[Federal Register Volume 65, Number 197 (Wednesday, October 11, 2000)]
[Rules and Regulations]
[Pages 60352-60359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25952]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 93

14 CFR Parts 91, 93, 121 and 135


Commercial Air Tour Limitations in the Grand Canyon National Park 
Special Flight Rules Area; Modification of the Dimensions of the Grand 
Canyon National Park Flight Rules Area and Flight Free Zones

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Disposition of a request for stay of compliance date.

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SUMMARY: On April 4, 2000, the FAA published two final rules for Grand 
Canyon National Park (GCNP) limiting the number of commercial air tour 
operations in the GCNP Special Flight Rules Area (SFRA) and modifying 
the airspace of the SFRA. One rule limited commercial air tour 
operations of each operator, the other redefined the SFRA airspace. A 
Notice of Availability of commercial routes in the GCNP SFRA also was 
issued on the same day setting forth new routes available. The 
Commercial Air Tour allocations final rule was effective on May 4, 
2000. The new routes and airspace modifications become effective 
December 1, 2000. In July 31, 2000, the United States Air Tour 
Association and seven air tour operators in GCNP requested a stay of 
the compliance date for the rules. This document informs the public of 
the FAA disposition of this request for a stay of the compliance date 
for the final rules.

DATES: Effective: October 11, 2000.

ADDRESSES: You may view a copy of the final rules, Commercial Air Tour 
Limitations in the Grand Canyon National Park Special Flight Rules Area 
and Modification for the Dimensions of the Grand Canyon National Park 
Special Flight Rules Area and Flight Free Zones, through the Internet 
at: http://dms.dot.gov, by selecting docket numbers FAA-99-5926 and 
FAA-99-5927. You may also review the public dockets on these 
regulations in person in the Docket Office between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. The Docket Office is on 
the plaza level of the Nassif Building at the Department of 
Transportation. 7th Ave., SW, Room 401, Washington, DC, 20590.
    As an alternative, you may search the Federal Register's Internet 
site at 
http://www.access.gpo.gov/su__docs for access to the final rules.
    You may also request a paper copy of the final rules from the 
Office of Rulemaking, Federal Aviation Administration, 800 Independence 
Ave., SW., Washington, DC 20591, or by calling (202) 267-9680.

FOR FURTHER INFORMATION CONTACT: Howard Nesbitt, Flight Standards 
Service (AFS-200), Federal Aviation Administration, Seventh and 
Maryland Streets, SW, Washington, DC 20591; telephone: (202) 493-4981.

SUPPLEMENTARY INFORMATION:

Background

    On April 4, 2000, the Federal Aviation Administration published two 
final rules, the Modification of the Dimensions of the Grand Canyon 
National Park Special Flight Rules Area and Flight Free Zones (Air 
Space Modification), and the Commercial Air Tour Limitation in the 
Grand Canyon National Park Special Flight Rules Area (Commercial Air 
Tour Limitation). See 65 FR 17736; 65 FR 17708; April 4, 2000. The FAA 
also simultaneously published a notice of availability of Commercial 
Routes for the Grand Canyon National Park (Routes Notice). See 65 FR 
17698, April 4, 2000. The Commercial Air Tour Limitations final rule 
because effective on May 4, 2000. The Air Space Modification final rule 
and the routes set forth in the Routes Notice are scheduled to become 
effective December 1, 2000. The implementation of the Air Space 
Modification final rule and the new routes was delayed to provide the 
air

[[Page 60353]]

tour operators ample opportunity to train on the new route system 
during the non-tour season. The Final Supplementary Environmental 
Assessment for Special Flight Rules in the Vicinity of Grand Canyon 
National Park (SEA) was completed on February 22, 2000, and the Finding 
of No Significant Impact was issued on February 25, 2000.
    On May 8, 2000, the United States Air Tour Association and seven 
air tour operators (hereinafter collectively referred to as the Air 
Tour Providers) filed a petition for review of the two final rules 
before the United States Court of Appeals for the District of Columbia 
Circuit. The FAA, the Department of Transportation, the Department of 
Interior, the National Park Service and various federal officials were 
named as respondents in this action. On May 30, 2000, the Air Tour 
Providers filed a motion for stay pending review before the Court of 
Appeals. The federal respondents in this case filed a motion for 
summary denial on grounds that petitioners had not exhausted their 
administrative remedies. The Court granted the federal respondents 
summary denial on July 19, 2000. The Grand Canyon Trust, the National 
Parks and Conservation Association, the Sierra Club, the Wilderness 
Society, Friends of the Grand Canyon and Grand Canyon River Guides, 
Inc. (The Trust) filed a petition for review of the same rules on May 
22, 2000. The Court, by motion of the Federal Respondents, consolidated 
that case with that of the Air Tour Providers. The Hualapai Indian 
Tribe of Arizona filed a motion to intervene in the Air Tour Providers 
petition for review on June 23, 2000. The Court granted that motion on 
July 19, 2000.
    On July 31, 2000, the Air Tour Providers filed a motion for stay 
before the FAA. Both the Hualapai Indian Tribe and the Trust filed 
oppositions to the Air Tour Providers' stay motion.

