9/8/15

 

8900.1 CHG 419

VOLUME 12 INTERNATIONAL AVIATION

Indicates new/changed information.

CHAPTER 2 FOREIGN AIR CARRIERS OPERATING TO THE U.S. AND FOREIGN OPERATORS OF U.S.-REGISTERED AIRCRAFT ENGAGED IN COMMON CARRIAGE OUTSIDE THE U.S.

Section 8 Compliance, Surveillance, and Operations Specifications (OpSpecs) Enforcement

12-325    GENERAL.

A.    Regulatory Authority. Article 16 of the Chicago Convention states that the appropriate authorities of each state have the right, without unreasonable delay, to search foreign civil aircraft on landing or departure, and to inspect the certificates and other documents prescribed by the Convention. Title 49 of the United States Code (49 U.S.C.) §§ 40113 and 46101(a)(2) empower the Administrator to conduct such investigations considered necessary to carry out the provisions of 49 U.S.C.

B.    Department of Transportation (DOT) Authority. Title 49 U.S.C. § 41703 states that foreign civil aircraft may be navigated in the United States by airmen holding appropriate certificates issued by the State of Registry of the aircraft and only if such navigation is authorized by permit, order, or regulation issued by the DOT, and in accordance with the terms, conditions, and limitations thereof.

C.    Permit Requirements. Permits issued by DOT to foreign air carriers contain specific terms, conditions, and limitations. Among these conditions are requirements that each permit holder comply with the following:

·    Operational safety requirements at least equivalent to International Civil Aviation Organization (ICAO) Annexes 1, 6, and 8 of the Convention; and

·    All applicable orders and regulations of other U.S. agencies and courts, and with all applicable laws of the United States.

Indicates new/changed information.

D.    Short-Term Exemptions. Title 49 U.S.C. § 40109 exemptions issued by DOT to foreign air carriers conducting short-term exemption operations (normally no more than 12 flights into the United States) also require compliance with this order.

12-326    COMPLIANCE. Each foreign air carrier operating within the United States must comply with each applicable requirement in Title 14 of the Code of Federal Regulations (14 CFR) and in accordance with its operations specifications (OpSpecs). Additionally, each person operating a U.S.-registered aircraft outside the United States must comply with 14 CFR part 91, § 91.703 and, if engaged in common carriage operations, 14 CFR part 129, § 129.14.

12-327    FEDERAL AVIATION ADMINISTRATION (FAA) INSPECTIONS UNDER § 129.14.

A.    FAA Responsibility. Consistent with its international obligations as the State of Registry, the FAA is responsible for approving maintenance programs and minimum equipment list (MEL) requirements for U.S.-registered aircraft engaged in common carriage under § 129.14.

B.    The Following Guidance Applies:

1)    Approval of the maintenance program does not constitute approval of the foreign operator’s maintenance facility or capability. The operator is responsible for ensuring that the aircraft is maintained in accordance with its approved maintenance program. Additionally, regulating and overseeing how a foreign operator integrates a U.S.-registered aircraft, including the FAA-approved maintenance program, into its operations and maintenance systems is the responsibility of the State of the Operator under the Chicago Convention.
2)    In carrying out its State of Registry responsibilities, the FAA has authority to inspect aircraft on the U.S. registry even when located outside the United States. Notwithstanding subparagraph 12-327B1), upon approval of the § 129.14 maintenance program, the FAA may elect to conduct an in-country visit to validate that a U.S.‑registered aircraft operated in common carriage by a foreign air carrier or foreign person is being maintained in accordance with its approved maintenance program. In-country visits must be approved by the responsible manager based on a review of the maintenance program and potential safety issues concerning inadequate maintenance.
3)    Prior to scheduling any official visit to a foreign country, the inspector should coordinate the trip with the foreign air carrier and notify the foreign Civil Aviation Authority (CAA). The inspector also should obtain a country clearance from the U.S. embassy in the country where the aircraft to be inspected is located.
4)    The responsible manager should consider the following factors:

·    Whether the assigned inspector evaluating the maintenance program can conduct the evaluation satisfactorily without the necessity of traveling to the state where the aircraft is operated.

·    Whether the maintenance provider is a 14 CFR part 145 repair station. In that case, the manger should ensure that these safety issues are addressed during the part 145 repair station surveillance visit.

·    Objective evidence to support the reviewing inspector’s safety concerns.

5)    Conformity inspection of the aircraft to the operator’s fleet is the responsibility of the State of the Operator.

NOTE:  Conformity of the aircraft to its type certificate (TC) is verified by the FAA as the State of Registry as a requirement for issuance of an airworthiness certificate.

12-328    SURVEILLANCE.

Indicates new/changed information.

A.     Purpose. Aviation safety inspectors (ASI) shall conduct surveillance of each foreign air carrier and its aircraft and operations. The surveillance task is to determine compliance with the regulations and the foreign air carrier’s OpSpecs. Surveillance of a foreign air carrier shall be conducted on a routine or recurring basis. If a foreign air carrier experiences a series of safety-related accidents, incidents, violations, or complaints, the IFO manager holding the foreign air carrier’s OpSpecs shall initiate surveillance as necessary to resolve any safety deficiencies.

