February 2, 2012
By Jim Moore
Pilots could face stiff fines—up to six figures—for violating new overflight regulations that place the National Airspace System on a slippery slope. The FAA has ceded to another federal agency—the National Oceanic and Atmospheric Administration—authority to enforce what amount to new airspace restrictions.
This precedent-setting regulation takes effect Feb. 27—months, at minimum, before the overflight regulations could appear on any aeronautical chart, leaving pilots virtually in the dark. The final rule is virtually unchanged from the original proposed rule, which AOPA opposed.
While the association supports the basic intent of “flying friendly” and compliance with FAA Advisory Circular 91-36D, “ Visual Flight Rules Flight Near Noise Sensitive Areas,” the NOAA regulation would restrict overflights even further and impose consequences if a pilot does not comply. The rule is meant to protect wildlife in the 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 final rule, as written, puts even conscientious pilots who obey the rules at risk of being presumed guilty of disturbing wildlife.
The regulation creates a presumption that any pilot who flies below 1,000 feet msl in the vicinity of one of the protected sanctuaries (or below 2,000 feet msl in some areas) has disturbed the wildlife there. Penalties will be based on observations from the ground by personnel who do not necessarily have any aviation knowledge, training, or specialized equipment to make accurate calculations of an aircraft’s altitude.
“It’s absolutely not possible to accurately determine a pilot’s altitude while observing an overflight,” said AOPA Manager of Airspace and Modernization Tom Kramer. “As I sit in my back yard and look at airplanes, I don’t know what altitude they’re at.”
Once NOAA advises that an operator has violated “their airspace,” pilots would be forced to prove wildlife was not disturbed to escape sanction.
“How can you possibly do that?” Kramer said, noting potential fines could range up to $100,000. However, NOAA action does not mean the FAA will be taking any certificate or enforcement action.
The FAA did not oppose the (unprecedented) move by NOAA to regulate overflights, and AOPA remains very concerned that other agencies will follow suit. “It’s a bad precedent,” Kramer said.
AOPA retained counsel and met with NOAA and FAA officials to detail several concerns, including impacts on arrivals and departures at three coastal Washington airports in close proximity to a sanctuary: Copalis State, Quillayute, and Sekiu.
NOAA agreed in the final rule that flight operations in and out of Copalis could be impacted by the regulation, but stated that because the regulatory change required to preserve access to Copalis “is beyond the scope of this action, NOAA will consider this in a separate rulemaking action, subject to review and comment.”
NOAA also stated that the agency has worked closely with the FAA to ensure that regulations do not infringe on the FAA’s authority to regulate airspace; the FAA concurred, stating that NOAA had authority to regulate the wildlife sanctuaries.
The FAA must now decide how the airspace will be depicted on aeronautical charts. Meanwhile, pilots will go months—possibly several charting cycles—before being able to see clearly the exact boundaries of the sanctuaries in question.
AOPA has alerted and been asking the FAA and NOAA for a graphic that depicts the current boundaries of the sanctuaries detailed in the rule. The real kicker is that pilots have no idea that the sanctuary boundaries depicted on the current chart and those detailed in the NOAA final rule do not match. AOPA will continue to keep members updated and provide a graphic as soon as NOAA and the FAA respond.
AOPA Online Associate Editor Jim Moore joined AOPA in 2011 and is an instrument-rated private pilot who enjoys competition aerobatics.
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