**\[4910-13\]**

**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.

**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 \[[Insert date 60 days after date of publication in
the Federal Register]{.underline}\].

**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

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]{.underline}

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]{.underline}

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]{.underline}

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 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]{.underline}

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]{.underline}

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]{.underline}

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]{.underline}

The comment period on the NPRM closed on November 2, 2005. However, in
response to requests from Members of Congress, industry associations,
and 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]{.underline}

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]{.underline}

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]{.underline}

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 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]{.underline}

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]{.underline}*: 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
§§93.31 through 93.49 are redesignated as §§93.331 through 93.345 in the
final rule, and proposed §§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,         Subpart V\-- Washington, DC,
  Metropolitan Area Special Flight    Metropolitan Area Special Flight
  Rules Area                          Rules Area

  §93.31 What is the purpose of this  §93.331 Purpose and applicability
  subpart and who would be affected?  of this subpart.

  §93.33 What could happen if you     §93.333 Failure to comply with this
  fail to comply with the rules of    subpart.
  this subpart?                       

  §93.35 Definitions.                 §93.335 Definitions.

  §93.37 General requirements for     §93.337 Requirements for operating
  operating in the Washington, DC,    in the DC SFRA.
  Metropolitan Area SFRA.             

  §93.39 Specific requirements for    §93.339 Requirements for operating
  operating in the Washington, DC,    in the DC SFRA, including the DC
  Metropolitan Area SFRA, including   FRZ.
  the FRZ.                            

  §93.41 Aircraft operations          §93.341 Aircraft operations in the
  prohibited.                         DC FRZ.

  §93.43 Requirements for aircraft    §93.343 Requirements for aircraft
  operations to or from College Park; operations to or from College Park
  Potomac Airfield; or Washington     Airport; Potomac Airfield; or
  Executive/Hyde Field Airports.      Washington Executive/Hyde Field
                                      Airport.

  §93.45 Special ingress/egress       Withdrawn. Referenced airports are
  procedures for Bay Bridge and       no longer fringe airports.
  Kentmorr Airports.                  

  §93.47 Special egress procedures    §93.345 VFR outbound procedures for
  for fringe airports.                fringe airports.

  §93.49 Airport security procedures. Withdrawn. Section no longer
                                      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]{.underline}*: 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]{.underline}*: 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]{.underline}*: 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))]{.underline}*: 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, §93.341
(proposed as §93.41) is modified to permit aircraft operations under the
DASSP.

*[6. Addition of definition of "national defense airspace" in 14 CFR
part 1:]{.underline}* 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 §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:"]{.underline}* 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
that 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]{.underline}

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]{.underline}

*[1. 14 CFR parts 61 and 91]{.underline}*: 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
[www.FAASafety.gov](http://www.FAASafety.gov/) website 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]{.underline}*: 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]{.underline}*: 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]{.underline}

*[1.]{.underline}* *[Restrictions on freedom are not
justified]{.underline}:* 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]{.underline}:* 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.

*[3. General aviation pilots pose no threat]{.underline}:* 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]{.underline}:* 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 15^th^ and 17^th^
Streets. Additionally, trucks are not allowed on 17^th^ 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:]{.underline}* 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]{.underline}:* 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, 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:]{.underline}* 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]{.underline}:* 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]{.underline}:* 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 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]{.underline}:* 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]{.underline}:* 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]{.underline}

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
[www.FAASafety.gov](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 website. 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]{.underline}:* 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
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]{.underline}:* 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]{.underline}:* 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.

[]{.mark}

*[4. Pilots are afraid to engage in training/proficiency flying
activities around the DC SFRA]{.underline}:* 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]{.underline}:* Commenters asserted that because more complex
skills are required to operate within the DC SFRA, pilots have been
challenged beyond their capabilities, which has placed them in an unsafe
situation.

The airspace in which an aircraft operates dictates the equipment and
communication requirements for those who operate within the designated
airspace. Most of the DC SFRA lies within the boundaries of the
Washington, DC Tri-Area Class B Airspace Area and as such, pilots have
always been required to possess appropriate communication and navigation
skills (see 14 CFR 91.131). If a pilot chooses to operate in the DC
SFRA, it is imperative that he or she comply with §91.103, *Preflight
action*, which, in part, requires that each pilot in command become
familiar with all available information concerning that flight. As
stated previously, information pertaining to the DC SFRA is readily
available, and should be reviewed by all pilots who operate in the area.

*[6. Delays in obtaining authorization to re-enter the DC SFRA cause
safety problems]{.underline}:* Commenters stated that they often
encountered delays in obtaining authorization to re-enter the DC SFRA
and noted that one pilot actually ran out of fuel while waiting.

When the DC SFRA was initially implemented, both pilots and controllers
had to adapt to the new requirements and develop workable DC SFRA
operational procedures that could be clearly understood by all
concerned. The FAA acknowledges and regrets that many pilots encountered
delays when entering and exiting the DC SFRA during that time. Since
then, pilots and controllers have become more familiar with the DC SFRA
and its operating requirements, and ATC has developed procedures to
accommodate the increase in operations. The agency believes that the
reduced DC SFRA dimensions and new procedures, dedicated frequencies,
and gates have significantly reduced the kind of delays pilots may have
encountered when the DC SFRA was initially established.

*[7. DC SFRA procedures are a distraction to pilots, who should be
focused on scanning for other aircraft]{.underline}:* AOPA expressed
concern that DC SFRA procedures were a distraction to pilots engaged in
other important operational activities, such as scanning for other
aircraft.

Although flight operations to, from, and within the DC SFRA may increase
a pilot's workload by requiring additional attention to communication
and navigation, the FAA does not believe that this in itself is a
significant distraction to pilots. Well before any pilot who opts to
operate within or adjacent to the DC SFRA departs, he or she must obtain
a thorough pre-flight briefing in accordance with 14 CFR 91.103. During
the pre-flight briefing process, the pilot should resolve any questions
or concerns so that when airborne, that pilot can concentrate on flying
the aircraft, and scanning for other aircraft. The FAA also notes that
in most cases, ATC radio transmissions to aircraft operating within the
DC SFRA are minimal.

*[8. The configuration of the DC SFRA is difficult for pilots to
navigate]{.underline}:* AOPA asserted that the configuration of the DC
SFRA, which includes many irregular boundaries, makes it difficult for
pilots to navigate.

The FAA acknowledges that the initial boundaries of the DC SFRA, which
were also proposed in the NPRM as dimensions for the DC SFRA, were not
ideal. In response to these comments, in August 2007 the FAA reduced and
reconfigured the DC SFRA to a 30-NM circle centered on the DCA VOR/DME.
The FAA has also depicted these new boundaries on appropriate
navigational charts. The agency believes that these steps have made it
significantly easier for pilots to navigate in the NCR.

*[9. Reduced airport services reduce options available to
pilots]{.underline}:* Some commenters asserted that a DC SFRA-related
reduction in general aviation flights resulted in reduced airport
services (e.g., maintenance and repair, avionics services, flight
instruction, etc.). They alleged that this development had led to even
greater reductions in general aviation flights as well as potential
compromise of safety because pilots do not have as many options if they
need emergency services.

The FAA acknowledges that the existence and operating requirements of
the DC SFRA have in some cases resulted in less traffic to some local
airports, thus reducing revenue and services. The FAA has analyzed the
impacts on local airports and businesses; this analysis is discussed in
section "VII. Regulatory Impact Analysis." The reduced size of the DC
SFRA impacts fewer airports, so the FAA expects operations at those
airports now located outside the DC SFRA to increase. The FAA has also
established a maneuvering area to ease traffic flow in and out of the
Leesburg Airport. In addition, three airports within the DC FRZ were
provided some financial assistance from the Department of
Transportation.

