[Federal Register: November 20, 2009 (Volume 74, Number 223)]
[Proposed Rules]
[Page 60218-60227]
[DOCID:fr20no09-31]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91, 119, 125, 133, 137, 141, 142, 145 and 147

[Docket No. FAA-2008-1154; Notice No. 09-13]
RIN 2120-AJ36

Restrictions on Operators Employing Former Flight Standards
Service Aviation Safety Inspectors

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This proposed rule would prohibit any person holding a
certificate to conduct certain operations from knowingly employing, or
making a contractual arrangement with, certain individuals to act as an
agent or a representative of the certificate holder in any matter
before the FAA under certain conditions. These restrictions would apply
if the individual, in the preceding 2-year period: Directly served as,
or was directly responsible for the oversight of, a Flight Standards
Service Aviation Safety Inspector; and had direct responsibility to
inspect, or oversee the inspection of, the operations of the
certificate holder. This proposed rule would also apply to persons who
own or manage fractional ownership program aircraft that are used to
conduct operations under specific regulations described in this
document. This proposed rule would establish these restrictions to
prevent potential organizational conflicts of interests which could
adversely affect aviation safety.

DATES: Send your comments to reach us on or before February 18, 2010.

ADDRESSES: You may send comments identified by Docket Number FAA-2008-
1154 using any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov and follow the online instructions for sending your
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-
140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at<PHONE_NUMBER>.

For more information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
    Privacy: We will post all comments we receive, without change, to
http://www.regulations.gov, including any personal information you
provide. Using the search function of our docket Web site, anyone can
find and read the electronic form of all comments received into any of
our dockets, including the name of the individual sending the comment
(or signing the comment for an association, business, labor union,
etc.). You may review DOT's complete Privacy Act Statement in the
Federal Register published on April 11, 2000 (65 FR 19477-78) or you
may visit http://DocketsInfo.dot.gov.
    Docket: To read background documents or comments received, go to
http://www.regulations.gov at any time and follow the online
instructions for accessing the docket, or, go to the Docket Operations
in Room W12-140 of the West Building Ground Floor at 1200 New Jersey
Avenue, SE., Washington,

DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning
this proposed rule, contact Nancy Lauck Claussen, Air Transportation
Division, AFS-200, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591; telephone<PHONE_NUMBER>, e-mail
<EMAIL_ADDRESS>For legal questions concerning this proposed
rule, contact Paul G. Greer, Federal Aviation Administration, Office of
the Chief Counsel, 800 Independence Avenue, SW., Washington, DC 20591;
Telephone:<PHONE_NUMBER>, e-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Later in this preamble under the Additional
Information section, we discuss how you can comment on this proposal
and how we will handle your comments. Included in this discussion is
related information about the docket, privacy, and the handling of
proprietary or confidential business information. We also discuss how
you can get a copy of related rulemaking documents.

Authority for This Rulemaking

    The FAA's authority to issue rules on aviation safety is found in
Title 49 of the United States Code. Subtitle I, Section 106 describes
the authority of the FAA Administrator, to include the authority to
issue, rescind, and revise regulations. Subtitle VII, Aviation
Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in
Subtitle VII, Part A, Chapter 447, Safety Regulation. Under Section
44701(a) the FAA is charged with promoting the safe flight of civil
aircraft in air commerce by prescribing regulations and minimum
standards for other practices, methods, and procedures necessary for
safety in air commerce and national security.

I. Background

    On March 5, 2008, the FAA proposed a $10.2 million civil penalty
against a major airline for operating 46 airplanes without performing
mandatory inspections for fuselage fatigue cracking. The FAA alleged
that the airline operated 46 Boeing 737 airplanes on almost 60,000
flights from June 2006 to March 2007 while failing to comply with an
existing FAA Airworthiness Directive (AD) that required repetitive
inspections of certain fuselage areas to detect fatigue cracking.
    After investigating these events, the FAA took steps to improve its
safety systems and strengthen regulations to minimize the risk of
reoccurrence of these or similar events. One such step was to toughen
Aviation Safety Inspector (ASI) post employment restrictions to prevent
conflicts of interest. This proposed rulemaking would establish
restrictions on persons employing former Flight Standards Service (AFS)
ASIs and those responsible for their oversight.

Review of FAA's Safety Oversight of Airlines and Use of Regulatory
Partnership Programs

    On June 30, 2008, the Department of Transportation (DOT) Office of
Inspector General issued its review of the FAA's oversight of airlines
and use of regulatory partnership programs. The report concluded that
the FAA Certificate Management Office overseeing the airline that
failed to perform the required inspections had developed an overly
collaborative relationship with the airline. That relationship allowed
repeated self-disclosures of AD violations without ensuring that the
airline had developed a comprehensive solution for those reported
safety problems.
    The report noted that the Regulatory Compliance Manager for the
airline was a former FAA ASI who reported directly to the FAA Principal
Maintenance Inspector assigned to the airline when the former ASI
worked for the FAA. The former employee had become a manager at the
airline two weeks after leaving the FAA. In his new position at the
airline, the former ASI served as the liaison between the carrier and
the FAA and managed both the airline's AD Compliance Program and its
Voluntary Disclosure Reporting Program.
    The report also concluded that the overly collaborative
relationship with the air carrier occurred because the FAA lacked
effective management controls over its partnership program. The report
stated that effective management controls would address: (1) Adequate
segregation of duties; (2) the avoidance of potential conflicts of
interests among its employees dealing with the carrier; and (3)
verification of the propriety and integrity of corrective actions
taken.
    The report recommended that the FAA should enhance management
controls by implementing post-employment guidance that includes a
``cooling-off'' period to prohibit an air carrier from hiring an FAA
ASI who previously inspected the air carrier from acting in any type of
liaison capacity between that air carrier and the FAA. A full copy of
the report is contained in the docket for this rulemaking.

