[Federal Register Volume 73, Number 242 (Tuesday, December 16, 2008)]
[Rules and Regulations]
[Pages 76195-76215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29711]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 1 and 93
[Docket No. FAA-2004-17005; Amdt. Nos. 1-63 and 93-90]
RIN 2120-AI17
Washington, DC Metropolitan Area Special Flight Rules Area
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This action codifies special flight rules and airspace and
flight restrictions for certain aircraft operations in the Washington,
DC Metropolitan Area. The FAA takes this action in the interest of
national security. This action is necessary to enable the Department of
Homeland Security (DHS) and the Department of Defense (DOD) to
effectively execute their respective constitutional and
Congressionally-mandated duties to secure, protect, and defend the
United States.
DATES: Effective February 17, 2009.
FOR FURTHER INFORMATION CONTACT: For technical questions concerning
this final rule, contact Ellen Crum, Airspace and Rules Group, Office
of System Operations Airspace and AIM, Federal Aviation Administration,
800 Independence Ave., SW., Washington, DC 20591; telephone (202) 267-
8783.
For legal questions concerning this final rule, contact C.L.
Hattrup, Office of the Chief Counsel, Federal Aviation Administration,
Washington, DC 20591; telephone (202) 385-6124. Questions relating to
national security determinations relevant to the enactment of this
rule, or any matter falling under the purview of other U.S. government
agencies, will be referred to the Department of Homeland Security,
Department of Defense, Department of Justice, or other agency, as
appropriate.
SUPPLEMENTARY INFORMATION:
Authority for This Rulemaking
The FAA Administrator has broad authority to regulate the safe and
efficient use of the navigable airspace (Title 49 United States Code
(U.S.C.) 40103). The Administrator is also obligated to issue air
traffic rules and regulations to govern the flight of aircraft, the
navigation, protection and identification of aircraft for the
protection of persons and property on the ground, and for the efficient
use of the navigable airspace. The Administrator is likewise authorized
and obligated to issue regulations or orders assigning the use of the
airspace to ensure the safety of aircraft as well as the efficient use
of the airspace. Additionally, the Administrator is authorized and
obligated to prescribe air traffic regulations for the flight of
aircraft, to include mandating safe altitudes, for navigating,
protecting, and identifying aircraft; protecting individuals and
property on the ground; using the navigable airspace efficiently; and
preventing collision of aircraft with other airborne objects, land or
water vehicles, or other aircraft.
The Administrator is authorized and obligated to establish security
provisions governing use of and access to the navigable airspace by
civil aircraft, balancing the needs of national security and national
defense with the mandate to allow and encourage maximum use of the
navigable airspace by civil aircraft. Pursuant to 49 U.S.C.
40103(b)(3)(A), the Administrator is authorized as well as obligated to
establish areas in the airspace if the Administrator, after consulting
with the Secretary of Defense, determines doing so is necessary in the
interest of national security. Since the Department of Homeland
Security was established in 2002 after the enactment of the statute
referred to above, the Administrator's need and responsibility to
consult with the Secretary of Homeland Security in addition to the
Secretary of Defense is consistent with the intent and purpose of the
statute.
List of Abbreviations and Terms Frequently Used in This Document
ADIZ--Air Defense Identification Zone
AOPA--Aircraft Owners and Pilots Association
ATC-Air Traffic Control
DASSP--DCA Access Standard Security Program
DCA VOR/DME--Washington, DC VHF omni-directional range/distance
measuring equipment
DHS--Department of Homeland Security
DOD--Department of Defense
FRZ--Flight Restricted Zone
HSAS--Homeland Security Advisory System
IFR--Instrument flight rules
[[Page 76196]]
Maryland Three Airports--College Park Airport, Potomac Airfield, and
Washington Executive/Hyde Field
NCR--National Capital Region
NCRCC--National Capital Region Coordination Center
NM--Nautical mile
NOTAM--Notice to Airmen
NPRM--Notice of Proposed Rulemaking
ODNI--Office of the Director of National Intelligence
PCT--Potomac Terminal Radar Approach Control (Potomac TRACON)
SFRA--Special Flight Rules Area
TFR--Temporary flight restriction
TSA--Transportation Security Administration
VFR--Visual flight rules
Table of Contents
I. Overview
A. DC Area Airspace Operations Before September 11, 2001
B. DC Area Airspace Operations After September 11, 2001
C. National Security Initiatives
D. The FAA's Role
E. The 2003 NOTAM
F. The 2005 Proposed Rule
G. Public Comments In Response to the 2005 Proposed Rule
H. The 2007 NOTAM
I. Rationale for Adopting This Final Rule
J. Use of Force
II. Management of Airspace for National Security Purposes
III. Summary of the Final Rule
A. Differences Between the Proposed Rule and the Final Rule
1. Regulatory text proposed as subpart B adopted as subpart V,
with modification
2. Dimensions of the DC SFRA
3. Fringe airports
4. Opening/closing flight plans
5. Part 91 Operations at Ronald Reagan Washington National
Airport (DCA Access Standard Security Program (DASSP))
6. Addition of definition of ``national defense airspace'' in 14
CFR part 1
7. Change ``aeromedical operations'' references to ``lifeguard
or air ambulance operations under an FAA/TSA airspace
authorization''
B. Differences Between the August 30, 2007 NOTAM and the Final
Rule
C. Related Regulatory Activity
1. 14 CFR parts 61 and 91
2. 49 CFR part 1562
3. 49 CFR parts 1520, 1540, and 1562
IV. Discussion of Public Comments
A. Security Issues
1. Restrictions on freedom are not justified
2. General aviation aircraft pose no threat
3. General aviation pilots pose no threat
4. Aviation, especially general aviation, is being unfairly
regulated instead of other modes of transportation
5. An SFRA was established for Washington, DC, but not for other
cities
6. The DC SFRA is not necessary now that other security measures
are in place
7. Factors determining the dimensions of the DC FRZ and the DC
SFRA
8. The FAA needs the flexibility to change these requirements in
response to a verified threat
9. Alternatives considered prior to implementation of the DC
SFRA
10. Threat analysis for the Washington, DC area
11. Treating unintentional airspace incursions as security
threats
B. Safety and Operational Issues
1. Frequencies are congested, and controllers are overburdened
and distracted
2. Too many aircraft congregate around the same fixes while
awaiting assignment of a discrete transponder code
3. The DC SFRA forces pilots to fly over water and mountainous
areas
4. Pilots are afraid to engage in training/proficiency flying
activities around the DC SFRA
5. Safety is compromised because the DC SFRA requires more
complex skills
6. Delays in obtaining authorization to re-enter the DC SFRA
cause safety problems
7. DC SFRA procedures are a distraction to pilots, who should be
focused on scanning for other aircraft
8. The configuration of the DC SFRA is difficult for pilots to
navigate
9. Reduced airport services reduce options available to pilots
C. Administrative and Regulatory Issues
1. The FAA has not met statutory requirements to report to
Congress the justification for keeping the DC SFRA
2. The DC SFRA was intended to be temporary, and was put in
place hastily, without public input
3. Suggestions from commenters for alternatives to the DC SFRA
4. The DC SFRA amounts to a ``taking'' (a seizure of private
property without due process)
5. The FAA allowed other Federal agencies to direct its decision
making
V. Paperwork Reduction Act
VI. International Compatibility
VII. Regulatory Impact Analysis, Regulatory Flexibility
Determination and Analysis, International Trade Impact Assessment
and Unfunded Mandates Assessment
A. Regulatory Impact Analysis
B. Final Regulatory Flexibility Determination
C. Regulatory Flexibility Analysis
D. International Trade Impact Assessment
E. Unfunded Mandates Assessment
VIII. Executive Order 13132, Federalism
IX. Environmental Analysis
X. Regulations That Significantly Affect Energy Supply,
Distribution, or Use
XI. Availability of Rulemaking Documents
XII. Small Business Regulatory Enforcement Fairness Act
I. Overview
A. DC Area Airspace Operations Before September 11, 2001
Before the attacks of September 11, 2001, aircraft operators in the
Washington, DC National Capital Region (NCR) were subject to the
General Operating and Flight Rules contained in 14 CFR part 91,
including rules for operations in Class B airspace. Additionally,
aircraft operators were not permitted to enter the prohibited areas
already designated under 14 CFR part 73 for portions of the District of
Columbia, including the White House, the U.S. Capitol building, and the
U.S. Naval Observatory.
B. DC Area Airspace Operations After September 11, 2001
In immediate response to the September 11, 2001 attacks, the FAA
implemented numerous temporary flight restrictions (TFRs) across the
United States in the interest of national security under 49 U.S.C.
40103(b)(3). Civilian airports in the NCR were closed to commercial and
general aviation operations while defense and law enforcement agencies
assessed the risk of further terrorist activity. In addition, a 25-
nautical-mile-radius (NM) TFR area, extending from the surface to
18,000 feet around Washington, DC, was established. Eventually,
commercial flight activities were allowed to resume in graduated
stages, and in December 2001, the 25-NM-radius TFR around Washington,
DC was reduced to an approximately 15-NM radius centered on the
Washington, DC very high frequency omni-directional range/distance
measuring equipment (DCA VOR/DME).
After 2001, as part of its homeland defense mission, the North
American Aerospace Defense Command (NORAD) was directed to expand its
air defense mission to include combat air patrols throughout the United
States, focusing primarily on major cities and major airports. This
expanded U.S-Canada bi-national domestic defense mission is known as
Operation Noble Eagle (ONE). In 2003, as part of the nation's
preparation for the war in Iraq, DHS initiated an operation called
Operation Liberty Shield to enhance homeland security. In support of
that initiative, the FAA, in consultation with the Department of
Homeland Security (DHS), the Department of Defense (DOD), and other
Federal agencies, implemented TFRs around Washington, DC New York City,
and Chicago. The restrictions around New York City and Chicago were
later rescinded when Homeland Security Advisory System (HSAS) threat
levels declined. Restrictions around Washington, DC, were retained for
reasons of national security, as discussed in more detail below.
C. National Security Initiatives
As part of a renewed focus on national security and national
defense after September 11, 2001, the Federal government implemented
numerous policy changes and initiatives as part of
[[Page 76197]]
a coordinated, layered effort to identify, prevent, eliminate or
minimize the vulnerabilities exploited by terrorists. For example, on
June 20, 2006, the President issued National Security Presidential
Directive-47/Homeland Security Presidential Directive-16, Aviation
Security Policy, which led to the National Strategy for Aviation
Security (NSAS). The NSAS Supporting Plans, which were issued on March
26, 2007, include such things as aviation transportation system
security, aviation transportation system recovery, aviation operational
threat response, air domain surveillance and intelligence integration,
domestic outreach, and international outreach. The NSAS links all
agencies with responsibilities across the spectrum of protecting and
securing the aviation domain. Primary agencies include DHS, DOD, the
Departments of Transportation (DOT), Justice (DOJ), State (DOS), and
Energy (DOE), and the Office of the Director of National Intelligence
(ODNI).
Another initiative after September 11, 2001, was the creation of
the Transportation Security Administration (TSA) under DOT for aviation
security. In November 2002, DHS was created, and TSA was transferred to
that Department. The FAA did not and does not have the responsibility,
authority or ability to independently identify and assess threats to
national security. These functions are performed by other Executive
Branch departments and agencies with authority to do so.
D. The FAA's Role
The FAA Administrator has responsibility for the management of the
nation's airspace and Air Traffic Control (ATC) system. Pursuant to 49
U.S.C. 40103(b)(1) and (b)(2), the FAA Administrator has broad
authority to regulate and manage national airspace in the interest of
safety and efficiency. The FAA Administrator also has separate
statutory authority under 40103(b)(3) to regulate and manage airspace
solely for reasons of national security. That paragraph states the FAA
Administrator, ``in consultation with the Secretary of Defense''
shall--``(A) establish areas in the airspace the Administrator decides
are necessary in the interest of national defense; and (B) by
regulation or order, restrict or prohibit flight of civil aircraft that
the Administrator cannot identify, locate, and control with available
facilities in those areas.'' The FAA works closely with the Secretary
of Defense as well as the U.S. Northern Command (NORTHCOM), NORAD, DHS,
and DOJ to identify and evaluate aviation- or airport-related threats
or incidents from around the country, facilitate the appropriate level
and scope of any response, and ensure that potentially significant
information is elevated immediately under existing reporting or
emergency notification procedures.
The FAA is responsible for acting as the liaison with the DHS
Office of National Capital Region Coordination (ONCRC). In creating the
ONCRC, Congress recognized the unique and complex challenges that exist
in the National Capital Region that is home to 12 local jurisdictions,
two states, the District of Columbia, and all three branches of the
Federal government. Actions taken by DHS, DOJ, DOT, DOD, DOS, DOE,
ODNI, and the Office of the Director of the National Counterterrorism
Center (NCTC) to effectively discharge their complementary
responsibilities include, but are not necessarily limited to--
Creation of the Regional Incident Communication and
Coordination System (RICCS), implemented through Memorandum of
Understanding of NCR agencies;
Improvement to the Domestic Emergency Management System;
and
Establishment of the National Capital Region Coordination
Center (NCRCC), the Freedom Center, and the National Intelligence
Center (NIC) to facilitate better real-time communication sharing among
all the responsible agencies.
One of the primary goals of the NCRCC was to enable all agencies to
effectively carry out their respective roles and responsibilities,
which are fully outlined in the NSAS Aviation Operational Threat
Response Plan. The Secretary of Transportation is responsible for
coordinating and managing the national airspace system, which includes,
but is not limited to, supporting AOTR by expediting and deconflicting
clearance and routing of DOD and DHS interdiction assets and providing
air contact information to enhance airborne AOTR. The FAA also supports
AOTR efforts and steady-state defense, security and other airborne law
enforcement and crisis response missions through the planning and
execution of a broad spectrum of airport and air traffic management
related measures. These actions, including establishment of the DC
SFRA, are taken by the FAA as the United States' civil aviation
authority.
E. The 2003 NOTAM
In February 2003, under 14 CFR 99.7, Special Security Instructions,
the FAA established the Washington, DC Metropolitan Area Air Defense
Identification Zone (DC ADIZ) through the issuance of a Flight Data
Center (FDC) NOTAM. The NOTAM also identified the previously
established 15-NM restriction centered on the DCA VOR/DME as the
Washington, DC Metropolitan Area Flight Restricted Zone (FRZ). The
NOTAM prescribed radio communication, transponder, and flight plan
requirements for pilots to follow while operating under visual flight
rules (VFR) within the ADIZ. The DC ADIZ was put in place to provide a
means for law enforcement and security communities to track aircraft
operating in the vicinity of the nation's capital. Some types of
operations, such as U.S. military, law enforcement, and lifeguard or
air ambulance operations under an FAA/TSA airspace authorization, were
excluded from the requirements. NOTAMs, however, are intended to be
short-term measures to address temporary or unanticipated situations
until the appropriate modifications can be made to procedures,
publications, or regulations. Considering the continued significance of
the NCR as a potential target, the FAA determined that it was necessary
to issue permanent restrictions for operating in the Washington, DC
Metropolitan Area.