[C. Administrative and Regulatory Issues]{.underline}

*[1. The FAA has not met statutory requirements to report to Congress
the justification for keeping the DC SFRA]{.underline}:* AOPA and some
individual commenters said the FAA had not been sending regular reports
to Congress, as mandated by the Vision 100---Century of Aviation
Reauthorization Act (section 602).

Paragraph (a) of that legislation stated that every 60 days the
Administrator must transmit to the Committee on Transportation and
Infrastructure of the House of Representatives and to the Committee on
Commerce, Science, and Transportation of the Senate, a report (in
classified form) containing an explanation of the need for the DC ADIZ
(now called the "DC SFRA").

The commenters are correct that the FAA did not submit reports to
Congress explaining the need for the DC SFRA. During the reorganization
of agency functions after September 11, 2001, aviation intelligence
responsibilities shifted from the FAA to DHS. The Secretary of DHS,
therefore, briefed Congress on the need for the DC SFRA. In addition, in
2007, the Congressional Research Service performed its own research on
the aviation security needs in the Washington, DC Metropolitan Area.

Paragraph (c) of the Vision 100 legislation called upon the FAA to
transmit a report to Congress every 60 days describing changes in
procedures or requirements that could improve operational efficiency or
minimize operational impacts on pilots and controllers. The FAA has met
this requirement and submits reports describing the changes to improve
the operational efficiency or minimize operational impacts to the
Committee on Transportation and Infrastructure of the House of
Representatives and to the Committee on Commerce, Science, and
Transportation of the Senate.

*[2. The DC SFRA was intended to be temporary and was put in place
hastily, without public input]{.underline}:* When the DC SFRA was
established via the NOTAM system, it was not known how long the flight
restrictions would be in place. In the first few months of its
implementation, the DC SFRA and its procedures were changed several
times in response to changes in the HSAS threat levels. For example, a
cut-out was made around Freeway Airport, Mitchellville, MD; certain
airports (known as gateway airports) were identified and used as
locations where aircraft and crew could be vetted through various
databases prior to entering the DC SFRA; and ingress/egress procedures
were instituted for Bay Bridge and Kentmorr Airports, Kent Island, MD.
Security, law enforcement and FAA officials have met regularly to
discuss and assess the security needs of the Washington, DC Metropolitan
Area. In August 2007, the dimensions of the DC SFRA were reduced, and
procedures were amended, which has opened up more airspace to the
aviation community and simplified procedures for pilots operating within
the DC SFRA. The need to protect the nation's capital continues, and the
FAA has determined that the most appropriate way to implement this
special flight rules area is through the rulemaking process. The FAA
also notes that prior to making this DC SFRA permanent, the agency
published an NPRM requesting comments from the public. In response, the
agency received over 21,000 comments, in addition to comments received
at four public meetings.

*[3. Suggestions from commenters for alternatives to the DC
SFRA]{.underline}:* The Aircraft Owners and Pilots Association submitted
alternatives to the proposal, and recommended retaining the FRZ but only
for larger, faster aircraft. AOPA's plan would have excepted aircraft
that weigh 6,000 pounds or less and that limit their speed to 160 knots
or less from the DC SFRA requirements.

The Experimental Aircraft Association (EAA) also submitted numerous
recommendations, including but not limited to reducing the FRZ from a
15-NM radius to a 10-NM radius from the DCA VOR/DME and reducing the DC
SFRA to a 20-NM radius of the DCA VOR/DME. In addition, EAA suggested
using a larger TFR when HSAS threat levels are elevated.

Many individual commenters suggested retaining the FRZ and eliminating
the SFRA. The FAA appreciates these and other suggestions. The agency
considered the recommendations but, in consultation with the Interagency
Airspace Protection Working Group, determined that reducing the sizes of
the FRZ and the SFRA to the degree the commenters suggested would not
provide adequate warning time for law enforcement officials to take
appropriate emergency actions on the ground. The FAA notes, however,
that the size of the DC SFRA was reduced in August 2007.

As to the suggestion that smaller aircraft flying at slower speeds be
exempted from meeting DC SFRA requirements, the FAA believes that such a
measure would not allow the FAA to meet its objective of tracking all
aircraft in the National Capital Region.

Several commenters suggested that aircraft operating in the DC SFRA be
equipped with new technology, such as Automatic Dependent
Surveillance-Broadcast technology (ADS-B), for monitoring. Use of such
technology was not proposed and is therefore outside the scope of this
rulemaking. However, the FAA notes that ADS-B has been selected as the
preferred next generation technology for surveillance and broadcast
services. It has been successfully deployed in Alaska and several other
locations. On October 5, 2007, the FAA published in the [Federal
Register]{.underline} an NPRM, which proposed in part, requirements for
aircraft operating in Class B and C airspace areas to be equipped with
ADS-B technology (72 FR 56947; Oct. 5, 2007). As part of that rulemaking
effort, the FAA established an Aviation Rulemaking Committee (ARC) under
Order 1110.147. That committee was chartered to deliver a report on how
to optimize operational benefits of the ADS-B system and to provide
recommendations to the FAA on the development of a final rule.

*[4. The DC SFRA amounts to a "taking" (a seizure of private property
without due process)]{.underline}:* Some commenters believed that the
government is, in effect, practicing condemnation/seizure of private
property without due process. Commenters alleged that the airspace
restrictions have triggered a regulatory taking and, therefore, they
deserve compensation. The commenters bolstered their argument by
asserting that the decision to prohibit or restrict airspace indirectly
results in a loss of business to airports or aviation-related businesses
on the ground.

Airspace is not private property; therefore, it is not property that can
be owned by any person, as the term "private property" is used within
the meaning of the U.S. Constitution's Fifth Amendment. While the FAA's
regulations or restriction imposed on any navigable, public airspace may
interfere with, limit, or even prohibit the right of an individual to
use that airspace, the restrictions do not constitute a taking of
private property without due process or just compensation. The FAA
acknowledges that establishing the DC SFRA will have an indirect impact
on aviation-related businesses that may have an adverse economic effect
due to a reduction of access to, or need for, their services. However,
that indirect economic cost and personal inconvenience is not an impact
unique to the general aviation community or the Washington, DC area.
Rather, it is an impact experienced by many individuals and businesses
in all areas of commerce as a result of the variety and scope of new
security measures imposed by various levels of government after the
September 11, 2001 attacks.

*[5]{.underline}**[. The FAA allowed other Federal agencies to direct
its decision making]{.underline}:* Numerous commenters asserted that the
FAA "abdicated" its rulemaking authority to other Federal entities. The
commenters believed that the FAA had allowed security and law
enforcement agencies to direct civilian airspace policy.

As discussed in "I. Overview," the FAA Administrator has statutory
authority to manage the nation's airspace in the interest of national
security. In carrying out this responsibility, the FAA consults with the
Secretary of Defense and works closely with other Federal agencies to
ensure the safety of civil aviation and to protect persons and property
on the ground.

**V. Paperwork Reduction Act**

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)),
the FAA submitted a copy of the new information collection
requirements(s) in this final rule to the Office of Management and
Budget for its review. OMB approved the collection of this information
and assigned OMB Control Number 2120-0706.

In the preamble to the 2005 NPRM, in the "Paperwork Reduction Act"
discussion, the FAA solicited comments on the information collection
requirement for pilots operating under VFR to file flight plans. The FAA
received numerous comments opposing the requirement. These comments, and
the FAA's responses, are discussed elsewhere in this preamble.

[Number of respondents]{.underline}: The FAA does not know exactly how
many pilots will file flight plans to access the DC SFRA and DC FRZ on
an annual basis. To calculate the number of respondents, the FAA has
divided 256, 461 estimated annual number of operations by 15 operations
per pilot annually, which equals 17, 097.

