[Federal Register Volume 62, Number 5 (Wednesday, January 8, 1997)]
[Rules and Regulations]
[Pages 1192-1205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-435]
[[Page 1191]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 91, et al.
Special Flight Rules in the Vicinity of the Rocky Mountain National
Park; Final Rule
Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 /
Rules and Regulations
[[Page 1192]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 91, 119, 121, and 135
RIN 2120-AG11
[Docket No. 28577; Amendment Nos. 91-254, 119-3, 121-263, 135-67
Special Federal Aviation Regulation (SFAR) No. 78]
Special Flight Rules in the Vicinity of the Rocky Mountain
National Park
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This action establishes a temporary Special Federal Aviation
Regulation (SFAR) at Rocky Mountain National Park (RMNP) to preserve
the natural enjoyment of visitors to RMNP by preventing any potential
adverse noise impact from aircraft-based sightseeing overflights. This
action temporarily bans commercial air tour operations over RMNP while
the FAA develops a broader rule that will apply to RMNP as well as
other units of the National Park system. The final rule will expire as
soon as a general rule on such overflights is adopted.
EFFECTIVE DATE: February 7, 1997.
FOR FURTHER INFORMATION CONTACT:
Neil Saunders, Airspace and Rules Division, ATA-400, Air Traffic
Airspace Management, Federal Aviation Administration, 800 Independence
Avenue, SW, Washington, DC 20591; Telephone: 202-267-8783. For the
Final Environmental Assessment and Finding of No Significant Impact,
contact Mr. William J. Marx, Manager, Environmental Programs Division,
ATA-300, Office of Air Traffic Airspace Management, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
Telephone: (202) 267-3075.
SUPPLEMENTARY INFORMATION:
Availability of the Final Rule
Any person may obtain a copy of this final rule by submitting a
request to the Federal Aviation Administration, Office of Rulemaking,
ARM-1, 800 Independence Avenue, SW, Washington, DC 20591, or by calling
202-267-9677. Communications must identify the amendment number of this
final rule.
Background
The designation of an area as a National Park is one of the highest
recognition given to any area in the country for its natural beauty and
the importance of its protection. In view of the significance of this
designation, Congress requires that National Parks by managed
consistently with the ``high public value and integrity of the National
Park System and [such management] shall not be exercised in derogation
of the values and purposes for which these areas have been established
to conserve the scenery and the nature and the historic objects and the
wildlife therein, and to leave them unimpaired for future
generations.'' Organic Act, 16 U.S.C. Sec. 1a-1; 16 U.S.C. 273-273d,
273f. The National Park Service (``NPS'') and the Federal Aviation
Administration (``FAA'') recognize that noise from aircraft may
interfere with the natural park experience for visitors on the ground
and with efforts to preserve these and other park values.
On December 22, 1993,the Department of the Interior and the
Department of Transportation joined to form an interagency working
group (``IWG'') with the objective of protecting National Parks from
the adverse effects due to excessive aircraft noise. The IWG's tasks
included reviewing the environmental and safety concerns caused by park
overflights, and working towards resolution of impacts on specific
parks.
The FAA's role in the IWG is to ensure the maintenance of aviation
safety and provide for the safe and efficient use of airspace, while
working with the Department of the Interior to achieve its role in the
IWG to protect public land resources in the national park system,
preserve environmental values for those areas, and provide for the
public enjoyment of those areas.
On April 22, 1996, President Clinton issued a memorandum for Heads
of Executive Departments and Agencies, in which he announced his Earth
Day initiative, Parks for Tomorrow. Included in that initiative was the
directive to the Secretary of Transportation, in consultation with
other appropriate officials, to consider a rulemaking to address the
potential adverse impact on Rocky Mountain National Park and its
visitors of overflights by sightseeing aircraft. The President's
announcement also directed that the value of natural quiet and the
natural experience of the park be factors in any rulemaking action,
along with protection of public health and safety.
FAA Statutory Authority
The FAA has broad authority and responsibility to regulate the
operation of aircraft and the use of the navigable airspace and to
establish safety standards for and regulate the certification of
airmen, aircraft, and air carriers. 49 U.S.C. 40104, et seq., 49 U.S.C.
40103(b). Subtitle VII of Title 49 U.S.C. provides guidance to the
Administrator in carrying out this responsibility. However, the FAA's
authority is not limited to regulation for aviation safety and
efficiency.
The FAA has authority to manage the navigable airspace to protect
persons and property on the ground. The Administrator is authorized to
``prescribe air traffic regulations on the flight of aircraft
(including regulations on safe altitudes) for * * *. (B) protecting
individuals and property on the ground'' 49 USC 40103(b)(2). In
addition, under 49 USC Section 44715(a) the Administrator of the FAA,
in consultation with the Environmental Protection Agency, is directed
to issue such regulations as the FAA may find necessary to control and
abate aircraft noise and sonic boom to ``relieve and protect the public
health and welfare.''
The FAA construes these provisions, taken together, to authorize
the adoption of this regulation, which is intended to minimize the
limit the adverse effects of aircraft noise to protect visitor
enjoyment of RMNP. The FAA finds that the regulation of the navigable
airspace, as authorized under 49 U.S.C. 40103(b)(2), is necessary, on a
temporary, limited basis, as discussed below, to control and abate
aircraft noise at RMNP under 49 U.S.C. 44715. Current policies support
the exercise of FAA authority to protect the RMNP in these unique
circumstances, at least as an interim step while the FAA proceeds to
complete a rulemaking that will address the larger issue of protecting
national parks. See generally, Section 101 of the National
Environmental Policy Act of 1969, as amended 42 U.S.C. 4321 and
Executive Order 11514, as amended by Executive Order 11991.
Rocky Mountain National Park
RMNP receives approximately three million visitors a year, making
it the sixth most visited national park in the United States, despite
its relatively small size (for a major Western national park) of
265,727 acres. RMNP is located approximately 40 miles outside the city
limits of Denver, Colorado, and approximately 50 miles from the Denver
International Airport. The topography of the park is characterized by
steep mountains, narrow valleys, and high elevations (8,000 to 14,250
ft). Seventy percent of park terrain is above 10,000 feet. In fact,
excluding Hawaii and Alaska, RMNP has the highest percentage of
mountainous elevations above 10,000 feet, compared to any other
national park.
[[Page 1193]]
RMNP presents pilots with a challenging flying environment. It has
high winds, often in excess of 100 mph. The Park's high altitudes
diminish engine performance and propeller efficiency, making it more
difficult for an aircraft to perform in high winds. The rugged terrain
limits maneuverability, and the rapidly changing weather can
unexpectedly envelop an aircraft. Perhaps in part for these reasons,
the use of the airspace over RMNP for commercial air tour operations
has so far not been extensive. Unlike many other national parks, there
are currently no air tour operators overflying the park or operating in
the surrounding airspace. However, other aviation users do operate in
the airspace above RMNP. Due to the Park's proximity to the Denver
International Airport, aircraft operating to or from the airport
overfly RMNP. Arrival and departure routes above the Park are necessary
to ensure the safe and efficient handling of air traffic into the
airport. Traffic into the airport operates at minimum altitudes of
19,000 feet above mean sea level (MSL) for jets and 16,000 feet above
MSL for turboprop aircraft. Non-commercial general aviation aircraft
also overfly the Park. While these non-commercial aircraft have not
themselves created any noise problem, their presence establishes the
feasibility of relatively low-level overflights within the park of
operators of commercial sightseeing tours with comparable equipment.
The Park provides for automobile access within its boundaries from
which there are numerous opportunities for viewing the park's vistas.
Park officials estimate that 54 percent of the park can be seen from
points along the 149 miles of roads.
Ninety-two percent of the park is proposed for inclusion in the
National Wilderness Preservation System and is required by law to be
managed by the National Park Service as a de facto wilderness until
action is taken by Congress. This means that, among other things, most
motorized vehicles must be contained within the existing roadway
system, and future development is limited.
The Governor of Colorado, members of the Colorado Congressional
delegation, and other officials have requested the Department of
Transportation to place a preemptive ban on commercial air tour
operations at RMNP. Even though there are no commercial air tour
operations at the Park currently, some operators have expressed an
interest in starting commercial air tours to officials of Estes Park,
Colorado and to the NPS. The government officials who have requested
regulatory action are concerned that an influx of commercial air tour
operations at RMNP would undermine the enjoyment of the Park by
visitors on the ground.
The FAA wishes to be responsive to concerns about the effects of
overflights on the national park system. Although the FAA is still
developing nationwide standards for overflights of national parks, a
relatively unusual set of circumstances has occurred at RMNP. Judging
from the requests received by the FAA, there is broad support to
protect the park environment by a ban on overflights among local
leaders, even in the absence of current commercial air tour
overflights. In addition, the FAA acknowledges the value in being able
to take the initiative now, before any commercial overflights occur. At
this point, there has been no environmental loss from commercial air
tour overflights, and a temporary ban on such flights will cause no
economic loss to any incumbent operator.
This temporary Special Federal Aviation Regulation will expire as
soon as a general rule on overflights over the national park system is
adopted. The FAA and DOI will be collecting quantitative data in
conjunction with the development of this broader rule that will apply
to all units of the National Park System.
Within 24 months of the effective date of this temporary ban, the
FAA, in conjunction with the NPS, will complete a review of this
temporary ban on commercial air tour operations over RMNP and publish
its findings in the Federal Register. The FAA will determine whether
the ban continues to be necessary to meet the objectives of the FAA and
NPS. This review will consider any data collected during the
development of the broader rule, as well as any other additional data
that could be relevant to the temporary ban. The FAA also will consider
any new issues relevant to RMNP that may have arisen, the effect of the
temporary ban on the benefits of the park experience, including natural
quiet, and any unanticipated burden the ban may have imposed on the air
tour industry.