F. The 2005 Proposed Rule
On August 4, 2005, the FAA published a Notice of Proposed
Rulemaking (NPRM) proposing to codify flight restrictions that were
implemented by various NOTAMs in effect at that time for certain
aircraft operations in the Washington, DC Metropolitan Area (70 FR
45250; Aug. 4, 2005). The NPRM proposed to retain the two-way radio
communication, transponder, and flight plan requirements found in the
NOTAMs. In addition, although the Washington, DC airspace was referred
to as an ADIZ in the NOTAMs, the NPRM proposed to rename the airspace
as a Special Flight Rules Area (SFRA). Note that, except in contexts in
which use of the term ``DC ADIZ'' or ``ADIZ'' is necessary, the term
``DC SFRA'' is used in the remainder of this document, even though most
public comments and historical documents contain the term ``ADIZ.'' The
term ``DC SFRA'' includes both the airspace configuration in existence
at the time of the NPRM and the re-configured airspace reflected in an
August 30, 2007 NOTAM (discussed under ``I.H. The 2007 NOTAM'').
G. Public Comments in Response to the 2005 Proposed Rule
The comment period on the NPRM closed on November 2, 2005. However,
in response to requests from Members of Congress, industry
associations, and
[[Page 76198]]
individual commenters, it was reopened until February 6, 2006 by notice
published on November 7, 2005 (70 FR 67388; Nov. 7, 2005). In addition,
the FAA held 4 public meetings on January 12 and 18, 2006, in Columbia,
MD, and Dulles, VA, respectively.
The FAA received over 21,000 written comments in addition to the
oral comments submitted during the public meetings (contained in
transcripts placed in the docket for this rulemaking). Commenters
included individual pilots, airport owners, professional associations,
aviation-related business owners, and search and rescue and aeromedical
operators. The FAA notes that each comment was individually written,
not a form letter or pre-printed postcard. Many comments contained a
high level of detail. The FAA read all comments and meeting transcripts
in the development of this final rule. The agency appreciates the input
of each commenter. Due to the large number of comments, however, the
FAA is not able to respond in detail to each issue raised. Rather, the
FAA has identified overall themes for discussion under ``IV. Discussion
of Public Comments.''
Many commenters acknowledged that some type of special security is
necessary to protect the nation's capital; however, essentially all of
the commenters objected to the proposed rule. Many asserted that the
FAA was allowing other Federal agencies to force the FAA to make
airspace decisions the FAA would not otherwise implement. The FAA
disagrees. As discussed above, the FAA Administrator has a
responsibility to consult with the Secretary of Defense in the interest
of national security. In addition, the FAA participates in government-
wide initiatives concerning the protection of the NCR. Many commenters
also stated that the DC SFRA covered too large an area, and the
specific measures implemented by NOTAM were unworkable. Commenters,
therefore, were opposed to those measures being made permanent.
The NPRM proposed a larger DC SFRA with different operating
procedures than currently exist. One of the many factors taken into
account for establishing the original, larger, and more restrictive
area, now known as the DC SFRA, was to enable sufficient time and space
for NORAD, as well as other agencies or law enforcement officials with
authority to use armed force to counter threats to national security or
to protect national security assets, to interdict, or intercept an
aircraft. With the benefit of experience gained since the September 11,
2001 attacks, the FAA, in consultation with defense, security, and law
enforcement agencies, evaluated the comments to the 2005 NPRM and
determined that some of the objections and concerns raised by the
public had merit. The FAA and those agencies then considered the
overall operational impact of the NCR airspace restrictions, HSAS
threat levels, as well as the positive effects of additional controller
support, pilot awareness training, security-related initiatives, and
better information sharing and response coordination among responsible
agencies. Based upon the above considerations, the FAA and the other
agencies determined that national security, safety of flight, and
safety of people on the ground would not be compromised with a reduced
DC SFRA perimeter.
H. The 2007 NOTAM
In response to public comments, the FAA modified the size and shape
of the DC SFRA and its associated procedures through FDC NOTAMs 07/0206
and 07/0211, which became effective August 30, 2007. In addition, the
FAA added 3 sectors at Potomac Terminal Radar Approach Control (Potomac
TRACON) (PCT) to track aircraft in the DC SFRA and took steps to
improve functions such as flight plan processing. These modifications
are reflected in this final rule.
In the August 30, 2007 NOTAMs, the dimensions of the DC FRZ
remained essentially the same, except that the western boundary was
moved slightly eastward, while the size of the DC SFRA was reduced from
the wide-ranging outer boundary of the Washington Tri-Area Class B
Airspace Area to a much smaller 30-NM radius from the DCA VOR/DME. As a
result, the number of airports affected by the restrictions was
reduced, and more navigable airspace was made available to pilots
conducting operations in the area. The requirement for pilots to
establish two-way communication with ATC, be equipped with an operating
transponder with altitude-reporting capability, and file a flight plan
remained the same. However, the revised NOTAMs also added a
``maneuvering area'' for Leesburg Executive Airport, and imposed an
indicated airspeed restriction of 180 knots or less (if capable) for
all VFR operations within the DC SFRA/DC FRZ. For VFR aircraft
operations conducted between 30- and 60-NM from the DCA VOR/DME,
aircraft were restricted to an indicated airspeed of 230 knots or less
(if capable).
I. Rationale for Adopting This Final Rule
The FAA is taking this final action to enhance security in
Washington, DC, the nation's capital. As the nation's capital, it has a
unique symbolic, historic, and political status. Washington, DC is the
seat of all three branches of the United States government, and is the
home of the President (who serves as the Commander in Chief of the
Armed Forces) and the Vice President. Likewise, it is the home of the
U.S. Congress and the U.S. Supreme Court, and thus is the residence and
office location for the officials in the Constitutional order of
succession. In addition, World Bank offices, foreign embassies, and the
sovereign residences of foreign ambassadors credentialed to the United
States are located in Washington, DC.
The FAA, in consultation with the Secretaries of Defense and
Homeland Security, has determined that implementation of this rule is
necessary to enable those officials in carrying out their
responsibilities to lawfully identify, counter, prevent, deter, or, as
a last resort, disable with non-lethal or lethal force, any airborne
object that poses a threat to national security. The rule will assist
air traffic controllers and NCRCC officials in monitoring air traffic
by identifying, distinguishing, and, more importantly, responding
appropriately when an aircraft is off course or is not complying with
ATC instructions. In addition, the FAA is permanently codifying
restrictions previously implemented via the NOTAM system. This action
will reduce confusion regarding operations within the DC SFRA and DC
FRZ.
J. Use of Force
The authority and obligation to use any type of armed force, deadly
or otherwise, by the U.S. military is explained in Chairman of the
Joint Chiefs of Staff Instruction (CJCSI), ``Standing Rules of
Engagement (SROE) for Armed Forces of the United States'' 3121.01B,
June 15, 2005. The introductory portion of the SROE is unclassified,
and outlines the basic premise and basic guidance for any decision by
the President or subordinate military commander or member of the armed
forces to use force, deadly or otherwise, in individual self-defense or
collective self-defense of the nation. The NSAS Aviation Operational
Threat Response Plan further reinforces that conducting air defense of
the United States and U.S. interests, including operations to interdict
and, when
[[Page 76199]]
necessary, defeat airborne threats, as part of the active, layered
defense of the United States is a responsibility of the Secretary of
Defense. Through its Combatant Commands and NORAD, as appropriate, DOD
directs the necessary supporting measures to implement Emergency
Security Control of Air Traffic procedures in extreme circumstances.
Through NORAD and the Combatant Commands, DOD is the only department
authorized to direct engagement using deadly force against airborne
civilian aircraft presenting an imminent threat to the United States or
U.S. interests, unless the President directs otherwise. Rules for the
Use of Force (RUF) for those engaged in law enforcement or security
duties also exist for military or civilian law enforcement officers
authorized to use force, deadly or otherwise, to protect certain high
priority national security assets, and to otherwise perform their law
enforcement or security related duties. The FAA is including
information regarding the possible use of force in its mandatory online
training course for pilots who fly within a 60 NM radius of the DCA
VOR/DME so that pilots are aware of the potential risk.
II. Management of Airspace for National Security Purposes
This final rule does not create any new class, type, or category of
airspace. However, the Washington, DC SFRA is considered ``national
defense airspace'' as referenced in 49 U.S.C. 46307, which states that
a person who knowingly or willfully violates regulations or orders
issued under 49 U.S.C. 40103(b)(3) may be subject to criminal
prosecution. The Department of Justice is responsible for determining
if such action is warranted.
As discussed in the ``Authority for This Rulemaking'' section
above, 49 U.S.C. 40103 grants the Administrator broad authority to
regulate the nation's airspace to ensure its safe and efficient use.
Certain regulations currently issued by the Administrator control,
designate, or assign airspace for national security and/or national
defense purposes. These regulations include, but are not limited to,
part 73, subpart C Prohibited Areas, and part 99, Security Control of
Air Traffic. Part 73, subpart C provides for the designation of
prohibited areas for national security purposes wherein no person may
operate an aircraft without authorization from the agency, organization
or military command that established the requirements for the
prohibited area. (See 14 CFR 73.85, Using agency.) Part 99 states in
part that any airspace of the contiguous United States that is not an
ADIZ, in which the control of aircraft is required for reasons of
national security, is a ``defense area.'' (See 14 CFR 99.3.) Part 99
further provides that each person operating an aircraft in a defense
area or ADIZ must comply with special security instructions issued by
the Administrator in the interest of national security. (See 14 CFR
99.7.)
III. Summary of the Final Rule
This final rule establishes and defines the DC SFRA, which includes
the DC FRZ. It also defines dimensions, procedures and required
equipment for operating in the DC SFRA. These procedures include
establishing two-way radio communication, filing flight plans, and
using discrete transponder codes. In addition, the rule provides for
traffic pattern operations at towered and non-towered airports within
the DC SFRA, and provides relief from certain procedures for airports
located near the boundary of the DC SFRA.
A. Differences Between the Proposed Rule and the Final Rule
Since the proposed rule was published in 2005, the dimensions of
the DC SFRA were reduced and procedures amended for aircraft operating
within the DC SFRA. These modifications, largely relieving in nature,
are reflected in this final rule. Consequently, there are some
differences between the NPRM and this final rule. The significant
differences are discussed below.
1. Regulatory text proposed as subpart B adopted as subpart V, with
modification: At the time the 2005 proposed rule was published, the FAA
intended to adopt the proposed regulatory text as 14 CFR part 93,
subpart B, which was reserved at the time. In the intervening time,
however, the agency adopted another rulemaking action as subpart B. In
the final rule, therefore, regulations proposed as subpart B are
adopted as subpart V, proposed sections designated as Sec. Sec. 93.31
through 93.49 are redesignated as Sec. Sec. 93.331 through 93.345 in
the final rule, and proposed Sec. Sec. 93.45 and 93.49 are removed
from the final rule. Provisions proposed in those sections are removed
from the final rule because they have become unnecessary due to
modifications implemented since the publication date of the NPRM.
In addition, some proposed section headings are modified in the
final rule. In the NPRM, certain section headings were in question
format, while others were in caption format. In this final rule,
section headings are in caption format. The following table provides a
comparison between the NPRM and the final rule.
------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------
Subpart B--Washington, DC, Metropolitan Subpart V--Washington, DC,
Area Special Flight Rules Area. Metropolitan Area Special
Flight Rules Area.
Sec. 93.31 What is the purpose of Sec. 93.331 Purpose and
this subpart and who would be applicability of this subpart.
affected?
Sec. 93.33 What could happen if you Sec. 93.333 Failure to comply
fail to comply with the rules of this with this subpart.
subpart?
Sec. 93.35 Definitions............... Sec. 93.335 Definitions.
Sec. 93.37 General requirements for Sec. 93.337 Requirements for
operating in the Washington, DC, operating in the DC SFRA.
Metropolitan Area SFRA.
Sec. 93.39 Specific requirements for Sec. 93.339 Requirements for
operating in the Washington, DC, operating in the DC SFRA,
Metropolitan Area SFRA, including the including the DC FRZ.
FRZ.
Sec. 93.41 Aircraft operations Sec. 93.341 Aircraft
prohibited. operations in the DC FRZ.
Sec. 93.43 Requirements for aircraft Sec. 93.343 Requirements for
operations to or from College Park; aircraft operations to or from
Potomac Airfield; or Washington College Park Airport; Potomac
Executive/Hyde Field Airports. Airfield; or Washington
Executive/Hyde Field Airport.
Sec. 93.45 Special ingress/egress Withdrawn. Referenced airports
procedures for Bay Bridge and Kentmorr are no longer fringe airports.
Airports.
Sec. 93.47 Special egress procedures Sec. 93.345 VFR outbound
for fringe airports. procedures for fringe
airports.
[[Page 76200]]
Sec. 93.49 Airport security Withdrawn. Section no longer
procedures. necessary subsequent to
issuance of TSA final rule
implementing ground security
requirements and procedures at
College Park Airport, Potomac
Airfield and Washington
Executive/Hyde Field (70 FR
7150; Feb. 10, 2005).
------------------------------------------------------------------------
2. Dimensions of the DC SFRA: In the final rule, the dimensions of
the DC SFRA are reduced to a 30-NM radius around the DCA VOR/DME. The
NPRM proposed that the dimensions of the DC SFRA mirror those
designated in the NOTAM in effect at that time. Those dimensions, with
some exceptions, were based on the outer boundary of the Washington
Tri-Area Class B Airspace Area, and included an area of 4,029 square
miles. Since the NPRM was published, the FAA, along with other Federal
agencies, has determined that the NCR can be protected with a reduced
restricted airspace area of 2,837 square miles.
3. Fringe airports: Fringe airports are those airports located
within just a few miles of the DC SFRA boundary established in this
final rule. The FAA grants relief from certain DC SFRA procedures to
pilots operating at fringe airports because departing aircraft
penetrate the DC SFRA airspace for only a brief time. At the time of
the NPRM, fringe airports included Airlie, VA, Albrecht, MD, Harris,
VA, Martin, MD, Martin State, MD, Meadows, VA, and Mylander, MD,
Stewart, MD, St. John, MD, Tilghman Whipp, MD, Upperville, VA, and
Wolf, MD. With the reduction in the dimensions of the DC SFRA, those
fringe airports are no longer within the DC SFRA; therefore, relief
from DC SFRA procedures at those airports is no longer necessary.
