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This section of the FEDERAL REGISTERcontains regulatory documents having generalapplicability and legal effect, most of which

are 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

36907

Vol. 77, No. 119

Wednesday, June 20, 2012

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 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

AGENCY: Federal AviationAdministration (FAA), DOT.

ACTION: Final rule.

SUMMARY: 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 described

herein will be published in the NationalFlight Data Digest (NFDD).

DATES: Effective Dates: Effective date0901 UTC, July 26, 2012.

FOR FURTHER INFORMATION CONTACT:Colby Abbott, Airspace, Regulations andATC Procedures Group, Office of Airspace Services, Federal AviationAdministration, 800 IndependenceAvenue SW., Washington, DC 20591;telephone: (202) 267–8783.

SUPPLEMENTARY INFORMATION:

History

On November 28, 2011, the FAA

published 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–5402

would 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. The

FAA 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 the

restricted 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 FAA

recognizes 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 the

highest 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 and

nonparticipating 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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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 currently

occurs 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 not

necessary. 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 deactivated

and 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 and

deactivation 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 and

proposed 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 UAS

training 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 a

solution 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 the

non-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, the

actual 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 will

remain 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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Another commenter sought details onthe UAS lost link plan. Although thelost link plan is not within the scope of this action, the FAA does requiredetailed procedures for UAS lost linksituations for all UAS operations. Theseprocedures will be similar to those inplace today for UAS operations acrossthe NAS. The servicing ATC facility and

UAS operators closely coordinate lostlink procedures and will incorporatethem into the implementing Letters of Procedure (LOP) for the restricted areasestablished in this rule.

Two commenters commented that theproposed restricted area complexstratification and segmentation wasconfusing and would lead to SUAairspace incursions. The FAA promotesstratifications and segmentation of largeSUA complexes to maximize the safetyand efficiency of the NAS and to enablemore joint use opportunities to accessthe same airspace by non-participating

aircraft. Sub-dividing the complexpermits activation of a small percentageof the overall complex at any one timewhile still providing for a diverse set of training profiles during UAS sorties,which is especially well-suited for longduration UAS training missions.Additionally, enhanced joint use accesseases compression of air traffic in thelocal area; thus, increasing flight safety.

Nineteen commenters noted that UASwill not be able to see-and-avoid largeflocks of birds using migratory flyways,which could create a hazard forpersonnel on the ground. Both GrandForks AFB and the University of North

Dakota flight school, located at theGrand Forks International Airport, haveconducted extensive research into birdstrike potential and prevention. Theirresearch found that more than 90percent of bird strikes occur below3,500 feet AGL and that there arepredictable windows for migratory birdactivity, which are adjusted year-to-year

based on historical and forecast weatherpatterns. Also, bird strikes are nearlytwice as likely to occur at nightcompared to the day. The USAF haslong standing bird strike avoidanceprocedures specifically customized for

Grand Forks AFB, which will beoptimized for UAS operations. Othermitigations include having the bases of the restricted airspace well above most

bird activity, conducting most trainingduring daylight hours, and adjustingUAS operations during seasonalmigratory activity. These mitigationsconform to both civil and militarystandard bird strike avoidance measuresthat are in place across the NAS.

Eighteen commenters contended thatpersons and property under theproposed airspace would not be

protected from the non-eye safe lasertraining. The USAF conducted a lasersafety study in 2009 for the CampGrafton Air-to-Ground Range. Thisrange, where the laser targets will beplaced, lies within the existing R–5401.The study examined laser and aircraftcharacteristics, topography, targetcomposition, and employment

parameters, and determined that theproposed airspace would adequatelyprotect persons and property outside thefootprint of R–5401. Personnel workingat the range will use proper protectivegear should they need to access thetarget areas during laser employmentperiods. The FAA has reviewed andaccepts the USAF’s laser safety study.The restricted areas established by thisaction are designed to allow laseremployment without hazard to personsand property in the vicinity of R–5401.

Two commenters stated that it isdangerous to mix UAS with visual flight

rules (VFR) air traffic. UAS arepermitted to fly outside restricted areaairspace in the NAS today and in thevicinity of VFR aircraft, under FAAapproved Certificate of Waiver orAuthorization (COA). Specific to thisaction, UAS operations will beoccurring inside restricted area airspacethat is established to confine thehazardous non-eye safe laser trainingactivities; thus, segregated fromnonparticipating aircraft.