Discussion of Comments
A. Introduction
On May 15, 1996 (61 FR 24582), the FAA published an NPRM proposing
several alternative methods of preserving the natural park experience
of Rocky Mountain National Park by imposing restrictions on commercial
aircraft-based sightseeing overflights. Commenters were invited to
address three alternatives: (1) A total ban; (2) limits on operations,
and (3) a voluntary agreement. As of September 1, 1996, the FAA
received 4,527 comments from individuals, air tour operators from other
geographic locations, environmental and civic organizations, state and
local governments, and groups representing the interests of various
segments of aviation. The overwhelming majority of these commenters
favor Alternative One, a ban on overflights of RMNP, while a minority
of commenters, virtually all representing aviation interests (e.g.,
National Air Transport Association (NATA), Airline Owners and Pilots
Association (AOPA), and Helicopter Association International (HAI))
state opposition to any regulation of overflights at RMNP.
Specifically, 4,479 or 98.94 percent of the commenters favor
Alternative One; 14 or .30 percent favor Alternative Two; and 7 or .15
percent favor Alternative Three. Opposition to the NPRM and to any
regulation of RMNP overflights is expressed by 27 or .60 percent of the
commenters.
The vast majority of the comments that opposed sightseeing
overflights are from private citizens who appear to have been informed
about the NPRM by newsletters and other publications distributed by
organizations such as the National Parks and Conservation Association
(NPCA). In addition, the public was informed of this proposed action
through public involvement activities at Rocky Mountain National Park.
A summary of the views presented by the commenters follows. First,
the general issues raised by the commenters are discussed. Second, the
three alternatives included in the NPRM are explained and commenters'
arguments supporting and opposing each alternative are summarized.
B. General Issues Raised by Commenters
1. FAA Authority and Procedural Rules
Helicopter Association International (HAI) (comment 4357) states
that this NPRM does not cite a statutory basis for the proposed action,
but if the basis is 49 U.S.C. 44715, the FAA failed to consult the
Environmental Protection Agency (EPA). HAI also states that the NPRM
exceeds the mandate of Congress as stated in Public Law 100-91 to
``provide for the substantial restoration of the natural quiet and
experience of the park and protection of public health and safety from
adverse effects associated with aircraft overflight in the Grand Canyon
National Park.'' The primary concern of HAI is that there is no
Congressional mandate to restore the
[[Page 1194]]
natural quiet in the RMNP. Additionally, HAI claims that the NPRM is
not in compliance with the Administrative Procedure Act, in that the
NPRM is not informative enough to allow a concerned party the
opportunity to comment appropriately, is not promulgated on the basis
of safety, but on the unsubstantiated and subjective environmental
impacts of future overflights, and is not in compliance with the FAA's
own procedural requirements in Title 14 of the Code of Federal
Regulations (14 CFR Sec. 11.65. HAI also cites the lack of an
Environmental Impact Statement (EIS).
National Air Transport Association (NATA) (comment 4229) states
that this NPRM allows federal land management agencies like the NPS to
``effectively usurp FAA jurisdiction over air traffic and airspace
itself'' which is contrary to the Federal Aviation Act of 1958 that'' *
* * specifically charge[d] the FAA with assuring safety and fostering
the development of air commerce.'' NATA and HAI state that this NPRM
represents an undue threat to the public right of transit through the
navigable airspace of the U.S. as provided for in Section 104 of the
Federal Aviation Act. For the FAA to propose such a rulemaking would be
to remove its authority to promote air commerce and safety, which would
be ``an incomprehensible dereliction of responsibility,'' in NATA's
opinion.
The United States Air Tour Association (USATA) (comment 4563)
states that the FAA fails to cite the statutory authority for the
rulemaking, which it suggests is a tacit indication that the FAA does
not have the requisite statutory authority to enact the rules put forth
in the NPRM.
The Colorado Pilots Association, Inc. (comment 4429) states that
the proposed ban would act as an unreasonable interference with
interstate and intrastate commerce.
The National Association of State Aviation Officials (NASAO)
(comment 4433) points out in a resolution issued at its Washington
conference on March 10, 1996, that the proposed rule would give the NPS
authority to direct the FAA in the use of the national airspace, which
would be interfering with the FAA's mandate under Federal law.
Southwest Safaris (comment 4583) comments that the FAA does not
have the regulatory power, as determined by Congress, to regulate that
which does not exist. This commenter adds that the FAA was mandated by
Congress to foster and promote the growth of commercial aviation, not
to ``regulate it out of existence'' and that if the NPRM is
implemented, commercial aviation would be discouraged instead of
constructively regulated on behalf of the general public's interests.
The Northern California Airspace Users Worker Group (NCAUWG)
(comment 4424), claims that the NPRM is inconsistent with the NPS
Organic Act, unduly discriminatory against aviation, and would
establish an undesirable precedent that could be used in other areas to
affect negatively the safe and efficient use of airspace. This
commenter states that the NPS was created by Congress to ``promote and
regulate the use of Federal areas known as national parks * * * [so as
to] conserve the scenery and the natural and historic objects and the
wildlife therein and to provide for the enjoyment of the same in such a
manner and by such means as will leave them unimpaired for the
enjoyment of future generations'' (16 U.S.C. 1). This commenter
contends that regulating overflights over the RMNP does nothing to
maintain the objectives listed above.
In contrasts, the Sierra Club/Grand Canyon Chapter (comment 2035)
and the Citizens for Aircraft Noise Abatement/Sedona (CANA/S) (comment
4227) contend that natural quiet has been identified by the Park
Service as a resource, citing the National Park Service Organic Act, as
amended by the Redwoods Act of 1978, that defines resource preservation
as the primary goal of the national parks. In addition, these
commenters cite the Wilderness Act of 1964, which was enacted to
protect the ``primeval character'' of designated lands and to provide
``outstanding opportunities for solitude.''
The Utah Air Travel Commission (comment 1113) oppose the NPRM
because it questions the thoroughness and completeness of the
scientific basis of the NPS's Report to Congress, in which aircraft
noise alone was singled out as obtrusive, making this report both
incomplete and biased. This commenter believes a new study is required,
complete with the identification of all obtrusive noise source, before
further regulation of park airspace is enacted. In addition, this
operations of national parks may violate the Americans with
Disabilities Act. This commenter is also concerned with the
unconditional restriction imposed on aircraft due to noise, and asks if
silent engines of the future will still be restricted.
The Utah Air Travel Commission also cites the conclusion of a
study, Tour Passenger Survey Results, that the NPS considered biased
because it was a survey of air tour passengers. The Commission believes
that while the study may be incomplete, it does not recommend the
elimination of park overflights; rather, it identifies the major value
of overflights. This, in the commenter's opinion, indicates that no
further regulation of overflights is warranted or needed.
2. Lack of Safety Justification of Any Rulemaking
The HAI (comment 4357) opposed the NPRM because there are no
studies stating that the proposed rules will promote aviation safety or
protect the environment and there has been no research conducted
stating that health issues will be advanced.
The Montana Department of Transportation (comment 4349) asserts
that aircraft overflights do not damage scenery, natural and historical
objects or wildlife in the parks. Therefore, this commenter opposes
this NPRM as it believes that ``all categories of aviation are already
by the use of navigable airspace for all respective flight activities
at this time.''
The Colorado Pilots Association, Inc. (comment 4429) states that
the proposed ban is unnecessary because aerial tours do not operate
over RMNP for obvious reasons: the high altitudes of the park; aircraft
loading factors; and the attendant operating costs associated with
running successful aerial tour operations. Thus, ``it is inappropriate
to restrict an activity that is unlikely to ever occur.''
Geo-Seis (comment 4350), a part 135 certificate holder and provider
of certain air tour operations in various parts of the U.S., oppose the
NPRM, contending that ``while no specific plans currently exist, [it]
is an operator that is contemplating operations in the RMNP,''
especially given the close proximity of its offices to the Park and the
type of helicopters this company operates. This commenter asserts that
since it operates high altitude helicopters with an excellent safety
record, it requests the FAA to reconsider prohibiting helicopter
operations in the RMNP in the future.
3. National Standards/General Aviation
National Business Aircraft Association, Inc. (NBAA) (comment 1843),
the Grand Canyon Air Tour Council (comment 2006), NATA (comment 4229),
Aircraft Owners and Pilots Association (AOPA) (comment 4356), and the
NCAUWG (comment 4424) are concerned about the potential for this
proposed rule becoming the model for national overflight standards
affecting all national parks. While the NBAA (comment 1843) has no
vested interest in commercial sightseeing operators, it takes issue
with a
[[Page 1195]]
requirement to detour around the airspace of national parks while
engaging in normal operations. NBAA is opposed to regulation
prohibiting overflights by persons other than those engaged in for-hire
sightseeing service because ``there is no substantial evidence of
significant noise impact on park area from normal (non-sightseeing)
overflights by general aviation aircraft.'' Each of these commenters
are wary of the implications of the NPRM based on the Grand Canyon
National Park Rule, that is their opinion, are inherently
discriminatory towards general aviation. AOPA (comment 4356) contends
that due to the Grand Canyon National Park Rule, general aviation is
required to fly higher altitudes than air tour operators, even though
it constitutes very little transient traffic, as opposed to the
thousands of overflights conducted by air tour operators. A similar
point is made by NASAO (comment 4433). Several of the commenters point
out that general aviation does not disturb the natural quiet of RMNP,
and the current voluntary overflight altitude of 2,000 feet is one
result of voluntary cooperation.
The Grand Canyon Air Tour Council (comment 2006) comments that the
RMNP proposal is not separable from the FAA's and the Department of the
Interior's project to develop national standards that will attempt to
regulate all air traffic over all national parks and other possible
federal land, and states that the broader issue ``needs to be brought
into the public domain for proper viewing.'' The council recommends a
voluntary agreement until the debate on national standards for park
overflights is available for national scrutiny.
AOPA (comment 4356) opposes any altitude restrictions for general
aviation over RMNP. It asserts that general aviation does not disturb
the natural quiet of the RMNP, and the current voluntary overflight
altitude of 2,000 feet has served well to negate the potential impact
of general aviation overflights.
4. Economic Considerations
Since there are no operators currently performing sightseeing air
tour operations over RMNP, the FAA in the NPRM determined that the
expected impact of this regulatory action is negligible and that this
proposed amendment would not have a significant impact on a substantial
number of small entities. Since operators may be considering starting
these types of operations over the park in the future, the FAA asked
for comment on whether any person intends to institute commercial
sightseeing operations at RMNP.
