Proposed marine sanctuary overflight rule a ‘slippery slope’

December 15, 2010

A proposed rule by the National Oceanic and Atmospheric Administration seeking to restrict low-altitude flights over four national marine sanctuaries appears to usurp FAA authority and set a dangerous precedent for future regulation of the National Airspace System.

Because the proposed rule could have a substantial impact on general aviation, the current 30-day comment period, which expires Jan. 7, 2011, does not provide enough time for thorough study and analysis of the notice of proposed rulemaking (NPRM), AOPA said in a letter requesting a 60-day extension.

The FAA has sole authority over the National Airspace System. Minimum altitude for overflying marine sanctuaries is currently a recommendation—not a restriction—in FAA Advisory Circular AC 91-36D. The proposed rule would give the NOAA unprecedented authority to regulate how and where pilots operate their aircraft. The sanctuaries included in the proposed rule are Channel Islands, Monterey Bay, and Gulf of the Farallones National Marine sanctuaries in California; and the Olympic Coast National Marine Sanctuary in the state of Washington.

The proposed rule notes differences in the current low-altitude flight procedures at the sanctuaries, and proposes a uniform approach.

“With this proposed rule, NOAA seeks to standardize the application of these restrictions by adopting a single, consistent and clearer regulatory approach regarding overflights in these sanctuaries. As proposed, the regulations for each sanctuary would establish a rebuttable presumption that flying motorized aircraft at less than established altitudes within any of the existing zones results in the disturbance of marine mammals or seabirds. This would mean that if a pilot were observed flying below the established altitude within a designated zone, it would be presumed that marine mammals or seabirds had been disturbed and that a violation of sanctuary regulations had been committed,” said the NPRM.

AOPA requested the additional time to discuss the proposal with the FAA, analyze its impact, and submit comments to the NOAA.

“This is a precedent-setting proposal that would take authority away from the FAA and give it to NOAA. For this reason, it is very significant to our members. It is potentially a very slippery slope. The rule doesn't specifically outline what penalties pilots will face—civil penalties or enforcement action against a pilot certificate,” said Tom Kramer, AOPA manager of air traffic services.

Dan Namowitz

Dan Namowitz | Aviation Writer

Dan Namowitz is an aviation writer and flight instructor. He has been a pilot since 1985 and an instructor since 1990.