[Federal Register Volume 77, Number 119 (Wednesday, June 20, 2012)]
[Rules and Regulations]
[Pages 36907-36914]
[FR Doc No: 2012-15008]

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Rules and Regulations
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Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 /
Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 73

[Docket No. FAA-2011-0117; Airspace Docket No. 09-AGL-31]

Establishment of Restricted Areas R-5402, R-5403A, R-5403B, R-
5403C, R-5403D, R-5403E, and R-5403F; Devils Lake, ND

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action establishes restricted area airspace within the
Devils Lake Military Operations Area (MOA), overlying Camp Grafton
Range, in the vicinity of Devils Lake, ND. The new restricted areas
permit realistic training in modern tactics to be conducted at Camp
Grafton Range while ensuring the safe and efficient use of the National
Airspace System (NAS) in the Devils Lake, ND, area. Unlike restricted
areas which are designated under Title 14 Code of Federal Regulations
(14 CFR) part 73, MOAs are not regulatory airspace. However, since the
restricted areas overlap the Devils Lake East MOA, the FAA is including
a description of the Devils Lake East MOA change in this rule. The MOA
change described herein will be published in the National Flight Data
Digest (NFDD).

DATES: Effective Dates: Effective date 0901 UTC, July 26, 2012.

FOR FURTHER INFORMATION CONTACT: Colby Abbott, Airspace, Regulations
and ATC Procedures Group, Office of Airspace Services, Federal Aviation
Administration, 800 Independence Avenue SW., Washington, DC 20591;
telephone:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

History

    On November 28, 2011, the FAA published in the Federal Register a
notice of proposed rulemaking (NPRM) to establish Restricted Areas R-
5402, R-5403A, R-5403B, R-5403C, R-5403D, R-5403E, and R-5403F in the
vicinity of Devils Lake, ND (76 FR 72869). Interested parties were
invited to participate in this rulemaking effort by submitting written
comments on the proposal. In response to public request, the FAA
extended the comment period for 30 additional days (77 FR 1656; January
11, 2012). There were 43 comments received in response to the NPRM with
42 opposing various aspects of the proposal and one comment supporting
the proposal as published. All comments received were considered before
making a determination on this final rule. The following is a
discussion of the substantive comments received and the agency's
response.

Discussion of Comments

    One commenter contended that the 500 feet above ground level (AGL)
base for R-5402 would impact low level, aerial operations such as crop
dusters, wildlife and agricultural surveys, and emergency medical
access. The FAA recognizes that when active, R-5402 would restrict
nonparticipating aircraft from operating within its boundaries. To
mitigate impacts to the aviation activities described above, the United
States Air Force (USAF) has agreed to implement scheduling coordination
measures to de-conflict laser operations and accommodate access by
local farming, ranching, survey, and medical aviation interests when
they need to fly in or through R-5402, when it is active.
    Another commenter noted that VFR traffic would have to
circumnavigate active restricted airspace resulting in increased time
and distances flown. The FAA acknowledges restricted area airspace
segregates nonparticipating aircraft from hazardous activities
occurring inside the restricted area and that, on occasion,
nonparticipating aircraft affected by the restricted area will have to
deviate from preferred routings to remain clear. The lateral boundaries
and altitudes of the restricted area complex were defined to minimize
impacts to nonparticipant aircraft, yet still support the military in
accomplishing its training mission. The subdivided configuration of the
restricted area complex, the altitude stratifications, and the entire
restricted area complex designated as ``joint use,'' affords
nonparticipant aircraft access to the portions of restricted area
airspace not in use by the military to the greatest extent possible.
    One commenter expressed concern that segregating airspace for new
types of aircraft sets a dangerous precedent. The FAA agrees and
maintains its policy to establish restricted area airspace when
determined necessary to confine or segregate activities considered
hazardous to nonparticipating aircraft. The FAA considers UAS
operations to be non-hazardous. However, the FAA recognizes that some
UAS platforms have the ability to employ hazardous ordnance or sensors.
Since the MQ-1 Predator [UAS] laser is non-eye safe and will be used
during training sorties flown by the military, its use constitutes a
hazardous activity that must be confined within restricted area
airspace to protect nonparticipating aircraft.
    Two commenters suggested that Special Use Airspace (SUA) should be
ceded back to civil control when not in use. The FAA proposed that the
restricted areas be designated as ``joint use'' airspace, specifically
to afford the highest level of access to NAS users and limit this
access only when necessary. This rule provides that when the restricted
areas are not needed by the using agency, the airspace will be returned
to the controlling agency, Minneapolis Air Route Traffic Control
Center, for access by other NAS users.
    Another commenter recommended that the proposed restricted area
airspace be developed for concurrent use. The FAA considered the
commenters use of ``concurrent use'' to mean ``sharing the same
airspace, at the same time, between participating and nonparticipating
aircraft.'' As noted previously, restricted areas are established to
confine or segregate activities considered hazardous to
nonparticipating aircraft; such as dropping bombs, firing guns/
missiles/rockets, or lasing with a non-eye safe laser. Concurrent use,
as described above, would not be prudent in such an environment as it
constitutes an unacceptable risk to nonparticipating aircraft.
    Twenty-two commenters stated that the proposed restricted areas
should

have been developed in conjunction with the North Dakota Airspace
Integration Team (NDAIT), a group formed to find solutions to UAS
integration into the NAS, as well as coordinate UAS activities state-
wide. To clarify, the focus of this proposed action is consideration of
establishing restricted areas to support hazardous military training
activities, not UAS integration into the NAS. The FAA notes that the
NDAIT was not established until after the USAF airspace proposal was
submitted to the FAA and many of the NDAIT members took the opportunity
to submit comments on the proposal.
    One commenter stated that the proposed airspace should be
environmentally assessed for the broad array of military aircraft that
would be expected to employ in conjunction with UAS. The FAA agrees and
has confirmed that the Environmental Impact Statement for the bed down
of the MQ-1 Predator at Grand Forks Air Force Base (AFB) addresses
other aircraft that would likely train with the UAS in the proposed
restricted area airspace complex.
    Another commenter stated that the proposed restricted area airspace
would eventually be activated almost full time as is the current
Temporary Flight Restriction (TFR) over Grand Forks AFB. The TFR
referred to by the commenter is contained in the Special Security
Instruction authorized under 14 CFR 99.7 for Customs and Border
Protection (CBP) UAS operations conducted from Grand Forks AFB.
Although the TFR is active while the CBP UAS is flying, it allows
airspace access by non-participant aircraft using procedural separation
rules. The restricted areas proposed by this action are being
established with specific times of designation, to support the
hazardous non-eye safe laser training conducted by the USAF. The times
are described by ``core hours'' and also may be activated by NOTAM to
allow for training periods outside the core hours, i.e. at night.
    Twenty commenters argued that the proposal is contrary to FAA
policy, in that it is designed for the sole purpose of separating non-
hazardous types of VFR aircraft. The FAA has established this
restricted area airspace to confine the MQ-1 Predator employment of a
non-eye safe targeting laser, which is hazardous to nonparticipating
pilots. This laser training for UAS pilots must be contained in
restricted areas to confine the hazardous activity, as well as protect
non-participating aircraft flying in the vicinity of the restricted
areas. Even though the Predator operations in the restricted areas will
normally occur in Visual Meteorological Conditions (VMC), the UAS will
be on an IFR flight plan in accordance with U.S. Air Force
requirements.
    Two commenters requested that the FAA establish a formal, annual
review process and public report on the use and impacts of any
designated airspace associated with UAS activity in Grand Forks, ND.
The request to establish a formal annual review process with public
reporting on use and impacts falls outside the scope of this proposed
action. However, the FAA has a Restricted Area Annual Utilization
reporting program already established to assist the FAA in managing
special use airspace areas established throughout the NAS. These annual
utilization reports provide objective information regarding the types
of activities being conducted, as well as the times scheduled,
activated, and actual use, which the FAA uses to assess the appropriate
use of the restricted areas.
    Nineteen commenters recommended that proposed restricted airspace
have a ``sunset'' date. The restricted areas are established to confine
hazardous non-eye safe laser training, which will continue as long as
the Predator UAS are operating from Grand Forks AFB. Technology
developments to integrate UAS into the NAS with manned aircraft, as
well as military Tactics, Techniques and Procedures (TTP) maturation
may provide an opportunity to reconfigure the restricted area airspace
at a future date, but the requirement for restricted area airspace will
exist as long as the non-eye safe laser training is conducted.
    One commenter recommended a requirement for equipping the UAS with
forward viewing sensors that would enable the UAS to comply with 14 CFR
part 91 see-and-avoid rules. While the FAA is working with the industry
to develop see-and-avoid solutions for the safe and eventual seamless
integration of UAS into the NAS, this suggestion is outside the scope
of this action.
    One commenter asked that the proposal be tabled until the FAA
publishes its final Order/Advisory Circular regarding UAS operations in
the NAS. The Order/Advisory Circular address the integration of UAS in
the NAS, which is separate from the action of establishing restricted
area airspace to confine hazardous non-eye safe laser training
activities. This action is necessary to support the military's training
requirement beginning this summer. The FAA is completing this airspace
action separate from its UAS NAS integration guidance development
efforts.
    Several commenters recommended that instead of creating new SUA for
these activities that the USAF use existing restricted areas or the
airspace subject to flight restrictions under Sec.  99.7 SSI and used
by the Customs & Border Protection Agency (CBP) at Grand Forks AFB. The
FAA advocates the use of existing SUA and requires proponents to
examine all reasonable alternatives, prior to considering the need to
establish new SUA. In this case, the USAF conducted an extensive
analysis of alternatives and considered criteria including proximity to
Grand Forks AFB, existence of a suitable air-to-ground range for laser
targeting, and air traffic density both en route and at the training
complex. The Beaver MOA in north central Minnesota is approximately
three times as far as the proposed airspace, has much heavier air
traffic density, and has no air-to-ground gunnery range. The Tiger MOAs
in north central North Dakota are the same distance as the proposed
airspace, have favorable air traffic density, but have no air-to-ground
gunnery range. The airspace in the vicinity of the existing CBP Sec.
99.7 SSI flight restriction would be closer, but has much higher
traffic density and complexity, and has no air-to-ground range.
Additionally, there were no useable restricted areas within reasonable
distance of Grand Forks AFB for consideration. The FAA believes the
USAF considered and analyzed the alternatives to this action and that
establishing new SUA is the only reasonable option.
    One commenter suggested that the restricted area complex be moved
north of Devils Lake. The FAA notes that the USAF studied an
alternative of establishing restricted areas in the Tiger North and
Tiger South MOAs, located north of Devils Lake, ND. While proximity to
Grand Forks AFB and the air traffic density compared favorably to the
proposed airspace area, the lack of an air-to-ground gunnery range
suitable for hazardous laser training made this option operationally
unfeasible. The FAA accepted the USAF's consideration and analysis of
this alternative and proposed establishing the restricted areas set
forth in this action.
    One commenter recommended that the proposed airspace be moved to
another state as it would impact flying training in the vicinity of
Grand Forks. This airspace proposal resulted from Congress' Base
Realignment and Closure Commission of 2005 decision to retain Grand
Forks Air Force Base in North Dakota for an emerging UAS mission. As
addressed previously, Beaver MOA in north central Minnesota is the
nearest SUA outside of North Dakota. It was approximately three times
the distance from Grand Forks AFB, has much higher

