days after the
date of notification by the FAA.
(e) Restriction on reauthorization to impose a PFC. Whenever the
authority to impose a PFC has expired or been terminated under this
section, the Administrator will not grant new approval to impose a PFC
in advance of implementation of an approved project.
Sec. 158.35 [Amended]
0
21. Amend Sec. 158.35, in paragraph (d), by removing the citation
``Sec. 158.33'' and adding in its place the citation ``Sec. 158.34''.
0
22. Amend Sec. 158.37 by revising paragraphs (b)(1) introductory text,
(b)(1)(i), (b)(6) and (7), and (c) to read as follows:
Sec. 158.37 Amendment of approved PFC.
* * * * *
(b) * * *
(1) The public agency has demonstrated compliance with the
Reporting, Recordkeeping and Audit requirements of subpart D of this
part in a form and manner acceptable to the Administrator.
(i) Further consultation with the air carriers and foreign air
carriers and seek public comment in accordance with Sec. Sec. 158.23
and 158.24 when applying for those requests to:
* * * * *
(6) A description of how each project meets the requirements of
Sec. 158.15(d), for each project proposed for an increase of the PFC
level above $3.00 at a medium or large hub airport;
(7) A signed statement certifying that the public agency has met
the requirements of Sec. 158.15(d), if applicable, for any amendment
proposing to increase the PFC level above $3.00 at a medium or large
hub airport; and
* * * * *
(c) The Administrator will approve, partially approve or disapprove
the amendment request and notify the public agency of the decision
within 30 days of receipt of the request. If a PFC level of more than
$3.00 is approved, the Administrator must find the project meets the
requirements of Sec. Sec. 158.15(d) and 158.17, if applicable, before
the public agency can implement the new PFC level.
* * * * *
0
23. Amend Sec. 158.43 by revising paragraph (c) and adding paragraph
(e) to read as follows:
Sec. 158.43 Public agency notification to collect PFCs.
* * * * *
(c) The public agency must notify air carriers required to collect
PFCs at its airport and the FAA of changes in the charge expiration
date at least 30 days before the existing charge expiration date or new
charge expiration date, whichever comes first.
* * * * *
(e) Each notified air carrier must notify its agents, including
other issuing carriers, of such changes.
0
24. Amend Sec. 158.45 by revising paragraph (c) to read as follows:
Sec. 158.45 Collection of PFCs on tickets issued in the U.S.
* * * * *
(c) For each one-way trip shown on the complete itinerary of an air
travel ticket, issuing air carriers and their agents shall collect a
PFC from a passenger only for the first two airports where PFCs are
imposed. For each round trip, a PFC shall be collected only for
enplanements at the first two enplaning airports and the last two
[[Page 66335]]
enplaning airports on the return where PFCs are imposed.
* * * * *
0
25. Amend subpart D by revising the subpart heading to read as follows:
Subpart D--Reporting, Accounting, and Audits
0
26. Amend Sec. 158.63 by revising paragraph (a)(2) to read as follows:
Sec. 158.63 Reporting requirements: Public agency.
(a) * * *
(2) Cumulative actual PFC revenue received, interest earned,
project expenditures, reimbursements, and the amount committed for use
on currently approved projects, including the quarter;
* * * * *
0
27. AmendSec. 158.67 by:
0
a. Revising the section heading;
0
b. Revising paragraphs (c)(1) through (3); and
0
c. Adding paragraphs (c)(4) through (6) and (d) through (g).
The revisions and additions read as follows:
Sec. 158.67 Accounting and auditing: Public agency.
* * * * *
(c) Each public agency shall provide for an audit of its PFC
account for the period the PFC is collected, held or used, as follows:
(1) The public agency must conduct an audit of its PFC account
annually;
(2) The annual audit must be performed by an accredited independent
public accountant and may be of limited scope;
(3) The accountant shall express an opinion of the fairness and
reasonableness of the public agency's procedures for receiving,
holding, and using PFC revenue;
(4) The accountant shall also express an opinion on whether the
quarterly report required under Sec. 158.63 fairly represents the net
transactions within the PFC account;
(5) The public agency must provide a schedule of revenue and
expenditures of the PFC account including: balance in the account on
the first day of the fiscal year, PFC Collections for each Quarter, PFC
Interest Earned for each Quarter, disbursements on projects by
application for each quarter, closing balance; and
(6) The audit must be performed on actual basis, unless the audit
is accompanied by reconciliation documentation in a manner and form
acceptable to the Administrator.
(d) The audit may be--
(1) Performed specifically for the PFC account; or
(2) Conducted as part of an audit under the Single Audit Act, 31
U.S.C. 75, provided the auditor specifically addresses the PFC.
(e) Upon request, a copy of the audit shall be provided to each
collecting carrier that remitted PFC revenue to the public agency in
the period covered by the audit.
(f) A copy of the audit shall be provided to the Administrator
within 30 calendar days after receipt of the audit or 9 months after
the end of the audit period, whichever is less.
(g) Each public agency that combines PFC revenue and Federal grant
funds to carry out an approved project is subject to the recordkeeping
and auditing requirements of this part, as well as the reporting,
recordkeeping, and auditing requirements imposed by 49 U.S.C. 47107
Airport and Airway Improvement Act of 1982 (AAIA).
0
28. Revise the section heading to Sec. 158.69 to read as follows:
Sec. 158.69 Accounting and auditing: Collecting carriers.
* * * * *
Sec. 158.71 [Removed and Reserved]
0
29. Remove and reserve Sec. 158.71.
0
30. Revise the subpart heading to subpart E to read as follows:
Subpart E--Federal Oversight of Compliance, Informal Resolution,
and Termination
0
31. Revise Sec. 158.81 to read as follows:
Sec. 158.81 General.
