§ 375.22 Flight operations.

Flight of foreign civil aircraft in the United States shall be conducted in accordance with the currently applicable regulations of the Administrator of the Federal Aviation Agency.

§ 375.23

Maximum allowable weights. Foreign civil aircraft which are permitted to navigate in the United States on the basis of foreign airworthiness certificates shall not be operated in the United States except in accordance with the limitations on maximum certificated weights prescribed or authorized for the particular variation of the type and for the particular category of use, by the country of manufacture of the aircraft type involved.

§ 375.24 Entry and clearance regulations.

All applicable entry and clearance requirements for aircraft, passengers, crews, baggage and cargo shall be followed.

§ 375.25 Unauthorized operations.

Foreign civil aircraft which are not authorized to be navigated pursuant to Subpart B in combination with Subparts D or E of this part shall not be navigated in the United States. Commercial air operations shall not be undertaken without a permit issued therefor by the Board.

§ 375.26 Waiver of sovereign immunity.

By navigating a foreign civil aircraft in the United States pursuant to authorization granted by or under this part, the owners and operators of such aircraft when engaged in proprietary or commercial activities waive any right they may possess to assert any defense of sovereign immunity from suit in any action or proceeding instituted against any of them in any court or other tribunal in the United States, based upon any claim arising out of operations by such persons pursuant to such authorization.

[SPR-10, 29 F.R. 3470, Mar. 18, 1964] Subpart D-Operations Authorized by Regulation

§ 375.30 Operations other than commercial air operations.

Foreign civil aircraft which are not engaged in commercial air operations

Flights of foreign civil aircraft within the United States may be made for the purpose of demonstration of the aircraft or any component thereof, provided no persons, cargo or mail are carried for remuneration or hire.

§ 375.32 Flights incidental to agricultural and industrial operations outside the United States.

Foreign civil aircraft which are engaged in agricultural or industrial operations to be performed wholly without the United States may be navigated into, out of, and within the United States in connection therewith provided they are not at the time engaged in the carriage of passengers, cargo or mail for remuneration or hire.

§ 375.33 Transit flights, irregular oper

ations.

(a) Foreign civil aircraft carrying passengers, property or mail for remuneration or hire but not engaged in scheduled international air services, are authorized to navigate non-stop across the territory of the United States and to make stops for non-traffic purposes.

(b) "Stops for non-traffic purposes" means a landing for any purpose other than taking on or discharging passengers, cargo or mail or for other than strictly operational purposes. The navigation of foreign civil aircraft in the United States is not authorized under this section when the elapsed time between landing and takeoff at a stop in the United States exceeds 24 hours and passengers are permitted to leave the airport or when passengers, property or mail are transferred to another aircraft: Provided, That flights involving stops under such circumstances may be performed in the case of emergency relating to the safety of the aircraft, passengers,

cargo or crew.

[SPR-10, 29 F.R. 3471, Mar. 18, 1964] § 375.34

Indoctrination training.

Foreign civil aircraft may be operated in the United States for the purpose of giving indoctrination training in the op

eration of the aircraft concerned to a buyer or his employees or designees; Provided, That foreign civil aircraft shall not be used within the United States for the purpose of flight instruction for remuneration or hire.

§ 375.35 Free transportation.

(a) Foreign civil aircraft may be navigated in the United States by a foreign air carrier for the transportation of persons and property specified in paragraph (b) of this section over the following non-traffic segments provided such transportation is not for compensation or hire:

(1) Between two or more points in the United States named in the carrier's permit issued under section 402 of the Act;

(2) Between a point in the United States named in the carrier's section 402 permit, and a point outside the United States not named in the permit, when authorized in accordance with the provisions of Part 216 of this chapter to carry blind sector traffic to or from such unnamed foreign point; and

(3) Between a point in the United States and a point outside thereof when the carrier lands at the United States point for non-traffic purposes in exercise of the privilege granted under the International Air Services Transit Agreement.

