Rule2024-29688
Foreign Air Operator Certificates Issued by a Regional Safety Oversight Organization
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 17, 2024
Effective
January 16, 2025
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
This amendment will allow the FAA to review and, if acceptable to the Administrator, recognize as valid air operator certificates issued by a Regional Safety Oversight Organization to foreign air carriers when the State of the Operator is a member of that Regional Safety Oversight Organization, for purposes of evaluating foreign applicants for operating specifications.
Full Text
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<title>Federal Register, Volume 89 Issue 242 (Tuesday, December 17, 2024)</title>
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[Federal Register Volume 89, Number 242 (Tuesday, December 17, 2024)]
[Rules and Regulations]
[Pages 101870-101880]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29688]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 129
[Docket No.: FAA-2024-0176; Amdt. No. 129-55]
RIN 2120-AL93
Foreign Air Operator Certificates Issued by a Regional Safety
Oversight Organization
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This amendment will allow the FAA to review and, if acceptable
to the Administrator, recognize as valid air operator certificates
issued by a Regional Safety Oversight Organization to foreign air
carriers when the State of the Operator is a member of that Regional
Safety Oversight Organization, for purposes of evaluating foreign
applicants for operating specifications.
DATES: Effective January 16, 2025.
ADDRESSES: For information on where to obtain copies of rulemaking
documents and other information related to this final rule, see
``Additional Information'' in the SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT: Tim Shaver, International Program
Division/International Operations Branch, Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC, 20591;
telephone (202) 267-1704; email <a href="/cdn-cgi/l/email-protection#c6b2afabe8b5aea7b0a3b486a0a7a7e8a1a9b0"><span class="__cf_email__" data-cfemail="295d4044075a41485f4c5b694f4848074e465f">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Authority for This Rulemaking
The FAA's authority to issue rules on aviation safety is found in
title 49 of the United States Code. Subtitle I, section 106, describes
the authority of the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the FAA's authority.
This rulemaking is issued under the authority described in subtitle
VII, part A, subpart III, section 44701(a)(5). Under that section, the
FAA is charged with promoting safe flight of civil aircraft in air
commerce by prescribing regulations and minimum standards for
practices, methods, and procedures the Administrator finds necessary to
ensure safety in air commerce. This regulation is within the scope of
that authority. Amending the regulations for applications for
operations specifications under part 129 submitted by foreign air
carriers or foreign persons, and the related standards for denial of
[[Page 101871]]
such an application for operations specifications authorizations,
improves the FAA's ability to manage these authorizations. These
operations specifications are issued to foreign air carriers operating
within the United States and to foreign air carriers or foreign persons
conducting operations of U.S.-registered aircraft solely outside the
United States.
II. Executive Summary
A. Purpose of the Regulatory Action
Prior to this action, FAA regulations required that foreign
applicants for operations specifications must hold a valid air operator
certificate (AOC) issued by the State of the Operator. See 14 CFR
129.7(c)(5). Requiring the operator to hold an AOC issued by the State
of the Operator is consistent with the standard in Annex 6, Volume 1 to
the Convention on International Civil Aviation, which directs that an
operator shall not engage in commercial transport operations unless in
possession of a valid AOC issued by the State of the Operator.\1\
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\1\ Annex 6, Volume 1, 4.2.1.1.
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Some International Civil Aviation Organization (ICAO) Contracting
States have joined together to form Regional Safety Oversight
Organizations (RSOO). These organizations may provide a uniform
regulatory structure for safety oversight and provide technical
assistance and the execution of safety oversight functions for their
member States. RSOOs have been established in many parts of the world.
These organizations may be formed based on a variety of differing
arrangements among member States. The institutional structures of these
organizations range from highly formalized intergovernmental
organizations established on the basis of formal legal agreements to
less formalized organizations established under the ICAO Cooperative
Development of Operational Safety and Continuing Airworthiness
Program.\2\
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\2\ Information for ICAO Cooperative Development of Operational
Safety and Continuing Airworthiness Program (COSCAP) is contained in
the ICAO Safety Oversight Manual, Part B, The Establishment and
Management of a Regional Safety Oversight Organization, Doc. 9734,
2011.
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As stated in ICAO guidance, ``under the Chicago Convention, only
the State has responsibility for safety oversight, and this
responsibility may not be transferred.'' \3\ The guidance further
states that, although the State may delegate specific safety oversight
tasks and functions to an RSOO, such as inspections for the
certification of an operator, the State must still retain the minimum
capability required to carry out its responsibilities under the Chicago
Convention. States must always be able to properly and effectively
monitor the safety oversight functions delegated to the RSOO.\4\
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\3\ Safety Oversight Manual, Part B, The Establishment and
Management of a Regional Safety Oversight Organization, Doc. 9734,
2011.
\4\ Id. at 2.1.8.
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States participating in RSOOs may delegate or transfer various
functions or tasks to these organizations as stipulated in the RSOO's
formation documentation. As provided in ICAO guidance, one of the
functions member States may delegate or transfer to a highly formalized
and more fully resourced RSOO is the issuance of AOCs for the State of
the Operator.\5\
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\5\ See id. at 4.1.10, which indicates that issuance of
certificates may be delegated but states that ``the day-to-day
surveillance of service providers remains the responsibility of the
civil aviation authority (CAA) of member States.'' In addition, see
Sections IV.D, IV.F., and V.C. for discussion of the FAA's intent to
file a difference as the standard under the Chicago Convention
directs issuance of an AOC by the State of the Operator.
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In those instances where an AOC is issued by an RSOO rather than
the member State, this regulation change now allows the FAA to review
supporting documentation for applications for foreign air carrier
operation specifications and, if acceptable to the Administrator,
recognize as valid (i.e., ensure that it conforms to ICAO standards)
AOCs issued by an RSOO to foreign air carriers if the State of the
Operator is a member State of that RSOO.
B. Changes Made in This Final Rule
This rule amends the regulations for applications by foreign air
carriers and foreign persons for operations specifications under 14 CFR
part 129 and amends regulations for the denial of applications for
operations specifications. This rule amends three sections in subpart A
of part 129: Sec. 129.1, Applicability and definitions; Sec. 129.7,
Application, issuance, or denial of operations specifications; and
Sec. 129.9, Contents of operations specifications. Based on the
comments received in response to the notice of proposed rulemaking, the
FAA has revised the rule language to clarify the requirements and
remove any ambiguity regarding the intent of the amendments. See
section III.C. of this preamble.
III. Background
A. Summary of the NPRM
On May 22, 2024, the FAA published the notice of proposed
rulemaking (NPRM) titled ``Foreign Air Operator Certificates issued by
a Regional Safety Oversight Organization'' (89 FR 44935). The FAA also
posted draft guidance material for the proposal, ``FAA Order 8900.1,
Volume 12, Chapter 2, Section 2,'' for comment in the NPRM docket. The
NPRM proposed to amend the regulations for applications by foreign air
carriers and foreign persons for operations specifications under 14 CFR
part 129 and the regulations for the denial of applications for
operations specifications.
