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[Federal Register Volume 76, Number 1 (Monday, January 3, 2011)]
[Rules and Regulations]
[Pages 9-12]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-33076]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 65

[Docket No.: FAA-2010-0567; Amendment No. 65-55]
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: Final rule.

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SUMMARY: The FAA amends its regulation concerning the process for 
requesting a waiver of the mandatory separation age of 56 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 this final rule, Air Traffic Control Specialists 
will 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 rule will streamline the waiver process and 
bring it into conformance with current FAA OE and OD reporting policy.

DATES: This amendment becomes effective March 4, 2011.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this final rule contact Kelly J. Neubecker, Airspace, Regulations, and 
ATC Procedures Group, Office of Airspace Services, AJV-11, 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 final 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, e-mail 
Anne.Moore@faa.gov.

SUPPLEMENTARY INFORMATION:

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 amending Special 
Federal Aviation Regulation No. 103 in 14 CFR part 65 (SFAR 103) by 
removing paragraph 5.b.vii. The change is within the scope of our 
authority and is a reasonable and necessary exercise of our statutory 
obligations.

I. 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 FAA 
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 codified 
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 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 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. became 
unverifiable.

II. Summary of the NPRM

    The FAA published the NPRM on June 2, 2010. (75 FR 30742, Docket 
No. FAA 2010-0567) The proposed rule invited comments on the proposal 
to remove paragraph 5.b vii of SFAR 103, since current practice made 
those provisions unverifiable. The proposed rule would amend only the 
requirement for controllers 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. 
The proposal did not affect any other requirements for Air Traffic 
Controllers who request a waiver.

III. Summary of Comments

    The comment period for the NPRM closed on July 2, 2010. The FAA 
received comments from two individuals on the proposal to amend the 
exemption process allowing ATC to delay mandatory retirement age. Both 
commenters supported waivers to extend the retirement age in general, 
and one commenter was also in favor of the specific proposal to remove 
documentation of any occurrences within the preceding 5 years. The 
other commenter suggested removing the

[[Page 10]]

mandatory retirement age completely and focusing on the controller's 
ability to concentrate and do their job properly. This suggestion, 
however, was outside the scope of the current rulemaking.

IV. Discussion of the Final Rule

    The FAA is adopting as final the proposed rule published on June 2, 
2010. The final rule will become effective March 4, 2011.

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 rule.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to conform 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 regulations.

V. 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 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. 
The FAA has made such a determination for this rule.
    This rule will moderately streamline the process for ATCSs 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 rule will 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 with 
benefits is estimated to be $125 per hour; \1\ and an air traffic 
manager's hourly rate with benefits is estimated 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 final rule will be about $26,000 or $18,000 
present value, as shown in Table 1.
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    FAA has, therefore, determined that this 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.

[[Page 11]]

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 
factual basis for this determination, and the reasoning should be 
clear.
    This final rule will help extend the careers of experienced air 
traffic controllers and thus have no impact on private sector entities. 
Consequently, the FAA certifies that the rule will 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 as 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 final rule and determined that it 
will not affect imports as it will have only a domestic impact and 
therefore is not subject to these Acts.

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 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 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 Federal Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, and, therefore, does not have federalism implications.

Regulations Affecting Intrastate Aviation in Alaska

    Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 
3213) requires the FAA, when modifying its regulations in a manner 
affecting intrastate aviation in Alaska, to consider the extent to 
which Alaska is not served by transportation modes other than aviation, 
and to establish appropriate regulatory distinctions. In the NPRM, we 
requested comments on whether the proposed rule should apply 
differently to intrastate operations in Alaska. We did not receive any 
comments, and we have determined, based on the administrative record of 
this rulemaking, that there is no need to make any regulatory 
distinctions applicable to intrastate aviation in Alaska.

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 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 rule 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 
it is not a ``significant regulatory action'' under Executive Order 
12866, and DOT's Regulatory Policies and Procedures, and is not likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy.

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 amendment number or docket number of this 
rulemaking.
    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted 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 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://DocketsInfo.dot.gov.

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. If you are a small entity and you have a question 
regarding this document, you may contact your local FAA official, or 
the person listed under the FOR FURTHER INFORMATION CONTACT heading at 
the

[[Page 12]]

beginning of the preamble. You can find out more about SBREFA on the 
Internet at http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects in 14 CFR Part 65

    Air traffic controllers, Aircraft, Aviation safety.

The Amendment

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

PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS

0
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]

0
2. Amend SFAR 103 by removing and reserving paragraph 5.b.vii.

    Issued in Washington, DC, on December 22, 2010.
J. Randolph Babbitt,
Administrator.
[FR Doc. 2010-33076 Filed 12-30-10; 8:45 am]
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