One commenter said that VFR pilotviolations will increase and those lessinformed will pose a safety hazard. The

FAA interpreted the commenters use‘‘violations’’ to mean SUA airspaceincursions. VFR pilots must conductthorough pre-flight planning and areencouraged to seek airborne updatesfrom ATC on the status of SUA. TheFAA finds that the restricted areasestablished by this action pose no morerisk of incursion or safety hazard thanother restricted areas that exist in theNAS.

Two commenters observed that theNPRM failed to identify how UASwould transit from Grand Forks AFB tothe proposed restricted areas. The FAA

considers UAS transit and climbactivities to be non-hazardous;therefore, establishing new restrictedareas for transit and climb purposes isinappropriate. While UAS transit andclimb activities are non-hazardous, theyare presently atypical. Therefore,specifics on transit and climb groundtracks, corridor altitudes and widths,and activation procedures will beaccomplished procedurally andconsistent with existing COA mitigationalternatives available today. Theestablishment of restricted areas

airspace is focused on the hazardousnon-eye safe laser training activities.

Twenty four commenters noted thatthe proposed restricted areas would

block V–170 & V–55 and impact V–169& V–561. The FAA acknowledges thatthe proposed restricted area complexwill have a minimal impact on three of the four Victor airways mentioned,

depending on the restricted areasactivated. The airway analysis beganwith V–170, which runs between DevilsLake, ND, and Jamestown, ND, with aMinimum En route Altitude (MEA) of 3,500 feet MSL along the effectedsegment of the airway. An average of four aircraft per day filed for V–170. R–5402, when active, impacts V–170 from1200 feet AGL to 10,000 feet MSL. TheFAA is considering a separaterulemaking action to modify V–170 bycreating a slight ‘‘dogleg’’ to the west,which would allow unimpeded use of V–170 below 8,000 feet MSL regardless

of the status of R–5402. Impacts to V–170 above 8,000 feet MSL are dependentupon which restricted areas are active.

V–55 runs between Grand Forks, ND,and Bismarck, ND, with an MEA of 8,000 feet MSL along the affectedsegment of the airway. An average of 7aircraft per day filed for V–55.Activation of R–5402, R–5403A, R–5403B, or R–5403C would have noimpact on V–55. The FAA raised thefloor of R–5403D to 10,000 feet MSL andreduced the blocks for R–5403D and R–5403E to 2,000 feet each to allow ATCmore flexibility to climb/descend IFRtraffic on V–55. The FAA is also

considering establishing a GlobalPositioning Satellite MEA along theaffected segment of V–55 to allowproperly equipped non-participatingaircraft to fly the V–55 ground track, butat a lower altitude.

V–561 runs between Grand Forks, ND,and Jamestown, ND, with an MEA of 4,000 feet MSL along this segment of theairway. An average of two aircraft perday filed for V–561. When activated, thesoutheast corner of R–5403D, R–5403E,and R–5403F encroach upon V–561from 10,000 feet MSL–11,999 feet MSL,12,000 feet MSL–13,999 feet MSL, or

14,000 feet MSL–17,999 feet MSL,respectively.V–169 runs between Devils Lake, ND,

and Bismarck, ND, with an MEA of 3,500 feet MSL along this segment. Thenearest point of any restricted area is 5nautical miles (NM) from the centerlineof V–169. Since Victor airways are 4 NMwide; the restricted areas do notencumber the use of V–169.

The FAA acknowledges potentialimpacts to users on Victor airways V–55, V–170, and V–651 by the restrictedareas established in this action.


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However, based on the 13 total averagedaily flights filing for V–55, V–170, andV–651 in the same airspace as theproposed restricted area complex (V–169 is not affected by the proposedairspace), the impacts of the restrictedareas on the three affected airways isconsidered minimal. These aircraft haveair traffic control procedural alternatives

available to include vectoring, altitudechange, or re-routing as appropriate.