HAI (comment 4357) disagrees with the rationale that there was no
need to conduct a regulatory impact analysis because ``there are no
operators currently performing sightseeing air tour operators over
RMNP, therefore the regulatory impact is negligible.'' HAI states that
it is incumbent upon the FAA that an analysis of the future impact of
this rule be conducted.
The Grand Canyon Air Tour Council (comment 2006) claims that the
cost issue is not fully considered by the FAA. This commenter asserts
that if the FAA can use a potential noise issue to justify its proposal
it can use potential air tour operation in determining what is and what
is not a cost on society. It recommends that the FAA: (1) Assess the
monetary value of the RMNP's worth to society; (2) examine the
potential revenue that could be appropriately generated through present
and future business development (including air tours); and (3) develop
a financial mode that would attempt to ascertain cost to society versus
other values, e.g., the opportunity to see the seventy percent of the
RMNP terrain that is above 10,000 feet.
The Grand Canyon Air Tour Council further asserts that it is very
difficult to comprehend how the FAA concluded in the Regulatory
Evaluation section that ``this rule would not have a significant impact
on a substantial number of small entities and would not constitute a
barrier to international trade.'' The council states that the majority
of air tour operators fall within the federal definition of a small
business and that the majority of revenue produced by air tour
operators are from foreign visitors.
5. Quiet Aircraft
McDonnell Douglas Helicopter Systems (MDHS) (comment 4552) states
that the use of quiet aircraft technology would be more effective in
reducing noise than would flight restrictions or the imposition of a
ban. This commenter cites Congressional testimony and reports by the
NPS and FAA/National Aeronautics and Space Administration (NASA) on the
use of quiet aircraft technology and how it can be used as a noise
reduction methodology. For example, in a 1994 report to Congress, the
NPS recommended the use of quiet aircraft technology as a means to
reduce the noise effect on National Parks.
C. Proposed Alternatives
The NPRM outlined three alternative methods of preserving the
natural enjoyment at RMNP and requested specific comments on how such
agreements could be handled. Alternative One would ban commercial
aviation sightseeing tours in the vicinity of RMNP. Alternative Two
would allow commercial sightseeing tours, but would restrict the
operations to routes that would be restricted to minimum altitudes and
would follow the existing road system, among other restrictions.
Variations of this alternative were presented in the NPRM. Alternative
Three would call for voluntary agreements between air tour operators
and the NPS.
Since there were no air tour operators conducting overflights at
the time the NPRM was proposed, the three proposed alternatives were an
attempt to provide a fair representation of the possible ways to
mitigate the predicted effect of aircraft noise generated by future air
tour operators. Using the alternatives, which included suggestions
ranging from the maintenance of the status quo through the use of
voluntary agreements and restrictions on time, season, and altitudes,
to a complete ban on all future air tour operations, the FAA made an
informed decision. After considering the public policy favoring the
preservation of the natural enjoyment of our National Parks, the strong
demand from Colorado residents to ban commercial air tour overflights,
the special situation and unique features of RMNP, and the numerous
comments and alternatives, the FAA concluded that a ban on commercial
air tour operations over RMNP will ultimately inure to the benefit of
all. In effect, the ban will operate to preserve the status quo,
because there are currently no commercial air tour operations at RMNP.
The ban clearly protects the enjoyment of the park while avoiding the
imposition of restrictions that would result in a less than meaningful
opportunity for commercial air tours to operate over RMNP.
1. Alternative One--Ban Sightseeing Tours
a. Support. The majority of commenters (99 percent) support a ban
on commercial aviation sightseeing tours. Most of these commenters are
individuals who live near the park and/or have visited the park.
Organizations that support a ban include: CANA/S, Sierra Club, NPCA,
Wilderness Land Trust, League of Women Voters, Town of Estes Park,
Estes Valley Improvement Association, Inc., Larimer County Board of
County Commissioners, The Wilderness Society, and other local
governmental and non-governmental organizations. Reasons that
commenters give for supporting the ban include:
[[Page 1196]]
(i) Preserve the Natural Enjoyment of the Park. Commenters stress
that the total ban would preserve the natural enjoyment and
tranquillity of the park, which is what visitors value most in their
national park experience. Some commenters cite statistics. e.g., 96
percent of park visitors value tranquillity, and 81 percent of park
visitors are directly opposed to tour overflights. Some commenters
point out that most of the park's visitors come from urban areas and
are seeking the peace and quiet offered by the park. Others point out
that the original purpose of national parks and wilderness areas was to
provide this natural tranquillity and that overflights would destroy
this objective.
Commenters assert that the allowance of overflights at other
national parks (e.g., Grand Canyon National Park) has resulted in
unacceptable noise levels which spoil the experience of park visitors.
For example, commenter #2698 says that commercial sightseeing tours in
Sedona, Arizona's Red Rock and Canyon regions continually violate FAA
regulations which limit flight altitudes.
Roy Romer, the Governor of Colorado (comment 2156), supports
Alternative One. He cites the counties, chambers of commerce, and
hundreds of area citizens who have shown their unanimous support for a
ban on helicopter tour overflights and who believe that helicopter
tours of the park would be inconsistent with the long-term economic
development goals and quality of life in their communities. Similarly,
CANA/S (comment 4227) references two memos: One from Department of
Agriculture, Secretary Dan Glickman, to Department of Transportation,
Secretary Federico Pena (dated July 31, 1996); and the other from the
Forest Service Chief Jack Ward Thomas to Secretary Glickman (dated
April 11, 1996): ``We believe that commercial helicopter flights over
wildernesses are inconsistent with the values for which these areas
were established by Congress.''
Estes Valley Improvement Association (comment 155) claims that tour
operations would shatter the silences in the RMNP ``bowl of a valley.''
It is this commenter's belief that because the air is thin in this
area, larger and stronger helicopter engines would be necessary. This
would result in unendurable noise in the valley, thereby negatively
impacting the ground tourism as well as the quality of life for the
residents of the area.
The NPCA (comment 3634) states that, unlike commercial passenger
jets and general aviation operations, commercial air tour operations
are characterized by frequent, low-altitude flying to maximize contact
with scenic points of interest. From the perspective of NPCA's members,
this impacts on the park visitor's experience and the preservation of
natural quiet.
(ii) Safety. Estes Valley Improvement Association (comment 155)
cites the danger that tour operators would put themselves in by flying
in an area known for extreme variations in weather, as sudden storms
are common in the Great Divide and have been known to destroy
airplanes. This, in turn, is a great source of danger for helicopters,
people on the ground, and rescue operations.
Another commenter (comment 1335), based on his experience as a park
ranger at the RMNP, states that bursts of wind would prove difficult
for piston-engine aircraft to maintain altitude, air speed, and control
when operating in the ``rarefied air of these altitudes'' of the RMNP.
Also, he comments that the terrain of the park is more vertical than
horizontal and is not safe for the operation of any aircraft and that a
further danger would be for rescue personnel and victims of an
incident. He cites the specific example of a recent airplane accident
on Mount Epsilon, where the plane exploded from impact on the
mountainside; when the airplane and pilot were found, there was no safe
way to retrieve the pilot's body due to the potential of avalanches
caused by the perilous plane position on the snow cornices on top of
the cliff.
One commenter asserts that Alternative One would ensure the safety
of park visitors (passengers on overflights and visitors on the ground)
by preventing flying in a potentially unsafe mountainous area with
varying elevations and unpredictable weather conditions (e.g., quick-
forming thunderstorms, strong mountain wave winds and accompanying
turbulence). One commenter (comment 540) also asserts that the crash of
any aircraft could likely ignite a catastrophic forest fire.
(iii) Wildlife. From an ecological standpoint, commenters 295 and
1335 assert that increased air traffic can affect animals in many
negative ways: adversely affecting breeding behaviors of birds and
mammals, interrupting nesting habits, and causing stress to certain
species. Animals indigenous to these areas are apt to respond to this
noise stress by either migrating from the area or simply dying off,
unable to handle the stress to their natural habitat. In addition,
there may be an increased danger from rock falls and avalanches. To
this commenter, the most important issue is that the RMNP should serve
as a tranquil refuge to the wildlife. Posing a similar ecological
concern, a park ranger (comment 1335) mentions the greater pollution
problem when dealing with airplane crashes, scattering fuel loads and
airplane parts throughout the fragile tundra ecosystems, which require
years to recover from such accidents.
A complete ban would prevent potential negative impacts on
wildlife. Some commenters state that RMNP is one of the last refuges
for many species, and that overflights would devalue their natural
habitat and safety. This, in turn, would impact visitors' experience of
the park because many of them value wildlife sightings. It would also
be consistent with the national policy of providing protection for
national park lands.
(iv) Access for Disabled. To counter the claim that prohibiting the
flight of helicopters would disadvantage the elderly or disabled from
enjoying the park, the Estes Park Accommodations Association (comment
257) states that there are areas for cars to travel as well as tour
vans to accommodate them. The Wilderness Land Trust (comment 2027)
similarly assert that there are opportunities to partake of the scenic
vistas, making aviation sightseeing unnecessary.
Visitors who cannot or choose not to see the park on foot can
already get a good view of the park and look down on the mountains by
driving on one of the park's several roads (e.g., Trail Ridge Road) or
by using the handicap accessible trails. Thus, overflights are
unnecessary.
(v) Cost. CANA/S (comment 4227) states that the benefit (natural
quiet for the vast majority of visitors and residents who value this
resource) of Alternative One justifies its costs (a disappointed
prospective air tour operator of some unknown time in the future). The
same analysis applies to the option of maintaining the status quo
(avoiding any additional expenses now), which according to this
commenter does not ``justify its costs (uncertainty about the advent of
RMNP air tours, as well as the failure of FAA to address problems in
their early or pre-existent stages, not to mention even higher expenses
to solve problems retroactively.)'' The benefits of Alternatives Two
and Three (economic transactions between the few and the fewer) do not
justify their costs (shattered natural quiet for most individuals, and
enormous governmental expenses for dealing with the problems).