1)    Surveillance Program Development. Offices that issue and/or are holders of OpSpecs for part 129 operators shall develop their annual work programs to incorporate any Required Surveillance Work Activities (R-item) directed under the National Program Guidelines (NPG) (the current edition of FAA Order 1800.56, National Flight Standards Work Program Guidelines). Only ASIs who have met one of the following training requirements can conduct these ramp inspections:

·    Completed online training course 27100142, How to Conduct a 14 CFR Part 129 Ramp Inspection, or

·    Are permanently assigned to an IFO and have completed all required on-the-job training (OJT).

2)    Work Programs. Surveillance of part 129 operators can be accomplished by the office that issues the OpSpecs. Surveillance includes routine and unannounced ramp inspections in addition to the “R” items. Geographic units may plan part 129 surveillance as part of the scheduled work program and additional inspections at the request of the responsible international office. For training requirements, see subparagraph 12-328A1).

B.    Foreign Air Carriers Operating Foreign-Registered Aircraft. Volume 12, Chapter 3, Section 3 contains general information for conducting ramp inspections. Normally, principal inspectors (PI) shall limit any routine or unannounced ramp inspection of a foreign air carrier conducting operations with foreign-registered aircraft to those operations being conducted in the United States and shall normally include only the following inspection items:

·    Aircraft markings;

·    Aircraft airworthiness and registration certificates;

·    Flightcrew member certificates;

·    Air traffic compliance;

·    Taxi and ramp procedures;

·    Passenger enplaning/deplaning procedures;

·    Baggage and cargo (especially hazardous cargo); and

·    Compliance with pilot-in-command (PIC) age policy.

C.    Enhanced Ground Proximity Warning Systems (EGPWS) and Canadian Air Cargo Operators. The FAA Office of the Chief Counsel (AGC) has determined that with regard to EGPWS, operators under the safety oversight system of Transport Canada are permitted to operate in the United States as long as their EGPWS meets either the ICAO Annex 6 standards or the standards the FAA applies to its own similarly situated carriers in U.S airspace.

D.    Pilot Age Policy and Amendment of OpSpecs. A foreign air carrier conducting operations within the United States using aircraft having a passenger seating configuration of more than 30 seats, excluding any required crewmember seat, or a payload capacity of more than 7,500 pounds (3,400 kg) regardless of the State of Registry of the aircraft must comply with the standard contained in Annex 1 to the Chicago Convention of the ICAO Personnel Licensing, Chapter 2, Licenses and Ratings for Pilots, paragraph 2.1.10. The following applies to foreign air carrier(s) conducting operations within the United States in commercial operations using foreign registered aircraft:

1)    For single-pilot operations, the PIC must be under age 60.
2)    For operations with two or more pilots, each pilot must be under age 65.

NOTE:  Foreign air carriers must also always comply with more restrictive pilot age requirements imposed by the State of the Operator. ICAO State Letter AN 12/1.1.18-14/14, dated
March 25, 2014, sent to each ICAO member state, announced the adoption of amendment 172 to Annex 1, effective November 13, 2014.

E.    Foreign Air Carriers Operating U.S.-Registered Aircraft. Inspectors may conduct routine and unannounced ramp inspections (at any location) of foreign air carriers conducting operations with U.S.-registered aircraft. The captain, his or her representative, or an appropriate airline representative should also be present. Inspectors must present appropriate FAA identification to operator representatives and the captain or to the crewmember, as appropriate. The form on identification should be FAA Form 110A, Aviation Safety Inspector’s Credential.

1)    The operator does not have to be given advance notice that a ramp inspection is going to be conducted.
2)    The following rules of conduct should be observed by inspectors during ramp inspection activities:

·    Inspectors should not interrupt crew or ground personnel when they are performing a particular phase of their duties.

·    When inspection activities require inspectors to interact directly with the crew or ground personnel, the activities should be timed to be accomplished when the crew or ground personnel are waiting to begin another phase of their duties or after they have completed one phase of their duties and before they begin another phase.

·    Inspection activities must be timed so that they do not delay or interfere with passenger enplaning or deplaning.

·    Inspection activities should not adversely impede aircraft servicing or catering.

F.    Frequency of Inspections. The PI in the responsible office for the foreign air carrier shall initiate surveillance any time the chief executive officer of the foreign air carrier or the foreign state CAA requests it in writing. Certain foreign air carriers have requested that FAA inspectors conduct significantly more indepth inspections of their operations than is required by the NPG. Since the written request is a change in risk, the process used to initiate the surveillance activity will be as prescribed in Order 1800.56.

G.    Need for Diplomacy. Inspectors should take particular care to diplomatically explain, with the foreign air carrier’s representative, each discrepancy. Items not governed by 14 CFR or approved OpSpecs (such as training programs, cabin safety procedures, and non-U.S.-registered aircraft maintenance programs) shall not be inspected, unless a specific written request has been made by either the foreign air carrier or the state CAA of the foreign air carrier, or when directed by FAA headquarters (HQ).