Proposed Legislation

    On July 15, 2008, Congressman James L. Oberstar introduced the
Aviation Safety Enhancement Act of 2008 (H.R. 6493). Section 4 of the
proposed legislation included post employment restrictions for AFS
ASIs. The proposed legislation would prohibit certificate holders from
employing or contracting with a former AFS ASI or other person with
certificate holder oversight responsibilities to represent that
certificate holder in any matter before the FAA for a 2-year period
after leaving the FAA. The proposed legislation was passed unanimously
by the House of Representatives on July 22, 2008. However, it was not
subsequently passed by the Senate prior to adjournment of the 110th
Congress.
    On May 21, 2009, the House of Representatives passed the FAA
Reauthorization Act of 2009 (H.R. 915). Section 333 of the proposed
legislation contains language identical to that proposed earlier in
section 4 of the Aviation Safety Enhancement Act of 2008. Similar
provisions are also found in Section 513 of the FAA Air Transportation
Modernization and Safety Improvement Act which was introduced in the
Senate on July 14, 2009 (S. 1451).

Managing Risks in Civil Aviation: A Review of the FAA's Approach to
Safety

    On May 1, 2008, former Secretary of Transportation, Mary E. Peters,
appointed an independent review team to examine the FAA's safety
culture and its implementation of safety management systems. She asked
the team to prepare recommendations that would optimize the FAA's
regulatory effectiveness. On September 2, 2008, the independent review
team issued its report titled, ``Managing Risks in Civil Aviation: A
Review of the FAA's Approach to Safety.'' A full copy of the report may
be found in the docket for this rulemaking.
    The report stated that ``[t]he FAA, like all other regulators,
faces the danger of regulatory capture. Capture occurs when a
regulatory agency draws so close to those with whom it deals on a daily
basis (i.e. the regulated) that the agency ends up elevating their
concerns at the expense of the agency's core mission. One feature of
the FAA's current structure has the potential to increase this risk:
the inspection teams are mostly organized around airlines, rather than
cutting across multiple airlines and organizing around some other
dimension, like geography, or type of plane. Most regulatory agencies
organize by broad functional areas (like

enforcement, education, etc.) and also by geography; as a result, any
one inspector normally deals with multiple corporations on a daily
basis. By contrast, the majority of FAA airline inspectors are assigned
to a specific Certificate Management Office, and deal with one airline,
full time, and for many years at a stretch * * *''
    Further, the report stated that the panel does ``understand the
enhanced risk of regulatory capture that long-standing relationships
between regulators and regulated entities might produce. We understand
also the countervailing value in accumulating a detailed knowledge of a
specific airline's operations. We believe that any enhanced risk of
capture can be properly mitigated * * *'' This proposal would serve to
mitigate the risks associated with regulatory capture by establishing a
``cooling off'' period for former AFS ASIs, while allowing AFS ASIs
assigned to a specific operator to acquire the level of knowledge
necessary to conduct effective oversight.

Current Post Employment Restrictions of Former Employees

    Section 207(a)(1) of Title 18, United States Code (18 U.S.C.)
generally places a permanent restriction on former executive branch
employees (including FAA employees) regarding their ability to
represent any other person in connection with a particular matter in
which the United States government has a direct and substantial
interest and in which that person participated personally and
substantially.
    In addition, it also places a 2-year restriction on those same
former employees concerning their ability to represent any other person
in connection with a particular matter in which the U.S. government has
a direct and substantial interest and which that person knew, or
reasonably should have known, was pending under his or her official
responsibility within 1 year of their separation. Section 207(a)(2)
basically restricts a person's ability to represent an entity before
the FAA on particular matters in which they were involved. It does not
limit a former FAA employee's ability to obtain employment with any
entity.

Current FAA Flight Standards Service Policy

    In order to minimize the influence of a particular carrier on the
FAA, AFS policy provides for a 2-year ``cooling off'' period for newly
employed ASIs, which prohibits them from having certificate management
responsibilities for their former aviation employer. The proposed rule
would not change this longstanding FAA policy. It would, however,
create a corresponding requirement applicable to operators who seek to
employ certain former FAA ASIs and those responsible for their
oversight. Current AFS policy was first set forth in a memorandum,
dated May 10, 1990 from the Director, Flight Standards Service (AFS-1)
to all AFS staff. It was reiterated in two subsequent AFS-1 memoranda
dated July 18, 1996 and April 9, 2008.