air traffic density airspace, and has no air-to-ground gunnery range
for hazardous laser training. The FAA recognizes the proposed
restricted areas could impact civil flight training, largely conducted
by the University of North Dakota and east of the proposed complex.
Additionally, nearly all civil flight training activity that currently
occurs in the vicinity of the restricted areas would take place below
the proposed R-5403 footprint. Whereas the floor of R-5402 goes down to
500 feet above ground level (AGL), its cylinder footprint was reduced
to a 7 NM radius around R-5401 and the Camp Grafton Range to mitigate
impacts to these civil operations. This airspace action provides a
reasonable balance between military training requirements and
accommodation of non-participant flight training.
    Three commenters stated that the vast size of the restricted area
complex is not necessary. The restricted areas being established by
this action provide the minimum vertical and lateral tactical
maneuvering airspace required for UAS operators to accomplish target
acquisition prior to attack, and then contain the non-eye safe laser
during firing. The restricted area complex was configured to confine
two UAS operating on independent mission profiles at the same time,
while minimizing airspace impacts to non-participating aircraft. As the
UAS training flight transitions from one phase of the mission profiles
to another, unused segments will be deactivated and returned to the NAS
consistent with the FAA's Joint Use Airspace policy. The subdivided and
stratified configuration of the restricted area complex enables the
USAF to only activate the restricted areas needed for their training
sorties while leaving the rest of the complex inactive and available
for NAS users. The FAA believes the segmentation and stratification of
the complex will enhance civil access to those parts of the complex not
activated for USAF training requirements. Actual procedures for
restricted area activation and deactivation will be defined in a Letter
of Procedure between the using and controlling agencies.
    Two commenters asked if the USAF could find a less cluttered area
with more suitable weather for MQ-1 Predator operations. The FAA
acknowledges that weather challenges will exist for the MQ-1 Predator
operations at Grand Forks AFB. The decision to base Predator UAS at
Grand Forks AFB, however, was mandated by Congress. The restricted
areas proposed by this action were situated and proposed in the only
location that met the USAF's operational requirements of proximity to
launch/recovery base, low air traffic density, and availability of an
existing air-to-ground gunnery range suitable for the hazardous non-eye
safe laser training activities.
    One commenter contended that Alert Areas are more appropriate for
UAS training activity. Alert Areas are designated to inform
nonparticipating pilots of areas that contain a high volume of pilot
training operations, or an unusual type of aeronautical activity, that
they might not otherwise expect to encounter. However, only those
activities that do not pose a hazard to other aircraft may be conducted
in an Alert Area. Since employment of the non-eye safe laser carried by
the MQ-1 Predator UAS is an activity hazardous to non-participants, an
Alert Area is not an appropriate airspace solution.
    Two commenters stated that the Air Force is proposing restricted
areas as a means to mitigate for lack of see-and-avoid capability for
UAS operations. They noted, correctly, that the Air Force could use
ground-based or airborne assets to provide see-and-avoid compliance
instead. FAA policy dictates that restricted areas are established to
confine activities considered hazardous to non-participating aircraft.
As mentioned previously, the focus of this action is establishing
restricted areas to support hazardous military training activities, not
UAS integration into the NAS. As such, the FAA does not support
establishing restricted areas as a solution to overcome UAS inability
to comply with 14 CFR Part 91 see-and-avoid requirements. The FAA is
establishing the restricted areas addressed in this action to confine
the hazardous non-eye safe laser training activities conducted by the
USAF.
    One commenter stated that new restricted airspace should be offset
by reallocation of unused SUA elsewhere in the NAS. The proposed
restricted areas fall almost entirely within the existing Devils Lake
East MOA. When activated, the new restricted areas will be, in effect,
replacing existing SUA. Although the regulatory and non-regulatory
process for establishing SUA is not directly linked to the restricted
area and MOA annual utilization reporting process, the FAA does review
restricted area and MOA utilization annually. If candidate SUA areas
are identified, the FAA works with the military service to
appropriately return that airspace to the NAS.
    Seventeen commenters stated that Predator pilots can get the same
training through simulation. The FAA cannot determine for the USAF the
value of simulated UAS operator training over actual flying activities.
The USAF is heavily investing in Live, Virtual, and Constructive (LVC)
training options. As the commenters infer, the migration to a virtual
training environment would be expected to reduce the demand for
activating R-5402 and R-5403A-F. However, actual employment of the non-
eye safe laser will still be required for both training proficiency and
equipment validation. This action balances the training airspace
requirements identified by the USAF as it matures its UAS capabilities
with the airspace access requirements of other NAS users.
    Twenty commenters addressed the increased collision hazard due to
air traffic compression at lower altitudes and around the periphery of
the proposed complex. The FAA recognizes that compression could occur
when the restricted areas are active; however, the actual impact will
be minimal. The FAA produced traffic counts for the 5 busiest summer
days and 5 busiest winter days of 2011 during the proposed times of
designation (0700-2200L) from 8,000 feet MSL to 14,000 feet MSL. Totals
for all IFR and known VFR aircraft ranged between 4 and 22 aircraft
over the 17-hour span. Volumes such as this are easily managed by
standard ATC procedures. To enhance non-radar service in the far
western part of the proposed complex, the FAA is considering a separate
rulemaking action to modify V-170 so that it will remain clear of R-
5402 to the west. On average, four aircraft file V-170 over a 24-hour
day. Lastly, the FAA is nearing completion of a project to add three
terminal radar feeds, from Bismarck, Fargo, and Minot AFB, covering the
restricted area airspace area into Minneapolis ARTCC. These feeds will
improve low altitude radar surveillance and enhance flight safety
around the proposed restricted areas.
    One commenter argued that the proposed airspace should be limited
to daylight hours only. While daytime flying is usually safer in a
visual see-and-avoid environment; when it comes to the military
training for combat operations, darkness provides a significant
tactical advantage and UAS must be capable of operating both day and
night. While the USAF has a valid and recurring requirement to train
during hours of darkness, the USAF was able to accept a 2-hour
reduction in the published times of designation core hours from ``0700-
2200 daily, by NOTAM 6 hours in advance,'' to ``0700-2000 daily, by
NOTAM 6 hours in advance.''