Indicates new/changed information.

H.    Disagreements Concerning Inspection Findings. If a foreign air carrier’s representative disagrees with any inspection findings, the FAA office that conducted the surveillance shall prepare a written report of these inspection findings and address it to the state CAA. After coordinating with the IFO holding the OpSpecs of the foreign air carrier and the appropriate regional and HQ personnel (Flight Standards Service (AFS) and Regional Chief Counsel), the initiating office shall mail the report to the state’s CAA with copies to:

·    The appropriate regional HQ office,

·    The Director of Flight Standards Service (AFS-1),

·    The International Programs and Policy Division (AFS-50), and

·    The Enforcement Division (AGC-300).

I.    ICAO Article 83 Bis Leases and Interchanges. Operators enter into leases and other interchanges, resulting in aircraft being based outside their State of Registry. States are permitted by Article 83 bis to transfer safety oversight functions under ICAO Annexes 1, Personnel Licensing; 6, International Commercial Air Transport and General Aviation—Aeroplanes and Helicopters; and 8, Airworthiness of Aircraft for aircraft on their registry to the State in which they are based. The Article 83 bis Agreement specifies what functions are being transferred (not all functions need be transferred), which aircraft are affected (by tail number), and the duration. In some cases, a foreign air carrier serving the United States may utilize the aircraft of another country’s registry. Under the provisions of an Article 83 bis agreement, the flightcrew may possess certificates issued or validated by the State of the Operator, not from the State of Registry (see Volume 12, Chapter 2, Section 9, subparagraph 12-353 for more information).

1)    Inspectors performing ramp inspections on foreign air carriers should be aware that in some situations the provisions of an active Article 83 bis Agreement between two CAAs may permit the transfer of oversight functions under ICAO Annexes 1, 6, and 8 for aircraft on the their registry.
2)    In those situations where there is an appearance of conflict, the inspector should coordinate with their supervisor and contact AFS-50. AFS-50 will assist in obtaining the information from ICAO in regards to the status of any active Article 83 bis Agreements between the State of the Operator and the State of Registry. AFS-50 will also provide guidance to the FAA’s position in regards to such an agreement.
3)    In the case of an aircraft entering airspace the contracting State that is not a party to Article 83 bis, or has not been duly advised about a transfer agreement in accordance with this provision, the certificates and licensees on board the aircraft should be issued or rendered valid by the State of Registry. The State of Registry would in this case remain fully responsible with regard to Article 30, Aircraft Radio Equipment; Article 31, Certificates of Airworthiness; and Article 32, Licenses of Personnel, of the Convention despite the transfer agreement with the State of the Operator.

J.    English Language Endorsement. ICAO issued a requirement for all pilots flying internationally to have a proficiency in the English language that meets or exceeds a minimum expertise level, as defined in ICAO Doc 9835.

1)    The FAA field inspectors assigned ramp inspection duties on foreign aircraft flying into the United States are expected, as part of the ramp inspection, to verify the pilot certificate/license does have the English language endorsement or verify the country’s posted means for mitigation are being met. The AFS-50 Web site has a matrix of all Category I (CAT I) and Category II (CAT II) countries that includes a listing of a state’s proposed mitigation procedures.
2)    If an inspector has concerns or questions about a pilot’s endorsement, lack of endorsement, or ability to speak at an appropriate level as defined in the ICAO Doc 9835, the inspector should contact AFS-50, through appropriate channels. AFS-50 will follow up with the issuing CAA. The AFS-50 Web site is located at http://employees.faa.gov/org/linebusiness/avs/offices/afs/divisions/hq_region/afs50.
3)    FAA inspectors shall not test foreign certificated airmen for English language proficiency skills.
Indicates new/changed information.

K.    Desk Audits of Maintenance Programs for U.S.-Registered Aircraft Maintained under § 129.14. Each responsible International Field Office (IFO) will be assigned an R-item to conduct a desk audit of each foreign air carrier’s or foreign person’s U.S.-registered aircraft FAA-approved maintenance program.

1)    Program Tracking and Reporting Subsystem (PTRS). Use activity codes 3637 and 5637.
2)    Minimum Items to be Checked. PI should check the following:
a)    Copy of current airworthiness certificate;
b)    When the maintenance program was last updated;
c)    Whether the maintenance program matches the fleet;
d)    Maintenance records;
e)    Sample life-limited parts, as applicable; and
f)    Sample/review applicable Airworthiness Directives (AD) and advisory circulars (AC).
Indicates new/changed information.
3)    Sampling and Scope. Sample size and scope will be as determined by the responsible IFO, based on PI input. It needs to be sufficiently comprehensive to ensure that the foreign air carrier or foreign person is complying with the FAA-approved maintenance program.
Indicates new/changed information.
4)    Associated Part 145 Facility Inspections and Ramp Checks. Desk audits at management discretion may be combined and accomplished as part of an annual FAA part 145 facility inspection when the aircraft are present. A ramp check of a U.S.-registered aircraft may not be used in place of the desk audit.
5)    Termination. The responsible IFO, at the end of each fiscal year (FY), may terminate each R‑item/desk audit in accordance with Order 1800.56.

