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###### Department of Transportation

###### Federal Aviation Administration 

          - 14 CFR Part 61 
          - [Docket No. FAA-2004-19630; Amendment No. 61-108] 
          - RIN 2120-AI38 

# AGENCY:

Federal Aviation Administration (FAA), DOT. 

# ACTION:

Final rule; compliance date and correction. 

# SUMMARY:

                        The FAA is establishing a compliance date for the final rule published in the                         **Federal Register**                         on August 4, 2005. The rule revised the pilot certification regulations to establish a second-in-command (SIC) pilot type rating and associated qualifying procedures. This action is necessary to give affected pilots time to prepare and file the paperwork necessary to obtain the SIC pilot type rating. We also are correcting the amendment number of the final rule.                     

# DATES:

*Effective date:*                         The final rule's effective date remains September 6, 2005.                     

*Compliance date:*                         Pilots acting as a second in command and who will be flying outside U.S. domestic airspace and landing in a foreign country must hold the appropriate SIC pilot type rating no later than June 6, 2006.                     

# FOR FURTHER INFORMATION CONTACT:

                        John D. Lynch, Certification Branch, AFS-840, General Aviation and Commercial Division, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-3844 or via the Internet at:                         *john.d.lynch@faa.gov*.                     

# SUPPLEMENTARY INFORMATION:

## Availability of Rulemaking Documents 

You can get an electronic copy of this document using the Internet by: 

                    (1) Searching the Department of Transportation's electronic Docket Management System (DMS) Web page (                    *http://dms.dot.gov/​search*);                 

                    (2) Visiting the FAA's Regulations and Policy Web page at                     *http://www.faa.gov/​regulations_​policy/​*; or                 

                    (3) Accessing the Government Printing Office's Web page at                     *http://www.gpoaccess.gov/​fr/​index.html*.                 

You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking. 

## 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 SBRFA on the Internet at our site,                     *http://www.faa.gov/​avr/​arm/​sbrefa.cfm*.                 

## Authority for This Action 

The Department of Transportation (DOT) has the responsibility, under the laws of the United States, to develop transportation policies and programs that contribute to providing fast, safe, efficient, and convenient transportation (49 U.S.C. 101). The Federal Aviation Administration (FAA) is an agency of DOT. The Administrator of the FAA has general authority to issue rules regarding aviation safety (49 U.S.C. 106(g) and 44701). When an individual is found to be qualified for, and physically able to perform, certain duties, including those associated with flying and navigating an aircraft, the FAA issues an airman certificate. The airman certificate must specify the capacity in which the holder of the certificate may serve with respect to an aircraft (49 U.S.C. 44703). It is relevant to this rulemaking to also point out that, in carrying out their duties, the Secretary of Transportation and the Administrator of the FAA must act consistently with obligations of the United States Government under an international agreement (49 U.S.C. 40105). 

This action establishes a compliance date for the SIC pilot type rating and associated qualifying procedures. The compliance date is the date that those affected by a rule must begin to follow it. In the preamble to the amendments adopted on August 4, 2005, the FAA found the amendments to be a reasonable and necessary exercise of our rulemaking authority and obligations. We now find that establishing a compliance date, by extension, also is a reasonable and necessary exercise of our rulemaking authority and obligations. 

## Background 

                    On August 4, 2005, the FAA amended its regulations to provide for issuance of a pilot type rating for SIC privileges when a person completes the SIC pilot familiarization training set forth under 14 CFR 61.55(b), an FAA-approved SIC training curriculum under 14 CFR parts 121 or 135, or a proficiency check under 14 CFR part 125. See 70 FR 45263. The amendments adopted on August 4, 2005, are based on a notice of proposed rulemaking (NPRM) published in the                     **Federal Register**                     on November 16, 2004. See 69 FR 67258.                 

The amendments require pilots acting as second in command and who plan to fly outside U.S. airspace and land in foreign countries to obtain the SIC pilot type rating. The amendments also establish two procedures for obtaining the SIC pilot type rating. The effective date of the amendments is September 6, 2005. The effective date is the date the amendments affect the current Code of Federal Regulations (CFR). 

## Establishing a Compliance Date 

                    Although we received two comments on the November NPRM asking for 6 to 18 months for pilots to comply with the requirement to obtain a SIC pilot type rating,[1]                                          the FAA believed that 30 days (by September 6, 2005) was sufficient time. Additionally, the FAA has been put on notice by several foreign civil aviation authorities that they intend to begin enforcing the type-rating requirement; thus we believe that the sooner the rule becomes effective and U.S. pilots receive their SIC pilot type ratings, the sooner U.S. flight crews will be able to operate internationally unimpeded.                 

                    The Agency, however, has reevaluated the time necessary for pilots to comply with the amendments. Since                           ( print page 53561)                        the final rule was published, we have received information from the airlines and trade associations demonstrating that it will not be possible to comply with the rule by the effective date of September 6, 2005. The pilots who need the SIC pilot type rating have to prepare and file the necessary paperwork, and the FAA and its designees need time to process the forms and issue the ratings. In spite of general agreement that the rule is needed, it simply is physically impossible for everyone to comply by September 6, 2005. This is particularly true of the major airlines, which employ thousands of pilots.                 