B. General Overview of Comments
The FAA received four comments.\6\ The agency received comments
from one individual and three associations representing industry and
labor constituencies. One of the associations supported the rule. Two
of the associations opposed the rule, as discussed more fully in
section IV. The FAA received comments on the proposal that addressed:
support for the rule change; International Aviation Safety Assessments
(IASA) for RSOOs; the number of IASAs needed; legal basis concerns;
validation of Safety Management Systems (SMS) in IASAs for RSOO member
States; and safety concerns.
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\6\ One comment concerning Boeing employment practices was
outside the scope of this rulemaking.
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In addition, on September 17, 2024, after the comment period
closed, representatives of the Department of Transportation, Department
of State, Department of Commerce, and Federal Aviation Administration
met with representatives from Directorate-General Mobility and
Transport (DG MOVE), European Aviation Safety Agency (EASA), and
European Union (EU) Member States for a special meeting of the Joint
Committee established by the U.S.--EU Air Transport Agreement. During
the meeting, DG MOVE raised concerns with this rulemaking effort. A
summary of the meeting has been posted to the docket for this
rulemaking.
C. Differences Between the NPRM and the Final Rule
In the NPRM, the FAA proposed to establish new definitions in 14
CFR 129.1 for ``Regional Safety Oversight Organization'' and ``State of
the Operator.'' As discussed more fully later in the preamble, the
final rule revises the RSOO definition to clarify the relationship
between a member State and an RSOO and the transfer of responsibilities
between the entities to fully address the Air Line Pilots Association's
(ALPA's) comment, which expressed concerns about a ``legal fiction.''
The FAA is finalizing the
[[Page 101872]]
definition of ``State of the Operator'' as proposed.
As proposed in the NPRM, the FAA is amending Sec. 129.7 to
accommodate the recognition as valid by the FAA of AOCs issued by an
RSOO on behalf of the State of the Operator. Based on the comments
received, the FAA is revising Sec. 129.7(c)(5) in the final rule to
eliminate the term ``on behalf of'' to clarify the relationship
between, and responsibilities of, the State of the Operator and an
RSOO. This final rule also clarifies the FAA will accept an AOC only
``if acceptable to the Administrator,'' whereas the NPRM limited this
to the RSOO-issued AOCs and used the phrase ``as acceptable to the
Administrator'' (emphasis added). The final rule adds ``if acceptable
to the Administrator'' to Sec. 129.7(c)(5) and adds paragraphs
(c)(5)(i) and (ii) to stipulate the FAA may accept an AOC issued by (i)
the State of the Operator, or (ii) an RSOO if the State of the Operator
is a member State of that RSOO.
In the NPRM, the FAA proposed an additional amendment to Sec.
129.7(d) to align the conditions for the FAA's denial of an application
for operations specifications with the conditions for eligibility for
issuance of operations specifications. This amendment is adopted as
proposed.
The FAA also proposed to amend Sec. 129.9(a)(3) to reflect the
possible acceptance and recognition as valid by the FAA of AOCs issued
by an RSOO on behalf of the State of the Operator. The final rule
simplifies the regulatory text in Sec. 129.9(a)(3) and (b)(3) by
removing the specification that an AOC may be issued by the State of
the Operator or an RSOO. The FAA determined that the regulatory text in
Sec. 129.7(c)(5) establishes the basis for the FAA to accept a valid
AOC, if acceptable to the Administrator, issued by (i) the State of the
Operator; or (ii) an RSOO if the State of the Operator is a member
State of that RSOO. Repeating this language in Sec. 129.9 is
unnecessary and redundant.
D. Related Actions
Section 369 of the FAA Reauthorization Act of 2024 amended chapter
447 of title 49 U.S.C. by adding section 44747, titled ``Aviation
safety oversight measures carried out by foreign countries.'' \7\ This
amendment codified the FAA's IASA program. The IASA program is the
means by which the FAA determines whether another country's oversight
of its air carriers that (1) operate, or seek to operate, services to/
from the United States using their own aircraft and crews, or (2) seek
to display the code of a U.S. air carrier on any services, complies
with safety standards established by ICAO. The published IASA results
of a country's placement in Category 1 or Category 2 is the
notification to the U.S. traveling public as to whether a foreign air
carrier's State civil aviation authority (CAA) meets ICAO safety
standards. A Category 1 rating indicates that the CAA meets ICAO safety
standards for these operations, and a Category 2 rating indicates that
the CAA does not meet ICAO safety standards.
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\7\ Public Law 118-63 (May 16, 2024).
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On August 16, 2024, the FAA published a notice in the Federal
Register (89 FR 66546) announcing the agency's suspension of policy
changes to the IASA program that had been announced in a September 28,
2022,\8\ Policy Statement, and a second notice in the Federal Register
on the same day inviting public comments on proposed changes to the FAA
IASA program policy (89 FR 66645). The comment period for the proposed
policy closed on September 16, 2024, and the FAA is currently
considering the comments received.
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\8\ 87 FR 58725.
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IV. Discussion of Comments and the Final Rule
A. Support for the Rule Change
The National Business Aviation Association (NBAA) expressed support
for the FAA's proposed changes to part 129 that would recognize AOCs
issued by an RSOO. NBAA cited as an example the EASA, which has
developed competency across a growing range of aviation capabilities,
and with the further growth of mutual recognition of capabilities
between FAA and EASA, the acceptance of certificates issued by EASA
will greatly enhance process efficiency and approval consistency for
European commercial operators seeking to access the United States. NBAA
also stated that RSOOs meeting the requirements set forth in the
proposed changes will benefit from this recognition along with
commercial operators.
NBAA stated that as regulators seek to improve safety oversight
efficiency and reduce process redundancies for operators and government
agencies, efforts like this rulemaking will allow governments and
industry to more efficiently deploy safety resources to operate in a
global environment.
Allied Pilots Association (APA), while not supporting the
rulemaking, acknowledged in its comment that it recognizes the vital
importance of collaboration and cooperation when it comes to global
aviation safety. As a result, APA indicated it understands the value
that RSOOs can provide in promoting aviation safety oversight and
stated APA's position on the proposed rule change should not be viewed
as a criticism of RSOOs in general or the desire for ICAO member States
to collaborate in the name of aviation safety.
The FAA acknowledges the support of the rulemaking expressed by
NBAA and the overall support of RSOOs and their contribution to safety
oversight expressed by APA.
B. International Aviation Safety Assessments (IASA) for RSOOs
ALPA commented the FAA must conduct a detailed inquiry of the level
of participation of a State's CAA in the activities of the RSOO and all
associated safety activities but stated the NPRM is unclear on whether
the FAA would conduct an IASA of the RSOO itself.
ALPA stated it is unclear whether any RSOO is currently equipped
with the correct process, procedure, personnel, and financial stability
to serve in the role as a permanent regulatory oversight agency ``on
behalf of'' the State of the Operator. ALPA believed the FAA should
ensure that the regional oversight entity has sufficient ``boots on the
ground'' (auditors and line inspectors with the right skillsets and
training, funded by adequate resources, and backed by management with
the requisite will to ensure compliance) to be fit for the purpose of
satisfying each of those States' treaty obligations.
ALPA contended the FAA could determine all eleven of the ICAO-
recognized RSOOs to be IASA Category 1, by default, which would
generate unacceptable safety risks.