However, since implementation of the August 30, 2007 NOTAM, different
airports (specifically, Barnes (MD47), Flying M Farms (MD77), Mountain
Road (MD43), Robinson (MD14), and Skyview (51VA)) are now located just
inside the boundary of the DC SFRA. These airports are defined as
``fringe airports'' in the final rule.
4. Opening/closing flight plans: In the NPRM, the FAA proposed that
pilots open and close their flight plans by contacting an Automated
Flight Service Station (AFSS). In response to public comments, the
August 30, 2007 NOTAM modified this procedure. As reflected in this
final rule, the flight plan is now opened when a pilot receives a
discrete transponder code, and closed upon landing or exiting the DC
SFRA.
5. Part 91 Operations at Ronald Reagan Washington National Airport
(DCA Access Standard Security Program (DASSP)): On July 19, 2005, TSA
issued an interim final rule to restore access to Ronald Reagan
Washington National Airport for certain operations under the DCA Access
Standard Security Program (DASSP). In this final rule, Sec. 93.341
(proposed as Sec. 93.41) is modified to permit aircraft operations
under the DASSP.
6. Addition of definition of ``national defense airspace'' in 14
CFR part 1: In the preamble to the NPRM, the FAA stated that the DC
SFRA would be classified as ``national defense airspace'' (NDA). It
further stated that persons who knowingly or willfully violate the
rules concerning operations in national defense airspace would be
subject to criminal penalties as described in 49 U.S.C. 46307.
National defense airspace is any airspace established by regulation
or order issued under 49 U.S.C. 40103(b)(3). An order or regulation
issued under 49 U.S.C. 40103(b)(3) is appropriate when the
Administrator, in consultation with the Secretary of Defense, has
determined that it is necessary in the interest of national defense to
restrict or prohibit flight of civil aircraft that cannot be
identified, located, or controlled. The FAA realizes that most pilots
consult FAA manuals and regulations for definitions of airspace terms,
rather than Title 49 of the United States Code. In the final rule,
therefore, the FAA is adding a definition of ``national defense
airspace'' to Sec. 1.1 General Definitions.
The FAA notes that, by adding this definition to 14 CFR part 1, the
agency is not creating a new category of airspace, nor is it creating
any new procedures or requirements. The FAA is simply clarifying that
national defense airspace exists in those cases where it was designated
under a regulation or order issued pursuant to 49 U.S.C. 40103(b)(3).
7. Change ``aeromedical operations'' references to ``lifeguard or
air ambulance operations under an FAA/TSA airspace authorization:''
References to ``aeromedical flight operations'' and ``aeromedical
services'' are changed to ``lifeguard or air ambulance operations under
an FAA/TSA airspace authorization.'' This language is consistent with
current terminology, and is used in the FAA's ``Aeronautical
Information Manual.'' An air ambulance flight is performed by an
operator that has been issued operations specifications to perform air
ambulance operations in either an airplane or a helicopter.
``Lifeguard'' is the call sign used by air ambulance operators whose
mission is of an urgent medical nature. A lifeguard call sign is used
only for that portion of the flight requiring expeditious handling.
B. Differences Between the August 30, 2007 NOTAM and the Final Rule
The August 30, 2007, NOTAM contains information that is not
included in this final rule. Information likely to change (such as
telephone numbers and individuals' names) is not included in this rule.
Other pertinent information for DC SFRA operations will continue to
apply through NOTAM, including warnings concerning potential
consequences of violations. This information includes, but is not
limited to--
Requirement for any pilot flying under VFR within a 60-NM
radius of the DCA VOR/DME to complete free online training provided by
the FAA;
The requirement for aircraft to operate at altitudes that
ensure acceptable radar coverage;
Waiver procedures;
Action in the event of a transponder failure;
Speed restrictions;
Resource information;
The definition and requirement for operations within the
Leesburg Maneuvering Area; and
Explanation of DC SFRA transponder and flight plan
requirements.
C. Related Regulatory Activity
1. 14 CFR parts 61 and 91: On August 12, 2008, the FAA issued a
final rule entitled ``Special Awareness Training for the Washington, DC
Metropolitan Area'' (73 FR 46797; Aug. 12, 2008). The final rule,
intended to reduce the number of unauthorized flights into the
Washington, DC SFRA and DC FRZ through education of the pilot
community, focuses primarily on training pilots on the procedures for
flying in and around the DC SFRA and DC FRZ. It requires any pilot who
flies under VFR within a 60-NM radius of the DCA VOR/DME to complete
free online training provided by the FAA on its http://www.FAASafety.gov Web site
[[Page 76201]]
and retain a completion certificate. This training will also inform
pilots of potential adverse consequences arising from violation of the
airspace. More than 7,000 pilots have completed the online training
course.
2. 49 CFR part 1562: On February 10, 2005, the TSA issued an
interim final rule implementing ground security requirements and
procedures at three Maryland airports (the ``Maryland Three
Airports''--College Park Airport, Potomac Airfield and Washington
Executive/Hyde Field) located within the Washington, DC Metropolitan
Area Flight Restricted Zone (70 FR 7150; Feb. 10, 2005). That interim
final rule established security rules for all pilots operating aircraft
to or from any of the Maryland Three Airports as regulated by 49 CFR
Part 1562, Subpart A. The interim final rule replaced the Special
Federal Aviation Regulation (SFAR) No. 94 previously issued by the FAA
(67 FR 7538; Feb. 19, 2002).
3. 49 CFR parts 1520, 1540, and 1562: On July 19, 2005, TSA issued
an interim final rule establishing the DASSP to restore access to
Ronald Reagan Washington National Airport for certain aircraft
operations while maintaining the security of critical Federal
government and other assets in the Washington, DC Metropolitan Area (70
FR 41586; July 19, 2005). The interim final rule applies to all
passenger aircraft operations into or out of DCA, except U.S. air
carrier operations operating under a full security program required by
49 CFR part 1544 and foreign air carrier operations operating under 49
CFR 1546.101(a) or (b). The interim final rule establishes security
procedures for aircraft operators and gateway airport and fixed-base
operators, and security requirements relating to crewmembers,
passengers, and armed security officers onboard aircraft operating into
or out of DCA as regulated by 49 CFR part 1562, subpart B.
IV. Discussion of Public Comments
The vast majority of commenters, while acknowledging that the FAA
implemented the DC SFRA to enhance security in the Washington, DC
Metropolitan Area, believed that the measures were overly burdensome to
the aviation community and unnecessary. In addition, commenters
repeatedly stated that the FAA had not adequately justified the
airspace restrictions and procedures. As discussed in ``I. Overview,''
in response to these comments, the FAA modified, via NOTAM, the
airspace restrictions and procedures that were proposed in the NPRM and
made them less restrictive.
Commenters raised security, safety and operational, administrative,
and regulatory concerns in response to the NPRM. These comments and the
FAA's responses are discussed below. (Comments raised regarding the
FAA's economic analysis are discussed in the full regulatory evaluation
in the docket for this rulemaking.)
A. Security Issues
1. Restrictions on freedom are not justified: Numerous commenters
said that the FAA did not provide sufficient justification for the
existence of the DC SFRA itself. They felt that the government had, in
effect, ``let the terrorists win'' as citizens' freedoms had been taken
away in the name of security.
The FAA acknowledges that actions taken immediately following
September 11, 2001, imposed new and significant limits on access to the
Washington, DC airspace. Initially airspace restrictions were greater
than those that currently exist. The FAA has since reduced restrictions
for the Maryland Three Airports, has worked with DHS to provide waivers
to the NOTAM for aircraft operators, and has amended procedures and
reduced the size of the DC SFRA. Though there are more procedures and
restrictions in place for operating in the DC SFRA than there are for
the Washington Tri-Area Class B Airspace Area, access to the airspace
is available to pilots who comply with appropriate procedures. The FAA
believes it has provided a balance between security needs and the
public's right of transit through the navigable airspace as provided in
49 U.S.C. 40103.
As discussed elsewhere in this preamble, the FAA took this action
in consideration of the fact that Washington, DC is unique as a
symbolic military and political target. Historically, in times of war,
a nation's seat of government provides an inviting target for enemy
attacks because of its great political, economic and psychological
value.
Washington, DC is the seat of all three branches of the United
States Government. The White House, the U.S. Capitol, the Supreme Court
and other Federal court buildings are located in Washington, DC, as
well other Executive-Legislative-, and Judicial-Branch buildings and
the headquarters and operations facilities for the nation's domestic
and international security apparatus. The nation's leaders (the
President, the Vice President, Members of Congress, Cabinet members,
and Supreme Court justices) are located in the NCR. In addition,
American symbolic and historical sites (such as monuments and museums)
are located in the NCR. World Bank offices, all foreign embassies, and
the residences of foreign ambassadors to the United States are also
located in the vicinity. The FAA notes that the United States has an
obligation to protect other nations' sovereign spaces.
Establishing the DC SFRA was one of many steps that were taken to
ensure the security of the nation's capital. The FAA acknowledges that
no single procedure or requirement is fail-safe; however, the FAA
believes that this rule adds a layer of additional security to minimize
actual threats that may require a graduated response by other U.S.
government agencies.
2. General aviation aircraft pose no threat: Many commenters said
that general aviation aircraft do not pose a threat because their
kinetic energy is low, their speeds are slow, and their cargo capacity
is small.
The FAA understands the commenters' concerns; however, the Federal
government is concerned that an aircraft, regardless of size, could be
used to transport individuals with criminal intentions or dangerous
materials that could do significant harm to the NCR.
An example of an incident that could have been avoided under this
rule is that of the stolen Cessna 150, which on September 12, 1994, was
deliberately crashed into the White House by a suicidal pilot. The
plane had relatively little fuel on board and no explosive,
radiological, biological, or chemical agents. Some commenters pointed
to this 1994 incident as evidence that general aviation aircraft pose
no real threat. However, had the aircraft been larger, or the pilot
been carrying an explosive device or chemical/radiological/ biological
agent, the impact could have resulted in the loss of life on the
ground, or long term denial of access to the affected area.
Intelligence information gathered after September 11, 2001, while
not specifying an imminent threat of attack in the NCR, suggests that
some extremists have considered using small aircraft for terrorist
activities. The FAA estimates that there are approximately 200,000
airplanes based at over 19,000 landing facilities within the United
States. These facilities include both public- and private-use
facilities, and, unlike air carrier operators, most are not subject to
Federal security regulations. The government, therefore, remains
concerned that terrorists launching attacks using stolen or hijacked
planes remains a viable option.
[[Page 76202]]
3. General aviation pilots pose no threat: Commenters asked why the
government believes that general aviation pilots are a threat when no
DC SFRA or DC FRZ incursion to date had been terrorism-related. The
commenters pointed out that the attacks of September 11, 2001, were
carried out by individuals flying large aircraft.
The FAA notes that there is concern that terrorists may turn to
general aviation as an alternative method for conducting operations,
especially since the implementation of security enhancements for
commercial aircraft and airports.
In addition, the Federal government considers it an unacceptable
risk to allow aircraft in the vicinity of Washington, DC without
knowing the pilot's intentions. The requirements to file a flight plan
before operating in the DC SFRA and squawk a discrete transponder code
provide the FAA and other Federal agencies with critical information
(i.e., direction of flight, type and color of aircraft, and airspeed)
regarding aircraft operating within the DC SFRA.
Commenters also stated that the requirements for operating in the
DC SFRA, such as filing a flight plan, squawking a discrete transponder
code, and maintaining two-way communications with ATC do nothing to
ensure that a pilot entering the DC SFRA is not a terrorist.
The FAA acknowledges that these measures do not ensure that a pilot
or a passenger is not a terrorist. However, the measures provide ATC
and law enforcement/security officials with additional information that
may be useful in identifying a compliant pilot versus a non-compliant
pilot. A flight plan provides ATC with pilot information and the
pilot's intended route of flight. Further, the use of a discrete
transponder code enables ATC to observe and monitor the aircraft while
in the airspace. In addition, maintaining two-way radio communication
allows officials to communicate with the pilot, and when necessary,
determine whether the pilot is experiencing an emergency or aircraft
equipment failure, or whether the pilot has simply committed a
navigation error. Should there be any aircraft operator in the DC SFRA
who has not filed a flight plan or has deviated from the intended route
of flight, steps can be taken to get the aircraft back on course and
enable those with response or security duties to determine if a threat
exists and the appropriate course of action (including use of deadly
force).
4. Aviation, especially general aviation, is unfairly being
regulated instead of other modes of transportation: Commenters believed
the airspace restrictions were unfairly directed at aviation operations
(most notably general aviation) while motor vehicles and rail traffic
can still pass close to government buildings without much restriction.
The FAA does not have jurisdiction over modes of transportation
other than aviation. The agency points out, however, that the modes of
transportation mentioned above are in fact restricted in some manner
from getting too close to the White House and the U.S. Capitol. For
example, at the White House, barriers such as fences, checkpoints,
gates, bollards, and other screening systems are designed so that if a
detonation does occur, the blast will not result in the destruction of
the building or serious harm to protected persons. Vehicular traffic is
prohibited on Pennsylvania Ave and E Street between 15th and 17th
Streets. Additionally, trucks are not allowed on 17th Street, NW.,
between Constitution Ave and Pennsylvania Ave. Likewise, there are
vehicular restrictions near and around the U.S. Capitol. While motor
vehicles must follow roads, and trains must stay on tracks, airplanes
can maneuver without such restraints and are not constrained by ground-
based barriers and restrictions.
In addition, though many general aviation operators are impacted by
these airspace restrictions, the rule itself is not specifically
directed at general aviation operations. General aviation operators can
and do operate under IFR, and IFR requirements have not been changed.
Rather, the rule requires additional procedures for VFR operators, who
would otherwise not be required to make their intentions known to ATC.
5. An SFRA was established for Washington, DC, but not for other
cities: Many commenters asked why only Washington, DC has permanent
airspace restrictions. In addition, they pointed out that airspace
restrictions around other places, such as New York City, have been
discontinued since September 11, 2001, and said that those around
Washington, DC also should be discontinued. Many commenters who lived
outside the Washington, DC vicinity expressed concern that SFRAs would
be put in place over their locales.
The FAA has received requests from various officials to impose
SFRA-type restrictions or prohibitions at locations including New York
City and Chicago. The FAA has evaluated these requests, in consultation
with other agencies, and concluded that restrictions were not required.