II. Discussion of the Proposal

    The FAA has considered the proposed legislation, the current ethics
regulations, and the recommendations raised in the previously discussed
reports. Although 18 U.S.C. 207 establishes some general restrictions
for Federal employees after they leave government service, the FAA
proposes additional safety-based restrictions on certificate holders
conducting operations under parts 121, 125, 133, 135, 137, 141, 142,
145 or 147. (Parts 121, 125, 133, 135, 137, 141, 142, 145 and 147 apply
to: Air carriers conducting domestic, flag, or supplemental operations;
operators of airplanes having a seating capacity of 20 or more
passengers or a maximum payload capacity of 6,000 pounds or more;
rotorcraft external-load operations; commuter and on-demand operations;
agricultural aircraft operations; pilot schools; training centers;
repair stations; and aviation maintenance technician schools,
respectively). The proposed restrictions would apply if the certificate
holder employs (or makes a contractual arrangement with) a former AFS
ASI or a person directly responsible for the oversight of the ASI and
either person had direct responsibility to inspect, or oversee the
inspection of, the certificate holder. The proposed restrictions would
also apply to persons who own or manage fractional ownership program
aircraft that are used to conduct operations using fractional ownership
program aircraft under subpart K of part 91.
    The proposed rule would address a significant concern highlighted
in the report issued by the independent review team--the need to
address ``regulatory capture'' to mitigate risk. Although the report
did not specifically recommend a ``cooling off period'' for former AFS
ASIs after they leave the FAA, this proposed rule is consistent with
the FAA's commitment to take steps to mitigate the risk that a current
FAA employee may engage inappropriately with a regulated party. This
proposed rule would establish restrictions on these operators that
exceed current restrictions applicable to most businesses who hire
former Federal employees.
    The proposed rule would specifically apply to AFS ASIs and those
persons directly responsible for their oversight. The FAA considers an
AFS ASI to be a properly credentialed individual who holds FAA Form
110A and is authorized under the provisions of 49 U.S.C. 40113 to
perform inspections and investigations.
    This proposal would prohibit any person conducting operations under
parts 121, 125, 133, 135, 137, 141, 142, 145, 147, or subpart K of part
91 from knowingly employing or contracting with a former AFS ASI
(Avionics, Cabin Safety, Dispatch, Maintenance, or Operations), or
other person with oversight responsibilities for that operator, to
represent that operator in any matter before the FAA. These
restrictions would apply if the person, in the preceding 2-year period
has served as, or was directly responsible for the oversight of, an AFS
ASI and had the direct responsibility to inspect, or oversee the
inspection of, the operator. Operators, however, would only be
restricted from employing or making a contractual arrangement with
former AFS ASIs who had inspection or oversight responsibilities for
that particular operator. The proposed rule would not apply if an
operator employs or contracts with an AFS ASI who had inspection or
oversight responsibilities for another operator that has (or may have
had) a marketing, code share, business partnership, or similar
relationship with the operator. The FAA contends that these often
temporary business arrangements between separate and distinct operators
do not warrant the application of the restrictions set forth in this
proposed rule.
    The FAA would consider the proposed restrictions to apply only to
those operators employing persons who had an office location in a
Flight Standards District Office or a Certificate Management Office
with oversight responsibilities for the operator (e.g. Office Managers,
Assistant Office Managers, Unit Supervisors, and Aviation Safety
Inspectors). AFS ASIs directly engaged in certificate management
typically develop extensive knowledge of an operator's practices. They
also develop close working relationships with other AFS ASIs with whom
they share direct oversight responsibilities for that particular
operator. The FAA believes that aviation safety could be compromised if
a former AFS ASI, acting on behalf of the operator, is able to exert
undue influence on current

FAA employees with whom he or she had established close working
relationships while working at a Flight Standards District Office or a
Certificate Management Office. This proposed rule would address these
concerns.
    The intent of the proposed rule is not to affect employment
relationships entered into prior to the effective date of this rule.
Therefore, the proposed rule would not affect any operator currently
employing a former AFS ASI in any capacity. A former AFS ASI hired by
an operator prior to the effective date of the rule may continue to act
as a representative of that operator in any matter before the FAA. The
proposal would only prohibit an operator from hiring or making a
contractual arrangement with an individual to act as a representative
of the operator in any matter before the FAA if the individual had
direct certificate oversight responsibilities for that operator in the
previous 2 years and that employment commenced on or after the
effective date of the rule.
    The following examples further explain the provisions of this
proposed rule:
    (1) A former AFS ASI who was assigned direct oversight
responsibilities for air carrier X, who is currently working for air
carrier X in any position which includes representing air carrier X to
the FAA prior to the effective date of the rule, may continue in that
position.
    (2) In order to be hired by training center A for a position which
includes representing the training center in any matter before the FAA,
on or after the effective date of the rule, the former AFS ASI must be
able to look back over the 2 years preceding his or her being hired by
training center A and determine that during that preceding 2 years the
former ASI was not assigned oversight responsibilities for training
center A.
    (3) A former AFS ASI who was assigned direct oversight
responsibilities for repair station Q may immediately go to work for
any repair station other than repair station Q in any position.
    (4) A former AFS ASI who was assigned direct oversight
responsibilities for aviation maintenance technician school Q may
immediately go to work for aviation maintenance technician school Q in
any position that does not require representing aviation maintenance
technician school Q to the FAA.
    The FAA has many employees other than AFS ASIs with direct
oversight responsibilities for various regulated entities. However,
after considering the potential safety risks and in light of the
findings of recent reports, the FAA proposes only to establish
restrictions for operators who employ or make contractual arrangements
with former AFS ASIs who previously had direct oversight responsibility
for that operator. This action is necessary to address the development
of overly collaborative relationships that may occur during routine AFS
surveillance of certain operators. Such relationships occur when a
regulatory agency draws so close to those with whom it deals on a daily
basis (i.e. the regulated) that the agency ends up elevating their
concerns at the expense of the agency's core safety mission.
    The proposed rule would not prohibit an operator from employing a
former AFS ASI to serve in any capacity if that former AFS ASI did not
have direct oversight responsibilities for that operator within the
previous 2 years. The FAA acknowledges that the skills and expertise
former FAA employees bring to the aviation industry are valuable and
enhance safety. The agency notes that there are many employment
opportunities for former FAA employees that would not be restricted by
the proposed rule. There are numerous positions that would typically
not require representing an operator to the FAA, but would take
advantage of the unique skill set that a former AFS ASI would possess.
For example, under most circumstances, working in operations or
maintenance as an aircraft dispatcher, flight attendant, maintenance
technician, training instructor, or pilot would not be prohibited by
the proposed rule. As long as the covered employee did not act as an
agent or representative of the operator before the FAA, the employee
would be able to provide highly beneficial expertise and enhance safety
in areas such as safety management systems, continuous analysis
programs, operational training programs, crewmember training programs,
maintenance training programs, aircraft dispatcher training programs,
ETOPs (Extended Range Operations), operational control systems,
maintenance, accident investigation, and regulatory compliance.
    Based on recent events and reviews of the FAA's safety oversight
programs, the agency has determined that the proposed restrictions set
forth in this notice must be placed on the employment of persons
holding certain agency positions that could lead to organizational
conflicts of interest. This proposed rule would enhance the FAA's
ability to properly perform its safety mission and ensure the integrity
of the programs administered by the FAA.
    During the development of this proposal, the FAA considered a
prohibition on operators employing a former AFS ASI to serve in any
capacity if that former AFS ASI had direct oversight responsibilities
for that operator within the previous 2 years. The FAA determined that
as long as the former AFS ASI did not act as an agent or a
representative of the operator in any matter before the FAA, serving in
other positions with the operator (e.g. aircraft dispatcher, flight
attendant, maintenance technician, pilot, or training instructor) would
not be prohibited by the proposed rule. The FAA also consulted with
representatives of the Professional Aviation Safety Specialists (PASS)
to determine their views on the scope of the restrictions; a record of
that meeting is available in the docket. The FAA is seeking specific
comments on whether the prohibition on operators should be more
restrictive than as proposed.
    In addition, the agency is proposing the period of restriction as a
sliding timeline, with the 2-year clock starting on the last day the
AFS ASI or supervisor had direct responsibility for oversight of the
operator. The FAA is also seeking specific comments on whether the
prohibition should instead begin on the date the individual's
employment by the FAA is terminated.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. We have determined that there
is no new information collection requirement associated with this
proposed rule.

