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Continental Micronesia, Inc. V. Commonwealth of the N. Mariana

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Continental Micronesia, Inc. V. Commonwealth of the N. Mariana l f. :\O'TIl"~ UNITED STATES OF AMERICA ¡ DEPARTMENT OF TRANSPORTATION j OFFICE OF THE SECRETARY i (t-a~x ¡lj WASHINGTON, D.C. I S!:RVED MAR 1 7 195 I 1 J Issued by the Department of Transportation l on the i 7 th day of March, 1995 i i I ¡ i - --- -. --- - - ------ ------- ------ ------------ I Complaint of: i CONTINENTAL MICRONESIA, INC. v. Docket 50191 COMMONWEALTH OF THE NORTHERN . .MARIANA ISLANDS AND COMMONWEALTH PORTS AUTHORITY ---- ---- -------- --------- - ---- ---- -------- NOTICE ON MOTION FOR DISMISS AN EXPEDITION On March 9. 1995. Continental Micronesia. Inc. (CM!) fied an amended complait with the Deparent of Transporttion agaist the Commonwealth Ports Authority (CPA) of the Commonwealth of the Nortern Marana Islands. The complait alleged that the landing. arval, and deparure fees imposed by the CPA were unreasonable. excessive, and otherwse unlawful under 49 U.S.C. section 40116. 47107, and 47129. The complaint was accompanied by a motion for leave to fie an otheIWse unauthoried document, because the complaint was due to be fied at the Deparent of Transportation on March 6. 1995. The complaint also requested the Secretar to direct the CPA to provide CMI with certain information relating to the fees addressed in the complaint. On March 10, .1995, the Deparent of Transportation issued a Scheduling Notice and Notice on Request for Discovery in this proceeding, setting fort deadlines by which certain fiings múst be submitted to the Deparment. The Notice indicated that the Deparment wil issue a determination as to whether a signicant dispute exists pursuant to 49 U.S.C. 47129(c)(2), by April 10, 1995. The Notice also stated the Deparent's expectation that CPA wil imediately make available to CMI the inormation covered by Appendix i to the Policy Statement Regarding Aiort Rates and Charges, 60 Fed. Reg. 6906, (Februar 3, 1995). 2 On March 15, 1995, CPA fied with the Deparent a motion for dismissal and expedition. The CPA argued that the complaint should be dismissed on the grounds that it is based on a "fee imposed pursuant to a wrtten agreement with air carers" within the meaning of the governing statute, 49 U.S.C. 47129(e), and the implementing procedural regulations, 14 C.F.R. 302.601(b). The CPA claied that the Deparent should not postpone a decision on dismissal until the issuance of the order on whether a significant dispute exists or whether the complait should be dismissed. The CPA also contended that it is unreasonable for it to fie an answer, with supporting materials and documentation, within the required timeframe, on the grounds that the fees were negotiated eight years ago, the complaint is outside the scope of the expedited procedural arangement, and the airport in question (Saipan International) is relatively smalL. The CPA requested that the Deparment should rule on its motion by March 22, 1995, by issuing an order to show cause why the complaint should not be dismissed and giving the pares until March 20, 1995 to respond. It also asserted that no security deposit should be required because CMI's complaint does not relate to a "fee increase or newly established fee" within the scope of the statute, 49 US.C. 47129(d)(I)(A). We have determined to consider CPA's arguments about the applicabilty of the new statutory procedures established by 49 U.S.C. 47129 after we have received all necessar fiings preparatory to our issuance of an order determining whether a significant dispute exists requirig furter proceedings or whether the complaint should be dismissed. The CPA has claied that it should be relieved of the requirement to fie an answer unless and until the Deparent rules on its motion to dismiss. We note that in adopting procedural regulations the Deparent determined to require that answers contai all testiony and exhibits on which the answerig par intends to rely, since airort owners and operators possess much of the information that the carers might need to introduce to challenge a fee. In view of the extemely short decisional deadlines imposed by 49 U.S.C. 47129, itis important that we have the most inormation as possible at the beginning of a proceeding, so that our decision will be fully inormed. Accordingly, we will not issue an order to show cause why the complaint should be dismissed. Rather, answers to CPA's motion may be fied, in accordance with 14C.F.R. 302. 18(c), by March 24, 1995. All fiing dates in our March 10, 1995 scheduling Notice will remai as they have been stated. With regard to CPA's argument relating to the letter of credit requirement, the statute requires the aiort to "obtai a letter of credit, or surety bond, or other suitable credit facilty, equal to the amount in dispute that is due durig the 120-day period established by this section, plus interest, unless 3 the airort and the complainant air carer agree othernse." (49 U.S.C. 47129 (d)(I)(C)) In its answer to the CMI complaint, CPA should advise the Departent as to what efforts, if any. it has made to reach an agreement on the security requirement and whether such an agreement is contemplated by CPA and CMI. In addition, in its reply to the CPA answer, CMI should advise the Deparent what attempts, if any, have been made by it or CPA to reach an agreement on the security requirement and whether such an agreement is contemplated by the paries. Therefore, we wi defer a decision on CPA's motion to dismiss until such time as we issue a determination on the complait within the meang of 49 U.S.C. 47129(c)(2), and we will retain the fiing dates as set fort in our Scheduling Notice, dated March 10. 1995. By: PATRICK V. MURPHY Acting ASsistat Secretar for Aviation . and International Afairs Dated: March 17, 19.95 (SEAL).
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