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This section of the FEDERAL REGISTERcontains regulatory documents having generalapplicability and legal effect, most of whichare keyed to and codified in the Code ofFederal Regulations, which is published under50 titles pursuant to 44 U.S.C. 1510.The Code of Federal Regulations is sold bythe Superintendent of Documents. Prices ofnew books are listed in the first FEDERALREGISTER issue of each week.
Rules and Regulations
Federal Register
Vol. 77, No. 119Wednesday, June 20, 2012
DEPARTMENT OF TRANSPORTATIONFederal Aviation Administration14 CFR Part 73
[Docket No. FAA–2011–0117; AirspaceDocket No. 09–AGL–31]
Establishment of Restricted AreasR–5402, R–5403A, R–5403B, R–5403C,R–5403D, R–5403E, and R–5403F;Devils Lake, ND
Federal AviationAdministration (FAA), DOT.
Final rule.
This action establishesrestricted area airspace within theDevils Lake Military Operations Area(MOA), overlying Camp Grafton Range,in the vicinity of Devils Lake, ND. Thenew restricted areas permit realistictraining in modern tactics to beconducted at Camp Grafton Range whileensuring the safe and efficient use of theNational Airspace System (NAS) in theDevils Lake, ND, area. Unlike restrictedareas which are designated under Title14 Code of Federal Regulations (14 CFR)part 73, MOAs are not regulatoryairspace. However, since the restrictedareas overlap the Devils Lake East MOA,the FAA is including a description of the Devils Lake East MOA change inthis rule. The MOA change describedherein will be published in the NationalFlight Data Digest (NFDD).
Effective Dates: 
Effective date0901 UTC, July 26, 2012.
Colby Abbott, Airspace, Regulations andATC Procedures Group, Office of Airspace Services, Federal AviationAdministration, 800 IndependenceAvenue SW., Washington, DC 20591;telephone: (202) 267–8783.
On November 28, 2011, the FAApublished in the
Federal Register
anotice 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 toparticipate in this rulemaking effort bysubmitting written comments on theproposal. In response to public request,the FAA extended the comment periodfor 30 additional days (77 FR 1656; January 11, 2012). There were 43comments received in response to theNPRM with 42 opposing various aspectsof the proposal and one commentsupporting the proposal as published.All comments received were considered before making a determination on thisfinal rule. The following is a discussionof the substantive comments receivedand the agency’s response.
Discussion of Comments
One commenter contended that the500 feet above ground level (AGL) basefor R–5402 would impact low level,aerial operations such as crop dusters,wildlife and agricultural surveys, andemergency medical access. The FAArecognizes that when active, R–5402would restrict nonparticipating aircraftfrom operating within its boundaries. Tomitigate impacts to the aviationactivities described above, the UnitedStates Air Force (USAF) has agreed toimplement scheduling coordinationmeasures to de-conflict laser operationsand accommodate access by localfarming, ranching, survey, and medicalaviation interests when they need to flyin or through R–5402, when it is active.Another commenter noted that VFRtraffic would have to circumnavigateactive restricted airspace resulting inincreased time and distances flown. TheFAA acknowledges restricted areaairspace segregates nonparticipatingaircraft from hazardous activitiesoccurring inside the restricted area andthat, on occasion, nonparticipatingaircraft affected by the restricted areawill have to deviate from preferredroutings to remain clear. The lateral boundaries and altitudes of therestricted area complex were defined tominimize impacts to nonparticipantaircraft, yet still support the military inaccomplishing its training mission. Thesubdivided configuration of therestricted area complex, the altitudestratifications, and the entire restrictedarea complex designated as ‘‘joint use,’’affords nonparticipant aircraft access tothe portions of restricted area airspacenot in use by the military to the greatestextent possible.One commenter expressed concernthat segregating airspace for new typesof aircraft sets a dangerous precedent.The FAA agrees and maintains itspolicy to establish restricted areaairspace when determined necessary toconfine or segregate activitiesconsidered hazardous tononparticipating aircraft. The FAAconsiders UAS operations to be non-hazardous. However, the FAArecognizes that some UAS platformshave the ability to employ hazardousordnance or sensors. Since the MQ–1Predator [UAS] laser is non-eye safe andwill be used during training sortiesflown by the military, its use constitutesa hazardous activity that must beconfined within restricted area airspaceto protect nonparticipating aircraft.Two commenters suggested thatSpecial Use Airspace (SUA) should beceded back to civil control when not inuse. The FAA proposed that therestricted areas be designated as ‘‘jointuse’’ airspace, specifically to afford thehighest level of access to NAS users andlimit this access only when necessary.This rule provides that when therestricted areas are not needed by theusing agency, the airspace will bereturned to the controlling agency,Minneapolis Air Route Traffic ControlCenter, for access by other NAS users.Another commenter recommendedthat the proposed restricted areaairspace be developed for concurrentuse. The FAA considered thecommenters use of ‘‘concurrent use’’ tomean ‘‘sharing the same airspace, at thesame time, between participating andnonparticipating aircraft.’’ As notedpreviously, restricted areas areestablished to confine or segregateactivities considered hazardous tononparticipating aircraft; such asdropping bombs, firing guns/missiles/rockets, or lasing with a non-eye safelaser. Concurrent use, as describedabove, would not be prudent in such anenvironment as it constitutes anunacceptable risk to nonparticipatingaircraft.Twenty-two commenters stated thatthe proposed restricted areas should
