Monday, August 2, 2010

The Unsafe Mexican Skies?

The Federal Aviation Administration announced last Friday that Mexico does not meet the international safety standards promulgated by the International Civil Aviation Organization.  See Press Release, FAA, FAA Finds Mexico Does Not Meet ICAO Safety Standards (July 30, 2010) (available here).  As a result, the FAA has downgraded Mexico from "Category 1" to "Category 2" as part of the Administration's International Aviation Safety Assessment Program (IASAP).  Under ISAP the FAA "assesses the civil aviation authorities of all countries with air carriers that operate or have applied to fly to the United States and makes that information available to the public."  A "Category 1" classification means a State's aeronautical authority meets the ICAO standards; "Category 2" means it doesn't.

What does the categorization mean in practice?  Airlines from "Category 2" States which already provide service to and from the U.S. do not lose their market access.  Rather, a "Category 2" State's air carriers are prohibited from expanding their services unless they wet-lease aircraft from the U.S. or a "Category 1" State.  This sits in contrast to the European Union's blacklist regulation which bans foreign airlines from the territory of EU Member States if they fail to meet "the international safety standards contained in the Chicago Convention and its Annexes as well as, where applicable, those in relevant Community law."  See Regulation 2111/2005, 2005 O.J. (L 344) 15.  There is no allowance in the EU regulation for blacklisted carriers to maintain their preexisting level of service.

Of course, the "Category 2" branding could still have a deleterious effect on Mexico's international air transport sector.  Consumers inclined to put their personal safety before their pocketbooks will likely seek out non-Mexican airlines or secure alternative forms of transportation where feasible.  When the FAA dropped Venezuela to "Category 2" in 1995, U.S. carriers Continental and Delta acquired large swaths of the U.S./Venezuela market.  The situation prompted Venezuelan President Hugo Chavez to threaten revoking market access to U.S. carriers in February 2006.  While both sides in the U.S./Venezuela dispute threatened denunciation of their air services treaty, neither in fact did so and the matter was eventually resolved following the FAA's elevation of Venezuela's safety rating.  See Press Release, FAA, FAA Raises Safety Rating for Venezuela (Apr. 21, 2006); see also generally Venezuela Recategorization Process by the Federal Aviation Administration (FAA), Paper Presented to the [ICAO] Directors General of Civil Aviation Conference on a Global Strategy for Aviation Safety, DGCA/06-IP/19 (Mar. 15, 2006).

No doubt the U.S. would prefer to avoid repeating this aeropolitical spat with its neighbor to the south.  Perhaps this is why the FAA press statement stressed that the Administration "is committed to working closely with the Mexican government and providing technical assistance to help Mexico regain its Category 1 rating."

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