International Compatibility

    In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these proposed regulations.

III. Regulatory Evaluation, Regulatory Flexibility Determination,
International Trade Impact Assessment, and Unfunded Mandates Assessment

    Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or

adopt a regulation only upon a reasoned determination that the benefits
of the intended regulation justify its costs. Second, the Regulatory
Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze
the economic impact of regulatory changes on small entities. Third, the
Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting
standards that create unnecessary obstacles to the foreign commerce of
the United States. In developing U.S. standards, this Trade Act
requires agencies to consider international standards and, where
appropriate, that they be the basis of U.S. standards. Fourth, the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies
to prepare a written assessment of the costs, benefits, and other
effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation with base year of
1995). This portion of the preamble summarizes the FAA's analysis of
the economic impacts of this proposed rule.
    Department of Transportation Order DOT 2100.5 prescribes policies
and procedures for simplification, analysis, and review of regulations.
If the expected cost impact is so minimal that a proposed or final rule
does not warrant a full evaluation, this order permits that a statement
to that effect and the basis for it to be included in the preamble if a
full regulatory evaluation of the cost and benefits is not prepared.
Such a determination has been made for this proposed rule. The
reasoning for this determination follows:
    The proposed rule would prohibit any of the previously mentioned
certificate holders from employing or making a contractual agreement
with an individual who was responsible for the direct oversight of an
operator as an FAA AFS ASI or who had responsibility to inspect or
oversee the inspections of the operator during the preceding 2 years.
This proposed rule would also apply to fractional owners or fractional
ownership program managers who conduct operations under subpart K of
part 91. These proposed restrictions would prevent potential
organizational conflicts of interest that could adversely affect
aviation safety or create a perception of such conflicts of interest.
The proposed rule would have minimal economic impact. The affected
former FAA employees would be allowed to work for other operators for
which they did not have direct oversight responsibilities. In addition,
they would be able to work for operators for which they did have direct
oversight responsibilities provided that they do not represent the
operator in any matter before the FAA.

Who Would Be Potentially Affected by This Proposed Rule

    This proposal would affect current and future AFS ASIs and persons
responsible for their oversight who would perform work after the
effective date of the rule for an operator for which they had direct
oversight responsibilities when employed by the FAA. In addition, this
proposal would affect operators that would have hired former FAA
employees who had oversight responsibilities for those operators.