Nineteen commenters found thattranscontinental and local area flightswould be forced to deviate aroundrestricted areas, increasing cost andflight time. The FAA understands thatwhen the restricted areas are active,non-participation aircraft will have toaccomplish course deviations or altitudechanges for avoidance, which canincrease distances flown and costsincurred. For this action, the FAA andUSAF worked together to define theminimum airspace volume necessary to

meet USAF training missionrequirements and maximize airspaceaccess to other users of the NAS.Reducing the overall size and internallysegmenting and stratifying the complexhave reduced course deviation distancesand altitude changes required by non-participants to avoid active restrictedareas. Additionally, the USAF as agreedto temporarily release active restrictedairspace back to ZMP for non-participant transit during non-routine/contingency events (i.e. due to weather,icing, aircraft malfunction, etc.). Airtraffic in this part of the NAS isrelatively light and the level of impact

associated with establishing therestricted areas in this action isconsidered minimal when balancedagainst valid military trainingrequirements.

Twenty-four comments were receivedstating that four hours prior notice isinsufficient lead time for activation byNOTAM, with most recommending thatthe prior notification time be increasedto six hours. The FAA recognizes thatmany aircraft today have flightdurations long enough that flightplanning before takeoff may occuroutside of the 4-hour window.

Restricted areas provide protectedairspace for hazardous operations withno option to transit when active, sochanges in airspace status after flightplanning would have an impact onrouting or altitude. These impacts could

be reduced by increasing the NOTAMnotification time; therefore the proposedtime of designation for R–5402 and R–5403A–F is amended to ‘‘0700–2000daily, by NOTAM 6 hours in advance;other times by NOTAM.’’

One commenter stated that the SUAshould be limited to published times of

designation or times that can beobtained through an Automated FlightService Station (AFSS) or ZMP. Thetimes of designation for the restrictedareas conforms to FAA policy andprovides military users the operationalflexibility to adjust for unpredictable,yet expected events, such as poorweather conditions or aircraft

maintenance delays. By establishing therestricted areas with a ‘‘By NOTAM’’provision for activations, the AFSS willreceive scheduled activation times atleast 6 hours in advance and canprovide activation information whenrequested. Additionally, ZMP canprovide the most current restricted areasstatus to airborne aircraft, workloadpermitting, as an additional service toany requesting IFR or VFR aircraft.

Nineteen commenters contended thatlocal and transient pilots would avoidthe restricted areas regardless of theactivation status. The FAA understands

that some pilots may opt to avoid thevicinity of this proposed airspacecomplex; however, pilots have multipleways to obtain SUA scheduleinformation during preflight planningand while airborne to aid theirsituational awareness. Daily SUAschedules will be available on thesua.faa.gov Web site, NOTAMs will beissued at least 6 hours prior to activatingthe restricted areas, and AFSS will brief SUA NOTAMS upon request. Airborneupdates will also be available throughZMP or AFSS. Lastly, the USAF willprovide a toll-free phone number forinclusion on aeronautical charts that

will enable NAS users to contact thescheduling agency for SUA statusinformation; similar to what is in placefor the Adirondack SUA complex inNew York.

Two commenters requested that theFAA chart an ATC frequency forupdates on the restricted areas. TheFAA has frequencies listed on both theL–14 IFR Enroute Low Altitude Chartand the Twin Cities SectionalAeronautical Chart already. Uponreview, the VHF frequency listed on theIFR Enroute Low Altitude Chart nearwhere R–5402 and R–5403A–F

restricted areas will be established wasfound to be different than the frequencylisted on the Sectional AeronauticalChart listing of SUA for the existing R–5401 (which R–5402 and R–5403A–Fwill overlay). The FAA is taking actionto correct the discrepancy so thatmatching frequencies are charted.

Seventeen commenters stated that theNOTAM system is generally inadequateto inform users of SUA status, and thenumber of components to this restrictedairspace would lead to intricate andconfusing NOTAMs. The restricted area

complex is comprised of 7 individualareas and structured to minimizecomplexity and maximizenonparticipant access when notrequired for military use during certainphases of a training mission. The overallcomplex configuration, with seven subareas, is a reasonable balance betweenefficiency, complexity, and military

requirements. The NOTAM system isdesigned to disseminate many types of aeronautical information, includingrestricted area status when activation is‘‘By NOTAM’’ or outside publishedtimes of designation. Because of the ‘‘ByNOTAM’’ provision in the legaldescription times of designation,activation NOTAMs for R–5402 and R–5403A–F will be included in verbal

briefings from AFSS, upon pilot request.

