[Federal Register Volume 69, Number 61 (Tuesday, March 30, 2004)]
[Rules and Regulations]
[Pages 16754-16756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6964]



[[Page 16753]]

-----------------------------------------------------------------------

Part V





Department of Transportation





-----------------------------------------------------------------------



Federal Aviation Administration



-----------------------------------------------------------------------



14 CFR Part 99



Security Control of Air Traffic; Final Rule

  Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules 
and Regulations  

[[Page 16754]]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 99

RIN 2120-AI11


Security Control of Air Traffic

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This action reorganizes the FAA's regulations governing the 
security control of air traffic. This action is necessary to reflect 
the changing environment and the increased role of Federal agencies in 
advising the FAA about matters related to the security of air traffic 
operations in the National Airspace System (NAS).

DATES: This action is effective on April 29, 2004.

FOR FURTHER INFORMATION CONTACT: Terry Brown, Airspace and Rules 
Division, ATA-400, Office of Air Traffic Airspace Management, Federal 
Aviation Administration, 800 Independence Avenue, SW., Washington, DC 
20591; telephone (202) 267-8783.

SUPPLEMENTARY INFORMATION:

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://www1.faa.gov/avr/arm/index.cfm; or
    (2) 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. Make 
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 at [email protected].

Background

    Since the events of September 11, 2001, the FAA initiated a review 
of 14 CFR part 99 to determine whether the regulation reflects the 
current environment in light of the increased emphasis on aviation 
security. As a result of this review, the FAA determined that part 99 
should be revised to recognize the role of the newly created Department 
of Homeland Security, and agreements among Federal agencies regarding 
security matters related to air traffic operations in the NAS. The 
changes necessary to part 99 are relatively minor. The FAA is also 
taking this opportunity to streamline the regulation to improve its 
organization and readability. The organizational and changes for 
clarity are non-substantive.

Discussion of Amendments

    This action amends FAA regulations that govern security control of 
air traffic. Specifically, this action reorganizes the content of 14 
CFR part 99 as follows:
    (1) The applicability section is amended in Sec.  99.1(c) to 
indicate that an FAA air traffic control (ATC) center may exempt 
certain operations from the requirements of part 99 with the 
concurrence of either the military commanders concerned or Federal 
security/intelligence agencies;
    (2) In Sec.  99.3, the definitions of air defense identification 
zone and defense visual fight rules are amended to delete the use of 
the word ``civil'' and replace it with the parenthetical phrase 
``(except for DOD and law enforcement aircraft)''. Thus all civil and 
public aircraft are covered in those definitions except for Department 
of Defense and law enforcement aircraft;
    (3) Section 99.7 is amended to include the Federal security/
intelligence agencies and the Department of Defense, as Federal 
entities that could work with the FAA in developing special security 
instructions for aviation;
    (4) The provisions of current Sec. Sec.  99.29 and 99.31 are moved 
to new paragraphs (c) and (d) of Sec.  99.9;
    (5) Section 99.11 (d) is added to cover the current requirements of 
Sec.  99.15 except the phrase ``unless the flight plan states that no 
notice will be filed.'' That phrase is being deleted because the FAA 
has determined that for operation oversight reasons related to aviation 
safety and security, the ``no-notice'' option is no longer appropriate. 
The FAA needs to have notice of when the arrival is made and when the 
flight plan is closed;
    (6) Sec.  99.12 is removed and its language is moved to new Sec.  
99.13;
    (7) Section 99.15 combines the position report requirements from 
Sec. Sec.  99.17, 99.19, 99.21, and 99.23 into one section;
    (8) Section 99.17 is a recodification of Sec.  99.27; and
    (9) Section 99.41 Defense Area is replaced by the requirements for 
the Hawaii ADIZ, since the defense area definition contained in Sec.  
99.49 duplicated the definition in Sec.  99.3 Definitions.

Paperwork Reduction Act

    There are no new requirements for information collection associated 
with this action. An agency may not conduct or sponsor and a person is 
not required to respond to a collection of information unless it 
displays a currently valid Office of Management and Budget (OMB) 
control number.

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 this action.

FAA Authority

    Adoption of these amendments is consistent with FAA's authority in 
49 U.S.C. 40103(a) to regulate airspace and to promote the safe flight 
of civil aircraft. Furthermore, 49 U.S.C. 44701(5) specifically 
instructs the Administrator to promote the safe flight of civil 
aircraft in air commerce by prescribing ``regulations and minimum 
standards for other practices, methods and procedures the Administrator 
finds necessary for safety in air commerce and national security.''