[Cost]{.underline}: The FAA estimates the annual cost to comply with the
information collection requirement of this final rule to be \$1,831, 098
(\$477,017 cost to activate a flight plan plus \$1,354,081 cost to file
a flight plan). The ten-year cost will be \$18,310,980.

The cost to activate a flight plan (\$477,017) was calculated as
follows.

17,097 \--Respondents

15 --Number of flight plans filed by each respondent annually

256,461\-- Annual number of flight plans

0.05 hour\-- Time needed to activate a flight plan

\$37.20 / hour \-- Value of pilot's time

The cost to file a flight plan (\$1,354,081) was calculated as follows.

17,097---Respondents

256,461---Annual number of flight plans

0.137 hour---Time (including wait time) needed to file a flight plan

\$37.20 / hour -- Value of pilot's time

3.6 % \-- Percent of pilots needing to refile a DC SFRA flight plan

[Hours]{.underline}: The FAA estimates the rule will require 49,223.07
hours (12,823.5 hours to activate a flight plan plus 36,400.02 hours to
file a flight plan). The number of hours over 10 years will be
492,230.70.

An agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement unless it displays a
currently valid Office of Management and Budget (OMB) control number.

**VI. International Compatibility**

In keeping with U.S. obligations under the Convention on International
Civil Aviation, it is FAA policy to comply with International Civil
Aviation Organization (ICAO) Standards and Recommended Practices to the
maximum extent practicable. The FAA has determined that there are no
ICAO Standards and Recommended Practices that correspond to these
regulations.

**VII. Regulatory Impact Analysis, Regulatory Flexibility Determination
and Analysis, International Trade Impact Assessment, and Unfunded
Mandates Assessment**

### 

[A. Regulatory Impact Analysis]{.underline}

Changes to Federal regulations must undergo several economic analyses.
First, Executive Order 12866 directs that each Federal agency shall
propose or adopt a regulation only upon a reasoned determination that
the benefits of the intended regulation justify its costs. Second, the
Regulatory Flexibility Act of 1980 (Public Law 96-354) requires agencies
to analyze the economic impact of regulatory changes on small entities.
Third, the Trade Agreements Act (Public Law 96-39) prohibits agencies
from setting standards that create unnecessary obstacles to the foreign
commerce of the United States. In developing U.S. standards, this Trade
Act requires agencies to consider international standards and, where
appropriate, that they be the basis of U.S. standards. Fourth, the
Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires
agencies to prepare a written assessment of the costs, benefits, and
other effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of \$100
million or more annually (adjusted for inflation with base year of
1995). This portion of the preamble summarizes the FAA's analysis of the
economic impacts of this final rule. We suggest readers seeking greater
detail read the full regulatory impact analysis, a copy of which we have
placed in the docket for this rulemaking.

###  In conducting these analyses, the FAA has determined that this final rule: (1) has benefits that justify its costs; (2) is an economically "significant regulatory action" as defined in section 3(f) of Executive Order 12866; (3) is "significant" as defined in DOT\'s Regulatory Policies and Procedures; (4) will have a significant economic impact on a substantial number of small entities; (5) will not create unnecessary obstacles to the foreign commerce of the United States; and (6) will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.

The FAA has analyzed the expected costs of this regulation for a 10-year
period, from 2009 through 2018. As required by the Office of Management
and Budget (OMB), the present value of this cost stream was calculated
using discount factors of 7 and 3 percent. All costs in this analysis
are expressed in 2007 dollars.

The FAA costed out four alternatives for this evaluation:

-   Alternative 1 is what was contained in the NPRM, which mirrors the
    Washington Tri-Area Class B airspace area, with certain minor
    modifications. It also has a 15-NM FRZ. Its cost is \$1.34 billion
    over ten years (\$1.15 billion, discounted at 3 percent, and
    \$942.26 million discounted at 7 percent).

-   Alternative 2 is the final rule, with a 30-NM DC SFRA, 15-NM DC FRZ.
    Its cost is \$1.04 billion over ten years (\$886.34 million,
    discounted at 3 percent, and \$756.98 million, discounted at 7
    percent).

-   Alternative 3 is the NPRM with enhanced procedures, such as
    ADS-B-equipped aircraft being exempt from the flight plan
    requirement and establishing two-way communication requirement,
    given certain conditions. Its cost is \$1.30 billion over ten years
    (\$1.11 billion, discounted at 3 percent, and \$919.31 million,
    discounted at 7 percent).

-   Alternative 4 contains a 15-NM DC FRZ, with the DC SFRA being
    determined by threat and air defense requirements, and established
    by NOTAM. For costing purposes, this alternative examined two
    scenarios, a 55-NM DC SFRA and a 20- NM DC SFRA. Its costs range
    from \$3.29 billion over ten years (\$2.80 billion, discounted at 3
    percent, and \$2.13 billion, discounted at 7 percent) to \$4.47
    billion (\$3.82 billion, discounted at 3 percent, and \$2.85
    billion, discounted at 7 percent).

*[1. Costs]{.underline}*

There are two major sets of cost components -- public sector and private
sector.

*a. Public Sector*:

\(1\) A key component in defending the DC SFRA against attackers is the
airplanes based at Andrews Air Force Base. Under most of the
alternatives, given a 30-NM DC SFRA, the program depends on F-15s,
F-16s, and helicopters to be ready to scramble to defend the DC SFRA; a
scramble can range from pilots proceeding to battle stations, runway
alerts, sending a helicopter to alert the errant aircraft, or sending
out military aircraft to intercept the aircraft. The total cost of
scrambles, including both F-15/F-16 and helicopter, is \$324.64 million
over ten years. Given a 20-NM DC SFRA, the program would depend on a
fighter combat air patrol, 24 hours a day, 7 days a week (24/7 fighter
CAP) instead; this CAP uses F-15s and F-16s as well as KC-135 tankers to
refuel these aircraft; these costs sum to \$356 million annually. When
DOD assets are deployed, air traffic control suspends operations and
there is a delay cost. The total cost of suspending operations is \$1.93
million over ten years. This estimate only takes local delays into
consideration, and does not account for secondary delays and ripple
effects that may be imposed on the aviation system.

\(2\) The FAA installed additional radar facilities for support of the
DC SFRA at Washington Dulles International Airport (IAD), Ronald Reagan
Washington National Airport (DCA), Baltimore/Washington International
Thurgood Marshall Airport (BWI), and PTC. Since these costs are "sunk",
they are not considered to be an incremental cost of the rule. However,
there are recurring annual costs summing to \$375,000.

\(3\) This rule requires additional controllers and flight service
station specialists, as well as the cost of filing and activating DC
SFRA-related flight plans. The FAA has dedicated 6 additional controller
positions for 3 specific regions of the DC SFRA as a result of this
rule. Over a ten-year period, the total cost of the additional
controllers is \$15.50 million. On average, about 4 full time equivalent
positions are dedicated to filing flight plans at flight service
stations; over a ten-year period, the total cost of the additional FSS
specialists will be \$6.45 million. The additional cost of filing and
activating flight plans, over 10 years, sums to \$59.33 million.

Total public-sector costs, over the 10-year period, sum to \$411.60
million.

*b. Private Sector*: The DC SFRA impacts aircraft operators, airports,
and aviation-related businesses in the Washington, DC region. DC SFRA
requirements have created delays and other costs to operators and have
caused some operators to reduce the number of flights they take, shift
operations to airspace and airports outside of the DC SFRA, and even to
cease operations altogether. DC SFRA-related delays impose costs on
operators and aviation-related businesses. The reduced number of
operations has reduced revenue at airports and aviation-related
businesses.