The Rule

The FAA is amending 14 CFR part 73to expand the vertical and lateral limitsof restricted area airspace over the CampGrafton Range to contain hazardousnon-eye safe laser training operations

being conducted by the emerging UASmission at Grand Forks Air Force Base(AFB); thus, transforming the range intoa viable non-eye safe laser traininglocation. Camp Grafton Range iscurrently surrounded by R–5401;however, the lateral boundaries andaltitude are insufficient to contain thelaser training mission profiles andtactics flown in combat operationstoday. This action supplements R–5401

by establishing additional restrictedareas, R–5402, R–5403A, R–5403B, R–

5403C, R–5403D, R–5403E, and R–5403F, to provide the vertical andlateral tactical maneuver airspaceneeded for UAS target acquisition priorto attack, and to contain the non-eyesafe laser during laser target designationtraining operations from medium tohigh altitudes.

The restricted area R–5402 is defined by a 7 nautical mile (NM) radius aroundthe center of R–5401, with the northern

boundary adjusted to lie along the47°45′00″ N latitude. The restricted areaaltitude is upward from 500 feet aboveground level to, but not including

10,000 feet MSL. This new restrictedarea provides a pathway for the non-eyesafe laser beam to transit from R–5403A,R–5403B, and R–5403C (described

below) through the existing R–5401 andonto Camp Grafton Range.

The restricted areas R–5403A, R–5403B, and R–5403C share the samelateral boundaries, overlying R–5402and layered in ascending order. Thenorthern boundary of these R–5403areas, as described in the regulatorytext, share the same northern boundaryas R–5402, the 47°45′00″ N latitude. The


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western boundary lies approximately 14NM west of R–5402 along the 99°15′00″

W longitude and the eastern boundarylies approximately 7 NM east of R–5402along the 98°15′00″ W longitude.Finally, the southern boundary isestablished to remain north of theprotected airspace for V–55. Therestricted area altitudes, in ascending

order, are defined upward from 8,000feet MSL to, but not including 10,000feet MSL for R–5403A; upward from10,000 feet MSL to, but not including14,000 feet MSL for R–5403B; andupward from 14,000 feet MSL to, butnot including Flight Level (FL) 180 forR–5403C. The additional lateral andvertical dimensions provided by theserestricted areas, in conjunction with R–5401, R–5402, R–5403D, R–5403E, R–5403F, establish the maneuveringairspace needed for UAS aircraft topractice the tactical maneuvering andstandoff target acquisition training

requirements necessary for the combattactics and mission profiles flown todayand to contain the hazardous non-eyesafe laser, when employed, completelywithin restricted airspace.

The areas R–5403D, R–5403E, and R–5403F also share the same lateral

boundaries, adjacent to and southeast of R–5403A, R–5403B, and R–5403C, andare also layered in ascending order. Thenorthern boundary of these R–5403areas, as described in the regulatorytext, shares the southern boundary of R–5403A, R–5403B, and R–5403C. Thewestern boundary point reaches to the99°15′00″ W longitude and the eastern

boundary lies along the 98°15′00″ Wlongitude. Finally, the southern

boundary is established to lie along the47°15′00″ N latitude. The restricted areaaltitudes, in ascending order, aredefined upward from 10,000 feet MSLto, but not including 12,000 feet MSLfor R–5403D; upward from 12,000 feetMSL to, but not including 14,000 feetMSL for R–5403E; and upward from14,000 feet MSL to, but not includingFlight Level (FL) 180 for R–5403F. Theadditional lateral and verticaldimensions provided by these restrictedareas, in conjunction with R–5401, R–

5402, R–5403A, R–5403B, R–5403C, andthe Camp Grafton Range, establish themaneuvering airspace, standoff targetacquisition, and hazardous non-eye safelaser employment training completelywithin restricted airspace, as notedabove.

