[Federal Register Volume 68, Number 132 (Thursday, July 10, 2003)]
[Rules and Regulations]
[Pages 41214-41218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17459]


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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.access.gpo.gov/su_docs/aces/aces140.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 [email protected].

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

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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

0
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

0
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.

0
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

0
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.


0
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;
* * * * *

0
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.

0
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

0
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.


0
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.

0
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]
BILLING CODE 4910-13-P