Potential Benefits and Costs

    The benefits associated with this proposal would arise from
preventing potential organizational conflicts of interest. There would
also be benefits from reducing the potential public perception that:
(1) A current AFS ASI who was offered post-FAA employment with an
operator he or she regulates could compromise current aviation safety;
and (2) future aviation safety could be compromised if a former FAA
employee working for an operator would be able to exert undue influence
on current FAA employees with whom he or she had established close
working relationships. This prohibition would also apply to the more
likely case of former AFS ASIs who would become consultants to the
operator. By prohibiting such a close relationship between a former AFS
ASI and the operator for which he or she had direct oversight
responsibilities, the potential for an overly collaborative
relationship leading to a possible lapse in safety standards would be
avoided, increasing the public's confidence in the safety and integrity
of the FAA inspection system. Such benefits cannot be quantified.
    The proposed rule would also create some minor inefficiencies. In
general, an operator can benefit from employing a former AFS ASI
because that ASI knows more about FAA processes than someone who had
not worked for the FAA. In addition, that ASI would know more about the
operator than some other former AFS ASI. Further, a former AFS ASI from
a specific Flight Standards District Office or Certificate Management
Office will have greater knowledge about that office (as well as be
better acquainted with the people in that office) than would a former
AFS ASI from a different office.
    For example, some operators may believe that employing a former AFS
ASI who recently had direct oversight responsibilities for their
operations would reduce the time to obtain FAA approval for manual
revisions partially due to the personal relationships between the
former ASI and current FAA employees. Due to the general similarities
among the groups of operators, the potential inefficiencies from
employing a former ASI who had not had direct oversight
responsibilities for that operator would not be significant. Thus, from
the societal point of view, the overall losses to some individual
former FAA inspectors would be largely offset by gains to other former
FAA inspectors or qualified personnel. Although the proposed rule would
create income transfers among individuals, at this time, we cannot
quantify this overall loss on an individual basis. From a societal
basis, the safety differential paid for the incremental loss in
knowledge will be very small.
    The number of former AFS ASIs who leave the FAA varies from year to
year. We took the time period of October 1, 2007 to October 2, 2008 as
a representative year-long period. As shown in Table 1, of the 208 AFS
ASIs who left FAA employment, 138 voluntarily retired, 8 retired due to
disability, 27 resigned, 10 were removed, 10 were terminated during
their probation period, 4 had their appointments terminated, and 11
died. Of the voluntary retirements, 13 personnel were from FAA
headquarters and were not specifically assigned to an operator. They
would not be affected by the proposed rule. The maximum number of AFS
ASIs who would have been affected had the proposed rule been in effect
are the 160 non-headquarters personnel who retired, resigned, or became
disabled. (We assumed that ASIs terminated or removed from their FAA
position would be unlikely to be hired by an operator to work with
their former FAA office in the absence of this proposed rule, and
therefore would not be part of the potential economically affected
population.)

 Table 1--The Number of AFS ASIs Who Left FAA Employment Between 10/1/07
                               and 10/2/08
------------------------------------------------------------------------
                                                              Number of
                   Reason for separation                      inspectors
------------------------------------------------------------------------
Voluntary Retirement.......................................          138
Disability Retirement......................................            8
Resignation................................................           27
Removal....................................................           10
Termination During Probation Period........................           10
Termination of Appointment.................................            4

Death......................................................           11
                                                            ------------
    Total..................................................          208
------------------------------------------------------------------------

    Currently, the FAA does not officially track the status of former
AFS ASIs. We believe that few of these former AFS ASIs would become
involved in post-FAA employment that would be subject to the
restrictions of the proposed rule. Although the proposal may affect
only a small number of former AFS ASIs, inappropriate action by a
single ASI could potentially lead to significant safety issues. We
further believe that this overall economic impact would be minimal,
with the potential benefits exceeding the costs. We request comments on
this analysis.
    The FAA has, therefore, determined that this proposed rule would
impose minimal cost, and under DOT 2100.5 we did not prepare a full
regulatory evaluation.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the businesses, organizations, and governmental jurisdictions
subject to regulation. To achieve this principle, agencies are required
to solicit and consider flexible regulatory proposals and to explain
the rationale for their actions to assure that such proposals are given
serious consideration.'' The RFA covers a wide range of small entities,
including small businesses, not-for-profit organizations, and small
governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
    However, if an agency determines that a rule is not expected to
have a significant economic impact on a substantial number of small
entities, section 605(b) of the RFA provides that the head of the
agency may so certify and a regulatory flexibility analysis is not
required. The certification must include a statement providing the
factual basis for this determination, and the reasoning should be
clear.
    The proposed rule would only prevent an AFS ASI and persons
responsible for their oversight from being employed by the operator for
which he or she had direct oversight responsibilities. The cost to an
operator of being unable to employ a specific individual would be
minimal because other individuals with similar professional
qualifications as those possessed by the former AFS ASI would be
available.
    Therefore the FAA certifies that this proposed rule would not have
a significant economic impact on a substantial number of small
entities. The FAA requests comments on this certification.

International Trade Impact Analysis

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing any standards or engaging in related
activities that create unnecessary obstacles to the foreign commerce of
the United States. Pursuant to these Acts, the establishment of
standards is not considered an unnecessary obstacle to the foreign
commerce of the United States, so long as the standards have a
legitimate domestic objective, such as the protection of safety, and do
not operate in a manner that excludes imports that meet this objective.
The statute also requires consideration of international standards and,
where appropriate, that they be the basis for U.S. standards. The FAA
notes the purpose is to ensure the safety of the American public, and
has assessed the effects of this rule to ensure that it does not
exclude imports that meet this objective. As a result, this rule is not
considered as creating an unnecessary obstacle to foreign commerce.

Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in an expenditure of $100 million or more
(in 1995 dollars) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $136.1 million in lieu of $100
million. This proposed rule does not contain such a mandate; therefore,
the requirements of Title II of the Act do not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. We determined that this
action would not have a substantial direct effect on the States, on the
relationship between the national Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and, therefore, would not have federalism implications.

Environmental Analysis

    FAA Order 1050.1E identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act in the absence of extraordinary circumstances. The FAA has
determined this proposed rulemaking action qualifies for the
categorical exclusion identified in paragraph 312f and involves no
extraordinary circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or
Use

    The FAA has analyzed this NPRM under Executive Order 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). While this NPRM is a ``significant
regulatory action'' under Executive Order 12866, we have determined
that it is not a ``significant energy action'' under the executive
order because it is not likely to have a significant adverse effect on
the supply, distribution, or use of energy.

