12298 Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Proposed Rules 

5 ‘‘It is true that our whistleblower regulation, 

section 50.7, does not adopt the Section 211 

evidentiary paradigm as such, but neither does it 

adopt the McDonnell Douglas or Price Waterhouse 

paradigms. Our regulation is prohibitory, not 

procedural. It renders discriminatory conduct 

unlawful, but does not purport to prescribe 

evidentiary standards and approaches for use in 

NRC enforcement litigation.’’ 

6Third party claims are those discrimination 

claims that come to the NRC from an individual 

other than the employee who was allegedly 

discriminated against. 

7 2004 represents both: (1) The year when the 

Commission decided TVA and (2) the year that the 

interim program regarding the voluntary use of 

Alternative Dispute Resolution (ADR) in addressing 

discrimination complaints and other allegations of 

wrongdoing was adopted in the NRC’s Enforcement 

Policy. 8Refers to the number of discrimination claims 

for which either: (1) The NRC’s Office of 

Investigations (OI) reached a conclusion and (2) 

those that did not involve an OI investigation and 

were settled via early-ADR (or licensee-sponsored 

internal mediation) or in the DOL. 

9These numbers represent the number of cases 

settled either through early-ADR or in the DOL. 

However, the table does not reflect cases that 

involved DOL settlements between 1/1999 and 9/ 

2004 that also involved an OI case. For information 

only, those numbers are: 1999—10; 2000—7; 2001— 

7; 2002—3; 2003—9; and 2004—3. 

10These numbers represent the number of claims 

that did not meet the threshold prima facie 

determination, were withdrawn by the alleger, or 

came to the NRC as third-party claims. These 

numbers do not take into account that some of the 

open claims might eventually be found to not meet 

the prima facie determination or could be 

withdrawn by the alleger. 

liability by providing ‘clear and 

convincing evidence’ that they would 

have taken the same personnel action 

***’’). By contrast, in cases where the 

staff has stronger evidence that 

protected activity was a contributing 

factor, such as when a document or 

employer’s statements confirm an 

allegation of whistleblower 

discrimination, it would be unlikely 

that the employer could make its case 

by clear and convincing evidence that it 

would have taken the adverse action 

regardless. Thus, the Commission in 

TVA did not condone ‘‘some amount of 

retaliation’’; rather, it established the 

standards for determining the existence 

of whistleblower discrimination if a 

violation is challenged by an employer. 

In deciding TVA, the Commission 

looked to Section 211 for procedural 

guidance in applying Section 50.7 and 

generally adopted Section 211’s overall 

framework. Id. at 194. The Commission, 

however, is not required to follow 

Section 211’s evidentiary standard. Id. 

at 193–194.5 Section 211 establishes 

DOL’s authority to take action in cases 

involving whistleblower discrimination, 

id. at 194, but the NRC’s authority to 

regulate against employee 

discrimination is derived from the 

Atomic Energy Act of 1954. Therefore, 

Section 211 should not be construed as 

directing the NRC’s evidentiary 

approach. 

Further, contrary to the petitioner’s 

assertion, the discrimination data from 

1999–2009 do not appear to evidence 

any meaningful trends because the data 

fluctuates up and down during the years 

prior to and following TVA (2004); in 

some years since TVA, the number of 

discrimination claims filed is higher 

than in the years directly preceding 

TVA and in others that number is lower. 

Also, because the data does not 

differentiate claims failing to meet the 

threshold prima facie determination 

from those that were withdrawn by the 

alleger or came to the NRC as thirdparty claims,6 it is unknown whether 

there is any change in the percentage of 

discrimination allegations that were 

dismissed or withdrawn because they 

failed to meet the threshold for 

investigation, as the petitioner asserts. 

Calendar year 

1999 2000 2001 2002 2003 2004 7 2005 2006 2007 2008 2009 

TOTAL DISCRIMINATION CLAIMS ........... 139 144 108 97 96 97 118 88 84 94 116 

Total Claims Resolved/8% of Total Claims 91/65.5 91/63.2 75/69.4 55/56.7 70/72.9 75/77.3 73/61.9 37/42.0 52/61.9 34/36.2 10/8.6 

NRC Substantiated/% of Total Claims ........ 6/4.3 6/4.2 8/7.4 0/0 4/4.2 3/3.1 1/0.9 2/2.3 0/0 1/1.1 0/0 

NRC Not Substantiated/% of Total Claims 83/59.7 84/58.3 66/61.1 55/56.7 64/66.7 66/68.0 63/53.4 23/26.1 42/50.0 16/17.0 7/6.0 

Settlements/9% of Total Claims .................. 2/1.4 1/0.7 1/0.9 0/0 0/0 6/6.2 9/7.6 9/10.2 10/11.9 17/18.1 3/2.6 

Claims Still Open/% of Total Claims ........... 0/0 0/0 0/0 1/1.0 2/2.1 1/1.0 3/2.5 1/1.1 2/2.3 13/13.8 58/50.0 

Claims Not Warranting NRC Review/10% of 

Total Claims ............................................. 48/34.5 53/36.8 33/30.6 41/42.3 24/25.0 21/21.6 42/35.6 50/56.2 30/35.7 47/50.0 48/41.3 

*

The data contained in this table was obtained from the Allegation Management System. 

