2012-6886. Removal of the Requirement for Individuals Granted the Special Issuance of a Medical Certificate To Carry Their Letter of Authorization While Exercising Pilot Privileges

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Direct final rule; request for comments.

SUMMARY:

This rule removes a regulatory provision under Federal Aviation Administration (FAA) medical certification standards intended, in part, to require that individuals granted the Special Issuance of a Medical Certificate (Authorization) have their letter of Authorization in their physical possession or readily accessible on the aircraft while exercising pilot privileges. The FAA imposed this regulatory provision in 2008 to respond to a 2007 International Civil Aviation Organization (ICAO) adverse audit finding regarding endorsement of FAA certificates. The FAA is not aware of any individuals affected by the standard who have had to produce their letter of Authorization for any civil aviation authorities during the 3-year period the rule has been in effect. For this reason, and because affected individuals find the standard burdensome given that other longstanding FAA operational requirements already mandate that pilots carry their medical certificate when exercising pilot privileges, the FAA has identified this regulation as one that can be removed under Executive Order 13563 of January 18, 2011: “Improving Regulation and Regulatory Review.” While this action removes the burden for affected individuals to carry their medical letter of Authorization, long-standing requirements under FAA operational standards requiring individuals to carry FAA certificates while exercising pilot privileges remain unchanged.

DATES:

Effective July 20, 2012.

Submit comments on or before May 21, 2012. If adverse comment is received, the FAA will publish a timely withdrawal in the Federal Register.

ADDRESSES:

You may send comments identified by docket number FAA-2012-0056 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 (DOT), 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].

Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov,, including any personal information the commenter provides. Using the search function of the docket web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov.

Docket: Background documents or comments received may be read at http://www.regulations.gov at any time. Follow the online instructions for accessing the docket or go 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.

FOR FURTHER INFORMATION CONTACT:

For technical questions concerning this action, contact Ms. Judi Citrenbaum, Office of Aerospace Medicine, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone [phone]; email [e-mail].

For legal questions concerning this action, contact Sabrina Jawed, Office of the Chief Counsel, Regulations Division, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone [phone]; email [e-mail].

SUPPLEMENTARY INFORMATION:

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. 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, Subpart III, Chapter 447, Sections 44701, 44702 and 44703. Under Section 44701 the Administrator has the authority to prescribe regulations and minimum standards for practices, methods and procedures necessary for safety in air commerce and national security. Under Section 44702 the Administrator has the authority to issue certificates. More specifically, under Section 44703(b)(C) the Administrator has the authority to decide terms necessary to ensure safety in air commerce, including terms on the duration of certificates and tests of physical fitness. This rule removes a regulatory provision that requires individuals granted the Special Issuance of a Medical Certificate to have their letter of Authorization in their physical possession or readily accessible on the aircraft while exercising pilot privileges. For this reason, the proposed change is within the scope of the FAA's authority and is a reasonable and necessary exercise of the FAA's statutory obligations.

The Direct Final Rule Procedure

The FAA is adopting this action without prior notice and prior public comment as a direct final rule. Individuals granted the Special Issuance of a Medical Certificate are required to carry sufficient documentation validating their medical fitness to fly, but should not have the additional burden of carrying their letter of Authorization. The FAA has identified this action as burden-relieving under Executive Order 13563 of January 18, 2011, entitled “Improving Regulation and Regulatory Review,” because affected individuals no longer will have to carry their letter of Authorization with them when exercising pilot privileges. The Regulatory Policies and Procedures of the Department of Transportation (DOT) (44 FR 1134; February 26, 1979) provide that, to the maximum extent possible, operating administrations for the DOT should provide an opportunity for public comment on regulations issued without prior notice. Accordingly, the FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The Agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting this final rule.

Unless a written adverse or negative comment or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received, and confirming the date on which the final rule will become effective. If the FAA does receive an adverse or negative comment within the comment period, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register, and a notice of proposed rulemaking may be published with a new comment period.

See the “Additional Information” section for information on how to comment on this direct final rule and how the FAA will handle comments received. The ADDRESSES section contains related information about the docket, privacy, and the handling of proprietary or confidential business information. In addition, there is information on obtaining copies of related rulemaking documents.

I. Overview of Final Rule

As discussed in greater detail throughout this document, this final rule relieves individuals vetted through the FAA special-issuance medical certification process from having to carry their FAA-issued letter of Authorization with them when exercising pilot privileges. Individuals granted special-issuance medical certification are issued a time-limited FAA medical certificate along with a letter of Authorization. Collectively both documents comprise an individual's Authorization. According to FAA records, the FAA issued 28,423 Authorizations in the 2011 fiscal year. Under Executive Order 13563 of January 18, 2011, the FAA identified this action as burden-relieving for affected individuals. This rule imposes no cost on affected pilots. It imposes only a one-time, minor administrative cost to the FAA associated with removing a reference on the FAA medical certificate (FAA Form 8500-9) to the current standard. This rule removes only the requirement to carry the letter of Authorization. It does not remove or modify longstanding operational requirements under Title 14 of the Code of Federal Regulations, Part 61, § 61.3, regarding documentation that must be in an individual's personal possession or readily accessible in the aircraft when exercising pilot privileges.

