Special Air Traffic Rules; Flight Restrictions in the Vicinity of Niagara Falls

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

This action proposes to codify current flight restrictions for aircraft operating in U.S. airspace in the vicinity of Niagara Falls, NY. The FAA is proposing this action to complement flight management procedures established for Niagara Falls by the Canadian government. The intended effect of this action is to prevent unsafe congestion of aircraft in this popular sightseeing area. The FAA is also proposing a number of editorial changes to parts 91 and 93 of Title 14 of the Code of Federal Regulations.

DATES:

Send your comments to reach us on or before October 21, 2002.

ADDRESSES:

Mail your comments to Docket Management System, U.S. Department of Transportation, Room 401 Plaza level, 400 Seventh Street, SW., Washington, DC 20590; or send your comments through the Internet to http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

Terry Brown or Jan Glivings, Airspace and Rules Division, ATA-400, Office of Air Traffic Airspace Management, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-8783.

SUPPLEMENTARY INFORMATION:

Your Comments Are Welcome

We invite your comments on this notice of proposed rulemaking (NPRM). The most useful comments are those that are specific, related to issues raised by the NPRM, and that explain the reason for any recommended change. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the NPRM that might suggest a need to modify it. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of this action and determining whether additional rulemaking action is needed.

To ensure consideration, you must identify the Rules Docket number in your comments, and you must submit comments to one of the addresses specified under the ADDRESSES section of this preamble. We will consider all communications received on or before the closing date for comments, and we may amend or withdraw this NPRM in light of the comments received. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. We will file in the Rules Docket a report that summarizes each public contact related to the substance of this proposed rule.

You may review the public docket containing comments on this NPRM in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Dockets Office is on the plaza level of the Nassif Building at the Department of Transportation at the address specified in the ADDRESSES section. Also, you may review the public docket on the Internet at http://dms.dot.gov.

If you want us to acknowledge receipt of your comments submitted in response to this proposed rule, you must include with your comments a self-addressed, stamped postcard on which you identify the Rules Docket number of this rulemaking. We will date stamp the postcard and return it to you.

Availability of Rulemaking Documents

You can get an electronic copy of this NPRM using the Internet through FAA's Web page at http://www.faa.gov/avr/arm/nprm/nprm.htm or through the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.

You can get a paper copy by submitting a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the docket number of this rulemaking.

Small Entity Inquiries

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) requires the FAA to report inquiries from small entities concerning information on, and advice about, compliance with statutes and regulations within the FAA's jurisdiction, including interpretation and application of the law to specific sets of facts supplied by a small entity. If your organization is a small entity and you have a question, contact your local FAA official. If you don't know how to contact your local FAA official, you may contact the FAA Office of Rulemaking, ARM-27, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591, telephone (888) 551-1594. Internet users can find additional information on SBREFA in the FAA's Web page at http://www.faa.gov/avr/arm/sbrefa.html. You may send inquiries to the following Internet address: 9-AWA-SBREFA@faa.gov.

Background

Canadian Flight Restrictions

On September 29, 1992, three people lost their lives when two sightseeing helicopters collided over Niagara Falls. In response to this accident and to ensure safety, Transport Canada established a restricted airspace area in Canada within a 2-nautical-mile radius of Niagara Falls. The designated area excludes U.S. airspace. The restricted airspace area was established on October 29, 1992, and is designated CYR-518.

In part, the Canadian action restricts aircraft operations within a specified area from the surface up to, but not including, 3,500 feet mean sea level (MSL), except for medical and police operations and those operations specifically authorized by the Regional Director for Air Carrier Operations, Ontario Region, Transport Canada.

Pilots may conduct passenger sightseeing flights in CYR-518 if they meet certain operating requirements. These requirements include operating on an approved Scenic Falls Route, maintaining a listening watch on a published radio frequency, transmitting certain information at specified points on the route, operating at speeds within a specified range, and maintaining specified horizontal spacing between aircraft when on the route. This is a partial list of the operational requirements for CYR-518. Readers who are interested in more details should refer to CYR-518, a copy of which we have placed in the docket for this rulemaking.

U.S. Temporary Flight Restriction

The FAA Administrator has broad authority under section 40103 of Title 49 of the United States Code (49 U.S.C. 40103) to regulate, control, develop plans for, and formulate policy with respect to, the use of navigable airspace. Additionally, the Administrator has the authority to assign by rule, regulation, or order, the use of the United States navigable airspace under such terms, conditions, and limitations as deemed necessary to ensure the safety of aircraft and the efficient use of the navigable airspace.

