AFS-10-126-E

Exemption No. 10097

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

FEDERAL AVIATION ADMINISTRATION Regulatory Docket No. FAA-2010-001 0 for an exemption from Special Federal Aviation Regulation 103(5)(b)(vii) of Title 14, Code of Federal Regulations

GRANT OF EXEMPTION

By letter dated January 5, 2010, Patricia L. G arrambone, Director of the Administration and Talent Management Branch of the Air Traffic Org anization, Federal Aviation Administration (FAA), 800 Independence Avenue, SW., Washington, DC 20591 petitioned for an exemption from Special Federal Aviation Regu lation (SFAR) 103-Process for Requesting Waiver of Mandatory Separation Age for a Federal Aviation Administration Air Traffic Control Specialist In Flight Service Statio ns, Enroute or Terminal Facilities, and the David J. Hurley Air Traffic Control System Command Center of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if g ranted, would allow applicants requesting a waiver to forgo the inclusion of a sta tement indentifying any operational error, operational deviations or runway incursion in the l ast 5 years.

The petitioner requests relief from the following r egulation:

Special Federal Aviation Regulation (SFAR) No. 103( 5)(b) states:

Your request for waiver must include all of the fo llowing:

i. Your name.

ii. Your current facility.

iii. Your starting date at the facility.2

iv. A list of positions at the facility that you a re 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 worke d as a certified professional controller (CPC) including facility le vel and dates at each facility;

ix. Evidence of your exceptional skills and experie nce as a controller;

and

x. Your signature.

The petitioner supports its request with the follow ing information:

The petitioner requests relief from SFAR 103(5)(b)( vii) to forgo the inclusion of a statement indentifying any operational error (OE), operational deviations (OD) or runway incursion in the last 5 years while working a control position for ATCSs reaching the age of 56 through December 31, 2011.

The petitioner states that this requirement is inco nsistent with current air traffic orders and policy developed specifically to foster a cultu re that encourages full and open reporting of safety information and focuses on dete rmining why events occur, rather than placing blame.

The petitioner contends that exempting ATCSs from t his portion as the regulation will have no negative affect on public safety because th e remaining requirements of SFAR 103 require evidence of the ATCS’s exceptional skil ls and experience, along with other relevant employment information.

A summary of the petition was published in the Federal Register on March 3, 2010 (75 FR 9636). No comments were received.

The FAA's analysis is as follows:

The FAA has considered the petitioner’s request and finds that a grant of exemption is in the public interest and would provide a level of safety equivalent to the current regulations. The public interest is served by facilitating the proce ss for ATCS to seek a waiver of the mandatory separation age and provides the opportuni ty to extend the current workforce and retain experienced ATCS.3

The FAA finds merit in the petitioner’s arguments. FAA policy is to foster a culture that encourages full and open reporting of safety inform ation and focus on determining why events occur and how to prevent reoccurrence,. Under the guidance specified in FAA Order JO 7210.56C, the FAA does not collect information such as employee identification, training record entries, performance manage, and return-to-d uty actions with respect to reported OE and OD events. Consequently, an ATCS seeking a wai ver from the mandatory separation age is unable to meet the requirements of SFAR 103(5)(b )(vii).

The FAA finds that granting this exemption from SFA R 103(5)(b)(vii) will not result in a negative effect on public safety since the remainin g waiver requirements are still required.

The FAA notes that on June 2, 2010, the agency issu ed a notice of proposed rulemaking (NPRM) to streamline the waiver process in SFAR 103 and bring it into conformance with current FAA policy on OE and OD reporting policy. The NPRM comment period closed on July 2, 2010. To date, there have been two comment s submitted to the docket, one in support of the proposed rule and one unrelated to the propo sed change

The FAA finds that a grant of exemption is not inte nded to pre-judge the rulemaking action but to provide limited relief to ATCSs seeking a wa iver because such information is currently

unverifiable.

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption is in the public interest. Therefore, pursuant to the authority contained in 4 9 U.S.C. § 40109 delegated to me by the Administrator, Federal Aviation Administration is g ranted an exemption from SFAR 103 to the extent necessary to forego the inclusion of a s tatement indentifying any operational errors, operational deviations or runway incursions in the last 5 years while working a control position for Air Traffic Controllers Specialists re aching the age of 56 through December 31, 2011.

This exemption terminates on the day the final rule is adopted or on December 31, 2011,

which ever is earliest.

Issued in Washington, DC, on Jul 15, 2010 .

/s/ Elizabeth Ray Director, Airspace and Aeronautical Information Man agement