Federal agencies that share responsibility for security of the National
Airspace System closely monitor the threat to the nation's cities,
including the unique security environments of cities such as
Washington, DC, New York City, Chicago, and others. When developing
risk mitigation plans, TSA considers threats, vulnerabilities, the
criticality of a location or transportation system, and the potential
consequence of an attack on that location or system. Risk mitigation
plans are intended to ensure the security of the location or
transportation system while allowing the nation's transportation system
to continue operating. Sustainability is a primary concern when
developing and implementing a risk mitigation plan.
As previously discussed, Washington, DC is a high-value symbolic
military and political target. The requirements of the DC SFRA allow
ATC and law enforcement agencies to identify and track aircraft
operating in the Washington, DC area and to focus on those targets of
interest that may pose a hazard to the Washington, DC area.
The Transportation Security Administration continually reviews and
refines risk assessments and mitigation plans in order to address the
threat from terrorist groups. The FAA maintains a continuous dialogue
with appropriate agencies regarding threat and security issues that may
pertain to aircraft operations. In consultation with these agencies,
the FAA may implement additional measures, not only in the Washington,
DC area, but in other locations, as needed, based on specific, credible
intelligence. For example, on March 17, 2003, the national HSAS threat
level was raised to Orange (high). In response, the FAA took a number
of actions including the issuance of flight restrictions over New York
City and Chicago, and cancelled all waivers for operations at the
Maryland Three Airports and for sporting events. On April 17, 2003, the
HSAS threat level was lowered to Yellow (elevated), and the above-
mentioned restrictions were cancelled. It should be noted that the HSAS
threat level for the airline sector in the United States is currently
at Orange (high).
6. The DC SFRA is not necessary now that other security measures
are in place: Several commenters agreed that the DC FRZ is necessary,
but objected to the existence of the DC SFRA. They believed that, with
the introduction of new security measures since 2003 (such as ground-
based missiles, better air interdiction capability, new technology to
identify aircraft, laser warning systems, regulations that make it less
likely that terrorists can go undetected,
[[Page 76203]]
and improved security around general aviation airports), the DC SFRA
was no longer necessary.
Commenters are correct that there are layers of security for
aviation operations in addition to the DC SFRA. Other measures include
vetting the FAA Airmen Certification Database, the joint TSA/industry
Airport Watch Program, general aviation airport security guidelines,
and mandatory flight school security awareness training, as well as
regulatory programs for certain types of general aviation aircraft
operators. These measures, when implemented together, provide improved
protection of the airspace. In addition, the agency notes that
heightened security measures for all aviation operations, not just
general aviation, have been implemented.
The FAA acknowledges that new aircraft tracking technology,
Automatic Detection and Processing Terminal (ADAPT), has been developed
since 2005; however, that system supplies information only regarding
the aircraft, not the pilot operating it. The protection of this
airspace requires the FAA and other government personnel to identify
and track those operating in the DC SFRA. Requiring pilots to file
flight plans is the least intrusive method of identifying who is
operating an aircraft, and enables the FAA and law enforcement and
security agencies to more quickly identify anomalous flight behavior,
which may indicate a potential threat to the NCR.
Some commenters asserted that there are better air defense
capabilities, such as air interception and use of ground-based
missiles, than restricting the airspace. The FAA notes that these
measures are intended to be used only as a last resort. The airspace
from 15- to 30-NM from the DCA VOR/DME provides a buffer area, which
allows ATC and law enforcement/security officials to be aware of a non-
compliant aircraft before it penetrates the boundary of the DC FRZ. By
the time an aircraft is at the edge of the DC FRZ, it is only minutes
away from targets in the nation's capital. Relying solely on air
defense capabilities could lead to air interception or use of lethal
measures that could result in the loss of innocent lives in instances
where pilots made inadvertent navigation errors or experienced
equipment failures. Also, the buffer provided by the DC SFRA provides
additional warning time for law enforcement officials to take
appropriate emergency actions on the ground.
Some pilots who operate in the Washington, DC Metropolitan Area,
such as those who operate out of the Maryland Three Airports, those who
apply for waivers to operate within the DC FRZ, and crewmembers with an
approved DCA Access Standard Security Program are vetted through
various databases; however, this is a small percentage of pilots who
fly in and through the DC SFRA.
The FAA also acknowledges and appreciates the improved security
programs in effect at some general aviation airports. For example, in
2003, the Aircraft Owners and Pilots Association (AOPA) partnered with
TSA to deploy a national security enhancement program called ``The
Airport Watch Program.'' That program is patterned after the
``Neighborhood Watch'' anti-crime program, and calls on members of the
general aviation community to observe and report any suspicious
activities at airports. The Aircraft Owners and Pilots Association has
funded and distributed a wide range of educational materials, while TSA
has provided a national, toll-free hotline (1-866-GA-SECURE). Programs
like these add value to overall security efforts. However, they are
voluntary and have not been implemented at all airports.
7. Factors determining the dimensions of the DC FRZ and the DC
SFRA: Some commenters stated that they did not understand what factors
were considered when determining the radii of the DC FRZ and the DC
SFRA.
The purpose of the DC SFRA is to identify and track aircraft that
may pose a threat to the NCR. Security agencies need enough time to
take appropriate action if it is determined that a pilot may have
harmful intentions. The FAA, DHS, and DOD determined the lateral limits
based on a number of factors, such as launch response time and speed of
intercept aircraft, and geographic dispersion of airfields, in addition
to the locations of other critical infrastructure within the NCR.
The FAA notes that the agency, in consultation with military and
law enforcement agencies, has made every effort to keep the dimensions
of the DC FRZ and the DC SFRA as small as possible to reduce the impact
on the aviation community while meeting security and safety
requirements.
8. The FAA needs the flexibility to change these requirements in
response to a verified threat: Many commenters expressed concern that,
by codifying the substance of NOTAMs, the FAA would not be able to
relax or tighten the Washington, DC Metropolitan Area airspace
restrictions in response to changing HSAS threat levels.
The FAA understands the commenters' concerns and assures the public
that the agency retains the capability to adjust the restrictions as
necessary. The DC SFRA was instituted in 2003 by NOTAM, in lieu of
rulemaking, because of the urgent need to implement security measures
in the NCR. A NOTAM can be issued quickly, while issuing a codified
regulation can take years. However, as stated in 49 U.S.C. 40103(b)(3),
``* * * the Administrator, in consultation with the Secretary of
Defense, shall--* * * by regulation or order, restrict or prohibit
flight of civil aircraft that the Administrator cannot identify,
locate, and control with available facilities in those areas.''
Therefore, the appropriate method to implement permanent airspace
restrictions is through the rulemaking process. When it became apparent
that this airspace designation would be in effect indefinitely, the FAA
initiated rulemaking action.
The FAA notes that only certain elements of the 2007 NOTAM are
being adopted as regulations. Some procedural details for SFRA
operations, as well as warnings concerning potential consequences of
violations, will continue to be addressed through NOTAM. The agency
also retains the ability to issue additional special security
instructions by NOTAM action under 14 CFR part 99 if security or threat
conditions warrant. Airspace restrictions or control measures can be
adjusted in accordance with HSAS threat levels and specific
intelligence. The Department of Homeland Security will continue to
coordinate with other Federal agencies to establish appropriate
measures in response to specific threats.
9. Alternatives considered prior to implementation of the DC SFRA:
Numerous commenters wanted to know if the government considered any
alternatives to the restrictions prior to establishing the SFRA in
2003.
Because of the need to protect the airspace around the Washington,
DC Metropolitan Area quickly, the FAA did not publish alternatives for
public notice and comment. However, the FAA and military and law
enforcement agencies did discuss several alternatives before deciding
on the requirements implemented in 2003. Those alternatives included
establishing a 55-NM outer ring with a 15-NM inner ring, expanding the
P-56 prohibited area above parts of Washington, DC to a radius of 30-
NM, and establishing outer rings as large as 75 NM or 110 NM. In each
case, factors such as numbers of airports impacted and air traffic
procedures were considered. The FAA and Federal law enforcement and
security agencies have determined that the DC SFRA provides the minimal
[[Page 76204]]
spatial buffer consistent with the requirement to respond to aviation
threats in the NCR.
In addition, prior to the August 2007 modifications, the FAA, in
consultation with the law enforcement and security agencies, did
consider several alternatives, which were discussed in detail in the
``Regulatory Flexibility'' section in the preamble to the NPRM.
10. Threat analysis for the Washington, DC area: Several commenters
inquired whether a threat analysis had been done for the Washington, DC
area, and whether such analysis was available to the public.
The Department of Homeland Security, in coordination with ODNI, has
analyzed the threat, vulnerabilities, and consequences of an airborne
attack against the NCR. They have concluded that the DC SFRA is a
critical layer in the security and defense of the NCR. These analyses
are classified and not available to the public.
11. Treating unintentional airspace incursions as security threats:
Numerous commenters objected to the FAA's ``zero tolerance'' approach
to unintentional incursions. Many said that they had no violations on
their records until they accidentally violated the DC SFRA or DC FRZ.
Some asked for an ``amnesty'' program to allow pilots to clear their
names of inadvertent or minor violations.
The purpose of this rule is to provide security to the Washington,
DC Metropolitan Area. Incursions into this airspace, whether
intentional or not, or violations of any other procedures or rules
applicable to this airspace, are taken very seriously, and may be
enforced in accordance with the FAA's enforcement authority. The focus,
emphasis, or level of penalties imposed by the FAA may vary, depending
on the threat posture or HSAS threat levels in effect. The FAA's
enforcement action does not mean that violations or violators will be
categorized as ``national security threats.'' The FAA does not have
authority to make such a determination or impose such a label on any
violator.
Because airspace established under 49 U.S.C. 40103(b)(3) is,
however, ``national defense airspace,'' that term will be used in
connection with FAA enforcement actions, regardless of whether an
incursion or violation was inadvertent or willful. No additional
penalty imposed by the FAA will result from the status of the DC SFRA
as ``national defense airspace.'' The status as ``national defense
airspace,'' however, is important and relevant to the extent a pilot
knowingly or willfully enters the DC SFRA in violation of the DC SFRA
rules, procedures, or instructions of an air traffic controller or
official while in flight. Unlike a willful violation of other airspace,
knowing or willful violations of national defense airspace may subject
the pilot to criminal liability under Federal criminal law. See 49
U.S.C. 46307. The exercise of any prosecutorial decision to file
criminal charges for a knowing or willful violation is a decision that
will be made by appropriate Federal prosecutors or law enforcement
officials.
In addition, commenters expressed concern about the use of force by
military or law enforcement personnel. The fact that a pilot is flying
without permission into airspace designated for national security or
without following the proper procedures may be one factor those
officials take into account in determining the nature of the threat and
what to do about it. As with any breach of a security perimeter,
military or law enforcement officials with authority to defend the
country may use lawful and appropriate force to do so. In the case of
an aircraft incursion, interception, diversion, or other necessary
means, force, up to and including deadly force, could be employed if an
aircraft or airborne object is deemed to be an imminent or actual
threat to national security. That determination will be made by
appropriate military or command authority only on a case-by-case basis,
specific to the situation. An incursion or violation of the DC SFRA, or
any other airspace regulation, regardless of whether the airspace in
question is ``national defense airspace,'' does not by itself authorize
the use of force. It is however, one of the factors that should and
will be considered along with all other relevant facts in existence at
the time, in determining whether an aircraft or airborne object poses
an imminent threat to national security.
B. Safety and Operational Issues
Many commenters expressed concern that operating within the DC SFRA
and the DC FRZ was unsafe for a number of reasons, which are discussed
below. With the modifications adopted in the 2007 NOTAMs, the FAA has
addressed a number of these concerns. In addition, however, the FAA
notes that in accordance with 14 CFR 91.3, Responsibility and Authority
of the Pilot in Command, the pilot in command is directly responsible
for, and is the final authority on operation of the aircraft.
Additionally, 14 CFR 91.103, Preflight action, requires that the pilot
in command, before beginning a flight, become familiar with all
available information concerning that flight. When operating under VFR,
the pilot in command selects a destination, and makes a personal choice
as to the course that will be flown. If the pilot desires to fly
through the DC SFRA, he or she should always be prepared with an
alternate flight plan in the event that ATC cannot accommodate his or
her request, much as he or she would do in order to fly through other
controlled airspace areas.
To enhance safety, the FAA has taken numerous actions to
disseminate information about the DC SFRA dimensions and operating
requirements. These include the development of a free online course
entitled ``Navigating the New DC ADIZ'' (available at http://www.FAASafety.gov), which includes several downloadable procedures
guides. Since July 2007, over 7,000 pilots have completed this course.
Additionally, the FAA has depicted DC SFRA dimensions and
communications frequencies on VFR sectional charts. The agency has also
worked closely with pilot and aviation associations to inform the
flying community. Since 2004, the Potomac Terminal Radar Approach
Control (TRACON) (PCT) has hosted a DC SFRA seminar and Operation
Raincheck briefings twice a year, with nearly 250 pilots attending each
time. PCT personnel go out into the general aviation community to
provide pilot briefings, typically conducting about 6 briefings a year
with approximately 50 pilots attending each briefing. PCT personnel
have staffed booths and conducted DC SFRA seminars at the AOPA annual
open house at the Frederick Airport, MD with approximately 150 pilots
in attendance.
The FAA works closely with AOPA to disseminate the latest NOTAM
information to its members. AOPA includes information pertaining to
flight operations in the DC SFRA on its Web site. In addition, AOPA
sent out posters that warn of the DC SFRA airspace, as well as
distributed hundreds of letters to pilots advising of the DC SFRA and
recommending they familiarize themselves with the procedures and
airspace dimensions. The FAA continues to meet with AOPA on a regular
basis to discuss operations within the DC SFRA.
1. Frequencies are congested, and controllers are overburdened and
distracted: Because a greater number of pilots must now establish two-
way radio communications with ATC, some commenters said that
frequencies were congested and that controllers were overburdened and
distracted from their primary air traffic separation duties. In
[[Page 76205]]
response to commenters' concerns about frequency congestion and air
traffic controller workload, the FAA established several new procedures
in connection with the August 30, 2007 NOTAM. First, the agency
established three sectors (called ``ADIZ West,'' ``ADIZ South,'' and
``ADIZ East'' in the NOTAM) at PCT. Second, the FAA established a
communications frequency dedicated to DC SFRA communications for each
of PCT's three DC SFRA sectors. During periods of high workload,
including weekends and other times when general aviation pilots are
likely to be conducting VFR operations in and around the DC SFRA, PCT
can staff the three DC SFRA sectors with PCT personnel whose sole
responsibility is to handle DC SFRA traffic. These steps have served
to--(1) Mitigate PCT controller workload associated with DC SFRA
traffic; (2) separate DC SFRA security identification and tracking
functions from air traffic control separation duties, and (3) reduce
delays for pilots seeking to operate to, from, or through this airspace
area.