(b) Free transportation may be provided under this section for the following categories of persons and property:

(1) Directors, officers and employees, and their parents and immediate families, of the foreign air carrier operating the aircraft;

(2) Directors, officers and employees, and their parents and immediate families, or an air carrier or another foreign air carrier traveling pursuant to pass interchange arrangement;

(3) Witnesses and attorneys attending any legal investigation in which any such foreign air carrier is involved;

(4) Persons injured in aircraft accidents and physicians and nurses attending such persons; and

(5) Any person or property with the object of providing relief in cases of general epidemic, pestilence, or other calamitous visitation.

(c) A charge reasonably related to the value of meals and beverages furnished enroute shall not be deemed to constitute

compensation or hire for purposes of this section.

[SPR-10, 29 F.R. 3471, Mar. 18, 1964, as amended by SPR-20, 33 F.R. 698, Jan. 19, 1968]

Subpart E-Operations Requiring Specific Pre-Flight Authorization by the Board or the Administrator § 375.40 Permits for commercial air operations.

(a) Applications. Commercial air operations in the United States may not be undertaken by foreign civil aircraft unless the Board has issued a permit therefor upon application pursuant to this subpart and such permit is carried on board the aircraft. Permits are not transferable. Applications for permits may be filed directly with the Board and need not be filed through diplomatic channels. They shall be made on CAB Form 272,' addressed to the attention of the Director, Bureau of Air Operations, and shall contain a proper identification of the applicant, the operator of the aircraft concerned and of the owner thereof, a description of the aircraft by make, model, and registration marks; and a full description of the operations for which authority is desired, indicating type and dates of operations and number of flights, and routing. In case of cargo flights, the names of all contractors and the beneficial owner of the cargo, a description of the cargo and of the proposed operations, including services to be performed by the exporter, importer or transportation agent, shall be provided. In case of passenger flights, a full identification and description of the group chartering the aircraft, and identification of the travel agent, if any, shall be provided. A copy of any newspaper or other advertising of the flights shall be enclosed. The application shall also be accompanied by such documents as may be necessary to establish that reciprocity for similar operations by United States registered aircraft exists in the country of registration of the aircraft. Applications shall be submitted at least 15 days in advance of the date of the commencement of the proposed operation.

1 Available upon request from the Publications Section of the Civil Aeronautics Board, Washington 25, D.C.

Such additional information as may be specifically requested by the Board shall also be furnished.

(b) Withholding from publication. Except to the extent that the Board directs that such information be withheld from public disclosure for reasons of national defense or as hereinafter specified in this paragraph, every application, and any objection thereto filed pursuant to this section shall be open to public inspection, and notice thereof shall be published in the Board's Weekly List of Applications Filed. Any person may make written objection to the Board to the public disclosure of such information or any part thereof, stating the grounds for such objection. If the Board finds that a disclosure of such information or part thereof would adversely affect the interests of such person and is not required in the interest of the public, it will order that such information or part be so withheld.

(c) Failure to comply. Failure to comply with the requirements of this part shall be cause for the suspension, revocation or refusal to renew a permit or the denial of the issuance of a new permit issuable under this part.

§ 375.41 Agricultural and industrial operations within the United States. Foreign civil aircraft shall not be used for crop dusting, pest control, pipeline patrol, mapping, surveying, banner towing, skywriting or similar agricultural or industrial operations within the United States unless a permit therefor has been issued by the Board and the operation is conducted in accordance with all applicable State and local laws and regulations as well as the applicable provisions of this part.

§ 375.42 Commercial transport opera

tions.

(a) Permit required. Except for aircraft being operated under a permit issued by the Board pursuant to section 402 of the Act, foreign civil aircraft engaged in flights for remuneration or hire for the purpose of discharging or taking on passengers or cargo at one or more points in the United States may be navigated in the United States only if there is carried on board the aircraft a permit issued by the Board in accordance with this section authorizing the

operation involved. Carriage of cargo for the operator's own account is governed by the provisions of this section if the cargo is to be resold or otherwise used in the furtherance of a business other than the business of providing carriage by aircraft.