ALPA asserted the FAA must first complete an IASA for each RSOO
before approving or renewing any new AOC from an RSOO. Then, once a
specific AOC application is received by the FAA that invokes an RSOO/
State AOC arrangement, ALPA believed the FAA should conduct a separate
IASA review of the RSOO/State plan for AOC oversight of the air
carriers applying to operate under part 129.
Although APA did not specifically suggest the FAA conduct IASAs on
RSOOs, APA stated that due to the varying levels of formality in
structure among the currently existing RSOOs, each AOC issued by an
RSOO would have to be reviewed and analyzed for validity and
appropriateness before being recognized by the Administrator. APA
asserted this would require the Administrator to review and understand
the approval and issuance process of
[[Page 101873]]
each RSOO to be able to determine if the applicant's operator
certificate should be recognized as valid. As a result, APA believed
the proposal makes the application review process more cumbersome and
complex.
The FAA generally disagrees with the concern expressed by APA about
this rule change, adding complexity and additional burden to the FAA's
IASA program. However, the FAA agrees with APA that each AOC issued by
an RSOO must be reviewed for validity before being recognized by the
Administrator.
The responsibility for ensuring compliance with international
standards established under the Chicago Convention falls to the member
States as parties to the Convention. As such, the FAA IASA program
assesses the CAA for the State of the Operator. Specifically, the IASA
program assesses and determines the State of the Operator's compliance
with the standards in ICAO Annex 1 (Personnel Licensing), Annex 6--Part
1 and Part 3 (Operation of Aircraft), and Annex 8 (Airworthiness of
Aircraft). The FAA reviews the CAA's compliance by assessing ICAO's
eight critical elements of effective aviation safety oversight in the
ICAO Document 9734, Safety Oversight Manual. Those eight critical
elements include:
1. Primary aviation legislation
2. Specific operating regulations
3. State civil aviation system and safety oversight functions
4. Technical personnel qualification and training
5. Technical guidance, tools, and the provision of safety-critical
information
6. Licensing, certification, authorization, and approval obligations
7. Surveillance obligations
8. Resolution of safety concerns
When a CAA, as a member of an RSOO, transfers a task or function to
the RSOO, the FAA expects the transfer to be documented in an
agreement, treaty, or informal written record of the parties'
understanding that is available for review by the Administrator.\9\
This includes filings with ICAO outlining the arrangement between the
RSOO and its member States.
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\9\ See ICAO Doc. 9734, Part B, 3.3.4, which states ``[w]hat is
the most important consideration here is that the legal status of
the RSOO, the scope of its functions and the extent of delegated
legal authority are clearly determined and stipulated in the
agreement document.''
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While the State of the Operator may transfer responsibility for
certain tasks and functions to an RSOO, it cannot transfer its
responsibility under the Chicago Convention. The FAA will continue to
assess the State of the Operator as the responsible party for
compliance with the ICAO standards. This assessment will ensure the
State maintains the responsibility for the issuance and continued
oversight of the AOC by the RSOO. When the State transfers the function
of issuance of an AOC to an RSOO, the transfer documentation
established by the State and the RSOO will be used by the FAA to
determine which organization has responsibility for each task and
function associated with issuance of an AOC. The FAA will use existing
IASA procedures to assess the State to ensure the correct process,
procedure, personnel, and financial stability necessary to accomplish
transferred tasks or functions meet ICAO standards. The FAA does not
believe the nuance of determining if the transferred task or functions
is accomplished by the RSOO or retained by the State of the Operator
adds a significant level of complexity to the process.
As such, the FAA does not anticipate an IASA on an RSOO will be
required to determine whether the CAA complies with the ICAO standards.
For AOCs issued by the RSOO, however, the FAA will review the formation
documentation for each RSOO and each RSOO-issued AOC for validity and
consistency with ICAO standards. In the case of AOC issuance, the
specific requirements that must be validated are only a small subset of
ICAO standards. In most cases, the FAA expects that RSOO-issued AOCs
will have been issued for States that have been assessed by the FAA,
already resulting in an IASA Category 1 rating. Therefore, with the
transfer of functions and duties to an RSOO, the FAA would conduct a
more focused evaluation of the specific requirements associated with
AOC issuance for the country in question. As a party to the Chicago
Convention, the State remains the accountable organization to be
assessed by the FAA under an IASA, and the RSOO is expected to
participate in the IASA assessment as an observer for transferred
functions.
For all RSOO member States that have not had an IASA conducted by
the FAA previously, an assessment of compliance with the ICAO standards
for issuance of an AOC (including any functions or tasks transferred to
an RSOO) will be done as part of the initial IASA for that State. An
initial IASA of the State of the Operator must be completed before the
FAA may accept an RSOO-issued AOC for that State. The RSOO may observe
and support the State during the IASA to provide information about the
RSOO's roles and responsibilities for the tasks and functions as
transferred by the State.
C. Increased Number of IASAs
ALPA stated that the FAA has incorrectly assumed that it will not
need to increase the number of IASA assessments. ALPA contended the FAA
will need to assess each RSOO at issue, which has never been assessed
before. ALPA stated the FAA will need to conduct specific reviews of
the national CAAs to which an RSOO may delegate certain functions. ALPA
was concerned that if more assessments are needed, the FAA ``will
simply subtract one'' from its average number of five IASAs typically
completed per year. ALPA contended that doing fewer assessments, not
more, does not represent an equivalent level of safety and that a
foreign entity's desire for an assessment must not overwhelm the FAA's
obligation to determine what is in the U.S. public interest.
The FAA understands ALPA's concern but does not expect the number
of IASA assessments to increase in the near term, given the FAA is
aware of only one RSOO issuing AOCs for member States, to date. The FAA
also does not expect a decrease in the number of IASAs conducted on
average, historically.
As indicated previously, the FAA will continue to conduct IASAs for
States that seek to initiate service to the United States, or for those
States that have been identified as requiring a reassessment based on
risk factors, whether the operator's AOC is issued by the State of the
Operator or an RSOO. During an initial IASA evaluation of the State,
the transferred functions will be assessed by the FAA to determine
compliance with ICAO standards.
If a State previously assessed by the FAA as IASA Category 1
subsequently transfers the function of AOC issuance to an RSOO, the
FAA's regulatory process for AOC validation includes ensuring the ICAO
standards and eight critical elements for those standards are still
being met for that specific function without conducting a full IASA. If
the FAA's evaluation of the transferred function cannot establish ICAO
compliance using the established validation process, the AOC will not
be accepted by the FAA. The FAA does not anticipate conducting a
complete IASA reassessment solely based on transfer of the function of
issuance of an AOC to an RSOO. The lack of confirmation of compliance
with ICAO AOC standards due to the transfer of the function to an RSOO
would, however, be included as a risk consideration when the FAA is
reviewing a State for IASA reassessment.
[[Page 101874]]
The FAA uses a risk analysis process to identify IASA Category 1
countries for reassessment. The risk analysis is performed at least
annually and whenever new safety information is obtained on each
country on the IASA Category Rating list to determine countries of
highest risk to the U.S. National Airspace System (NAS) and the U.S.
traveling public. The risk analysis was developed by FAA experts and is
comprised of individual risk elements and grouped into the following
five major IASA risk categories:
(1) Department of Transportation Economic Authority--New or
existing U.S. DOT economic authority; own-metal U.S. service under part
129; new or current codeshare involving display of U.S. air carrier
code on foreign operator flights; and any U.S. DOT administrative
emphasis items and initiatives.