Justification for Proceeding Without Notice

    The FAA is issuing this action without notice and opportunity to 
comment under the authority of section 4(a) of the Administrative 
Procedure Act, 5 United States Code (U.S.C.) 553(b). Section 553(b) 
allows the FAA to issue a final rule without notice and comment when 
the agency, for good cause, finds that notice and public procedure are 
``impracticable, unnecessary or contrary to the public

[[Page 16755]]

interest.'' In this instance, public comment is unnecessary because the 
changes are minor and for the most part non-substantive. These changes 
are either organizational in nature or recognize the FAA's authority to 
work with the Department of Homeland Security and other Federal 
security agencies may have in working with the FAA regarding aviation 
security.

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. The 
FAA is 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 action indicates that its 
economic impact is minimal and the benefits are primarily 
administrative. Since its costs and benefits do not make it a 
``significant regulatory action'' as defined in the Order, the FAA has 
not prepared a ``regulatory impact analysis.'' Similarly, the FAA has 
not prepared a ``regulatory evaluation,'' which is the written cost/
benefit analysis ordinarily required for all rulemaking actions under 
the DOT Regulatory and Policies and Procedures. The FAA does not need 
to do the latter analysis where the economic impact of an action 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. The FAA is required to determine whether a proposed or 
final action will have a ``significant economic impact on a substantial 
number of small entities'' as defined in the Act. If the FAA finds that 
the action will have a significant impact, we must do a ``regulatory 
flexibility analysis.''
    This action amends FAA regulations that govern security control of 
air traffic. This action editorially reorganizes the content of part 99 
and incorporates language, as a result of agreements between the FAA 
and other Federal security/intelligence agencies, regarding the 
security control of aircraft operations in the NAS. This rulemaking 
action imposes no costs on any entity in the aviation industry. 
Therefore, the FAA certifies 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 action 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 action under the principles and criteria 
of Executive Order 13132, Federalism. The FAA has 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, the FAA has determined that this action does not 
have Federalism implications.

Environmental Analysis

    FAA Order 1050.1D 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 99

    Air traffic control, Airspace, National defense, Navigation (air), 
Security measures.

The Amendment

0
In consideration of the foregoing, the Federal Aviation Administration 
amends part 99 of title 14 Code of Federal Regulations as follows:

PART 99--SECURITY CONTROL OF AIR TRAFFIC

0
1. The authority citation for part 99 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40101, 40103, 40106, 40113, 40120, 
44502, 44721.


0
2. Amend Sec.  99.1 by revising paragraph (a), paragraph (b) 
introductory text, and paragraph (c) to read as follows:


Sec.  99.1  Applicability.

    (a) This subpart prescribes rules for operating all aircraft 
(except for Department of Defense and law enforcement aircraft) in a 
defense area, or into, within, or out of the United States through an 
Air Defense Identification Zone (ADIZ) designated in subpart B.
    (b) Except for Sec. Sec.  99.7, 99.13, and 99.15 this subpart does 
not apply to the operation of any aircraft-
* * * * *
    (c) An FAA ATC center may exempt the following operations from this 
subpart (except Sec.  99.7) on a local basis only, with the concurrence 
of the U.S. military commanders concerned, or pursuant to an agreement 
with a U.S. Federal security or intelligence agency:
    (1) Aircraft operations that are conducted wholly within the 
boundaries of an ADIZ and are not currently significant to the air 
defense system.
    (2) Aircraft operations conducted in accordance with special 
procedures prescribed by a U.S. military authority, or a U.S. Federal 
security or intelligence agency concerned.

0
3. Amend Sec.  99.3 by revising the following definitions:


Sec.  99.3  Definitions.

* * * * *
    Air defense identification zone (ADIZ) means an area of airspace 
over land or water in which the ready identification, location, and 
control of all aircraft (except for Department of Defense and law 
enforcement aircraft) is required in the interest of national security.
* * * * *
    Defense visual flight rules (DVFR) means, for the purposes of this 
subpart, a flight within an ADIZ conducted by

[[Page 16756]]

any aircraft (except for Department of Defense and law enforcement 
aircraft) in accordance with visual flight rules in part 91 of this 
title.

0
4. Revise Sec.  99.7 to read as follows:


Sec.  99.7  Special security instructions.

    Each person operating an aircraft in an ADIZ or Defense Area must, 
in addition to the applicable rules of this part, comply with special 
security instructions issued by the Administrator in the interest of 
national security, pursuant to agreement between the FAA and the 
Department of Defense, or between the FAA and a U.S. Federal security 
or intelligence agency.

0
5. Amend Sec.  99.9 by adding paragraphs (c) and (d) to read as 
follows:


Sec.  99.9  Radio requirements.