Petitions

    The Air Tour Providers requested that the FAA stay the effective 
date of the Air Space Modification Final Rule and suspend the 
effectiveness of the Commercial Air Tour Limitation final rule ``to 
avoid imposing additional irreparable harm to the Air Tour Providers.'' 
Motion at 7. The Air Tour Providers also requested that the stay 
continue pending the outcome of the judicial proceeding currently 
before the United States Court of Appeals for the District of Columbia 
Circuit. Specifically, the Air Tour Providers claim that the four-part 
test elucidated in Washington Metropolitan Area Transit Commission v. 
Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977) applies to the 
FAA and thus, based on this test the FAA should grant the motion for 
stay. In Washington Metropolitan, the Court specified the following 
four factors that it must look at when considering whether to grant a 
stay pending review. Those factors are as follows: (a) The likelihood 
that the moving party will prevail on the merits; (b) the prospect of 
irreparable injury to the moving party if relief is withheld; (c) the 
possibility of harm to other parties if relief is granted; and (d) the 
public interest.
    The Air Tour Providers claimed that there is a substantial 
likelihood that they will prevail on the merits because Air Tour 
Providers will suffer great harm through these rules. Motion at 8. 
Additionally, the Air Tour Providers argued that the FAA's actions in 
issuing the final rules were arbitrary and capricious for the following 
reasons: (1) The goal of ``natural quiet'' has been achieved and thus 
these final rules are unnecessary, Motion at 9; (2) the agencies 
offered no ``reasoned analysis'' for ``abandon[ing] the definition of 
`natural quiet' they have used since the Overflights Act was enacted, 
in 1987, substituting a `detectability' standard for the `noticeability 
standard,' '' Motion at 9-10; (3) the agencies failed to distinguish 
between aircraft sound generated by commercial aircraft and that 
generated by other aircraft (military, recreational), Motion at 10; (4) 
the agencies ``failed to develop quiet technology standards for the 
Grand Canyon or to use the existing quiet technology incentive route,'' 
Motion at 9-10; (5) the agencies have ``ignor[ed] the issue of safety 
and abandon[ed] existing rules that ensure aircraft safety,'' Motion at 
11; (6) the agencies' failed to ``accommodate the needs of (the 
elderly, disabled and mobility impaired)'', Motion at 12; (7) the 
agencies failed to use current data to impose the flight caps, Motion 
at 12; (8) the agencies relied on a scientifically invalid computer 
sound model, Motion at 13; (9) the agencies created an exemption to 
``protect the economic interest of the Hualapai (sic) * * * while 
ignoring the economic interests of the Air Tour Providers,'' Motion at 
13. The Air Tour Providers also maintained that the agencies' actions 
violate the Regulatory Flexibility Act (RFA) by calculating the costs 
to the recreational air tour operators using inadequate data; asserting 
that operators can offset their losses by raising prices; failing to 
analyze the costs to recreational air tour passengers; overestimating 
the benefits to ground visitors; and failing to minimize the economic 
impact of the final rules. Motion at 14-16.
    Additionally, the Air Tour Providers argued that their economic 
losses are irreparable because the loss threatens the very existence of 
their business and deprives them of their constitutional rights. Motion 
at 17-19. The Air Tour Providers further maintained that the agencies 
would not be harmed if the stay is granted since ``natural quiet'' has 
already been achieved. Motion at 19. Finally, the Air Tour Providers 
stated that the public interest strongly favors granting the stay since 
the ``Final Rules deal with sound that the public cannot hear'' thus, 
the ``public interest in `natural quiet' at the Grand Canyon is 
protected.'' Motion at 19-20. Also, under the public interest prong of 
the Washington Metropolitan test, the Air Tour Providers argued that 
the sudden massive economic losses would result in significant losses 
to the local economy. Motion at 20. Additionally, the Air Tour 
Providers maintained that because the elderly, disabled or mobility-
impaired individuals who visit the Grand Canyon by recreational air 
tour will be ``specifically and unfairly burdened by the Final Rules, 
the public interest weighs heavily in favor of staying the Final 
Rules.'' Motion at 21. The Air Tour Providers attached statements from 
air tour operators, an alternative acoustical analysis, and an 
alternative economic analysis to support their contentions.
    The Hualapai Indian Tribe (Hualapai) submitted its opposition to 
the Air Tour Providers' request to stay the final rules arguing that 
the request is an ``untimely request to the Administrator for 
reconsideration of the final rule.'' Hualapai Opposition at 1. The 
Hualapai further argued that the fact that the Air Tour Providers 
waited three months after the effective date of the final rules to 
request a stay from the Administrator ``strongly indicates the lack of 
sufficient harm to warrant expedited consideration of the Stay Request, 
much less to support a stay.'' Hualapai Opposition at 2. The Hualapai 
maintained that the only way of staying the rules is through the 
reconsideration provision because there is not other applicable 
regulation ``for the issuance of a stay in FAA's procedures for 
rulemaking.'' Hualapai Opposition at 2. Furthermore, the Hualapai 
argued that the FAA is ``without power to reconsider (and stay) its 
decision now because the time for reconsideration (and a stay) ran 
several months before the Air Tour Providers submitted their Stay 
Request to the Administrator.'' Hualapai Opposition at 4.