The FAA, therefore, has reconsidered the position we originally took in responding to the comments on the November NPRM. We believe it will benefit no one to place a potentially large number of pilots in technical noncompliance with the regulations. The airlines have a duty to comply with the regulations. They could not, in good faith, assign a pilot to an international flight knowing that the pilot did not possess a required type rating. This situation could result in disruption of international freight and passenger service. 

For this reason, we are establishing a compliance date for the August amendments. The compliance date is June 6, 2006. A compliance date, in contrast to an effective date, is the date that those affected by the rule must begin to follow it. Thus, pilots acting as a second in command and who will be flying outside U.S. domestic airspace and landing in a foreign country must hold the appropriate SIC pilot type rating no later than June 6, 2006. This period of nine additional months should be sufficient to enable affected pilots to obtain the SIC pilot type rating. This is particularly true in light of the fact that the August amendments incorporate several changes to what was originally proposed that streamline the processes. 

As we stated in our response to the comments on this issue, it is important for the August amendments to take effect as soon as possible. Those amendments put in place the procedure that pilots will follow to obtain the SIC pilot type rating. It would serve no purpose to delay the effective date of the rule. For this reason, the effective date of the rule is unaffected by this action and remains September 6, 2005. 

## Good Cause for Foregoing Public Notice and Comment 

Section 553(b)(3)(B) of the Administrative Procedures Act, 5 U.S.C. 553(b)(3)(B), authorizes agencies to dispense with certain notice procedures for rules when they find “good cause” to do so. Under section 553(b)(3)(B), the requirements of notice and opportunity for comment do not apply when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” 

In this case, the FAA finds that notice and public comment are unnecessary and contrary to the public interest. This action establishes a compliance date for the amendments adopted on August 4, 2005. We adopted those amendments using the public notice and comment procedure. That the public had ample notice and opportunity to comment is indisputable since we received comments on the issue of when affected pilots would have to comply. As a result, we find that another round of public notice and comment is unnecessary. Additional public notice and comment is also contrary to the public interest since it would delay establishment of a compliance date, which could result in pilots not obtaining the necessary pilot type rating in a timely manner. This, in turn, could disrupt international freight and passenger service. 

## 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. 

## Paperwork Reduction Act 

As required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), the FAA submitted a copy of the amended information collection requirements in the August 4, 2005, final rule to the Office of Management and Budget for its review. OMB approved the collection of this information and assigned OMB Control Number 2120-0693. 

This action establishes a compliance date for the amendments adopted on August 4, 2005, which requires pilots who need to obtain an SIC rating to use the existing Airman Certificate and/or Rating Application, FAA Form 8710-1. An agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number. 

## 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 Act 

The Regulatory Flexibility Act (RFA) of 1980, 5 U.S.C. 601-612, directs the FAA to fit regulatory requirements to the scale of the business, organizations, and governmental jurisdictions subject to the regulation. We are required to determine whether a proposed or final action will have a “significant economic impact on a substantial number of small entities” as defined in the Act. If we find that the action will have a significant impact, we must do a “regulatory flexibility analysis.” 

This action establishes a compliance date for the amendments adopted on August 4, 2005. Its economic impact, beyond that of the amendments adopted on August 4, 2005, is minimal. Therefore, we certify that this action will not have a significant economic impact on a substantial number of small entities. 

## Trade Impact Assessment 

                    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                           ( print page 53562)                        barriers affecting the export of American goods and services to foreign countries 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 effect of this final rule and has determined that it will impose the same costs on domestic and international entities and, thus, has a neutral trade impact. 

## Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act of 1995 (the Act), 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 the Act 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.” The FAA currently uses an inflation-adjusted value of $120.7 million in lieu of $100 million. 

This final 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 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 have determined that this final rule does not have federalism implications. 

## Environmental Analysis 

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this proposed rulemaking action qualifies for the categorical exclusion identified in paragraph 307k and involves no extraordinary circumstances. 

## Regulations That Significantly Affect Energy Supply, Distribution, or Use 

The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. 

## Correction 

Under the final rule, FR Doc. 05-15376, published on August 4, 2005 (70 FR 45263), make the following correction: 

1. On page 45264, in column 1 in the heading section, beginning on line 4, correct “Amendment No. 05-113” to read “Amendment No. 61-113”. 

Issued in Washington, DC on September 2, 2005. 

Marion C. Blakey, 

Administrator. 

# Footnotes

1.                             The National Air Carrier Association recommended that the FAA provide a minimum of six months from issuing the final rule to full implementation and revision of its ICAO difference because its member airlines need to provide time for the initial processing of the several hundred thousand applications required for this SIC pilot type rating. The representative of American Airlines requested 18 months to complete the initial certification process for its initial 3,066 pilots that are not currently type rated.                    
        Back to Citation      

[FR Doc. 05-17896 Filed 9-6-05; 11:26 am] 

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