\(1\) Operating Restrictions -- The DC SFRA has created many delays to
operators, including ground, flight, circumnavigation, and re-routing
delays. VFR operators in the DC SFRA are required to file a DC SFRA
flight plan and communicate with ATC, creating flight, ground, and
re-routing delays. In an effort to avoid these delays, some pilots
circumnavigate the DC SFRA, although this also imposes an additional
cost. Over ten years, the cost of operating restrictions is \$355.80
million.

\(2\) Airports -- The DC SFRA impacts many airports in the Washington,
DC region, including airports located outside of the DC SFRA boundaries.
The DC SFRA affects the behavior of aircraft operators in the region and
results in decreased levels of aviation activity at some airports.
However, the DC SFRA will also cause aviation activity at some airports
in the region to increase. Much of the negative economic impact at some
airports will be offset by gains at other airports. Over ten years, the
affected airports have net revenue losses of \$25.35 million.

\(3\) Aviation-related business\-- The DC SFRA impacts aviation-related
businesses in the Washington, DC region because it causes some aircraft
operators to alter their behavior. Aviation-related businesses include
fixed-base operators (FBOs), passenger or freight charter operators,
aerial photography and mapmaking businesses, aircraft maintenance and
repair facilities, flight schools, restaurants and transportation
services located at airports, and other businesses dependent on aviation
activity. A decrease in the number of operations and active aircraft
directly results in a decrease in revenue at these businesses. Other
aviation-related businesses incur additional costs as a consequence of
DC SFRA requirements. Over ten years, the affected businesses have
revenue losses of \$246.86 million.

Total private sector costs, over ten years, sum to \$628.00 million.
Total public and private sector costs combined, over ten years, sum to
\$1.04 billion.

*[2. Benefits and Cost-Benefit Comparison]{.underline}*

The FAA looked at five scenarios, and computed the estimated mean
consequence resulting if each scenario were to occur once in a 10-year
period. The estimated means ranged from \$0.12 billion (\$0.09 billion,
discounted) to \$9.81 billion (\$6.89 billion, discounted). These were
compared to the cost of the rule, which is \$1.04 billion (\$756.98
million, discounted). For three of these five scenarios, the required
risk reduction could be less than 100 percent, and the rule would be
cost beneficial.

[B. Final Regulatory Flexibility Determination]{.underline}

The Regulatory Flexibility Act of 1980 (RFA) establishes "as a principle
of regulatory issuance that agencies shall endeavor, consistent with the
objective of the rule and of applicable statutes, to fit regulatory and
informational requirements to the scale of the business, organizations,
and governmental jurisdictions subject to regulation." To achieve that
principle, the RFA requires agencies to solicit and consider flexible
regulatory proposals and to explain the rationale for their actions. The
RFA covers a wide-range of small entities, including small businesses,
not-for-profit organizations and small governmental jurisdictions.

Agencies must perform a review to determine whether a proposed or final
rule will have a significant economic impact on a substantial number of
small entities. If the determination is that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a proposed or final rule is not
expected to have a significant economic impact on a substantial number
of small entities, section 605(b) of the 1980 act provides that the head
of the agency may so certify and a regulatory flexibility analysis is
not required. The certification must include a statement providing the
factual basis for this determination, and the reasoning should be clear.

The FAA gathered data for airports and other aviation-related businesses
that are located 60NM from the DCA VOR/DME. The U.S. Small Business
Administration (SBA) classifies businesses as small based on size
standards, typically expressed as annual revenue or number of employees.
SBA publishes a table of small business size standards matched to North
American Industry Classification System (NAICS) codes. The SBA defines
privately owned airports as a small entity if annual revenue is less
than \$6.5 million. Publicly owned airports are defined as a small
entity if annual revenue is less than \$5 million. As Table 1 shows, all
impacted airports (with the exception of BWI, DCA and IAD) are well
below these annual revenue thresholds. Revenue data is for 2007.

Table 1: Airport Revenue

  ------------------------- ------------ -------------------- --------------
  **Facility**              **2007       **Facility**         **2007
                            Revenue**                         Revenue**

  Essex Skypark             \$ 47,440    Lee                  \$ 347,758

  Freeway                   \$ 103,000   Harford County       \$ 378,192

  Shoestring Aviation       \$ 110,482   Winchester Regional  \$ 386,365
  Airfield                                                    

  Hanover                   \$ 116,019   Hagerstown Regional  \$ 439,083

  Maryland                  \$ 119,100   Ridgely Airpark      \$ 493,240

  College Park              \$ 122,590   Stafford Regional    \$ 500,000

  Davis                     \$ 140,188   Bay Bridge           \$ 501,740

  Potomac Airfield          \$ 142,000   St. Mary\'s County   \$ 510,932
                                         Regional             

  Front Royal-Warren County \$ 151,280   Culpeper Regional    \$ 536,485

  Fallston                  \$ 172,171   Warrenton-Fauquier   \$ 802,200

  Clearview Airpark         \$ 219,968   Leesburg Executive   \$ 805,068

  Tipton                    \$ 250,000   Frederick Municipal  \$ 867,082

  Suburban                  \$ 259,859   Montgomery County    \$ 920,103
                                         Airpark              

  Orange County             \$ 272,530   Manassas Regional    \$ 1,192,389

  Shannon                   \$ 297,402   Martin State         \$ 1,260,000

  Washington Executive/Hyde \$ 300,670   Carroll County       \$ 1,302,400
  Field                                  Regional             

  Cambridge-Dorchester      \$ 301,297   Easton/Newnam Field  \$ 1,621,671
  ------------------------- ------------ -------------------- --------------

The SBA size standards for aviation-related businesses at airports are
listed in Table 2. The size standard for flight schools is annual
revenue less than \$23.5 million, for aircraft sales businesses it is
annual revenue less than \$9 million, and for other business types it is
generally annual revenue less than \$6.5 million. The SBA threshold for
charter operators is less than 1,500 employees.

Table 2: SBA Size Standards

  ----------------------------------------- -----------------------------
  **Business Type**                         **Annual Revenue\
                                            or Employee\
                                            Threshold for\
                                            Small Business**

  Aerial Photography                        \<\$6.5 million

  Aircraft Rental                           \<\$6.5 million

  Aircraft Sales                            \<\$9 million

  Charter, sightseeing, courier             \<1,500 employees

  Fixed Base Operator                       \<\$6.5 million

  Flight School                             \<\$23.5 million

  Other                                     \<\$6.5 million

  Repair Station                            \<\$6.5 million

  Working (agriculture, helicopter lift,    \<\$6.5 million
  etc.)                                     
  ----------------------------------------- -----------------------------

The FAA matched each DC SFRA-impacted aviation-related business to its
appropriate NAICS code and compared it to the SBA size standard for that
NAICS code. The FAA estimates that the majority of impacted businesses
are considered small under the SBA size standards.

The FAA found that the impact of the DC SFRA on some of these businesses
was positive, while for others, it was negative. "Congress considered
the term 'significant' to be neutral with respect to whether the impact
is beneficial or harmful to small businesses. Therefore, agencies need
to consider both beneficial and adverse impacts in an analysis."[^1] The
FAA estimated the annualized revenue impact of the rule on each of the
small entities, and determined that the rule will have a significant
economic impact on a substantial number of small entities. Except for
two small entities which happen to be airports, the actual or estimated
ratio of annualized revenue impacts to annual revenue was greater than 1
percent. Accordingly, the FAA prepared a regulatory flexibility
analysis, as described below.

[C. Regulatory Flexibility Analysis]{.underline}

Under section 603(b) of the RFA (as amended), each final regulatory
flexibility analysis is required to address the following points: (1)
reasons the agency considered the rule, (2) the objectives and legal
basis for the rule, (3) the kind and number of small entities to which
the rule will apply, (4) the reporting, recordkeeping, and other
compliance requirements of the rule, and (5) all Federal rules that may
duplicate, overlap, or conflict with the rule.