The FAA also notes that the reduced dimensions of the DC SFRA, as
defined in the August 30, 2007 NOTAM, along with establishment of a
Leesburg Maneuvering Area with streamlined communications procedures,
have served to reduce air traffic controller workload, frequency
congestion, and delays for pilots. In addition, the FAA has further
worked to reduce workload and frequency congestion by clarifying to
both pilots and controllers that, unless specifically requested by a
pilot and approved by ATC, radar services (e.g., traffic advisories,
flight following) are not provided in association with DC SFRA
security-related identification and tracking.
2. Too many aircraft congregate around the same fixes while
awaiting assignment of a discrete transponder code: Numerous commenters
expressed concerns about the potential safety hazard created when large
numbers of aircraft operate in the vicinity of the same fixes while
awaiting assignment of a discrete transponder code to enter the DC
SFRA. Commenters noted that when filing a DC SFRA flight plan, pilots
had to state a fix (exit or entry point) on their flight plans. Even
though there is no requirement for pilots to operate directly to, from,
or over these fixes while establishing two-way radio communications
with ATC and obtaining a discrete transponder code, commenters stated
that many pilots are nevertheless congregating in the vicinity of these
fixes.
In response to these concerns, and in connection with the DC SFRA
dimensional changes implemented in the August 30, 2007 NOTAM, the FAA
made changes to the DC SFRA entry/exit points for flight plan filing
purposes. Specifically, the agency established eight ``gates'' around
the circumference of the DC SFRA. Pilots list the appropriate gate name
on the DC SFRA flight plan, and enter or exit the DC SFRA at any point
within the boundaries of that gate. The gate names and boundaries are
now depicted on appropriate VFR charts. The FAA has also provided the
online DC SFRA training course and its associated guidance materials
and works with industry associations to educate pilots about these
gates and boundaries.
While the FAA recognizes that any navigational fix tends to be a
high-traffic area, the agency reminds pilots that when operating under
VFR, the pilot in command is responsible to see and avoid other
aircraft. Before the implementation of the DC SFRA, the Washington Tri-
Area Class B Airspace Area was among the most congested in the nation,
and extreme vigilance for other aircraft has been required. The DC SFRA
has increased the number of pilots using air traffic services; however,
the actual number of VFR aircraft operations has not changed
significantly. What has changed is more awareness of aircraft in the
area, which prior to the DC SFRA did not use ATC services; thus most
pilots were not aware of the large number of VFR operations conducted.
3. The DC SFRA forces pilots to fly over water and mountainous
areas: Commenters noted that the DC SFRA restricts available airspace.
Therefore, when pilots were unable to obtain an authorization to fly in
the DC SFRA, they were forced to fly over mountainous areas to the west
or over water of the Chesapeake Bay to the east. Commenters claimed
that flight over mountains and water was unsafe.
Flight over water or mountainous terrain is not inherently unsafe.
The FAA acknowledges that when over mountains or water certain
precautions should be taken in the event of an emergency, such as an
engine failure. Carrying more fuel, identifying emergency landing
locations, maintaining a higher altitude or carrying flotation devices
are some steps a prudent pilot may take to mitigate any flight risk.
When flying VFR, a pilot must consider the class of airspace and
special use airspace along the route, and the associated procedures or
requirements that must be met to transit the airspace. For example,
most of the DC SFRA is contained within the Washington Tri-Area Class B
Airspace Area. In accordance with 14 CFR 91.131, Operations in Class B
Airspace, no person may operate an aircraft within Class B airspace
without a clearance from ATC, and the aircraft must be equipped with a
two-way radio and an altitude-reporting transponder. In addition,
student pilots must meet specific training provisions of 14 CFR part 61
prior to operating in a Class B airspace area. If a pilot intends to
transit Class B airspace, the pilot must be able to meet the above
conditions. In addition, a pilot must be prepared to circumnavigate the
airspace if ATC is unable to provide a clearance into the airspace. In
this area, this may mean a pilot would need to over fly the Blue Ridge
Mountains or the Chesapeake Bay, and should always be prepared to do
so. Implementation of the DC SFRA did not change this fact.
The FAA believes that the August 30, 2007 reduction in DC SFRA
dimensions, along with the establishment of associated new frequencies,
gates, and procedures, has created more navigable airspace, thus
providing more routes for pilots to transit the area. That action
reduces the likelihood of pilots having to fly over mountainous terrain
or water.
4. Pilots are afraid to engage in training/proficiency flying
activities around the DC SFRA: Many commenters stated that flight
training and routine proficiency flying was reduced because of the fear
of enforcement actions, thereby making it difficult to maintain the
skills necessary to fly safely.
The FAA is aware that there have been some cases in which pilots
have not complied with the DC SFRA requirements, and consequently have
been escorted by military aircraft and/or been met by law enforcement
personnel on the ground. The agency understands that such events can be
intimidating and that some pilots may opt to cease or reduce their
flying activities rather than risk making an error. The FAA
acknowledges that the existence of the DC SFRA may create more of a
challenging environment for pilots not accustomed to communicating with
ATC and regrets that some pilots may choose not to fly. However, the
agency encourages pilots to use the many resources available to learn
about DC SFRA operations, including completing the FAA's mandatory
Special Awareness Training.
5. Safety is compromised because the DC SFRA requires more complex
skills: Commenters asserted that because more complex skills are
required to operate within the DC SFRA, pilots have been
[[Page 76206]]
challenged beyond their capabilities, which has placed them in an
unsafe situation.
The airspace in which an aircraft operates dictates the equipment
and communication requirements for those who operate within the
designated airspace. Most of the DC SFRA lies within the boundaries of
the Washington, DC Tri-Area Class B Airspace Area and as such, pilots
have always been required to possess appropriate communication and
navigation skills (see 14 CFR 91.131). If a pilot chooses to operate in
the DC SFRA, it is imperative that he or she comply with Sec. 91.103,
Preflight action, which, in part, requires that each pilot in command
become familiar with all available information concerning that flight.
As stated previously, information pertaining to the DC SFRA is readily
available, and should be reviewed by all pilots who operate in the
area.
6. Delays in obtaining authorization to re-enter the DC SFRA cause
safety problems: Commenters stated that they often encountered delays
in obtaining authorization to re-enter the DC SFRA and noted that one
pilot actually ran out of fuel while waiting.
When the DC SFRA was initially implemented, both pilots and
controllers had to adapt to the new requirements and develop workable
DC SFRA operational procedures that could be clearly understood by all
concerned. The FAA acknowledges and regrets that many pilots
encountered delays when entering and exiting the DC SFRA during that
time. Since then, pilots and controllers have become more familiar with
the DC SFRA and its operating requirements, and ATC has developed
procedures to accommodate the increase in operations. The agency
believes that the reduced DC SFRA dimensions and new procedures,
dedicated frequencies, and gates have significantly reduced the kind of
delays pilots may have encountered when the DC SFRA was initially
established.
7. DC SFRA procedures are a distraction to pilots, who should be
focused on scanning for other aircraft: AOPA expressed concern that DC
SFRA procedures were a distraction to pilots engaged in other important
operational activities, such as scanning for other aircraft.
Although flight operations to, from, and within the DC SFRA may
increase a pilot's workload by requiring additional attention to
communication and navigation, the FAA does not believe that this in
itself is a significant distraction to pilots. Well before any pilot
who opts to operate within or adjacent to the DC SFRA departs, he or
she must obtain a thorough pre-flight briefing in accordance with 14
CFR 91.103. During the pre-flight briefing process, the pilot should
resolve any questions or concerns so that when airborne, that pilot can
concentrate on flying the aircraft, and scanning for other aircraft.
The FAA also notes that in most cases, ATC radio transmissions to
aircraft operating within the DC SFRA are minimal.
8. The configuration of the DC SFRA is difficult for pilots to
navigate: AOPA asserted that the configuration of the DC SFRA, which
includes many irregular boundaries, makes it difficult for pilots to
navigate.
The FAA acknowledges that the initial boundaries of the DC SFRA,
which were also proposed in the NPRM as dimensions for the DC SFRA,
were not ideal. In response to these comments, in August 2007 the FAA
reduced and reconfigured the DC SFRA to a 30-NM circle centered on the
DCA VOR/DME. The FAA has also depicted these new boundaries on
appropriate navigational charts. The agency believes that these steps
have made it significantly easier for pilots to navigate in the NCR.
9. Reduced airport services reduce options available to pilots:
Some commenters asserted that a DC SFRA-related reduction in general
aviation flights resulted in reduced airport services (e.g.,
maintenance and repair, avionics services, flight instruction, etc.).
They alleged that this development had led to even greater reductions
in general aviation flights as well as potential compromise of safety
because pilots do not have as many options if they need emergency
services.
The FAA acknowledges that the existence and operating requirements
of the DC SFRA have in some cases resulted in less traffic to some
local airports, thus reducing revenue and services. The FAA has
analyzed the impacts on local airports and businesses; this analysis is
discussed in section ``VII. Regulatory Impact Analysis.'' The reduced
size of the DC SFRA impacts fewer airports, so the FAA expects
operations at those airports now located outside the DC SFRA to
increase. The FAA has also established a maneuvering area to ease
traffic flow in and out of the Leesburg Airport. In addition, three
airports within the DC FRZ were provided some financial assistance from
the Department of Transportation.
C. Administrative and Regulatory Issues
1. The FAA has not met statutory requirements to report to Congress
the justification for keeping the DC SFRA: AOPA and some individual
commenters said the FAA had not been sending regular reports to
Congress, as mandated by the Vision 100--Century of Aviation
Reauthorization Act (section 602).
Paragraph (a) of that legislation stated that every 60 days the
Administrator must transmit to the Committee on Transportation and
Infrastructure of the House of Representatives and to the Committee on
Commerce, Science, and Transportation of the Senate, a report (in
classified form) containing an explanation of the need for the DC ADIZ
(now called the ``DC SFRA'').
The commenters are correct that the FAA did not submit reports to
Congress explaining the need for the DC SFRA. During the reorganization
of agency functions after September 11, 2001, aviation intelligence
responsibilities shifted from the FAA to DHS. The Secretary of DHS,
therefore, briefed Congress on the need for the DC SFRA. In addition,
in 2007, the Congressional Research Service performed its own research
on the aviation security needs in the Washington, DC Metropolitan Area.
Paragraph (c) of the Vision 100 legislation called upon the FAA to
transmit a report to Congress every 60 days describing changes in
procedures or requirements that could improve operational efficiency or
minimize operational impacts on pilots and controllers. The FAA has met
this requirement and submits reports describing the changes to improve
the operational efficiency or minimize operational impacts to the
Committee on Transportation and Infrastructure of the House of
Representatives and to the Committee on Commerce, Science, and
Transportation of the Senate.
2. The DC SFRA was intended to be temporary and was put in place
hastily, without public input: When the DC SFRA was established via the
NOTAM system, it was not known how long the flight restrictions would
be in place. In the first few months of its implementation, the DC SFRA
and its procedures were changed several times in response to changes in
the HSAS threat levels. For example, a cut-out was made around Freeway
Airport, Mitchellville, MD; certain airports (known as gateway
airports) were identified and used as locations where aircraft and crew
could be vetted through various databases prior to entering the DC
SFRA; and ingress/egress procedures were instituted for Bay Bridge and
Kentmorr Airports, Kent Island, MD. Security, law enforcement and FAA
officials have met regularly to discuss and assess the security needs
of the Washington, DC Metropolitan Area.
[[Page 76207]]
In August 2007, the dimensions of the DC SFRA were reduced, and
procedures were amended, which has opened up more airspace to the
aviation community and simplified procedures for pilots operating
within the DC SFRA. The need to protect the nation's capital continues,
and the FAA has determined that the most appropriate way to implement
this special flight rules area is through the rulemaking process. The
FAA also notes that prior to making this DC SFRA permanent, the agency
published an NPRM requesting comments from the public. In response, the
agency received over 21,000 comments, in addition to comments received
at four public meetings.
3. Suggestions from commenters for alternatives to the DC SFRA: The
Aircraft Owners and Pilots Association submitted alternatives to the
proposal, and recommended retaining the FRZ but only for larger, faster
aircraft. AOPA's plan would have excepted aircraft that weigh 6,000
pounds or less and that limit their speed to 160 knots or less from the
DC SFRA requirements.
The Experimental Aircraft Association (EAA) also submitted numerous
recommendations, including but not limited to reducing the FRZ from a
15-NM radius to a 10-NM radius from the DCA VOR/DME and reducing the DC
SFRA to a 20-NM radius of the DCA VOR/DME. In addition, EAA suggested
using a larger TFR when HSAS threat levels are elevated.
Many individual commenters suggested retaining the FRZ and
eliminating the SFRA. The FAA appreciates these and other suggestions.
The agency considered the recommendations but, in consultation with the
Interagency Airspace Protection Working Group, determined that reducing
the sizes of the FRZ and the SFRA to the degree the commenters
suggested would not provide adequate warning time for law enforcement
officials to take appropriate emergency actions on the ground. The FAA
notes, however, that the size of the DC SFRA was reduced in August
2007.
As to the suggestion that smaller aircraft flying at slower speeds
be exempted from meeting DC SFRA requirements, the FAA believes that
such a measure would not allow the FAA to meet its objective of
tracking all aircraft in the National Capital Region.
Several commenters suggested that aircraft operating in the DC SFRA
be equipped with new technology, such as Automatic Dependent
Surveillance-Broadcast technology (ADS-B), for monitoring. Use of such
technology was not proposed and is therefore outside the scope of this
rulemaking. However, the FAA notes that ADS-B has been selected as the
preferred next generation technology for surveillance and broadcast
services. It has been successfully deployed in Alaska and several other
locations. On October 5, 2007, the FAA published in the Federal
Register an NPRM, which proposed in part, requirements for aircraft
operating in Class B and C airspace areas to be equipped with ADS-B
technology (72 FR 56947; Oct. 5, 2007). As part of that rulemaking
effort, the FAA established an Aviation Rulemaking Committee (ARC)
under Order 1110.147. That committee was chartered to deliver a report
on how to optimize operational benefits of the ADS-B system and to
provide recommendations to the FAA on the development of a final rule.