(b) Nature of privilege conferred by permit. (1) The provisions of this section and of any permit issued hereunder, together with section 1108(b) of the Act, are designed, among other purposes, to carry out the international undertakings of the United States in the Chicago Convention, in particular Article 5 thereof. That article accords to foreign aircraft the privilege of "taking on or discharging passengers, cargo or mail" subject to the right of the state where such embarkation or discharge takes place to impose such regulations, conditions or limitations as it may consider desirable. The Congress by the 1953 amendment to section 6 of the Air Commerce Act of 1926, now designated as section 1108(b) of the Act, has authorized the Board to permit such operations only where conditions of reciprocity and the interest of the public in the United States are met. It is incompatible with the intent of this legislation and the nature of the function involved to regard the operator of any foreign registered aircraft as entitled as a matter of right to the issuance, renewal or freedom from modification or change in a permit issuable pursuant to this authority. Accordingly, any permit issued under this Part may be withheld, revoked, amended, modified, restricted, suspended, withdrawn, or canceled by the Board in the interest of the public of the United States, without notice or hearing and without the right in the holder to challenge the Board's discretion.

(2) Aircraft cannot be authorized to engage in air transportation under this section. The question of whether particular flights for which a permit is sought will be in common carriage, and therefore in air transportation, is one of fact to be determined in the light of all the facts and circumstances surrounding the applicant's entire operations. The burden rests upon the applicant in each instance to demonstrate by an appropriate factual showing that the contemplated operation will not

constitute common carriage from, to or within the United States. In general, a carrier who holds himself out to the public, or to particular classes or segments thereof, as willing to furnish transportation for hire is a common carrier. Ordinarily, therefore, the type of application which may be approved hereunder is not one which may be advertised to the public.

(3) Subject to the provisions of this part, an applicant may be issued a permit authorizing one or the other of the following two types of commercial transport operations, but not both:

(i) Occasional plane-load charters. Occasional plane-load charters may be authorized where, because of their limited nature and extent, special equipment or facilities utilized, or other circumstances pertaining to them, it appears that they are not within the scope of the applicant's normal holding out of transportation services to the general public. Such charters are normally limited to those in which the entire capacity of the aircraft is engaged by a single charterer, and since they are occasional in nature, should not exceed for any one applicant more than six flights during a year's period. Applicants are required to make full disclosure concerning the identity and business of the charterer. Generally speaking, the kinds of so-called charters that will not be authorized under this regulation are those that involve solicitation of the general public such as is usually involved in the transportation of individually ticketed passengers or individually waybilled cargo, or in which the charterer is a travel agent, a broker, an air freight forwarder or any other organization that holds itself out to the general public to provide transportation services.

(ii) Continuing cargo operations for one or more contractors. (a) Continuing cargo operations for one or more contractors may be permitted where it has been established by the applicant that the proposed operation is not within the scope of the applicant's normal holding out of transportation services to the general public. Authorizations of this type to serve up to 10 different contractors during any 12-month period may be granted unless other facts and circumstances impose a more stringent limitation, and provided that there is no rapid turnover of contractors.

(b) The provisions of the contract between the applicant and the contractor

are important. The type of contract most likely to qualify for authorization hereunder is one which meets the following conditions; (1) The contract provides for continuing operations over a period of six months or longer; (2) the contract calls for an absolute or minimum number of flights, or for an absolute or minimum volume of cargo to be transported; and (3) the shipper guarantees to the carrier the specified number of flights or the specified volume of cargo, or the specified minimum number of flights or the specified minimum volume of cargo, and agrees to pay for that capacity whether or not used.