    Another commenter sought details on the UAS lost link plan.
Although the lost link plan is not within the scope of this action, the
FAA does require detailed procedures for UAS lost link situations for
all UAS operations. These procedures will be similar to those in place
today for UAS operations across the NAS. The servicing ATC facility and
UAS operators closely coordinate lost link procedures and will
incorporate them into the implementing Letters of Procedure (LOP) for
the restricted areas established in this rule.
    Two commenters commented that the proposed restricted area complex
stratification and segmentation was confusing and would lead to SUA
airspace incursions. The FAA promotes stratifications and segmentation
of large SUA complexes to maximize the safety and efficiency of the NAS
and to enable more joint use opportunities to access the same airspace
by non-participating aircraft. Sub-dividing the complex permits
activation of a small percentage of the overall complex at any one time
while still providing for a diverse set of training profiles during UAS
sorties, which is especially well-suited for long duration UAS training
missions. Additionally, enhanced joint use access eases compression of
air traffic in the local area; thus, increasing flight safety.
    Nineteen commenters noted that UAS will not be able to see-and-
avoid large flocks of birds using migratory flyways, which could create
a hazard for personnel on the ground. Both Grand Forks AFB and the
University of North Dakota flight school, located at the Grand Forks
International Airport, have conducted extensive research into bird
strike potential and prevention. Their research found that more than 90
percent of bird strikes occur below 3,500 feet AGL and that there are
predictable windows for migratory bird activity, which are adjusted
year-to-year based on historical and forecast weather patterns. Also,
bird strikes are nearly twice as likely to occur at night compared to
the day. The USAF has long standing bird strike avoidance procedures
specifically customized for Grand Forks AFB, which will be optimized
for UAS operations. Other mitigations include having the bases of the
restricted airspace well above most bird activity, conducting most
training during daylight hours, and adjusting UAS operations during
seasonal migratory activity. These mitigations conform to both civil
and military standard bird strike avoidance measures that are in place
across the NAS.
    Eighteen commenters contended that persons and property under the
proposed airspace would not be protected from the non-eye safe laser
training. The USAF conducted a laser safety study in 2009 for the Camp
Grafton Air-to-Ground Range. This range, where the laser targets will
be placed, lies within the existing R-5401. The study examined laser
and aircraft characteristics, topography, target composition, and
employment parameters, and determined that the proposed airspace would
adequately protect persons and property outside the footprint of R-
5401. Personnel working at the range will use proper protective gear
should they need to access the target areas during laser employment
periods. The FAA has reviewed and accepts the USAF's laser safety
study. The restricted areas established by this action are designed to
allow laser employment without hazard to persons and property in the
vicinity of R-5401.
    Two commenters stated that it is dangerous to mix UAS with visual
flight rules (VFR) air traffic. UAS are permitted to fly outside
restricted area airspace in the NAS today and in the vicinity of VFR
aircraft, under FAA approved Certificate of Waiver or Authorization
(COA). Specific to this action, UAS operations will be occurring inside
restricted area airspace that is established to confine the hazardous
non-eye safe laser training activities; thus, segregated from
nonparticipating aircraft.
    One commenter said that VFR pilot violations will increase and
those less informed will pose a safety hazard. The FAA interpreted the
commenters use ``violations'' to mean SUA airspace incursions. VFR
pilots must conduct thorough pre-flight planning and are encouraged to
seek airborne updates from ATC on the status of SUA. The FAA finds that
the restricted areas established by this action pose no more risk of
incursion or safety hazard than other restricted areas that exist in
the NAS.
    Two commenters observed that the NPRM failed to identify how UAS
would transit from Grand Forks AFB to the proposed restricted areas.
The FAA considers UAS transit and climb activities to be non-hazardous;
therefore, establishing new restricted areas for transit and climb
purposes is inappropriate. While UAS transit and climb activities are
non-hazardous, they are presently atypical. Therefore, specifics on
transit and climb ground tracks, corridor altitudes and widths, and
activation procedures will be accomplished procedurally and consistent
with existing COA mitigation alternatives available today. The
establishment of restricted areas airspace is focused on the hazardous
non-eye safe laser training activities.
    Twenty four commenters noted that the proposed restricted areas
would block V-170 & V-55 and impact V-169 & V-561. The FAA acknowledges
that the proposed restricted area complex will have a minimal impact on
three of the four Victor airways mentioned, depending on the restricted
areas activated. The airway analysis began with V-170, which runs
between Devils Lake, ND, and Jamestown, ND, with a Minimum En route
Altitude (MEA) of 3,500 feet MSL along the effected segment of the
airway. An average of four aircraft per day filed for V-170. R-5402,
when active, impacts V-170 from 1200 feet AGL to 10,000 feet MSL. The
FAA is considering a separate rulemaking action to modify V-170 by
creating a slight ``dogleg'' to the west, which would allow unimpeded
use of V-170 below 8,000 feet MSL regardless of the status of R-5402.
Impacts to V-170 above 8,000 feet MSL are dependent upon which
restricted areas are active.
    V-55 runs between Grand Forks, ND, and Bismarck, ND, with an MEA of
8,000 feet MSL along the affected segment of the airway. An average of
7 aircraft per day filed for V-55. Activation of R-5402, R-5403A, R-
5403B, or R-5403C would have no impact on V-55. The FAA raised the
floor of R-5403D to 10,000 feet MSL and reduced the blocks for R-5403D
and R-5403E to 2,000 feet each to allow ATC more flexibility to climb/
descend IFR traffic on V-55. The FAA is also considering establishing a
Global Positioning Satellite MEA along the affected segment of V-55 to
allow properly equipped non-participating aircraft to fly the V-55
ground track, but at a lower altitude.
    V-561 runs between Grand Forks, ND, and Jamestown, ND, with an MEA
of 4,000 feet MSL along this segment of the airway. An average of two
aircraft per day filed for V-561. When activated, the southeast corner
of R-5403D, R-5403E, and R-5403F encroach upon V-561 from 10,000 feet
MSL-11,999 feet MSL, 12,000 feet MSL-13,999 feet MSL, or 14,000 feet
MSL-17,999 feet MSL, respectively.
    V-169 runs between Devils Lake, ND, and Bismarck, ND, with an MEA
of 3,500 feet MSL along this segment. The nearest point of any
restricted area is 5 nautical miles (NM) from the centerline of V-169.
Since Victor airways are 4 NM wide; the restricted areas do not
encumber the use of V-169.
    The FAA acknowledges potential impacts to users on Victor airways
V-55, V-170, and V-651 by the restricted areas established in this
action.