*[1. Reasons the FAA considered the rule]{.underline} \--* The FAA is
taking this final action to enhance security in Washington, DC, the
nation's capital. As the nation's capital, it has a unique symbolic,
historic, and political status. Washington, DC is the seat of all three
branches of the United States government, and is the home of the
President and the Vice President. Likewise, it is the home of the U.S.
Congress and the U.S. Supreme Court, and thus is the residence and
office location for the officials in the Constitutional order of
succession.

The FAA, in consultation with the Secretaries of Defense and Homeland
Security, has determined that implementation of this rule is necessary
to enable those officials in carrying out their responsibilities to
lawfully identify, counter, prevent, deter, or, as a last resort,
disable with non-lethal or lethal force, any airborne object that poses
a threat to national security. The rule will assist air traffic
controllers and National Capital Region Communications Center officials
in monitoring air traffic by identifying, distinguishing, and, more
importantly, responding appropriately when an aircraft is off course or
is not complying with ATC instructions.

*[2. The objectives and legal basis for the rule]{.underline}\--* The
objective of the rule is to codify the airspace restrictions within the
Washington, DC Metropolitan Area. This effort is to assist DHS and DOD
in their efforts to enhance security protection of vital national assets
located within the National Capital Region. The legal basis for the rule
is found in 49 U.S.C. 40103, et seq. The FAA and DHS must consider, as a
matter of policy, maintaining and enhancing safety and security in air
commerce as its highest priorities (49 U.S.C. 40101 (d)).

*[3. The kind and number of small entities to which the rule will
apply]{.underline}\--* The FAA identified 34 small airports and 395
small aviation-related businesses that the rule will impact. Of the 34
small airports, 12 are in the DC SFRA. Of the 395 small aviation-related
businesses, 274 are in the DC SFRA. Table 1 above lists the 34 small
airports and Table 3 below shows the different types and number of small
aviation-related businesses to which this rule will apply.

Table 3: Type and Number of Small Aviation-Related Business Impacted

  ------------------------------------------ ----------------------------
  **Business Type**                          **Count**

  Aerial Photography                         16

  Aircraft Rental                            18

  Aircraft Sales                             121

  Charter Operators                          21

  Fixed Base Operators                       61

  Flight School                              127

  Repair Stations                            9

  Working                                    7

  Other                                      15

  Total                                      395
  ------------------------------------------ ----------------------------

*[4. The reporting, recordkeeping, and other compliance requirements of
the rule]{.underline}\--*As required by the Paperwork Reduction Act of
1995 (44 U.S.C. 3507(d)), the FAA submitted a copy of these sections to
OMB for its review. However, there are no sections of the paperwork
package that apply to the airports and aviation-related businesses. All
of the economic impact discussed below deals with business gained or
lost due to the requirements of the DC SFRA.

*[5. All federal rules that may duplicate, overlap, or conflict with the
rule]{.underline}*\--The FAA is unaware of any Federal rules that
duplicate, overlap, or conflict with the rule.

*[6. Other considerations]{.underline}*\-- Affordability analysis\--For
the purpose of this analysis, the degree to which small entities can
afford the reduction in revenue resulting from the final rule is
predicated on the availability of financial resources. Costs can be paid
from existing assets such as cash, by borrowing, through the provision
of additional equity capital, by accepting reduced profits, by raising
prices, or by finding other ways of offsetting costs.

One means of assessing the affordability is the ability of each of the
small entities to meet its short-term obligations, such as looking at
net income, working capital and financial strength ratios. According to
financial literature, a company's short-run financial strength is
substantially influenced by its working capital position and its ability
to pay short-term liabilities, among other things. However, the FAA was
unable to find sufficient financial information for the majority of
affected entities, and so used an alternative way of analyzing
affordability. The approach used by the FAA was to compare the rule's
impact on entity revenues with estimated revenues in the absence of the
rule.

The FAA was able to estimate the annual change in revenue and 2007
revenue for the airports. However, the FAA was unable to locate revenue
data for the aviation-related businesses. This analysis first discusses
the airports and then the aviation-related businesses.

\(a\) Airports\--Table 38 in the full regulatory impact analysis lists
the public use airports within the DC SFRA and between the DC SFRA and
60 nautical miles from the DCA VOR/DME that are small entities. Column A
lists each airport's estimated annual revenue in the absence of the rule
and 2007 NOTAM.[^2] Column B lists each airport's estimated revenue in
2007 (with the NOTAM). Column C lists each airport's estimated change in
revenue as a result of the DC SFRA, and was computed by subtracting
Column A from Column B. A negative change in revenue implies that the
airport is worse off because of this rule. Column D is the quotient of
Column C and column A, or the ratio of annualized revenue change
associated with the rule to the estimated non-NOTAM annualized revenue.

This information was used to assess the significance and affordability
of this rule. Column E shows the airports for which the FAA expects this
rule would have a significant impact, as described previously. Column F
examines affordability using the alternative approach described above.
The FAA considers that an airport would have trouble affording the rule
if the change in its revenue is negative and exceeds 10 percent of its
annualized change in revenue as a percentage of non-NOTAM revenue. The
idea is that if a business has such a high loss in revenue,
percentage-wise, it would likely have trouble affording the rule.

Table 4 summarizes Table 38 in the full regulatory impact analysis by
showing the number of airports, the number of those airports that might
have trouble affording this rule, and the resultant percentage.

Table 4: Affordability of Small Business Airports

  ------------------------------------------------- ---------------------
  Total number of small airports impacted           34

  Number of small airports for which the rule might 12
  be non-affordable                                 

  Percentage                                        35.29%
  ------------------------------------------------- ---------------------

\(b\) Other Aviation-Related Businesses---Aviation-related businesses
less than 60nm from DCA were identified from Dun & Bradstreet reports,
comments to the 2005 DC SFRA NPRM, airport websites, AOPA Pilot Guide,
World Aerospace Directory, FAA Operating Specification Sub System
(OPSS), FAA Vital Information System (VIS), and FAA Form 5010 database.
Although there was not enough data for the FAA to estimate
business-by-business revenue impacts, the agency was able to estimate
aggregate revenue impacts for business within and outside of the DC
SFRA. The aggregate data show that as a group, DC SFRA businesses will
have trouble affording this rule, as shown in Table 22 in the full
regulatory impact analysis, whereas non-SFRA businesses will benefit
from this rule, as shown in Table 23 in the full regulatory impact
analysis. Thus, from the perspective of affordability, the FAA expects
that a number of aviation-related businesses based at airports inside
the DC SFRA will have trouble affording this rule. (See Table D-1 in
Appendix D in the full regulatory impact analysis for a list of SFRA and
non-SFRA businesses.)

*[7. Liquidity analysis/profitability analysis]{.underline}*\-- As
explained earlier, except for aggregate revenue data, the FAA was unable
to find enough financial data for the impacted small businesses both
inside and outside the DC SFRA to perform a liquidity analysis or a
profitability analysis.

*[8. Disproportionality analysis]{.underline}*\--The FAA considered
whether small entities will be disadvantaged relative to large entities
due to disproportionate impacts. There was no need for the FAA to
conduct a disproportionality analysis for the airports because all
airports affected by this rule are small businesses, so none would be
advantaged over any other. For the aviation-related businesses, as can
be seen in Table 5, the estimated revenue impact per aircraft operation
is larger for the large businesses than for the small businesses; thus,
there will be no disproportionate impact.