(c) Also, the nature of the business activities of the particular contractor will be carefully considered by the Board. As in the case of plane-load charters, the proposed operations will not be authorized if the contractors are air freight forwarders, cargo agents, brokers or others who hold themselves out to the general public to provide transportation services. Contracts involving industrial organizations which consume the shipments in the course of their industrial operations will normally be an acceptable form of contracting organization. On the other hand, a contracting organization which does not so consume the shipped cargo, but delivers it to the ultimate consumer, directly or indirectly, may well be unacceptable as a contracting organization unless it can be shown that the ultimate consumers do not constitute the general public. In the latter type of case, the information furnished concerning the nature of the business activities of the contractor and the manner in which the ultimate consumers are solicited, served, and billed will be of particular significance.

(d) In the case of transportation of goods for the carrier's own account for subsequent sale, such operations will not be permitted where the carrier solicits orders and delivers goods, maintaining title to the goods principally for the purpose of engaging in the transportation business or where the arrangement otherwise is in the nature of a subterfuge.

(c) Application for permit. Applications for permits under this section shall comply with the requirements of § 375.40. There shall be enclosed with the application a copy of each contract between the operator and each person for whose account the flight or flights is or are to be performed. If any flight is to be performed in whole or in part for the op

erator's own account under the circumstances governed by this section, there shall also be enclosed copies of all contracts relating to the acquisition and disposition of the cargo. Copies of contracts covering proposed operations which have previously been filed with the Board in connection with a prior application need not be filed again.

(d) Issuance of permit. If upon examination of the application, all supporting documents, and other information available to it, the Board is of the opinion that the application is in order and that the proposed operation either by itself or in conjunction with other operations of the operator to or from the United States is in the interest of the public and does not disclose any apparent violation of section 402 of the Act, or any other applicable provision of law, it will issue a permit for a period not in excess of 90 days to the applicant authorizing the conduct of the flights set forth in the application: Provided, that the maximum number of flights or volume of cargo that will be authorized pursuant to each contract for continuing cargo operations will not exceed the minimum specified therein by more than 20 percent, if the contract specifies a minimum and a maximum.

[SPR-4, 25 F.R. 2790, Apr. 2, 1960, as amended, SPR-11, 29 F.R. 8002, June 24, 19641

§ 375.43 Keeping of records on

mercial transport operations.

com

(a) Cargo documents. The holder of a permit for cargo operations issued under § 375.42 shall issue a manifest or shipping document with respect to each shipment which shall contain, but need not be limited to, the following information:

(1) Name of the contractor for whom the shipment is transported.

(2) Name and address of payer of transportation charges.

(3) Name and address of vendor of goods.

(4) Name and address of consignor of goods.

(5) Name and address of consignor's agent, if any.

(6) Names and addresses of intermediate and ultimate consignees.

(7) Number of packages in shipment and total weight of same.

(8) Description of commodities.

(9) Point of air origin and air des*ination of shipment on line of carrier.

(10) Date of airwaybill preparation. (11) Name of employee cr agent preparing airwaybill.

(12) Date shipment is transported by carrier.

(13) Breakdown of charges including weight-rate charges, pick-up and delivery, excess valuation, advance charges and any accessorial charges.

(b) Retention of cargo documents. The holder of a permit for cargo operations issued under § 375.42 shall keep, for a period of 1 year, true copies of all manifests, air waybills, invoices, and other traffic documents covering flights originating or terminating in the United States. The holder of a permit authorizing 10 or more flights originating in the United States in a 90-day period shall maintain a place in the United States where such documents may be inspected at any proper time by authorized representatives of the Board or the Federal Aviation Administration. Records of flights terminating in the United States and flights conducted pursuant to a permit authorizing less than 10 flights in any 90-day period need not be maintained in the United States but shall be made available to the Board upon demand.

(c) Contents and retention of documents for passenger flights. The holder of a permit for passenger charters originating or terminating in the United States issued under $375.42 shall require each charterer to file with it prior to flight a list of the names and addresses of all passengers to be transported on each flight. All passenger lists shall be retained for a period of 6 months and be made available to the Board in the United States upon demand.

[SPR-4, 25 F.R. 2790, Apr. 2, 1960, as amended by SPR-29, 34 FR. 5254, Mar. 14, 1969]