Additional Information

Comments Invited
    The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. We also
invite comments relating to the economic, environmental, energy, or
federalism impacts that might result from adopting the proposals in
this document. The most helpful comments reference a specific portion
of the proposal, explain the reason for any recommended change, and
include supporting data. To ensure the docket does not contain
duplicate comments, please send only one copy of written comments, or
if you are filing comments electronically, please submit your comments
only one time.
    We will file in the docket all comments we receive, as well as a
report summarizing each substantive public contact with FAA personnel

concerning this proposed rulemaking. Before acting on this proposal, we
will consider all comments we receive on or before the closing date for
comments. We will consider comments filed after the comment period has
closed if it is possible to do so without incurring expense or delay.
We may change this proposal in light of the comments we receive.
Proprietary or Confidential Business Information
    Do not file in the docket information that you consider to be
proprietary or confidential business information. Send or deliver this
information directly to the person identified in the FOR FURTHER
INFORMATION CONTACT section of this document. You must mark the
information that you consider proprietary or confidential. If you send
the information on a disk or CD-ROM, mark the outside of the disk or
CD-ROM and also identify electronically within the disk or CD-ROM the
specific information that is proprietary or confidential.
    Under 14 CFR 11.35(b), when we are aware of proprietary information
filed with a comment, we do not place it in the docket. We hold it in a
separate file to which the public does not have access, and we place a
note in the docket that we have received it. If we receive a request to
examine or copy this information, we treat it as any other request
under the Freedom of Information Act (5 U.S.C. 552). We process such a
request under the DOT procedures found in 49 CFR part 7.
Availability of Rulemaking Documents
    You can get an electronic copy of rulemaking documents using the
Internet by--
    1. Searching the Federal eRulemaking Portal (http://
www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at: http://
www.faa.gov/regulations_policies/; or
    3. Accessing the Government Printing Office's Web page at: http://
www.gpoaccess.gov/fr/index.html.
    You can also get a copy by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue, SW., Washington, DC 20591, or by calling<PHONE_NUMBER>. Make
sure to identify the docket or notice number of this rulemaking.
    You may access all documents the FAA considered in developing this
proposed rule, including economic analyses and technical reports, from
the Internet through the Federal eRulemaking Portal referenced in
paragraph (1).

List of Subjects

14 CFR Part 91

    Aircraft, Airmen, Airports, Aviation safety.

14 CFR Part 119

    Air carriers, Aircraft, Aviation safety.

14 CFR Part 125

    Aircraft, Aviation safety.

14 CFR Part 133

    Aircraft, Aviation safety.

14 CFR Part 137

    Aircraft, Aviation safety.

14 CFR Part 141

    Educational facilities, Schools.

14 CFR Part 142

    Educational facilities, Schools.

14 CFR Part 145

    Aircraft, Aviation safety.

14 CFR Part 147

    Aircraft, Educational facilities, Schools.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation
Administration proposes to amend Chapter I of Title 14, Code of Federal
Regulations, as follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

    1. The authority citation for part 91 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101,
44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717,
44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-
47531, articles 12 and 29 of the Convention on International Civil
Aviation (61 Stat. 1180).

    2. Add Sec.  91.1050 to read as follows:

Sec.  91.1050  Employment of former FAA employees.

    (a) Except as specified in paragraph (c) of this section, no
fractional owner or fractional ownership program manager may knowingly
employ or make a contractual arrangement which permits an individual to
act as an agent or representative of the fractional owner or fractional
ownership program manager in any matter before the Federal Aviation
Administration if the individual, in the preceding 2 years--
    (1) Served as, or was directly responsible for the oversight of, a
Flight Standards Service aviation safety inspector; and
    (2) Had direct responsibility to inspect, or oversee the inspection
of, the operations of the fractional owner or fractional ownership
program manager.
    (b) For the purpose of this section, an individual shall be
considered to be acting as an agent or representative of a fractional
owner or fractional ownership program manager in a matter before the
agency if the individual makes any written or oral communication on
behalf of the fractional owner or fractional ownership program manager
to the agency (or any of its officers or employees) in connection with
a particular matter, whether or not involving a specific party and
without regard to whether the individual has participated in, or had
responsibility for, the particular matter while serving as a Flight
Standards Service aviation safety inspector.
    (c) The provisions of this section do not prohibit a fractional
owner or fractional ownership program manager from knowingly employing
or making a contractual arrangement which permits an individual to act
as an agent or representative of the fractional owner or fractional
ownership program manager in any matter before the Federal Aviation
Administration if the individual was employed by the fractional owner
or fractional ownership program manager before [effective date of the
rule].

PART 119--CERTIFICATION: AIR CARRIERS AND COMMERCIAL OPERATORS

    3. The authority citation for part 119 continues to read as
follows:

    Authority:  49 U.S.C. 106(g), 1153, 40101, 40102, 40103, 40113,
44105, 44106, 44111, 44701-44717, 44722, 44901, 44903, 44904, 44906,
44912, 44914, 44936, 44938, 46103, 46105.

    4. Add Sec.  119.73 to read as follows:

Sec.  119.73  Employment of former FAA employees.

    (a) Except as specified in paragraph (c) of this section, no
certificate holder conducting operations under part 121 or 135 of this
chapter may knowingly employ or make a contractual arrangement which
permits an individual to act as an agent or representative of the
certificate holder in any matter before the Federal Aviation
Administration if the individual, in the preceding 2 years--
    (1) Served as, or was directly responsible for the oversight of, a
Flight Standards Service aviation safety inspector; and
    (2) Had direct responsibility to inspect, or oversee the inspection
of, the operations of the certificate holder.
    (b) For the purpose of this section, an individual shall be
considered to be

acting as an agent or representative of a certificate holder in a
matter before the agency if the individual makes any written or oral
communication on behalf of the certificate holder to the agency (or any
of its officers or employees) in connection with a particular matter,
whether or not involving a specific party and without regard to whether
the individual has participated in, or had responsibility for, the
particular matter while serving as a Flight Standards Service aviation
safety inspector.
    (c) The provisions of this section do not prohibit a certificate
holder from knowingly employing or making a contractual arrangement
which permits an individual to act as an agent or representative of the
certificate holder in any matter before the Federal Aviation
Administration if the individual was employed by the certificate holder
before [effective date of the rule].