12-329    COMPLIANCE AND ENFORCEMENT. The FAA’s compliance and enforcement program is designed to promote compliance with statutory and regulatory requirements. The ultimate goal of the FAA’s enforcement policy is to prevent incidents, accidents, and the occurrence of regulatory violations. This goal is primarily achieved as to foreign air carriers through surveillance of the carrier and through technical assistance and consultations with the carrier’s CAA. As with U.S. air carriers, the FAA encourages voluntary compliance by foreign carriers.

A.    Suspension or Revocation of OpSpecs. The compliance and enforcement program provides a wide range of options for addressing noncompliance. In addition to referring apparent violations to foreign governments for appropriate handling, options include administrative action in the form of a warning notice or letter of correction, the suspension or revocation of OpSpecs, civil penalties, injunctions, and referrals for criminal prosecution. When the option of suspending the carrier’s OpSpecs is selected, the suspension may be for a fixed period or an indefinite period pending compliance or a demonstration of qualifications. Enforcement actions against crewmember certificates (Special Purpose Pilot Authorizations) also may be available if the foreign carrier in its operations uses a U.S.-registered aircraft.

B.    Actions. When violations occur, FAA personnel must take the action that best promotes safety and compliance with the regulations. FAA personnel are to determine what action to take by evaluating the seriousness and safety risk imposed by the noncompliance. The current edition of FAA Order 2150.3, FAA Compliance and Enforcement Program, provides a description of the authority, responsibilities, policies, guidelines, procedures, objectives, and legal aspects of the FAA compliance and enforcement program.

1)    The amendment, suspension, or termination of foreign air carrier OpSpecs are actions that can be affected by the procedural requirements of a bilateral air transport agreement. Before taking such actions, the standard language in most bilateral air transport agreements may require the FAA to consult with the State of the Operator of the foreign air carrier.

NOTE:  For additional guidance on amendment of OpSpecs, see Volume 12, Chapter 2, Section 2. For the regulatory reference for amendment, suspension, or termination of OpSpecs, refer to § 129.11.

2)    During such consultations, the FAA advises the foreign government of how the foreign carrier is not complying with the applicable safety standards and requirements and provides an opportunity for corrective actions to be taken within a reasonable time.
3)    The FAA also should provide this information to the foreign carrier involved. However, the standard agreement language also provides for exceptions to the general consultation requirement.
4)    Consultations are not required when the amendment, suspension, or termination of the OpSpecs is essential to prevent further noncompliance with U.S. law or FAA regulations or with the minimum international standards applicable to the operations of the foreign carrier.

NOTE:  Earlier versions of bilateral air transport agreements between the United States and foreign governments may not contain these same provisions and in some cases, the process to revoke, suspend, or limit the operating authorizations or technical permissions of an airline is not discussed. However, it is FAA policy that the same process be used for all foreign air carriers.

Indicates new/changed information.

C.    Field Responsibilities. Because consultations may be required, amendment, suspension, or revocation of foreign air carrier OpSpecs may be considered a significant action under Order 2150.3. Therefore, any IFO must coordinate these cases with the responsible regional division and Washington HQ before initiating an action to amend, suspend, or revoke a foreign air carrier’s OpSpecs. For emergency cases requiring immediate action, the IFO must provide information on the amendment, suspension, or revocation to the regional division and Washington HQ at the same time the action is being taken. This coordination process will also allow for a more effective response to the broad public attention that such actions may draw.

12-330    FAA-INITIATED AMENDMENT OF FOREIGN OPSPECS—GENERAL. If the FAA determines that an amendment to the foreign air carrier or operator’s foreign OpSpecs is justified, the FAA should amend the OpSpecs in accordance with the procedures contained in Volume 12, Chapter 2, Section 2. In the case of a change in circumstances of a foreign air carrier’s operations, or when the FAA has specific safety concerns not of an immediate nature, the following procedures apply:

A.    Change in the Foreign Air Carrier’s Operating Environment. In some cases, FAA may decide to amend a foreign air carrier’s OpSpecs due to a change in the operational environment. For example, FAA may create a new OpSpec paragraph to ensure uniform compliance with a certain aspect of the regulations. In such cases, the appropriate PI may initiate and amend a foreign air carrier’s OpSpecs due to the change, without the foreign air carrier having to apply for the change. Once the foreign air carrier has demonstrated or provided documentation as applicable to show compliance with all appropriate parts of the regulations and operational and airworthiness requirements, the OpSpecs may be issued in accordance with the procedures discussed in Volume 12, Chapter 2, Section 2.

Indicates new/changed information.

