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DOD Commercial Air Carrier Evaluators
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[Federal Register: July 10, 2003 (Volume 68, Number 132)]
[Rules and Regulations]
[Page 41214-41218]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jy03-19]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 119, 121 and 135
[Docket No. FAA-2003-15571; Amdt Nos. 119-8, 121-286, and 135-83]
RIN 2120-AI00
DOD Commercial Air Carrier Evaluators
AGENCY: Federal Aviation Administration (FAA), DOT.
[[Page 41215]]
ACTION: Final rule; request for comments.
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SUMMARY: This final rule clarifies existing regulations as they apply
to Department of Defense (DOD) commercial air carrier evaluators. These
amendments are necessary to clarify DOD's congressionally mandated
cockpit evaluation mission and authority for the aviation security
community and for industry. DOD's Air Mobility Command (AMC) will
create and issue a new credential to permit DOD commercial air carrier
evaluators uninterrupted access to the cockpit for evaluations. These
amendments explicitly clarify existing DOD legal authority and
responsibilities.
DATES: This final rule is effective July 10, 2003. You may send your
comments to reach us on or before August 11, 2003.
ADDRESSES: Address your comments to the Docket Management System, U.S.
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW.,
Washington, DC 20590-0001. You must identify the docket number at the
beginning of your comments, and you should submit two copies of your
comments. If you wish to receive confirmation that FAA received your
comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet at http://dms.dot.gov.
You may review the public docket containing comments to
these proposed regulations in person in the Dockets Office between 9:00
a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The
Dockets Office is on the plaza level of the Nassif Building at the
Department of Transportation at the above address. Also, you may review
public dockets on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Lt Col. Tom Barrale, USAF, Department
of Defense Air Mobility Command Liaison Officer to FAA Flight Standards
Service, Federal Aviation Administration, 800 Independence Avenue, SW.,
Washington, DC 20591; telephone (202) 267-7088.
SUPPLEMENTARY INFORMATION
Comments Invited
The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. We also
invite comments relating to the economic, environmental, energy,
federalism, or security impacts that might result from this rule. The
most helpful comments reference a specific portion of the rule, explain
the reason for any recommended change, and include supporting data. We
ask that you send us two copies of written comments.
All comments received will be filed in the docket. The FAA will
develop a report that summarizes each substantive public contact with
the FAA personnel concerning this rulemaking. The docket is available
for public inspection before and after the comment closing date. If you
wish to review the docket in person, go to the address in the ADDRESSES
section of this preamble between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays. You may also review the docket using
the Internet at the web address in the ADDRESSES section.
We will consider all comments we receive on or before the closing
date for comments. We may change this rule based on the comments we
receive. If you want the FAA to acknowledge receipt of your comments,
include with your comments a pre-addressed, stamped postcard that
identifies the docket number. We will stamp the date on the postcard
and mail it to you.
Availability of Final Rule
You can get an electronic copy using the Internet by taking the
following steps:
(1) Go to the search function of the Department of Transportation's
electronic Docket Management System (DMS) Web page (
http://dms.dot.gov/search).
(2) On the search page type in the last four digits of the Docket
number shown at the beginning of this notice. Click on ``search.''
(3) On the next page, which contains the Docket summary information
for the Docket you selected, click on the final rule.
You can also get an electronic copy using the Internet through the
Office of Rulemaking's Web page at http://www.faa.gov/avr/armhome.htm
or the Government Printing Office's Web page at
http://www.gpoaccess.gov/fr/index.html.
You can also get a copy by submitting a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make
sure to identify the amendment number or docket number of this final
rule.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. Therefore, any small entity that has a question regarding
this document may contact their local FAA official, or the person
listed under FOR FURTHER INFORMATION CONTACT. You can find out more
about SBREFA on the Internet at our site, http://www.gov/avr/arm/
sbrefa.htm. For more information on SBREFA, e-mail us 9-AWA-
SBREFA@faa.gov.