PART 125--CERTIFICATION AND OPERATIONS: AIRPLANES HAVING A SEATING
CAPACITY OF 20 OR MORE PASSENGERS OR A MAXIMUM PAYLOAD CAPACITY OF
6,000 POUNDS OR MORE; AND RULES GOVERNING PERSONS ON BOARD SUCH
AIRCRAFT

    5. The authority citation for part 125 continues to read as
follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44710-
44711, 44713, 44716-44717, 44722.

    6. Add Sec.  125.26 to read as follows:

Sec.  125.26  Employment of former FAA employees.

    (a) Except as specified in paragraph (c) of this section, no
certificate holder may knowingly employ or make a contractual
arrangement which permits an individual to act as an agent or
representative of the certificate holder in any matter before the
Federal Aviation Administration if the individual, in the preceding 2
years--
    (1) Served as, or was directly responsible for the oversight of, a
Flight Standards Service aviation safety inspector; and
    (2) Had direct responsibility to inspect, or oversee the inspection
of, the operations of the certificate holder.
    (b) For the purpose of this section, an individual shall be
considered to be acting as an agent or representative of a certificate
holder in a matter before the agency if the individual makes any
written or oral communication on behalf of the certificate holder to
the agency (or any of its officers or employees) in connection with a
particular matter, whether or not involving a specific party and
without regard to whether the individual has participated in, or had
responsibility for, the particular matter while serving as a Flight
Standards Service aviation safety inspector.
    (c) The provisions of this section do not prohibit a certificate
holder from knowingly employing or making a contractual arrangement
which permits an individual to act as an agent or representative of the
certificate holder in any matter before the Federal Aviation
Administration if the individual was employed by the certificate holder
before [effective date of the rule].

PART 133--ROTORCRAFT EXTERNAL-LOAD OPERATIONS

    7. The authority citation for part 133 continues to read as
follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701-44702.

    8. Add Sec.  133.22 to read as follows:

Sec.  133.22  Employment of former FAA employees.

    (a) Except as specified in paragraph (c) of this section, no
certificate holder may knowingly employ or make a contractual
arrangement which permits an individual to act as an agent or
representative of the certificate holder in any matter before the
Federal Aviation Administration if the individual, in the preceding 2
years--
    (1) Served as, or was directly responsible for the oversight of, a
Flight Standards Service aviation safety inspector; and
    (2) Had direct responsibility to inspect, or oversee the inspection
of, the operations of the certificate holder.
    (b) For the purpose of this section, an individual shall be
considered to be acting as an agent or representative of a certificate
holder in a matter before the agency if the individual makes any
written or oral communication on behalf of the certificate holder to
the agency (or any of its officers or employees) in connection with a
particular matter, whether or not involving a specific party and
without regard to whether the individual has participated in, or had
responsibility for, the particular matter while serving as a Flight
Standards Service aviation safety inspector.
    (c) The provisions of this section do not prohibit a certificate
holder from knowingly employing or making a contractual arrangement
which permits an individual to act as an agent or representative of the
certificate holder in any matter before the Federal Aviation
Administration if the individual was employed by the certificate holder
before [effective date of the rule].

PART 137--AGRICULTURAL AIRCRAFT OPERATIONS

    9. The authority citation for part 137 continues to read as
follows:

    Authority:  49 U.S.C. 106(g), 40103, 40113, 44701-44702.

    10. Add Sec.  137.40 to read as follows:

Sec.  137.40  Employment of former FAA employees.

    (a) Except as specified in paragraph (c) of this section, no
certificate holder may knowingly employ or make a contractual
arrangement which permits an individual to act as an agent or
representative of the certificate holder in any matter before the
Federal Aviation Administration if the individual, in the preceding 2
years--
    (1) Served as, or was directly responsible for the oversight of, a
Flight Standards Service aviation safety inspector; and
    (2) Had direct responsibility to inspect, or oversee the inspection
of, the operations of the certificate holder.
    (b) For the purpose of this section, an individual shall be
considered to be acting as an agent or representative of a certificate
holder in a matter before the agency if the individual makes any
written or oral communication on behalf of the certificate holder to
the agency (or any of its officers or employees) in connection with a
particular matter, whether or not involving a specific party and
without regard to whether the individual has participated in, or had
responsibility for, the particular matter while serving as a Flight
Standards Service aviation safety inspector.
    (c) The provisions of this section do not prohibit a certificate
holder from knowingly employing or making a contractual arrangement
which permits an individual to act as an agent or representative of the
certificate holder in any matter before the Federal Aviation
Administration if the individual was employed by the certificate holder
before [effective date of the rule].

PART 141--PILOT SCHOOLS

    11. The authority citation for part 141 continues to read as
follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709,
44711, 45102-45103, 45301-45302.

    12. Add Sec.  141.34 to read as follows:

Sec.  141.34  Employment of former FAA employees.