(2) Governance and Safety Culture--Areas of interest include:
contracting of safety oversight functions; carrier wet lease to
airlines of other countries; safety items identified by the CAA remain
unresolved or not addressed; complaints received by FAA from other
CAAs, operators, manufacturers, and the traveling public.
(3) IASA Information--Time passed since the last IASA, and other
factors that indicate the Category 1 rating may no longer be valid.
(4) ICAO Requirements--Risk concerns include: negative ICAO
Universal Safety Oversight Audit Program (USOAP) findings indicating
noncompliance with one or more of the eight critical elements of safety
oversight; ICAO reports indicating noncompliance with Standards and
Recommended Practices (SARPs); inaction with respect to ICAO action
plans; ICAO USOAP information over two years old thus limiting its
value.
(5) FAA Information--FAA has safety concerns about the oversight
provided by the CAA, which include the areas of: FAA and foreign ramp
inspections; safety-related complaints about carrier(s) from other
CAAs; active technical assistance activities; compliance issues are
present in FAA certificated or approved entities in the country;
Congressional inquiries; and existing bilateral agreement
implementation procedures.
The risk associated with the FAA's inability to validate ICAO
compliance due to a transfer of tasks or functions would be included in
the ICAO requirements category of risks.
The FAA mitigates identified State safety oversight risks by
placing all carriers from that State, authorized to operate to the
United States, under heightened surveillance until the IASA
reassessment is completed.\10\ In extreme cases where safety or
oversight risks cannot be mitigated, the FAA has regulatory authority
to remove the authorization from any or all carriers authorized to
operate from that State.\11\
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\10\ The FAA notes that, in addition to the heightened
surveillance, the FAA proposed changes to the IASA program in the
Federal Register (89 FR 66645, August 16, 2024). In that NPRM, the
FAA proposed to establish a Category 1* rating to be applied when
the FAA has determined through the FAA risk assessment process that
a Category 1 country should be reassessed based on identified risks
of possible noncompliance. The comment period closed on September
16, 2024, and the FAA is considering the public comments and
developing a final policy notice.
\11\ See 14 CFR 129.11(b) and (g).
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D. Legal Basis Concerns
ALPA and APA expressed concerns about the legal basis and
compliance with ICAO standards associated with the proposed rulemaking.
ALPA stated the proposal seems contradictory. ALPA commented that on
one hand, the FAA's proposal seeks to overcome the Chicago Convention's
clear instruction by stating that the regional oversight entity would
be acting ``on behalf of'' a State and thus would purportedly comply
with the treaty. ALPA contended that as a result, the proposal would
hold the State to account, even though the State would designate the
regional entity as the responsible authority. ALPA stated, on the other
hand, the proposal recognizes the regional entity would be responsible,
and U.S. recognition of operating licenses would be at odds with U.S.
obligations under the treaty, such that a ``difference'' would have to
be filed by the United States with ICAO.
ALPA asserted the FAA's regulatory language ``on behalf of,'' as in
``on behalf of the State of the Operator,'' introduces ambiguity
because the entity doing the acting (on behalf of) is the one with
actual responsibility. ALPA commented that this ``legal fiction is to
be a workaround from what ICAO admits being the role of the RSOO . .
.''
ALPA commented that the Chicago Convention recognizes the value in
a clear line of responsibility from a national government authority to
an air carrier and that only States are deemed the valid issuers of
such a license, in accordance with ICAO Guidance on RSOOs.\12\ ALPA had
significant concerns about how an RSOO's relationship with the State of
the Operator will work in practice, including a concern that an RSOO
often delegates responsibilities for AOC oversight back to the State of
the Operator. ALPA urged the FAA to deem the RSOO, not the State of the
Operator, to be ``ultimately responsible for the IASA'' assessment.
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\12\ See ICAO Doc. 9734, Part B, 7.5.12, which states that
``where a harmonized regulatory framework prevails in a region, the
civil aviation authorities of member States will remain the sole
authority for the issuance of licences and operator certificates,
approval of aircraft maintenance organizations, approval of design
and production organizations, and approval of training centres.''
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For an existing IASA Category 1 State, the FAA's assessment has
already established the State complies with ICAO standards for the
issuance of an AOC. The FAA Order 8900.1, volume 12, chapter 2, section
2 procedure for the evaluation of AOC issuance and subsequent transfer
of the tasks and functions then focuses on ensuring all the required
tasks and functions for AOC oversight are addressed, and the
responsibility for each of those tasks or functions is clearly defined.
The FAA procedure also ensures that there is evidence in the transfer
documentation that covers the roles and responsibilities necessary for
the continued compliance of the AOC holder with the ICAO AOC standards
during the life cycle of the AOC. If the FAA cannot determine
compliance, the AOC will not be accepted by the FAA until compliance
with the required ICAO standards can be confirmed by the FAA.
To the extent that ALPA suggests that, to act in compliance with
the Chicago Convention, an AOC may only be issued by the State of the
Operator, the FAA disagrees. The Chicago Convention does not speak
directly to the issuance of AOCs. Rather, there is a standard in Annex
6, Volume 1 that prohibits an operator from engaging in commercial air
transport operations unless the operator possesses a valid AOC issued
by the State of the Operator. While a member State must comply with its
obligations under the Chicago Convention, Article 38 allows a State to
file a difference with ICAO to acknowledge differences between the
State's own practices and those standards established in the Annexes to
the Convention. Consistent with the obligation to provide notice of a
difference, the FAA will file a difference to 4.2.1.1 of Annex 6,
Volume 1, acknowledging the FAA's acceptance of RSOO-issued AOCs when
the Administrator determines they are acceptable (i.e., issued in
conformance with ICAO standards for AOCs).
To the extent the commenters suggest the characterization that an
RSOO issues AOCs ``on behalf of'' a member state is in conflict with
the FAA's determination that a difference must be filed, the FAA finds
that the two concepts are not irreconcilable. However, the FAA has
determined that certain clarifying changes, identified in
[[Page 101875]]
the following discussion, should be made to the regulatory text in this
final rule.
ICAO acknowledges in its guidance that existing RSOOs have taken a
variety of forms, ranging from a relatively loose association of CAAs
that have agreed to cooperate in the development and implementation of
requirements and procedures, to an intergovernmental organization with
regulatory and, to some extent, enforcement authority. According to
ICAO, the form that an RSOO takes will primarily be determined by the
needs of its members, the level of available resources, the scope of
activities, the level of authority delegated by member States, and, in
certain cases, the legislative framework already established by the
group or community of States creating the RSOO.\13\
---------------------------------------------------------------------------
\13\ ICAO Doc. 9734, Part B, 2.2.6.
---------------------------------------------------------------------------
Given the varying frameworks that RSOOs may take, the FAA agrees
that it is critical for States to maintain and demonstrate clear lines
of responsibility \14\ in order for the FAA to properly assess the
acceptability of an AOC issued by an RSOO in place of the State of the
Operator. The final rule enables FAA review of the RSOO and State of
the Operator formation documentation to ensure the transferred tasks
and functions associated with the issuance and continued surveillance
of the AOC holder are clearly defined and that the ICAO standards for
assessing the AOC applicant have been met. See definition of RSOO in
Sec. 129.1 of the final rule. This final rule further ensures the FAA
review of all ICAO Standards related to AOC issuance that are assessed
during an IASA.
