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[Federal Register: June 2, 2010 (Volume 75, Number 105)]
[Proposed Rules]               
[Page 30742-30745]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jn10-17]                         

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 65

[Docket No. FAA-2010-0567; Notice No. 10-09]
RIN 2120-AJ66

 
Modification of the Process for Requesting a Waiver of the 
Mandatory Separation Age of 56 for Air Traffic Control Specialists

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Federal Aviation Administration (FAA) proposes to amend 
its regulations concerning the process for requesting a waiver of the 
mandatory separation age for Air Traffic Control Specialists in flight 
service stations, enroute or terminal facilities, and the David J. 
Hurley Air Traffic Control System Command Center. Under the proposal, 
Air Traffic Control Specialists would no longer be required to certify 
they have not been involved in an operational error (OE), operational 
deviation (OD), or runway incursion in the past 5 years. The proposed 
change

[[Page 30743]]

reflects FAA Order JO 7210.56C, Change 2, effective July 20, 2009, 
which removed any references to employee identification, training 
record entries, performance management, and return-to-duty actions that 
have been historically tied to reported events. The proposal would 
streamline the waiver process and bring it into conformance with 
current FAA OE and OD reporting policy.

DATES: Send your comments on or before July 2, 2010.

ADDRESSES: You may send comments identified by Docket Number FAA-2010-
0567 using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-
140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket 
Operations in Room W12-140 of the West Building Ground Floor at 1200 
New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at 202-493-2251.
    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://www.regulations.gov, including any personal information you 
provide. Using the search function of our docket Web site, anyone can 
find and read the electronic form of all comments received into any of 
our dockets, including the name of the individual sending the comment 
(or signing the comment for 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://DocketsInfo.dot.gov.
    Docket: To read background documents or comments received, go to 
http://www.regulations.gov at any time and follow the online 
instructions for accessing the docket, or, the Docket Operations in 
Room W12-140 of the West Building Ground Floor at 1200 New Jersey 
Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this proposed rule contact Kelly J. Neubecker, Airspace and Rules 
Group, Office of System Operations Airspace and AIM, AJR-33, Federal 
Aviation Administration, 800 Independence Avenue, SW., Washington, DC 
20591; telephone (202) 267-9235; facsimile (202) 267-9328, e-mail 
Kelly.Neubecker@faa.gov. For legal questions concerning this proposed 
rule contact Anne Moore, Office of Chief Counsel, AGC-240, Federal 
Aviation Administration, 800 Independence Avenue, SW., Washington, DC 
20591; telephone (202) 267-3123; facsimile (202) 267-7971.

SUPPLEMENTARY INFORMATION: Later in this preamble under the Additional 
Information section, we discuss how you can comment on this proposal 
and how we will handle your comments. Included in this discussion is 
related information about the docket, privacy, and the handling of 
proprietary or confidential business information. We also discuss how 
you can get a copy of related rulemaking documents.

Authority for This Rulemaking

    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 to issue, rescind, and 
revise regulations. Under this authority, we are proposing to amend 
Special Federal Aviation Regulation No. 103 in 14 CFR part 65 (SFAR 
103) by removing paragraph 5.b.vii. The proposed change is within the 
scope of our authority and is a reasonable and necessary exercise of 
our statutory obligations.