B.    FAA Authority and Foreign Air Carrier Appeal Rights. FAA has the authority to unilaterally amend a foreign air carrier’s OpSpecs (revoke, suspend, or limit the operating authorizations or technical permissions of an airline) when the FAA has determined that safety in air transportation and the public interest necessitates such an amendment. When amending a foreign air carrier’s OpSpecs under these circumstances, if immediate action is not essential, the FAA shall notify the foreign air carrier in writing and then allow a minimum of 7 days for comments regarding the proposal. The 7-day period provides the foreign air carrier with an opportunity to submit written information, views, and arguments on the proposal. After reviewing the comments and their merit, the IFO shall then either rescind or adopt the amendment. If the IFO decides that the amendment is necessary, every attempt should be made to obtain voluntary acceptance of the amendment by the foreign air carrier, and the final amended OpSpecs should have an effective date of not less than 30 days after issuance. This will provide the foreign air carrier with appeal rights, as provided in part 129. Some examples of these types of FAA-initiated amendments are as follows:

1)    The FAA will propose to amend a foreign air carrier’s OpSpecs when it determines that the foreign air carrier’s operating environment or its operational capability is no longer consistent with the operating authorizations, conditions, and limitations contained in its FAA-issued foreign OpSpecs. Examples of such cases are when the foreign air carrier:

·    Terminates operations to the United States with a specific make, model, and series (M/M/S) of aircraft that is authorized in its OpSpecs.

·    Has a series of occurrences involving a particular type of operation (such as domestic Reduced Vertical Separation Minimum (RVSM) when it is determined that the carrier may not be adhering to all provisions of their FAA-issued RVSM OpSpec).

·    Terminates a particular type or kind of operation or area of operation (such as when the operator no longer conducts CAT II or III approach operations in the United States).

2)    The FAA also amends a foreign air carrier’s OpSpecs when the standard automated OpSpecs have been revised on a national basis and AFS-50 has requested that PIs amend all or part of their operator’s OpSpecs.
Indicates new/changed information.

12-331    AMENDMENT, SUSPENSION, OR REVOCATION OF FOREIGN OPSPECS—GENERAL. When the FAA cannot reach agreement with the foreign air carrier regarding an FAA-initiated OpSpec amendment, the FAA will amend the foreign air carrier’s OpSpecs using the following procedures. These procedures ensure that the FAA meets its bilateral obligations that affect amendment of a foreign air carrier’s OpSpecs that may be construed as “revoking, suspending, or limiting the operating authorizations or technical permissions” of the foreign air carrier.

A.    Responsible IFO. The IFO responsible for administration of the foreign air carrier’s OpSpecs should prepare a draft letter to the foreign air carrier clearly explaining the proposed OpSpec amendment and the reasons for it. If the proposed amendment is associated with a proposed enforcement action, this may be the Letter of Investigation (LOI) in accordance with Order 2150.3. The responsible office sets a reasonable time (but no less than 7 days), considering the location of the principal place of business, for the foreign carrier to submit written information, views, and arguments on proposed actions. When the responsible district office issues the above actions, they become effective no less than 30 days after the foreign air carrier or foreign person receives notice of them unless the responsible office determines that there is an emergency requiring immediate action with respect to safety of the air commerce or the air carrier petitions for reconsideration.

Indicates new/changed information.

NOTE:  The responsible IFO may make amendment, suspension, or termination effective the day the foreign air carrier receives notice of it. The office must articulate the reasons in respect to air transportation safety.

Indicates new/changed information.

B.    Division Notification. The responsible IFO shall also prepare a briefing paper using the general FAA memo template that may be found on https://my.faa.gov/. Within the paper the responsible IFO must include, at a minimum, a section on the issue(s), background, and recommendation/conclusion. The briefing paper may also include but is not limited to discussion of major points, relevant attachments, and political considerations and implications. The responsible IFO shall forward the briefing paper and the draft letter described in subparagraph 12-331A (hereinafter referred to as the package) to the regional division.

Indicates new/changed information.

NOTE:  For uncontroversial amendments, suspensions or revocations where the foreign operator accepts the amendment, suspension, or revocation, the responsible IFO must send an email notification to AFS-50 (there is no need for a briefing paper unless requested).

Indicates new/changed information. Indicates new/changed information.

C.    Regional Coordination. If the regional Flight Standards Division (RFSD) manager concurs with the proposed action after coordination with Regional Counsel and the IFO, the manager will forward the package to the manager of AFS-50 with copies to AFS-1, the Deputy Director of Flight Standards Service (AFS-2), the International Affairs and Legal Policy Branch (AGC-270), and AGC-300. If the division manager nonconcurs, the package will be returned to the initiating IFO for other action.

D.    AFS-50 Actions.

Indicates new/changed information.
1)    When received, AFS-50 will coordinate the package internally and with AFS-1 and the International Law and Legal Policy Branch (AGC-7). Provided all concur with the proposed action and the need for consultations, AFS-50 will initiate the consultation process as set forth below. In the event of nonconcurrence with the proposed action, AFS-50 will return the package to the originating IFO through the regional division after discussion. The package must be retained in accordance with recordkeeping requirements in the current edition of FAA Order 1350.14, Records Management. For additional guidance, see Volume 12, Chapter 5, Section 1.
Indicates new/changed information.
2)    AFS-50 will notify the Assistant Administrator for Policy, Planning, and International Aviation (API), the DOT, and the Department of State (DOS) of the proposal to request consultations and request comments. After comments are received and considered, either AFS-50 will proceed with consultations or the package will be returned to the originating IFO through the regional division after discussion.
Indicates new/changed information.