During the NPRM public commentperiod, it was realized that the proposalsection of the NPRM preambledescribed the southern boundary for theproposed R–5403D, R–5403E, and R–5403F to lay along the 47°30′00″ Nlatitude, in error. However, the

regulatory text in the NPRM correctlydescribed the southern boundary forthese proposed restricted areas to liealong the 47°15′00″ N latitude. Thisaction confirms the southern boundaryfor R–5403D, R–5403E, and R–5403F isalong the 47°15′00″ N latitude.

Restricted areas R–5402, R–5403A, R–5403B, R–5403C, R–5403D, R–5403E,

and R–5403F are all designated as‘‘joint-use’’ airspace. This means that,during periods when any of therestricted airspace areas are not needed

by the using agency for its designatedpurposes, the airspace will be returnedto the controlling agency for access byother NAS users. The Minneapolis AirRoute Traffic Control Center is thecontrolling agency for the restrictedareas.

Lastly, to prevent confusion andconflict by establishing the newrestricted areas in an existing MOA, andhaving both SUA areas active in thesame volume of airspace at the sametime, the Devils Lake East MOA legaldescription is being amended in theNFDD. The Devils Lake East MOAamendment will exclude R–5401, R–5402, R–5403A, R–5403B, R–5403C, R–5403D, R–5403E, and R–5403F whenthe restricted areas are active. The intentis to exclude the restricted areas inDevils Lake East MOA individually asthey are activated. This MOAamendment will prevent airspaceconflict with overlapping special useairspace areas.

Regulatory Notices and Analyses

Changes to Federal regulations mustundergo several economic analyses.First, Executive Order 12866 andExecutive Order 13563 direct that eachFederal agency shall propose or adopt aregulation only upon a reasoneddetermination that the benefits of theintended regulation justify its costs.Second, the Regulatory Flexibility Actof 1980 (Pub. L. 96–354) requiresagencies to analyze the economicimpact of regulatory changes on smallentities. Third, the Trade AgreementsAct (Pub. L. 96–39) prohibits agenciesfrom setting standards that create

unnecessary obstacles to the foreigncommerce of the United States. Indeveloping U.S. standards, the TradeAct requires agencies to considerinternational standards and, whereappropriate, that they be the basis of U.S. standards. Fourth, the UnfundedMandates Reform Act of 1995 (Pub. L.104–4) requires agencies to prepare awritten assessment of the costs, benefits,and other effects of proposed or finalrules that include a Federal mandatelikely to result in the expenditure byState, local, or tribal governments, in the

aggregate, or by the private sector, of $100 million or more annually (adjustedfor inflation with base year of 1995).This portion of the preamblesummarizes the FAA’s analysis of theeconomic impacts of this final rule.

Department of Transportation OrderDOT 2100.5 prescribes policies andprocedures for simplification, analysis,

and review of regulations. If theexpected cost impact is so minimal thata proposed or final rule does notwarrant a full evaluation, this orderpermits that a statement to that effectand the basis for it to be included in thepreamble if a full regulatory evaluationof the cost and benefits is not prepared.Such a determination has been made forthis final rule. The reasoning for thisdetermination follows:

As presented in the discussion of comments section of this preamble,commenters stated that there could bethe following potential adverseeconomic impacts from implementingthis final rule: the rule will block V–170and V–55 and limit the use of V–169and V–561; VFR and local area flightswill be forced to deviate aroundrestricted areas, increasing cost andflight time; and the 500 feet AGL floorfor R–5402 will affect low level aerialoperations such as crop dusters, wildlifeand agricultural surveys, and emergencymedical access.

With respect to the first potentialimpact, as discussed in the preamble,the FAA acknowledges that users of Victor airways V–55, V–170, and V–561could be potentially affected when the

restricted areas established in thisaction are active; however users of V–169 will not be affected at all. Users of V–170 from 1200 feet AGL to 8,000 feetMSL would be affected only when R–5402 is active. The FAA’s hasdetermined that there is an average of 4flights per day between Devils Lake, ND,and Jamestown, ND. Of these flights, 90percent are general aviation flights(many of them University of NorthDakota training flights) and 10 percentare military or air taxi flights. Thepotential effect on users of V–170 could

be offset by several actions. One action

would be to modify V–170 by creatinga slight ‘‘dogleg’’ further west of R–5402to allow unimpeded use of V–170 below8,000 feet MSL regardless of the statusof R–5402. The FAA estimates that this‘‘dogleg’’ would add about 5 miles to thelength of the flight between Devils Lakeand Jamestown. Another action would

be for air traffic control to either vectorthe aircraft west of R–5402 or climb theaircraft to 8,000 feet MSL to avoid R–5402. V–170 above 8,000 feet MSL, V–55, and V–561 can still be used by thepublic, even during military training


7/31/2019 2012-15008



operations, if the nonparticipant aircraftflies at a different altitude than thealtitudes the military is using at thattime. The FAA has determined thatthese adjustments will result in minimalcost to the affected operators.