However, based on the 13 total average daily flights filing for V-55,
V-170, and V-651 in the same airspace as the proposed restricted area
complex (V-169 is not affected by the proposed airspace), the impacts
of the restricted areas on the three affected airways is considered
minimal. These aircraft have air traffic control procedural
alternatives available to include vectoring, altitude change, or re-
routing as appropriate.
    Nineteen commenters found that transcontinental and local area
flights would be forced to deviate around restricted areas, increasing
cost and flight time. The FAA understands that when the restricted
areas are active, non-participation aircraft will have to accomplish
course deviations or altitude changes for avoidance, which can increase
distances flown and costs incurred. For this action, the FAA and USAF
worked together to define the minimum airspace volume necessary to meet
USAF training mission requirements and maximize airspace access to
other users of the NAS. Reducing the overall size and internally
segmenting and stratifying the complex have reduced course deviation
distances and altitude changes required by non-participants to avoid
active restricted areas. Additionally, the USAF as agreed to
temporarily release active restricted airspace back to ZMP for non-
participant transit during non-routine/contingency events (i.e. due to
weather, icing, aircraft malfunction, etc.). Air traffic in this part
of the NAS is relatively light and the level of impact associated with
establishing the restricted areas in this action is considered minimal
when balanced against valid military training requirements.
    Twenty-four comments were received stating that four hours prior
notice is insufficient lead time for activation by NOTAM, with most
recommending that the prior notification time be increased to six
hours. The FAA recognizes that many aircraft today have flight
durations long enough that flight planning before takeoff may occur
outside of the 4-hour window. Restricted areas provide protected
airspace for hazardous operations with no option to transit when
active, so changes in airspace status after flight planning would have
an impact on routing or altitude. These impacts could be reduced by
increasing the NOTAM notification time; therefore the proposed time of
designation for R-5402 and R-5403A-F is amended to ``0700-2000 daily,
by NOTAM 6 hours in advance; other times by NOTAM.''
    One commenter stated that the SUA should be limited to published
times of designation or times that can be obtained through an Automated
Flight Service Station (AFSS) or ZMP. The times of designation for the
restricted areas conforms to FAA policy and provides military users the
operational flexibility to adjust for unpredictable, yet expected
events, such as poor weather conditions or aircraft maintenance delays.
By establishing the restricted areas with a ``By NOTAM'' provision for
activations, the AFSS will receive scheduled activation times at least
6 hours in advance and can provide activation information when
requested. Additionally, ZMP can provide the most current restricted
areas status to airborne aircraft, workload permitting, as an
additional service to any requesting IFR or VFR aircraft.
    Nineteen commenters contended that local and transient pilots would
avoid the restricted areas regardless of the activation status. The FAA
understands that some pilots may opt to avoid the vicinity of this
proposed airspace complex; however, pilots have multiple ways to obtain
SUA schedule information during preflight planning and while airborne
to aid their situational awareness. Daily SUA schedules will be
available on the sua.faa.gov Web site, NOTAMs will be issued at least 6
hours prior to activating the restricted areas, and AFSS will brief SUA
NOTAMS upon request. Airborne updates will also be available through
ZMP or AFSS. Lastly, the USAF will provide a toll-free phone number for
inclusion on aeronautical charts that will enable NAS users to contact
the scheduling agency for SUA status information; similar to what is in
place for the Adirondack SUA complex in New York.
    Two commenters requested that the FAA chart an ATC frequency for
updates on the restricted areas. The FAA has frequencies listed on both
the L-14 IFR Enroute Low Altitude Chart and the Twin Cities Sectional
Aeronautical Chart already. Upon review, the VHF frequency listed on
the IFR Enroute Low Altitude Chart near where R-5402 and R-5403A-F
restricted areas will be established was found to be different than the
frequency listed on the Sectional Aeronautical Chart listing of SUA for
the existing R-5401 (which R-5402 and R-5403A-F will overlay). The FAA
is taking action to correct the discrepancy so that matching
frequencies are charted.
    Seventeen commenters stated that the NOTAM system is generally
inadequate to inform users of SUA status, and the number of components
to this restricted airspace would lead to intricate and confusing
NOTAMs. The restricted area complex is comprised of 7 individual areas
and structured to minimize complexity and maximize nonparticipant
access when not required for military use during certain phases of a
training mission. The overall complex configuration, with seven sub
areas, is a reasonable balance between efficiency, complexity, and
military requirements. The NOTAM system is designed to disseminate many
types of aeronautical information, including restricted area status
when activation is ``By NOTAM'' or outside published times of
designation. Because of the ``By NOTAM'' provision in the legal
description times of designation, activation NOTAMs for R-5402 and R-
5403A-F will be included in verbal briefings from AFSS, upon pilot
request.

The Rule

    The FAA is amending 14 CFR part 73 to expand the vertical and
lateral limits of restricted area airspace over the Camp Grafton Range
to contain hazardous non-eye safe laser training operations being
conducted by the emerging UAS mission at Grand Forks Air Force Base
(AFB); thus, transforming the range into a viable non-eye safe laser
training location. Camp Grafton Range is currently surrounded by R-
5401; however, the lateral boundaries and altitude are insufficient to
contain the laser training mission profiles and tactics flown in combat
operations today. This action supplements R-5401 by establishing
additional restricted areas, R-5402, R-5403A, R-5403B, R-5403C, R-
5403D, R-5403E, and R-5403F, to provide the vertical and lateral
tactical maneuver airspace needed for UAS target acquisition prior to
attack, and to contain the non-eye safe laser during laser target
designation training operations from medium to high altitudes.
    The restricted area R-5402 is defined by a 7 nautical mile (NM)
radius around the center of R-5401, with the northern boundary adjusted
to lie along the 47[deg]45'00'' N latitude. The restricted area
altitude is upward from 500 feet above ground level to, but not
including 10,000 feet MSL. This new restricted area provides a pathway
for the non-eye safe laser beam to transit from R-5403A, R-5403B, and
R-5403C (described below) through the existing R-5401 and onto Camp
Grafton Range.
    The restricted areas R-5403A, R-5403B, and R-5403C share the same
lateral boundaries, overlying R-5402 and layered in ascending order.
The northern boundary of these R-5403 areas, as described in the
regulatory text, share the same northern boundary as R-5402, the
47[deg]45'00'' N latitude. The

western boundary lies approximately 14 NM west of R-5402 along the
99[deg]15'00'' W longitude and the eastern boundary lies approximately
7 NM east of R-5402 along the 98[deg]15'00'' W longitude. Finally, the
southern boundary is established to remain north of the protected
airspace for V-55. The restricted area altitudes, in ascending order,
are defined upward from 8,000 feet MSL to, but not including 10,000
feet MSL for R-5403A; upward from 10,000 feet MSL to, but not including
14,000 feet MSL for R-5403B; and upward from 14,000 feet MSL to, but
not including Flight Level (FL) 180 for R-5403C. The additional lateral
and vertical dimensions provided by these restricted areas, in
conjunction with R-5401, R-5402, R-5403D, R-5403E, R-5403F, establish
the maneuvering airspace needed for UAS aircraft to practice the
tactical maneuvering and standoff target acquisition training
requirements necessary for the combat tactics and mission profiles
flown today and to contain the hazardous non-eye safe laser, when
employed, completely within restricted airspace.
    The areas R-5403D, R-5403E, and R-5403F also share the same lateral
boundaries, adjacent to and southeast of R-5403A, R-5403B, and R-5403C,
and are also layered in ascending order. The northern boundary of these
R-5403 areas, as described in the regulatory text, shares the southern
boundary of R-5403A, R-5403B, and R-5403C. The western boundary point
reaches to the 99[deg]15'00'' W longitude and the eastern boundary lies
along the 98[deg]15'00'' W longitude. Finally, the southern boundary is
established to lie along the 47[deg]15'00'' N latitude. The restricted
area altitudes, in ascending order, are defined upward from 10,000 feet
MSL to, but not including 12,000 feet MSL for R-5403D; upward from
12,000 feet MSL to, but not including 14,000 feet MSL for R-5403E; and
upward from 14,000 feet MSL to, but not including Flight Level (FL) 180
for R-5403F. The additional lateral and vertical dimensions provided by
these restricted areas, in conjunction with R-5401, R-5402, R-5403A, R-
5403B, R-5403C, and the Camp Grafton Range, establish the maneuvering
airspace, standoff target acquisition, and hazardous non-eye safe laser
employment training completely within restricted airspace, as noted
above.
    During the NPRM public comment period, it was realized that the
proposal section of the NPRM preamble described the southern boundary
for the proposed R-5403D, R-5403E, and R-5403F to lay along the
47[deg]30'00'' N latitude, in error. However, the regulatory text in
the NPRM correctly described the southern boundary for these proposed
restricted areas to lie along the 47[deg]15'00'' N latitude. This
action confirms the southern boundary for R-5403D, R-5403E, and R-5403F
is along the 47[deg]15'00'' N latitude.
    Restricted areas R-5402, R-5403A, R-5403B, R-5403C, R-5403D, R-
5403E, and R-5403F are all designated as ``joint-use'' airspace. This
means that, during periods when any of the restricted airspace areas
are not needed by the using agency for its designated purposes, the
airspace will be returned to the controlling agency for access by other
NAS users. The Minneapolis Air Route Traffic Control Center is the
controlling agency for the restricted areas.
    Lastly, to prevent confusion and conflict by establishing the new
restricted areas in an existing MOA, and having both SUA areas active
in the same volume of airspace at the same time, the Devils Lake East
MOA legal description is being amended in the NFDD. The Devils Lake
East MOA amendment will exclude R-5401, R-5402, R-5403A, R-5403B, R-
5403C, R-5403D, R-5403E, and R-5403F when the restricted areas are
active. The intent is to exclude the restricted areas in Devils Lake
East MOA individually as they are activated. This MOA amendment will
prevent airspace conflict with overlapping special use airspace areas.