This subpart contains the procedures for Federal oversight of
compliance, informal resolution, and termination of PFCs, and loss of
Federal airport grant funds for violations of this part or 49 U.S.C.
40117. This subpart does not address the circumstances under which the
authority to collect PFCs may be terminated for violations of 49 U.S.C.
47523 through 47528.
0
32. Revise Sec. 158.83 to read as follows:
Sec. 158.83 Federal oversight of compliance.
(a) The Administrator may periodically audit, review, or both audit
and review, the receipt and use of PFC revenue by a public agency. The
purpose of the audit or review is to ensure that the public agency is
in compliance with the requirements of this part and 49 U.S.C. 40117.
The Administrator may take further action including, but not limited
to, informal resolution, termination, or other action, as appropriate.
(b) The Administrator may periodically audit, review, or both audit
and review the collection and remittance by the collecting carriers of
PFC revenue. The purpose of the audit or review is to ensure collecting
carriers are in compliance with the requirements of this part and 49
U.S.C. 40117. The Administrator may take further, as appropriate.
(c) Public agencies and carriers shall allow any authorized
representative of the Administrator, the Secretary of Transportation,
or the Comptroller General of the U.S., access to any of its books,
documents, papers, and records pertinent to PFCs.
0
33. Revise Sec. 158.85 to read as follows:
Sec. 158.85 Informal resolution.
The Administrator may undertake informal resolution with the public
agency or any other affected party if the Administrator cannot
determine that PFC revenue is being collected, used, or both collected
and used on an approved application for the approved projects in
accordance with the terms of the Administrator's approval to impose a
PFC for those projects or in compliance with the requirements of this
part and with 49 U.S.C. 40117.
0
34. Revise Sec. 158.87 to read as follows:
Sec. 158.87 Termination of authority to impose PFCs.
(a) The FAA begins proceedings to terminate the public agency's
authority to impose a PFC only if the Administrator determines that
informal resolution is not successful.
(b) The Administrator publishes a notice of proposed termination in
the Federal Register and supplies a copy to the public agency. This
notice will state the scope of the proposed termination, the basis for
the proposed action and the date for filing written comments or
objections by all interested parties. This notice will also identify
any corrective actions the public agency can take to avoid further
proceedings. The due date for comments and corrective action shall be
no less than 60 days after publication of the notice.
(c) If corrective action has not been taken as prescribed by the
Administrator, the FAA holds a public hearing, and notice is given to
the public agency and published in the Federal Register at least 30
days prior to the hearing. The hearing will be in a form determined by
the Administrator to be appropriate to the circumstances and to the
matters in dispute.
(d) The Administrator publishes the final decision in the Federal
Register. Where appropriate, the Administrator may prescribe corrective
action, including any corrective action the public agency may yet take.
A copy of
[[Page 66336]]
the notice is also provided to the public agency.
(e) Within 10 days of the date of publication of the notice of the
Administrator's decision, the public agency shall--
(1) Advise the FAA in writing that it will complete any corrective
action prescribed in the decision within 30 days; or
(2) Provide the FAA with a listing of the air carriers and foreign
air carriers operating at the airport and all other issuing carriers
that have remitted PFC revenue to the public agency in the preceding 12
months.
(f) When the Administrator's decision does not provide for
corrective action or the public agency fails to complete such action,
the FAA provides a copy of the Federal Register notice to each air
carrier and foreign air carrier identified in paragraph (e) of this
section. Such carriers are responsible for terminating or modifying PFC
collection no later than 30 days after the date of notification by the
FAA.
0
35. Add Sec. 158.89 to read as follows:
Sec. 158.89 Loss of Federal airport grant funds.
(a) If the Administrator determines that revenue derived from a PFC
is excessive or is not being used as approved, the Administrator may
reduce the amount of funds otherwise payable to the public agency under
49 U.S.C. 47114. Such a reduction may be made as a corrective action
under Sec. 158.85 or Sec. 158.87.
(b) The amount of the reduction under paragraph (a) of this section
shall equal the excess collected, or the amount not used in accordance
with this part.
(c) A reduction under paragraph (a) of this section shall not
constitute a withholding of approval of a grant application or the
payment of funds under an approved grant within the meaning of 49
U.S.C. 47111(d).
0
36. Amend Sec. 158.95 by revising paragraph (c) to read as follows:
Sec. 158.95 Implementation of reduction.
* * * * *
(c) If the projection of PFC revenue in a fiscal year is
inaccurate, the reduction in apportioned funds may be increased or
decreased in the following fiscal year, except that any further
reduction shall not cause the total reduction to exceed either 50
percent or 75 percent of such apportioned amount as would otherwise be
apportioned in any fiscal year.
0
37. Amend appendix A to part 158 by revising paragraphs (A)(2) and (3),
and (B)(5) to read as follows:
Appendix A to Part 158 Assurances
A. * * *
2. These assurances are required to be submitted as part of the
application for approval or acknowledgment of authority to impose a PFC
under the provisions of 49 U.S.C. 40117.
3. Upon approval of an application or acknowledgment of a notice of
intent by the Administrator, the public agency is responsible for
compliance with these assurances.
B. * * *
5. Non-exclusivity of contractual agreements. It will not enter
into an exclusive long-term lease or use agreement with an air carrier
or foreign air carrier for projects funded by PFC revenue. Such leases
or use agreements will not preclude the public agency from funding,
developing, or assigning new capacity at the airport with PFC revenue.
* * * * *
Issued under authority provided by 49 U.S.C. 106(f) and 40117 in
Washington, DC.
Shannetta R. Griffin,
Associate Administrator for Airports.
[FR Doc. 2023-20559 Filed 9-26-23; 8:45 am]
BILLING CODE 4910-13-P
