A Comments on Public Consultation No. 05/2020 of the National Civil Aviation Agency (“ANAC”).
The Public Consultation n. 5/2020 (“Consultation”), which is being conducted by ANAC, in accordance with the procedures established by the legislation in force, has the purpose of discussing the publication of a resolution amending Resolutions No. 293/2013 and 309/2014. The proposed text results from the studies conducted for Theme 12 (Brazilian Aeronautical Registry – “RAB”) of the 2019-2020 Regulatory Agenda.
The matters approached were object of a study carried out by the Superintendency of Airworthiness (“SAR”) within the scope of Theme 12 in which it was found that there was a need to amend the aforementioned Resolutions in order to update their texts in line with the legislative changes supervening their edition and adjust the procedures already used by ANAC.
With regard to Resolution No. 293/2013, the objectives are:
(i)Make explicit the conditions for acceptance of digital documents brought to the RAB registry, requiring digital certification and eliminating the current legal uncertainty;
(ii)Regarding the processes related to aircraft exchange, eliminate the regulatory gap by adding the definition of exchange, differentiate the performance of the Technical Management of the Brazilian Aeronautical Registry (“GTRAB”) between aircraft with Brazilian and foreign plates and require the owner’s consent form in cases of subleasing, providing greater transparency and guidance to applicants; and
(iii) To adapt the text to recent updates of other regulations, improving the information to the public and the legal security in the RAB processes.
With regard to Resolution No. 309/2014, the objectives are:
(i) Eliminate unnecessary administrative costs, both for ANAC and for the respective applicants, arising from the revalidation of code for registration with the International Registry (“IR”) when the period defined in art. 11 of Resolution No. 309/2014 (of 20 working days for presentation of justification, when the applicant does not use the code), since there is no maximum period defined by Decree No. 8.008/2013 for use of the code for registration with the IR, nor the obligation of the Authority to communicate the non-use of the code, it was found that such control is innocuous, with no sanction linked to its compliance;
(ii) Correct the conflict between art. 5, item III of Resolution No. 309/2014 with what is established in the Cape Town Convention and its Protocol, promulgated by Decree No. 8,008/2013, and with Board Decision No. 154/2015 by only considering commercial leases, excluding simple operating contracts (a conflict arising from the translation process of the Convention);
(iii) Improve the wording of Resolution No. 309/2014 regarding the processes of deregistration by Irrevocable Authorization for Deregistration and Export Request (the “IDERA”), avoiding the use of the request filed with ANAC as a form of threat to the other party until the conclusion of the commercial negotiation, implying, such requests for suspension of processing in non-compliance with the maximum period of 5 working days established in paragraph 8 of art. XI of the Protocol on Issues Specific to Aeronautical Equipment, internalized by Decree No. 8,008/2013; and
(iv) Improve the wording of Resolution No. 309/2014 to clarify that the process of cancellation of registration by IDERA, which is the competence of ANAC, is independent of the process for exporting the good, which is the competence of the Federal Revenue Service, and the measures may be requested by the creditor simultaneously, without a relationship of subordination.
It is important to emphasize that the text proposed by ANAC for the adjusted clauses are available on the Agency’s website(https://www.anac.gov.br/participacao-social/consultas-publicas/consultas-publicas-em-andamento/consulta-publica) and that those interested in submitting a response to the Consultation, should send ANAC their manifestations until May 7, 2020.
It is worth noting, finally, that once the Consultation is closed, the final text of the Resolution, after being duly approved and published in accordance with the procedures established by the applicable legislation, should come into force on the date of its publication (as per the text proposed in the Consultation).
Attached are comparative tables of the changes to Resolutions No. 293/2013 and 309/2014.