    (a) Except as specified in paragraph (c) of this section, no holder
of a pilot

school certificate or a provisional pilot school certificate may
knowingly employ or make a contractual arrangement which permits an
individual to act as an agent or representative of the certificate
holder in any matter before the Federal Aviation Administration if the
individual, in the preceding 2 years--
    (1) Served as, or was directly responsible for the oversight of, a
Flight Standards Service aviation safety inspector; and
    (2) Had direct responsibility to inspect, or oversee the inspection
of, the operations of the certificate holder.
    (b) For the purpose of this section, an individual shall be
considered to be acting as an agent or representative of a certificate
holder in a matter before the agency if the individual makes any
written or oral communication on behalf of the certificate holder to
the agency (or any of its officers or employees) in connection with a
particular matter, whether or not involving a specific party and
without regard to whether the individual has participated in, or had
responsibility for, the particular matter while serving as a Flight
Standards Service aviation safety inspector.
    (c) The provisions of this section do not prohibit a holder of a
pilot school certificate or a provisional pilot school certificate from
knowingly employing or making a contractual arrangement which permits
an individual to act as an agent or representative of the certificate
holder in any matter before the Federal Aviation Administration if the
individual was employed by the certificate holder before [effective
date of the rule].

PART 142--TRAINING CENTERS

    13. The authority citation for part 142 continues to read as
follows:

    Authority:  49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44703,
44705, 44707, 44709-44711, 45102-45103, 45301-45302.

    14. Add Sec.  142.14 to read as follows:

Sec.  142.14  Employment of former FAA employees.

    (a) Except as specified in paragraph (c) of this section, no holder
of a training center certificate may knowingly employ or make a
contractual arrangement which permits an individual to act as an agent
or representative of the certificate holder in any matter before the
Federal Aviation Administration if the individual, in the preceding 2
years--
    (1) Served as, or was directly responsible for the oversight of, a
Flight Standards Service aviation safety inspector; and
    (2) Had direct responsibility to inspect, or oversee the inspection
of, the operations of the certificate holder.
    (b) For the purpose of this section, an individual shall be
considered to be acting as an agent or representative of a certificate
holder in a matter before the agency if the individual makes any
written or oral communication on behalf of the certificate holder to
the agency (or any of its officers or employees) in connection with a
particular matter, whether or not involving a specific party and
without regard to whether the individual has participated in, or had
responsibility for, the particular matter while serving as a Flight
Standards Service aviation safety inspector.
    (c) The provisions of this section do not prohibit a holder of a
training center certificate from knowingly employing or making a
contractual arrangement which permits an individual to act as an agent
or representative of the certificate holder in any matter before the
Federal Aviation Administration if the individual was employed by the
certificate holder before [effective date of the rule].

PART 145--REPAIR STATIONS

    15. The authority citation for part 145 continues to read as
follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701-44702, 44707, 44709,
44717.

    16. Add Sec.  145.160 to read as follows:

Sec.  145.160  Employment of former FAA employees.

    (a) Except as specified in paragraph (c) of this section, no holder
of a repair station certificate may knowingly employ or make a
contractual arrangement which permits an individual to act as an agent
or representative of the certificate holder in any matter before the
Federal Aviation Administration if the individual, in the preceding 2
years--
    (1) Served as, or was directly responsible for the oversight of, a
Flight Standards Service aviation safety inspector; and
    (2) Had direct responsibility to inspect, or oversee the inspection
of, the operations of the certificate holder.
    (b) For the purpose of this section, an individual shall be
considered to be acting as an agent or representative of a certificate
holder in a matter before the agency if the individual makes any
written or oral communication on behalf of the certificate holder to
the agency (or any of its officers or employees) in connection with a
particular matter, whether or not involving a specific party and
without regard to whether the individual has participated in, or had
responsibility for, the particular matter while serving as a Flight
Standards Service aviation safety inspector.
    (c) The provisions of this section do not prohibit a holder of a
repair station certificate from knowingly employing or making a
contractual arrangement which permits an individual to act as an agent
or representative of the certificate holder in any matter before the
Federal Aviation Administration if the individual was employed by the
certificate holder before [effective date of the rule].

PART 147--AVIATION MAINTENANCE TECHNICIAN SCHOOLS

    17. The authority citation for part 147 continues to read as
follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701-44702, 44707-44709.

    18. Add Sec.  147.8 to read as follows:

Sec.  147.8  Employment of former FAA employees.

    (a) Except as specified in paragraph (c) of this section, no holder
of an aviation maintenance technician certificate may knowingly employ
or make a contractual arrangement which permits an individual to act as
an agent or representative of the certificate holder in any matter
before the Federal Aviation Administration if the individual, in the
preceding 2 years--
    (1) Served as, or was directly responsible for the oversight of, a
Flight Standards Service aviation safety inspector; and
    (2) Had direct responsibility to inspect, or oversee the inspection
of, the operations of the certificate holder.
    (b) For the purpose of this section, an individual shall be
considered to be acting as an agent or representative of a certificate
holder in a matter before the agency if the individual makes any
written or oral communication on behalf of the certificate holder to
the agency (or any of its officers or employees) in connection with a
particular matter, whether or not involving a specific party and
without regard to whether the individual has participated in, or had
responsibility for, the particular matter while serving as a Flight
Standards Service aviation safety inspector.
    (c) The provisions of this section do not prohibit a holder of an
aviation maintenance technician school certificate from knowingly
employing or making a contractual arrangement which permits an
individual to act as an agent or representative of the certificate
holder in any matter before the Federal Aviation Administration if the
individual was employed by the

certificate holder before [effective date of the rule].

    Issued in Washington, DC, on November 9, 2009.
John M. Allen,
Director, Flight Standards Service.
[FR Doc. E9-27852 Filed 11-19-09; 8:45 am]

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