[Federal Register Volume 70, Number 5 (Friday, January 7, 2005)]
[Rules and Regulations]
[Pages 1634-1637]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-233]



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Part III





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 65



Process for Requesting Waiver of Mandatory Separation Age for Certain 
Federal Aviation Administration (FAA) Air Traffic Control Specialists; 
Final Rule

  Federal Register / Vol. 70, No. 5 / Friday, January 7, 2005 / Rules 
and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 65

[Docket No. FAA-2004-17334; SFAR No. 103]
RIN 2120-AI18


Process for Requesting Waiver of Mandatory Separation Age for 
Certain Federal Aviation Administration (FAA) Air Traffic Control 
Specialists

AGENCY: Federal Aviation Administration, DOT.

ACTION: Final rule; request for comments.

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SUMMARY: This final rule establishes procedures and some standards by 
which an air traffic controller in a flight service station, en route 
or terminal facility, or at the David J. Hurley Air Traffic Control 
System Command Center may request a waiver of the mandatory separation 
age. By taking this action, the Secretary of the Department of 
Transportation (DOT) implements congressional authority to issue such 
exemptions.

DATES: This final rule is effective January 7, 2005. Comments must be 
submitted on or before February 7, 2005.

ADDRESSES: You may send comments (identified by Docket Number FAA-2004-
17334) using any of the following methods:
     DOT Docket Web site: Go to http://dms.dot.gov and follow 
the instructions for sending your comments electronically.
     Governmentwide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Fax: 1-202-493-2251.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    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://dms.dot.gov, including any personal information you provide. For 
more information, see the Privacy Act discussion in the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: To read background documents or comments received, go to 
http://dms.dot.gov at any time or to Room PL-401 on the plaza level of 
the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Wanda Reyna, ATO Workforce Services 
(ATO-A) Federal Aviation Administration, 800 Independence Avenue, SW., 
Washington, DC 20591; telephone (202) 267-3056.

SUPPLEMENTARY INFORMATION: 

Comments Invited

    The FAA is adopting this final rule without prior notice and prior 
public comment in light of Congressional direction to issue this final 
rule by March 1, 2004. The Regulatory Policies and Procedures of the 
Department of Transportation (DOT) (44 FR 1134; February 26, 1979), 
however, 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, we 
invite interested persons to participate in this rulemaking by 
submitting such written data, views, or arguments, as they may desire. 
We also invite comments relating to environmental, energy, federalism, 
or international trade impacts that might result from this amendment.
    Please include the regulatory docket or amendment number and send 
two copies to the address above. We will file all comments received, as 
well as a report summarizing each substantive public contact with FAA 
personnel on this rulemaking, in the public docket. The docket is 
available for public inspection before and after the comment closing 
date.
    Privacy Act: Using the search function of our docket Web site, 
anyone can find and read the comments received into any of our dockets, 
including the name of the individual sending the comment (or signing 
the comment on behalf of 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://dms.dot.gov.
    The FAA will consider all comments received on or before the 
closing date for comments. We will consider late comments to the extent 
practicable. We may amend this final rule in light of the comments 
received.
    Commenters who want the FAA to acknowledge receipt of their 
comments submitted in response to this final rule must include a 
preaddressed, stamped postcard with those comments on which the 
following statement is made: ``Comments to Docket No. FAA-2004-17334.'' 
The postcard will be date-stamped by the FAA and mailed to the 
commenter.

Availability of Final Rule

    You can get an electronic copy using the Internet by:
    (1) Searching the Department of Transportation's electronic Docket 
Management System (DMS) Web page (http://dms.dot.gov/search);
    (2) Visiting the Office of Rulemaking's Web page at http://www.faa.gov/avr/arm/index.cfm; or
    (3) Accessing the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.
    You can also get a copy by submitting a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Be 
sure to identify the docket number, notice number, or amendment number 
of this rulemaking.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. Therefore, any small entity that has a question regarding 
this document may contact their local FAA official, or the person 
listed under FOR FURTHER INFORMATION CONTACT. You can find out more 
about SBREFA on the Internet at our site, http://www.gov/avr/arm/sbrefa.htm. For more information on SBREFA, e-mail us [email protected].