Background

    On January 23, 2004, H.R. 2673, Consolidated Appropriations 2004, 
became Public Law 108-199. Within the appropriations bill, there was a 
mandate that ``not later than March 1, 2004, the Secretary of 
Transportation, in consultation with the Administrator of the Federal 
Aviation Administration, shall issue final regulations, pursuant to 5 
U.S.C. 8335, establishing an exemption process allowing individual Air 
Traffic Controllers to delay mandatory retirement until the employee 
reaches no later than 61 years of age.'' On January 7, 2005, the 
Department of Transportation, Federal Aviation Administration, 
published the final rule in the Federal Register, 14 CFR part 65 
(Docket No. FAA-2004-17334; SFAR No. 103, 70 FR 1634).
    The process for an Air Traffic Control Specialist (ATCS) to request 
a waiver from the mandatory separation age of 56 is currently contained 
in SFAR 103 and reflected in the Human Resources Policy Bulletin 
35, Waiver Process to Mandatory Separation at Age 56. This 
policy applies to all ATCSs and their first-level supervisors in flight 
service, enroute and terminal facilities, and at the David J. Hurley 
Air Traffic Control System Command Center covered under the mandatory 
separation provisions of 5 U.S.C. 8335(a) and 8425(a).
    The regulation, as written, contains information contrary to air 
traffic policy under amended FAA Order JO 7210.56C, Change 2, effective 
July 20, 2009. Specifically, paragraph 5.b.vii. of SFAR 103 requires a 
controller to provide a statement that they have not been involved in 
an operational error (OE), operational deviation (OD), or runway 
incursion in the last 5 years while in a control position. This 
requirement is inconsistent with current air traffic orders developed 
specifically to foster a safety culture that encourages full and open 
reporting of safety information and focuses on determining why events 
occur, rather than placing blame. In support of this safety culture, 
FAA Order JO 7210.56C, Change 2 removed all references to employee 
identification, training record entries, performance management, and 
return-to-duty actions that were historically tied to reported OE or OD 
events. Due to this change in policy, the reporting requirements of 
SFAR 103 5.b.vii. are now unverifiable. Continuing to require the 
statement in the waiver process serves no useful purpose. Therefore, 
the FAA is proposing to remove this reporting requirement.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. We have determined that there 
is no new information collection requirement associated with this 
proposed rule.

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

[[Page 30744]]

Regulatory Evaluation, Regulatory Flexibility Determination, 
International Trade Impact Assessment, and Unfunded Mandates Assessment

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 directs that each Federal agency 
shall propose or adopt a regulation only upon a reasoned determination 
that the benefits of the intended regulation justify its costs. Second, 
the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires 
agencies to analyze the economic impact of regulatory changes on small 
entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. In developing U.S. 
standards, this Trade Act requires agencies to consider international 
standards and, where appropriate, that they be the basis of U.S. 
standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 
104-4) requires agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation with base year of 
1995). This portion of the preamble summarizes the FAA's analysis of 
the economic impacts of this proposed rule.
    Department of Transportation Order DOT 2100.5 prescribes policies 
and procedures for simplification, analysis, and review of regulations. 
If the expected cost impact is so minimal that a proposed or final rule 
does not warrant a full evaluation, this order permits that a statement 
to that effect and the basis for it be included in the preamble if a 
full regulatory evaluation of the cost and benefits is not prepared. 
Such a determination has been made for this proposed rule.
    This proposed rule would moderately streamline the process for ATCs 
who are requesting a waiver of mandatory separation at age 56 by 
eliminating a paperwork obstacle. Currently, ATCSs need to provide a 
statement to certify that they have not been involved with an 
operational error (OE), operational deviation (OD), or runway incursion 
within the previous 5 years when submitting a request for a waiver of 
the mandatory separation at age 56. This proposed rule would eliminate 
this certification requirement by reducing the written information 
ATCSs must provide, resulting in a cost saving.
    We estimate ATCSs submit an average of 54 statements per year. 
ATCSs need approximately 5 minutes to prepare each statement, whereas 
air traffic managers need approximately 15 minutes to review them. The 
ATCS's salary including benefits expressed as an hourly wage rate is 
assumed to be $125 per hour; \1\ and an air traffic manager's hourly 
rate with benefits is assumed to be $155 per hour.
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    \1\ This wage rate is based on 1657.7 hours. 2,080 hours (52 
weeks times 40 hours per week) minus 422.3 hours (the number of 
hours a typical controller is not available to work) equals 1,657.7.
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    Using the preceding information, the FAA estimates that the total 
cost savings of this proposed rule would be about $26,000 or $18,000 
present value, as shown in table 1.
[GRAPHIC] [TIFF OMITTED] TP02JN10.309