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Federal Register
/Vol. 77, No. 119/Wednesday, June 20, 2012/Rules and Regulations
have been developed in conjunctionwith the North Dakota AirspaceIntegration Team (NDAIT), a groupformed to find solutions to UASintegration into the NAS, as well ascoordinate UAS activities state-wide. Toclarify, the focus of this proposed actionis consideration of establishingrestricted areas to support hazardousmilitary training activities, not UASintegration into the NAS. The FAAnotes that the NDAIT was notestablished until after the USAFairspace proposal was submitted to theFAA and many of the NDAIT memberstook the opportunity to submitcomments on the proposal.One commenter stated that theproposed airspace should beenvironmentally assessed for the broadarray of military aircraft that would beexpected to employ in conjunction withUAS. The FAA agrees and hasconfirmed that the EnvironmentalImpact Statement for the bed down of the MQ–1 Predator at Grand Forks AirForce Base (AFB) addresses otheraircraft that would likely train with theUAS in the proposed restricted areaairspace complex.Another commenter stated that theproposed restricted area airspace wouldeventually be activated almost full timeas is the current Temporary FlightRestriction (TFR) over Grand ForksAFB. The TFR referred to by thecommenter is contained in the SpecialSecurity Instruction authorized under14 CFR 99.7 for Customs and BorderProtection (CBP) UAS operationsconducted from Grand Forks AFB.Although the TFR is active while theCBP UAS is flying, it allows airspaceaccess by non-participant aircraft usingprocedural separation rules. Therestricted areas proposed by this actionare being established with specific timesof designation, to support the hazardousnon-eye safe laser training conducted bythe USAF. The times are described by‘‘core hours’’ and also may be activated by NOTAM to allow for training periodsoutside the core hours, i.e. at night.Twenty commenters argued that theproposal is contrary to FAA policy, inthat it is designed for the sole purposeof separating non-hazardous types of VFR aircraft. The FAA has establishedthis restricted area airspace to confinethe MQ–1 Predator employment of anon-eye safe targeting laser, which ishazardous to nonparticipating pilots.This laser training for UAS pilots must be contained in restricted areas toconfine the hazardous activity, as wellas protect non-participating aircraftflying in the vicinity of the restrictedareas. Even though the Predatoroperations in the restricted areas willnormally occur in Visual MeteorologicalConditions (VMC), the UAS will be onan IFR flight plan in accordance withU.S. Air Force requirements.Two commenters requested that theFAA establish a formal, annual reviewprocess and public report on the useand impacts of any designated airspaceassociated with UAS activity in GrandForks, ND. The request to establish aformal annual review process withpublic reporting on use and impactsfalls outside the scope of this proposedaction. However, the FAA has aRestricted Area Annual Utilizationreporting program already established toassist the FAA in managing special useairspace areas established throughoutthe NAS. These annual utilizationreports provide objective informationregarding the types of activities beingconducted, as well as the timesscheduled, activated, and actual use,which the FAA uses to assess theappropriate use of the restricted areas.Nineteen commenters recommendedthat proposed restricted airspace have a‘‘sunset’’ date. The restricted areas areestablished to confine hazardous non-eye safe laser training, which willcontinue as long as the Predator UASare operating from Grand Forks AFB.Technology developments to integrateUAS into the NAS with manned aircraft,as well as military Tactics, Techniquesand Procedures (TTP) maturation mayprovide an opportunity to reconfigurethe restricted area airspace at a futuredate, but the requirement for restrictedarea airspace will exist as long as thenon-eye safe laser training is conducted.One commenter recommended arequirement for equipping the UAS withforward viewing sensors that wouldenable the UAS to comply with 14 CFRpart 91 see-and-avoid rules. While theFAA is working with the industry todevelop see-and-avoid solutions for thesafe and eventual seamless integrationof UAS into the NAS, this suggestion isoutside the scope of this action.One commenter asked that theproposal be tabled