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Friday,

January 7, 2005

Part III

Department of
Transportation
Federal Aviation Administration

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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1634 Federal Register / Vol. 70, No. 5 / Friday, January 7, 2005 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION Docket: To read background submitted in response to this final rule
documents or comments received, go to must include a preaddressed, stamped
Federal Aviation Administration http://dms.dot.gov at any time or to postcard with those comments on which
Room PL–401 on the plaza level of the the following statement is made:
14 CFR Part 65 Nassif Building, 400 Seventh Street, ‘‘Comments to Docket No. FAA–2004–
[Docket No. FAA–2004–17334; SFAR No. SW., Washington, DC, between 9 a.m. 17334.’’ The postcard will be date-
103] and 5 p.m., Monday through Friday, stamped by the FAA and mailed to the
except Federal holidays. commenter.
RIN 2120–AI18
FOR FURTHER INFORMATION CONTACT: Availability of Final Rule
Process for Requesting Waiver of Wanda Reyna, ATO Workforce Services
(ATO–A) Federal Aviation You can get an electronic copy using
Mandatory Separation Age for Certain the Internet by:
Federal Aviation Administration (FAA) Administration, 800 Independence
Avenue, SW., Washington, DC 20591; (1) Searching the Department of
Air Traffic Control Specialists Transportation’s electronic Docket
telephone (202) 267–3056.
AGENCY: Federal Aviation Management System (DMS) Web page
SUPPLEMENTARY INFORMATION:
Administration, DOT. (http://dms.dot.gov/search);
Comments Invited (2) Visiting the Office of Rulemaking’s
ACTION: Final rule; request for
Web page at http://www.faa.gov/avr/
comments. The FAA is adopting this final rule arm/index.cfm; or
without prior notice and prior public (3) Accessing the Government
SUMMARY: This final rule establishes comment in light of Congressional
procedures and some standards by Printing Office’s Web page at http://
direction to issue this final rule by www.access.gpo.gov/su_docs/aces/
which an air traffic controller in a flight March 1, 2004. The Regulatory Policies
service station, en route or terminal aces140.html.
and Procedures of the Department of You can also get a copy by submitting
facility, or at the David J. Hurley Air Transportation (DOT) (44 FR 1134;
Traffic Control System Command Center a request to the Federal Aviation
February 26, 1979), however, provide Administration, Office of Rulemaking,
may request a waiver of the mandatory that, to the maximum extent possible,
separation age. By taking this action, the ARM–1, 800 Independence Avenue,
operating administrations for the DOT SW., Washington, DC 20591, or by
Secretary of the Department of should provide an opportunity for
Transportation (DOT) implements calling (202) 267–9680. Be sure to
public comment on regulations issued identify the docket number, notice
congressional authority to issue such without prior notice. Accordingly, we
exemptions. number, or amendment number of this
invite interested persons to participate rulemaking.
DATES: This final rule is effective in this rulemaking by submitting such
January 7, 2005. Comments must be written data, views, or arguments, as Small Business Regulatory Enforcement
submitted on or before February 7, 2005. they may desire. We also invite Fairness Act
ADDRESSES: You may send comments comments relating to environmental, The Small Business Regulatory
(identified by Docket Number FAA– energy, federalism, or international Enforcement Fairness Act (SBREFA) of
2004–17334) using any of the following trade impacts that might result from this 1996 requires FAA to comply with
methods: amendment. small entity requests for information or
• DOT Docket Web site: Go to Please include the regulatory docket advice about compliance with statutes
http://dms.dot.gov and follow the or amendment number and send two and regulations within its jurisdiction.
instructions for sending your comments copies to the address above. We will file Therefore, any small entity that has a
electronically. all comments received, as well as a question regarding this document may
• Governmentwide rulemaking Web report summarizing each substantive contact their local FAA official, or the
site: Go to http://www.regulations.gov public contact with FAA personnel on person listed under FOR FURTHER
and follow the instructions for sending this rulemaking, in the public docket. INFORMATION CONTACT. You can find out
your comments electronically. The docket is available for public more about SBREFA on the Internet at
• Mail: Docket Management Facility; inspection before and after the comment our site, http://www.gov/avr/arm/
U.S. Department of Transportation, 400 closing date. sbrefa.htm. For more information on
Seventh Street, SW., Nassif Building, Privacy Act: Using the search function SBREFA, e-mail us 9-AWA-
Room PL–401, Washington, DC 20590– of our docket Web site, anyone can find SBREFA@faa.gov.
001. and read the comments received into
• Fax: 1–202–493–2251. any of our dockets, including the name Background
• Hand Delivery: Room PL–401 on of the individual sending the comment Section 8335(a) of Title 5 of the
the plaza level of the Nassif Building, (or signing the comment on behalf of an United States Code mandates that the
400 Seventh Street, SW., Washington, association, business, labor union, etc.). Secretary, under such regulations as he
DC, between 9 a.m. and 5 p.m., Monday You may review DOT’s complete may prescribe may exempt a controller
through Friday, except Federal holidays. Privacy Act Statement in the Federal having exceptional skills and
For more information on the Register published on April 11, 2000 experience as a controller from the
rulemaking process, see the (65 FR 19477–78), or you may visit automatic separation provisions or
SUPPLEMENTARY INFORMATION section of http://dms.dot.gov. mandatory separation provisions of the
this document. The FAA will consider all comments statute until that controller becomes 61
Privacy: We will post all comments received on or before the closing date years of age. This direction to the
we receive, without change, to http:// for comments. We will consider late Secretary to create regulations, in
dms.dot.gov, including any personal comments to the extent practicable. We consultation with the Administrator of
information you provide. For more may amend this final rule in light of the the Federal Aviation Administration, to
information, see the Privacy Act comments received. allow individual air traffic controllers to
discussion in the SUPPLEMENTARY Commenters who want the FAA to delay mandatory separation was
INFORMATION section of this document. acknowledge receipt of their comments restated in the Transportation, Treasury,