[[Page 60354]]

    The Air Tour Providers replied to the Hualapai Opposition on August 
24, 2000, arguing that the Hualapai were not a party to this proceeding 
and did not have standing to oppose this request. Additionally, the Air 
Tour Providers stated that the Hualapai Tribe erred in stating that the 
Air Tour Providers had failed to demonstrate that they meet the 
irreparable harm standard set forth in Washington Metropolitan. The Air 
Tour Providers argued that they ``Demonstrated conclusively that the 
Final Rules have caused them irreparable harm, including: (i) The 
imminent closure of several of the air tour providers' businesses; (ii) 
the severe and permanent downsizing of other air tour providers' 
businesses; (iii) the permanent, and irreparable interference with air 
tour providers' contractual relationships with their domestic and 
foreign booking agents; and (iv) the deprivation of the air tour 
providers' constitutional rights under the Equal Protection component 
of the Fifth Amendment.'' Reply to Hualapai at 2.
    Additionally, the Air Tour Providers took issue with the Hualapai's 
recharacterization of the Air Tour Providers' request, arguing that it 
did not ask ``the FAA to `reconsider' its decision. That matter is now 
before the Court of Appeals. Instead, the Air Tour Providers asked the 
FAA to stay the implementation of its rules.'' Reply to Hualapai at 2. 
In response to the Hualapai's assertion that the FAA lacks the power to 
grant a stay request, the Air Tour Providers noted that the FAA 
affirmatively stated that it has the authority to stay the effective 
date of action pending judicial review pursuant to 5 U.S.C. section 
705. Reply to Hualapai at 2-3. Furthermore, the Air Tour Providers 
noted that the Court's Order denying the Air Tour Providers' Motion for 
Stay stated that under the Federal Rules of Appellate Procedure, the 
Air Tour Providers were required to file a request for a stay pending 
judicial review first with the FAA because they had not demonstrated 
that to do so was ``impracticale.'' Reply to Hualapai at 3. Finally, 
the Air Tour Providers maintained that the request for a stay is not 
time-barred because 14 CFR 11.73 does not apply.
    The Trust also submitted an opposition to the Air Tour Providers' 
Motion, arguing the following: (1) The request is time barred; and (2) 
even if the FAA considers the Motion, the Air Tour Providers have 
failed to demonstrate that they satisfy the four-pronged test. First, 
the Trust maintained that the Stay Motion was filed in violation of 14 
CFR 11.73 which permits a request for reconsideration to be filed 
within 30 days after the rule is published. The Trust noted that the 
Air Tour Providers filed their request 118 days after publication--88 
days after the regulatory deadline. Trust Opposition at 2.
    Second, the Trust argued that the Air Tour Providers failed to 
demonstrate that the FAA adopted the final rules arbitrarily and 
capriciously or abused its discretion. The Trust maintained that the 
Air Tour Providers' argument that the final rules violate the 
Administrative Procedures Act (APA) review almost entirely on evidence 
not in the administrative record. See Trust Opposition at 4-5. In 
response to the Air Tour Providers argument that the FAA violated the 
RFA, the Trust argued that Section 603 of the RFA is not subject to 
judicial review. The Trust also maintained that the ``RFA does not 
require agencies to show that economic impacts of their rules were 
absolutely minimized; it requires only a description of steps taken to 
minimize significant economic impact on small entities consistent with 
the stated objectives of the applicable statutes.'' Trust Opposition at 
9 (emphasis in original quotation).
    The Trust also argued that the Air Tour Providers failed to show 
that the balancing of interests and injuries weighs in their favor 