until the FAApublishes its final Order/AdvisoryCircular regarding UAS operations inthe NAS. The Order/Advisory Circularaddress the integration of UAS in theNAS, which is separate from the actionof establishing restricted area airspace toconfine hazardous non-eye safe lasertraining activities. This action isnecessary to support the military’straining requirement beginning thissummer. The FAA is completing thisairspace action separate from its UASNAS integration guidance developmentefforts.Several commenters recommendedthat instead of creating new SUA forthese activities that the USAF useexisting restricted areas or the airspacesubject to flight restrictions under §99.7SSI and used by the Customs & BorderProtection Agency (CBP) at Grand ForksAFB. The FAA advocates the use of existing SUA and requires proponentsto examine all reasonable alternatives,prior to considering the need toestablish new SUA. In this case, theUSAF conducted an extensive analysisof alternatives and considered criteriaincluding proximity to Grand ForksAFB, existence of a suitable air-to-ground range for laser targeting, and airtraffic density both en route and at thetraining complex. The Beaver MOA innorth central Minnesota isapproximately three times as far as theproposed airspace, has much heavier airtraffic density, and has no air-to-groundgunnery range. The Tiger MOAs innorth central North Dakota are the samedistance as the proposed airspace, havefavorable air traffic density, but have noair-to-ground gunnery range. Theairspace in the vicinity of the existingCBP §99.7 SSI flight restriction would be closer, but has much higher trafficdensity and complexity, and has no air-to-ground range. Additionally, therewere no useable restricted areas withinreasonable distance of Grand Forks AFBfor consideration. The FAA believes theUSAF considered and analyzed thealternatives to this action and thatestablishing new SUA is the onlyreasonable option.One commenter suggested that therestricted area complex be moved northof Devils Lake. The FAA notes that theUSAF studied an alternative of establishing restricted areas in the TigerNorth and Tiger South MOAs, locatednorth of Devils Lake, ND. Whileproximity to Grand Forks AFB and theair traffic density compared favorably tothe proposed airspace area, the lack of an air-to-ground gunnery range suitablefor hazardous laser training made thisoption operationally unfeasible. TheFAA accepted the USAF’s considerationand analysis of this alternative andproposed establishing the restrictedareas set forth in this action.One commenter recommended thatthe proposed airspace be moved toanother state as it would impact flyingtraining in the vicinity of Grand Forks.This airspace proposal resulted fromCongress’ Base Realignment and ClosureCommission of 2005 decision to retainGrand Forks Air Force Base in NorthDakota for an emerging UAS mission.As addressed previously, Beaver MOAin north central Minnesota is the nearestSUA outside of North Dakota. It wasapproximately three times the distancefrom Grand Forks AFB, has much higher
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air traffic density airspace, and has noair-to-ground gunnery range forhazardous laser training. The FAArecognizes the proposed restricted areascould impact civil flight training, largelyconducted by the University of NorthDakota and east of the proposedcomplex. Additionally, nearly all civilflight training activity that currentlyoccurs in the vicinity of the restrictedareas would take place below theproposed R–5403 footprint. Whereas thefloor of R–5402 goes down to 500 feetabove ground level (AGL), its cylinderfootprint was reduced to a 7 NM radiusaround R–5401 and the Camp GraftonRange to mitigate impacts to these civiloperations. This airspace actionprovides a reasonable balance betweenmilitary training requirements andaccommodation of non-participant flighttraining.Three commenters stated that the vastsize of the restricted area complex is notnecessary. The restricted areas beingestablished by this action provide theminimum vertical and lateral tacticalmaneuvering airspace required for UASoperators to accomplish targetacquisition prior to attack, and thencontain the non-eye safe laser duringfiring. The restricted area complex wasconfigured to confine two UASoperating on independent missionprofiles at the same time, whileminimizing airspace impacts to non-participating aircraft. As the UAStraining flight transitions from onephase of the mission profiles to another,unused segments will be deactivatedand returned to the NAS consistent withthe FAA’s Joint Use Airspace policy.The subdivided and stratifiedconfiguration of the restricted areacomplex enables the USAF to onlyactivate the restricted areas needed fortheir training sorties while leaving therest of the complex inactive andavailable for NAS users. The FAA believes the segmentation andstratification of the complex willenhance civil access to those parts of thecomplex not activated for USAF trainingrequirements. Actual procedures forrestricted area activation anddeactivation will be defined in a Letterof Procedure between the using andcontrolling agencies.Two commenters asked if the USAFcould find a less cluttered area withmore