---------------------------------------------------------------------------
\14\ See ICAO Doc. 9734, Part B 2.1.8, which states ``Under the
Chicago Convention, only the State has responsibility for safety
oversight, and this responsibility may not be transferred to a
regional body. Thus, although the State may delegate specific safety
oversight tasks and functions to an RSOO, such as inspections for
the certification of an operator, the State must still retain the
minimum capability required to carry out its responsibilities under
the Chicago Convention. States must always be able to properly and
effectively monitor the safety oversight functions delegated to the
RSOO.''
---------------------------------------------------------------------------
The transferred function affected by this rulemaking, which the FAA
has determined would necessitate filing a difference from ICAO
standards, is limited to the transfer of responsibility for issuing the
AOC from a member State to an RSOO. However, the FAA recognizes there
could be significant variability between the responsibilities of RSOOs
and which AOC issuance functions are transferred to them by member
States. When a CAA transfers functions related to AOC issuance or the
conduct of oversight-related tasks in conjunction with AOC issuance to
an RSOO, the State of the Operator is still responsible for ensuring
that the transferred functions continue to comply with ICAO standards.
Therefore, the FAA disagrees with ALPA's assertion the FAA should hold
the RSOO ultimately responsible for the IASA.
Nevertheless, the FAA agrees with ALPA that the language ``on
behalf of'' included in the NPRM introduces unnecessary ambiguity and
an apparent, though unintended, conflict with the FAA's position that a
difference must be filed with ICAO as a result of this rulemaking.
Therefore, the FAA revised the text of the final rule in Sec.
129.7 to remove this qualifier. This final rule also clarifies the FAA
will only accept an AOC issued by the State of the Operator or an RSOO
``if acceptable to the Administrator'' (emphasis added). In addition,
the FAA is making corresponding changes to the definition of RSOO in
Sec. 129.1 to reflect that authority may either be formally delegated
between the member States and the RSOO or tasks and functions may be
less formally transferred or assigned. The changes to Sec. Sec. 129.1
and 129.7 are otherwise adopted as proposed.
As for the concerns about transfer of tasks and functions related
to the issuance of an AOC from the State of the Operator to the RSOO
and subsequent transfer of oversight-related tasks or functions
pertaining to AOC issuance back to the State of the Operator, the FAA
agrees these roles and responsibilities must be clearly defined,
documented, and understood. The final rule ensures the FAA must review
the documented transfer of all tasks and functions related to the
issuance of an AOC from the State of the Operator to the RSOO.
Consistent with the FAA's proposal for accepting an AOC from an
RSOO, the RSOO must meet the FAA's definition of RSOO in 14 CFR 129.1,
which, as updated for this final rule, is an association or
organization that comprises a group of member States, which--(i) Has
provided notification to ICAO of the scope of tasks and functions
delegated or transferred to the RSOO, including but not limited to:
sharing common or harmonized aviation regulations, licensing,
certification, authorization, approval, and surveillance of civil
aviation activities, and any legal authority delegated or transferred
by a member State to the RSOO; and (ii) Has stipulated the specific
tasks, functions, delegations, and transfers by member States discussed
in paragraph (c)(2)(i) of Sec. 129.1, and any other collective
understandings of member States in RSOO formation documentation, such
as an agreement, treaty, or informal record, that is available for
review by the Administrator.
The FAA will verify that each task or function required by ICAO
Annex 6 standards is included in the transfer and formation
documentation and the organizational responsibility for each is clearly
defined. Consistent with the definition of RSOO, the RSOO formation
documentation should outline not only the roles and responsibilities
for tasks and functions necessary for the issuance of the AOC but also
for the tasks and functions for continued oversight of the AOC during
its full life cycle, for the FAA to fully evaluate an RSOO-issued AOC.
The FAA acknowledges that there may be a transfer of tasks and
functions back to the State of the Operator. This is not an unusual
practice and could be a result of the RSOO leveraging the member
State's availability of trained and qualified personnel needed for the
evaluation of the carrier for initial certification.
The FAA uses a similar practice for certification of United States
part 121 air carriers. The part 121 certification process is a
cooperative effort between the Certification and Evaluation Program
Office (CEPO) of the Safety Analysis and Promotion Division and the
Office of Air Carrier Safety Assurance (ACSA). The CEPO is a dedicated
group of aviation safety inspectors (ASIs) with experience in the
details and nuances of initial Air Carrier certification. The CEPO
assigns an assistant manager as the Certification Front Line Manager
(CFLM) and a qualified CEPO team leader as the certification project
manager (CPM). The CEPO initiates the certification and directs the
project through all phases of the certification process. The ACSA
assigns the certificate management office (CMO) and establishes a
Certificate Management Team (CMT) to perform Continued Operational
Safety (COS) oversight after certification. The Certification Project
Team (CPT) will include ASIs from the CEPO and the ACSA. These
dedicated inspectors then turn the continued surveillance of the
operator to the CMO to perform the oversight functions for the carrier.
This is done to ensure standardization of air carrier certification.
Transfer of tasks or functions from the State of the Operator to an
RSOO may provide a similar benefit of targeting resources with detailed
experience in the initial certification of air carrier, working in
concert with those
[[Page 101876]]
responsible for continued oversight of the air carrier.
E. Validation of SMS in IASAs for RSOO Member States
ALPA recommended the FAA take the opportunity to expand its own
IASA program by ensuring the novel regional safety organization
requires its licensees to fully comply with SMS, a critical element
that ICAO has implemented to address a root cause of accidents and
incidents. ALPA asserted the FAA has the discretionary power, as well
as an obligation to flight crews, the traveling public, and the
international community, to evaluate RSOO member State implementation
of SMS. Moreover, ALPA noted one such RSOO, EASA, appears headed toward
conducting such SMS audits, which ALPA stated is a welcome development.
The FAA's current IASA program includes evaluation of a State's
aviation oversight program for compliance with ICAO Annex 1, Annex 6,
and Annex 8. Neither the current IASA Notice of Policy Statement \15\
nor section 369 of the FAA Reauthorization Act of 2024 codifying the
IASA program in 49 U.S.C. 44747 include Annex 19 Safety Management
requirements for this program. The inclusion of these requirements was
not contemplated in the NPRM and is therefore beyond the scope of this
rulemaking.
---------------------------------------------------------------------------
\15\ International Aviation Safety Assessment (IASA) Program
Change, Policy Statement (78 FR 14912, March 8, 2013).
---------------------------------------------------------------------------
F. Safety Concerns
ALPA contended the proposed rule would create significant safety
concerns that were not addressed in the NPRM. Specifically, ALPA
contended an RSOO that has aircraft certification oversight, and
oversees AOCs, could determine that when using certain aircraft
certified by the RSOO, airline flights could be conducted with only a
single pilot on the flight deck while the second pilot is resting or
otherwise unavailable to serve as the second pilot. ALPA commented that
the RSOO's certification and AOC approval combined would potentially
allow a significant safety threat to occur in airspace managed by the
United States, unraveling many of the advances in airline safety that
have been achieved in the United States. ALPA urged the FAA to be
extremely vigilant and consider unintended safety consequences of
allowing RSOOs to simultaneously operate as an aircraft certification
organization and AOC oversight organization.
