In November 2005, the DoT issued a Notice of Proposed Rulemaking (NPRM) on Actual Control of U.S. Air Carriers in which DOT proposed to allow foreign participation in various commercial aspects of a U.S. carrier, provided that the foreign participants are citizens of a country which has an Open Skies agreement with the United States and affords U.S. citizens similar opportunities to participate in its carriers.

ACI-NA filed comments on behalf of its U.S. airport members supporting DOT's proposed policy because it would reduce government involvement in aviation; encourage foreign investment in U.S. carriers; and enhance air service opportunities.

In May 2006, DOT issued a Supplemental NPRM (SNPRM) in response to the comments received on the NPRM. The SNPRM's main clarifications and changes as compared to the NPRM are:

• DOT proposes to require that any delegation of authority over commercial matters by U.S. citizens to foreign citizens must be "revocable", which particularly has raised concerns on the part of some foreign carriers.
• DOT proposes to broaden the scope of the decision-making that must remain in the actual control of U.S. citizens from decisions related to implementing FAA and TSA regulations and participation in the Civil Reserve Air Fleet to decisions regarding safety and security policies.

On July 5, ACI-NA filed comments on behalf of its U.S. airport members supporting DOT's proposed policy as refined in the SNPRM and urging DOT to adopt a final rule implementing the proposed policy change regarding its review of foreign participation in U.S. carriers. However, ACI-NA also strongly recommended that DOT explicitly indicate in its final order that it will accept the kinds of provisions on minority shareholder rights and termination conditions, protections, and penalties normally found in commercial arrangements.

ACI-NA supported DOT SNPRM for the reasons cited with respect to the NPRM and indicated that many of our members also supported the SNPRM because they hope that the final DOT order with the suggested clarifications will facilitate the conclusion of November 2005 draft European Union/United States Agreement, which they view as bringing transportation and trade benefits.

FMI: www.aci-na.aero, dpeterson@aci-na.aero