16 December 2008
[Federal Register: December 16, 2008 (Volume 73, Number 242)]
[Rules and Regulations]
[Page 76195-76215]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16de08-4]
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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
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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
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challenged beyond their capabilities, which has placed them in an
unsafe situation.
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