AJV-14-163-P

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

 

In the matter of the petition of 

 

MR. JASON CABOT Regulatory Docket No. FAA-2013-0784

 

for rulemaking to amend § 99.7

of Title 14, Code of 

Federal Regulations 

 

DENIAL OF PETITION FOR RECONSIDERATION

By letter dated February 10, 2014, Mr. Jason Cabot, 388 Beale Street, 

Apartment 1407, San Francisco, CA 94105 petitioned the Federal Aviation Administration 

(FAA) for reconsideration of the FAA’s January 29, 2014 denial of petition for rulemaking to 

amend § 99.7 of Title 14, Code of Federal Regulations (14 CFR). The proposed rulemaking 

would amend this section by providing that a pilot who operates within a temporary flight 

restriction (TFR) does not violate the security instructions issued by the Administrator 

pursuant to this section if the existence of the TFR was not disclosed to the pilot during a 

briefing from the Flight Standards Service (FSS) or other authorized source. 

The petitioner requests relief from the following regulation:

Section 99.7 prescribes, in pertinent part, that each person operating an aircraft in an Air 

Defense Identification Zone (ADIZ) or Defense Area must, in addition to the applicable 

rules of this part, comply with special security instructions issued by the Administrator in 

the interest of national security, pursuant to agreement between the FAA and the 

Department of Defense, or between the FAA and a U.S. Federal security or intelligence 

agency.

The petitioner supports its request with the following information:

Mr. Cabot submitted a petition for reconsideration on the basis that the FAA made an 

important factual error in its denial of the original petition, and that the FAA is not correctly 

interpreting a law, regulation, or precedent.
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Mr. Cabot states that according to its denial letter, the FAA asserts that flight data center 

(FDC) notice to airmen (NOTAM) 9/5151 contains flight restrictions mandated in Section 352 

of Public Law 108-7 and Section 521 of Public Law 108-199. Even if that is true, Mr. Cabot 

believes that the FAA need not hold pilots liable for unintentional violations of undisclosed 

sporting event TFR, or refuse to implement a system properly disseminating the existence, 

times and locations of sporting event TFRs to pilots.

Mr. Cabot states that the FAA's policy of holding pilots civilly liable for violations of 

undisclosed TFRs is contrary to the intent of Congress. Section 3 of the Pilot's Bill of Rights, 

Public Law 112-153 (Aug. 3, 2012), 126 Stat. 1162, requires the FAA to improve 

dissemination of NOTAMs, to archive NOTAMs in a central location, to make NOTAMs 

more specific and relevant to the route of flight, and to provide the NOTAMs in a format that 

is more useable to the airman. In general, the petitioner asserts, Congress passed the Pilot's 

Bill of Rights to help ensure that the FAA treats general aviation pilots in "a fair and equitable 

manner." 

The petitioner states that even if the FAA concludes that the "blanket" sporting event TFR is 

permissible under the Pilot's Bill of Rights, a conclusion subject to considerable question

according to Mr. Cabot, the FAA's policy of not disclosing the locations and times of these 

TFRs (and not even charting stadium locations in visual flight rules (VFR) charts) is contrary 

to Congress's intent when it passed the Pilot's Bill of Rights. Mr. Cabot states that as a result, 

the FAA should, at a minimum, clarify the circumstances in which a pilot may be held liable 

for an unintentional violation of an undisclosed TFR, publish exact locations and times for all 

TFRs in NOTAMs, and chart stadium locations on VFR charts.

In addition, Mr. Cabot believes that the flight data center (FDC) NOTAM 9/5151 is unlawful 

because it serves no purpose, and is an arbitrary and capricious exercise of the FAA's 

administrative power. The petitioner believes that it imposes a blanket restriction over 

stadiums within a 3 nautical mile radius (NMR) and 3000 feet above ground level (AGL), in a 

purported effort to protect the public. However, according to the petitioner, nothing prevents 

a terrorist from quickly penetrating the TFR and committing a terrorist act, since there is 

simply no way to intercept any plane in the time it would take to traverse 3 miles and 3000 

feet (a matter of a couple minutes, at most, even in a Cessna 172, the petitioner claims). 

Mr. Cabot believes that as a result, FDC NOTAM 9/5151 simply serves to punish innocent 

pilots who are not "threats to national security". The petitioner also states, since there is no 

rational purpose justifying FDC NOTAM 9/5151, its existence is an example of arbitrary and 

capricious action by the FAA, and it is therefore unlawful and should be rescinded.

Lastly, Mr. Cabot states the FAA's pursuit of civil or administrative penalties against pilots for 

"violating" undisclosed TFRs is a violation of due process. The petitioner states that he 
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believes the FAA should not be able to penalize pilots when there is no reasonable method of 

compliance. The petitioner believes this is true when the times and locations of stadium TFRs 

are not published, the "ending" times of stadium TFRs are impossible to know, in most 

instances, neither FSS nor ATC knows whether a stadium TFR is in effect, and for the most 

part, stadiums are not charted on VFR charts. While figuring the existence of stadium TFRs 

locally is technically possible with significant effort (assuming knowledge of local stadium 

locations, game schedules, etc.), any cross-country planning is impossible, or at least highly

impractical, the petitioner asserts.

Mr. Cabot states that if the FAA expects compliance with FDC NOTAM 9/5151, it should 

provide (and chart) the necessary information. Otherwise, the FAA should clearly articulate 

the circumstances in which it will pursue enforcement actions against pilots who violate 

undisclosed stadium TFRs. The petitioner also states that if the FAA is unwilling to clarify its 

position through rulemaking, it should at least consider issuing an FAA counsel opinion 

addressing these issues.

The FAA's analysis is as follows:

The FAA has reviewed its rationale in Denial of Rulemaking issued on January 29, 

2014 and the petition for reconsideration. In that denial, the FAA stated that although the 

issues raised in the petition may have merit, they do not address an immediate safety concern. 

In response to the petition for reconsideration, the FAA has not changed its determination. 

Section 11.101 states that a petitioner may petition the FAA to reconsider its petition denial. 

However, it also states that the petitioner must submit ...[and] show the following:

(1) A significant additional fact that was not presented in the original petition;

(2) An important factual error by the FAA in the denial; or

(3) An incorrect interpretation of law, regulation, or precedent by the FAA.

The FAA has concluded the petition does not raise issues of fact or law that would support a 

change in the FAA’s decision concerning the original petition for rulemaking. The FAA has 

limited resources for rulemaking, and these resources are dedicated to enhancing safety for the 

National Airspace System and complying with statutory mandates. The sporting event TFR is 

consistent with the FAA’s authority under 49 USC § 40103(b) and is consistent with other 

rules addressing airspace security concerns.

The other legal issues raised in the petition for reconsideration relate to enforcement and do 

not provide an independent justification for amending either § 99.7 or the sporting event TFR. 

The FAA considers violations of all FAA rules on a case-by-case basis and takes enforcement 

action when circumstances warrant. The FAA has concluded that amending § 99.7 to except 

unintentional violations of the TFR from enforcement is not consistent with other similar rules 

and does not appropriately address the security concerns justifying this rule. 
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The FAA’s Decision

In consideration of the foregoing, I find that initiating rulemaking is not warranted at 

this time. Therefore, in accordance with § 11.101 and pursuant to the authority contained 

in 49 U.S.C. §§ 106(f), 40113 and 40103, the petition of Mr. Jason Cabot for reconsideration 

of the January 29, 2014 denial of petition for rulemaking to amend 14 CFR § 99.7 is hereby 

denied. 

Issued in Washington, D.C., on November 18, 2014.

/s/

Michael P. Huerta

Administrator