(vi) Other. The Wilderness Society (comment 4457) states that, as
has occurred at other national parks, correction of overflight problems
will be
[[Page 1197]]
virtually impossible once commercial flights have become established.
Thus, FAA action is necessary to preclude the establishment of
commercial air tour operations within RMNP and provide the highest
degree of protection for the park's resources and visitors.
The Sierra Club, Grand Canyon Chapter (comment 2035) strongly
supports Alternative One and adds the following recommendations: the
rule should be implemented permanently; four bordering Congressionally
designated wilderness areas should also be covered under this no-air-
tour-flight rule, specifically, Comanche Peak, Indian Peak, Neota, and
the Neversummer Wildernesses; general aviation should be subjected to
the same rule as air tour operators, except that low altitude flights
may be required for emergency purposes like search and rescue, fire-
fighting, etc.; and the rule should apply to airspace adjacent to the
protected areas as well.
b. Oppose. (i) Air Transportation--Least Damaging. Commenters such
as the HAI (comment 4357) and Geo-Seis (comment 4350) claim that
helicopters and other air tours are the most environmentally sound
means to enjoy RMNP because, unlike those visitors on foot, the air
tour visitors do not trample vegetation, disturb artifacts or leave
behind any refuse. In addition, air tours do not require roads or other
infrastructure development. More importantly, they provide a service to
the handicapped and elderly, who would not otherwise be able to visit
the park. Finally, these tours may fulfill the need to provide rescue
and emergency airlift.
NATA (comment 4229) and HAI (comment 4357) state that these
proposals are discriminatory in nature as no other modes of access to
the Park have been proposed to be limited. NATA states that ground
traffic ``extol a much more tangible price on the natural beauty of the
Park'' while air tours ``leave no residual effects within the Park that
affect the enjoyment of the Park by persons on the ground.''
(ii) Temporary Ban While Studying. NATA (comment 4229) notes that
the idea behind the prohibition of all flights is to allow the FAA and
NPS the opportunity to ``study the situation and to develop a plan for
controlling these overflights to minimize or eliminate their effect on
park visitors on the ground.'' This commenter thinks that this
alternative is counter-intuitive to this stated objective, as no data
would be able to be collected if no flights were permitted to take
place in the RMNP. In order to accurately determine the effect of air
tours within the Park, air tours must be allowed within the Park, as
extrapolating or estimating the data from other sources would be
inaccurate due to the unique characteristics of all parks. In
conclusion, NATA believes that the fact no sightseeing operators
provide service to the Park is irrelevant and future opportunities to
provide access to the Park are eliminated unfairly.
(iii) Air Tour Operators comparable to General Aviation Aircraft.
The USATA (comment 4563) points out that, according to the NPRM,
commercial aircraft currently overfly the park on a daily basis at
19,000 and 16,000 feet above mean sea level (MSL). USATA says that
these altitudes are less than 2,000 feet above the highest peaks and
also adds that, since seventy percent of the park terrain at RMNP is
10,000 feet MSL, most of the general aviation aircraft currently flying
through RMNP are following routes where the Park's peaks rise above
these aircraft. USATA states that with numerous aircraft moving in,
around and above RMNP, NPS officials, in discussions with the FAA, have
found that these aircraft have not caused any serious noise problem.
USATA believes that air tour aircraft are akin to general aviation
aircraft and commercial overflights, and if used properly, would
present negligible effects.
(iv) Other. Temsco Helicopters (comment 4575), an operator that
conducts air tours in Alaska, says that prohibiting air tours would be
discriminatory to air tour operators. This commenter also says that
alternative one would create interpretation problems. For example,
``are flights that are point to point but fly through RMNP air tours?
Is a photo flight an air tour?''
2. Alternative Two--Permit Sightseeing tours with Limitations
a. Support. Geo-Seis (comment 4350) would support some time-
specific restrictions under this option and suggests that the times be
modified to parallel optimum flight conditions, which are primarily
earlier in the mornings to mid-afternoon.
b. Oppose. (i) Enforcement. The Estes Valley Improvement
Association (comment 155) claims that limiting operations is completely
unsatisfactory primarily because of the inability of any agency to
monitor this regulation. This commenter and others believe that the
proposed requirement of flying 2,000 feet above ground-level is not
practical or enforceable since the ground-level varies so drastically
from 7,500 to 14,255 feet.
CANA/S (comment 4227) claims that the FAA's 2,000-foot above-
ground-level guideline for flights over noise-sensitive areas is
routinely ignored by air tour operators. In addition, HAI's flight
guidelines are also often ignored.
An individual commenter (comment 325) says that a 2,000 ft. above
ground level restriction is meaningless because ``[o]ver much of the
park's terrain hikers could throw rocks down on the occupants of a
plane complying with the restriction.'' Also, seasonal restrictions are
meaningless because the park is used year-round by skiers and others.
(ii) Noise Issue. Estes Valley Improvement Association (comment
155) states that since noise from aircraft reverberates all over the
valley, this option to keep flying only over roads would not solve the
reduction in noise issue, as this area is where the highest percentage
of residents, visitors and lower groups of animals would be affected.
Similarly, CANA/S (comment 4227) adds, noise from aircraft flying
at 2,100 feet above ground is, for all intents and purposes,
indistinguishable from that at 2,000 feet. Therefore, this alternative
and the voluntary agreement fail to address many aspects of the natural
quiet equation. This commenter adds, according to NPS's 1992 Aircraft
Overflight Study: Effect of Aircraft Altitude upon Sound Levels at the
Ground, any doubling of flight altitude (say from 2,000 feet to 4,000
feet) would, based on divergence alone, result in only a 12 decibel
reduction (NPS, page 3). This commenter contends that this may be
helpful in the instance of already quiet aircraft, but loud aircraft
would still shatter the quiet.
The Wilderness Society (comment 4457) states that the restrictions
of Alternative Two would not eliminate the degradation of visitors'
experiences. Routing flights over road corridors would mean that more
visitors would be affected by the noise, and routing flights over
backcountry areas would affect the highest quality wilderness and
wildlife habitat. In addition, restrictions on elevation above ground
level would not eliminate the noise problem, and would result in as a
de facto ban at those altitudes where noise levels were reduced to an
acceptable level because the distance from the ground to the aircraft
would be too great to afford a decent view. Finally, it would also be
extremely difficult to enforce an altitude restriction.
(iii) Lack of Data. Taking a different approach to this
alternative, NATA (comment 4229) perceives that the variants presented
by this alternative
[[Page 1198]]
offer nothing more than varying forms of restrictions. This commenter
assumes that the basis for this action is to enhance the environment of
the Park by visitors on the ground by limiting air tour operations
during these periods. However, NATA asserts, no quantifiable data
exists as to how limiting air access to the Park will enhance the
experience of visitors on the ground. According to a survey of Park
users conducted by the NPS, about 90 percent of the visitors to the
Park stated that their enjoyment of the Park would be affected by
helicopter noise. This commenter states that using this data to limit
all overflight operations is ludicrous, and ``the FAA cannot apply
theoretical data to a nonexisting situation.''
HAI (comment 4357) believes that this NPRM does not provide
sufficient information for meaningful comment. For instance, no
information on what routes are considered in Alternative Two was
included and there are no maps or charts provided for an analysis of
proposed routes. This lack of information makes it impossible to
comment in detail.
(iv) Other. NPCA (comment 3634) states that, in a park environment
that is totally free of commercial air tour activity, placing
limitations on operations would invite the establishment of such
activity. NPCA adds that any limit, less restrictive than a total and
permanent ban, would result in the derogation of park values rather
than any improvement of current conditions.
Temsco Helicopters (comment 4575), which supports alternative
three, states that time and seasonal restrictions of alternative two
would make any kind of air tour operation unworkable. For example,
seasonal restrictions would make operations economically unfeasible and
would close the park to one type or class of visitor for a portion of
the year.
USATA (comment 4563) disapproves of imposing limits on the routes
used by air tour aircraft and points out that the ability of these
aircraft to operate away from populated areas is a positive factor.
USATA states that air tours would cause the least amount of
environmental damage to wilderness areas and would therefore be
supporting the mission of the Wilderness Act to preserve the ``primeval
character and influence'' of these areas.
USATA goes on to point out its difficulties with Variants A, B, and
C. USATA says that the 2,000 feet AGL limitation of Variant A would be
in effect a ``one-size-fits-all'' approach would could exacerbate the
presence of sound from aircraft; this was the case in Haleakala
National Park which was required to meet a 1,500 foot AGL minimum by
SFAR 71. USATA also states that the time limitations of Variant B would
be unreasonable because it would be impossible to present many of the
wonders of the park in the absence of flight. Finally, USATA says that
the seasonal limitations of Variant C would threaten the viability of
air tour operations seeking to operate in RMNP because many of these
companies would need to operate year round in order to stay in
business.
3. Alternative 3--Voluntary Agreement
a. Support. The Grand Canyon Air Tour Council (comment 2006)
contends that this is the only viable option. This commenter believes
that a voluntary agreement is necessary, because such an agreement
provides a solution ``where no authority exists for effecting
regulatory options (as in the case of this RMNP NPRM).'' This commenter
provides reasons why the other two alternatives are not acceptable: the
disregard to the interests of the elderly and handicapped to have air
tour availability in the RMNP, the lack of an Environmental Impact
Statement prior to the implementation of the proposed SFAR, and the
fact that this proposal is based on a request by Colorado's Governor,
the Congressional delegation, and other officials from Colorado
specifically, none of whom are the owners of this national park and do
not represent a federal statutory authority nor a legislative mandate.
Therefore, in this commenter's opinion, it ``would appear incumbent
upon the FAA to decide to proceed only with Alternative Three and
request the involvement of potential tour operators in the
establishment of a voluntary agreement to prohibit or limit
operations.''