To complement the Canadian action described above, the FAA issued a temporary flight restriction (TFR) in September 1992 for aircraft operations in U.S. airspace adjacent to Niagara Falls pursuant to section 91.137 of Title 14 of the Code of Federal Regulations (14 CFR 91.137). As published in the Airport/Facility Directory, Northeast U.S. Edition, Detroit Sectional Aeronautical Chart, visual flight rules (VFR) aircraft operating in the vicinity of Niagara Falls must adhere to the following flight restrictions:

Pursuant to FAR 91.137(a)(3) temporary flight restrictions are in effect below 3,500 feet MSL in the airspace above Niagara Falls west of a line from the whirlpool rapids bridge (BUF309/21) to the Niagara Splash Amusement Park (BUF306/20) to the International Control Dam (BUF304/20) to the United States Canadian Border to prevent an unsafe congestion of sightseeing and other aircraft. No flight is authorized in the described area below 3,500 feet MSL except for aircraft operations conducted directly to or from an airport/heliport within the area, aircraft operating on an ATC-approved IFR flight plan, aircraft operating the Scenic Falls Route pursuant to approval of Transport Canada, aircraft carrying law enforcement officials, or aircraft carrying properly accredited news representatives for which a flight plan has been filed with Buffalo NY (BUF) AFSS phone 716-631-3756/5567, the FAA coordination facility. Pilots are advised to check with Transport Canada for flight restrictions in Canadian airspace. Commercial air tour operations approved by Transport Canada will be conducting a north/south orbit of the falls area below 3,500 feet MSL over the Niagara River.

Pursuant to the above flight restrictions, the minimum altitude for VFR flight over the Scenic Falls area is 3,500 feet MSL. The FAA and Transport Canada recommend pilots comply with the following procedures when conducting flight over that area:

1. Fly a clockwise pattern as depicted in the accompanying graphic display;

2. Do not proceed north of the Rainbow Bridge;

3. Prior to joining the pattern, broadcast flight intentions on frequency 122.05 MHZ; giving altitude and position, and monitor the frequency while in the pattern;

4. Use the Niagara Falls (IAG) altimeter setting—ATIS frequency 120.8 MHZ—or contact IAG tower 118.5;

5. Do not exceed 130 knots;

6. Anticipate heavy congestion of VFR traffic at or above 3,500 feet MSL; and

7. Use caution to avoid high-speed civil and military aircraft transiting the area to/from Niagara Falls Airport.

This procedure does not relieve pilots from the requirements of FAR 91.113 to see and avoid other aircraft.

The 1993 Public Meeting

On February 10, 1993, the FAA published a notice of public meeting, in the Federal Register (58 FR 7950), soliciting public comments for determining the most appropriate special flight rules in U.S. airspace in the vicinity of Niagara Falls. The public meeting was held on March 9, 1993, at Niagara Falls City Hall, Niagara Falls, NY. Reconsideration or possible modification of the Canadian airspace flight restriction was not discussed at this meeting. As a result of the public meeting, the FAA received approximately 28 comments. The Federal Register notice cited above stated that the FAA would consider all comments received as a result of the public meeting before issuing an NPRM. While we carefully reviewed and considered the public comments, we were not able to prepare an NPRM in a timely manner due to changing priorities and a lack of resources to devote to the task. At this time, we believe it would not be prudent now to develop an NPRM based on eight-year-old comments. For this reason, we are issuing for public comment an NPRM that would, if adopted, codify the existing temporary flight restriction. We are particularly interested in receiving comments on how well the existing flight restrictions are working.

Discussion of the Proposal

Subpart E—Flight Restrictions in the Vicinity of Niagara Falls, NY

Section 93.71 General Operating Procedures

The FAA proposes to add a new subpart E to 14 CFR part 93 (consisting of § 93.71) that would codify the current temporary flight restrictions in the vicinity of Niagara Falls. This proposed action would complement and support flight management procedures established by Transport Canada for Canadian airspace in the vicinity of Niagara Falls. Proposed § 93.71(a) would establish flight restrictions below 3,500 feet MSL in the airspace above Niagara Falls west of a line from latitude 43°06′33″ N., longitude 79°03′30″ W. (the Whirlpool Rapids Bridge) to latitude 43°04′47″ N., longitude 79°02′44″ W. (the Niagara River Inlet) to latitude 43°04′29′ N., longitude 79°03′30″ W. (the International Control Dam) to the United States Canadian Border to prevent unsafe congestion of sightseeing and other aircraft.

Proposed § 93.71(b) would prohibit flight in the area described in proposed paragraph (a) except for aircraft operations conducted directly to or from an airport/heliport within the area, aircraft operating on an ATC-approved IFR flight plan, aircraft operating the Scenic Falls Route pursuant to approval of Transport Canada, aircraft carrying law enforcement officials, or aircraft carrying properly accredited news representatives for which a flight plan has been filed with Buffalo NY (BUF) Automated Flight Service Station (AFSS).

