[Code of Federal Regulations]
[Title 32, Volume 6]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR861.5]

[Page 168-170]
 
                        TITLE 32-NATIONAL DEFENSE
 
                CHAPTER VII--DEPARTMENT OF THE AIR FORCE
 
PART 861_DEPARTMENT OF DEFENSE COMMERCIAL AIR TRANSPORTATION QUALITY AND 
SAFETY REVIEW PROGRAM--Table of Contents
 
Sec. 861.5  DOD Commercial Airlift Review Board procedures.

    (a) This section establishes procedures to be used by the DOD when, 
in accordance with references inSec. 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. As detailed in the reference in Sec. 
861.1(b), the CARB provides a multifunctional review of the efforts of 
the DOD Air Carrier Survey and Analysis Office and is the first level 
decision authority in DOD on quality and safety issues relating to air 
carriers. Responsibilities include, but are not limited to: the review 
and approval or disapproval of air carriers seeking initial approval to 
provide air transportation service to DOD; the review and approval or 
disapproval of air carriers in the program that do not meet DOD quality 
and safety requirements; the review and approval or disapproval of air 
carriers in the program seeking to provide a class of service different 
from that which they are currently approved; taking action to suspend, 
reinstate, or place into temporary nonuse or extended temporary nonuse, 
DOD approved carriers; taking action, on an as needed basis, to review, 
suspend, reinstate, or place into temporary nonuse or extended temporary 
nonuse, an air carrier providing operational support services to DOD; 
and, referring with recommendations, issues requiring resolution or 
other action by higher authority.
    (f) CARB administrative procedures.--(1) Membership. The CARB will 
consist of four voting members appointed by USCINCTRANS from USTRANSCOM 
and its component commands. These members and their alternates will be 
general officers or their civilian equivalent, with experience in the 
operations, maintenance, transportation, or air safety fields. A 
Chairman and alternate will be designated. Nonvoting CARB members will 
be appointed as necessary by USCINCTRANS. A non-voting recorder will 
also be appointed.
    (2) Decisions. Decisions of the CARB will be taken by a majority 
vote of the voting members present, with a minimum of three voting 
members (or their alternates) required to constitute

[[Page 169]]

a quorum. In the event of a tie, the Chair of the CARB will decide the 
issue.
    (3) Meetings of the CARB. The CARB may meet either in person or by 
some electronic means. It will be convened by either USCINCTRANS or the 
Chair of the CARB. The meeting date, time, and site of the CARB will be 
determined at the time of the decision to convene the CARB. Minutes of 
CARB meetings will be taken by the recorder, summarized, and preserved 
with all other records relating to the CARB meeting. The recorder will 
ensure the air carrier and appropriate DOD and federal agencies are 
notified of the CARB's decision(s) and reasons therefore. In the event 
of a fatal accident, the CARB shall convene as soon as possible but not 
later than 72 hours after notification by the Chair.
    (g) CARB operating procedures--(1) Placing an air carrier into 
temporary nonuse. (i) In case of a fatal aircraft accident or for other 
good cause, two or more voting members of the CARB may jointly make an 
immediate determination whether to place the air carrier involved into a 
temporary nonuse status pending suspension proceedings. Prior notice to 
the air carrier is not required.
    (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. (i) On a recommendation of the DOD 
Air Carrier Survey and Analysis Office or any individual voting member 
of the CARB, the CARB shall consider whether or not to suspend a DOD 
approved 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) Correct the specific deficiencies that led the CARB to consider 
suspension; and
    (2) Preclude recurring similar deficiencies.
    (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. (i) The CARB may consider reinstating a suspended 
carrier on either CARB motion or carrier motion, unless such carrier has 
become ineligible in the interim.
    (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

[[Page 170]]

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. (i) An air carrier placed in 
suspension by the CARB may administratively appeal this action to 
USCINCTRANS. An appeal, if any, must be filed in writing, with the DOD 
Air Carrier Survey and Analysis Office, and postmarked within 15 
workdays of receipt of notice of the CARB's suspension decision. In the 
sole discretion of USCINCTRANS, and for good cause shown, the suspension 
may be stayed pending action on the appeal.
    (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. The approval or 
disapproval of an air carrier for use by DOD, the placing of approved 
carriers into temporary nonuse status, and the suspension and 
reinstatement of approved carriers, are all decisions which must be made 
by the CARB. Other matters may be referred by the CARB to USCINCTRANS 
for appropriate action, with or without recommendations by the CARB. The 
CARB will forward for decision, through USCINCTRANS to the Under 
Secretary of Defense (Acquisition, Technology and Logistics) 
(USD(AT&L)), all air carrier use/nonuse recommendations involving 
foreign air carriers other than those providing charter transportation 
or operational support service to the Department of Defense.