With respect to the second potentialimpact, with the exception of R–5402,the public will not be required to

deviate around the restricted areas, evenduring military operations, as long asthe nonparticipating aircraft flies at analtitude above or below the altitudesthat the military is using at that time.The FAA has determined that thesealtitude adjustments will have aminimal effect on cost.

With respect to the third potentialimpact, the USAF has agreed toimplement scheduling coordinationmeasures for R–5402 that willaccommodate access by local farming,ranching, survey, and medical aviationinterests. Further, when any of therestricted areas are not needed by theUSAF for its intended purposes, theairspace will be returned to thecontrolling agency, Minneapolis AirRoute Traffic Control Center, for access

by other NAS users; providingconsiderable time for these interests toperform most of their aviation activitiesin a timely manner. The FAA hasdetermined that these potentialdisruptions in public aviation will havea minimal effect on cost.

The FAA has, therefore, determinedthat this final rule is not a ‘‘significantregulatory action’’ as defined in section3(f) of Executive Order 12866, and is not

‘‘significant’’ as defined in DOT’sRegulatory Policies and Procedures.

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980(Pub. L. 96–354) (RFA) establishes ‘‘as aprinciple of regulatory issuance thatagencies shall endeavor, consistent withthe objectives of the rule and of applicable statutes, to fit regulatory andinformational requirements to the scaleof the businesses, organizations, andgovernmental jurisdictions subject toregulation. To achieve this principle,agencies are required to solicit and

consider flexible regulatory proposalsand to explain the rationale for theiractions to assure that such proposals aregiven serious consideration.’’ The RFAcovers a wide-range of small entities,including small businesses, not-for-profit organizations, and smallgovernmental jurisdictions.

Agencies must perform a review todetermine whether a rule will have asignificant economic impact on asubstantial number of small entities. If the agency determines that it will, theagency must prepare a regulatory

flexibility analysis as described in theRFA.

However, if an agency determines thata rule is not expected to have asignificant economic impact on asubstantial number of small entities,section 605(b) of the RFA provides thatthe head of the agency may so certifyand a regulatory flexibility analysis is

not required. The certification mustinclude a statement providing thefactual basis for this determination, andthe reasoning should be clear.

The FAA received two commentsfrom small business owners and acomment from the North DakotaAgricultural Aviation Association(NDAAA), representing agriculturalaviation operators. The comments fromthe business owners expressed concernsabout the availability of airspace andthat they would be diverted from theirnormal flight plans, thereby increasingtheir costs. As previously stated in thispreamble, however, these routes willnot be closed even during militaryoperations—they can be flown bynonparticipant aircraft so long as thoseaircraft are not at the altitudes beingused by the military. The NDAAAcomment that agricultural aircraft arefrequently ferried at altitudes greaterthan 500 feet applies only to thoseaircraft in R–5402—not in any of theother areas. As previously noted, theagreement with the USAF and the factthat there are no restrictions in R–5402when it is not being used by the militarywill minimize the potential economicimpact to agricultural aviation

operations in this airspace.While the FAA believes that one air

taxi operator, a few small businessoperators, and a few agriculturalaviation operators constitute asubstantial number of small entities,

based on the previous analysis, the FAAdetermined that the final rule will havea minimal economic impact.

Therefore, as the acting FAAAdministrator, I certify that this rulewill not have a significant economicimpact on a substantial number of smallentities.

