07-625. Notice of Final Opinion on the Transferability of Interim Operating Authority Under the National Parks Air Tour Management Act

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Notice of final opinion.

SUMMARY:

This notice sets forth the FAA's final opinion on the transferability of interim operating authority under the National Parks Air Tour Management Act.

FOR FURTHER INFORMATION CONTACT:

James W. Whitlow, Deputy Chief Counsel for Policy and Adjudications, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone [phone].

SUPPLEMENTARY INFORMATION:

This notice sets forth the FAA's final opinion on the transferability of interim operating authority.

On April 5, 2000, Congress passed the National Parks Air Tour Management Act (Act). The Act set up a process by which the FAA and the National Park Service (NPS) would work together to establish air tour management plans for all units of the national park system and abutting tribal lands having commercial air tours. On October 25, 2002, the FAA published a final rule in 14 CFR part 136, National Parks Air Tour Management (67 FR 65662), pursuant to a mandate specified in the Act. This final rule completed the definition of “commercial air tour operation” by establishing the altitude (5,000 feet above ground level) below which an operator flying over a national park for the purpose of sightseeing is classified as a commercial air tour operator. The rule also codified provisions of the Act in the FAA's regulations at 14 CFR part 136.

Under the Act, the air tour management plan (ATMP) process is initiated when a commercial air tour operator files an application for operating authority with the FAA to conduct commercial air tours over a national park or abutting tribal land (49 U.S.C. 40128(a); 14 CFR 136.7). Once an application is filed, the FAA, in cooperation with the Director of the National Park Service, must develop and implement an ATMP for the park or abutting tribal land. Operators conducting commercial air tours over a unit of the national park system or abutting tribal land during the 12 month period prior to adoption of the Act are classified under the Act as existing commercial air tour operators (49 U.S.C. 40128(f); 14 CFR 136.3). These existing operators are eligible to receive interim operating authority (IOA), under conditions set forth in the Act. IOA allows these operators to continue conducting commercial air tours over the parks or tribal lands pending completion of the ATMP. With a few limited exceptions, no other operators are permitted to operate pending completion of the ATMP.

Since the Act did not directly address the issue of IOA transferability, the FAA must determine whether allowing transferability of IOA from one operator to another is consistent with the Act's provisions and overall goals. By notice published in the Federal Register on June 28, 2006, the FAA solicited comments on a draft opinion that concluded permitting the transferability of IOA is neither consistent with provisions of the Act nor its overall goals. On July 26, 2006, the FAA extended the comment period to September 13, 2006.

The FAA received six comments in response to that notice. The majority of commenters raised two common points. First, because of the amount of time it takes to complete an ATMP, failure to allow free transferability of IOA will inevitably result in an overall reduction of the number of air tour flights available to the public. Secondly, allowing the transfer of IOA among existing and new operators would not increase the overall number of potential IOA at a park and is fully consistent with the intent of Congress.

The FAA acknowledges that, if IOA is not transferable, the number of air tours at a park may be reduced if an air tour operator goes out business without a successor purchaser. It must also be acknowledged, though, that Congress clearly intended IOA to be temporary in nature and severely limited FAA and NPS' ability to grant increases of IOA to existing operators or new entrants. The statutory scheme for IOA as expressed in the Act does not support the concept that Congress intended to allow the free trafficking in IOA. It cannot be presumed that, while Congress authorized FAA and the NPS to reduce, or even eliminate IOA prior to the implementation of an ATMP, it intended to preserve the existing level of air tours by permitting unrestricted transfer of IOA.

Some commenters argued that the transferability mechanism for Grand Canyon should serve as a model for IOA. Others requested that, if it is decided IOA is not transferable, that decision should not apply to operating authority (OA) granted under an ATMP. If IOA were transferable, then the Grand Canyon transfer mechanism in 14 CFR 93.321 could serve as a model; however, Grand Canyon's transfer mechanism was created by regulation under different statutory authority. It does not serve as a precedent for the transferability of IOA. On the other hand, this opinion only addresses the transferability of IOA. Transferability of OA will be covered separately, as part of the ATMP process.

After due consideration of the comments received, the FAA issues the following final opinion on the transferability of IOA.

Opinion: Congress required ATMPs to be established over units of the national park system and abutting tribal lands to ensure that the agencies analyze the environmental impact of commercial air tours upon such land and “develop acceptable and effective measures to mitigate or prevent the significant adverse impacts, if any, of commercial air tour operations upon the natural and cultural resources, visitor experiences and tribal lands” (49 U.S.C. 40128(b)(1)(B); 14 CFR 136.9(a)). Under the Act, commercial air tours are not permitted until an ATMP is completed for the park, unless the operator is an existing air tour operator as defined in the Act and receives IOA, has received authority to operate under part 91 with a letter of agreement from the Administrator and the NPS superintendent for that national park unit (49 U.S.C. 40128(a)(3); 14 CFR 136.7(g)), or has received authority to operate as a new entrant prior to the completion of the ATMP (49 U.S.C. 40128(c)(3)(C); 14 CFR 136.11(c)).

Congress set up the IOA process as a way of ensuring that those commercial air tour operators conducting commercial air tours over national parks at the time of Act's enactment would not be put out of business while the FAA, in cooperation with NPS, analyzed the environmental impact of the air tours on the national park unit and developed an ATMP. The IOA then ends 180 days after the ATMP is adopted.

IOA is granted to specific operators over specific parks. Those operators who conducted commercial air tour operations in the 12 months preceding enactment (April 5, 2000) over the particular units of the park system for which they are applying for authority qualify for IOA. Those operators receive an allocation equal to the number of operations they conducted in the 12 month period preceding enactment, or an average, based on the three years preceding enactment. Thus, under the terms of the Act, only existing operators initially qualify for IOA.

Additionally, a particular operator's IOA may not exceed the number of allocations earned by that operator for a calendar year, unless it was increased pursuant to the Act's provisions, which require concurrence between the FAA and NPS. The FAA and NPS may grant such increases under limited circumstances, and the allocations involved in the increase are not subject to sale. The FAA, in cooperation with NPS, may grant IOA to a new entrant air tour operator only if the FAA determines the authority is necessary to ensure competition in the provision of commercial air tour operations over the park or tribal lands.

Given the specificity of the IOA authority and the limitations placed on that authority, FAA has concluded that Congress did not intend for the operators to possess it as a valuable right to be bought and sold. IOA was designed as a temporary solution to allow operators already conducting air tours at the time of the enactment of the Act to continue to operate pending completion of the ATMP, or new entrants to begin operation to ensure competition. If FAA were to conclude that IOA can be transferred, then operators could grow an existing business by adding IOA allocations to their current allotment from other operators and new entrants could obtain IOA allocations and start operations without FAA and/or NPS approval. Such an interpretation would be inconsistent with the overall structure of the Act.

In consideration of the foregoing, it is the opinion of the FAA that IOA is not transferable.

Issued in Washington, DC, on February 7, 2007.

James W. Whitlow,

Deputy Chief Counsel.