suitable weather for MQ–1Predator operations. The FAAacknowledges that weather challengeswill exist for the MQ–1 Predatoroperations at Grand Forks AFB. Thedecision to base Predator UAS at GrandForks AFB, however, was mandated byCongress. The restricted areas proposed by this action were situated andproposed in the only location that metthe USAF’s operational requirements of proximity to launch/recovery base, lowair traffic density, and availability of anexisting air-to-ground gunnery rangesuitable for the hazardous non-eye safelaser training activities.One commenter contended that AlertAreas are more appropriate for UAStraining activity. Alert Areas aredesignated to inform nonparticipatingpilots of areas that contain a highvolume of pilot training operations, oran unusual type of aeronautical activity,that they might not otherwise expect toencounter. However, only thoseactivities that do not pose a hazard toother aircraft may be conducted in anAlert Area. Since employment of thenon-eye safe laser carried by the MQ–1Predator UAS is an activity hazardous tonon-participants, an Alert Area is not anappropriate airspace solution.Two commenters stated that the AirForce is proposing restricted areas as ameans to mitigate for lack of see-and-avoid capability for UAS operations.They noted, correctly, that the Air Forcecould use ground-based or airborneassets to provide see-and-avoidcompliance instead. FAA policy dictatesthat restricted areas are established toconfine activities considered hazardousto non-participating aircraft. Asmentioned previously, the focus of thisaction is establishing restricted areas tosupport hazardous military trainingactivities, not UAS integration into theNAS. As such, the FAA does notsupport establishing restricted areas as asolution to overcome UAS inability tocomply with 14 CFR Part 91 see-and-avoid requirements. The FAA isestablishing the restricted areasaddressed in this action to confine thehazardous non-eye safe laser trainingactivities conducted by the USAF.One commenter stated that newrestricted airspace should be offset byreallocation of unused SUA elsewherein the NAS. The proposed restrictedareas fall almost entirely within theexisting Devils Lake East MOA. Whenactivated, the new restricted areas will be, in effect, replacing existing SUA.Although the regulatory and non-regulatory process for establishing SUAis not directly linked to the restrictedarea and MOA annual utilizationreporting process, the FAA does reviewrestricted area and MOA utilizationannually. If candidate SUA areas areidentified, the FAA works with themilitary service to appropriately returnthat airspace to the NAS.Seventeen commenters stated thatPredator pilots can get the same trainingthrough simulation. The FAA cannotdetermine for the USAF the value of simulated UAS operator training overactual flying activities. The USAF isheavily investing in Live, Virtual, andConstructive (LVC) training options. Asthe commenters infer, the migration toa virtual training environment would beexpected to reduce the demand foractivating R–5402 and R–5403A–F.However, actual employment of thenon-eye safe laser will still be requiredfor both training proficiency andequipment validation. This action balances the training airspacerequirements identified by the USAF asit matures its UAS capabilities with theairspace access requirements of otherNAS users.Twenty commenters addressed theincreased collision hazard due to airtraffic compression at lower altitudesand around the periphery of theproposed complex. The FAA recognizesthat compression could occur when therestricted areas are active; however, theactual impact will be minimal. The FAAproduced traffic counts for the 5 busiestsummer days and 5 busiest winter daysof 2011 during the proposed times of designation (0700–2200L) from 8,000feet MSL to 14,000 feet MSL. Totals forall IFR and known VFR aircraft ranged between 4 and 22 aircraft over the 17-hour span. Volumes such as this areeasily managed by standard ATCprocedures. To enhance non-radarservice in the far western part of theproposed complex, the FAA isconsidering a separate rulemakingaction to modify V–170 so that it willremain clear of R–5402 to the west. Onaverage, four aircraft file V–170 over a24-hour day. Lastly, the FAA is nearingcompletion of a project to add threeterminal radar feeds, from Bismarck,Fargo, and Minot AFB, covering therestricted area airspace area intoMinneapolis ARTCC. These feeds willimprove low altitude radar surveillanceand enhance flight safety around theproposed restricted areas.One commenter argued that theproposed airspace should be limited todaylight hours only. While daytimeflying is usually safer in a visual see-and-avoid environment; when it comesto the military training for combatoperations, darkness provides asignificant tactical advantage and UASmust be capable of operating both dayand night. While the USAF has a validand recurring requirement to trainduring hours of darkness, the USAF wasable to accept a 2-hour reduction in thepublished times of designation corehours from ‘‘0700–2200 daily, byNOTAM 6 hours in advance,’’ to ‘‘0700–2000 daily, by NOTAM 6 hours inadvance.’’
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