PART 861—DEPARTMENT OF DEFENSE COMMERCIAL AIR TRANSPORTATION QUALITY AND SAFETY REVIEW PROGRAM Authority: 10 U.S.C. 2640, 8013. Source: 67 FR 65698, Oct. 28, 2002, unless otherwise noted. § 861.1 References. The following references apply to this part: (a) 10 U.S.C. 2640, Charter Air Transportation of Members of the Armed Forces. (b) Department of Defense Directive 4500.53, Department of Defense Commercial Air Transportation Quality and Safety Review Program. § 861.2 Purpose. Department of Defense Directive 4500.53, Department of Defense Commercial Air Transportation Quality and Safety Review Program, § 861.3 Definitions. (a) Air carrier. (b) Air transportation services. (c) Civil Aviation Authority (CAA). (d) Code sharing. (e) DOD approval. (f) DOD air carrier safety and quality review process. (1) DOD Air Carrier Survey and Analysis Office; (2) DOD Commercial Airlift Review Board (CARB); (3) Commander-in-Chief, U.S. Transportation Command, or USCINCTRANS; and (4) Secretary of Defense. ( Note: (g) Federal Aviation Administration (FAA) International Safety Assessment (IASA) program and categories. (1) Category 1—Does comply with ICAO standards. (2) Category 2—Does not comply with ICAO standards. (3) Non-rated. (h) GSA City Pair Program. (i) Group travel. (j) Letter of Warning. Letter of Warning (k) On-site Capability Survey. (l) Operational support services. (m) Performance assessments. (n) Performance evaluations. (o) Preflight safety inspection. (p) Suspension. (1) Remain in effect until the air carrier furnishes satisfactory evidence that the conditions causing the suspension have been remedied and has been reinstated by the CARB, or; (2) Be for a fixed period of time as determined at the discretion of the CARB. (q) Temporary nonuse. (r) Voluntarily provided safety-related information. § 861.4 DOD air transportation quality and safety requirements. (a) General. (b) Applicability. (2) Foreign air carriers performing portions of GSA City Pair routes awarded to U.S. air carriers under a code-sharing arrangement, as well as foreign air carriers providing individually-ticketed passenger service to DOD personnel traveling on official business, may be subject to limited oversight and review pursuant to § 861.6. (3) The inspection and oversight requirements, as well as the quality and safety criteria of this part may, on a case-by-case basis and at the discretion of the CARB or higher authority, be applied to air carriers seeking to provide or providing operational support services as defined in § 861.3(l). (4) The inspection and oversight requirements of this part do not apply to aircraft engaged in medical transport services if procured under emergency conditions to save life, limb or eyesight. Likewise, the inspection and oversight requirements of this part are not applicable when DOD is not involved in the procurement of the medical transportation services. For example, when specific medical treatment is obtained on an individual basis by or for DOD personnel with medical transportation provided, as needed, at the direction of the non-DOD medical care giver. This includes situations where DOD, through TRICARE or otherwise, pays for such transportation as part of the costs of medical services provided. (c) Scope and nature of the evaluation program Evaluation requirement. (2) Office of primary responsibility. https://public.scott.af.mil/hqamc/dob/index.htm. (3) Items considered in the evaluation process. (d) Status of aircraft performing services for DOD. (e) Evaluation requirements. (1) Quality and safety requirements—prior experience. (i) “12 months” refers to the 12 calendar months immediately preceding the request for DOD approval. (ii) “Continuous” service means the carrier must have performed revenue-generating services of the nature for which DOD approval is sought, as an FAA part 121, 125, 127, or 135 (14 CFR 121, 125, 127, or 135) air carrier (or foreign CAA equivalent if appropriate) on a recurring, substantially uninterrupted basis. The services must have occurred with such frequency and regularity as to clearly demonstrate the carrier's ability to perform and support sustained, safe, reliable, and regular services of the type DOD is seeking. Weekly flight activity is normally considered continuous, while sporadic or seasonal operations (if such operations are the only operations conducted by the carrier) may not suffice to establish a carrier's ability to perform and support services in the sustained, safe, reliable, and regular manner required by DOD. The ability of a carrier to perform services of the type sought by DOD may be called into question if there have been lengthy periods of time during the qualifying period in which the carrier has not operated such services. Consequently, any cessation, or nonperformance of the type of service for which approval is sought may, if it exceeds 30 days in length during the qualifying period and depending on the underlying factual circumstances, necessitate “restarting” the 12-month continuous service period needed to obtain DOD approval. (iii) “Equivalent to the services sought by DOD” means service offered to qualify for DOD approval must be substantially equivalent to the type of service sought by DOD. The prior experience must be equivalent in difficulty and complexity with regard to the distances