Regulatory Notices and Analyses

    Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 and Executive Order 13563 direct
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 (Pub.
L. 96-354) requires agencies to analyze the economic impact of
regulatory changes on small entities. Third, the Trade Agreements Act
(Pub. L. 96-39) prohibits agencies from setting standards that create
unnecessary obstacles to the foreign commerce of the United States. In
developing U.S. standards, the 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
(Pub. L. 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.
    Department of Transportation Order DOT 2100.5 prescribes policies
and procedures for simplification, analysis, and review of regulations.
If the expected cost impact is so minimal that a proposed or final rule
does not warrant a full evaluation, this order permits that a statement
to that effect and the basis for it to be included in the preamble if a
full regulatory evaluation of the cost and benefits is not prepared.
Such a determination has been made for this final rule. The reasoning
for this determination follows:
    As presented in the discussion of comments section of this
preamble, commenters stated that there could be the following potential
adverse economic impacts from implementing this final rule: the rule
will block V-170 and V-55 and limit the use of V-169 and V-561; VFR and
local area flights will be forced to deviate around restricted areas,
increasing cost and flight time; and the 500 feet AGL floor for R-5402
will affect low level aerial operations such as crop dusters, wildlife
and agricultural surveys, and emergency medical access.
    With respect to the first potential impact, as discussed in the
preamble, the FAA acknowledges that users of Victor airways V-55, V-
170, and V-561 could be potentially affected when the restricted areas
established in this action are active; however users of V-169 will not
be affected at all. Users of V-170 from 1200 feet AGL to 8,000 feet MSL
would be affected only when R-5402 is active. The FAA's has determined
that there is an average of 4 flights per day between Devils Lake, ND,
and Jamestown, ND. Of these flights, 90 percent are general aviation
flights (many of them University of North Dakota training flights) and
10 percent are military or air taxi flights. The potential effect on
users of V-170 could be offset by several actions. One action would be
to modify V-170 by creating a slight ``dogleg'' further west of R-5402
to allow unimpeded use of V-170 below 8,000 feet MSL regardless of the
status of R-5402. The FAA estimates that this ``dogleg'' would add
about 5 miles to the length of the flight between Devils Lake and
Jamestown. Another action would be for air traffic control to either
vector the aircraft west of R-5402 or climb the aircraft to 8,000 feet
MSL to avoid R-5402. V-170 above 8,000 feet MSL, V-55, and V-561 can
still be used by the public, even during military training

operations, if the nonparticipant aircraft flies at a different
altitude than the altitudes the military is using at that time. The FAA
has determined that these adjustments will result in minimal cost to
the affected operators.
    With respect to the second potential impact, with the exception of
R-5402, the public will not be required to deviate around the
restricted areas, even during military operations, as long as the
nonparticipating aircraft flies at an altitude above or below the
altitudes that the military is using at that time. The FAA has
determined that these altitude adjustments will have a minimal effect
on cost.
    With respect to the third potential impact, the USAF has agreed to
implement scheduling coordination measures for R-5402 that will
accommodate access by local farming, ranching, survey, and medical
aviation interests. Further, when any of the restricted areas are not
needed by the USAF for its intended purposes, the airspace will be
returned to the controlling agency, Minneapolis Air Route Traffic
Control Center, for access by other NAS users; providing considerable
time for these interests to perform most of their aviation activities
in a timely manner. The FAA has determined that these potential
disruptions in public aviation will have a minimal effect on cost.
    The FAA has, therefore, determined that this final rule is not a
``significant regulatory action'' as defined in section 3(f) of
Executive Order 12866, and is not ``significant'' as defined in DOT's
Regulatory Policies and Procedures.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the businesses, organizations, and governmental jurisdictions
subject to regulation. To achieve this principle, agencies are required
to solicit and consider flexible regulatory proposals and to explain
the rationale for their actions to assure that such proposals are given
serious consideration.'' 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 rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
    However, if an agency determines that a rule is not expected to
have a significant economic impact on a substantial number of small
entities, section 605(b) of the RFA 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 received two comments from small business owners and a
comment from the North Dakota Agricultural Aviation Association
(NDAAA), representing agricultural aviation operators. The comments
from the business owners expressed concerns about the availability of
airspace and that they would be diverted from their normal flight
plans, thereby increasing their costs. As previously stated in this
preamble, however, these routes will not be closed even during military
operations--they can be flown by nonparticipant aircraft so long as
those aircraft are not at the altitudes being used by the military. The
NDAAA comment that agricultural aircraft are frequently ferried at
altitudes greater than 500 feet applies only to those aircraft in R-
5402--not in any of the other areas. As previously noted, the agreement
with the USAF and the fact that there are no restrictions in R-5402
when it is not being used by the military will minimize the potential
economic impact to agricultural aviation operations in this airspace.
    While the FAA believes that one air taxi operator, a few small
business operators, and a few agricultural aviation operators
constitute a substantial number of small entities, based on the
previous analysis, the FAA determined that the final rule will have a
minimal economic impact.
    Therefore, as the acting FAA Administrator, I certify that this
rule will not have a significant economic impact on a substantial
number of small entities.

International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such the protection of safety, and does not operate in a
manner that excludes imports that meet this objective. 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.

Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 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
(in 1995 dollars) 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 $143.1 million in lieu of $100
million. This final rule does not contain such a mandate; therefore,
the requirements of Title II of the Act do not apply.

Environmental Review

    Pursuant to Section 102(2) of the National Environmental Policy Act
of 1969 (NEPA), the Council on Environmental Quality (CEQ) regulations
implementing NEPA (40 CFR parts 1500-1508), and other applicable law,
the USAF prepared and published The BRAC Beddown and Flight Operations
of Remotely Piloted Aircraft at Grand Forks Air Force Base, North
Dakota'' dated July 2010 (hereinafter the FEIS) that analyzed the
potential for environmental impacts associated with the proposed
creation of Restricted Areas R-5402, R-5403A, R-5403B, R-5403C, R-
5403D, R-5403E, and R-5403F. In September 2010, the USAF issued a
Record of Decision based on the results of the FEIS. In accordance with
applicable CEQ regulations (40 CFR 1501.6) and the Memorandum of
Understanding (MOU) between FAA and Department of Defense (DOD) dated
October 2005, the FAA was a cooperating agency on the FEIS. The FAA has
conducted an independent review of the FEIS and found that it is an
adequate statement. Pursuant to 40 CFR 1506.3(a) and (c), the FAA is
adopting the portions of the FEIS for this action that support the
establishment of the above named restricted areas. The FAA has
documented its partial adoption in a separate document entitled
``Partial Adoption of Final EIS and Record of

Decision for the Establishment of Restricted Areas R-5402 and 5403.''
This final rule, which establishes restricted areas R-5402, R-5403A, R-
5403B, R-5403C, R-5403D, R-5403E, and R-5403F, will not result in
significant environmental impacts. A copy of the FAA Partial Adoption
of FEIS and ROD has been placed in the public docket for this
rulemaking and is incorporated by reference.

FAA Authority

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority.
    This rulemaking is promulgated under the authority described in
Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the
FAA is charged with prescribing regulations to assign the use of the
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it establishes restricted area airspace at Camp Grafton Range, near
Devils Lake, ND, to enhance safety and accommodate essential military
training.

List of Subjects in 14 CFR Part 73

    Airspace, Prohibited areas, Restricted areas.

The Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 73 as follows:

PART 73--SPECIAL USE AIRSPACE

0
1. The authority citation for part 73 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854,
24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  73.54  [Amended]

0
2. Section 73.54 is amended as follows:
* * * * *

R-5402 Devils Lake, ND [New]

    Boundaries. Beginning at lat. 47[deg]45'00'' N., long.
98[deg]47'19'' W.; to lat. 47[deg]45'00'' N., long. 98[deg]31'25''
W.; then clockwise on a 7 NM arc centered on lat. 47[deg]40'31'' N.,
long. 98[deg]39'22'' W.; to the point of beginning, excluding the
airspace within R-5401 when active, and R-5403A when active.
    Designated altitudes. 500 feet AGL to, but not including, 10,000
feet MSL.
    Time of designation. 0700-2000 daily, by NOTAM 6 hours in
advance; other times by NOTAM.
    Controlling agency. FAA, Minneapolis ARTCC.
    Using agency. U.S. Air Force, 119th Operations Support Squadron,
Hector International Airport, Fargo, ND.
* * * * *

R-5403A Devils Lake, ND [New]

    Boundaries. Beginning at lat. 47[deg]45'00'' N., long.
99[deg]15'00'' W.; to lat. 47[deg]45'00'' N., long. 98[deg]15'00''
W.; to lat. 47[deg]35'39'' N., long. 98[deg]15'00'' W.; to lat.
47[deg]15'00'' N., long. 99[deg]15'00'' W.; to the point of
beginning.
    Designated altitudes. 8,000 feet MSL to, but not including,
10,000 feet MSL.
    Time of designation. 0700-2000 daily, by NOTAM 6 hours in
advance; other times by NOTAM.
    Controlling agency. FAA, Minneapolis ARTCC.
    Using agency. U.S. Air Force, 119th Operations Support Squadron,
Hector International Airport, Fargo, ND.

