[Federal Register Volume 67, Number 116 (Monday, June 17, 2002)]
[Proposed Rules]
[Pages 41302-41304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15195]
[[Page 41301]]
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Part II
Department of Transportation
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Federal Aviation Administration
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14 CFR Part 47
Aircraft Registration Requirements; Clarification of ``Court of
Competent Jurisdiction''; Proposed Rule
Federal Register / Vol. 67, No. 116 / Monday, June 17, 2002 /
Proposed Rules
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 47
[Docket No. FAA-2002-12377; Notice No. 02-10]
RIN 2120-AH75
Aircraft Registration Requirements; Clarification of ``Court of
Competent Jurisdiction''
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: FAA proposes to amend language in the aircraft registration
regulations governing aircraft last previously registered in a foreign
country. This proposal is needed to clarify the term ``court of
competent jurisdiction.'' This action is intended to clearly describe
what constitutes satisfactory evidence to the Administrator that
foreign registration of an aircraft has ended or is invalid.
DATES: Send your comments on or before July 17, 2002.
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 FAA-
2002-12377 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 to http://dms.dot.gov. You may review the public docket containing comments to
these proposed regulations in person in the Dockets Office between 9
a.m. and 5 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: Julie A. Stanford, Aircraft
Registration Branch, AFS-750, Civil Aviation Registry, Flight Standards
Service, Federal Aviation Administration, Post Office Box 25504,
Oklahoma City, OK 73125; Telephone (405) 954-3131.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed action by submitting such written data, views, or arguments as
they may desire. Comments relating to the environmental, energy,
federalism, or economic impact that might result from adopting the
proposals in this document also are invited. Substantive comments
should be accompanied by cost estimates. Comments must identify the
regulatory docket or notice number and be submitted in duplicate to the
DOT Rules Docket address specified above.
All comments received, as well as a report summarizing each
substantive public contact with FAA personnel concerning this proposed
rulemaking, will be filed in the docket. The docket is available for
public inspection before and after the comment closing date.
All comments received on or before the closing date will be
considered by the Administrator before taking action on this proposed
rulemaking. Comments filed late will be considered to the extent
possible without incurring expense or delay. The proposals in this
document may be changed in light of the comments received.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this document must include a pre-addressed,
stamped postcard with those comments on which the following statement
is made: ``Comments to Docket No. FAA-2000-12377.'' The postcard will
be date stamped and mailed to the commenter.
Availability of Rulemaking Documents
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 document number of the item
you wish to view.
You can also get an electronic copy using the Internet through
FAA's web page at http://www.faa.gov/avr/arm/nprm/nprm.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 docket number, notice number, or amendment number
of this rulemaking.
Background
On August 9, 1946, the United States became a party to the
Convention on International Civil Aviation, 61 Stat. 1180 (Chicago
Convention). Under the Chicago Convention, the contracting parties
agreed on certain principles and arrangements so that international
civil aviation could be developed in a safe and orderly manner.
In considering the orderly registration of aircraft, Chapter III--
NATIONALITY OF AIRCRAFT, Article 17 of the Chicago Convention, provides
that ``aircraft have the nationality of the State in which they are
registered.'' Therefore, ``an aircraft cannot be validly registered in
more than one State, but its registration may be changed from one State
to another'' (Article 18). The rules for accomplishing a change in
registration mandate that ``the registration or transfer of
registration of aircraft in any contracting State shall be made in
accordance with its laws and regulations'' (Article 19).
Before registering an aircraft, an importing State must first
ensure that the exporting State has removed the aircraft form its
registry. Upon request, the contracting State of last registration, in
accordance with Article 21 of the Chicago Convention, furnishes
information to the importing State that the registration of a specific
aircraft has ended and the aircraft is no longer on that State's
registry.
In promulgating Sec. 47.37, the Administrator determined that for
purposes of United States registration, satisfactory evidence of
termination of foreign registration included ``a final judgment or
decree of a court of competent jurisdiction that determines, under the
law of the country concerned, that the registration has in fact become
invalid'' (14 CFR 47.37(b)(2)).