NOTE:  There are many variables that would cause the package to be returned, to include: more information is required from the originating IFO, additional information has been received which may change the IFO’s recommendation, a decision was made not to proceed with consultations, etc. If there is a lack of clarity on what to do with the returned package, then that question must be directed to AFS‑50. See subparagraph 12-331D1) for record retention requirements.

3)    If the final decision is made to proceed with consultations, AFS-50 will prepare a cable (a sensitive message) requesting consultations and forward it to the foreign government through the DOS.
Indicates new/changed information.
4)    Assuming the foreign government agrees to the consultations, a team led by AFS-50 will conduct the consultations and brief post staff on the results. AFS-50 will then prepare a decision paper regarding the proposed OpSpec amendment based on the results of the consultations. AFS-50 will make a final decision regarding the amendment in coordination with AFS-1, AGC-7, AGC-300, the IFO, and the regional division. The decision may be to proceed with the OpSpec(s) amendment as proposed, modify the amendment, or return the package to the IFO through the regional division for no action.
5)    Once the decision on the amendment is made, AFS-50 shall prepare a decision cable for transmission through the DOS Post to the foreign government notifying it of the decision regarding its air carrier’s OpSpec amendment.

NOTE:  DOS Post refers to the diplomatic mission which is either the embassy or consulate. It is the official means of transmitting sensitive communications between governments.

Indicates new/changed information.
6)    After the foreign government is notified of the decision to proceed with the OpSpec amendment, the IFO will be directed by AFS-50 through the regional division to issue the OpSpec amendment without further discussion, effective upon receipt by the foreign air carrier.

12-332    INACTIVE OPSPECS.

Indicates new/changed information.

A.     Inactive Status. The FAA, as an ICAO member state, has an obligation to establish a program with procedures for the surveillance of foreign air carrier operations while the foreign air carrier is within U.S. airspace and to take appropriate action when necessary to preserve safety. (Refer to ICAO Annex 6, part I, paragraph 4.2.2). The FAA sets out minimum surveillance requirements for foreign air carriers operating to the United States and foreign air carriers and foreign persons operating U.S.-registered aircraft solely outside the United States in Order 1800.56. At the responsible IFO’s discretion, foreign air carriers and foreign persons who have not conducted operations under part 129 for a period of 12 calendar-months (3 years for certain operators) will not be permitted to maintain their part 129 OpSpecs authorization. Refer to Order 1800.56 for details. After such prolonged inactivity, the FAA will not be able to determine whether the operator continues to meet the applicable requirements of part 129 on which the FAA granted the OpSpecs authorization. Safety in air commerce and the public interest may require an amendment, suspension, or termination of the foreign operator’s OpSpecs in accordance with § 129.11. For example, during the period of inactivity, the FAA would not have conducted:

1)    Any surveillance of the air carrier to ensure that it maintains compliance with the safety standards required by its OpSpecs (see paragraph 12-328), or
2)    An annual audit of the foreign air carrier or foreign person’s maintenance program approved under § 129.14 to ensure that the foreign air carrier or foreign person is maintaining the U.S.-registered aircraft it operates in accordance with a program approved by the Administrator in the OpSpecs.

NOTE:  Therefore, allowing an inactive air carrier to continue to hold part 129 OpSpecs would prevent the FAA from effectively carrying out its safety oversight responsibilities.

B.    Rendering OpSpecs Inactive. The conditions under which OpSpecs may be rendered inactive include the following:

1)    Scheduled Operations. The foreign air carrier or foreign person has not conducted any flights within or outside the United States for more than 12 calendar-months.
2)    Nonscheduled Operations. A nonscheduled foreign air carrier has not operated within the United States in the preceding:
a)    Twelve calendar-months for a foreign air carrier utilizing aircraft TC’d for 10 or more seats; or
b)    Three years for a foreign air carrier utilizing aircraft TC’d for 9 or fewer seats.
3)    Missing Documentation. The foreign air carrier or foreign person who operates U.S.‑registered aircraft has failed to provide the PIs with the requested documentation necessary for the PIs to conduct an annual desk audit of the operator’s FAA-approved maintenance program under § 129.14.
4)    Bankruptcy Proceedings. The foreign air carrier or foreign person is the subject of bankruptcy proceedings.
5)    Lack of Personnel, Facilities, or Equipment. The foreign air carrier or foreign person does not have the necessary personnel, facilities, or equipment to conduct the operations listed in its OpSpecs.

NOTE:  PIs must direct any questions regarding termination of OpSpecs (due to inactivity) to AFS-50.

Indicates new/changed information.

NOTE:  The responsible IFO must follow the process described in paragraph 12-333 for termination of a part 129 operator’s OpSpecs.