R-5403B Devils Lake, ND [New]

    Boundaries. Beginning at lat. 47[deg]45'00'' N., long.
99[deg]15'00'' W.; to lat. 47[deg]45'00'' N., long. 98[deg]15'00''
W.; to lat. 47[deg]35'39'' N., long. 98[deg]15'00'' W.; to lat.
47[deg]15'00'' N., long. 99[deg]15'00'' W.; to the point of
beginning.
    Designated altitudes. 10,000 feet MSL to, but not including,
14,000 feet MSL.
    Time of designation. 0700-2000 daily, by NOTAM 6 hours in
advance; other times by NOTAM.
    Controlling agency. FAA, Minneapolis ARTCC.
    Using agency. U.S. Air Force, 119th Operations Support Squadron,
Hector International Airport, Fargo, ND.

R-5403C Devils Lake, ND [New]

    Boundaries. Beginning at lat. 47[deg]45'00'' N., long.
99[deg]15'00'' W.; to lat. 47[deg]45'00'' N., long. 98[deg]15'00''
W.; to lat. 47[deg]35'39'' N., long. 98[deg]15'00'' W.; to lat.
47[deg]15'00'' N., long. 99[deg]15'00'' W.; to the point of
beginning.
    Designated altitudes. 14,000 feet MSL to, but not including, FL
180.
    Time of designation. 0700-2000 daily, by NOTAM 6 hours in
advance; other times by NOTAM.
    Controlling agency. FAA, Minneapolis ARTCC.
    Using agency. U.S. Air Force, 119th Operations Support Squadron,
Hector International Airport, Fargo, ND.

R-5403D Devils Lake, ND [New]

    Boundaries. Beginning at lat. 47[deg]35'39'' N., long.
98[deg]15'00'' W.; to lat. 47[deg]15'00'' N., long. 98[deg]15'00''
W.; to lat. 47[deg]15'00'' N., long. 99[deg]15'00'' W.; to the point
of beginning.
    Designated altitudes. 10,000 feet MSL to, but not including,
12,000 feet MSL.
    Time of designation. 0700-2000 daily, by NOTAM 6 hours in
advance; other times by NOTAM.
    Controlling agency. FAA, Minneapolis ARTCC.
    Using agency. U.S. Air Force, 119th Operations Support Squadron,
Hector International Airport, Fargo, ND.

R-5403E Devils Lake, ND [New]

    Boundaries. Beginning at lat. 47[deg]35'39'' N., long.
98[deg]15'00'' W.; to lat. 47[deg]15'00'' N., long. 98[deg]15'00''
W.; to lat. 47[deg]15'00'' N., long. 99[deg]15'00'' W.; to the point
of beginning.
    Designated altitudes. 12,000 feet MSL to, but not including,
14,000 feet MSL.
    Time of designation. 0700-2000 daily, by NOTAM 6 hours in
advance; other times by NOTAM.
    Controlling agency. FAA, Minneapolis ARTCC.
    Using agency. U.S. Air Force, 119th Operations Support Squadron,
Hector International Airport, Fargo, ND.

R-5403F Devils Lake, ND [New]

    Boundaries. Beginning at lat. 47[deg]35'39'' N., long.
98[deg]15'00'' W.; to lat. 47[deg]15'00'' N., long. 98[deg]15'00''
W.; to lat. 47[deg]15'00'' N., long. 99[deg]15'00'' W.; to the point
of beginning.
    Designated altitudes. 14,000 feet MSL to, but not including, FL
180.
    Time of designation. 0700-2000 daily, by NOTAM 6 hours in
advance; other times by NOTAM.
    Controlling agency. FAA, Minneapolis ARTCC.
    Using agency. U.S. Air Force, 119th Operations Support Squadron,
Hector International Airport, Fargo, ND.

    Issued in Washington, DC, on June 14, 2012.
Paul Gallant,
Acting Manager, Airspace, Regulations and ATC Procedures Group.
[FR Doc. 2012-15008 Filed 6-19-12; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register: December 21, 2009 (Volume 74, Number 243)]
[Proposed Rules]
[Page 67836-67837]
[DOCID:fr21de09-16]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2009-1101; Airspace Docket No. 09-ANM-24]

Proposed Modification of Class E Airspace; West Yellowstone, MT

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: This action proposes to modify Class E airspace at Yellowstone
Airport, West Yellowstone, MT, to accommodate aircraft using a new Area
Navigation (RNAV) Global Positioning System (GPS) Standard Instrument
Approach Procedure (SIAP) at Yellowstone Airport, West Yellowstone, MT.
The FAA is proposing this action to enhance the safety and management
of instrument flight rules (IFR) operations at the airport.

DATES: Comments must be received on or before February 4, 2010.

ADDRESSES: Send comments on this proposal to the U.S. Department of
Transportation, Docket Operations, M-30, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, 20590.
Telephone<PHONE_NUMBER>. You must identify FAA Docket No. FAA-2009-
1101; Airspace Docket No. 09-ANM-24, at the beginning of your comments.
You may also submit comments through the Internet at http://
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Eldon Taylor, Federal Aviation
Administration, Operations Support Group, Western Service Center, 1601
Lind Avenue, SW., Renton, WA 98057; telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments, as
they may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
    Communications should identify both docket numbers (FAA Docket No.
FAA 2009-1101 and Airspace Docket No. 09-ANM-24) and be submitted in
triplicate to the Docket Management System (see ADDRESSES section for
address and phone number). You may also submit comments through the
Internet at http://www.regulations.gov.
    Commenters wishing the FAA to acknowledge receipt of their comments
on this action must submit with those comments a self-addressed stamped
postcard on which the following statement is made: ``Comments to FAA
Docket No. FAA-2009-1101 and Airspace Docket No. 09-ANM-24''. The
postcard will be date/time stamped and returned to the commenter.
    All communications received on or before the specified closing date
for comments will be considered before taking action on the proposed
rule. The proposal contained in this action may be changed in light of
comments received. All comments submitted will be available for
examination in the public docket both before and after the closing date
for comments. A report summarizing each substantive public contact with
FAA personnel concerned with this rulemaking will be filed in the
docket.

Availability of NPRM's

    An electronic copy of this document may be downloaded through the
Internet at http://www.regulations.gov. Recently published rulemaking
documents can also be accessed through the FAA's Web page at http://
www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_
amendments/.
    You may review the public docket containing the proposal, any
comments received, and any final disposition in person in the Dockets
Office (see the ADDRESSES section for the address and

phone number) between 9 a.m. and 5 p.m., Monday through Friday, except
federal holidays. An informal docket may also be examined during normal
business hours at the Northwest Mountain Regional Office of the Federal
Aviation Administration, Air Traffic Organization, Western Service
Center, Operations Support Group, 1601 Lind Avenue, SW., Renton, WA
98057.
    Persons interested in being placed on a mailing list for future
NPRM's should contact the FAA's Office of Rulemaking,<PHONE_NUMBER>,
for a copy of Advisory Circular No. 11-2A, Notice of Proposed
Rulemaking Distribution System, which describes the application
procedure.