flown, weather systems encountered, international and national procedures, the same or similar aircraft, schedule demands, aircrew experience, number of passengers handled, frequency of operations, and management required. There is not a set formula for determining whether a particular type of service qualifies. The performance of cargo services is not considered to be “substantially equivalent” to the performance of passenger services, and may not be used to meet the 12 continuous months requirement for passenger services. However, when a carrier already providing cargo services to DOD applies to carry passengers, the CARB may consider the carrier's cargo performance and experience in assessing whether a carrier is qualified to carry passengers on a specific type or category of aircraft, over certain routes or stage lengths, or under differing air traffic control, weather, or other conditions. The following examples are illustrative and not intended to reflect or predict CARB action in any given case: Example 1: Coyote Air has operated commercial passenger commuter operations in the U.S. for a number of years flying a variety of twin-engine turboprop aircraft. They have also been a DOD-approved cargo carrier, providing international cargo services using DC-10 freighter aircraft. Coyote Air purchases a passenger version DC-10, and seeks DOD approval to provide international passenger service for DOD. The CARB may decide that although Coyote Air has provided passenger services for 12 continuous months, those services are not substantially equivalent to those being sought by DOD. While the carrier may have considerable operational experience with the DC-10, its commuter passenger operations are not substantially equivalent to the service now proposed—international passenger services on large jet aircraft. Example 2: Acme Air has been a DOD-approved cargo carrier for several years, operating domestic and international missions with MD-11 freighter aircraft. At the same time, Acme has been performing commercial international passenger services with B-757 aircraft. Acme Air purchases a MD-11 passenger aircraft and applies to perform passenger services for DOD using the MD-11. Assuming Acme has performed B-757 passenger service for 12 continuous months immediately preceding its application, the CARB may consider these passenger services substantially equivalent to those proposed since both involve the operation of large multi-engine aircraft in an international environment. The CARB may also consider Acme's operational history with its MD-11 freighter aircraft in determining whether the carrier is competent to provide MD-11 passenger service in the same environment. (iv) Once approved by DOD, an air carrier's failure to maintain continuous operations of the type for which approval has been granted may, at the discretion of the CARB, be grounds for nonuse or suspension under this part, rendering the carrier ineligible for DOD business during the nonuse or suspension period. Any cessation or nonperformance of the type of service for which approval has been obtained may, if it exceeds 30 days in length and depending on the circumstances, provide the basis for the CARB to take appropriate action. (2) Quality and safety requirements—air carrier management. (3) Quality and safety requirements—operations Flight safety. (ii) Flight operations. (iii) Flight crew hiring. (iv) Aircrew training. e.g., (v) Captain upgrade training. (vi) Aircrew scheduling. (vii) In-flight performance. (viii) Operational control/support. (ix) DOD charter procedures. (4) Quality and safety requirements—maintenance. (i) Maintenance personnel. (ii) Quality assurance. (iii) Maintenance inspection activity. (iv) Maintenance training. (v) Maintenance control. (vi) Aircraft maintenance program. (vii) Maintenance records. (viii) Aircraft appearance. (ix) Fueling and servicing. (x) Maintenance manuals. (xi) Maintenance facilities. (5) Quality and safety requirements—security. (6) Quality and safety requirements—specific equipment requirements. (7) Quality and safety requirements—oversight of commuter or foreign air carriers in code-sharing agreements. (8) Quality and safety requirements—aeromedical transport requirements. (ii) Portable Electronic Devices (PEDs) used in the provision of medical services or treatment on board aircraft are tested for non-interference with aircraft systems and the results documented to show compliance with 14 CFR 91.21 or other applicable CAA regulations. If there are no CAA regulations, actual use/inflight testing of the same or similar model PED prior to use with DOD patients is the minimum requirement. § 861.5 DOD Commercial Airlift Review Board procedures. (a) This section establishes procedures to be used by the DOD when, in accordance with references in§ 861.1(a) and (b): (1) An air carrier is subject to review or other action by the DOD Commercial Airlift Review Board, or CARB; (2) A warning, suspension, temporary nonuse, or reinstatement action is considered or taken against a carrier by the CARB; or (3) An issue involving an air carrier is referred by the CARB to higher authority for appropriate action. (b) These procedures apply to air carriers seeking to provide or already providing air transportation services to DOD. It also applies to U.S. or foreign