Table 5: Disproportionality Analysis for Aviation-Related Businesses

  ------------- ---------------- ---------------- ------------------------
                Total Revenue    Total Operations Revenue Impact per
                                                  Aircraft Operation

  Large         \$8,581,818      237,643          \$36.11

  Small         \$531,751        148,519          \$3.58
  ------------- ---------------- ---------------- ------------------------

*[9. Competitiveness analysis]{.underline}*\-- For the airports outside
the DC SFRA, the average net increase in revenue as a percentage of
estimated non-NOTAM revenue was 4.9 percent. For those airports inside
the DC SFRA, the average net decrease in revenue as a percentage of
non-NOTAM revenue was 44.9 percent. Much of this decrease comes from the
three airports within the DC FRZ -- College Park, Potomac Airfield, and
Washington Executive/Hyde Field; without these three airports, the
average net decrease in revenue as a percentage of revenue resulting
from the rule would be about 19.7 percent. The FAA expects that based on
the results of this analysis, this rule will improve the competitiveness
of small businesses outside the DC SFRA vis-à-vis those inside the DC
SFRA, since the revenue of most aviation-related businesses is dependent
on the number of aircraft operations taking place at that airport.

*[10. Business closure analysis]{.underline}\--* It is difficult for the
FAA to determine the extent to which airports significantly impacted by
this rule might have to cease operations. There are too many variables
and some of the airports within the DC SFRA are already in serious
financial difficulty; the information shown in the affordability
analysis can be indicators of airport business closures. The FAA has no
comparable financial information on the aviation-related businesses. To
what extent the final rule makes the difference in whether these
entities remain in business is difficult to answer. The FAA believes
that there is a likelihood of business closure for some of these
businesses as a result of this rule.

*[Alternatives]{.underline}*

The FAA considered alternatives to the rule for both airports and
aviation-related businesses. A discussion of these alternatives follows.
The third alternative is the final rule. For each alternative, the FAA
first states the alternative, followed by a discussion, and why the FAA
believes that the alternative would not enhance security.

[Alternative 1 - Retain the DC FRZ, eliminate the rest of the DC
SFRA]{.underline} -- Under this alternative, airspace in the Washington
DC Metropolitan area with flight restrictions would be reduced
considerably. The only flight restrictions remaining would be within
approximately 15 NM of the DCA VOR/DME, restricting all aircraft
operations except part 121 operators, DOD operations, law enforcement
operations and authorized emergency medical services operations. This
removes the requirement for filing flight plans for aircraft operators
in airspace outside the DC FRZ, resulting in reduced pilot and
controller workload. This alternative would provide relief to those VFR
operators that will operate in the DC SFRA area but not into the DC FRZ.
It would restore former air traffic control procedures and air space
configurations for some of the area. The FAA estimates that
implementation of this alternative would have a positive effect for all
of the impacted airports except for College Park, Washington
Executive/Hyde Field, and Potomac.

Conclusion: This alternative is not preferred because it does not meet
the safety and security requirements of those security agencies
responsible for the safety of the Washington DC Metropolitan area. Thus,
the FAA does not consider this to be a significant alternative in
accordance with 5 U.S.C. 603(d).

[Alternative 2 - Rescind the FAA's NOTAM and the DC SFRA/DC FRZ
immediately]{.underline}---This alternative would provide immediate
relief to these airports and aviation-related businesses by removing
security provisions and restoring former air traffic control procedures
and airspace configurations. Implementation of this alternative would
facilitate the return of pilots who, for the sake of operating
simplicity and reduced flying costs, relocated to other airports. This
would be the option with the least impact.

Conclusion: The FAA believes that the threat of terrorists must be
guarded against, and this option would not adequately achieve that goal.
Rescinding these actions would increase the vulnerability and diminish
the level of protection now in place to safeguard vital national assets
located within the NCR. This alternative is rejected because it would
compromise the security of vital national assets and increase their
vulnerability. Thus, the FAA does not consider this to be a significant
alternative in accordance with 5 U.S.C. 603(d).

[Alternative 3 - Codify existing flight restrictions over the
Washington, DC Metropolitan Area (Final Rule)]{.underline}---Under this
alternative, the government would maintain the present security and air
traffic operational restrictions. The rule enhances security measures in
that it requires any aircraft operating to and from the affected
airports and transiting the DC SFRA to be properly identified and
cleared. This alternative would affect all airports and aviation-related
businesses.

Conclusion: This alternative is preferred because it balances the
security concerns against the impact on the airports and
aviation-related businesses.

[Alternative 4 -- Exempt small, slow aircraft]{.underline} --This
alternative would exempt small, piston-driven aircraft. The rationale
behind this alternative is that these aircraft are slower than
turbine-driven aircraft and are much less likely to be a threat. Most
general aviation aircraft fall into this category, and so most aircraft
operators would not be subject to this rule. However, the FAA's air
traffic controllers cannot distinguish between piston-drive and
turbine-drive aircraft from radar or from transponder codes, making this
alternative difficult to enforce, thus having the potential to
compromise security.

Conclusion: This alternative would increase the vulnerability of and
diminish the level of protection now in place to safeguard vital
national assets located within the National Capital Region. This
alternative is rejected because it would compromise the security of
vital national assets and increase their vulnerability. Thus, the FAA
does not consider this to be a significant alternative in accordance
with 5 U.S.C. 603(d).

[D. International Trade Impact Assessment]{.underline}

The Trade Agreements Act of 1979 (Public Law 96-39) prohibits Federal
agencies from establishing any standards or engaging in related
activities that create unnecessary obstacles to the foreign commerce of
the United States. Legitimate domestic objectives, such as safety, are
not considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. The FAA has assessed the potential
effect of this final rule and determined that it will have only a
domestic impact and therefore no effect on international trade.

[E. Unfunded Mandates Assessment]{.underline}

Title II of the Unfunded Mandates Reform Act of 1995 (Public Law 104-4)
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in an expenditure of \$100 million or more (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a "significant regulatory action." The FAA currently
uses an inflation-adjusted value of \$136.1 million in lieu of \$100
million.

This final rule does not contain such a mandate. The requirements of
Title II do not apply.

**VIII. Executive Order 13132, Federalism**

The FAA has analyzed this final rule under the principles and criteria
of Executive Order 13132, Federalism. The FAA has determined that this
action will not have a substantial direct effect on the States, or the
relationship between the national Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and, therefore, does not have Federalism implications.

**IX. Environmental Analysis**

FAA Order 1050.1E identifies FAA actions that are categorically excluded
from preparation of an environmental assessment or environmental impact
statement under the National Environmental Policy Act in the absence of
extraordinary circumstances. The FAA has determined this rulemaking
action qualifies for the categorical exclusion identified in paragraph
312f and involves no extraordinary circumstances.

**X. Regulations That Significantly Affect Energy Supply, Distribution,
or Use**

The FAA has analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). We have determined that it is not a
"significant energy action" under the executive order because, while it
is a "significant regulatory action" under Executive Order 12866, it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.

**XI. Availability of Rulemaking Documents**

> You can get an electronic copy of rulemaking documents using the
> Internet by---

1.  Searching the Federal eRulemaking Portal
    (http://www.regulations.gov);

2.  Visiting the FAA's Regulations and Policies Web page at
    http://www.faa.gov/regulations_policies/; or

3.  Accessing the Government Printing Office's Web page at
    http://www.gpoaccess.gov/fr/index.html.

You can also get a copy by sending a request to the Federal Aviation
Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW,
Washington, DC  20591, or by calling (202) 267-9680. Make sure to
identify the amendment number or docket number of this rulemaking.

Anyone is able to search the electronic form of all comments received
into any of our dockets by the name of the individual submitting the
comment (or signing the comment, if submitted on behalf of an
association, business, labor union, etc.). You may review DOT's complete
Privacy Act statement in the [Federal Register]{.underline} published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
or you may visit [http://DocketsInfo.dot.gov](http://dms.dot.gov/).