International Trade Impact Assessment

The Trade Agreements Act of 1979(Pub. L. 96–39), as amended by theUruguay Round Agreements Act (Pub.L. 103–465), prohibits Federal agenciesfrom establishing standards or engagingin related activities that createunnecessary obstacles to the foreigncommerce of the United States.Pursuant to these Acts, theestablishment of standards is notconsidered an unnecessary obstacle tothe foreign commerce of the UnitedStates, so long as the standard has a

legitimate domestic objective, such theprotection of safety, and does notoperate in a manner that excludesimports that meet this objective. Thestatute also requires consideration of international standards and, whereappropriate, that they be the basis forU.S. standards. The FAA has assessedthe potential effect of this final rule and

determined that it will have only adomestic impact and therefore no effecton international trade.

Unfunded Mandates Assessment

Title II of the Unfunded MandatesReform Act of 1995 (Pub. L. 104–4)requires each Federal agency to preparea written statement assessing the effectsof any Federal mandate in a proposed orfinal agency rule that may result in anexpenditure of $100 million or more (in1995 dollars) in any one year by State,local, and tribal governments, in theaggregate, or by the private sector; sucha mandate is deemed to be a ‘‘significantregulatory action.’’ The FAA currentlyuses an inflation-adjusted value of $143.1 million in lieu of $100 million.This final rule does not contain such amandate; therefore, the requirements of Title II of the Act do not apply.

Environmental Review

Pursuant to Section 102(2) of theNational Environmental Policy Act of 1969 (NEPA), the Council onEnvironmental Quality (CEQ)regulations implementing NEPA (40CFR parts 1500–1508), and otherapplicable law, the USAF prepared and

published The BRAC Beddown and Flight Operations of Remotely Piloted Aircraft at Grand Forks Air Force Base,North Dakota’’ dated July 2010(hereinafter the FEIS) that analyzed thepotential for environmental impactsassociated with the proposed creation of Restricted Areas R–5402, R–5403A, R–5403B, R–5403C, R–5403D, R–5403E,and R–5403F. In September 2010, theUSAF issued a Record of Decision basedon the results of the FEIS. In accordancewith applicable CEQ regulations (40CFR 1501.6) and the Memorandum of Understanding (MOU) between FAAand Department of Defense (DOD) datedOctober 2005, the FAA was acooperating agency on the FEIS. TheFAA has conducted an independentreview of the FEIS and found that it isan adequate statement. Pursuant to 40CFR 1506.3(a) and (c), the FAA isadopting the portions of the FEIS forthis action that support theestablishment of the above namedrestricted areas. The FAA hasdocumented its partial adoption in aseparate document entitled ‘‘Partial Adoption of Final EIS and Record of


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Decision for the Establishment of Restricted Areas R–5402 and 5403.’’ This final rule, which establishesrestricted areas R–5402, R–5403A, R–5403B, R–5403C, R–5403D, R–5403E,and R–5403F, will not result insignificant environmental impacts. Acopy of the FAA Partial Adoption of FEIS and ROD has been placed in the

public docket for this rulemaking and isincorporated by reference.

FAA Authority

The FAA’s authority to issue rulesregarding aviation safety is found inTitle 49 of the United States Code.Subtitle I, Section 106 describes theauthority of the FAA Administrator.Subtitle VII, Aviation Programs,describes in more detail the scope of theagency’s authority.

This rulemaking is promulgatedunder the authority described inSubtitle VII, Part A, Subpart I, Section

40103. Under that section, the FAA ischarged with prescribing regulations toassign the use of the airspace necessaryto ensure the safety of aircraft and theefficient use of airspace. This regulationis within the scope of that authority asit establishes restricted area airspace atCamp Grafton Range, near Devils Lake,ND, to enhance safety and accommodateessential military training.

List of Subjects in 14 CFR Part 73

Airspace, Prohibited areas, Restrictedareas.

The Amendment

In consideration of the foregoing, theFederal Aviation Administrationamends 14 CFR part 73 as follows:

PART 73—SPECIAL USE AIRSPACE

■ 1. The authority citation for part 73continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40113,40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.

§73.54 [Amended]

■ 2. Section 73.54 is amended asfollows:

* * * * *R–5402 Devils Lake, ND [New]

Boundaries. Beginning at lat. 47°45′00″ N.,long. 98°47′19″ W.; to lat. 47°45′00″ N., long.98°31′25″ W.; then clockwise on a 7 NM arccentered on lat. 47°40′31″ N., long. 98°39′22″

W.; to the point of beginning, excluding theairspace within R–5401 when active, and R–5403A when active.