II. Background

In November 2007, ICAO, the aviation wing of the United Nations, audited the civil aviation safety oversight system of the United States as part of the ICAO Universal Safety Oversight Audit Program (USOAP). ICAO USOAP teams assess whether signatory states, such as the United States, meet international civil aviation standards. Civil aviation licensing and credentialing system compliance with international standards is a main focus area of these audits. As a result of the 2007 audit, the United States received a finding specifying that certain U.S. licenses are not “systematically endorsed as stipulated by Article 39 ^[1] of the Chicago Convention, when the holders do not satisfy in full the conditions laid down in the international standard with respect to the class of licence (sic) or certificate of holders.”

U.S. pilots who fly internationally must comply with international aviation standards. In cases where ICAO standards may exceed U.S. standards, U.S. pilots take measures to make sure they conform with ICAO standards for international operations. For example, U.S. pilots serving as second-in-command on a U.S.-registered aircraft must hold an FAA commercial pilot certificate and an FAA second-class medical certificate. ICAO standards require commercial pilots to meet ICAO Class 1 medical assessment standards, which include electrocardiography provisions. While ICAO Class 1 medical assessment standards and FAA first-class medical standards include electrocardiography provisions, FAA second-class medical standards do not. When exercising privileges internationally, therefore, U.S. second-in-command pilots would obtain an FAA first-class medical certificate to compensate for the electrocardiography difference. As specified in this example, U.S. pilots exercising privileges internationally take measures necessary to conform to ICAO standards; therefore, the FAA has not found cause to “systematically” endorse medical certificates of U.S. pilots. Explanations provided at the time of the audit in this regard, however, were not sufficient to avoid ICAO's finding for corrective action.

Because Article 39 of the Chicago Convention provides that endorsements may be placed on “or attached to” a license, the focus of the corrective action plan was limited to a small population of pilots who, due to special medical considerations, are granted a time-limited, special-issuance medical certificate along with a letter of Authorization. These individuals, the FAA determined, are most likely to be most impacted by the ICAO finding. The letter of Authorization serves as an addendum to the special-issuance medical certificate for affected individuals, and provides information regarding conditions affected individuals must meet in order to exercise pilot privileges. The FAA determined that a corrective action requiring, in part, that individuals carry their Authorization when exercising pilot privileges would be more acceptable than developing and implementing burdensome new licensing procedures for all pilots.

Therefore, on July 24, 2008, the FAA issued a final rule (73 FR 43059) that amended § 67.401 to add new paragraph (j) requiring individuals holding an Authorization to carry it with them when exercising pilot privileges. In addition to this regulatory requirement, the FAA also revised the FAA medical certificate (FAA Form 8500-9) not only to note this requirement for affected medical certificate holders, but also to add more elaborate regulatory references and instructions for all pilots, including instructions to consult the U.S. Aeronautical Information Publication, which contains a listing of U.S. differences with ICAO Standards and Recommended Practices, when flying internationally. By adding several important regulatory references and instructions on the medical certificate, as suggested during the ICAO audit, the FAA met the intent of the ICAO audit finding. The regulatory references and instructions added to the medical certificate will remain as enumerated on FAA medical certificates, only the “Note” making reference to the letter of Authorization will be removed by this action.

III. Discussion of the Direct Final Rule

Before an Authorization is granted, applicants must be thoroughly vetted through a lengthy and rigorous FAA medical certification process. As specified under § 67.401, individuals with specifically disqualifying medical conditions are medically certificated only when they can demonstrate to the satisfaction of the Federal Air Surgeon that the duties authorized by the class of medical certificate applied for can be performed without endangering public safety for the period of time the certificate is held. To demonstrate ability, a special medical flight test, practical test, extensive medical evaluation, or any combination of these may be required. An individual's operational experience and any medical facts that may affect the ability of the individual to perform airman duties is taken into consideration before medical certification is granted.

With such a viable and rigorous special-issuance medical certification process, the FAA did not anticipate an ICAO audit finding that would result in further regulatory requirements. As such, adding § 67.401 (j) to require affected individuals to carry their letter of Authorization was not an expected outcome of the ICAO audit, but was put forth as a negotiated compromise in the audit corrective action plan. The § 67.401 (j) requirement has not been well-received by affected U.S. pilots. The FAA continues to receive complaints from affected U.S. pilots that the full force of the requirement is overly burdensome as well as invasive. It was imposed, however, out of concern that traditional enumeration placed on U.S. medical certificates under the FAA's special-issuance medical certification process might not be detailed enough for affected U.S. pilots during a ramp check in a foreign country, for example. Having the letter of Authorization readily available was deemed to be in the affected pilots' best interest. With 3 years of experience under the rule, however, the FAA is not aware that any civil aviation authority has requested any affected U.S. pilot to produce a letter of Authorization.

