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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

# AGENCY:

Federal Aviation Administration (FAA), DOT.

# ACTION:

Notice of proposed rulemaking (NPRM).

# 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                               ( print 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.                          ( print 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.                

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.

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                           ( print 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.

# Footnotes

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.                    
        Back to Citation      

[FR Doc. 2010-13221 Filed 6-1-10; 8:45 am]

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