APA stated that delegating the authority to determine whether a
carrier or person has satisfied those standards to a regional
organization, which may have competing political or industrial
influences, allows for the possibility the standards will be
unintentionally deteriorated or altered. To eliminate the possibility
for such deterioration or alteration, the FAA should not amend the
current regulations to allow the acceptance of an RSOO-issued operator
certificate in lieu of one issued directly by the State of the
Operator.
Finally, APA contended even where a member State has elected to
delegate the authority to issue operator certificates to an RSOO, the
member State must still retain the ability to issue operator
certificates on its own. Accordingly, maintaining the regulatory status
quo would not adversely impact a foreign applicant's ability to obtain
operating specifications from the FAA because they remain able to
obtain an operator certificate issued by the State of the Operator.
The FAA understands this concern but disagrees with the premise
that the role of an RSOO in the issuance of an AOC alone, as
promulgated in this rulemaking, could introduce risks such as foreign
air carrier single pilot operations in the United States. The cited
concern would not be the result of this rulemaking allowing the FAA to
accept an RSOO-issued AOC. This could similarly be an issue for AOCs
issued by the State of the Operator should that State apply a risk-
based approach allowing one pilot to fly while the other rests. In
either case, foreign air carriers approved for operations into the
United States must still comply with all applicable FAA rules and
regulations, including the conditions and limitations set forth in
their operations specifications. The FAA notes that, to date, no part
121 or 129 air carriers have been authorized by the FAA to operate with
a single pilot at the controls.
While not directly subject of this rulemaking, the FAA will
consider the risk of single pilot operations identified by ALPA for all
foreign AOC applicants and adjust our policy as required to ensure
these risks are properly mitigated or prohibited during our evaluation
of the proposed operation to ensure the operator is properly and
adequately equipped to conduct the operations described in the
operations specifications.
The FAA notes ICAO Annex 6, Part 1, paragraph 9.1.1 addresses
composition of flight crews. It states:
The number and composition of the flight crew shall not be less
than that specified in the operations manual. The flight crews shall
include flight crew members in addition to the minimum numbers
specified in the flight manual or other documents associated with
the certificate of airworthiness, when necessitated by
considerations related to the type of aeroplane used, the type of
operation involved and the duration of flight between points where
flight crews are changed.
The number of crew required not only drives the type certification
requirements listed in the operations manual but also the type of
operation. This standard allows the FAA to ensure the risks of any
operation have been identified, assessed, and properly mitigated.
The FAA agrees the State of the Operator is responsible for
establishing requirements for issuing AOCs that are compliant with the
ICAO standards. The FAA's IASA program validates the State's compliance
with these ICAO standards. When the tasks or functions related to AOC
issuance or oversight activities pertaining to AOC issuance are
transferred to an RSOO, the State of the Operator is still responsible
for ensuring the transferred functions continue to comply with ICAO
standards even if the State of the Operator did not issue the AOC. This
remains true whether States transfer all or part of the AOC issuance
tasks or functions for a specific carrier or retain the ability to
issue other AOCs in their State.
The FAA also agrees that vigilance is needed when issuing part 129
operation specifications. As such, there are additional regulatory
requirements, and a valid AOC is only one part of the requirements for
issuing a foreign operator a part 129 authorization. Section 129.7(c)
lists all the requirements for issuance of operations specifications
for authorization to conduct service to the United States.
Introduction of risks when authorizing part 129 operations is
addressed through the evaluation of the carrier to ensure they are
properly and adequately equipped to conduct the operations described in
the operations specifications and are in compliance with the
requirements of part 129. Also, 14 CFR 129.5(b) states ``Each foreign
air carrier conducting operations within the United States must conduct
its operations in accordance with the Standards contained in Annex 1
(Personnel Licensing), Annex 6 (Operation of Aircraft), Part I
(International Commercial Air Transport--Aeroplanes) or Part III
(International Operations--Helicopters), as appropriate, and in Annex 8
(Airworthiness of Aircraft) to the Convention on International Civil
Aviation.''
These steps ensure all foreign commercial operations are properly
[[Page 101877]]
assessed, and any associated risks are appropriately mitigated. This is
true not only for carriers issued AOCs by RSOO but all carriers
requesting authorization to operate to the United States.
The FAA intends to file a difference with ICAO because the
acceptance of RSOO-issued AOCs reflects a departure from the
international standard in ICAO Annex 6, paragraph 4.2.1.1 to the extent
the means of compliance in this final rule is different from the
corresponding standard in Annex 6. However, the FAA's assessment of the
formation documentation between the member State and RSOO to validate
the ICAO standards for issuing an AOC have been met will ensure an
equivalent level of safety.
G. Miscellaneous Amendments
As previously noted, the FAA proposed to amend Sec. 129.9(a)(3) to
reflect the possible acceptance and recognition as valid by the FAA of
AOCs issued by an RSOO on behalf of the State of the Operator. In this
final rule, the FAA has revised the regulatory text proposed for 14 CFR
129.9(a)(3) and (b)(3) by removing the reference that an AOC may be
issued by the State of the Operator or an RSOO. This language is
unnecessary in this context since the application requirements in 14
CFR 129.7(c)(5) specify the issuing entities from which the FAA may
accept AOCs. Removal of this duplicative language is a technical
amendment and not a substantive change.
H. Effective Date
The FAA determined to apply a 30-day effective date to this final
rule. Therefore, this final rule will take effect 30 days after
publication in the Federal Register. The FAA generally applies a longer
effective date to final rules to allow time for the impacted regulated
community to prepare to come into compliance with the requirements of a
final rule. However, this final rule is considered to be enabling to
the extent the FAA is expanding the options for AOC acceptance by the
FAA for purposes of applications for part 129 operations
specifications. The FAA expects the effective date of this final rule
to benefit the impacted community of operators seeking to apply for
part 129 operations specifications based on an RSOO-issued AOC by
allowing for the earlier submission of an application. The FAA notes
that no such applications are currently considered pending before the
FAA. Once this final rule takes effect, operators may submit an
application to the FAA consistent with revised 14 CFR 129.7, and the
FAA will be prepared to begin the review process. During this process,
the FAA will ascertain if sufficient information has been provided to
validate continued compliance with the required ICAO standards or if an
IASA of the State will be required before the AOC can be considered
acceptable to the Administrator. The FAA further notes that consistent
with Sec. 129.7(a)(2), the application must be submitted to the FAA at
least 90 days before the intended date of operation.
V. Regulatory Notices and Analyses
Federal agencies consider the impacts of regulatory actions under a
variety of executive orders and other requirements. First, Executive
Orders 12866, 13563, and 14094 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 million or more (adjusted annually
for inflation) in any one year. The current threshold after adjustment
for inflation is $183,000,000 using the most current (2023) Implicit
Price Deflator for the Gross Domestic Product.