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Federal Register / Vol. 70, No. 5 / Friday, January 7, 2005 / Rules and Regulations 1635

and Independent Agencies requirement in section 553. The FAA statute also requires consideration of
Appropriations Act for fiscal year 2004, has determined that good cause exists international standards and where
H.R. 2673, 108th Cong. (2004). Pursuant for adopting these regulations without appropriate, that they be the basis for
to this direction, this final rule delay so that FAA air traffic controllers U.S. standards. The FAA has assessed
establishes procedures by which an air who are approaching mandatory the potential effect of this rulemaking
traffic control specialist may request a retirement can be made aware of these and has determined that it will have
waiver of the mandatory separation age. procedures immediately. The FAA only a domestic impact and therefore no
FAA air traffic control II specialists in anticipates using the waiver process to effect on any trade-sensitive activity.
flight service stations, enroute and help address projected air traffic staffing
terminal facilities, and at the David J. requirements that may arise in the next Unfunded Mandates Assessment
Hurley Air Traffic Control System few years. The Unfunded Mandates Reform Act
Command Center seeking to waive the of 1995 (the Act), enacted as Public Law
Executive Order 12866 and DOT
mandatory separation age must submit a 104–4 on March 22, 1995, is intended,
Regulatory Policies and Procedures
written request through their official among other things, to curb the practice
chain of command. The request must be Executive Order 12866, Regulatory
of imposing unfunded Federal mandates
received no earlier than the twelfth and Planning and Review, directs the FAA
on State, local, and tribal governments.
no later than the sixth month prior to to assess both the costs and benefits of
Title II of the Act requires each Federal
the month in which the employee turns a regulatory change. We are not allowed
agency to prepare a written statement
56. Recommendation to approve or deny to propose or adopt a regulation unless
assessing the effects of any Federal
a request by the specified deciding we make a reasoned determination that
mandate in a proposed or final agency
officials in the individual’s chain of the benefits of the intended regulation
rule that may result in a $100 million or
command will be forwarded to the justify its costs. Our assessment of this
more expenditure (adjusted annually for
Administrator. The Administrator will proposal indicates that its economic
inflation) in any one year by State, local,
issue the final decision, pursuant to impact is minimal. Since its costs and
and tribal governments, in the aggregate,
delegation from the Secretary. This benefits do not make it a ‘‘significant
or by the private sector; such a mandate
delegation is published in 49 CFR 1.47. regulatory action’’ as defined in the
is deemed to be a ‘‘significant regulatory
The decision to grant a waiver is Order, we have not prepared a
action.’’
discretionary and is to be treated as the ‘‘regulatory impact analysis.’’ Similarly,
we have not prepared a ‘‘regulatory This final rule does not contain such
exception as opposed to the rule. There
evaluation,’’ which is the written cost/ a mandate. Therefore, the requirements
is no right to appeal or grieve a denial
benefit analysis ordinarily required for of Title II of the Unfunded Mandates
or termination of a waiver.
all rulemaking proposals under the DOT Reform Act of 1995 do not apply.