Temsco Helicopters (comment 4575) points out that there are good
examples of existing voluntary agreements that are working well. For
example, in Alaska, where this commenter operates, the best routes and
altitudes have been refined over the years and have resulted in the
least impact and very few complaints. This commenter states that an
SFAR would not allow for the kind of refinements and positive results
that such agreements have fostered.
Geo-Seis (comment 4350), an air tour operator, believes that given
the personal preferences of paying customers on these flights and
limitations on flights due to adverse weather conditions, voluntary and
satisfactory operating agreements could easily be established with most
operators.
AOPA (comment 4356) believes ``cooperation between general aviation
pilots and the NPS has always been a cornerstone of aviation's efforts
to preserve the park experience of ground visitors. The current
voluntary overflight altitude of 2,000 feet is one result of this
cooperation.''
USATA (comment 4563) supports the use of voluntary agreements and
says that its organization would work with the FAA, NPS, and others in
drafting a letter of agreement. The agreement should address these
issues: (1) areas that would be covered, (2) possible restrictions and
identities of the participants, (3) discussion on how an agreement
would be implemented in the necessary time frame, (4) how an altitude
restriction would be enforced, (5) suggested penalties for violations,
and (6) the circumstances under which an agreement could be terminated.
b. Oppose. Many commenters say that voluntary compliance is
unrealistic because operators would not voluntarily limit their own
profits and because it would be difficult to enforce. For example,
commenter #325 says that the park is sufficiently large to be a
challenge to monitoring of compliance.
The Estes Valley Improvement Association (comment 155) believes
that this proposal is completely unrealistic since, currently,
operators do not exist in the RMNP, and no possible route of
overflights could make tolerable the noise which would fill the Valley
and the Park.
NPCA (comment 3634) states that voluntary agreements have a history
of failure and cites the experience at Hawaii Volcanoes National Park
where many operators, after having given verbal agreements to park
management, backed away from written agreements for fear that a rogue
operator would capitalize on non-compliance and seize market share.
Similarly, the Wilderness Society (comment 4457) states that voluntary
agreements have not successfully protected park resources and that
violations occur for which the Park Service has no recourse.
On the NPRM's use of the Statue of Liberty and Jefferson National
Expansion Memorial as examples of successful voluntary flight
agreements, CANA/S (comment 4227) refutes the ability of the FAA to use
them as examples. These locales are site-specific, urban ones, where
``natural quiet'' did not already exist to any appreciable degree,
particularly with the 500-foot above ground level altitude agreements
in effect. These locales are in no way comparable to those of much more
vast territory, much of it wilderness, and much of it relatively
[[Page 1199]]
quiet. The sightseeing objective of those two examples is to swoop
around a single entity. Similarly, NATA (comment 4229) claims that
while these self-regulated, self-policing cases have been successful
for those specific parks, no air tour operators currently provide
service to the RMNP, and no agreements can be made between the
government and ``air tour operators which may exist in the future.''
Response to Comments
As will be described in greater detail below, the comments offered
many cogent and informative remarks for consideration by the FAA. The
number and quality of the comments received demonstrated to the FAA the
importance and complexity of this issue as it relates to RMNP. All
comments were thoroughly read and analyzed.
Many of the commenters offered similar arguments for either
acceptance or rejection of the various alternatives presented in the
NPRM. Due to the vast number of the comments, the section below is a
summary of the assertions alleged in the comments and the corresponding
response by the FAA.
FAA Authority To Manage the Airspace
Several commenters questioned what they considered was the apparent
usurpation by the NPS of the FAA's statutory authority and jurisdiction
to regulate the national airspace system. They asserted that the NPS,
through this rule, had gained control over the navigable airspace in
complete disregard to the FAA's statutory mandate. The regulation of
navigable airspace is the sole responsibility of the FAA. The United
States Congress has clarified this issue by vesting the FAA with sole
authority for the management and control of the navigable airspace. In
addition, safety remains the FAA's primary consideration and plays a
necessary and integral role in any decision made by the agency.
The allegation that the NPS has assumed jurisdiction for the
management of the national airspace is unfounded. The FAA and NPS
worked closely together, however, to base any regulatory action on
FAA's statutory authority and responsibility. Toward this end, for
example, no action was even proposed until the FAA made a determination
that there would be no adverse effect on aviation safety in navigable
airspace from any of the proposals stated in the NPRM.
Several commenters argued that the FAA lacked the authority to
regulate a problem that ``does not exist.'' These commenters argue that
it is premature for the FAA to regulate this area, where commercial air
tours do not presently operate over RMNP. The Administrator of the FAA
is charged with the duty of regulating the use of the navigable
airspace, adopting regulations deemed necessary to abate aircraft
noise, and protecting persons and property on the ground. The
Administrator has the authority to regulate whenever previous history
or evidence has revealed a propensity for future problems.
The FAA acknowledges that each of the national parks differ in
their topography, nature, size and purpose, but certain experiences
found in one park also occur in other parks. Experience with commercial
air tour operations in Badlands National Park, Bryce Canyon National
Park, Glacier National Park, Glacier Bay National Park, Great Smokey
Mountains National Park, Grand Canyon National Park and Mt. Rushmore
National Memorial have demonstrated the rise in the number of
commercial air tour operations conducted over the parks and a
concomitant increase in the noise from such operations.
For example, at Glacier National Park, The NPS estimates that from
1986-1996 the number of fixed wing and helicopter tours at the park
increased from 100 to 800 and the number of tour operators from one to
five. At Badlands National Park, NPS estimates that the single air tour
operator offering helicopter tours conducted over 400 flights in a five
month period, or an average of three flights per hour during peak
periods. These flights are repetitive in nature concentrated in two
basic circular flight patterns over the same area again and again,
constantly disturbing the quiet of the park. The air tour operations
have led to numerous complaints by visitors to the park.
Bryce Canyon has air tour operations from several locations within
the vicinity of the park. At Bryce Canyon Airport, located 3.5 miles
north of the park, NPS reports that the number of enplanements has
increased dramatically from 1299 in 1991 to approximately 4700 per year
in the current year. Likewise, the number of air tour operators, from
all locations, has increased from one to five. At the Mt. Rushmore
National Memorial, the Park Service estimates that the number of
overflights has increased from 2400 per year to 4000 per year along
with an increase of tour operators from one to four. All of the tour
operators use helicopters and the majority of these flights are
concentrated in the summer months at the rate of approximately 30 per
day.
In addition, the Park Service has conducted a survey of park users
at RMNP, which indicated that ninety-three percent of visitors
considered tranquility to be an ``extremely'' or ``very'' important
value in the park. Approximately ninety percent of the visitors
surveyed stated that noise from helicopter tours would affect their
enjoyment of the park. A copy of the survey has been placed in the
docket of this proceeding.
Based upon this information from RMNP visitors, the growth of tour
operations at these other parks, and the apparent representations of
potential tour operators, the FAA has concluded that the introduction
of air tour operations at RMNP is a real possibility in the absence of
regulation. Further, if commercial air tours are established at RMNP,
the actions by commercial air tour operators at the other parks
suggests that the number of commercial air tour operators and the
number of daily over flights would both increase beyond de minimus
levels. Air tour operations would tend to visit many of the points of
interest where ground-based visitors are likely to concentrate and to
conduct operations at altitudes so as to maximize contact with these
points of interest. The increase in operations and their proximity to
major points of interest would lead to increased noise levels thereby
impacting the quiet enjoyment of RMNP expected and desired by visitors
to the park.
While the FAA has determined that a permanent rule regarding
oversights of Rocky Mountain National Park by commercial tour operators
should be made part of the overall rulemaking on overfights of all
national park units, the FAA is taking this temporary action now to
avert the introduction of such operators into RMNP while the national
rule is completed. The experience gained from other national parks
forms part of the basis for the Administrator's decision to move at
this time to protect Rocky Mountain National Park.
Administrative Procedure Act
One commenter alleged that the FAA has failed to comply with the
Administrative Procedure Act's notice and opportunity for comment
requirements by failing to provide sufficient information to allow a
meaningful response to Alternative Two. As an example, the commenter
suggests that, under Alternative Two, the absence of maps and charts
deprives the commenter of a meaningful opportunity to analyze the
proposed routes.
Section 553(b) of the Administrative Procedure Act provides that
``notice shall include--(3) either the terms of substance of the
proposed rule or a
[[Page 1200]]
description of the subjects and issues involved.'' Under the
alternatives section, the FAA solicited comments on numerous proposals,
while requesting new ideas on possible restrictions. The Agency
received many comments on the proposed alternatives, but no new
alternative that had not already been proposed. (Had the FAA received a
new, significantly different, proposal on which it relied, the FAA
would have issued a Supplemental NPRM to solicit comments on the new
proposal prior to taking action.) The number and specificity of the
received comments demonstrate a general understanding of the proposed
alternatives. Therefore, the FAA concludes that it has provided
sufficient detailed information concerning the description of the
subjects and issues involved to comply with the terms of the
Administrative Procedure Act by affording interested parties with a
meaningful opportunity to comment on the proposal.
``Natural Quiet'' Standard
One commenter challenged the action of the FAA as proposed in the
NPRM by alleging that the actions of the FAA exceeded the Congressional
mandate provided under Public Law 100-91 to substantially restore the
natural quiet of the Park, because that standard was devised solely for
the protection of the Grand Canyon. The commenter further opined that
the attempt to achieve ``natural quiet'' in RMNP was inappropriate and
without any Congressional mandate.
It is true that Public Law 100-91 was directed to restoring the
``natural quiet'' of Grand Canyon National Park only and not to the
other parks in the national system. Public Law 100-91 provides for the
substantial restoration of the natural quiet and experience of the
Grand Canyon National Park and protection of public health and safety
from adverse affects associated with aircraft overflights. The FAA is
taking separate action on restoring the quiet of Grand Canyon National
Park.
In this final rule, however, the FAA is carrying out President
Clinton's directive to promote natural quiet at Rocky Mountain National
Park. As noted above, the President's Parks for Tomorrow initiative
specified that the restoration of natural quiet, and the natural
enjoyment of RMNP are goals to be addressed by this rulemaking. By
promulgating this final rule, the FAA is cooperating with the NPS to
further the goal of protecting Rocky Mountain National Park, its
environment, and visitors' enjoyment, to ensure that the potential
problems associated with noise from commercial air tour operations do
not arise while a long-term solution is developed to protect RMNP and
other national park units from the adverse effects of overflights by
tour operators.