C.    Operations to the United States under 14 CFR Part 375. If the foreign air carrier intends to conduct last-minute charters to the United States and no longer holds FAA-issued OpSpecs, the foreign air carrier may make a request to, and obtain economic authority from, the DOT to conduct “occasional plane load charters” under part 375. (single requests, no more than 6 per year; or batch processed pre-qualified requests, no more than 12 per year, which the foreign air carrier can renew 60 days prior to expiration).

Indicates new/changed information.

12-333     PROCEDURE FOR AMENDMENT, SUSPENSION OR TERMINATION OF OPSPECS IN ACCORDANCE WITH SECTION 129.11—ACTIONS OF THE ADMINISTRATOR.

A.    Notice of Intent. When the responsible IFO determines that it is necessary to amend, suspend or terminate a foreign air carrier or foreign person’s FAA-issued OpSpecs, the responsible IFO must send a written notice (Notice of Intent) by certified mail to both the:

·    The foreign air carrier or foreign person specifying the Administrator’s intent to amend, suspend or terminate the operator’s OpSpecs; and

·    The foreign air carrier’s or foreign persons agent for service in the United States.

NOTE:  Once the foreign air carrier or foreign person’s agent for service in the United States has been served, as provided in § 129.11, the foreign air carrier or foreign person cannot claim (legally) that they did not receive proper notification. (See Volume 12, Chapter 2, Sections 2 and 3 for additional information.)

B.    Contents of the Notice of Intent. The Notice of Intent must:

1)    Describe the basis for the proposed adverse action (amendment, suspension, or termination).
2)    Provide the foreign air carrier or foreign person with a minimum of 30 calendar-days to submit written information, views and arguments to justify why the FAA should not take the action described in the Notice of Intent.
Indicates new/changed information.

C.    Decision Letter and Request for Reconsideration.

1)    At the end of the 30-day period, the responsible IFO must review the information the air carrier or foreign person submits and issue a decision (Decision Letter) on the proposed amendment, suspension or termination. The Decision Letter must state that the decision is final 30 days after the foreign air carrier or foreign person receives it, unless the foreign air carrier or foreign person submits a petition for reconsideration within that time (30 days after receipt).
Indicates new/changed information.
2)    The foreign air carrier or foreign person must submit the petition for reconsideration to AFS-1. If the foreign air carrier or foreign person submits a petition for reconsideration, the responsible IFO will not take any other action on the suspension, amendment or termination until the petition for reconsideration is reviewed, and AFS-1 issues a decision.
Indicates new/changed information.

D.    Emergency Actions.

1)    If the responsible IFO determines that an emergency exists that requires immediate action with respect to the amendment, suspension or termination, the decision will become final on the day the foreign air carrier or foreign person receives notice of the decision (Emergency Decision Notice). The Emergency Decision Notice must state the basis for the determination that an emergency exists (refer to § 129.11(g)).
2)    If the foreign air carrier or foreign person files a petition for reconsideration after receiving an Emergency Decision Notice, the amendment, suspension or termination action will continue in effect until AFS-1 issues a decision.

NOTE:  For additional guidance (field/HQ responsibilities and coordination) see paragraph 12-329 through paragraph 12-331. PIs may also find further details on termination of OpSpecs in § 129.11.

12-334    EMERGENCY AMENDMENT OF FOREIGN OPSPECS.

A.    After Legal Action. The emergency suspension or revocation of a foreign air carrier’s OpSpecs generally occurs after legal enforcement action. Order 2150.3 contains the information, policies, guidelines, and procedures to be followed by PIs when taking emergency enforcement action, including procedures for issuance of any emergency order.

B.    Safety or Security Situations. FAA may amend a foreign air carrier’s OpSpecs without consultations with the foreign government if the safety or security situation requires immediate action. In such cases, the amendment would become effective immediately upon receipt by the foreign air carrier. This process applies only when an emergency exists that requires immediate action with respect to safety and when the other procedures to amend OpSpecs are impractical or contrary to the public interest; or when the FAA has reasonable grounds to believe that the foreign carrier or the State of the Operator does not comply with the aviation security provisions of the bilateral air transport agreement. In the case of aviation security issues, the FAA may request immediate consultations with the CAA of the foreign air carrier. Failure to reach a satisfactory agreement within 15 days from the date of such request shall constitute grounds to withhold, revoke, limit, or impose conditions on the operating authorization and technical permissions (OpSpecs) of a foreign air carrier. In this case, as well, when required by an emergency, the FAA may take interim action within 15 days after the OpSpecs is issued.

1)    Example 1. An emergency amendment to a foreign air carrier’s OpSpecs would be justified if the foreign air carrier is knowingly operating an unairworthy aircraft or using unqualified crewmembers in the operation.
2)    Example 2. An emergency amendment to a foreign air carrier’s OpSpecs would be justified if the foreign air carrier is operating flights into the United States in violation of U.S. security requirements, including the requirements of its Transportation Security Administration (TSA) foreign air carrier security program.
Indicates new/changed information.