Paperwork Reduction Act Regulatory and Policies and Procedures. Executive Order 13132, Federalism
There are no new requirements for We do not need to do the latter analysis
information collection associated with where the economic impact of a The FAA has analyzed this final rule
this amendment. proposal is minimal. under the principles and criteria of
Executive Order 13132, Federalism. We
International Compatibility Regulatory Flexibility Act determined that this action will not
In keeping with U.S. obligations The Regulatory Flexibility Act (RFA) have a substantial direct effect on the
under the Convention on International of 1980, 5 U.S.C. 601–612, directs the States, or the relationship between the
Civil Aviation, it is FAA policy to FAA to fit regulatory requirements to national government and the States, or
comply with International Civil the scale of the business, organizations, on the distribution of power and
Aviation Organization (ICAO) Standards and governmental jurisdictions subject responsibilities among the various
and Recommended Practices to the to the regulation. We are required to levels of government. Therefore, we
maximum extent practicable. The FAA determine whether a proposed or final determined that this final rule does not
determined that there are no ICAO action will have a ‘‘significant economic have federalism implications.
Standards and Recommended Practices impact on a substantial number of small
that correspond to these proposed entities’’ defined in the RFA. If we find Environmental Analysis
regulations. that the action will have a significant FAA Order 10501D defines FAA
impact, we must do a ‘‘regulatory actions that may be categorically
Good Cause for Immediate Adoption
flexibility analysis.’’ excluded from preparation of a National
Without Notice and Comment This final rule informs FAA Environmental Policy Act (NEPA)
Sections 553(b)(3)(A) of the employees of an available environmental impact statement. In
Administrative Procedures Act (APA) administrative process. It involves no accordance with FAA Order 1050.1D,
(5 U.S.C. section 553(b)(3)(A) authorizes small entities within the meaning of the appendix 4, paragraph 4(j) this
agencies to dispense with certain notice RFA. Therefore, we certify that this rulemaking action qualifies for a
procedures for rules of agency action will not have a significant categorical exclusion.
organization, procedure, or practice. economic impact on a substantial
These regulations describe the process number of small entities. List of Subjects in 14 CFR Part 65
for agency employees applying for a
waiver of the mandatory separation age Trade Impact Assessment Air traffic controllers, Aircraft,
for air traffic controllers. Therefore, The Trade Agreement Act of 1979 Airmen, Airports, Alcohol abuse, Drug
notice and comment procedures are not prohibits Federal agencies from abuse, Reporting and recordkeeping
required by the Administrative engaging in any standards or related requirements.
Procedure Act. activities that create unnecessary The Amendment
Section 553(d)(3) allows an agency, obstacles to the foreign commerce of the
upon finding good cause, to make a rule United States. Legitimate domestic ■ For the reasons set forth above, the
effective immediately, thereby avoiding objectives, such as safety, are not Federal Aviation Administration
the 30-day delayed effective date considered unnecessary obstacles. The amends 14 CFR part 65 as follows:

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1636 Federal Register / Vol. 70, No. 5 / Friday, January 7, 2005 / Rules and Regulations