XII\. Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996
requires FAA to comply with small entity requests for information or
advice about compliance with statutes and regulations within its
jurisdiction. If you are a small entity and you have a question
regarding this document, you may contact your local FAA official, or the
person listed under the FOR FURTHER INFORMATION CONTACT heading at the
beginning of the preamble. You can find out more about SBREFA on the
Internet at
http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

**List of Subjects**

[14 CFR Part 1]{.underline}

Air transportation.

[14 CFR Part 93]{.underline}

Aircraft flight, Airspace, Aviation safety, Air traffic control,
Aircraft, Airmen, Airports.

# **The Amendment**

In consideration of the foregoing, the Federal Aviation Administration
amends parts 1 and 93 of title 14 Code of Federal Regulations (14 CFR
parts 1 and 93) as follows:

**PART 1---DEFINITIONS AND ABBREVIATIONS**

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

Authority:   49 U.S.C. 106(g), 40113, 44701.

2\. Amend §1.1 by adding the definition of "National defense airspace"
in alphabetical order to read as follows:

**§1.1 General definitions.**

\* \* \* \* \*

[National defense airspace]{.underline} means airspace established by a
regulation prescribed, or an order issued under, 49 U.S.C. 40103(b)(3).

\* \* \* \* \*

**PART 93---SPECIAL AIR TRAFFIC RULES**

3\. The authority citation for part 93 continues to read as follows:

Authority:   49 U.S.C. 106(g), 40103, 40106, 40109, 40113, 44502, 44514,
44701, 44719, 46301.

> 4\. Add subpart V, consisting of §§93.331 through 93.345, to read as
> follows:

**Subpart V---Washington, DC Metropolitan Area Special Flight Rules
Area**

Sec.

93.331 Purpose and applicability of this subpart.

93.333 Failure to comply with this subpart.

93.335 Definitions.

93.337 Requirements for operating in the DC SFRA.

93.339 Requirements for operating in the DC SFRA, including the DC FRZ.

93.341 Aircraft operations in the DC FRZ.

93.343 Requirements for aircraft operations to or from College Park
Airport, Potomac Airfield, or Washington Executive/Hyde Field Airport.

93.345 VFR outbound procedures for fringe airports.

**Subpart V---Washington, DC Metropolitan Area Special Flight Rules
Area**

**§93.331 Purpose and applicability of this subpart.**

This subpart prescribes special air traffic rules for aircraft operating
in the Washington, DC Metropolitan Area. Because identification and
control of aircraft is required for reasons of national security, the
areas described in this subpart constitute national defense airspace.
The purpose of establishing this area is to facilitate the tracking of,
and communication with, aircraft to deter persons who would use an
aircraft as a weapon, or as a means of delivering weapons, to conduct an
attack on persons, property, or buildings in the area. This subpart
applies to pilots conducting any type of flight operations in the
airspace designated as the Washington, DC Metropolitan Area Special
Flight Rules Area (DC SFRA) (as defined in §93.335), which includes the
airspace designated as the Washington, DC Metropolitan Area Flight
Restricted Zone (DC FRZ) (as defined in §93.335).

**§93.333 Failure to comply with this subpart.**

\(a\) [Any violation.]{.underline} The FAA may take civil enforcement
action against a pilot for violations, whether inadvertent or
intentional, including imposition of civil penalties and suspension or
revocation of airmen's certificates.

\(b\) [Knowing or willful violations.]{.underline} The DC FRZ and DC
SFRA were established for reasons of national security under the
provisions of 49 U.S.C. 40103(b)(3). Areas established by the FAA under
that authority constitute "national defense airspace" as that term is
used in 49 U.S.C. 46307. In addition to being subject to the provisions
of paragraph (a) of this section, persons who knowingly or willfully
violate national defense airspace established pursuant to 49 U.S.C.
40103(b)(3) may be subject to criminal prosecution.

**§93.335 Definitions.**

For purposes of this subpart\--

[DC FRZ flight plan]{.underline} is a flight plan filed for the sole
purpose of complying with the requirements for VFR operations into, out
of, and through the DC FRZ. This flight plan is separate and distinct
from a standard VFR flight plan, and does not include search and rescue
services.

[DC SFRA flight plan]{.underline} is a flight plan filed for the sole
purpose of complying with the requirements for VFR operations into, out
of, and through the DC SFRA. This flight plan is separate and distinct
from a standard VFR flight plan, and does not include search and rescue
services.

[Fringe airports]{.underline} are the following airports located near
the outer boundary of the Washington, DC Metropolitan Area Special
Flight Rules Area: Barnes (MD47), Flying M Farms (MD77), Mountain Road
(MD43), Robinson (MD14), and Skyview (51VA).

[Washington, DC Metropolitan Area Flight Restricted Zone (DC
FRZ)]{.underline} is an area bounded by a line beginning at the
Washington VOR/DME (DCA) 311° radial at 15 nautical miles (NM) (Lat.
38º59\'31\"N., Long. 077º18\'30\"W.); then clockwise along the DCA 15
nautical mile arc to the DCA 002° radial at 15 NM (Lat. 39º06\'28\"N.,
Long 077º04\'32\"W.); then southeast via a line drawn to the DCA 049°
radial at 14 NM (Lat. 39º02\'18\"N., Long. 076º50\'38\"W.); thence south
via a line drawn to the DCA 064° radial at 13 NM (Lat. 38º59\'01\"N.,
Long. 076º48\'32\"W.); thence clockwise along the 13 NM arc to the DCA
276° radial at 13 NM (Lat.38º50\'53\"N., Long 077º18\'48\"W.); thence
north to the point of beginning, excluding the airspace within a one
nautical mile radius of the Freeway Airport, W00, Mitchellville, MD from
the surface up to but not including flight level (FL) 180. The DC FRZ is
within and part of the Washington, DC Metropolitan Area SFRA.

[]{.mark}

[Washington, DC Metropolitan Area Special Flight Rules Area (DC
SFRA)]{.underline} is an area of airspace over the surface of the earth
where the ready identification, location, and control of aircraft is
required in the interests of national security. Specifically, the DC
SFRA is that airspace, from the surface to, but not including, FL 180,
within a 30-mile radial of Lat. 38°51'34" N., Long. 077°02'11" W., or
the DCA VOR/DME. The DC SFRA includes the DC FRZ.

**§93.337 Requirements for operating in the DC SFRA.**

A pilot conducting any type of flight operation in the DC SFRA must
comply with the restrictions listed in this subpart and all special
instructions issued by the FAA in the interest of national security.
Those special instructions may be issued in any manner the FAA considers
appropriate, including a NOTAM. Additionally, a pilot must comply with
all of the applicable requirements of this chapter.

**§93.339 Requirements for operating in the DC SFRA, including the DC
FRZ.**

(a) Except as provided in paragraphs (b) and (c) of this section and in
§93.345, or unless authorized by Air Traffic Control, no pilot may
operate an aircraft, including an ultralight vehicle or any civil
aircraft or public aircraft, in the DC SFRA, including the DC FRZ,
unless\--

\(1\) The aircraft is equipped with an operable two-way radio capable of
communicating with Air Traffic Control on appropriate radio frequencies;

\(2\) Before operating an aircraft in the DC SFRA, including the DC FRZ,
the pilot establishes two-way radio communications with the appropriate
Air Traffic Control facility and maintains such communications while
operating the aircraft in the DC SFRA, including the DC FRZ;

\(3\) The aircraft is equipped with an operating automatic altitude
reporting transponder;

\(4\) Before operating an aircraft in the DC SFRA, including the DC FRZ,
the pilot obtains and transmits a discrete transponder code from Air
Traffic Control, and the aircraft's transponder continues to transmit
the assigned code while operating within the DC SFRA;

\(5\) For VFR operations, the pilot must file and activate a DC FRZ or
DC SFRA flight plan by obtaining a discrete transponder code. The flight
plan is closed upon landing at an airport within the DC SFRA or when the
aircraft exits the DC SFRA;

\(6\) Before operating the aircraft into, out of, or through the
Washington, DC Tri-Area Class B Airspace Area, the pilot receives a
specific Air Traffic Control clearance to operate in the Class B
airspace area; and

\(7\) Before operating the aircraft into, out of, or through Class D
airspace area that is within the DC SFRA, the pilot complies with
§91.129 of this chapter.