4. The DC SFRA amounts to a ``taking'' (a seizure of private
property without due process): Some commenters believed that the
government is, in effect, practicing condemnation/seizure of private
property without due process. Commenters alleged that the airspace
restrictions have triggered a regulatory taking and, therefore, they
deserve compensation. The commenters bolstered their argument by
asserting that the decision to prohibit or restrict airspace indirectly
results in a loss of business to airports or aviation-related
businesses on the ground.
Airspace is not private property; therefore, it is not property
that can be owned by any person, as the term ``private property'' is
used within the meaning of the U.S. Constitution's Fifth Amendment.
While the FAA's regulations or restriction imposed on any navigable,
public airspace may interfere with, limit, or even prohibit the right
of an individual to use that airspace, the restrictions do not
constitute a taking of private property without due process or just
compensation. The FAA acknowledges that establishing the DC SFRA will
have an indirect impact on aviation-related businesses that may have an
adverse economic effect due to a reduction of access to, or need for,
their services. However, that indirect economic cost and personal
inconvenience is not an impact unique to the general aviation community
or the Washington, DC area. Rather, it is an impact experienced by many
individuals and businesses in all areas of commerce as a result of the
variety and scope of new security measures imposed by various levels of
government after the September 11, 2001 attacks.
5. The FAA allowed other Federal agencies to direct its decision
making: Numerous commenters asserted that the FAA ``abdicated'' its
rulemaking authority to other Federal entities. The commenters believed
that the FAA had allowed security and law enforcement agencies to
direct civilian airspace policy.
As discussed in ``I. Overview,'' the FAA Administrator has
statutory authority to manage the nation's airspace in the interest of
national security. In carrying out this responsibility, the FAA
consults with the Secretary of Defense and works closely with other
Federal agencies to ensure the safety of civil aviation and to protect
persons and property on the ground.
V. Paperwork Reduction Act
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the FAA submitted a copy of the new information collection
requirement(s) in this final rule to the Office of Management and
Budget for its review. OMB approved the collection of this information
and assigned OMB Control Number 2120-0706.
In the preamble to the 2005 NPRM, in the ``Paperwork Reduction
Act'' discussion, the FAA solicited comments on the information
collection requirement for pilots operating under VFR to file flight
plans. The FAA received numerous comments opposing the requirement.
These comments, and the FAA's responses, are discussed elsewhere in
this preamble.
Number of respondents: The FAA does not know exactly how many
pilots will file flight plans to access the DC SFRA and DC FRZ on an
annual basis. To calculate the number of respondents, the FAA has
divided 256,461 estimated annual number of operations by 15 operations
per pilot annually, which equals 17,097.
Cost: The FAA estimates the annual cost to comply with the
information collection requirement of this final rule to be $1,831, 098
($477,017 cost to activate a flight plan plus $1,354,081 cost to file a
flight plan). The ten-year cost will be $18,310,980.
The cost to activate a flight plan ($477,017) was calculated as
follows.
17,097--Respondents.
15--Number of flight plans filed by each respondent annually.
256,461--Annual number of flight plans.
0.05 hour--Time needed to activate a flight plan.
$37.20/hour--Value of pilot's time.
The cost to file a flight plan ($1,354,081) was calculated as
follows.
17,097--Respondents.
256,461--Annual number of flight plans.
0.137 hour--Time (including wait time) needed to file a flight
plan.
[[Page 76208]]
$37.20/hour--Value of pilot's time.
3.6%--Percent of pilots needing to refile a DC SFRA flight plan.
Hours: The FAA estimates the rule will require 49,223.07 hours
(12,823.5 hours to activate a flight plan plus 36,400.02 hours to file
a flight plan). The number of hours over 10 years will be 492,230.70.
An agency may not collect or sponsor the collection of information,
nor may it impose an information collection requirement unless it
displays a currently valid Office of Management and Budget (OMB)
control number.
VI. 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 regulations.
VII. Regulatory Impact Analysis, Regulatory Flexibility Determination
and Analysis, International Trade Impact Assessment, and Unfunded
Mandates Assessment
A. Regulatory Impact Analysis
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 final rule. We suggest readers seeking
greater detail read the full regulatory impact analysis, a copy of
which we have placed in the docket for this rulemaking.
In conducting these analyses, the FAA has determined that this
final rule: (1) Has benefits that justify its costs; (2) is an
economically ``significant regulatory action'' as defined in section
3(f) of Executive Order 12866; (3) is ``significant'' as defined in
DOT's Regulatory Policies and Procedures; (4) will have a significant
economic impact on a substantial number of small entities; (5) will not
create unnecessary obstacles to the foreign commerce of the United
States; and (6) will not impose an unfunded mandate on state, local, or
tribal governments, or on the private sector by exceeding the threshold
identified above. These analyses are summarized below.
The FAA has analyzed the expected costs of this regulation for a
10-year period, from 2009 through 2018. As required by the Office of
Management and Budget (OMB), the present value of this cost stream was
calculated using discount factors of 7 and 3 percent. All costs in this
analysis are expressed in 2007 dollars.
The FAA costed out four alternatives for this evaluation:
Alternative 1 is what was contained in the NPRM, which
mirrors the Washington Tri-Area Class B airspace area, with certain
minor modifications. It also has a 15-NM FRZ. Its cost is $1.34 billion
over ten years ($1.15 billion, discounted at 3 percent, and $942.26
million discounted at 7 percent).
Alternative 2 is the final rule, with a 30-NM DC SFRA, 15-
NM DC FRZ. Its cost is $1.04 billion over ten years ($886.34 million,
discounted at 3 percent, and $756.98 million, discounted at 7 percent).
Alternative 3 is the NPRM with enhanced procedures, such
as ADS-B-equipped aircraft being exempt from the flight plan
requirement and establishing two-way communication requirement, given
certain conditions. Its cost is $1.30 billion over ten years ($1.11
billion, discounted at 3 percent, and $919.31 million, discounted at 7
percent).
Alternative 4 contains a 15-NM DC FRZ, with the DC SFRA
being determined by threat and air defense requirements, and
established by NOTAM. For costing purposes, this alternative examined
two scenarios, a 55-NM DC SFRA and a 20-NM DC SFRA. Its costs range
from $3.29 billion over ten years ($2.80 billion, discounted at 3
percent, and $2.13 billion, discounted at 7 percent) to $4.47 billion
($3.82 billion, discounted at 3 percent, and $2.85 billion, discounted
at 7 percent).
1. Costs
There are two major sets of cost components--public sector and
private sector.
a. Public Sector: (1) A key component in defending the DC SFRA
against attackers is the airplanes based at Andrews Air Force Base.
Under most of the alternatives, given a 30-NM DC SFRA, the program
depends on F-15s, F-16s, and helicopters to be ready to scramble to
defend the DC SFRA; a scramble can range from pilots proceeding to
battle stations, runway alerts, sending a helicopter to alert the
errant aircraft, or sending out military aircraft to intercept the
aircraft. The total cost of scrambles, including both F-15/F-16 and
helicopter, is $324.64 million over ten years. Given a 20-NM DC SFRA,
the program would depend on a fighter combat air patrol, 24 hours a
day, 7 days a week (24/7 fighter CAP) instead; this CAP uses F-15s and
F-16s as well as KC-135 tankers to refuel these aircraft; these costs
sum to $356 million annually. When DOD assets are deployed, air traffic
control suspends operations and there is a delay cost. The total cost
of suspending operations is $1.93 million over ten years. This estimate
only takes local delays into consideration, and does not account for
secondary delays and ripple effects that may be imposed on the aviation
system.
(2) The FAA installed additional radar facilities for support of
the DC SFRA at Washington Dulles International Airport (IAD), Ronald
Reagan Washington National Airport (DCA), Baltimore/Washington
International Thurgood Marshall Airport (BWI), and PTC. Since these
costs are ``sunk'', they are not considered to be an incremental cost
of the rule. However, there are recurring annual costs summing to
$375,000.
(3) This rule requires additional controllers and flight service
station specialists, as well as the cost of filing and activating DC
SFRA-related flight plans. The FAA has dedicated 6 additional
controller positions for 3 specific regions of the DC SFRA as a result
of this rule. Over a ten-year period, the total cost of the additional
controllers is $15.50 million. On average, about 4 full time equivalent
positions are dedicated to filing flight plans at flight service
stations; over a ten-year period, the total cost of the additional FSS
specialists will be $6.45 million. The additional cost of filing and
activating flight plans, over 10 years, sums to $59.33 million.
[[Page 76209]]
Total public-sector costs, over the 10-year period, sum to $411.60
million.
b. Private Sector: The DC SFRA impacts aircraft operators,
airports, and aviation-related businesses in the Washington, DC region.
DC SFRA requirements have created delays and other costs to operators
and have caused some operators to reduce the number of flights they
take, shift operations to airspace and airports outside of the DC SFRA,
and even to cease operations altogether. DC SFRA-related delays impose
costs on operators and aviation-related businesses. The reduced number
of operations has reduced revenue at airports and aviation-related
businesses.
(1) Operating Restrictions--The DC SFRA has created many delays to
operators, including ground, flight, circumnavigation, and re-routing
delays. VFR operators in the DC SFRA are required to file a DC SFRA
flight plan and communicate with ATC, creating flight, ground, and re-
routing delays. In an effort to avoid these delays, some pilots
circumnavigate the DC SFRA, although this also imposes an additional
cost. Over ten years, the cost of operating restrictions is $355.80
million.
(2) Airports--The DC SFRA impacts many airports in the Washington,
DC region, including airports located outside of the DC SFRA
boundaries. The DC SFRA affects the behavior of aircraft operators in
the region and results in decreased levels of aviation activity at some
airports. However, the DC SFRA will also cause aviation activity at
some airports in the region to increase. Much of the negative economic
impact at some airports will be offset by gains at other airports. Over
ten years, the affected airports have net revenue losses of $25.35
million.
(3) Aviation-related business--The DC SFRA impacts aviation-related
businesses in the Washington, DC region because it causes some aircraft
operators to alter their behavior. Aviation-related businesses include
fixed-base operators (FBOs), passenger or freight charter operators,
aerial photography and mapmaking businesses, aircraft maintenance and
repair facilities, flight schools, restaurants and transportation
services located at airports, and other businesses dependent on
aviation activity. A decrease in the number of operations and active
aircraft directly results in a decrease in revenue at these businesses.
Other aviation-related businesses incur additional costs as a
consequence of DC SFRA requirements. Over ten years, the affected
businesses have revenue losses of $246.86 million.
Total private sector costs, over ten years, sum to $628.00 million.
Total public and private sector costs combined, over ten years, sum to
$1.04 billion.
2. Benefits and Cost-Benefit Comparison
The FAA looked at five scenarios, and computed the estimated mean
consequence resulting if each scenario were to occur once in a 10-year
period. The estimated means ranged from $0.12 billion ($0.09 billion,
discounted) to $9.81 billion ($6.89 billion, discounted). These were
compared to the cost of the rule, which is $1.04 billion ($756.98
million, discounted). For three of these five scenarios, the required
risk reduction could be less than 100 percent, and the rule would be
cost beneficial.
B. Final Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
business, organizations, and governmental jurisdictions subject to
regulation.'' To achieve that principle, the RFA requires agencies to
solicit and consider flexible regulatory proposals and to explain the
rationale for their actions. 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 proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the determination is that it will, the
agency must prepare a regulatory flexibility analysis as described in
the RFA. However, if an agency determines that a proposed or final rule
is not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the 1980 act 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.
The FAA gathered data for airports and other aviation-related
businesses that are located 60NM from the DCA VOR/DME. The U.S. Small
Business Administration (SBA) classifies businesses as small based on
size standards, typically expressed as annual revenue or number of
employees. SBA publishes a table of small business size standards
matched to North American Industry Classification System (NAICS) codes.
The SBA defines privately owned airports as a small entity if annual
revenue is less than $6.5 million. Publicly owned airports are defined
as a small entity if annual revenue is less than $5 million. As Table 1
shows, all impacted airports (with the exception of BWI, DCA and IAD)
are well below these annual revenue thresholds. Revenue data is for
2007.
Table 1--Airport Revenue
----------------------------------------------------------------------------------------------------------------
Facility 2007 Revenue Facility 2007 Revenue
----------------------------------------------------------------------------------------------------------------
Essex Skypark............................. $47,440 Lee......................... $347,758
Freeway................................... 103,000 Harford County.............. 378,192
Shoestring Aviation Airfield.............. 110,482 Winchester Regional......... 386,365
Hanover................................... 116,019 Hagerstown Regional......... 439,083
Maryland.................................. 119,100 Ridgely Airpark............. 493,240
College Park.............................. 122,590 Stafford Regional........... 500,000
Davis..................................... 140,188 Bay Bridge.................. 501,740
Potomac Airfield.......................... 142,000 St. Mary's County Regional.. 510,932
Front Royal-Warren County................. 151,280 Culpeper Regional........... 536,485
Fallston.................................. 172,171 Warrenton-Fauquier.......... 802,200
Clearview Airpark......................... 219,968 Leesburg Executive.......... 805,068
Tipton.................................... 250,000 Frederick Municipal......... 867,082
Suburban.................................. 259,859 Montgomery County Airpark... 920,103
Orange County............................. 272,530 Manassas Regional........... 1,192,389
Shannon................................... 297,402 Martin State................ 1,260,000
[[Page 76210]]
Washington Executive/Hyde Field........... 300,670 Carroll County Regional..... 1,302,400
Cambridge-Dorchester...................... 301,297 Easton/Newnam Field......... 1,621,671
----------------------------------------------------------------------------------------------------------------
The SBA size standards for aviation-related businesses at airports
are listed in Table 2. The size standard for flight schools is annual
revenue less than $23.5 million, for aircraft sales businesses it is
annual revenue less than $9 million, and for other business types it is
generally annual revenue less than $6.5 million. The SBA threshold for
charter operators is less than 1,500 employees.
Table 2--SBA Size Standards
------------------------------------------------------------------------
Annual revenue or employee
Business type threshold for small business
------------------------------------------------------------------------
Aerial Photography........................ <$6.5 million.
Aircraft Rental........................... <$6.5 million.
Aircraft Sales............................ <$9 million.
Charter, sightseeing, courier............. <1,500 employees.
Fixed Base Operator....................... <$6.5 million.
Flight School............................. <$23.5 million.
Other..................................... <$6.5 million.
Repair Station............................ <$6.5 million.
Working (agriculture, helicopter lift, <$6.5 million.
etc.).
------------------------------------------------------------------------
The FAA matched each DC SFRA-impacted aviation-related business to
its appropriate NAICS code and compared it to the SBA size standard for
that NAICS code. The FAA estimates that the majority of impacted
businesses are considered small under the SBA size standards.
