Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC tel fax

Transcription

1 Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC tel fax The Honorable Anthony Foxx Secretary Department of Transportation 1200 New Jersey Ave, SE Washington DC Kenneth P. Quinn tel kenneth.quinn@pillsburylaw.com Re: Request to Reopen United States Aircraft Registry Dear Secretary Foxx: On behalf of the Supporting Entities 1 listed below, we are writing to request that your Department reclassify activities undertaken by the FAA s Aircraft Registration Branch ( U.S. Registry ) as excepted activities necessary to restore the full functioning of the office during the current lapse in appropriations. 2 The FAA has stated repeatedly and publicly in recent policy clarifications and rulemakings that accurate information regarding the registration and operation of aircraft is critical to public safety, national security, and adherence to the United States international obligations. Given these pronouncements, we ask that the Department reconsider the classification of the FAA s U.S. registry personnel and associated resource as nonessential. The operations of the U.S. Registry are vital to protection of human life and property, and represent proper exceptions under the Anti-deficiency Act. 3 Consistent with the Department s judgment that foreign relations on aviation safety-related matters 1 The Supporting Entities include a large industry-wide group of aerospace manufacturers, banks, title companies, aircraft lessors, trade associations, and other industry stakeholders. 2 The Supporting Entities note this request is consistent with the October 8, 2013 Letter to the Department of Transportation from NBAA, AOPA, EAA, GAMA, HAI and NATA requesting the Department to reopen the U.S. Registry U.S.C

2 Page 2 should continue as excepted activities during the government shutdown, 4 the functioning of the U.S. Registry is necessary to fulfill our country s ongoing international legal obligations. Indeed, the FAA just reiterated the important safety and international obligations purposes of the Registry in its Notice of Policy Clarification for the Registration of Aircraft to U.S. Citizen Trustees in Situations Involving Non-U.S. Citizen Trustors and Beneficiaries. 5 The FAA emphasized: [i]n order to execute its responsibilities as to compliance with, and enforcement of, flight and maneuver rules, the State of Registry must be able to obtain information about particular aircraft and operations in a timely manner and, in some cases, provide that information to other States. 6 It is difficult to imagine how the FAA can fulfill this important obligation if the U.S. Registry is closed. In like manner, the FAA in recent rulemakings involving the re-registration of aircraft cited national security for support. For example, the FAA has averred that: Out-of-date registration information may possibly result in loss of property, and if safety related information is not received, could result in personal injury. 7 The U.S. Registry serves as a source of information for other Government agencies, including those responsible for homeland security and investigations of aviation accidents and other incidents. 8 4 U.S. Dep t of Transportation, Operations During a Lapse in Annual Appropriations Plans by Operating Administration 3 (Sept. 27, 2013). 5 Notice of Proposed Policy Clarification for the Registration of Aircraft to U.S. Citizen Trustees in Situations Involving Non-U.S. Citizen Trustors and Beneficiaries, 77 Fed. Reg (June 18, 2013) ( NCT Proposed Policy ) ( Under international law, a State of Registry has numerous responsibilities with regard to each aircraft on its registry. A number of these responsibilities, which are set forth in the Convention on International Civil Aviation (the Chicago Convention) and its annexes, relate to how a State registers an aircraft and manages its aircraft registry ). The current effective date of the new policy is September 16, Id.(emphasis added) 7 Re-Registration and Renewal of Aircraft Registration, 73 Fed. Reg. at (proposed Feb. 28, 2008). See also id.at ( While various levels of law enforcement have used and continue to use registration data for drug and other law enforcement purposes, their efforts now have expanded to include matters of homeland security. ) 8 FAA, Office of Inspector General Audit Report FI , FAA s Civil Aviation Registry Lacks Information Needed for Aviation Safety and Security Measures 1 (June 27, 2013).See also 73 Fed. Reg. at ( Users of the [U.S. Registry] system include persons charged with maintaining safety in air transportation and law enforcement agencies charged with maintaining national security )

3 Page 3 FAA provides TSA with data on individuals new to the U.S. Registry on a daily basis. TSA uses these data to perform a onetime, biographic, namebased security threat assessment for each of the 4 million individual FAA airman certificate holders. 9 Law enforcement and security agencies rely upon FAA s aircraft [registration] records to identify and locate owners of aircraft. 10 Finally, we are particularly concerned that as the shutdown continues, the increase in the already large backlog for new registration applications, as well as expiration of temporary operation authorizations from new re-registration requirements will cause enormous delivery delays and ground many aircraft and rotorcraft. We respectfully submit that the Department has the authority under the Antideficiency Act and related guidance from the Office of Management and Budget 11 and the Department of Justice 12 to restore the U.S. Registry during the current deficiency in appropriations. While we share the Administration s hopes that the current impasse will be resolved soon, we respectfully submit that the U.S. Registry should be immediately reopened. Thank you for your consideration. Sincerely, Kenneth P. Quinn 9 Gov t Accountability Office, GAO , General Aviation Security: Weaknesses Exist in TSA s Process For Ensuring Foreign Flight Students Do Not Pose a Security Threat 22 (July 2012). 10 Re-Registration and Renewal of Aircraft Registration, 49 Fed Reg (July 20, 2010). 11 Office of Mgmt. & Budget, Exec. Office of the President, Memorandum for the Heads of Executive Departments and Agencies, Planning for Agency Operations During a Potential Lapse in Appropriations 3 (Sept. 17, 2013). 12 Exceptions to the Anti-deficiency Act restrictions include emergency circumstances relating to health and safety and functions necessary to discharge the President s constitutional duties and powers. U.S. Dep t of Justice, Office of Legal Counsel, Memorandum Op. for the Director of the Office of Mgmt. & Budget, Government Operations in the Event of a Lapse in Appropriations (Aug. 16, 1995).

4 Page 4 cc: Hon. John D. Porcari Hon. Michael P. Huerta Hon. Michael G. Whitaker Kathryn B. Thomson, DOT General Counsel (Acting) Marc L. Warren, FAA Chief Counsel (Acting)

5 Page 5 Supporting Entities Aerospace Industries Association AerCap Holdings N.V. Airbus Americas Airbus SAS Aircastle Limited Aircraft Guaranty Corporation Aircraft Title Insurance Agency Air Carrier Association of America Air Eva EMS, Inc. Air Medical Group Holdings, Inc. (AMGH) Association of Aircraft Title Lawyers Aviation Capital Group AWAS Bank of America Merrill Lynch Bank of Utah Beechcraft Corporation Bell Helicopter Textron Inc. Boeing Capital Corporation The Boeing Company Bombardier Aerospace Bombardier Aerospace Structured Finance Cal-Ore LifeFlight LLC Cargo Airline Association Cessna Aircraft Company Cessna Finance Corporation Cirrus Aircraft Dassault Falcon Jet Corp. EagleMed LLC Embraer S.A. Executive Jet Management, Inc. FlexJet Flight Safety Foundation GE Aviation GE Capital Aviation Services International Lease Finance Corporation (ILFC) Learjet Med-Trans Corporation NetJets Aviation, Inc. Pratt & Whitney RBS Asset Finance, Inc. REACH Air Medical Services LLC Rolls Royce Sikorsky Aircraft Corp. SMBC Aviation Capital Textron Financial Corporation Wells Fargo Bank, NA Wells Fargo Bank Northwest, NA Wells Fargo Securities, LLC Wilmington Trust Company