Finally, the TVA decision has had no 

effect on the way the NRC staff 

approaches or evaluates whistleblower 

discrimination claims. That is, the NRC 

staff continues to issue notices of 

violations of the Employee Protection 

Rule to licensees, applicants, and 

contractors or subcontractors of 

licensees and applicants based on its 

assessment as to whether the evidence 

shows that protected activity was a 

contributing factor in the adverse action, 

while also taking into consideration 

credible evidence that the employer 

would have taken the same personnel 

action regardless of the protected 

activity. 

Public Comments on the Petition 

Due to this PRM’s primary focus on 

the continued viability of a Commission 

adjudicatory decision, it was deemed a 

legal matter and thus, the NRC did not 

prepare a notice of receipt and request 

for comment, and instead began 

consideration of the request. 

Accordingly, there are no public 

comments on this petition. 

Determination of Petition 

For reasons cited above, the NRC is 

denying PRM–50–92. 

Dated at Rockville, Maryland, this 28th day 

of February 2011. 

For the Nuclear Regulatory Commission. 

Annette L. Vietti-Cook, 

Secretary of the Commission. 

[FR Doc. 2011–5053 Filed 3–4–11; 8:45 am] 

BILLING CODE 7590–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA–2010–1325; Airspace 

Docket No. 10–ASO–40] 

Proposed Amendment of Class E 

Airspace; Orangeburg, SC 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: This action proposes to 

amend Class E Airspace at Orangeburg, 

SC, to accommodate the additional 

airspace needed for the Standard 

Instrument Approach Procedures 

(SIAPs) developed for Orangeburg 

Municipal Airport. This action shall 

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Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Proposed Rules 12299 

enhance the safety and airspace 

management of Instrument Flight Rules 

(IFR) operations at the airport. This 

action also shall make a minor 

adjustment to the geographic 

coordinates of the airport. 

DATES: 0901 UTC. Comments must be 

received on or before April 21, 2011. 

ADDRESSES: Send comments on this rule 

to: U.S. Department of Transportation, 

Docket Operations, West Building 

Ground Floor, Room W12–140, 1200 

New Jersey, SE., Washington, DC 

20590–0001; Telephone: 1–800–647– 

5527; Fax: 202–493–2251. You must 

identify the Docket Number FAA– 

2010–1325; Airspace Docket No. 10– 

ASO–40, at the beginning of your 

comments. You may also submit and 

review received comments through the 

Internet at 

http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: John 

Fornito, Operations Support Group, 

Eastern Service Center, Federal Aviation 

Administration, P.O. Box 20636, 

Atlanta, Georgia 30320; telephone (404) 

305–6364. 

SUPPLEMENTARY INFORMATION:

Comments Invited 

Interested persons are invited to 

comment on this rule by submitting 

such written data, views, or arguments, 

as they may desire. Comments that 

provide the factual basis supporting the 

views and suggestions presented are 

particularly helpful in developing 

reasoned regulatory decisions on the 

proposal. Comments are specifically 

invited on the overall regulatory, 

aeronautical, economic, environmental, 

and energy-related aspects of the 

proposal. 

Communications should identify both 

docket numbers (FAA Docket No. FAA– 

2010–1325; Airspace Docket No. 10– 

ASO–40) and be submitted in triplicate 

to the Docket Management System (see 

ADDRESSES section for address and 

phone number). You may also submit 

comments through the Internet at http:// 

www.regulations.gov. 

Comments wishing the FAA to 

acknowledge receipt of their comments 

on this action must submit with those 

comments a self-addressed stamped 

postcard on which the following 

statement is made: ‘‘Comments to 

Docket No. FAA–2010–1325; Airspace 

Docket No. 10–ASO–40.’’ The postcard 

will be date/time stamped and returned 

to the commenter. 

All communications received before 

the specified closing date for comments 

will be considered before taking action 

on the proposed rule. The proposal 

contained in this notice may be changed 

in light of the comments received. A 

report summarizing each substantive 

public contact with FAA personnel 

concerned with this rulemaking will be 

filed in the docket. 

Availability of NPRMs 

An electronic copy of this document 

may be downloaded from and 

comments submitted through http:// 

www.regulations.gov. Recently 

published rulemaking documents can 

also be accessed through the FAA’s Web 

page at http://www.faa.gov/ 

airports_airtraffic/air_traffic/ 

publications/airspace_amendments/. 