The Administrator has interpreted the phrase ``court of competent
jurisdiction'' to be a court of the country where the aircraft was last
registered. In each of two recent cases (IAL Aircraft Holding, Inc. v.
Federal Aviation Administration, 206 F.3d 1042, vacated, 216 F.3d 1304
(11th Cir. 2000) [hereinafter referred to as IAL Aircraft] and Air One
Helicopters, Inc. v. Federal Aviation Admin., 86 F.3d 880 (9th Cir.
1996) [hereinafter referred to as Air One]), a divided panel of the
court interpreted the phrase ``court of competent jurisdiction''
differently from the FAA. In Air One, the Ninth Circuit implicitly
decided that a United States
[[Page 41303]]
court of appeals was itself a ``court of competent jurisdiction''
capable of rejecting the position of Spanish registry officials that
the aircraft's Spanish registry was valid. In IAL Aircraft, the
Eleventh Circuit held expressly that a state trial court having
jurisdiction over the aircraft in rem was a ``court of competent
jurisdiction'' that could determine that a Brazilian registration was
invalid, despite Brazil's continued insistence that its registration
remained valid. On July 6, 2000, the Eleventh Circuit vacated its
earlier decision on the grounds that the court lacked Article III
jurisdiction at the time the decision was issued, in light of IAL
Aircraft's undisclosed sale of the aircraft while the case was pending
before the court.
The FAA does not agree with these decisions rejecting its
interpretation of its own regulation, an interpretation that, under
governing principles of administrative law, should have been given
deference by the courts. However, the FAA does not believe that
adhering to its position and continuing to litigate is worth the
potential harm done to international relations by possible additional
judicial decisions forcing the FAA to register aircraft that remain
under foreign registration. These judicial decisions may simply
``encourage foreign courts to rule, in subsequent cases, that aircraft
registered by the FAA in the United States are in fact `validly'
registered here'' (Air One, O'Scannlain, J., dissenting).
General Discussion of the Proposal
The panel majority in IAL Aircraft suggested the FAA consider
amending or clarifying the regulation. Accordingly, the FAA is
proposing in this NPRM to amend Sec. 47.37(b)(2) to clarify the phrase
``court of competent jurisdiction.'' The proposed amendment would add
language to Sec. 47.37(b)(2) to more clearly describe that the ``court
of competent jurisdiction'' must be a court of the country where the
aircraft was last registered. As discussed under the background
section, this amendment is necessary for FAA compliance with the
obligations contained in the Chicago Convention.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. We have determined that there
are no new information collection requirements associated with this
proposed rule.
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 this proposed regulation. As stated
previously, this amendment is necessary for FAA compliance with the
agreements contained in the Convention.
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 the costs.
The issues addressed by the proposed change occur infrequently. FAA
is aware of only two cases where judgments were pursued and obtained in
countries other than where the aircraft was last registered (IAL
Aircraft Holding, Inc. v. Federal Aviation Administration, 206 F.3d
1042, 1045, vacated, 216 F.3d 1304 (11th Cir. 2000) and Air One
Helicopters, Inc. v. Federal Aviation Admin., 86 F.3d 880 (9th Cir.
1996). This would indicate that any other similar situations would have
been in accordance with FAA's interpretation of the regulation, i.e.,
the judgment was obtained in the country where the aircraft was last
registered.
If adopted, the proposed change would affect only those few cases
which otherwise might have been filed within the United States rather
than in the country where the aircraft was last registered. While there
may be some additional costs associated with those cases, such costs
would vary according to the country of last registration and in some
cases may be less than those normally associated with obtaining a
proper judgment from a court of the United States.
The proposed change offers the benefits of compliance with
international treaty (Convention on International Civil Aviation, 61
Stat. 1180) and Section 44102 of Title 49, United States Code. The
benefits of complying with international law appear to justify
additional costs, if any, associated with obtaining a judgment from a
court in the country where the aircraft was last registered.