The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal
Regulations (14 CFR) part 71 to modify Class E airspace at Yellowstone
Airport, West Yellowstone, MT. Additional controlled airspace extending
upward from 700 feet or more above the surface is necessary to
accommodate aircraft using the new RNAV (GPS) SIAPs at Yellowstone
Airport. This action would enhance the safety and management of IFR
operations at the airport.
    Class E airspace designations are published in paragraph 6005, of
FAA Order 7400.9T, signed August 27, 2009, and effective September 15,
2009, which is incorporated by reference in 14 CFR 71.1. The Class E
airspace designation listed in this document will be published
subsequently in this Order.
    The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this proposed regulation; (1) is not a ``significant
regulatory action'' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3) does not warrant preparation of a
regulatory evaluation as the anticipated impact is so minimal. Since
this is a routine matter that will only affect air traffic procedures
and air navigation, it is certified that this proposed rule, when
promulgated, would not have a significant economic impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act.
    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes
the authority for the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in
Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the
FAA is charged with prescribing regulations to assign the use of the
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it would establish additional controlled airspace at Yellowstone
Airport, West Yellowstone, MT.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal
Aviation Administration proposes to amend 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

    1. The authority citation for 14 CFR part 71 continues to read as
follows:

    Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

    2. The incorporation by reference in 14 CFR 71.1 of the FAA Order
7400.9T, Airspace Designations and Reporting Points, signed August 27,
2009, and effective September 15, 2009 is amended as follows:

Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.

* * * * *

ANM MT E5 West Yellowstone, MT

West Yellowstone, Yellowstone Airport, MT
    (Lat. 44[deg]41'18'' N., long. 111[deg]07'04'' W.)

    That airspace extending upward from 700 feet above the surface
within 4.3 miles west and 8.3 miles east of the 026[deg] and
206[deg] bearings from Yellowstone Airport extending from 8.3 miles
northeast to 23.3 miles southwest of Yellowstone Airport; that
airspace extending upward from 1,200 feet above the surface within
4.3 miles each side of the 209[deg] bearing from lat. 44[deg]34'32''
N., long. 111[deg]11'51'' W., extending to 36.2 miles southwest of
the airport, and within 5 miles north and 4.3 miles south of the
304[deg] bearing from lat. 44[deg]34'32'' N., long. 111[deg]11'51''
W. extending to the east edge of V-343; that airspace extending
upward from 10,700 feet MSL within a 25.3-mile radius of lat.
44[deg]34'32'' N., long. 111[deg]11'51'' W. extending clockwise from
the 081[deg] bearing from lat. 44[deg]34'32'' N., long.
111[deg]11'51'' W. to 4.3 miles east of the 236[deg] bearing from
lat. 44[deg]34'32'' N., long. 111[deg]11'51'' W., and within 4.3
miles each side of the 236[deg] bearing from lat. 44[deg]34'32'' N.,
long. 111[deg]11'51'' W., extending to 43.5 miles southwest of the
airport; that airspace extending upward from 10,700 feet MSL within
9 miles south and 5 miles north of the 304[deg] bearing from lat.
44[deg]34'32'' N., long. 111[deg]11'51'' W., extending to the east
edge of V-343; that airspace extending upward from 12,000 feet MSL
within a 30.5-mile radius of lat. 44[deg]34'32'' N., long.
111[deg]11'51'' W. extending clockwise from the 026[deg] bearing
from lat. 44[deg]34'32'' N., long. 111[deg]11'51'' W. to the
081[deg] bearing from lat. 44[deg]34'32'' N., long. 111[deg]11'51''
W.; that airspace extending upward from 12,500 feet MSL within 4.3
miles each side of the 293[deg], 329[deg] and 043[deg] bearing from
lat. 45[deg]00'19'' N., long. 110[deg]53'49'' W., extending to 29.18
miles west to 35.66 miles northwest to 58.99 miles north, and within
4.3 miles each side of the 312[deg] bearing from lat. 44[deg]31'10''
N., long. 111[deg]14'03'' W., extending to 29.45 miles northwest;
that airspace extending upward from 13,000 feet MSL within a 30.5-
mile radius of lat. 44[deg]34'32'' N., long. 111[deg]11'51'' W.,
extending clockwise from the 313[deg] bearing to the 026[deg]
bearing from lat. 44[deg]34'32'' N., long. 111[deg]11'51'' W.,
excluding that portion that overlies V-298 and V-343. This Class E
airspace area shall be effective during the specific dates and times
established in advance by a Notice to Airmen. The effective date and
time will thereafter be continuously published in the Airport/
Facility Directory.
* * * * *

    Issued in Seattle, Washington, on December 10, 2009.
H. Steve Karnes,
Acting Manager, Operations Support Group, Western Service Center.
[FR Doc. E9-30289 Filed 12-18-09; 8:45 am]

BILLING CODE 4910-13-P


[Federal Register: November 26, 2007 (Volume 72, Number 226)]
[Notices]
[Page 66021-66023]
[DOCID:fr26no07-90]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-0056]

Hours of Service of Drivers: Dart Transit Company Application for
Exemption

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of application for exemption; request for comments.

-----------------------------------------------------------------------

SUMMARY: FMCSA has received from Dart Transit Company (Dart) an
application for an exemption from certain commercial motor vehicle
driver hours-of-service provisions of the Federal Motor Carrier Safety
Regulations. Dart requests an exemption for 200 of its owner-operators
from the prohibition against driving after the 14th hour of coming on-
duty, following 10 consecutive hours off-duty, and the requirement that
drivers using two sleeper-berth periods to accumulate the equivalent of
10 consecutive hours off-duty spend at least 8 but less than 10
consecutive hours in the sleeper-berth during one of those two periods.
As requested by Dart, exempt drivers would be allowed to drive up to 11
hours within a 24-hour period between 3 a.m. one day and 3 a.m. the
next day, be required to complete a minimum of 6 consecutive off-duty
or sleeper-berth hours between 9 p.m. and 9 a.m., and complete
additional periods of off-duty or sleeper-berth time to total at least
10 hours of rest within any ``floating'' 24-hour period. Dart would
implement a detailed, performance-based Fatigue Risk Management System
to help prevent overall driver fatigue, and require the use of
Electronic On-Board Recorders. Dart believes the terms and conditions
of the exemption would ensure that the level of safety will be
equivalent to or greater than the level of safety that would be
obtained absent the exemption. FMCSA requests public comment on Dart's
application for exemption.

DATES: Comments must be received on or before December 26, 2007.

ADDRESSES: You may submit comments identified by Federal Docket
Management System Number FMCSA-2007-0056 by any of the following
methods:
     Web site: http://www.regulations.gov. Follow the instructions for

submitting comments on the Federal electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, U.S. Department of
Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington,
DC 20590-0001.
     Hand Delivery: Ground Floor, Room W12-140, DOT Building,
1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m.
e.t., Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the Agency name and
docket number. For detailed instructions on submitting comments and
additional information on the exemption process, see the Public
Participation heading below. Note that all comments received will be
posted without change to http://www.regulations.gov, including any

personal information provided. Please see the Privacy Act heading
below.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to

the ground floor, room W12-140, DOT Building, New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m. e.t., Monday through Friday,
except Federal holidays.
    Privacy Act: 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 published on
April 11, 2000 (65 FR 19477-78) or you may visit http://www.regulations.gov
.

    Public participation: The http://www.regulations.gov Web site is

generally available 24 hours each day, 365 days each year. You can get
electronic submission and retrieval help and guidelines under the
``help'' section of the http://www.regulations.gov Web site and also at the DOT's http://docketsinfo.dot.gov Web site. If you want us to notify

you that we received your comments, please include a self-addressed,
stamped envelope or postcard or print the acknowledgement page that
appears after submitting comments online.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and
Carrier Operations Division; Office of Bus and Truck Standards and
Operations; Telephone:<PHONE_NUMBER>. E-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Background

    Section 4007 of the Transportation Equity Act for the 21st Century
(Pub. L. 105-178, 112 Stat. 107, June 9, 1998) amended 49 U.S.C. 31315
and 31136(e) to provide authority to grant exemptions from motor
carrier safety regulations. Under its regulations, the Federal Motor
Carrier Safety Administration (FMCSA) must publish a notice of each
exemption application in the Federal Register (49 CFR 381.315(a)). The
Agency must provide the public an opportunity to inspect the
information relevant to the application, including the conducting of
any safety analyses. The Agency must also provide an opportunity for
public comment on the application.
    The Agency then reviews the safety analyses and the public
comments, and determines whether granting the exemption would likely
achieve a level of safety equivalent to, or greater than, the level
that would be achieved by the regulation (49 CFR 381.305). The decision
of the Agency must be published in the Federal Register (49 CFR
381.315(b)) with the reason for denying or, in the alternative, the
specific person or class of persons receiving the exemption, and the
regulatory provision or provisions from which exemption is granted. The
notice must also specify the effective period of the exemption (up to 2
years), and explain the terms and conditions of the exemption. The
exemption may be renewed (49 CFR 381.300(b)).