C.     FAA Coordination. An emergency amendment to a foreign air carrier’s OpSpecs requires close coordination between the IFO, the regional division and Washington HQ. Unless the gravity of the safety or security situation precludes prior notification, an effort will be made to first comply with the procedures in this order. When the gravity of the safety or security situation precludes prior notification in the interest of safety, the amendment should be made using the above procedures as soon as possible. AFS-50 can assist any coordination with the foreign government, which may include the following actions after being notified of the emergency action:

1)    Preparation of a cable describing the action taken and coordinate it with the API, DOT, and DOS.
2)    Sending the cable to DOS Post for delivery to the foreign government.

D.    Presidential Authority. Under 49 U.S.C. § 40106(b), when the U.S. President decides that the government of a foreign country is acting inconsistently with the Convention for the Suppression of Unlawful Seizure of Aircraft or that the government of a foreign country allows territory under its jurisdiction to be used as a base of operations for training of, or as a sanctuary for, or arms, aids, or abets, for terrorist organizations that knowingly uses the unlawful seizure, or the threat of an unlawful seizure, of an aircraft as an instrument of policy, the President may suspend the authority of:

1)    An air carrier or foreign air carrier to provide foreign air transportation to and from that foreign country;
2)    A person to operate aircraft in foreign air commerce to and from that foreign country;
3)    A foreign air carrier to provide foreign air transportation between the United States and another country that maintains air service with the foreign country; and
4)    A foreign person to operate aircraft in foreign air commerce between the United States and another country that maintains air service with the foreign country.
Indicates new/changed information.

E.    Duration of Suspension. The President may act under this subsection without notice or a hearing. The suspension remains in effect for as long as the President decides it is necessary to ensure the security of aircraft against unlawful seizure. In this case, the IFO shall, in coordination with Washington HQ, immediately notify the foreign carrier that its OpSpecs are suspended or revoked until further notice.

12-335    ACCIDENT, INCIDENT, NEAR MIDAIR COLLISIONS (NMAC), PILOT DEVIATION (PD) AND COMPLAINT INVESTIGATION. The current edition of FAA Order 8020.11, Aircraft Accident and Incident Notification, Investigation, and Reporting, prescribes the FAA procedures and responsibilities for aircraft after accident and incident notification, investigation, and reporting. Order 8900.1 Volume 7, Investigation, prescribes Flight Standards Service (AFS) procedures (to include forms to be filled, timelines, data collection, Program Tracking and Reporting Subsystem (PTRS) entries, notification, and techniques) for all investigations. FAA responsibilities remain unchanged when U.S.-registered or U.S.-manufactured aircraft are involved in an accident or incident in a foreign country. The degree of participation in the investigation, however, is subject to ICAO Annex 13 of the Convention, Aircraft Accident and Incident Investigation, Department of State (DOS) policy, and any special agreement that may apply between the United States and any particular country. Public complaints that directly relate to safety shall be investigated as incidents.

Indicates new/changed information. Indicates new/changed information.

A.    Accidents and Incidents. The FAA Investigator-in-Charge (IIC) for an accident or incident investigation involving foreign air carriers must notify the responsible International Field Office (IFO) with geographic responsibility for 14 CFR part 129. The IFO is responsible for informing the appropriate Civil Aviation Authority (CAA) and the foreign air carrier’s representative of the accident or incident, as well as assisting in the investigation, as required.

Indicates new/changed information.

B.    PDs, NMACs, and Occurrences. The IFO with geographic responsibility for issuing part 129 foreign air carrier OpSpecs maintains the responsibility for investigating PDs, NMACs, and/or occurrences involving foreign air carriers operating under 14 CFR parts 129 and 375 (occasional plane load charters). If the responsible IFO does not have the resources to complete an investigation, then the IFO should attempt to transfer responsibility for completion of the investigation to another IFO before requesting additional resources from AFS-50. IFOs must copy AFS-54, or another branch as assigned, on all transfer requests. If the responsible IFO is unable to transfer responsibility for the investigation among the IFOs, then they must contact AFS-50 for additional resources. The office which completes the investigation is responsible for completing all forms relating to the investigation.

C.    Flight Standards District Office (FSDO) and Responsible IFO. The FSDO in whose area the PD, NMAC, or occurrence took place will notify the responsible IFO and coordinate to assist as necessary to obtain data (to include site visits, local charts, pictures, and witness interviews) as needed by the IFO. However, the IFO is responsible for completing all required documentation, except when an agreement was made with management from AFS-50 and the region responsible for the FSDO that the local FSDO would complete the investigation. All letters or communications with a foreign state civil authority must be made by the responsible IFO.

Indicates new/changed information.

NOTE:  Even when operating a foreign aircraft, operators must follow all applicable U.S. air operating regulations to include 14 CFR parts 91 and 129, as well as FAA-issued OpSpecs. The basic investigation process is the same as that followed for U.S. aircraft and operators. See FAA Order 8900.1 Volume 14 and Order 2150.3, as revised, for additional details on compliance and enforcement.

RESERVED. Paragraphs 12-336 through 12-348.