Background
The DOD contracts for passenger and air cargo movements from air
carriers certificated by the FAA. Pursuant to Public Law 99-661
(November 14, 1986), the DOD is required to conduct capability
evaluations of these carriers to ensure each is able to satisfy the
unique requirements of military contracts and adhere to the DOD
Commercial Air Carrier Quality and Safety Requirements as codified in
Title 32 of the Code of Federal Regulations (CFR), part 861. Generally,
DOD surveillance requirements include an initial on-site capability
survey with a recurring on-site survey every 2 years thereafter, a
performance evaluation every 6 months, periodic ramp inspections, and
operational evaluations conducted periodically on aircraft (Pub. L. 99-
661, November 14, 1986). These operational evaluations apply only to
carriers that are under contract with DOD or carriers desiring to enter
contracts with DOD. Specific guidance can be found in DOD Directive
4500.53. In general, these cockpit observations are subjective in
nature and serve to validate that the actions of the aircrews are in
line with the procedures and policies of the company. The four major
categories observed in flight are airmanship, crew coordination, safety
awareness, and judgment. In the event discrepancies in compliance with
the Federal Aviation Regulations are noted, such discrepancies will be
brought to the attention of the FAA and the Air Carrier. Follow-up
actions will be dependent upon the severity of the discrepancy as
determined by the Air Mobility Command, Survey and Analysis Office
(AMC/DOB).
Cockpit observations are one means by which evaluators assess the
effectiveness of programs during the on-site capability surveys and
performance evaluations. DOD commercial air carrier evaluators require
uninterrupted access to the flight deck to perform their
congressionally mandated duties. The existing language in 14 CFR parts
121 and 135 does not explicitly include DOD commercial air carrier
evaluators among those persons authorized access
[[Page 41216]]
to the flight deck. DOD commercial air carrier evaluators have relied
upon the authority contained in 14 CFR 121.547(a)(4) to evaluate part
121 air carriers. Section 121.547 states in relevant part: ``(a) No
person may admit any person to the flight deck of an aircraft unless
the person being admitted is . . . (4) Any person who has the
permission of the pilot in command and is specifically authorized by
the certificate holder management and by the administrator.'' There is
no analogous section in part 135.
For many years, DOD commercial air carrier evaluators have relied
on the FAA, the air carrier, and the pilot in command authorizing their
access to conduct the air carrier evaluation mission. The current
process is both cumbersome, including the issuance of FAA Form 8430-6,
and unnecessary. It requires the DOD Survey and Analysis Office to
obtain and maintain specific approval from each and every air carrier
their evaluators are to assess. DOD's ten commercial air carrier
evaluators are responsible for conducting cockpit evaluations on over
140 different carriers contracted with the Department of Defense.
The absence of explicit authority in the regulation listing ``DOD
commercial air carrier evaluator'' and the lack of a well-known DOD
evaluator credential is significantly hindering the congressionally
mandated DOD air carrier evaluation mission'especially in the wake of
9/11. While DOD and FAA Flight Standards Service personnel understand
the role of the DOD commercial air carrier evaluator, it is often
misunderstood by those in aviation security and the crewmembers on
those flights being evaluated by DOD.
The DOD will continue to ensure the proper coordination with the
air carrier in advance of these evaluations through a simplified
process. These amendments will make clear the authority of DOD
commercial air carrier evaluators to conduct cockpit evaluations by
explicitly including them in the regulation text. These changes,
accompanied by the creation of an S&A Form 110B evaluator credential
should alleviate the problems DOD commercial air carrier evaluators are
facing in the field with minimum impact.
The FAA believes the efficiency of the DOD cockpit observation
program will be greatly enhanced by amending the relevant sections of
14 CFR 119, 121, and 135 to specifically include DOD commercial air
carrier evaluators. Further, the creation of the S&A Form 110B
credential will allow DOD commercial air carrier evaluators to gain
cockpit access without having to follow the FAA Form 8430-6 process,
and without having to obtain and maintain the specific permissions for
every cockpit evaluation. The DOD will require its commercial air
carrier evaluators to carry with them an S&A Form 110B credential,
their military orders, and a current military ID while conducting an
evaluation. The S&A Form 110B credential will be analogous to the 110A
credential held by FAA inspectors in terms of gaining cockpit access.
However, a DOD commercial air carrier evaluator may not use his S&A
Form 110B credential on any air carrier that is not under contract with
the Department of Defense. A DOD commercial air carrier evaluator may
use the credential on specific flights that may not be contracted so
long as the air carrier itself maintains a contract with the DOD. The
only exceptions to the existing contract criteria are when an air
carrier is going through an initial survey or applying for a contract
or both--in these instances the credential is valid without a contract.
