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 reconsider ation 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 relie f 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 sec urity 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 req uest 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 p recedent.2

Mr. Cabot states that a ccording 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. E ven 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 TFR s to pilots.

Mr. Cabot states that t he 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, req uires the FAA t o 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 petition er assert s , Congress passed the Pilot's Bill of Rights to help ensure that the FAA treat s general aviation pilots in "a fair and equitable

manner."

The petitioner state s that e ven 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 (an d not even charting stadium locations in visual flight rules ( VFR ) charts) i s contrary to Congress's intent when it passed the Pilot's Bill of Rights. Mr. Cabot states that a s 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 capricio us exercise of the FAA's administrative power

. The petitioner believes that i t imposes a blanket restriction over

stadiums within a 3 nautical mile radius ( NMR ) and 3000 f ee t 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 coupl e minutes, at most, even in a Cessna 172 , the petitioner claims ).

Mr. Cabot believes that a s a result, FDC NOTAM 9/5151 simply serves to punish innocent pilots who are no t "threats to national security" . The petitioner also state s , s ince there is no

ra tional 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 state s t he FAA's pursuit of civil or administrative penalties ag ainst pilots for "violating" undisclosed TFRs is a violation of due process. The petitioner state s that he3

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 t he times and locations of stadium TFRs are not published , t he "ending" times of stadium TFRs are impossible to know , i n most instances, neither FSS nor ATC knows whether a stadium TFR is in effect , and f or the most part, stadiums are not charted on VFR ch arts. 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 state s that i f 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 act ions against pilots who violate

undisclosed stadium TFRs. The petitioner also state s that i f 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 an alysis 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 t he 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 dedica ted 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

- ca se 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 s ecurity concerns justifying this rule.4

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