[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



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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.

-----------------------------------------------------------------------

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