In August 2010, the FAA informed ICAO that the U.S. would prefer to remove this requirement, and received no objection to this request. In addition, in April 2011, the FAA conducted a briefing on this matter for a member of the ICAO Air Navigation Commission, indicating that, unless objections were raised, the United States would proceed to revise the regulation to make it less burdensome. The series of new regulatory references and instructions added to all U.S. medical certificates provides sufficient information to medical certificate holders regarding the need for compliance with international standards when exercising pilot privileges.

This action, therefore, removes paragraph (j) of § 67.401 and deletes the “Note” on FAA medical certificates under the header “Conditions of Issue,” which directs affected individuals to carry their letter of Authorization. This action does not affect longstanding FAA operational requirements under § 61.3 regarding FAA certificates that must be carried while exercising pilot privileges, including FAA medical certificates.

Paragraph (j) of § 67.401 no longer will apply once this rule becomes effective. This means that the “Note” under the regulatory reference to § 67.401 (j) listed under the “Conditions of Issue” on an individual's existing FAA medical certificate no longer will be necessary. This does not mean that the FAA needs or intends to re-issue medical certificates. It will be acceptable for the FAA medical certificate to reference this “Note” until an individual's medical certificate is renewed. The FAA will begin using medical certificates with updated “Conditions of Issue” that do not include reference to the removed standard as soon as possible following the effective date of the rule.

IV. 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 and Executive Order 13563 direct 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 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 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 direct final rule. The reasoning for this determination follows:

A. Regulatory Evaluation

Benefit

The benefit of this direct final rule will be that it relieves approximately 28,000 airmen vetted through the FAA special-issuance medical certification process from having to carry their FAA-issued letter of Authorization with them when they fly.

Costs

This rule removes a regulatory provision that requires airmen who have been granted the Special Issuance of a Medical Certificate to have their letter of Authorization in their physical possession or readily accessible on the aircraft while exercising pilot privileges. The only cost associated with this rule is FAA manpower cost associated with making a revision to the FAA medical certificate (FAA Form 8500-9) to remove a reference to the standard that is being removed.

We estimate that it will take an FAA information technology program manager approximately 8 hours to make the revision to the FAA medical certificate. With a burdened labor rate of $115, the total cost is $923 ($863 present value).

The FAA has, therefore, determined that this final rule is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866 and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

B. Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. 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 proposed or final 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 Act.

This rule is burden-relieving; it imposes no cost on affected pilots. Consequently, as the Acting FAA Administrator I certify that the final rule will not have a significant economic impact on a substantial number of small entities.

C. 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 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 standard has a legitimate domestic objective, such as the protection of safety, and does 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 has assessed the potential effect of this direct final rule and determined that it will primarily have only a domestic impact and therefore no effect on international trade.

D. 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 $143.1 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

E. 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. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.

This rule is burden-relieving. No information collection is associated with the removal of the requirement for affected individuals to carry their letter of Authorization or with the removal of certain notation on medical certificates. The Office of Management and Budget (OMB) has approved the collection of information associated with medical certification in accordance with the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under OMB Control Number 2120-0034, valid through August 31, 2014.

F. International Compatibility

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. Prior to adopting this action, the FAA consulted with ICAO counterparts in the ICAO Aviation Medicine Section and on the ICAO Air Navigation Commission to inform them this action is being taken. The FAA did not receive any objections to removing this regulatory provision.

V. Executive Order Determinations

A. Executive Order 13132, Federalism

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

B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use

The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

VI. Additional Information

A. Comments Invited

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The Agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the rulemaking action in this document. The most helpful comments reference a specific portion of the rulemaking action, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking. Before acting on this rulemaking action, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The Agency may change this rulemaking action in light of the comments it receives.

B. Availability of Rulemaking Documents

An electronic copy of rulemaking documents may be obtained from 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.gpo.gov/​fdsys/​.

Copies may also be obtained 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]. Commenters must identify the docket or amendment number of this rulemaking.

All documents the FAA considered in developing this rulemaking action, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.

List of Subjects in 14 CFR Part 67

• Aircraft
• Airmen
• Alcohol abuse
• Drug abuse
• Recreation and recreation areas
• Reporting and recordkeeping requirements

The Amendment

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:

PART 67—MEDICAL STANDARDS AND CERTIFICATION

1. The authority citation for part 67 continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-44711, 45102-45103, 45301-45303.

§ 67.401

[Amended]

2. Amend § 67.401 by removing paragraph (j).

Issued in Washington, DC, on March 8, 2012.

Michael P. Huerta,

Acting Administrator.

Footnotes

1.  Article 39 of the Chicago Convention of 1944 stipulates the following: “Any person holding a license who does not satisfy in full the conditions laid down in the international standard relating to the class of license or certificate which he holds shall have endorsed on or attached to his licence (sic) a complete enumeration of the particulars in which he does not satisfy such conditions.”