The FAA found that the impact of the DC SFRA on some of these
businesses was positive, while for others, it was negative. ``Congress
considered the term `significant' to be neutral with respect to whether
the impact is beneficial or harmful to small businesses. Therefore,
agencies need to consider both beneficial and adverse impacts in an
analysis.'' \1\ The FAA estimated the annualized revenue impact of the
rule on each of the small entities, and determined that the rule will
have a significant economic impact on a substantial number of small
entities. Except for two small entities which happen to be airports,
the actual or estimated ratio of annualized revenue impacts to annual
revenue was greater than 1 percent. Accordingly, the FAA prepared a
regulatory flexibility analysis, as described below.
---------------------------------------------------------------------------
\1\ Small Business Administration, ``A Guide for Government
Agencies--How To Comply With the Regulatory Flexibility Act'', May
2003, page 21.
---------------------------------------------------------------------------
C. Regulatory Flexibility Analysis
Under section 603(b) of the RFA (as amended), each final regulatory
flexibility analysis is required to address the following points: (1)
Reasons the agency considered the rule, (2) the objectives and legal
basis for the rule, (3) the kind and number of small entities to which
the rule will apply, (4) the reporting, recordkeeping, and other
compliance requirements of the rule, and (5) all Federal rules that may
duplicate, overlap, or conflict with the rule.
1. Reasons the FAA considered the rule--The FAA is taking this
final action to enhance security in Washington, DC, the Nation's
capital. As the Nation's capital, it has a unique symbolic, historic,
and political status. Washington, DC is the seat of all three branches
of the United States government, and is the home of the President and
the Vice President. Likewise, it is the home of the U.S. Congress and
the U.S. Supreme Court, and thus is the residence and office location
for the officials in the Constitutional order of succession.
The FAA, in consultation with the Secretaries of Defense and
Homeland Security, has determined that implementation of this rule is
necessary to enable those officials in carrying out their
responsibilities to lawfully identify, counter, prevent, deter, or, as
a last resort, disable with non-lethal or lethal force, any airborne
object that poses a threat to national security. The rule will assist
air traffic controllers and National Capital Region Communications
Center officials in monitoring air traffic by identifying,
distinguishing, and, more importantly, responding appropriately when an
aircraft is off course or is not complying with ATC instructions.
2. The objectives and legal basis for the rule--The objective of
the rule is to codify the airspace restrictions within the Washington,
DC Metropolitan Area. This effort is to assist DHS and DOD in their
efforts to enhance security protection of vital national assets located
within the National Capital Region. The legal basis for the rule is
found in 49 U.S.C. 40103, et seq. The FAA and DHS must consider, as a
matter of policy, maintaining and enhancing safety and security in air
commerce as its highest priorities (49 U.S.C. 40101 (d)).
3. The kind and number of small entities to which the rule will
apply--The FAA identified 34 small airports and 395 small aviation-
related businesses that the rule will impact. Of the 34 small airports,
12 are in the DC SFRA. Of the 395 small aviation-related businesses,
274 are in the DC SFRA. Table 1 above lists the 34 small airports and
Table 3 below shows the different types and number of small aviation-
related businesses to which this rule will apply.
Table 3--Type and Number of Small Aviation-Related Business Impacted
------------------------------------------------------------------------
Business type Count
------------------------------------------------------------------------
Aerial Photography...................................... 16
Aircraft Rental......................................... 18
Aircraft Sales.......................................... 121
Charter Operators....................................... 21
Fixed Base Operators.................................... 61
Flight School........................................... 127
Repair Stations......................................... 9
Working................................................. 7
Other................................................... 15
---------------
Total............................................... 395
------------------------------------------------------------------------
4. The reporting, recordkeeping, and other compliance requirements
of the rule--As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the FAA submitted a copy of these sections to OMB for
its review. However, there are no sections of the paperwork package
that apply to the airports and aviation-related businesses. All of the
economic impact discussed below deals with business gained or lost due
to the requirements of the DC SFRA.
5. All federal rules that may duplicate, overlap, or conflict with
the rule--The FAA is unaware of any Federal rules that duplicate,
overlap, or conflict with the rule.
6. Other considerations--Affordability analysis--For the purpose of
this analysis, the degree to which small entities can afford the
reduction in revenue resulting from the final rule is predicated on the
availability of financial resources. Costs can be paid from existing
assets such as cash, by
[[Page 76211]]
borrowing, through the provision of additional equity capital, by
accepting reduced profits, by raising prices, or by finding other ways
of offsetting costs.
One means of assessing the affordability is the ability of each of
the small entities to meet its short-term obligations, such as looking
at net income, working capital and financial strength ratios. According
to financial literature, a company's short-run financial strength is
substantially influenced by its working capital position and its
ability to pay short-term liabilities, among other things. However, the
FAA was unable to find sufficient financial information for the
majority of affected entities, and so used an alternative way of
analyzing affordability. The approach used by the FAA was to compare
the rule's impact on entity revenues with estimated revenues in the
absence of the rule.
The FAA was able to estimate the annual change in revenue and 2007
revenue for the airports. However, the FAA was unable to locate revenue
data for the aviation-related businesses. This analysis first discusses
the airports and then the aviation-related businesses.
(a) Airports--Table 38 in the full regulatory impact analysis lists
the public use airports within the DC SFRA and between the DC SFRA and
60 nautical miles from the DCA VOR/DME that are small entities. Column
A lists each airport's estimated annual revenue in the absence of the
rule and 2007 NOTAM.\2\ Column B lists each airport's estimated revenue
in 2007 (with the NOTAM). Column C lists each airport's estimated
change in revenue as a result of the DC SFRA, and was computed by
subtracting Column A from Column B. A negative change in revenue
implies that the airport is worse off because of this rule. Column D is
the quotient of Column C and column A, or the ratio of annualized
revenue change associated with the rule to the estimated non-NOTAM
annualized revenue.
---------------------------------------------------------------------------
\2\ This value is used to ensure that the analysis examines the
rule in accordance with the pre-9/11 baseline established in the
full regulatory impact analysis.
---------------------------------------------------------------------------
This information was used to assess the significance and
affordability of this rule. Column E shows the airports for which the
FAA expects this rule would have a significant impact, as described
previously. Column F examines affordability using the alternative
approach described above. The FAA considers that an airport would have
trouble affording the rule if the change in its revenue is negative and
exceeds 10 percent of its annualized change in revenue as a percentage
of non-NOTAM revenue. The idea is that if a business has such a high
loss in revenue, percentage-wise, it would likely have trouble
affording the rule.
Table 4 summarizes Table 38 in the full regulatory impact analysis
by showing the number of airports, the number of those airports that
might have trouble affording this rule, and the resultant percentage.
Table 4--Affordability of Small Business Airports
------------------------------------------------------------------------
------------------------------------------------------------------------
Total number of small airports impacted....................... 34
Number of small airports for which the rule might be non- 12
affordable...................................................
Percentage.................................................... 35.29%
------------------------------------------------------------------------
(b) Other Aviation-Related Businesses--Aviation-related businesses
less than 60nm from DCA were identified from Dun & Bradstreet reports,
comments to the 2005 DC SFRA NPRM, airport Web sites, AOPA Pilot Guide,
World Aerospace Directory, FAA Operating Specification Sub System
(OPSS), FAA Vital Information System (VIS), and FAA Form 5010 database.
Although there was not enough data for the FAA to estimate business-by-
business revenue impacts, the agency was able to estimate aggregate
revenue impacts for business within and outside of the DC SFRA. The
aggregate data show that as a group, DC SFRA businesses will have
trouble affording this rule, as shown in Table 22 in the full
regulatory impact analysis, whereas non-SFRA businesses will benefit
from this rule, as shown in Table 23 in the full regulatory impact
analysis. Thus, from the perspective of affordability, the FAA expects
that a number of aviation-related businesses based at airports inside
the DC SFRA will have trouble affording this rule. (See Table D-1 in
Appendix D in the full regulatory impact analysis for a list of SFRA
and non-SFRA businesses.)
7. Liquidity analysis/profitability analysis--As explained earlier,
except for aggregate revenue data, the FAA was unable to find enough
financial data for the impacted small businesses both inside and
outside the DC SFRA to perform a liquidity analysis or a profitability
analysis.
8. Disproportionality analysis--The FAA considered whether small
entities will be disadvantaged relative to large entities due to
disproportionate impacts. There was no need for the FAA to conduct a
disproportionality analysis for the airports because all airports
affected by this rule are small businesses, so none would be advantaged
over any other. For the aviation-related businesses, as can be seen in
Table 5, the estimated revenue impact per aircraft operation is larger
for the large businesses than for the small businesses; thus, there
will be no disproportionate impact.
Table 5--Disproportionality Analysis for Aviation-Related Businesses
----------------------------------------------------------------------------------------------------------------
Revenue impact per
Total revenue Total operations aircraft operation
----------------------------------------------------------------------------------------------------------------
Large............................................... $8,581,818 237,643 $36.11
Small............................................... 531,751 148,519 3.58
----------------------------------------------------------------------------------------------------------------
9. Competitiveness analysis--For the airports outside the DC SFRA,
the average net increase in revenue as a percentage of estimated non-
NOTAM revenue was 4.9 percent. For those airports inside the DC SFRA,
the average net decrease in revenue as a percentage of non-NOTAM
revenue was 44.9 percent. Much of this decrease comes from the three
airports within the DC FRZ--College Park, Potomac Airfield, and
Washington Executive/Hyde Field; without these three airports, the
average net decrease in revenue as a percentage of revenue resulting
from the rule would be about 19.7 percent. The FAA expects that based
on the results of this analysis, this rule will improve the
competitiveness of small businesses outside the DC SFRA vis-[aacute]-
vis those inside the DC SFRA, since the revenue of most aviation-
related businesses is dependent on the number of aircraft operations
taking place at that airport.
10. Business closure analysis--It is difficult for the FAA to
determine the
[[Page 76212]]
extent to which airports significantly impacted by this rule might have
to cease operations. There are too many variables and some of the
airports within the DC SFRA are already in serious financial
difficulty; the information shown in the affordability analysis can be
indicators of airport business closures. The FAA has no comparable
financial information on the aviation-related businesses. To what
extent the final rule makes the difference in whether these entities
remain in business is difficult to answer. The FAA believes that there
is a likelihood of business closure for some of these businesses as a
result of this rule.
Alternatives
The FAA considered alternatives to the rule for both airports and
aviation-related businesses. A discussion of these alternatives
follows. The third alternative is the final rule. For each alternative,
the FAA first states the alternative, followed by a discussion, and why
the FAA believes that the alternative would not enhance security.
Alternative 1--Retain the DC FRZ, eliminate the rest of the DC
SFRA--Under this alternative, airspace in the Washington DC
Metropolitan area with flight restrictions would be reduced
considerably. The only flight restrictions remaining would be within
approximately 15 NM of the DCA VOR/DME, restricting all aircraft
operations except part 121 operators, DOD operations, law enforcement
operations and authorized emergency medical services operations. This
removes the requirement for filing flight plans for aircraft operators
in airspace outside the DC FRZ, resulting in reduced pilot and
controller workload. This alternative would provide relief to those VFR
operators that will operate in the DC SFRA area but not into the DC
FRZ. It would restore former air traffic control procedures and air
space configurations for some of the area. The FAA estimates that
implementation of this alternative would have a positive effect for all
of the impacted airports except for College Park, Washington Executive/
Hyde Field, and Potomac.
Conclusion: This alternative is not preferred because it does not
meet the safety and security requirements of those security agencies
responsible for the safety of the Washington DC Metropolitan area.
Thus, the FAA does not consider this to be a significant alternative in
accordance with 5 U.S.C. 603(d).
Alternative 2--Rescind the FAA's NOTAM and the DC SFRA/DC FRZ
immediately--This alternative would provide immediate relief to these
airports and aviation-related businesses by removing security
provisions and restoring former air traffic control procedures and
airspace configurations. Implementation of this alternative would
facilitate the return of pilots who, for the sake of operating
simplicity and reduced flying costs, relocated to other airports. This
would be the option with the least impact.
Conclusion: The FAA believes that the threat of terrorists must be
guarded against, and this option would not adequately achieve that
goal. Rescinding these actions would increase the vulnerability and
diminish the level of protection now in place to safeguard vital
national assets located within the NCR. This alternative is rejected
because it would compromise the security of vital national assets and
increase their vulnerability. Thus, the FAA does not consider this to
be a significant alternative in accordance with 5 U.S.C. 603(d).
Alternative 3--Codify existing flight restrictions over the
Washington, DC Metropolitan Area (Final Rule)--Under this alternative,
the government would maintain the present security and air traffic
operational restrictions. The rule enhances security measures in that
it requires any aircraft operating to and from the affected airports
and transiting the DC SFRA to be properly identified and cleared. This
alternative would affect all airports and aviation-related businesses.
Conclusion: This alternative is preferred because it balances the
security concerns against the impact on the airports and aviation-
related businesses.
Alternative 4--Exempt small, slow aircraft--This alternative would
exempt small, piston-driven aircraft. The rationale behind this
alternative is that these aircraft are slower than turbine-driven
aircraft and are much less likely to be a threat. Most general aviation
aircraft fall into this category, and so most aircraft operators would
not be subject to this rule. However, the FAA's air traffic controllers
cannot distinguish between piston-drive and turbine-drive aircraft from
radar or from transponder codes, making this alternative difficult to
enforce, thus having the potential to compromise security.
Conclusion: This alternative would increase the vulnerability of
and diminish the level of protection now in place to safeguard vital
national assets located within the National Capital Region. This
alternative is rejected because it would compromise the security of
vital national assets and increase their vulnerability. Thus, the FAA
does not consider this to be a significant alternative in accordance
with 5 U.S.C. 603(d).
D. International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal
agencies from establishing any standards or engaging in 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 final rule and determined that it will have
only a domestic impact and therefore no effect on international trade.
E. 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
(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.'' The FAA
currently uses an inflation-adjusted value of $136.1 million in lieu of
$100 million.
This final rule does not contain such a mandate. The requirements
of Title II do not apply.
VIII. Executive Order 13132, Federalism
The FAA has analyzed this final rule 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, and, therefore, does not have federalism
implications.
IX. 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
[[Page 76213]]
categorical exclusion identified in paragraph 312f and involves no
extraordinary circumstances.
X. Regulations That Significantly Affect Energy Supply, Distribution,
or Use
The FAA has analyzed this final 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 energy action'' under the executive order because,
while it is a ``significant regulatory action'' under Executive Order
12866, it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy.