Proposed § 93.71(c) would require pilots to check with Transport Canada for flight restrictions in Canadian airspace. It would also advise pilots that commercial air tour operations approved by Transport Canada are conducting a north/south orbit of the Niagara Falls area below 3,500 feet MSL over the Niagara River.

Proposed § 93.71(d) would establish the minimum altitude for VFR flight over the scenic falls area as 3,500 feet MSL.

Proposed § 93.71(e) would require that pilots comply with the following procedures when conducting flight over the area described in proposed § 93.71(a):

(1) Fly a clockwise pattern;

(2) Do not proceed north of the Rainbow Bridge;

(3) Prior to joining the pattern, broadcast flight intentions on frequency 122.05 Mhz, giving altitude and position, and monitor the frequency while in the pattern;

(4) Use the Niagara Falls airport altimeter setting. Contact Niagara Falls Airport Traffic Control Tower to obtain the current altimeter setting, to facilitate the exchange of traffic advisories/restrictions, and to reduce the risk of midair collisions between aircraft operating in the vicinity of the Falls. If the Control Tower is closed, pilots are to use the appropriate Automatic Terminal Information Service (ATIS) Frequency;

(5) Do not exceed 130 knots;

(6) Anticipate heavy congestion of VFR traffic at or above 3,500 feet MSL; and

(7) Use caution to avoid high-speed civil and military aircraft transiting the area to or from Niagara Falls Airport.

Proposed § 93.71(f) would be a reminder that these procedures do not relieve pilots from the requirements of § 91.113 of this chapter to see and avoid other aircraft.

Proposed § 93.71(g) would advise pilots that flight following, to and from the area, is available through Buffalo Approach.

Editorial Changes to Parts 91 and 93

The FAA is also proposing a number of editorial changes to 14 CFR parts 91 and 93. These changes include the following:

• Change the title of part 93 from “Special Air Traffic Rules and Airport Traffic Patterns” to “Special Air Traffic Rules.” The proposed title would better describe the intent of part 93 and the activities it addresses.
• Change § 93.1 to reflect the deletion of the term “airport traffic area” and for the purposes of brevity and clarity. On December 17, 1991, the FAA published a final rule (56 FR 65638) that reclassified various airspace designations and deleted the term “airport traffic area.” We intended these changes to apply to all similarly designated airspace areas. However, we have not proposed corresponding changes to part 93 until now.
• Change § 93.51 by deleting the phrase “and traffic patterns” to be consistent with the change to the title of part 93 described above.
• Divide existing § 93.81, which contains the special air traffic rule for the Valparaiso, Florida, Terminal Area, into two sections, 93.80 and 93.81, with minor editorial changes to new § 93.80, Applicability.
• Make a minor editorial change to § 93.117, which describes the applicability of the special air traffic rule for the Lorain County (Ohio) Regional Airport.
• Divide existing § 93.151, which describes the applicability of the special air traffic rule for the Ketchikan (Alaska) International Airport, into two sections, 93.151 and 93.152, with minor editorial changes to § 93.151.
• Change the alphabetical listing in section 4 of Appendix D to part 91, change the title of subpart T, and change §§ 93.251 and 93.253 to reflect the renaming of Ronald Reagan Washington National Airport.

We do not intend these editorial changes to change the substance of parts 91 or 93.

Procedural Matters

International Compatibility

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that conflict with this NPRM.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), the FAA has determined that there are no new requirements for information collection associated with this NPRM.

Economic Evaluation

Proposed changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866, Regulatory Planning and Review, directs that each Federal agency 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 requires agencies to analyze the economic impact of regulatory changes on small businesses and other small entities. Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. And fourth, the Unfunded Mandates Reform Act of 1995 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, in any one year (adjusted for inflation).

In conducting these analyses, the FAA has determined that this proposed rule: (1) Would generate benefits and not impose any costs and is not a “significant regulatory action” as defined in Executive Order 12866, and is not significant as defined in the Department of Transportation's Regulatory Policies and Procedures; (2) would not have a significant impact on a substantial number of small entities; (3) would not constitute a barrier to international trade; and (4) would not contain any Federal intergovernmental or private sector mandate. These analyses are summarized here in the preamble, and the full Regulatory Evaluation is in the public docket for this rulemaking.

This NPRM would codify the current TFR for those aircraft operating in U.S. airspace in the vicinity of Niagara Falls, NY. The FAA is proposing this action to complement flight management procedures established for the Falls by Transport Canada. Additionally, this action proposes a number of editorial changes to 14 CFR parts 91 and 93.

As a rule, the FAA does a benefit-cost analysis when this agency makes a TFR permanent by rulemaking. However, this TFR has been in effect for almost eight years. This length of time makes it difficult to obtain data to estimate baseline costs before the imposition of the TFR. The FAA does not believe that the TFR imposed significant costs on aircraft operating in U.S. airspace in the vicinity of Niagara Falls, NY, and the FAA does not believe this rulemaking would impose significant costs on those operators. As part of this rulemaking action, the FAA solicits public comments regarding the costs imposed by this rulemaking.