You may review the public docket 

containing the proposal, any comments 

received and any final disposition in 

person in the Dockets Office (see the 

ADDRESSES section for address and 

phone number) between 9 a.m. and 

5 p.m., Monday through Friday, except 

Federal Holidays. An informal docket 

may also be examined during normal 

business hours at the office of the 

Eastern Service Center, Federal Aviation 

Administration, room 210, 1701 

Columbia Avenue, College Park, Georgia 

30337. 

Persons interested in being placed on 

a mailing list for future NPRM’s should 

contact the FAA’s Office of Rulemaking, 

(202) 267–9677, to request a copy of 

Advisory circular No. 11–2A, Notice of 

Proposed Rulemaking distribution 

System, which describes the application 

procedure. 

The Proposal 

The FAA is considering an 

amendment to Title 14, Code of Federal 

Regulations (14 CFR) part 71 to amend 

Class E airspace at Orangeburg, SC to 

provide controlled airspace required to 

support the SIAPs for Orangeburg 

Municipal Airport. The existing Class E 

airspace extending upward from 700 

feet above the surface would be 

modified for the safety and management 

of IFR operations. 

Class E airspace designations are 

published in Paragraph 6005 of FAA 

order 7400.9U, dated August 18, 2010, 

and effective September 15, 2010, which 

is incorporated by reference in 14 CFR 

71.1. The Class E airspace designation 

listed in this document will be 

published subsequently in the Order. 

The FAA has determined that this 

proposed regulation only involves an 

established body of technical 

regulations for which frequent and 

routine amendments are necessary to 

keep them operationally current. It, 

therefore, (1) is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866; (2) is not a ‘‘significant 

rule’’ under DOT Regulatory Policies 

and Procedures (44 FR 11034; February 

26, 1979); and (3) does not warrant 

preparation of a Regulatory Evaluation 

as the anticipated impact is so minimal. 

Since this is a routine matter that will 

only affect air traffic procedures and air 

navigation, it is certified that this 

proposed rule, when promulgated, 

would not have a significant economic 

impact on a substantial number of small 

entities under the criteria of the 

Regulatory Flexibility Act. 

The FAA’s authority to issue rules 

regarding 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 proposed 

rulemaking is promulgated under the 

authority described in subtitle VII, part, 

A, subpart I, section 40103. Under that 

section, the FAA is charged with 

prescribing regulations to assign the use 

of airspace necessary to ensure the 

safety of aircraft and the efficient use of 

airspace. This proposed regulation is 

within the scope of that authority as it 

would amend Class E airspace at 

Orangeburg Municipal Airport, 

Orangeburg, SC. 

Lists of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (Air). 

The Proposed Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend 14 CFR part 71 as 

follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND CLASS E AIRSPACE 

AREAS; AIR TRAFFIC SERVICE 

ROUTES; AND REPORTING POINTS 

1. The authority citation for part 71 

continues to read as follows: 

Authority: 49 U.S.C. 106(g); 40103, 40113, 

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

2. The incorporation by reference in 

14 CFR 71.1 of Federal Aviation 

Administration Order 7400.9U, 

Airspace Designations and Reporting 

Points, dated August 18, 2010, effective 

September 15, 2010, is amended as 

follows: 

Paragraph 6005 Class E airspace areas 

extending upward from 700 feet or more 

above the surface of the earth. 

* * * * * 

ASO GA E5 Orangeburg, SC [Amended] 

Orangeburg Municipal Airport, SC 

(Lat. 33°27′39′′ N., long. 80°51′32′′W.) 

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12300 Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Proposed Rules 

That airspace extending upward from 700 

feet above the surface within a 7.4-mile 

radius of the Orangeburg Municipal Airport. 

Issued in College Park, Georgia, on 

February 18, 2011. 

Mark D. Ward, 

Group Manager, Operations Support Group, 

Eastern Service Center, Air Traffic 

Organization. 

[FR Doc. 2011–5096 Filed 3–4–11; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 139 

[Docket No. FAA–2010–0997; Notice No. 10– 

14] 

RIN 2120–AJ38 

Safety Management System for 

Certificated Airports; Extension of 

Comment Period 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Second extension of comment 

period and notice of procedures for 

submission of clarifying questions. 

SUMMARY: The FAA published a 

proposed rule on October 7, 2010, to 

require each certificate holder to 

establish a safety management system 

(SMS) for its entire airfield environment 

(including movement and nonmovement areas) to improve safety at 

airports hosting air carrier operations. 

The American Association of Airport 

Executives and Airports Council 

International—North America have 

requested that the FAA provide 

additional information supporting the 

proposed rule and extend the comment 

period to allow adequate time for the 

public to analyze and comment on that 

information and the NPRM. This action 

extends the comment period until July 

5, 2011, and establishes a procedure for 

handling clarifying questions to the 

proposed rule. 