Paperwork Reduction Act
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the FAA has reviewed and determined that these amendments do
not constitute a new or additional information collection activity.
International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
reviewed the corresponding ICAO Standards and Recommended Practices and
has identified no differences with these proposed regulations.
Justification for No Notice and Immediate Adoption
This action is being taken without providing the opportunity for
prior notice and public comment. The FAA finds that prior notice and
public comment are impracticable and contrary to the public interest,
pursuant to section 553 of the Administrative Procedure Act (APA).
Section 553(b)(B) of the APA permits an agency to forego notice and
comment rulemaking when ``the agency for good cause finds * * * that
notice and public procedures thereon are impracticable, unnecessary or
contrary to the public interest.'' The use of notice and comment prior
to issuance of this rule would delay the potential safety benefit of
this rulemaking. FAA asks for comment with publication of this rule,
and will consider all comments received during the comment period. If
changes to the rule are necessary to address aviation safety more
effectively, or in a less burdensome but equally effective manner, FAA
will make such changes. The FAA finds the need to facilitate the use of
a new credential for DOD commercial air carrier evaluators is good
cause for making this final rule effective immediately.
Executive Order 12866 and DOT Regulatory Policies and Procedures
Executive Order 12866, Regulatory Planning and Review, directs the
FAA to assess both the costs and benefits of a regulatory change. We
are not allowed to propose or adopt a regulation unless we make a
reasoned determination that the benefits of the intended regulation
justify its costs. Our assessment of this proposal indicates that its
economic impact is minimal. Since its costs and benefits do not make it
a ``significant regulatory action'' as defined in the Order, we have
not prepared a ``regulatory impact analysis.'' Similarly, we have not
prepared a ``regulatory evaluation,'' which is the written cost/benefit
analysis ordinarily required for all rulemaking proposals under the DOT
Regulatory and Policies and Procedures. We do not need to do the latter
analysis where the economic impact of a proposal is minimal.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
business, organizations, and governmental jurisdictions subject to
regulation.'' To achieve that principle, the Act requires agencies to
solicit and consider flexible regulatory proposals and to explain the
rationale for their actions. The Act covers a wide range of small
entities, including small businesses, not-for-profit organizations and
small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the determination is that it will, the
agency must prepare a regulatory flexibility analysis as described in
the Act.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small
[[Page 41217]]
entities, section 605(b) of the RFA provides that the head of the
agency may so certify and a regulatory flexibility analysis is not
required. The certification must include a statement providing the
factual basis for this determination, and the reasoning should be
clear.
This action imposes no costs on any small entities subject to this
rule; however, it may provide some unquantifiable benefits to some of
them. Consequently, the FAA certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
International Trade Impact Analysis
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards. In accordance with the above statute and policy, the FAA has
assessed the potential effect of this final rule to be minimal and
therefore has determined that this rule will not result in an impact on
international trade by companies doing business in or with the United
States.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA), enacted as Pub. L.
104-4 on March 22, 1995, is intended, among other things, to curb the
practice of imposing unfunded Federal mandates on State, local, and
tribal governments. Title II of UMRA 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 a $100
million or more expenditure (adjusted annually for inflation) 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.''
This SFAR does not contain such a mandate. Therefore, the
requirements of Title II of UMRA do not apply.
Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. We determined that this
action will not have a substantial direct effect on the States, or the
relationship between the national Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, we determined that this final rule does not have
federalism implications.
Environmental Analysis
FAA Order 1050.1D defines FAA actions that may be categorically
excluded from preparation of a National Environmental Policy Act (NEPA)
environmental impact statement. In accordance with FAA Order 1050.1D,
appendix 4, paragraph 4(j), this rulemaking action qualifies for a
categorical exclusion.
Energy Impact
The energy impact of the notice has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA Pub. L. 94-163, as
amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined
that the final rule is not a major regulatory action under the
provisions of the EPCA.
List of Subjects
14 CFR Part 119
Administrative practice and procedure, Air carriers, Aircraft,
Aviation safety, Charter flights, Reporting and recordkeeping
requirements.
14 CFR Part 121
Air carriers, Aircraft, Airmen, Alcohol abuse, Aviation safety,
Charter flights, Drug abuse, Drug testing, Reporting and recordkeeping
requirements, Safety, Transportation.