In conducting these analyses, the FAA has determined that this
rule: will result in benefits that justify costs; is not significant
under section 3(f)(1) of Executive Order 12866, as amended; 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 Impact Analysis
This rule will allow for the FAA's acceptance of AOCs issued by
RSOOs, and it will update the regulatory basis for denial of
applications for operations specifications. There are no changes to the
analysis of this final rule as it was presented in the proposed rule.
Update the Process for Accepting AOCs Issued by RSOOs
Prior to this action, a foreign air carrier applying for operations
within the United States or applying to operate U.S.-registered
aircraft solely outside of the United States must hold a valid AOC
issued by the State of the Operator. The existing regulations do not
provide for acceptance of an AOC issued by any other entity other than
the State of the Operator. This final rule will allow the FAA to
recognize AOCs issued by an RSOO if the State of the Operator is a
member State of that RSOO. This allows foreign air carriers with a
valid AOC issued by an RSOO, if acceptable to the Administrator, to be
issued authorization to operate to and from the United States,
providing travel services to citizens of the United States and the
foreign countries, economic opportunities for U.S. airlines through
code share agreements with these operators, and expanded route
structures for these code share partners. This final rule is consistent
with ICAO resolutions and guidance, which address the development and
use of RSOOs.
Under current practice for operations within the United States,
before acceptance of the AOC, the FAA conducts an IASA of the State of
the Operator.\16\ These assessments involve pre-work and document
review in the United States lasting several weeks, followed by an on-
site assessment in the State of the Operator lasting five business
days. When the State of the Operator is a member of an RSOO, and that
State has delegated functions or tasks to the RSOO, this prework would
include a review of functions or tasks that are delegated by the State
to an RSOO, the scope and level of those delegations, and the need for
RSOO participation in assessing the State's compliance with the ICAO
standards. The assessments involve two to four inspectors and an
attorney. An FAA IASA team incurs traveling costs, such as airfare,
lodging, and per diem associated with the travel destination. However,
these assessments, including the prework, are not expected to represent
an additional cost of the rule because the FAA currently conducts them,
and the FAA does not expect any increase in the number of assessments
as a result of this rulemaking. Currently, when accomplishing an IASA
on a State that has delegated functions or tasks to an RSOO, the FAA
reviews that delegation to ensure that the State's and the RSOO's
functions and tasks are in
[[Page 101878]]
compliance with the ICAO requirements. Historically, the FAA has
conducted, on average, five IASAs each year. As stated previously,
there are many factors that determine the number of IASAs that will be
accomplished in any given year. These include application for own metal
service to the United States by a carrier from a State that has not
been assessed where a risk assessment has identified concerns over the
State's safety oversight functions which warrant a reassessment. Any
risks identified in the course of the FAA's review of an RSOO-issued
AOC for acceptance will be included as one factor in the risk
assessment for the respective member State.
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\16\ 87 FR 58725 (September 28, 2022).
---------------------------------------------------------------------------
If the FAA has previously assessed a State of the Operator and that
State subsequently delegated functions or tasks, such as issuance of
AOCs by the RSOO, the FAA will review the RSOO formation documentation
to determine if further assessment to evaluate the continued compliance
with ICAO standards is required. If the FAA determines it needs to do
further assessment, the State of the Operator's compliance with ICAO
standards for issuance of AOCs will be reviewed as part of the annual
risk assessment for all IASA-categorized States. Based on the result of
the risk assessment, an IASA of that State may be accomplished as one
of that year's or future year's IASAs. The FAA does not anticipate
requiring an IASA reassessment based solely on the inability to
determine compliance with ICAO standards for the transferred function
of AOC issuance and the conduct of oversight-related tasks pertaining
to AOC issuance between an RSOO and member States. The FAA has many
means to reach out to the RSOO and the member State to obtain
information concerning questions on compliance. This can involve
sending letters for clarification and direct discussions to clarify
issues. However, until the State's ICAO compliance can be validated,
the RSOO-issued AOC of the operator will not be considered acceptable,
and no authorization will be granted.
Update the Regulatory Basis for Denial of Applications for Operations
Specifications
The FAA is also amending the conditions under which the FAA can
deny the application for operations specifications in subpart A of part
129. Prior to this action, Sec. 129.7(c) specifies that an applicant
must meet five conditions to be issued operations specifications. These
conditions require that the applicant meets the applicable requirements
of part 129; holds the economic or exemption authority required by the
Department of Transportation, applicable to the operations to be
conducted; complies with the applicable security requirements of 49 CFR
chapter XII; is properly and adequately equipped to conduct the
operations described in the operations specifications; and holds a
valid AOC issued by the State of the Operator. However, Sec. 129.7(d)
states that the application may be denied if the applicant is not
properly and adequately equipped to conduct the operations described in
the operations specifications. The change will expand the basis for
denial to any of the five conditions listed in Sec. 129.7(c). The
updates to the regulatory basis for denial of applications for
operations specifications will not result in any costs. The change will
align the basis for denial of an application to the conditions that
must be met for issuance of operations specifications. This will allow
the FAA to formally deny applications that do not meet the requirements
of Sec. 129.7(c) instead of the FAA's current practice of holding the
approval of ineligible applications in abeyance until the conditions
are met or the applicant withdraws the application. There are no
specific costs associated with holding an application in abeyance. The
benefit of allowing denial of an application based on not meeting the
regulatory criteria is reduction of applications in process and
ensuring currency of information provided with an application.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980, Public Law 96-354, 94
Stat. 1164 (5 U.S.C. 601-612), as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat.
857, Mar. 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L.
111-240, 124 Stat. 2504, Sept. 27, 2010), requires Federal agencies to
consider the effects of the regulatory action on small business and
other small entities and to minimize any significant economic impact.
The term ``small entities'' comprises small businesses, 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.
This final rule will update the regulations for applications by
foreign air carriers and foreign persons for operations specifications
under part 129. The final rule will apply to foreign air carrier
operations within the United States and to U.S.-registered aircraft in
common carriage solely outside the United States. Since this final rule
only impacts foreign applicants, this rule has no impact on U.S. small
entities. If an agency determines that a rulemaking will not result in
a significant economic impact on a substantial number of small
entities, the head of the agency may so certify under section 605(b) of
the RFA. Therefore, as provided in section 605(b) and based on the
foregoing, the head of FAA certifies that this rulemaking will not
result in a significant economic impact on a substantial number of
small entities.
C. International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), 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 potential effect of this final rule and
determined that it ensures the safety of the American public by
allowing the acceptance of AOCs issued by an RSOO when reviewed and
found acceptable to the Administrator. While this action will result in
the United States' filing a difference with ICAO regarding compliance
with ICAO Annex 6, paragraph 4.2.1.1, this rule change results in an
equivalent action to the standard and is in the public's interest. As a
result, the FAA does not consider this rule as creating an unnecessary
obstacle to foreign commerce.
D. Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
governs the issuance of Federal regulations that require unfunded
mandates. An unfunded mandate is a regulation that requires a State,
local, or Tribal government or the private sector to incur direct costs
without the Federal Government having first provided the funds to pay
those costs. The FAA determined that the final rule will not result in
the expenditure of $183,000,000 or more by State, local, or
[[Page 101879]]
Tribal governments, in the aggregate, or the private sector, in any one
year.
