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

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. 

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 datestamped 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-AWASBREFA@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, 

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

■ For the reasons set forth above, the 

Federal Aviation Administration 

amends 14 CFR part 65 as follows:

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

PART 65—CERTIFICATION: AIRMEN 

OTHER THAN FLIGHT 

CREWMEMBERS

■ 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.

■ 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-ofcommand 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.

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