Designated altitudes. 500 feet AGL to, butnot including, 10,000 feet MSL.

Time of designation. 0700–2000 daily, byNOTAM 6 hours in advance; other times byNOTAM.

Controlling agency. FAA, MinneapolisARTCC.

Using agency. U.S. Air Force, 119thOperations Support Squadron, HectorInternational Airport, Fargo, ND.

* * * * *

R–5403A Devils Lake, ND [New]

Boundaries. Beginning at lat. 47°45′00″ N.,long. 99°15′00″ W.; to lat. 47°45′00″ N., long.

98°15′00″ W.; to lat. 47°35′39″ N., long.98°15′00″ W.; to lat. 47°15′00″ N., long.99°15′00″ W.; to the point of beginning.

Designated altitudes. 8,000 feet MSL to, butnot including, 10,000 feet MSL.




R–5403B Devils Lake, ND [New]


98°15

′00

″ W.; to lat. 47

°35

′39

″ N., long.98°15′00″ W.; to lat. 47°15′00″ N., long.

99°15′00″ W.; to the point of beginning.Designated altitudes. 10,000 feet MSL to,

but not including, 14,000 feet MSL.Time of designation. 0700–2000 daily, by

NOTAM 6 hours in advance; other times byNOTAM.



R–5403C Devils Lake, ND [New]

Boundaries. Beginning at lat. 47°45′00″ N.,long. 99°15′00″ W.; to lat. 47°45′00″ N., long.98°15′00″ W.; to lat. 47°35′39″ N., long.98°15′00″ W.; to lat. 47°15′00″ N., long.99°15′00″ W.; to the point of beginning.

Designated altitudes. 14,000 feet MSL to, but not including, FL 180.




R–5403D Devils Lake, ND [New]

Boundaries. Beginning at lat. 47°35′39″ N.,long. 98°15′00″ W.; to lat. 47°15′00″ N., long.98°15′00″ W.; to lat. 47°15′00″ N., long.

99°15′00″ W.; to the point of beginning.Designated altitudes. 10,000 feet MSL to,

but not including, 12,000 feet MSL.Time of designation. 0700–2000 daily, by

NOTAM 6 hours in advance; other times byNOTAM.



R–5403E Devils Lake, ND [New]


98°15′00″ W.; to lat. 47°15′00″ N., long.99°15′00″ W.; to the point of beginning.

Designated altitudes. 12,000 feet MSL to, but not including, 14,000 feet MSL.



Using agency. U.S. Air Force, 119th

Operations Support Squadron, HectorInternational Airport, Fargo, ND.

R–5403F Devils Lake, ND [New]

Boundaries. Beginning at lat. 47°35′39″ N.,long. 98°15′00″ W.; to lat. 47°15′00″ N., long.98°15′00″ W.; to lat. 47°15′00″ N., long.99°15′00″ W.; to the point of beginning.

Designated altitudes. 14,000 feet MSL to, but not including, FL 180.



Using agency. U.S. Air Force, 119thOperations Support Squadron, Hector

International Airport, Fargo, ND.Issued in Washington, DC, on June 14,

2012.

Paul Gallant,

Acting Manager, Airspace, Regulations and ATC Procedures Group.

[FR Doc. 2012–15008 Filed 6–19–12; 8:45 am]

BILLING CODE 4910–13–P

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Parts 1 and 602

[TD 9594]

RIN 1545–BI31

Modification to Consolidated ReturnRegulation Permitting an Election ToTreat a Liquidation of a Target,Followed by a Recontribution to a NewTarget, as a Cross-ChainReorganization

AGENCY: Internal Revenue Service (IRS),Treasury.ACTION: Final regulations and removal of temporary regulations.

SUMMARY: This document contains finalregulations under section 1502 of theInternal Revenue Code (Code). Thesefinal regulations modify the electionunder which a consolidated group canavoid immediately taking into accountan intercompany item after theliquidation of a target corporation.These regulations apply to corporationsfiling consolidated income tax returns.DATES: Effective Date: These regulationsare effective on June 20, 2012.

Applicability Date: The changesreflected in these final regulations
