A proposed rule that would impose penalties on pilots presumed to have committed airspace violations when overflying marine wildlife sanctuaries usurps the FAA’s authority to regulate airspace, improperly creates a new class of airspace restrictions, and would make it difficult or impossible for a pilot to defend against an alleged violation, AOPA said in formal comments on the proposal.
AOPA has consulted legal counsel, met with the National Oceanic and Atmospheric Administration (NOAA), and requested a position statement from the FAA on the proposed rule that seeks to sidestep the normal rulemaking process and remove authority to regulate airspace from the FAA.
As AOPA reported Dec. 15, the NOAA has proposed taking on unprecedented authority to restrict low-altitude flights over 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.
AOPA has pointed out that the rule offers no workable method of notifying pilots of proposed nonstandard airspace restrictions. The proposal also would enact the troubling presumption that any pilot observed flying lower than the established altitude within a particular zone had violated sanctuary regulations.
The minimum altitude for overflying marine sanctuaries is currently a recommendation—not a restriction—according to FAA Advisory Circular AC 91-36D.
“If the FAA permits other agencies to regulate airspace, to what end will pilots be expected to know, understand, and follow regulations of countless other agencies? Such an action would create a patchwork quilt of overlapping and potentially contradictory regulations from Federal, state, and local agencies,” wrote Heidi Williams, AOPA senior director of airspace and modernization, in a Feb. 1 letter requesting that the FAA clarify its position on apparent conflicts of airspace jurisdiction in the NOAA proposal.
Williams also pointed out that no rulemaking process to create restricted airspace has been initiated by the FAA in the designated areas, a necessary step in the process of changing the procedural requirements for airspace use and making pilots familiar with them. The FAA “has sole authority to regulate the use of the National Air Space System,” she wrote.
Williams questioned NOAA’s inappropriate proposed use of aeronautical charts—and possibly new chart symbols—to convey information about the restrictions, especially at a time when the FAA and industry stakeholders are working to reduce chart clutter.
AOPA also submitted formal comments on the proposed rule to the Office of National Marine Sanctuaries.
“The proposed rulemaking attempts to modify restrictions in airspace that currently is not considered “restricted airspace,” usurping the FAA’s sole authority to regulate airspace. Prior to the establishment or charting of any additional restricted airspace, NOAA must request and pursue ‘restricted airspace’ through the FAA’s own rulemaking process,” wrote Tom Kramer, AOPA manager of air traffic services.
AOPA requested in the formal comments that, should a final rule emerge from the NOAA proposal, it would provide exemptions within five nautical miles of airports in the affected airspace for purposes of taking off and landing at those airports. AOPA called for an additional exemption for search-and-rescue missions, which must sometimes be flown at altitudes of 500 to 1,000 feet above ground level to perform their lifesaving work.
AOPA expressed concerns to the NOAA about how a rule would affect airports directly under or in the vicinity of the restrictive airspace areas. “The Copalis State Airport is immediately south of the Copalis National Wildlife Refuge, part of the Olympic Coast National Marine Sanctuary. The airport is the only public-use airport in Washington State where landing on the beach is legal. Currently pilots conducting normal operations to and from the airport fly their traffic patterns as designated by the FAA which puts them at altitudes lower than the 2,000 feet above ground level promulgated in the rule,” Kramer wrote.
AOPA requested that current flight procedures “continue in place and be widely disseminated so that pilots are aware of them and will follow them, thus preserving their safety and the sanctuary necessary for the marine wildlife.”