Another commenter asserted that NPS's report to Congress, while
espousing the restoration of natural quiet, singled out only noise as
being obtrusive. The commenter alleged that this made the report
incomplete and biased.
The NPS's report to Congress: Report on Effects of Aircraft
Overflights on the National Park System responded to the Congressional
mandate set forth in Public Law 100-91. The scope of the mandate was
limited to the impacts of aircraft overflight on the national park
system with distinctions to be made among various categories of
aircraft overflights. The law made no provision to identify or compare
any impacts on the national park system from other activities or
sources. To the extent that other activities, such as ground
transportation, may have an adverse effect on parks' environment or
visitor experience, these effects can be dealt with by the NPS under
its authority.
NEPA Requirements
Some commenters maintain that the FAA should prepare an
environmental impact statement (EIS) pursuant to the National
Environmental Policy Act of 1969, prior to issuing the final rule
because they contend that implementation of any of the alternatives of
the proposed SFAR, except the ban alternative (Alternative 1), will
have a significant adverse affect on the quality of the human
environment.
According to the FAA's Environmental Order 1050.1D, the final rule
is a Federal action which requires compliance with the NEPA. Consistent
with the FAA Order 1050.1D, Para. 35, the FAA prepared a draft
environmental assessment (DEA). The DEA did not disclose potentially
significant direct or indirect impacts affecting the quality of the
human environment. On November 21, 1996, the FAA announced the
availability of the DEA for notice and comment. The comment period on
the DEA remained open until December 23, 1996. Based on the comments
received on the DEA and further analysis, the FAA has issued a Final
EA. The FAA has determined that no additional environmental analysis is
required and has issued a finding of no significant impact (FONSI). The
final EA and FONSI has been issued and is available for review in the
Docket. For copies of the documents, contact the person listed in the
For Further Information Contact section listed above.
This final rule constitutes final agency action under 49 U.S.C.
46110. Any party to this proceeding having a substantial interest may
appeal the order to the courts of appeals of the United States or the
United States Court of Appeals for the District of Columbia upon
petition, filed within 60 days after entry of this Order.
EPA Consultation
One commenter states that the NPRM does not cite a statutory basis
for the proposed action, but if the basis is 40 U.S.C. 44715, the FAA
failed to consult the EPA.
The FAA is, in fact, relying on 40 U.S.C. 44715 and has consulted
with EPA. The EPA believes that the environmental assessment adequately
supports a finding of no significant impact.
Airline Deregulation Act
Another commenter believes that by promulgating the NPRM, the FAA
has violated Section 102 of the Airline Deregulation Act of 1978 by
failing to: (1) Encourage the entry of new carriers into air
transportation, (2) foster the expansion of existing carriers into
additional air transportation markets, and (3) insure the existence of
a competitive airline industry. The commenter cites the possibility
that interstate operators might become interested in commercial air
tours in the future.
The statutory obligation to encourage development and competition
among air carriers is not unconstrained. The FAA has authority to
regulate, restrict, or prohibit activities by operators when necessary
in the public interest. The final rule effects a temporary ban on
commercial air tour operations over the Rocky Mountain National Park;
the FAA has determined such a ban is necessary to allow for the orderly
development of a comprehensive approach to regulating air tour
operations at RMNP and other parks in a manner that is consistent with
the needs of park visitors on the ground. The potential that an
interstate operator will become interested in commercial air tour
operations at RMNP at some unspecified point, let alone during this
interim period, is pure speculation, irrespective of the informal
remarks of the commenters, and fails to rise to the level of a
protectable interest. Moreover, it is important to recognize that a
major reason the final rule has been promulgated, prior to the
existence of commercial air tours, is to avoid the unnecessary
interruption of established commercial service by whatever
[[Page 1201]]
regulation is adopted in the broader national rulemaking now underway
on park overflights.
This rulemaking arose in response to public demand. The policy for
preserving the natural enjoyment at our national parks has been
formulated by the FAA to facilitate the adaptation of the air
transportation system to the present and future needs and interests of
the public. Any potential air tour operator currently evaluating
whether to provide air tour operations within Rocky Mountain National
Park will be able to participate in the development of the rulemaking
on national park overflights at all parks, including RMNP.
Americans With Disabilities Act
Several comments were received alleging that the final rule will
violate the Americans With Disabilities Act, Sec. 2(a)(8) by depriving
disabled persons of equal opportunity for full participation in the
enjoyment of the Rocky Mountain National Park. According to these
comments, commercial air tour operations will be the only way disabled
individuals can enjoy the vistas of RMNP.
To the contrary, Rocky Mountain National Park offers an unique
opportunity for disabled individuals to enjoy its spectacular vistas
via its extensive road system. Approximately 54% of the RMNP can be
viewed from some point along its 149 miles of winding road. In this
aspect, RMNP is unique in its ability to provide access to recreational
experiences via trails which allow access to backcountry and scenic
vistas. Moreover, the NPS has established facilities and programs
within RMNP to enhance the opportunities for visitors with disabilities
to experience the Park. Thus, FAA believes that this rule does not
violate the ADA.
Economic Costs
One commenter suggested that the FAA should conduct a cost/benefit
analysis to determine whether the costs of implementing the NPRM will
exceed its ultimate value to society. The imposition of this ban will
not have an economic impact on commercial air tour operations over RMNP
today because they are non-existent. Nor does the FAA consider it
probable that significant levels of new services will arise during the
temporary period between adoption of this rule and completion of the
more comprehensive rulemaking on national park overflights. The FAA's
intent is specifically to avert economic damage to commercial air tour
operators by acting prior to one of more operators commencing business
on the assumption that they will be allowed to operate over RMNP once
the general rule is adopted. By acting expeditiously, the FAA will
enable these operators to avoid making the capital investments
necessary to engage in these operations that may be subject to future
restrictions as part of the national rule.
However, it would be an error to minimize the true impetus for the
final rule which is to preserve the natural resources at RMNP,
including the quiet and solitude. In this respect, it is difficult to
assign a monetary value to the benefit to be gained by this rule.
Specifically with respect to the economic value attached to the
preservation of environmental values, some economic analysis models
(such as use of a ``willingness to pay'' analysis) could ascertain an
economic value to society of such an asset. However, such analysis is
not necessarily directly comparable in a cost/benefit basis with the
economic valuations of costs and benefits that the FAA undertakes for
other rulemakings. As a result, the information provided through such
an effort would have little analytical or probative value.
National Standards/General Aviation
Many of the commenters that expressed opposition to this rule
stated that it is premature for the FAA to take action concerning one
park within the national park system when it is currently drafting a
rule to cover all aviation operations within the total national park
system. The commenters felt that parks should not be dealt with on a
case-by-case basis, but should be incorporated into any national
standards that are promulgated.
To some extent, the FAA agrees with these concerns. For that
reason, this rule will terminate when national standards are adopted.
However, in view of the strong local demand for action to ensure
preservation of Rocky Mountain National Park and the ripeness of this
proceeding, the FAA is taking the opportunity to establish temporary
protective measures at RMNP while the national standards are being
adopted. By Presidential Declaration dated April 22, 1996, the
President directed the Secretary of Transportation to consider and
draft a Notice of Proposed Rulemaking that would propose national
standards for air tour overflights of the national parks. The FAA is
working on that national rule currently and will follow rulemaking
procedures, including proceeding with notice and opportunity for
comment, prior to taking any final action. The FAA has designed its
Rocky Mountain National Park rule to terminate on the adoption of
national standards.
Certain commenters raised an objection that even though the air
tour ban would apply to only commercial air tour operators, the rule
proposed still represents an undue threat to the public right,
including that of general aviation aircraft, to transit the navigable
airspace of the United States. This final rule is strictly limited to
overflights by commercial air tour operators over RMNP. Air tour
operations differ from general aviation operations in the frequency of
trips and their operational altitudes. In addition, air tours generally
operate over picturesque areas where ground traffic congregates and at
altitudes intended to maximize contact with these areas. Therefore, air
tour operations are distinguishable from general aviation operations to
such a degree as to remove any perceived threat to the right of general
aviation aircraft to transit RMNP. Under the provisions of the final
rule, all other aircraft will remain undisturbed in their current
routes and altitudes of flight.
Quiet Technology
Another commenter recommends that rather than banning commercial
air tours over the RMNP, the FAA should follow the recommendations of a
1994 report to Congress where the NPS suggested the use of quiet
aircraft technology as a means of reducing the noise effect on National
Parks. The NPS report to Congress suggested that quieter aircraft could
be used in substantial restoration of natural quiet in Grand Canyon
National Park (GCNP). It identified Dtt C-6-300, Vistaliner and Cessna
208 Caravan airplanes, and the McDonnell Douglas ``No Tail Rotor''
helicopters as the quietest aircraft currently operating in GCNP. The
NPS made this determination based on its evaluation of aircraft
certification data derived from applicable noise certification
standards in Part 36 of Title 14 of the CFR, and from NPS flyover noise
measurements taken in the park. Because of the temporary nature of this
rule, the FAA determined that quiet technology would not provide an
adequate alternative. Quiet technology ultimately holds great promise
for ensuring the compatibility of air tour overflights and the
maintenance of quiet for ground-based visitors of national parks.
Indeed, movement toward the use of quiet technology forms a cornerstone
of the FAA's proposal for a long-term solution to overflights of the
Grand Canyon. And the FAA will want to explore the role quiet
technology should play in the national rule. However, for this interim
period, a temporary ban on
[[Page 1202]]
commercial air tour operations will maintain the status quo and allow
an orderly resolution of questions pertaining to quiet technology and
other issues. To the extent that technological change would allow the
operation of commercial air tours within RMNP in a manner consistent
with the protection of the Park, its resources, and its enjoyment by
visitors, the FAA will review this rule in the future.