air carriers providing operational support services to DOD which, on a case-by-case basis and at the discretion of the CARB or higher authority, require some level of oversight by DOD. (c) An air carrier's sole remedy in the case of a suspension decision by the CARB is the appellate process under this part. (d) Quality and safety issues relating to air carriers used, or proposing to be used, by DOD, per reference (b) must be referred to the CARB for appropriate disposition. (e) CARB responsibilities. (f) CARB administrative procedures Membership. (2) Decisions. (3) Meetings of the CARB. (g) CARB operating procedures Placing an air carrier into temporary nonuse. (ii) The carrier shall be promptly notified of the temporary nonuse determination and the basis therefore. (iii) Temporary nonuse status terminates automatically if suspension proceedings are not commenced, as set out in paragraph (g)(2) of this section, within 30 days of inception unless the CARB and air carrier mutually agree to extend the temporary nonuse status. (2) Suspension of an air carrier. (ii) If the CARB determines that suspension may be appropriate, it shall notify the air carrier that suspension action is under consideration and of the basis for such consideration. The air carrier will be offered a hearing within 15 days of the date of the notice, or other such period as granted by the CARB, at which the air carrier may be present and may offer evidence. The hearings shall be as informal as practicable, consistent with administrative due process. Formal rules of evidence do not apply. (iii) The types of evidence which may be considered includes, but is not limited to: (A) Information and analysis provided by the DOD Air Carrier Survey and Analysis Office. (B) Information submitted by the air carrier. (C) Information relating to action that may have been taken by the air carrier to: ( 1 ( 2 (D) Other matters the CARB deems relevant. (iv) The CARB's decisions on the reception or exclusion of evidence shall be final. (v) Air carriers shall have the burden of proving their suitability to safely perform DOD air transportation and/or operational support services by clear and convincing evidence. (vi) After the conclusion of such hearing, or if no hearing is requested and attended by the air carrier within the time specified by the CARB, the CARB shall consider the matter and make a final decision whether or not to suspend the air carrier or to impose such lesser sanctions as appropriate. The air carrier will be notified of the CARB's decision. (3) Reinstatement. (ii) The carrier has the burden of proving by clear and convincing evidence that reinstatement is warranted. The air carrier must satisfy the CARB that the deficiencies, which led to suspension, have been corrected and that action has been implemented to preclude the recurrence of similar deficiencies. (iii) Air carrier evidence in support of reinstatement will be provided in a timely manner to the CARB for its review. The CARB may independently corroborate the carrier-provided evidence and may, at its option, convene a hearing and request the participation of the air carrier. (4) Appeal of CARB decisions. (ii) Air carriers shall not be entitled to a de novo hearing or personal presentation before the appellate authority. (iii) The decision of the appellate authority is final and is not subject to further administrative review or appeal. (5) Referral of issues to higher authorities. § 861.6 DOD review of foreign air carriers. Foreign air carriers providing or seeking to provide services to DOD shall be subject to review and, if appropriate, approval by DOD. Application of the criteria and requirements of this part and the degree of oversight to be exercised by DOD, if any, over a foreign air carrier depends upon the type of services performed and, in some instances, by the quality of oversight exercised by the foreign air carrier's CAA. The scope and frequency of the review of any given foreign air carrier under this part will be at the discretion of the CARB or higher authority. (a) Foreign air carriers seeking to provide or providing air transportation services under a contract or Military Air Transportation Agreement with DOD, or pursuant to another arrangement entered into by, or on behalf of, DOD. (b) Foreign air carriers providing passenger services under the GSA City Pair Program. (c) Other foreign air carriers carrying individually ticketed DOD passengers on official business. (d) Foreign air carriers from countries in which the CAA is not in compliance with ICAO standards. (e) On-site surveys. (f) Foreign carriers providing operational support services to DOD. § 861.7 Disclosure of voluntarily provided safety-related information. (a) General. (1) The disclosure of the information would, in the future, inhibit an air carrier from voluntarily providing such information to DOD or another Federal agency for the purposes of this part or for other air safety purposes; and (2) The receipt of such information generally enhances the fulfillment of responsibilities under this part or other air safety responsibilities involving DOD or another Federal agency. (b) Processing requests for disclosure of voluntarily provided safety-related information. (c) Disclosure of voluntarily provided safety-related information to other agencies.