1192 Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations

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. § 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.
Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations 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
1194 Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations

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 § 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
Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations 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:
1196 Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations

(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 longterm 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 Pen ̃ a

(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
Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations 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
1198 Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations

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 sitespecific, 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
Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations 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 ninetythree 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 groundbased 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
1200 Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations

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 longterm 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
Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations 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,

§ 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
1202 Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations

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
Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations 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 ChickamaugaChattanooga 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
1204 Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations

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 costreducing 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
Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations 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]

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