The Lack of Air Tour Operators
Certain commenters questioned whether this rule was even necessary,
because aerial tours do not operate over RMNP for obvious reasons: the
high altitudes of the park; aircraft loading factors; and the attendant
operating costs associated with running successful aerial tour
operations. The FAA, in cooperation with the NPS, is currently
developing regulations to govern aircraft overflight of national parks.
Since the inception of that effort, interest has been expressed by an
operator to commence commercial air tour service at RMNP. As a
practical matter, it was the fact that a commercial air tour operator
was contemplating engaging in flights over RMNP that caused the
Governor of Colorado, members of the Colorado Congressional delegation,
and Estes Park, Colorado officials to request the FAA to preemptively
ban such operations at RMNP.
The fact that commercial air tour service is being contemplated for
RMNP supported the FAA determination that immediate action was
necessary to preserve the natural enjoyment of visitors to RMNP by
implementing a temporary ban on commercial air tour operations. In
addition, the FAA believes it is critical to act expeditiously on this
matter to avoid any potential environmental and economic impact.
Alternatives
As previously mentioned, the FAA is attempting to implement a
regulation over RMNP that achieves the goal of preserving the natural
enjoyment of the Park by visitors by averting the future and potential
adverse effects of aircraft noise. The comments received on the
alternatives were crucial in the FAA's decision. Based on the comments,
the FAA determined that Alternatives 2 and 3 would not achieve the
desired goal. Therefore, the FAA has determined that the best
alternative in application and result would be Alternative One on a
temporary basis.
In response to the voluntary agreement alternative and the comments
received on that alternative, the FAA determined that since there are
currently no air tour operators conducting operations over the Park,
there are no operators to participate in a meaningful discussion and
negotiation with the NPS officials at the Park. The FAA is appreciative
of the willingness of certain aviation groups, such as USATA and HAI,
to participate in the drafting and implementation of a voluntary
agreement. However, without actual operators that would be willing to
be made a party to the voluntary agreement, the FAA determined that
this alternative would not achieve its desired goal.
Alternative 2 proposed to permit sightseeing tours with several
suggested limitations. The FAA partially agrees with some of the
commenters who stated that the imposition of partial restrictions would
not provide a meaningful result for the commercial air tour operators
or achieve the goal of this rulemaking. Moreover, in reviewing the
different options that could be used in conjunction with air tour
restrictions listed in Alternative 2, the FAA concluded that the
application of these options would be operationally difficult for the
commercial air tour operators. The terrain within RMNP is quite varied
and irregular, with mountain peaks and valleys differing in elevations
by thousands of feet. This forces a pilot to be more attentive to the
varying topography.
The FAA agrees with the commenters that cited the difficulty in
requiring air tour operators to conduct operations only over the
existing roadways in RMNP. Certain flight corridors may become
necessary in the future, but their establishment will necessitate a
much more comprehensive aeronautical and environmental review that just
designating the existing roadways. Given the challenging operational
environment, the FAA agrees with those comments which claim that
restrictions based on the season, time of day, or day of the week would
be economically unfeasible for air tour operators.
As noted above, the FAA can reasonably infer from the varied and
instructional information received at other parks as to the effects of
aircraft noise due to commercial air tour operations. An altitude
restriction that would increase the minimum altitude above 2,000 feet
above ground level would still have the potential to adversely impact
both visitors and resources. Therefore, the FAA determined that the
most efficient method of mitigating the potential adverse effects from
aircraft noise in this particular case would be to place the preemptive
ban on all commercial air tour operations.
Comments Received During the Reopened Comment Period
On November 21, 1996, the FAA reopened the comment period on this
rule in order to allow comment on the Draft Environmental Assessment
(DEA) that was made available at that time; public responses were also
invited to material from the National Park Service that was placed in
the docket on December 11, 1996, concerning commercial air tour
operations over national park lands.
The information showed that commercial sightseeing operations have
become very popular at a number of units of the national park system,
and are growing in popularity in others. Many park areas have either
documented or estimated significant increases in the volume of air tour
activity over the last ten years. For example, air tour flights over
Grand Canyon National Park have increased from a few hundred flights
per year in the 1960's, to 40,000 to 50,000 per year in 1986, to 80,000
to 95,000 per year in 1996, with up to 40 companies offering
sightseeing flights over the park, according to industry, FAA and/or
media estimates. Experience at Hawaii Volcanoes and Haleakala National
Park in Hawaii has been similar in trend but lower in magnitude, with
highs of 23,000 flights per year and 10 operators estimated at Hawaii
Volcanoes.
Hard statistics are lacking on the number of sightseeing operations
conducted over national park areas because, with the exception of
recent fee legislation for Grand Canyon, Hawaii Volcanoes, and
Haleakala National Parks, there are no requirements for operators to
provide such data. Even at the three parks in the fee legislation,
accurate data has not been readily available. In virtually all cases,
overflight data has to be estimated based upon a variety of sources,
such as airport operations data, limited field observations, FAA
projections for airport master planning, industry publications, and
voluntary responses to surveys and requests for information.
The trends based upon such numbers indicate increasing interest and
levels of sightseeing operations over many national park areas, which
correlates with trends for ground visitation. For example, Glacier
National Park estimates that between 1986 and 1996 the number of
overflights increased from 100 to 800 per year, and the number of
commercial air tour operators increased from one to five. Mount
Rushmore estimated an increase from 2,400 to 4,000 overflights and from
one to four operators during the same time
[[Page 1203]]
period. Sightseeing tour operators have become based within a few miles
of the park boundary during the past two years at Bryce Canyon and
Canyonlands, with major expansion of airport facilities either proposed
or approved to accommodate increasing tour operations at both places.
At present, a new helicopter tour operation is in the process of
starting up at Chickamauga-Chattanooga National Military Park.
The extended comment period closed on December 23, 1996. Forty-nine
submissions were received during the reopened comment period, most of
which were substantive comments on the proposed rule. Many of the
commenters during the reopened period had commented previously, but
were either supplementing their prior comments or were adding to or
extending their arguments.
Thirty-one commenters used the reopened comment period to express
overall support for a complete ban on commercial tour overflights.
These include the comments from the Estes Valley Improvement
Association, the Town of Grand Lake, CO, the National Parks and
Conservation Association, the Pourdre Canyon Group of the Sierra Club,
the Estes Park League of Women Voters, and the League of Women Voters
of the United States and numerous individuals. These commenters
typically stressed the need to maintain the natural enjoyment of the
Park's solitude and quiet and argued that overflights by commercial air
tour operators would adversely affect that enjoyment. Among those
expressing general opposition to the proposal were several other
individuals and Bell Helicopters Textron, Inc. Every comment submitted
during the reopened comment period was read and considered, although
neither all comments nor all points raised will be addressed
individually in this preamble. Many of the arguments presented are
similar to those that were submitted earlier and discussed above.
Several comments, however, suggested new arguments against the
imposition of a ban on commercial tour overflights, and these are
discussed below.
The new comments that addressed the DEA are discussed in the Final
Environmental Assessment for this rule and are not mentioned in the
preamble to this rule. A copy of the Final Environmental Assessment has
been placed in the rulemaking docket and is available upon request to
the person listed in the FOR FURTHER INFORMATION CONTACT section above.
Alleging that the reopened comment period was too short, the
Helicopter Association International, the Grand Canyon Air Tour
Council, and the United States Air Tour Association requested that the
DEA be withdrawn and/or the comment period extended to allow additional
time for further analysis. However, several commenters such as the
League of Women Voters, the Estes Valley Improvement Association, Inc.,
and the Town of Grand Lake, stated that the time allowed was sufficient
to analyze the DEA and found the document adequate in its review of the
relevant environmental consequences associated with this rule. Further,
as discussed above, the FAA believes that prompt completion of this
rulemaking is necessary, because the proposed ban on commercial air
tours contained in the NPRM may affect the business and investment
decisions of operators. Therefore, while in the abstract it is always
desirable to have more rather than less time for public comments, that
desire must be balanced against the need to complete the rulemaking in
a timely manner. This means that the temporary ban should be
implemented before any air tour operator attempts to start commercial
air tour operations at RMNP and then is adversely affected financially
by the imposition of the subsequent ban. Experience at other national
park units suggests that while commercial air tour operations do not
cease in the winter months, the number of commercial air tour
operations in the winter (as well as the number of new start-up air
tour businesses) is not as high as in the warmer months of the year.
Therefore, the FAA wants to impose the temporary ban in the more
dormant months of the year before new air tour operations are started.
Even though the comments offered by Southwest Safaris (Safaris)
focus on the DEA, Safaris alleges certain points that pertain both to
the DEA and this final rule. Safaris argues, among other things, that
the FAA has no basis on which to ban overflights by commercial air tour
operations, because there are no such operations currently. In the
absence of such operations, Safaris argues, there is no ``measurable''
need to prohibit them. Safaris also dismisses National Park Service
data indicating that approximately 90 percent of park visitors surveyed
stated that noise from helicopters would affect their enjoyment of the
park. (``In the last sentence, the word, `would,' does not mean `does.'
The impact of helicopter noise over RMNP is entirely hypothetical.'')
The problem with Safaris' argument is that it necessarily implies that
the FAA has no authority to act to prevent reasonably foreseeable
problems before they occur, and this is simply false. The agency is not
obliged to wait until damage occurs before exercising its authority to
stop such damage. This issue arises more frequently in the safety
context, where most of FAA's regulations arise, but it applies with no
less force in the exercise of FAA's other authorities.
Safaris also challenges the FAA's right to apply information gained
from experience with commercial tour overflights of other national
parks to RMNP. While each park has unique characteristics, the FAA
believes that some general understanding can be gained with respect to
the business of conducting tour overflights, including its growth
pattern and market considerations. The FAA's and NPS experience extends
as well to an appreciation of the effect of such overflights on park
visitors and resources. While specific topography and park
characteristics must be taken into account, the agencies general
knowledge can and must inform its projections about the nature and
effects of any air tour operations at RMNP. The FAA acknowledges that
additional information would improve our ability to forecast specific
noise impacts. The agency has determined to impose only a temporary ban
on commercial tour overflights at RMNP while a broader rule is
considered. This rulemaking allows the FAA to prevent an overflight
problem from air tour overflight from developing in RMNP, as it has in
so many other national parks.