\(b\) Paragraph (a)(5) of this section does not apply to operators of
Department of Defense aircraft, law enforcement operations, or lifeguard
or air ambulance operations under an FAA/TSA airspace authorization, if
the flight crew is in contact with Air Traffic Control and is
transmitting an Air Traffic Control-assigned discrete transponder code.

\(c\) When operating an aircraft in the VFR traffic pattern at an
airport within the DC SFRA (but not within the DC FRZ) that does not
have an airport traffic control tower, a pilot must\--

\(1\) File a DC SFRA flight plan for traffic pattern work;

\(2\) Communicate traffic pattern position via the published Common
Traffic Advisory Frequency (CTAF);

\(3\) Monitor VHF frequency 121.5 or UHF frequency 243.0, if the
aircraft is suitably equipped;

\(4\) Obtain and transmit the Air Traffic Control-assigned discrete
transponder code; and

\(5\) When exiting the VFR traffic pattern, comply with paragraphs
(a)(1) through (a)(7) of this section.

\(d\) When operating an aircraft in the VFR traffic pattern at an
airport within the DC SFRA (but not within the DC FRZ) that has an
operating airport traffic control tower, a pilot must\--

\(1\) Before departure or before entering the traffic pattern, request
to remain in the traffic pattern;

\(2\) Remain in two-way radio communications with the tower. If the
aircraft is suitably equipped, the pilot must also monitor VHF frequency
121.5 or UHF frequency 243.0;

\(3\) Continuously operate the aircraft transponder on code 1234 unless
Air Traffic Control assigns a different code; and

\(4\) Before exiting the traffic pattern, comply with paragraphs (a)(1)

through (a)(7) of this section.

\(e\) Pilots must transmit the assigned transponder code. No pilot may
use transponder code 1200 while in the DC SFRA.

**§93.341 Aircraft operations in the DC FRZ.**

(a) Except as provided in paragraph (b) of this section, no pilot may
conduct any flight operation under part 91, 101, 103, 105, 125, 133,
135, or 137 of this chapter in the DC FRZ, unless the specific flight is
operating under an FAA/TSA authorization.

\(b\) Department of Defense (DOD) operations, law enforcement
operations, and lifeguard or air ambulance operations under an FAA/TSA
airspace authorization are excepted from the prohibition in paragraph
(a) of this section if the pilot is in contact with Air Traffic Control
and operates the aircraft transponder on an Air Traffic Control-assigned
beacon code.

\(c\) The following aircraft operations are permitted in the DC FRZ:

\(1\) Aircraft operations under the DCA Access Standard Security Program
(DASSP) (49 CFR part 1562) with a Transportation Security Administration
(TSA) flight authorization.

\(2\) Law enforcement and other U.S. Federal aircraft operations with
prior FAA approval.

\(3\) Foreign-operated military and state aircraft operations with a
State Department-authorized diplomatic clearance, with State Department
notification to the FAA and TSA.

\(4\) Federal, State, Federal DOD contract, local government agency
aircraft operations and part 121, 129 or 135 air carrier flights with
TSA-approved full aircraft operator standard security
programs/procedures, if operating with DOD permission and notification
to the FAA and the National Capital Regional Coordination Center
(NCRCC). These flights may land and depart Andrews Air Force Base, MD,
with prior permission, if required.

\(5\) Aircraft operations maintaining radio contact with Air Traffic
Control and continuously transmitting an Air Traffic Control-assigned
discrete transponder code. The pilot must monitor VHF frequency 121.5 or
UHF frequency 243.0.

\(d\) Before departing from an airport within the DC FRZ, or before
entering the DC FRZ, all aircraft, except DOD, law enforcement, and
lifeguard or air ambulance aircraft operating under an FAA/TSA airspace
authorization must file and activate an IFR or a DC FRZ or a DC SFRA
flight plan and transmit a discrete transponder code assigned by an Air
Traffic Control facility. Aircraft must transmit the discrete
transponder code at all times while in the DC FRZ or DC SFRA.

**§93.343 Requirements for aircraft operations to or from College Park
Airport, Potomac Airfield, or Washington Executive/Hyde Field Airport.**

(a) A pilot may not operate an aircraft to or from College Park Airport,
MD, Potomac Airfield, MD, or Washington Executive/Hyde Field Airport, MD
unless\--

\(1\) The aircraft and its crew and passengers comply with security
rules issued by the TSA in 49 CFR part 1562, subpart A;

\(2\) Before departing, the pilot files an IFR or DC FRZ or DC SFRA
flight plan with the Washington Hub Flight Service Station (FSS) for
each departure and arrival from/to College Park, Potomac Airfield, and
Washington Executive/Hyde Field airports, whether or not the aircraft
makes an intermediate stop;

\(3\) When filing a flight plan with the Washington Hub FSS, the pilot
identifies himself or herself by providing the assigned pilot
identification code. The Washington Hub FSS will accept the flight plan
only after verifying the code; and

\(4\) The pilot complies with the applicable IFR or VFR egress
procedures in paragraph (b), (c) or (d) of this section.

\(b\) If using IFR procedures, a pilot must \--

\(1\) Obtain an Air Traffic Control clearance from the Potomac TRACON;
and

\(2\) Comply with Air Traffic Control departure instructions from
Washington Executive/Hyde Field, Potomac Airport, or College Park
Airport. The pilot must then proceed on the Air Traffic Control-assigned
course and remain clear of the DC FRZ.

\(c\) If using VFR egress procedures, a pilot must \--

\(1\) Depart as instructed by Air Traffic Control and expect a heading
directly out of the DC FRZ until the pilot establishes two-way radio
communication with Potomac Approach; and

\(2\) Operate as assigned by Air Traffic Control until clear of the DC
FRZ, the DC SFRA, and the Class B or Class D airspace area.

\(d\) If using VFR ingress procedures, the aircraft must remain outside
the DC SFRA until the pilot establishes communications with Air Traffic
Control and receives authorization for the aircraft to enter the DC
SFRA.

\(e\) VFR arrivals:

\(1\) If landing at College Park Airport a pilot may receive routing via
the vicinity of Freeway Airport; or

\(2\) If landing at Washington Executive/Hyde Field or Potomac Airport,
the pilot may receive routing via the vicinity of Maryland Airport or
the Nottingham VORTAC.

**§93.345 VFR outbound procedures for fringe airports.**

(a) A pilot may depart from a fringe airport as defined in §93.335
without filing a flight plan or communicating with Air Traffic Control,
unless requested, provided:

\(1\) The aircraft's transponder transmits code 1205;

\(2\) The pilot exits the DC SFRA by the most direct route before
proceeding on course; and

\(3\) The pilot monitors VHF frequency 121.5 or UHF frequency 243.0.

\(b\) No pilot may operate an aircraft arriving at a fringe airport or
transit the DC SFRA unless that pilot complies with the DC SFRA
operating procedures in this subpart.

Issued in Washington, DC on December 9, 2008.

Robert A. Sturgell

Acting Administrator

[^1]: Small Business Administration, "A Guide for Government Agencies --
    How to Comply with the Regulatory Flexibility Act", May 2003, page
    21.

[^2]: This value is used to ensure that the analysis examines the rule
    in accordance with the pre-9/11 baseline established in the full
    regulatory impact analysis.