XI. 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
or you may visit http://DocketsInfo.dot.gov.
XII. 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 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
14 CFR Part 1
Air transportation.
14 CFR Part 93
Aircraft flight, Airspace, Aviation safety, Air traffic control,
Aircraft, Airmen, Airports.
The Amendment
0
In consideration of the foregoing, the Federal Aviation Administration
amends parts 1 and 93 of title 14 Code of Federal Regulations (14 CFR
parts 1 and 93) as follows:
PART 1--DEFINITIONS AND ABBREVIATIONS
0
1. The authority citation for part 1 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
0
2. Amend Sec. 1.1 by adding the definition of ``National defense
airspace'' in alphabetical order to read as follows:
Sec. 1.1 General definitions.
* * * * *
National defense airspace means airspace established by a
regulation prescribed, or an order issued under, 49 U.S.C. 40103(b)(3).
* * * * *
PART 93--SPECIAL AIR TRAFFIC RULES
0
3. The authority citation for part 93 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40106, 40109, 40113, 44502,
44514, 44701, 44719, 46301.
0
4. Add subpart V, consisting of Sec. Sec. 93.331 through 93.345, to
read as follows:
Subpart V--Washington, DC Metropolitan Area Special Flight Rules Area
Sec.
93.331 Purpose and applicability of this subpart.
93.333 Failure to comply with this subpart.
93.335 Definitions.
93.337 Requirements for operating in the DC SFRA.
93.339 Requirements for operating in the DC SFRA, including the DC
FRZ.
93.341 Aircraft operations in the DC FRZ.
93.343 Requirements for aircraft operations to or from College Park
Airport, Potomac Airfield, or Washington Executive/Hyde Field
Airport.
93.345 VFR outbound procedures for fringe airports.
Subpart V--Washington, DC Metropolitan Area Special Flight Rules
Area
Sec. 93.331 Purpose and applicability of this subpart.
This subpart prescribes special air traffic rules for aircraft
operating in the Washington, DC Metropolitan Area. Because
identification and control of aircraft is required for reasons of
national security, the areas described in this subpart constitute
national defense airspace. The purpose of establishing this area is to
facilitate the tracking of, and communication with, aircraft to deter
persons who would use an aircraft as a weapon, or as a means of
delivering weapons, to conduct an attack on persons, property, or
buildings in the area. This subpart applies to pilots conducting any
type of flight operations in the airspace designated as the Washington,
DC Metropolitan Area Special Flight Rules Area (DC SFRA) (as defined in
Sec. 93.335), which includes the airspace designated as the
Washington, DC Metropolitan Area Flight Restricted Zone (DC FRZ) (as
defined in Sec. 93.335).
Sec. 93.333 Failure to comply with this subpart.
(a) Any violation. The FAA may take civil enforcement action
against a pilot for violations, whether inadvertent or intentional,
including imposition of civil penalties and suspension or revocation of
airmen's certificates.
(b) Knowing or willful violations. The DC FRZ and DC SFRA were
established for reasons of national security under the provisions of 49
U.S.C. 40103(b)(3). Areas established by the FAA under that authority
constitute ``national defense airspace'' as that term is used in 49
U.S.C. 46307. In addition to being subject to the provisions of
paragraph (a) of this section, persons who knowingly or willfully
violate national defense airspace established pursuant to 49 U.S.C.
40103(b)(3) may be subject to criminal prosecution.
Sec. 93.335 Definitions.
For purposes of this subpart--
DC FRZ flight plan is a flight plan filed for the sole purpose of
complying with the requirements for VFR operations into, out of, and
through the DC FRZ. This flight plan is separate and distinct from a
standard VFR flight plan, and does not include search and rescue
services.
DC SFRA flight plan is a flight plan filed for the sole purpose of
complying with the requirements for VFR operations into, out of, and
through the DC SFRA. This flight plan is separate and distinct from a
standard VFR flight
[[Page 76214]]
plan, and does not include search and rescue services.
Fringe airports are the following airports located near the outer
boundary of the Washington, DC Metropolitan Area Special Flight Rules
Area: Barnes (MD47), Flying M Farms (MD77), Mountain Road (MD43),
Robinson (MD14), and Skyview (51VA).
Washington, DC Metropolitan Area Flight Restricted Zone (DC FRZ) is
an area bounded by a line beginning at the Washington VOR/DME (DCA)
311[deg] radial at 15 nautical miles (NM) (Lat. 38[deg]59'31'' N.,
Long. 077[deg]18'30'' W.); then clockwise along the DCA 15 nautical
mile arc to the DCA 002[deg] radial at 15 NM (Lat. 39[deg]06'28'' N.,
Long 077[deg]04'32'' W.); then southeast via a line drawn to the DCA
049[deg] radial at 14 NM (Lat. 39[deg]02'18'' N., Long. 076[deg]50'38''
W.); thence south via a line drawn to the DCA 064[deg] radial at 13 NM
(Lat. 38[deg]59'01'' N., Long. 076[deg]48'32'' W.); thence clockwise
along the 13 NM arc to the DCA 276[deg] radial at 13 NM
(Lat.38[deg]50'53'' N., Long 077[deg]18'48'' W.); thence north to the
point of beginning, excluding the airspace within a one nautical mile
radius of the Freeway Airport, W00, Mitchellville, MD from the surface
up to but not including flight level (FL) 180. The DC FRZ is within and
part of the Washington, DC Metropolitan Area SFRA.
Washington, DC Metropolitan Area Special Flight Rules Area (DC
SFRA) is an area of airspace over the surface of the earth where the
ready identification, location, and control of aircraft is required in
the interests of national security. Specifically, the DC SFRA is that
airspace, from the surface to, but not including, FL 180, within a 30-
mile radial of Lat. 38[deg]51'34'' N., Long. 077[deg]02'11'' W., or the
DCA VOR/DME. The DC SFRA includes the DC FRZ.
Sec. 93.337 Requirements for operating in the DC SFRA.
A pilot conducting any type of flight operation in the DC SFRA must
comply with the restrictions listed in this subpart and all special
instructions issued by the FAA in the interest of national security.
Those special instructions may be issued in any manner the FAA
considers appropriate, including a NOTAM. Additionally, a pilot must
comply with all of the applicable requirements of this chapter.
Sec. 93.339 Requirements for operating in the DC SFRA, including the
DC FRZ.
(a) Except as provided in paragraphs (b) and (c) of this section
and in Sec. 93.345, or unless authorized by Air Traffic Control, no
pilot may operate an aircraft, including an ultralight vehicle or any
civil aircraft or public aircraft, in the DC SFRA, including the DC
FRZ, unless--
(1) The aircraft is equipped with an operable two-way radio capable
of communicating with Air Traffic Control on appropriate radio
frequencies;
(2) Before operating an aircraft in the DC SFRA, including the DC
FRZ, the pilot establishes two-way radio communications with the
appropriate Air Traffic Control facility and maintains such
communications while operating the aircraft in the DC SFRA, including
the DC FRZ;
(3) The aircraft is equipped with an operating automatic altitude
reporting transponder;
(4) Before operating an aircraft in the DC SFRA, including the DC
FRZ, the pilot obtains and transmits a discrete transponder code from
Air Traffic Control, and the aircraft's transponder continues to
transmit the assigned code while operating within the DC SFRA;
(5) For VFR operations, the pilot must file and activate a DC FRZ
or DC SFRA flight plan by obtaining a discrete transponder code. The
flight plan is closed upon landing at an airport within the DC SFRA or
when the aircraft exits the DC SFRA;
(6) Before operating the aircraft into, out of, or through the
Washington, DC Tri-Area Class B Airspace Area, the pilot receives a
specific Air Traffic Control clearance to operate in the Class B
airspace area; and
(7) Before operating the aircraft into, out of, or through Class D
airspace area that is within the DC SFRA, the pilot complies with Sec.
91.129 of this chapter.
(b) Paragraph (a)(5) of this section does not apply to operators of
Department of Defense aircraft, law enforcement operations, or
lifeguard or air ambulance operations under an FAA/TSA airspace
authorization, if the flight crew is in contact with Air Traffic
Control and is transmitting an Air Traffic Control-assigned discrete
transponder code.
(c) When operating an aircraft in the VFR traffic pattern at an
airport within the DC SFRA (but not within the DC FRZ) that does not
have an airport traffic control tower, a pilot must--
(1) File a DC SFRA flight plan for traffic pattern work;
(2) Communicate traffic pattern position via the published Common
Traffic Advisory Frequency (CTAF);
(3) Monitor VHF frequency 121.5 or UHF frequency 243.0, if the
aircraft is suitably equipped;
(4) Obtain and transmit the Air Traffic Control-assigned discrete
transponder code; and
(5) When exiting the VFR traffic pattern, comply with paragraphs
(a)(1) through (a)(7) of this section.
(d) When operating an aircraft in the VFR traffic pattern at an
airport within the DC SFRA (but not within the DC FRZ) that has an
operating airport traffic control tower, a pilot must--
(1) Before departure or before entering the traffic pattern,
request to remain in the traffic pattern;
(2) Remain in two-way radio communications with the tower. If the
aircraft is suitably equipped, the pilot must also monitor VHF
frequency 121.5 or UHF frequency 243.0;
(3) Continuously operate the aircraft transponder on code 1234
unless Air Traffic Control assigns a different code; and
(4) Before exiting the traffic pattern, comply with paragraphs
(a)(1) through (a)(7) of this section.
(e) Pilots must transmit the assigned transponder code. No pilot
may use transponder code 1200 while in the DC SFRA.
Sec. 93.341 Aircraft operations in the DC FRZ.
(a) Except as provided in paragraph (b) of this section, no pilot
may conduct any flight operation under part 91, 101, 103, 105, 125,
133, 135, or 137 of this chapter in the DC FRZ, unless the specific
flight is operating under an FAA/TSA authorization.
(b) Department of Defense (DOD) operations, law enforcement
operations, and lifeguard or air ambulance operations under an FAA/TSA
airspace authorization are excepted from the prohibition in paragraph
(a) of this section if the pilot is in contact with Air Traffic Control
and operates the aircraft transponder on an Air Traffic Control-
assigned beacon code.
(c) The following aircraft operations are permitted in the DC FRZ:
(1) Aircraft operations under the DCA Access Standard Security
Program (DASSP) (49 CFR part 1562) with a Transportation Security
Administration (TSA) flight authorization.
(2) Law enforcement and other U.S. Federal aircraft operations with
prior FAA approval.
(3) Foreign-operated military and state aircraft operations with a
State Department-authorized diplomatic clearance, with State Department
notification to the FAA and TSA.
(4) Federal, State, Federal DOD contract, local government agency
aircraft operations and part 121, 129 or 135 air carrier flights with
TSA-approved full aircraft operator standard security programs/
procedures, if operating with DOD permission and notification to the
FAA and the National
[[Page 76215]]
Capital Regional Coordination Center (NCRCC). These flights may land
and depart Andrews Air Force Base, MD, with prior permission, if
required.
(5) Aircraft operations maintaining radio contact with Air Traffic
Control and continuously transmitting an Air Traffic Control-assigned
discrete transponder code. The pilot must monitor VHF frequency 121.5
or UHF frequency 243.0.
(d) Before departing from an airport within the DC FRZ, or before
entering the DC FRZ, all aircraft, except DOD, law enforcement, and
lifeguard or air ambulance aircraft operating under an FAA/TSA airspace
authorization must file and activate an IFR or a DC FRZ or a DC SFRA
flight plan and transmit a discrete transponder code assigned by an Air
Traffic Control facility. Aircraft must transmit the discrete
transponder code at all times while in the DC FRZ or DC SFRA.
Sec. 93.343 Requirements for aircraft operations to or from College
Park Airport, Potomac Airfield, or Washington Executive/Hyde Field
Airport.
(a) A pilot may not operate an aircraft to or from College Park
Airport, MD, Potomac Airfield, MD, or Washington Executive/Hyde Field
Airport, MD unless--
(1) The aircraft and its crew and passengers comply with security
rules issued by the TSA in 49 CFR part 1562, subpart A;
(2) Before departing, the pilot files an IFR or DC FRZ or DC SFRA
flight plan with the Washington Hub Flight Service Station (FSS) for
each departure and arrival from/to College Park, Potomac Airfield, and
Washington Executive/Hyde Field airports, whether or not the aircraft
makes an intermediate stop;
(3) When filing a flight plan with the Washington Hub FSS, the
pilot identifies himself or herself by providing the assigned pilot
identification code. The Washington Hub FSS will accept the flight plan
only after verifying the code; and
(4) The pilot complies with the applicable IFR or VFR egress
procedures in paragraph (b), (c) or (d) of this section.
(b) If using IFR procedures, a pilot must--
(1) Obtain an Air Traffic Control clearance from the Potomac
TRACON; and
(2) Comply with Air Traffic Control departure instructions from
Washington Executive/Hyde Field, Potomac Airport, or College Park
Airport. The pilot must then proceed on the Air Traffic Control-
assigned course and remain clear of the DC FRZ.
(c) If using VFR egress procedures, a pilot must--
(1) Depart as instructed by Air Traffic Control and expect a
heading directly out of the DC FRZ until the pilot establishes two-way
radio communication with Potomac Approach; and
(2) Operate as assigned by Air Traffic Control until clear of the
DC FRZ, the DC SFRA, and the Class B or Class D airspace area.
(d) If using VFR ingress procedures, the aircraft must remain
outside the DC SFRA until the pilot establishes communications with Air
Traffic Control and receives authorization for the aircraft to enter
the DC SFRA.
(e) VFR arrivals:
(1) If landing at College Park Airport a pilot may receive routing
via the vicinity of Freeway Airport; or
(2) If landing at Washington Executive/Hyde Field or Potomac
Airport, the pilot may receive routing via the vicinity of Maryland
Airport or the Nottingham VORTAC.
Sec. 93.345 VFR outbound procedures for fringe airports.
(a) A pilot may depart from a fringe airport as defined in Sec.
93.335 without filing a flight plan or communicating with Air Traffic
Control, unless requested, provided:
(1) The aircraft's transponder transmits code 1205;
(2) The pilot exits the DC SFRA by the most direct route before
proceeding on course; and
(3) The pilot monitors VHF frequency 121.5 or UHF frequency 243.0.
(b) No pilot may operate an aircraft arriving at a fringe airport
or transit the DC SFRA unless that pilot complies with the DC SFRA
operating procedures in this subpart.
Issued in Washington, DC, on December 9, 2008.
Robert A. Sturgell,
Acting Administrator.
[FR Doc. E8-29711 Filed 12-15-08; 8:45 am]
BILLING CODE 4910-13-P