PART 65—CERTIFICATION: AIRMEN of this section if we receive it by 12 p.m. d. The senior executive manager in
OTHER THAN FLIGHT of the fifth day of the sixth month before the regional chain-of-command will
CREWMEMBERS the month in which you turn 56. then forward his or her recommendation
c. If the last day of the time period with a copy of your request to the
■ 1. The authority citation for part 65 is specified in paragraph a.2 or paragraph appropriate Vice President at FAA
revised to read as follows: b falls on a Saturday, Sunday, or Federal Headquarters. Depending on the facility
Authority: 5 U.S.C. 8335(a); 49 U.S.C. holiday, we will consider the time in which you are employed, the request
106(g); 49 U.S.C. 40113; 49 U.S.C. 44701– period to end at 12 p.m. of the next will be forwarded to either the Vice
44703; 49 U.S.C. 44707; 49 U.S.C. 44709– business day. President for Flight Services, the Vice
44711; 49 U.S.C. 45102–45103; 49 U.S.C. 5. Where must I file my request for
45301–45302.
President for Enroute and Oceanic
waiver and what must it include? Services, the Vice President for
■ 2. Add Special Federal Aviation a. You must file your request for Terminal Services or the Vice President
Regulation Number 103 (SFAR No. 103) waiver of mandatory separation in for Systems Operations. For example, if
to part 65 to read as follows: writing with the Air Traffic Manager in you work at a flight service station at the
flight service stations, enroute facilities, time that you request a waiver, the
Special Federal Aviation Regulation terminal facilities, or the David J. Hurley
No. 103—Process for Requesting request will be forwarded to the Vice
Air Traffic Control System Command President for Flight Services.
Waiver of Mandatory Separation Age Center in which you are employed. e. The appropriate Vice President will
for a Federal Aviation Administration b. Your request for waiver must review your request and make a written
Air Traffic Control Specialist In Flight include all of the following: recommendation that the Administrator
Service Stations, Enroute or Terminal i. Your name.
ii. Your current facility. either approve or deny your request,
Facilities, and the David J. Hurley Air
iii. Your starting date at the facility. which will be forwarded to the
Traffic Control System Command
iv. A list of positions at the facility Administrator.
Center f. The Administrator will issue the
that you are certified in and how many
1. To whom does this SFAR apply? hours it took to achieve certification at final decision on your request.
This Special Federal Aviation the facility. 7. If I am granted a waiver, when will
Regulation (SFAR) applies to you if you v. Your area of specialty at the it expire?
are an air traffic control specialist facility. a. Waivers will be granted for a period
(ATCS) employed by the FAA in flight vi. Your shift schedule. of one year.
service stations, enroute facilities, vii. Your statement that you have not b. No later than 90-days prior to
terminal facilities, or at the David J. been involved in an operational error, expiration of a waiver, you may request
Hurley Air Traffic Control System operational deviation or runway that the waiver be extended using the
Command Center who wishes to obtain incursion in the last 5 years while same process identified in section 6.
a waiver of the mandatory separation working a control position; c. If you timely request an extension
age as provided by 5 U.S.C. section viii. A list of all facilities where you of the waiver and it is denied, you will
8335(a). have worked as a certified professional receive a 60-day advance notice of your
2. When must I file for a waiver? No controller (CPC) including facility level separation date simultaneously with
earlier than the beginning of the twelfth and dates at each facility; notification of the denial.
month before, but no later than the ix. Evidence of your exceptional skills d. If you do not request an extension
beginning of the sixth month before, the and experience as a controller; and of the waiver granted, you will receive
month in which you turn 56, your x. Your signature. a 60-day advance notice of your
official chain-of-command must receive 6. How will my waiver request be separation date.
your written request asking for a waiver reviewed? e. Action to separate you from your
of mandatory separation. a. Upon receipt of your request for covered position becomes effective on
3. What if I do not file a request before waiver, the Air Traffic Manager of your the last day of the month in which the
six months before the month in which facility will make a written 60-day notice expires.
I turn 56? If your official chain-of- recommendation that the Administrator 8. Under what circumstances may my
command does not receive your written either approve or deny your request. If waiver be terminated?
request for a waiver of mandatory the manager recommends approval of a. The FAA/DOT may terminate your
separation before the beginning of the your request, he or she will certify in waiver under the following
sixth month before the month in which writing the accuracy of the information circumstances:
you turn 56, your request will be you provided as evidence of your i. The needs of the FAA; or
denied. exceptional skills and experience as a ii. If you are identified as a primary
4. How will the FAA determine if my controller. contributor to an operational error/
request meets the filing time b. The Air Traffic Manager will then deviation or runway incursion.
requirements of this SFAR? forward the written recommendation b. If the waiver is terminated for
a. We consider your request to be filed with a copy of your request to the senior either of the reasons identified in
in a timely manner under this SFAR if executive manager in the Air Traffic paragraph 1 of this section, the air traffic
your official chain-of-command receives Manager’s regional chain-of-command. control specialist will receive a 60-day
it or it is postmarked: c. The senior executive manager in advance notice.
i. After 12 a.m. on the first day of the the regional chain-of-command will c. Action to separate you from your
twelfth month before the month in make a written recommendation that the covered position becomes effective on
which you turn 56; and Administrator either approve or deny the last day of the month in which the
ii. Before 12 a.m. of the first day of the your request. If the senior executive 60-day notice expires.
sixth month before the month in which manager recommends approval of your 9. Appeal of denial or termination of
you turn 56. request, he or she will certify in writing waiver request: The denial or
b. If you file your request by mail and the accuracy of the information you termination of a waiver of mandatory
the postmark is not legible, we will have provided as evidence of separation request is neither appealable
consider it to comply with paragraph a.2 exceptional skills and experience. nor grievable.

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

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