Background

    Section 8335(a) of Title 5 of the United States Code mandates that 
the Secretary, under such regulations as he may prescribe may exempt a 
controller having exceptional skills and experience as a controller 
from the automatic separation provisions or mandatory separation 
provisions of the statute until that controller becomes 61 years of 
age. This direction to the Secretary to create regulations, in 
consultation with the Administrator of the Federal Aviation 
Administration, to allow individual air traffic controllers to delay 
mandatory separation was restated in the Transportation, Treasury,

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and Independent Agencies Appropriations Act for fiscal year 2004, H.R. 
2673, 108th Cong. (2004). Pursuant to this direction, this final rule 
establishes procedures by which an air traffic control specialist may 
request a waiver of the mandatory separation age.
    FAA air traffic control II specialists in flight service stations, 
enroute and terminal facilities, and at the David J. Hurley Air Traffic 
Control System Command Center seeking to waive the mandatory separation 
age must submit a written request through their official chain of 
command. The request must be received no earlier than the twelfth and 
no later than the sixth month prior to the month in which the employee 
turns 56. Recommendation to approve or deny a request by the specified 
deciding officials in the individual's chain of command will be 
forwarded to the Administrator. The Administrator will issue the final 
decision, pursuant to delegation from the Secretary. This delegation is 
published in 49 CFR 1.47. The decision to grant a waiver is 
discretionary and is to be treated as the exception as opposed to the 
rule. There is no right to appeal or grieve a denial or termination of 
a waiver.

Paperwork Reduction Act

    There are no new requirements for information collection associated 
with this amendment.

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 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to these proposed regulations.

Good Cause for Immediate Adoption Without Notice and Comment

    Sections 553(b)(3)(A) of the Administrative Procedures Act (APA) (5 
U.S.C. section 553(b)(3)(A) authorizes agencies to dispense with 
certain notice procedures for rules of agency organization, procedure, 
or practice. These regulations describe the process for agency 
employees applying for a waiver of the mandatory separation age for air 
traffic controllers. Therefore, notice and comment procedures are not 
required by the Administrative Procedure Act.
    Section 553(d)(3) allows an agency, upon finding good cause, to 
make a rule effective immediately, thereby avoiding the 30-day delayed 
effective date requirement in section 553. The FAA has determined that 
good cause exists for adopting these regulations without delay so that 
FAA air traffic controllers who are approaching mandatory retirement 
can be made aware of these procedures immediately. The FAA anticipates 
using the waiver process to help address projected air traffic staffing 
requirements that may arise in the next few years.

Executive Order 12866 and DOT Regulatory Policies and Procedures

    Executive Order 12866, Regulatory Planning and Review, directs the 
FAA to assess both the costs and benefits of a regulatory change. We 
are not allowed to propose or adopt a regulation unless we make a 
reasoned determination that the benefits of the intended regulation 
justify its costs. Our assessment of this proposal indicates that its 
economic impact is minimal. Since its costs and benefits do not make it 
a ``significant regulatory action'' as defined in the Order, we have 
not prepared a ``regulatory impact analysis.'' Similarly, we have not 
prepared a ``regulatory evaluation,'' which is the written cost/benefit 
analysis ordinarily required for all rulemaking proposals under the DOT 
Regulatory and Policies and Procedures. We do not need to do the latter 
analysis where the economic impact of a proposal is minimal.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) of 1980, 5 U.S.C. 601-612, 
directs the FAA to fit regulatory requirements to the scale of the 
business, organizations, and governmental jurisdictions subject to the 
regulation. We are required to determine whether a proposed or final 
action will have a ``significant economic impact on a substantial 
number of small entities'' defined in the RFA. If we find that the 
action will have a significant impact, we must do a ``regulatory 
flexibility analysis.''
    This final rule informs FAA employees of an available 
administrative process. It involves no small entities within the 
meaning of the RFA. Therefore, we certify that this action will not 
have a significant economic impact on a substantial number of small 
entities.

Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. 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 rulemaking 
and has determined that it will have only a domestic impact and 
therefore no effect on any trade-sensitive activity.

Unfunded Mandates Assessment

    The Unfunded Mandates Reform Act of 1995 (the Act), enacted as 
Public Law 104-4 on March 22, 1995, is intended, among other things, to 
curb the practice of imposing unfunded Federal mandates on State, 
local, and tribal governments. Title II of the Act 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 a $100 million or more expenditure (adjusted annually for inflation) 
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.''
    This final rule does not contain such a mandate. Therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply.

Executive Order 13132, Federalism

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

Environmental Analysis

    FAA Order 10501D defines FAA actions that may be categorically 
excluded from preparation of a National Environmental Policy Act (NEPA) 
environmental impact statement. In accordance with FAA Order 1050.1D, 
appendix 4, paragraph 4(j) this rulemaking action qualifies for a 
categorical exclusion.

List of Subjects in 14 CFR Part 65

    Air traffic controllers, Aircraft, Airmen, Airports, Alcohol abuse, 
Drug abuse, Reporting and recordkeeping requirements.

The Amendment

0
For the reasons set forth above, the Federal Aviation Administration 
amends 14 CFR part 65 as follows:

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PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS

0
1. The authority citation for part 65 is revised to read as follows:

    Authority: 5 U.S.C. 8335(a); 49 U.S.C. 106(g); 49 U.S.C. 40113; 
49 U.S.C. 44701-44703; 49 U.S.C. 44707; 49 U.S.C. 44709-44711; 49 
U.S.C. 45102-45103; 49 U.S.C. 45301-45302.


0
2. Add Special Federal Aviation Regulation Number 103 (SFAR No. 103) to 
part 65 to read as follows:

Special Federal Aviation Regulation No. 103--Process for Requesting 
Waiver of Mandatory Separation Age for a Federal Aviation 
Administration Air Traffic Control Specialist In Flight Service 
Stations, Enroute or Terminal Facilities, and the David J. Hurley Air 
Traffic Control System Command Center