    FAA has, therefore, determined that this proposed rule is not a 
``significant regulatory action'' as defined in section 3(f) of 
Executive Order 12866, and is not ``significant'' as defined in DOT's 
Regulatory Policies and Procedures.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the businesses, organizations, and governmental jurisdictions 
subject to regulation. To achieve this principle, agencies are required 
to solicit and consider flexible regulatory proposals and to explain 
the rationale for their actions to assure that such proposals are given 
serious consideration.'' The RFA covers a wide range of small entities, 
including small businesses, not-for-profit organizations, and small 
governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will 
have a significant economic impact on a substantial number of small 
entities. If the agency determines that it will, the agency must 
prepare a regulatory flexibility analysis as described in the RFA.
    However, if an agency determines that a rule is not expected to 
have a significant economic impact on a substantial number of small 
entities, section 605(b) of the RFA provides that the head of the 
agency may so certify and a regulatory flexibility analysis is not 
required. The certification must include a statement providing the

[[Page 30745]]

factual basis for this determination, and the reasoning should be 
clear.
    This proposed rule would help extend the careers of experienced air 
traffic controllers and thus have no impact on private sector entities. 
Consequently, the FAA certifies that the proposed rule would not have a 
significant economic impact on a substantial number of small entities.

International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to these Acts, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. 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 proposed rule and determined that 
it would have only a domestic impact and therefore no effect on 
international trade.

Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) 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 an expenditure of $100 million or more 
(in 1995 dollars) 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.'' The FAA currently 
uses an inflation-adjusted value of $143.1 million in lieu of $100 
million. This proposed rule does not contain such a mandate; therefore, 
the requirements of Title II of the Act do not apply.

Executive Order 13132, Federalism

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

Environmental Analysis

    FAA Order 1050.1E identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances. The FAA has 
determined this proposed rulemaking action qualifies for the 
categorical exclusion identified in paragraph 312(d) and involves no 
extraordinary circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or 
Use

    The FAA has analyzed this NPRM under Executive Order 13211, Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). We have determined that it is not 
a ``significant regulatory action'' under the executive order because 
while it is not a ``significant regulatory action'' under Executive 
Order 12866, and DOT's Regulatory Policies and Procedures, it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

Additional Information

Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. We also 
invite comments relating to the economic, environmental, energy, or 
federalism impacts that might result from adopting the proposals in 
this document. The most helpful comments reference a specific portion 
of the proposal, explain the reason for any recommended change, and 
include supporting data. To ensure the docket does not contain 
duplicate comments, please send only one copy of written comments, or 
if you are filing comments electronically, please submit your comments 
only one time.
    We will file in the docket all comments we receive, as well as a 
report summarizing each substantive public contact with FAA personnel 
concerning this proposed rulemaking. Before acting on this proposal, we 
will consider all comments we receive on or before the closing date for 
comments. We will consider comments filed after the comment period has 
closed if it is possible to do so without incurring expense or delay. 
We may change this proposal in light of the comments we receive.

Availability of Rulemaking Documents

    You can get an electronic copy of rulemaking documents using the 
Internet by--
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies or
    3. Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.
    You can also get a copy by sending 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. Make 
sure to identify the docket number, notice number, or amendment number 
of this rulemaking.
    You may access all documents the FAA considered in developing this 
proposed rule, including economic analyses and technical reports, from 
the internet through the Federal eRulemaking Portal referenced in 
paragraph (1).

List of Subjects in 14 CFR Part 65

    Air Traffic Controllers, Aircraft, Aviation safety.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend Chapter I of Title 14, Code of Federal 
Regulations, as follows:

PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS

    1. The authority citation for part 65 continues to read as follows:

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

SFAR 103 [Amended]

    2. Amend SFAR 103 by removing and reserving paragraph 5.b.vii.

    Issued in Washington, DC, on May 27, 2010.
Edie Parish,
Acting Director, System Operations Airspace & Aeronautical Information 
Management.
[FR Doc. 2010-13221 Filed 6-1-10; 8:45 am]
BILLING CODE 4910-13-P
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