DATES: The comment period for the 

NPRM published on October 7, 2010, 

closing on March 7, 2011 is extended 

until July 5, 2011. You must submit 

your clarifying questions in writing 

using the procedures outlined in this 

notice by April 6, 2011. The FAA 

anticipates responding to these 

submissions and providing a summary 

report of the pilot studies by May 21, 

2011. 

ADDRESSES: See the ‘‘Procedures for 

Filing Clarifying Questions’’ section of 

this document. 

FOR FURTHER INFORMATION CONTACT: 

Technical clarifications: Keri Spencer, 

Office of Airports Safety and Standards, 

Federal Aviation Administration, e-mail 

keri.spencer@faa.gov 

Legal clarifications: Robert Hawks, 

Office of the Chief Counsel, Federal 

Aviation Administration, e-mail 

rob.hawks@faa.gov. 

Cost/benefit clarifications: Nicole 

Nance, Office of Aviation Policy and 

Plans, Federal Aviation Administration, 

e-mail nicole.nance@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On October 7, 2010, the FAA 

published Notice No. 10–14, entitled 

‘‘Safety Management System for 

Certificated Airports’’ (75 FR 62008). 

Comments to that document were to be 

received on or before January 5, 2011. 

On December 10, 2010, in response to 

several requests for extension of the 

comment period, the FAA granted an 

additional 60 days for commenters to 

analyze the NPRM and provide 

meaningful comment (75 FR 76928). 

By comments posted to the docket on 

February 17, 2011, Airport Council 

International—North America (ACI–NA) 

and the American Association of 

Airport Executives (AAAE) requested 

the FAA extend the comment period for 

a second time. ACI–NA and AAAE also 

requested the FAA provide additional 

information to allow for meaningful 

comment on the proposed rule. 

Specifically, ACI–NA made the 

following requests: 

(1) Additional information is needed 

regarding the FAA’s proposed SMS 

implementation strategy, most notably 

what will be expected in the required 

SMS Implementation Plans. 

(2) Data, findings, and conclusion— 

both positive and negative—from the 

three SMS pilot studies need to be made 

available in the docket so these findings 

and conclusions can inform the 

industry’s review of the costs, benefits, 

and potential issues arising from the 

implementation of the proposed rule. 

(3) The proposed rule needs to be 

reviewed in conjunction with key 

guidance documents, especially the 

revised version of FAA Advisory 

Circular 150/5200–37. These 

documents, which are mentioned 

explicitly in the FAA’s discussion of the 

proposed rule will describe the standard 

means of compliance with the proposed 

rule and are needed to understand the 

scope and scale of airport SMS 

requirements. 

(4) Additional time will be needed for 

technical analysis by commenters, 

including analyses of the costs and 

benefits of phased SMS implementation, 

an implementation approach on which 

the FAA has specifically requested 

comments. 

AAAE made the following requests: 

(1) We request that the FAA make 

results and recommendations from all 

three phases of the pilot studies 

available before closing the comment 

period. 

(2) The FAA is under a statutory 

deadline to implement the part 121 SMS 

rule and has proposed a short time 

schedule for issuing its part 139 training 

requirements. We request that the 

comment period remain open until the 

other regulatory documents have been 

issued in their final form. 

(3) The agency also has committed to 

issuing an advisory circular on 

implementation of SMS requirements. 

We request that the agency leave the 

comment period open on the proposed 

SMS rule until at least a draft of the 

advisory circular is issued. That way, 

respondents can comment on both 

documents simultaneously. 

AAAE suggests the comment period 

remain open until at least September 30, 

2011. 

FAA Response to the Requests 

The FAA has carefully considered the 

requests for extension of the comment 

period. The FAA believes that the 

narrative and analysis in the NPRM and 

Initial Regulatory Evaluation, which 

was made available in the docket 

concurrently with NPRM publication, 

contain sufficient detail and supporting 

data to permit meaningful comment by 

the public. The FAA also notes that it 

has received thoughtful comments from 

several airports, indicating that 

sufficient information currently exists in 

the docket to permit meaningful 

comment. However, the FAA 

acknowledges there is a belief among 

some members of the public that 

additional information may result in 

better comments. From the request 

submitted, it appears the bulk of this 

concern involves the FAA’s 

implementation strategy for SMS and 

the results of the pilot study. 

To address this concern about 

insufficient information, the FAA has 

determined to pursue a combination of 

strategies. First, the FAA will accept 

and respond to specific clarifying 

questions submitted by the public. This 

strategy will allow the public to identify 

specific areas of the NPRM or Initial 

Regulatory Evaluation that are unclear 

or for which more information may be 

desired. The intent is that the public 

would be able to obtain specific 

information from the FAA, provided 

that information exists. The specific 

procedure is discussed in the 

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