[Federal Register: January 7, 2005 (Volume 70, Number 5)]
[Rules and Regulations]
[Page 1633-1637]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ja05-25]
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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
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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 9-AWA-SBREFA@faa.gov..
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,
[[Page 1635]]
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.
[[Page 1637]]
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