    1. To whom does this SFAR apply? This Special Federal Aviation 
Regulation (SFAR) applies to you if you are an air traffic control 
specialist (ATCS) employed by the FAA in flight service stations, 
enroute facilities, terminal facilities, or at the David J. Hurley Air 
Traffic Control System Command Center who wishes to obtain a waiver of 
the mandatory separation age as provided by 5 U.S.C. section 8335(a).
    2. When must I file for a waiver? No earlier than the beginning of 
the twelfth month before, but no later than the beginning of the sixth 
month before, the month in which you turn 56, your official chain-of-
command must receive your written request asking for a waiver of 
mandatory separation.
    3. What if I do not file a request before six months before the 
month in which I turn 56? If your official chain-of-command does not 
receive your written request for a waiver of mandatory separation 
before the beginning of the sixth month before the month in which you 
turn 56, your request will be denied.
    4. How will the FAA determine if my request meets the filing time 
requirements of this SFAR?
    a. We consider your request to be filed in a timely manner under 
this SFAR if your official chain-of-command receives it or it is 
postmarked:
    i. After 12 a.m. on the first day of the twelfth month before the 
month in which you turn 56; and
    ii. Before 12 a.m. of the first day of the sixth month before the 
month in which you turn 56.
    b. If you file your request by mail and the postmark is not 
legible, we will consider it to comply with paragraph a.2 of this 
section if we receive it by 12 p.m. of the fifth day of the sixth month 
before the month in which you turn 56.
    c. If the last day of the time period specified in paragraph a.2 or 
paragraph b falls on a Saturday, Sunday, or Federal holiday, we will 
consider the time period to end at 12 p.m. of the next business day.
    5. Where must I file my request for waiver and what must it 
include?
    a. You must file your request for waiver of mandatory separation in 
writing with the Air Traffic Manager in flight service stations, 
enroute facilities, terminal facilities, or the David J. Hurley Air 
Traffic Control System Command Center in which you are employed.
    b. Your request for waiver must include all of the following:
    i. Your name.
    ii. Your current facility.
    iii. Your starting date at the facility.
    iv. A list of positions at the facility that you are certified in 
and how many hours it took to achieve certification at the facility.
    v. Your area of specialty at the facility.
    vi. Your shift schedule.
    vii. Your statement that you have not been involved in an 
operational error, operational deviation or runway incursion in the 
last 5 years while working a control position;
    viii. A list of all facilities where you have worked as a certified 
professional controller (CPC) including facility level and dates at 
each facility;
    ix. Evidence of your exceptional skills and experience as a 
controller; and
    x. Your signature.
    6. How will my waiver request be reviewed?
    a. Upon receipt of your request for waiver, the Air Traffic Manager 
of your facility will make a written recommendation that the 
Administrator either approve or deny your request. If the manager 
recommends approval of your request, he or she will certify in writing 
the accuracy of the information you provided as evidence of your 
exceptional skills and experience as a controller.
    b. The Air Traffic Manager will then forward the written 
recommendation with a copy of your request to the senior executive 
manager in the Air Traffic Manager's regional chain-of-command.
    c. The senior executive manager in the regional chain-of-command 
will make a written recommendation that the Administrator either 
approve or deny your request. If the senior executive manager 
recommends approval of your request, he or she will certify in writing 
the accuracy of the information you have provided as evidence of 
exceptional skills and experience.
    d. The senior executive manager in the regional chain-of-command 
will then forward his or her recommendation with a copy of your request 
to the appropriate Vice President at FAA Headquarters. Depending on the 
facility in which you are employed, the request will be forwarded to 
either the Vice President for Flight Services, the Vice President for 
Enroute and Oceanic Services, the Vice President for Terminal Services 
or the Vice President for Systems Operations. For example, if you work 
at a flight service station at the time that you request a waiver, the 
request will be forwarded to the Vice President for Flight Services.
    e. The appropriate Vice President will review your request and make 
a written recommendation that the Administrator either approve or deny 
your request, which will be forwarded to the Administrator.
    f. The Administrator will issue the final decision on your request.
    7. If I am granted a waiver, when will it expire?
    a. Waivers will be granted for a period of one year.
    b. No later than 90-days prior to expiration of a waiver, you may 
request that the waiver be extended using the same process identified 
in section 6.
    c. If you timely request an extension of the waiver and it is 
denied, you will receive a 60-day advance notice of your separation 
date simultaneously with notification of the denial.
    d. If you do not request an extension of the waiver granted, you 
will receive a 60-day advance notice of your separation date.
    e. Action to separate you from your covered position becomes 
effective on the last day of the month in which the 60-day notice 
expires.
    8. Under what circumstances may my waiver be terminated?
    a. The FAA/DOT may terminate your waiver under the following 
circumstances:
    i. The needs of the FAA; or
    ii. If you are identified as a primary contributor to an 
operational error/deviation or runway incursion.
    b. If the waiver is terminated for either of the reasons identified 
in paragraph 1 of this section, the air traffic control specialist will 
receive a 60-day advance notice.
    c. Action to separate you from your covered position becomes 
effective on the last day of the month in which the 60-day notice 
expires.
    9. Appeal of denial or termination of waiver request: The denial or 
termination of a waiver of mandatory separation request is neither 
appealable nor grievable.


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    Issued in Washington, DC on December 29, 2004.
Marion Blakey,
Administrator.
[FR Doc. 05-233 Filed 1-6-05; 8:45 am]
BILLING CODE 4910-13-P