Safaris goes on to argue, as does the Northern California Airspace
Users Working Group, that air tour operations increase rather than
diminish the value of parks, and that compared to automobile visitors,
air tour visitors cause less damage to park resources. The FAA will not
be drawn into any attempt to compare the benefits and costs to park
resources of air and ground visits. Experience from other parks that do
have air tour operations is that most air tour national park visitors
(though by no means all) are also ground visitors. Indeed, this was
confirmed by representatives of the air tour industry at the Grand
Canyon in discussions with FAA staff earlier this year. Therefore, air
tour operations do not in any large measure replace ground visits. In
view of RMNP's ready accessibility to a major metropolitan area and the
convenience with which it may be visited by automobile, it is
reasonable to assume that this will be particularly true at RMNP.
HAI argues that the NPRM should be withdrawn because, in HAI's
view, the regulatory language is too vague to be enforceable. HAI
claims that the
[[Page 1204]]
proposed rule would prohibit regional air carrier and on-demand air
taxi flights that now traverse the park. The FAA has already addressed
the argument that a prohibition on air tours at RMNP would also apply
to other kinds of air operations. The short answer is that it would
not. The FAA has the same response to the comment of the Soaring
Society of America. The Soaring Society's comment argues that gliders
do not pollute measurably, either in noise or emissions, and it states
the Society would therefore oppose a general ban of aircraft flights
over a National Park. The FAA has not imposed any general ban on all
aircraft at Rocky Mountain National Park. Only commercial air tour
operations would be affected by the temporary ban adopted in this rule.
As to HAI's suggestion here that air tour operations cannot be
distinguished from point-to-point service, we believe that neither the
operators nor the FAA will have any difficulty in understanding the
difference between the high-frequency air tour service that
concentrates at places of particular interest and flights that travel
as directly as feasible between two distant cities, and happen to
traverse the park on a particular route. However, if HAI believes, as
it says, that a more specific definition is necessary, we invite HAI to
propose one, either for future use at RMNP or as part of the
development of a national rule on air tour overflights at national
parks.
Regulatory Evaluation
Federal regulations must undergo several economic analyses. First,
Executive Order 12866 directs that each Federal agency shall 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
effect of regulatory changes on small entities. Third, the Office of
Management and Budget directs agencies to assess the effects of
regulatory changes on international trade. In conducting these
analyses, the FAA has determined that this rule is a ``significant
regulatory action'' as defined in the Executive Order and the
Department of Transportation Regulatory Policies and Procedures.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) helps to assure that
Federal regulations do not overly burden small businesses, small non-
profit organizations, and airports located in small cities. The RFA
requires regulatory agencies to review rules which may have ``a
significant economic impact on a substantial number of small
entities.'' A substantial number of small entities, defined by FAA
Order 2100.14A--``Regulatory Flexibility Criteria and Guidance,'' is
more than one-third, but not less than eleven, of the small entities
subject to the existing rule. To determine if the rule will impose a
significant cost impact on these small entities, the annualized cost
imposed on them must not exceed the annualized cost threshold
established in FAA Order 2100.14A.
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall 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 effect of regulatory changes on small entities. Third, the
Office of Management and Budget directs agencies to assess the effects
of regulatory changes on international trade. In conducting these
analyses, the FAA has determined that this rule is ``a significant
regulatory action'' as defined in the Executive Order and the
Department of Transportation Regulatory Policies and Procedures. This
rule will not have a significant impact on a substantial number of
small entities and would not constitute a barrier to international
trade. The FAA's criteria for ``substantial number'' are a number which
is not less than 11 and which is more than one third of the small
entities subject to this rule.
This regulatory evaluation examines the costs and benefits of
special flight rules in the vicinity of Rocky Mountain National Park
(RMNP). The rule is intended to preserve the natural enjoyment of RMNP
from any potential adverse impact from aircraft-based sightseeing
overflights. Since the impacts of the changes are relatively minor as
well as temporary, a full regulatory analysis, which includes the
identification and evaluation of cost-reducing alternatives to this
rule, has not been prepared.
Costs
At present there are no air tour operations over RMNP and, despite
some expression of interest, none have taken definitive action to
initiate service at this time. Considering the historical record, the
FAA assumed that this final rule will not lead to increased costs to an
operator over the next ten years since there are no operators.
Moreover, applications for air tour operations have been repeatedly
turned down by the town of Estes Park, and it is unlikely that
opposition to air tour operators will lessen over time there.
However, while there are no air tour operators that are currently
expected to operate in RMNP, information supplied to the docket shows
that from time to time small operators have tried to gain approval for
operating over RMNP from local authorities. In order not to overlook
the potential costs imposed by this rule to potential operators in this
analysis, the FAA has attempted to estimate this potential cost. To
estimate the potential costs to these potential operators, the FAA
employed recent data from the proposed rulemaking on ``Flight Rules in
the Vicinity of Grand Canyon National Park.''
Financial data from two small scheduled fixed wing operators and a
helicopter operator that operate over the Grand Canyon were utilized.
The three operators chosen are: a 5 passenger CE 206 operator, a 3
passenger Piper Pa-28-180 airplane operator, and a SA-341-G helicopter
operator. The estimated annual operating revenues for these operators
are respectively, $53,000, $10,000, and $16,000.
Even if the FAA assumes that three relatively small operators would
eventually gain authority to operate over RMNP in the next ten years,
the costs will still be quite small. The FAA estimates costs in lost
revenues to operators due to this rule will range from zero, which is
most likely, to $79,000 per year if three operators are denied the
ability to do business over RMNP due to the rule.
Benefits
This rule serves to preserve the desired state of quiet and
solitude in the park. Currently, the natural enjoyment of the Park is
not disturbed by air tour operators and will not be after the rule is
promulgated.
Conclusion
Small entities potentially affected by the final rule are potential
air tour operators that in the absence of the rule would operate over
Rocky Mountain National Park. The FAA estimates from zero to three
operators might be affected by the rule, well below the substantial
number criteria. The FAA thus concludes that there will not be a
significant economic impact on a substantial number of small entities.
International Trade Impact Analysis
The final rule will not have any impact on international trade
because the potentially affected operators do not
[[Page 1205]]
compete with foreign operators. The rule also will not constitute a
barrier to international trade, including the export of U.S. goods and
services to foreign countries and the import of foreign goods and
services to the United States.
Federalism Implications
This action will not have substantial effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Indeed, State and local government representatives have
been among the advocates for FAA regulatory action to protect RMNP from
the noise created by overflights. Therefore, in accordance with
Executive Order 12612, it is determined that this action will not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
International Civil Aviation Organization and Joint Aviation
Regulations
In keeping with United States obligations under the convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization Standards and Recommended
Practices (SARP) to the maximum extent practicable. For this action,
the FAA has reviewed the SARP of Annex 10. The FAA has determined that
this action will not present any differences.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (Pub. L.
104-13), there are no requirements for information collection
associated with the proposed regulation.
Conclusion
For the reasons set forth above, the FAA has determined that this
rule is a significant regulatory action under Executive Order 12866.
The FAA certifies that this rule will not have a significant economic
impact, positive or negative, on a substantial number of small entities
under the criteria of the Regulatory Flexibility Act. This rule is
considered significant under DOT Regulatory Policies and Procedures.
List of Subjects
14 CFR Part 91
Aircraft, Airmen, Aviation Safety.
14 CFR Part 119
Air carriers, Aircraft, Aviation safety, Charter flights.
14 CFR Part 121
Air carriers, Aircraft, Aviation safety, Safety, Transportation.
14 CFR Part 135
Air Taxis, Aircraft, Airmen, Aviation safety.
The Amendment
The FAA wishes to be responsive to concerns about the effects of
overflights on the national park system. For that reason and due to the
unique situation at RMNP the FAA is temporarily banning commercial air
tour operations in the vicinity of the RMNP for sightseeing purposes
for the limited duration of the SFAR. In consideration of the
foregoing, the Federal Aviation Administration amends Title 14 of the
Code of Federal Regulations (14 CFR) parts 91, 119, 121, and 135 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), 40103, 40113, 40120, 44101, 44111,
44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306,
46315, 46316, 46502, 46504, 46506-46507, 47122, 47508, 47528-47531.
PART 119--CERTIFICATION: AIR CARRIERS AND COMMERCIAL OPERATORS
2. The Authority citation for part 19 continues to read as follows:
Authority: 49 U.S.C. 106(g), 1153, 40101, 4010, 40103, 40113,
44105, 44106, 44111, 44701-44717, 44722, 44901, 44903, 44904, 44906,
44912, 44914, 44936, 44938, 46103, 46105.
PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS
3. The authority citation for part 121 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44702,
44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904,
44912, 46105.
PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND OPERATIONS
4. The authority citation for part 135 is revised to read as
follows.
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44709,
44711-44713, 44715-44717, 44722.
5. In parts 91, 119, 121, and 135, Special Federal Aviation
Regulation No. 78, the text of which will appear at the beginning of
part 91 is added to read as follows:
SFAR No. 78--Special Operating Rules for Commercial Air Tour Operators
in the Vicinity of the Rocky Mountain National Park
Section 1. Applicability. This Special Federal Aviation
Regulation prescribes operating rules for commercial air tour flight
operations within the lateral boundaries of the Rocky Mountain
National Park, CO.
Section 2. Definition. For the purpose of this SFAR:
``commercial air tour'' means: the operation of an aircraft carrying
passengers for compensation or hire for aerial sightseeing.
Section 3. Restriction. No person may conduct a commercial air
tour operation in the airspace over Rocky Mountain National Park,
CO.
Expiration: This SFAR will expire on the adoption of a final
rule in Docket No. 27643.
Issued in Washington on January 3, 1997.
Linda Hall Daschle,
Acting Administrator.
[FR Doc. 97-435 Filed 1-3-97; 3:46 pm]
BILLING CODE 4910-13-M