Application for Exemption

    Dart Transit Company (Dart) is a for-hire motor carrier
headquartered in Eagan, Minnesota. Dart and its affiliated companies
have provided truckload service throughout the United States and Canada
for over 70 years. It employs over 2,500 owner-operators with nearly
the same number of power units.
    Dart requested an exemption to allow 200 long-haul and regional
independent owner-operators--whom they refer to as ``Exempt Operators''
(EOs)--to be exempt from certain hours-of-service (HOS) provisions in
49 CFR part 395 of the Federal Motor Carrier Safety Regulations. There
would be turnover within the exempt group of drivers; therefore, the
exemption request is not for 200 specific drivers, but for a pool of up
to 200 EOs to participate at any given time. None of these EOs would
operate as team drivers.
    Dart states that its exemption request is based on the results of a
fatigue-risk assessment of its operation, which indicated that the
current HOS ``14-hour rule'' and sleeper-berth (S/B) provisions
interfere with Dart drivers'' ability to obtain good-quality nocturnal
sleep. Dart acknowledges that provisions of its exemption request ``* *
* may not be acceptable or feasible for other trucking companies.''
Dart is specifically requesting an exemption from the following:
     The ``14-hour rule'' [49 CFR 395.3(a)(2)] which prohibits
drivers of property-carrying commercial motor vehicles (CMVs) from
driving after the 14th hour after coming on duty. Under the exemption,
Dart would restrict its EOs to no more than 11 hours of driving time
between 3 a.m. of one day and 3 a.m. the following day; drivers would
not be required to complete the driving time within 14 consecutive
hours of the time they begin work.
     The S/B provision [49 CFR 395.1(g)(1)(ii)(A)(1) and (2)]
requires drivers of property-carrying CMVs to have a period of at least
8 but less than 10 consecutive hours in a S/B, and a separate period of
at least 2 but less than 10 consecutive hours either in the S/B, off
duty, or any combination thereof if they are using an S/B to accumulate
the equivalent of 10 consecutive hours off duty. Dart's exemption
request would not require EOs to use an S/B, but would require them to
spend a minimum of 6 consecutive off-duty or S/B hours between 9 p.m.
of one day and 9 a.m. of the following day, rather than requiring 10
consecutive hours of off-duty time with the time of day unspecified.
Dart notes in its exemption application that the 6-hour ``nocturnal
rest rule'' is a minimum requirement, as drivers will often sleep 7-8
hours, especially when the core sleep requirement is at the preferred
circadian phase.
     Dart's EOs would be required to take additional periods,
either off duty or in the S/B, at times most conducive to getting a
good-quality nap or sleep during their rest breaks, so that they would
have a total of at least 10 hours of opportunity for rest during any
consecutive 24-hour period. This 24-hour period would not be on a
midnight to midnight or other specified cycle--it could be for any 24
consecutive-hour time period (i.e., it may be referred to as a
``floating'' 24-hour period).
    Briefly summarized, the ``key'' provisions of the Dart exemption
application request are as follows:
     The EO will have a minimum of 10 total hours of off-duty
time for any ``floating'' 24-hour period.
     The EO will be limited to a maximum of 11 hours of driving
time in the 24-hour period from 3 a.m. one day to 3 a.m. the following
day.
     The EO will not have to complete his or her 11 hours of
driving time within 14 consecutive hours of coming on-duty.
     The EO will be required to take a minimum off-duty period
of at least 6 consecutive hours between 9 p.m. one day to 9 a.m. the
following day. This 6-hour minimum period could be spent off-duty, in
the S/B, or any combination of both.
    Dart states that while operating under the current HOS rules, it
has found that the two specific rule provisions--the ``14-hour rule''
and ``split S/B rule''--frequently interfere with the ability of its
over-the-road drivers to obtain good-quality sleep and deliver
shipments in a safe and timely fashion. It believes the requirement to
not drive after the 14th hour of coming on-duty on many occasions
``penalizes'' drivers who stop to take a nap or a sleep period of less
than 8 hours, even if this is at night and it is the most sensible
thing, according to Dart, to do to reduce the fatigue risk. Dart
believes that drivers are given an ``unwise incentive'' under the
current rules to continue driving because any time spent sleeping after
coming on duty counts against their 14-hour duty period--except a
minimum of at least 8 hours in the S/B--and may prevent them from
delivering their shipment on schedule.
    Dart says that the current split S/B rule encourages drivers who
have been on duty at night to attempt to obtain all or most of their
sleep during the daytime hours when they are least likely to obtain
good-quality or long-duration sleep. Dart believes that not only does
strict compliance with these two provisions interfere with sleep
planning, but also has an effect on which shipments a driver can
deliver in a timely fashion.

    For more details on Dart's request, a copy of their exemption
application is included in the docket identified at the beginning of
this notice. The application contains details on actual business trip
scenarios and other relevant information in support of the application.
Copies of all scientific reports and documents submitted by Dart in
support of its application for an exemption are also included in the
docket for this notice.
    Dart states that to provide a superior level of safety, it will
implement a program referred to as its Fatigue Risk Management System
(FRMS), which is an integral part of Dart's safety management system
that ensures that the risks of driver loss of alertness, inattention
and chronic fatigue are minimized using scientifically validated
methods. Every participating driver would be subject to monitoring and
correcting his or her fatigue risk using this model, and there would be
advanced fatigue mitigation education for every exempt driver and the
fleet managers, sleep disorder screening, and the reporting of all
qualifying safety events to FMCSA. The purpose of the FRMS is to
provide a protective environment around the EOs that will ensure there
are no risks as the restrictions provided by the ``14-hour rule'' and
``split S/B rule'' would be withdrawn.
    Dart's FRMS would include the following four core elements:
     A system for duty-rest scheduling which provides for
improved sleep opportunities when compared to the current regulations.
     A comprehensive education program for EOs and managers
that would educate, test, and certify them for comprehension in the
following areas: (1) Basic sleep and fatigue physiology; (2) managing
an alert trucking lifestyle; (3) rules of the exemption, including
electronic logging; and (4) fatigue risk scores and how to improve the
score.
     A set of standards for the EO's work and sleep
environment; and
     Procedures to screen for fitness for duty related to sleep
disorders.
    Dart's four core components of fatigue risk management are
supported by a management structure that provides for the following:
     Oversight of the FRMS by a Dart Fatigue Risk Management
Steering Committee.
     A Fatigue Risk Management Policy that provides a
comprehensive set of guidelines for promoting the alertness, sleep and
health of the EOs.
     A daily process of monitoring and measuring fatigue risk
and the safety of the EOs, which would include electronic on-board
recorders (EOBRs) on all units using the exemption.
     The daily analysis of driver fatigue risk using commercial
fatigue-risk software.
     The daily transmission of a ``fatigue risk score''
transmitted to each EO and fleet manager.
     The regular assessment of progress in minimizing fatigue-
risk scores.
     Safety records maintenance.
     Monthly reporting of fatigue risk management and safety
performance to the FMCSA.
    Conversely, Dart believes that the potential impacts of not
obtaining the exemption include the following:
     The ability to improve the alertness and safety of its
drivers would be greatly limited because implementing the minimum 6
hours of continuous nocturnal rest without the ``14 hour clock''
exemption would make the recruitment of safe drivers unfeasible, and
the satisfaction of customer delivery requirements impossible;
     The company would be unlikely to consider the introduction
of EOBRs because it would be difficult to recruit quality owner-
operators if it required EOs to install and be monitored by EOBRs;
     Dart's drivers would on occasion find it economically
disadvantageous to stop for a required 6 overnight hours, and therefore
have to operate without sleep overnight and risk impaired sleep during
daytime rest in order to comply with the current HOS rules; and
     Dart would not be able to accept certain shipments, which
could be safely delivered by alert drivers, from its customers only
because Dart would be in violation of the ``14-hour clock'' and ``split
S/B rule.''

Request for Comments

    In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA
requests public comment on Dart's application for an exemption from the
``14-hour rule'' and split S/B provisions in 49 CFR Part 395. The
Agency will consider all comments received by close of business on
December 26, 2007. Comments will be available for examination in the
docket at the location listed under the ADDRESSES section of this
notice. The Agency will file comments received after the comment
closing date in the public docket, and will consider them to the extent
practicable.

    Issued on: November 9, 2007.
 Larry W. Minor,
Associate Administrator for Policy and Program Development.
[FR Doc. E7-22881 Filed 11-23-07; 8:45 am]

BILLING CODE 4910-EX-P