Regarding benefits, the FAA is aware of the mid-air collision in the vicinity of Niagara Falls before the issuance of the TFR and before the flight management procedures established by Transport Canada. Since the issuance of the TFR and Canadian flight management procedures, there have been no mid-air collisions. The FAA believes that the flight management procedures established in the TFR and by Transport Canada are responsible for this improvement in aviation safety. The FAA is proposing to make the TFR permanent because we believe that there are positive aviation safety benefits from imposing these flight restrictions on aircraft operating in U.S. airspace in the vicinity of Niagara Falls. The FAA seeks public comments regarding these benefit findings.

The FAA finds that the safety benefits accruing to this rulemaking justify the costs imposed. Therefore, the FAA finds this proposed rule to be cost-beneficial.

Initial Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the Act requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The Act 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 proposed or final rule will have a significant economic impact on a substantial number of small entities. If the determination is that it will, the agency must prepare a regulatory flexibility analysis as described in the Act.

However, if an agency determines that a proposed or final 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 believes that this action imposes little costs on any small entities subject to this rule. Any costs of complying with the NPRM are already borne by those complying with the existing flight restrictions for the past eight years. Consequently, the FAA certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities. The FAA seeks public comments regarding this cost finding.

International Trade Impact Assessment

The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. 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 NPRM to be minimal and therefore has determined that this proposed rule will not result in an impact on international trade by companies doing business in or with the United States.

Unfunded Mandates Assessment

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal agency, to the extent permitted by law, to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector. Section 204(a) of UMRA, 2 U.S.C. 1534(a), requires the Federal agency to develop an effective process to permit timely input by elected officers (or their designees) of State, local, and tribal governments on a proposed “significant intergovernmental mandate.” A “significant intergovernmental mandate” under UMRA is any provision in a Federal agency regulation that would impose an enforceable duty upon State, local, and tribal governments in the aggregate of $100 million (adjusted annually for inflation) in any one year. Section 203 of UMRA, 2 U.S.C. 1533, which supplements section 204(a), provides that, before establishing any regulatory requirements that might significantly or uniquely affect small governments, the agency must have developed a plan, which, among other things, must provide for notice to potentially affected small governments, if any, and for a meaningful and timely opportunity for these small governments to provide input in the development of regulatory proposals. This NPRM does not contain any Federal intergovernmental or private sector mandates. Therefore, the requirements of Title II of UMRA do not apply.

Executive Order 13132, Federalism

The FAA has analyzed this NPRM under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, we determined that this proposed rule does not have federalism implications.

Environmental Analysis

FAA Order 1050.1D defines FAA actions that may be categorically excluded from preparation of a National Environmental Policy Act (NEPA) environmental impact statement. In accordance with FAA Order 1050.1D, appendix 4, paragraph 4(j) this rulemaking action qualifies for a categorical exclusion.

Energy Impact

We have assessed the energy impact of this NPRM in accord with the Energy Policy and Conservation Act (EPCA), Pub. L. 94-163, as amended (42 U.S.C. 6362), and FAA Order 1053.1. We have determined that this NPRM is not a major regulatory action under the provisions of the EPCA.

List of Subjects

14 CFR Part 91

• Afghanistan
• Agriculture
• Air traffic control
• Aircraft
• Airmen
• Airports
• Aviation safety
• Canada
• Ethiopia
• Freight
• Mexico
• Noise control
• Political candidates
• Reporting and recordkeeping requirements
• Yugoslavia

14 CFR Part 93

• Aircraft flight
• Airspace
• Aviation safety
• Air traffic control

The Proposed Amendment

In consideration of the foregoing, the Federal Aviation Administration proposes to amend parts 91 and 93 of Title 14 Code of Federal Regulations (14 CFR parts 91 and 93) as follows:

PART 91—GENERAL OPERATING AND FLIGHT RULES

1. The authority citation for part 91 continues to read as follows:

Authority: 49 U.S.C.106(g), 1155, 40103, 40113, 40120, 44101, 44111, 44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, articles 12 and 29 of the Convention on International Civil Aviation (61 stat. 1180).

Appendix D to Part 91—[Amended]

2. Amend section 4 of appendix D to part 91 by removing the words “Washington National Airport” and adding in their place the words “Ronald Reagan Washington National Airport” in the alphabetical list of cities and airports.

PART 93—SPECIAL AIR TRAFFIC RULES

3. The authority citation for 14 CFR part 93 continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40106, 40109, 40113, 44502, 44514, 44701, 44719, 46301.

4. Revise the heading of part 93 to read as set forth above.

5. Revise § 93.1 to read as follows:

Subpart E—Flight Restrictions in the Vicinity of Niagara Falls, New York