14 CFR Part 135
Air taxis, Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug
abuse, Drug testing, Reporting and recordkeeping requirements.
The Amendments
? In consideration of the foregoing the Federal Aviation Administration
amends Chapter I of Title 14 Code of Federal Regulations as follows:
PART 119--CERTIFICATION: AIR CARRIERS AND COMMERCIAL OPERATORS
? 1. The authority citation for part 119 continues to read as follows:
Authority: 49 U.S.C. 106(g), 1153, 40101, 40102, 40103, 40113,
44105, 44106, 44111, 44701-44717, 44722, 44901, 44903, 44904, 44906,
44912, 44914, 44936, 44938, 46103, 46105.
? 2. Amend Sec. 119.3 by adding a new definition in alphabetical order
to read as follows:
Sec. 119.3 Definitions.
* * * * *
DOD commercial air carrier evaluator means a qualified Air Mobility
Command, Survey and Analysis Office (AMC/DOB) cockpit evaluator
performing the duties specified in Public Law 99-661 when the evaluator
is flying on an air carrier that is contracted or pursuing a contract
with the U.S. Department of Defense (DOD).
* * * * *
PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS
? 3. The authority citation for part 121 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 46105.
? 4. Amend Sec. 121.547 by revising paragraphs (a)(2) and (c)(1) to read
as follows:
Sec. 121.547 Admission to flight deck.
(a) * * *
(2) An FAA air carrier inspector, a DOD commercial air carrier
evaluator, or an authorized representative of the National
Transportation Safety Board, who is performing official duties;
* * * * *
(c) * * *
(1) An FAA air carrier inspector, a DOD commercial air carrier
evaluator, or authorized representative of the Administrator or
National Transportation Safety Board who is checking or observing
flight operations;
* * * * *
? 5. Add a new Sec. 121.548a to read as follows:
Sec. 121.548a DOD Commercial Air Carrier Evaluator's Credential.
Whenever, in performing the duties of conducting an evaluation, a
DOD commercial air carrier evaluator presents S&A Form 110B, ``DOD
Commercial Air Carrier Evaluator's Credential,'' to the pilot in
command of an airplane operated by the certificate holder, the
evaluator must be given free and uninterrupted access to the pilot's
compartment of that airplane.
? 6. Amend Sec. 121.583 by revising paragraph (a)(3) to read as follows:
Sec. 121.583 Carriage of persons without compliance with the
passenger-carrying requirements of this part.
(a) * * *
(3) An FAA air carrier inspector, a DOD commercial air carrier
evaluator, or an authorized representative of the
[[Page 41218]]
National Transportation Safety Board, who is performing official
duties.
* * * * *
PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON DEMAND OPERATIONS
AND RULES GOVERNING PERSONS ON BOARD SUCH AIRCRAFT
? 7. The authority citation for part 135 continues to read as follows:
Authority: 49 U.S.C. 106(g), 41706, 44113, 44701-44702, 44705,
44709, 44711-44713, 44715-44717, 44722.
? 8. Add a new Sec. 135.76 to read as follows:
Sec. 135.76 DOD Commercial Air Carrier Evaluator's Credentials:
Admission to pilots compartment: Forward observer's seat.
(a) Whenever, in performing the duties of conducting an evaluation,
a DOD commercial air carrier evaluator presents S&A Form 110B, ``DOD
Commercial Air Carrier Evaluator's Credential,'' to the pilot in
command of an aircraft operated by the certificate holder, the
evaluator must be given free and uninterrupted access to the pilot's
compartment of that aircraft. However, this paragraph does not limit
the emergency authority of the pilot in command to exclude any person
from the pilot compartment in the interest of safety.
(b) A forward observer's seat on the flight deck or forward
passenger seat with headset or speaker must be provided for use by the
evaluator while conducting en route evaluations. The suitability of the
location of the seat and the headset or speaker for use in conducting
en route evaluations is determined by the FAA.
? 9. Amend Sec. 135.85 by adding a new paragraph (h) to read as follows:
Sec. 135.85 Carriage of persons without compliance with the
passenger-carrying provisions of this part.
* * * * *
(h) A DOD commercial air carrier evaluator conducting an en route
evaluation.
Issued in Washington, DC, on July 3, 2003.
Marion C. Blakey,
Administrator.
[FR Doc. 03-17459 Filed 7-9-03; 8:45 am]
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