Accordingly, 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 evaluation,'' which is the written cost/benefit analysis
ordinarily required for all rulemaking proposals under the DOT
Regulatory Policies and Procedures. We do not need to do the latter
analysis where the economic impact of a proposal is minimal.
Economic Evaluation, Regulatory Flexibility Determination,
International Trade Impact Assessment, and Unfunded Mandates Assessment
Proposed changes to Federal regulations must undergo several
economic analyses. First, Executive Order 12866 directs that each
Federal agency shall propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies
to analyze the economic impact of regulatory changes on small entities.
Third, the Trade Agreements Act (19 U.S.C. section 2531-2533) prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. In developing U.S.
standards, this Trade Act also requires agencies to consider
international standards and, where appropriate, use them as the basis
of U.S. standards. And fourth, the Unfunded Mandates Reform Act of 1995
requires agencies to prepare a written assessment of the costs,
benefits and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local or
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year (adjusted for inflation.)
However, for regulations with an expected minimal impact above-
specified analyses are not required. The Department of Transportation
Order DOT 2100.5 prescribes policies and procedures for simplification,
analysis, and review of regulations. It is determined that the expected
impact is so minimal that the proposal does not warrant a full
Evaluation as statement to that effect and the basis for it is included
in proposed regulation. Since this final rule revises and clarifies FAA
rulemaking procedures, the expected outcome is to have a minimal impact
with positive net benefits. The FAA requests comments with supporting
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justification regarding the FAA determination of minimal impact.
Regulatory Flexibility Determination
The Regulatory Flexibility Act (RFA) of 1980 established ``as
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 RFA requires agencies to
solicit and consider flexible regulatory proposals and to explain the
rationale for their actions. The RFA 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 number of small
entities. If the determination is that it will, the agency must prepare
a regulatory flexibility analysis described in the RFA. 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
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 reasons should be clear.
The proposed rule clarifies the term ``court of competent
jurisdiction'' to clearly describe what constitutes satisfactory
evidence to the Administrator that foreign registration of an aircraft
has ended or is invalid. Its economic impact is minimal. Therefore, we
certify that this proposed action would 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 addition, consistent with the Administration's belief in
the general superiority and desirability of free trade, it is the
policy of the Administration to remove or diminish to the extent
feasible, barriers to international trade, including, both barriers
affecting the export of American goods and services to foreign counties
and barriers affecting the import of foreign goods and services into
the United States. In accordance with the above statute and policy, the
FAA has assessed the potential affect of this proposed rule and has
determined that it would have negligible impact and therefore no affect
on any trade-sensitive activity.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (the Act), enacted as
Public Law 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 the Act requires each
Federal agency to prepare a written statement assessing the effects of
any Federal mandate on a proposed or final 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.'' The proposed rule does not contain
such a mandate. Therefore, the requirements of Title II of the Unfunded
Mandates Reform Act of 1995 do not apply.
Executive Order 13132, Federalism
The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. We have determined that
this action would not have a substantial direct effect on the States,
on 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 have determined that this notice of
proposed rulemaking would 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 proposed 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) Public Law 94-163,
as amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been
determined that the proposal is not a major regulatory action under the
provisions of the EPCA.
List of Subjects in 14 CFR Part 47
Aircraft, Reporting and recordkeeping requirements.
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend part 47 of Title 14, Code of Federal
Regulations, as follows:
PART 47--AIRCRAFT REGISTRATION
1. The authority citation for part 47 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113-40114, 44101-44108, 44110-
44111, 44703-44704, 44713, 45302, 46104, 46301; 4 U.S.T. 1830.
2. Amend Sec. 4737 by revising paragraph (b)(2) to read as follows:
Sec. 47.37 Aircraft last previously registered in a foreign country.
* * * * *
(b) * * *
(2) A final judgment or decree of a court of competent jurisdiction
of the foreign country, determining that, under the laws of that
country, the registration ahs become invalid.
Dated: Issued in Washington, DC, on May 17, 2002.
Louis C. Cusimano,
Acting Director, Flight Standards Service.
[FR Doc. 02-15195 Filed 6-14-02; 8:45 am]
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