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) 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 (5 CFR 1320.8(b)(2)(vi)), 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 is no new information collection
associated with the requirement for application for foreign air carrier
authorization under 14 CFR part 129. In order to apply for operation
specifications, the applicant is required to provide a copy of their
AOC to the FAA. Under the final rule, the FAA intends to rely on
cooperation of RSOOs to obtain the necessary formation documentation
referred to in the Sec. 129.1 definition of RSOO. No new information
is required from the applicant operator if the AOC is issued by an
RSOO. The burden of validation of the AOC remains with the FAA in
conjunction with the State of the Operator. Approval to collect such
information previously was approved by OMB under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) and was assigned
OMB Control Number 2120-0749.
F. International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to ICAO
Standards and Recommended Practices to the maximum extent practicable.
The FAA has reviewed the corresponding ICAO Standards and
Recommended Practices and has identified the following differences with
this final rule. ICAO Annex 6, Part 1, Paragraph 4.2.1.1 requires:
The operator shall not engage in commercial air transport
operations unless in possession of a valid AOC issued by the State
of the Operator.
This regulatory change to allow the FAA acceptance of RSOO-issued
AOCs for a member State does not comply with this standard.
The FAA has determined this regulatory change results in a
different means of compliance to that of the standard in ICAO Annex 6,
Part 1, paragraph 4.2.1.1. The FAA intends to notify ICAO of this
difference.
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 (NEPA) in the absence of extraordinary circumstances. The FAA has
determined this rulemaking action qualifies for the categorical
exclusion identified in paragraph 5-6.6f for regulations and involves
no extraordinary circumstances.
VI. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. The FAA has determined
that this action will 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, will 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,\17\ and FAA Order 1210.20,
American Indian and Alaska Native Tribal Consultation Policy and
Procedures,\18\ 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
have substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes; or 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 final rule.
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\17\ 65 FR 67249 (November 6, 2000).
\18\ FAA Order No. 1210.20 (Jan. 28, 2004), available at
<a href="http://www.faa.gov/documentLibrary/media/1210.pdf">www.faa.gov/documentLibrary/media/1210.pdf</a>.
---------------------------------------------------------------------------
C. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The FAA has determined that it is
not a ``significant energy action'' under the Executive order and is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
D. Executive Order 13609, Promoting International Regulatory
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 reduce, eliminate, or prevent
unnecessary differences in regulatory requirements. The FAA has
analyzed this action under the policy and agency responsibilities of
Executive Order 13609. The FAA has determined that this action will
eliminate differences between U.S. aviation standards and those of
other civil aviation authorities in States where delegation or transfer
of the responsibility for issuance of AOCs to an RSOO is permitted.
VII. Additional Information
A. Electronic Access and Filing
A copy of the NPRM, all comments received, this final rule, and all
background material may be viewed online at <a href="http://www.regulations.gov">www.regulations.gov</a> using
the docket number listed above. Electronic retrieval help and
guidelines are available on the website. It is available 24 hours each
day, 365 days each year. An electronic copy of this document may also
be downloaded from the Office of the Federal Register's website at
<a href="http://www.federalregister.gov">www.federalregister.gov</a> and the Government Publishing Office's website
at <a href="http://www.govinfo.gov">www.govinfo.gov</a>. A copy may also be found on the FAA's Regulations
and Policies website at <a href="http://www.faa.gov/regulations_policies">www.faa.gov/regulations_policies</a>.
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 final rule,
including economic analyses and technical reports, may be accessed in
the electronic docket for this rulemaking.
[[Page 101880]]
B. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires the FAA to comply with small entity requests for
information or advice about compliance with statutes and regulations
within its jurisdiction. A small entity with questions regarding this
document may contact its local FAA official or the person listed under
the FOR FURTHER INFORMATION CONTACT heading at the beginning of the
preamble. To find out more about SBREFA on the internet, visit
<a href="http://www.faa.gov/regulations_policies/rulemaking/sbre_act/">www.faa.gov/regulations_policies/rulemaking/sbre_act/</a>.
List of Subjects in 14 CFR Part 129
Administrative practice and procedure, Air carriers, Aircraft,
Aviation safety, Reporting and recordkeeping requirements, Security
measures, Smoking.
The Amendments
For the reasons discussed in the preamble, the Federal Aviation
Administration amends 14 CFR part 129 as follows:
PART 129--OPERATIONS: FOREIGN AIR CARRIERS AND FOREIGN OPERATORS OF
U.S.-REGISTERED AIRCRAFT ENGAGED IN COMMON CARRIAGE
0
1. The authority citation for part 129 continues to read as follows:
Authority: 49 U.S.C. 1372, 40113, 40119, 44101, 44701-44702,
44705, 44709-44711, 44713, 44716-44717, 44722, 44901-44904, 44906,
44912, 46105, Pub. L. 107-71 sec. 104.
0
2. Amend Sec. 129.1 by:
0
a. Redesignating paragraph (c)(2) as paragraph (c)(4); and
0
b. Adding a new paragraph (c)(2) and paragraph (c)(3).
The additions read as follows:
Sec. 129.1 Applicability and definitions.
* * * * *
(c) * * *
(2) Regional Safety Oversight Organization means an association or
organization that comprises a group of member States, which--
(i) Has provided notification to the International Civil Aviation
Organization of the scope of tasks and functions delegated or
transferred to the Regional Safety Oversight Organization, including
but not limited to: sharing common or harmonized aviation regulations,
licensing, certification, authorization, approval, and surveillance of
civil aviation activities, and any legal authority delegated or
transferred by a member State to the Regional Safety Oversight
Organization; and
(ii) Has stipulated the specific tasks, functions, delegations, and
transfers by member States discussed in paragraph (c)(2)(i) of this
section, and any other collective understandings of member States in
Regional Safety Oversight Organization formation documentation, such as
an agreement, treaty, or informal record, that is available for review
by the Administrator.
(3) State of the Operator means the State in which the operator's
principal place of business is located or, if there is no such place of
business, the operator's permanent residence.
* * * * *
0
3. Amend Sec. 129.7 by revising paragraphs (c)(5) and (d) to read as
follows:
Sec. 129.7 Application, issuance, or denial of operations
specifications.
* * * * *
(c) * * *
(5) Holds a valid air operator certificate, if acceptable to the
Administrator, issued by:
(i) The State of the Operator; or
(ii) A Regional Safety Oversight Organization (RSOO) if the State
of the Operator is a member State of that RSOO.
(d) An application may be denied if the Administrator finds that
the applicant does not meet one or more of the criteria listed in
paragraph (c) of this section.
0
4. Amend Sec. 129.9 by revising paragraphs (a)(3) and (b)(3) to read
as follows:
Sec. 129.9 Contents of operations specifications.
(a) * * *
(3) The certificate number and validity of the foreign air
carrier's air operator certificate;
* * * * *
(b) * * *
(3) In the case of a foreign air carrier, the certificate number
and validity of the foreign air carrier's air operator certificate;
* * * * *
Issued under authority provided by 49 U.S.C. 106(f) and 44701(a)
in Washington, DC.
Michael Gordon Whitaker,
Administrator.
[FR Doc. 2024-29688 Filed 12-12-24; 4:15 pm]
BILLING CODE 4910-13-P
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