Washington, DC Metropolitan Area Special Flight Rules Area, 76195-76215 [E8-29711]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 73, Number 242 (Tuesday, December 16, 2008)]
[Rules and Regulations]
[Pages 76195-76215]
From the Federal Register Online via the Government Printing 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 https://
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