* * * * *
    (c) If the pilot operating an aircraft under DVFR in an ADIZ cannot 
maintain two-way radio communications, the pilot may proceed, in 
accordance with original DVFR flight plan, or land as soon as 
practicable. The pilot must report the radio failure to an appropriate 
aeronautical facility as soon as possible.
    (d) If a pilot operating an aircraft under IFR in an ADIZ cannot 
maintain two-way radio communications, the pilot must proceed in 
accordance with Sec.  91.185 of this chapter.

0
6. Amend Sec.  99.11 by revising paragraph (a) and by adding paragraph 
(d) to read as follows:


Sec.  99.11  ADIZ flight plan requirements.

    (a) No person may operate an aircraft into, within, or from a 
departure point within an ADIZ, unless the person files, activates, and 
closes a flight plan with the appropriate aeronautical facility, or is 
otherwise authorized by air traffic control.
* * * * *
    (d) The pilot in command of an aircraft for which a flight plan has 
been filed must file an arrival or completion notice with an 
appropriate aeronautical facility.


Sec.  99.12  [Redesignated as Sec.  99.13].

0
7-8. Redesignate Sec.  99.12 as Sec.  99.13 and reserve Sec.  99.12.

0
9. Revise Sec.  99.15 to read as follows:


Sec.  99.15  Position reports.

    (a) The pilot of an aircraft operating in or penetrating an ADIZ 
under IFR--
    (1) In controlled airspace, must make the position reports required 
in Sec.  91.183; and
    (2) In uncontrolled airspace, must make the position reports 
required in this section.
    (b) No pilot may operate an aircraft penetrating an ADIZ under DVFR 
unless--
    (1) The pilot reports to an appropriate aeronautical facility 
before penetration: the time, position, and altitude at which the 
aircraft passed the last reporting point before penetration and the 
estimated time of arrival over the next appropriate reporting point 
along the flight route;
    (2) If there is no appropriate reporting point along the flight 
route, the pilot reports at least 15 minutes before penetration: The 
estimated time, position, and altitude at which the pilot will 
penetrate; or
    (3) If the departure airport is within an ADIZ or so close to the 
ADIZ boundary that it prevents the pilot from complying with paragraphs 
(b)(1) or (2) of this section, the pilot must report immediately after 
departure: the time of departure, the altitude, and the estimated time 
of arrival over the first reporting point along the flight route.
    (c) In addition to any other reports as ATC may require, no pilot 
in command of a foreign civil aircraft may enter the United States 
through an ADIZ unless that pilot makes the reports required in this 
section or reports the position of the aircraft when it is not less 
that one hour and not more that 2 hours average direct cruising 
distance from the United States.

0
10. Revise Sec.  99.17 to read as follows:


Sec.  99.17  Deviation from flight plans and ATC clearances and 
instructions.

    (a) No pilot may deviate from the provisions of an ATC clearance or 
ATC instruction except in accordance with Sec.  91.123 of this chapter.
    (b) No pilot may deviate from the filed IFR flight plan when 
operating an aircraft in uncontrolled airspace unless that pilot 
notifies an appropriate aeronautical facility before deviating.
    (c) No pilot may deviate from the filed DVFR flight plan unless 
that pilot notifies an appropriate aeronautical facility before 
deviating.


Sec.  99.19  [Removed and reserved].

0
11. Remove and reserve Sec.  99.19.


Sec.  99.21  [Removed and reserved].

0
12. Remove and reserve Sec.  99.21.


Sec.  99.23  [Removed and reserved].

0
13. Remove and reserve Sec.  99.23.


Sec.  99.27  [Removed and reserved].

0
14. Remove and reserve Sec.  99.27.


Sec.  99.29  [Removed and reserved].

0
15. Remove and reserve Sec.  99.29.


Sec.  99.31  [Removed and reserved].

0
16. Remove and reserve Sec.  99.31.

0
17. Revise Sec.  99.41 to read as follows:


Sec.  99.41  General.

    The airspace above the areas described in this subpart is 
established as an ADIZ. The lines between points described in this 
subpart are great circles except that the lines joining adjacent points 
on the same parallel of latitude are rhumb lines.


Sec. Sec.  99.49  [Removed]

0
18. Remove Sec.  99.49.


Sec. Sec.  99.42 through 99.47  [Redesignated]

0
19. Redesignate Sec. Sec.  99.42, 99.43, 99.45, and 99.47 as Sec. Sec.  
99.43, 99.45, 99.47, and 99.49 respectively.

    Issued in Washington, DC, on March 23, 2004.
Marion C. Blakey,
Administrator.
[FR Doc. 04-6964 Filed 3-29-04; 8:45 am]
BILLING CODE 4910-13-P