since economic loss does not constitute irreparable harm. Trust 
Opposition at 9. Moreover, the Trust noted that ``other parties, such 
as the Grand Canyon Trust, et al. will be significantly injured if the 
FAA grants the requested stay and suspension of the final rules.'' 
Trust Opposition at 10 (emphasis in original quotation). The Trust 
stated that ``Members of the Grand Canyon Trust, et al. are frequent 
backcountry users who take great strides to enjoy unique wilderness 
settings * * * Air traffic noise destroys the wilderness experience and 
constitutes a significant injury to an interest protected by federal 
law.'' Trust Opposition at 10. Furthermore, the Trust argued that 
Congress has already determined the public interest at stake when it 
required determination that the ``public interest would be served by 
timely restoration of natural quiet in the Grand Canyon.'' Trust 
Opposition at 10.
    The Air Tour Providers replied to the Trust's Opposition on 
September 14, 2000. The Air Tour Providers maintained that the Request 
for Stay is an administrative proceeding before the FAA and is 
completely separate and apart from any legal proceeding to which the 
Trust is a party. Reply to Trust at 1. The Air Tour Providers thus 
maintained that the Trust does not have the right to file a response. 
Furthermore, the Air Tour Providers took issue with the Trust's 
argument that the Air Tour Providers are time barred from filing their 
Request for Stay. The Air Tour Providers made the same basic argument 
in response to the Hualapai's Opposition. See Reply to Trust at 1-2.
    The Air Tour Providers argued that the FAA can in fact consider 
evidence not in the administrative record and there is no authority 
barring the FAA from so doing. Reply to Trust at 2. The Air Tour 
Providers maintained that the FAA is ``required to consider evidence 
offered by Air Tour Providers of the irreparable harm they have 
suffered as a result of the Final Rules.'' Reply to Trust at 2.
    The Air Tour Providers also took issue with the Trust's assertion 
that the Air Tour Providers have failed to show that they are likely to 
prevail in their claim that the final rules are arbitrary and 
capricious. Specifically, the Air Tour Providers argued that the 
Trust's position that the Air Tour Providers have provided only ``thin 
evidence'' that natural quiet was restored in the Grand Canyon prior to 
implementation of the Final Rules is without merit. The Air Tour 
Providers point to the ``sworn testimony of two acoustical experts 
before the Subcommittee on National Parks and Public Lands of the 
United States House of Representatives on two separate occasions'' and 
the declaration by John Alberti. Reply to Trust at 3-4.
    The Air Tour Providers also argued that the Trust's statement that 
the NPS' computer sound model should be given deference because ``it 
has `expertise' in the field of acoustical measurements'' is without 
support. Reply to Trust at 4. The Air Tour Providers asserted that NPS 
is ``not entitled to any such deference when NPS cannot support its 
approach even in theory.'' Id. The Air Tour Providers then point to a 
letter from the FAA to NPS in which the FAA allegedly characterized the 
NPS' methodology as ``unrealistic,'' ``arbitrary and artificial,'' and 
``not scientifically valid.'' Id.
    The Air Tour Providers also denied the validity of the Trust's 
contention that the Air Tour Providers cannot support their claims 
about the significant impact of these rules on the elderly and mobility 
impaired individuals. Reply to Trust at 5.
    In response to the Trust's assertion that Air Tour Providers 
``cannot even bring the first RFA claim because it is a challenge of 
the initial regulatory flexibility analysis and therefore, is not 
subject to review,'' the Air Tour Provides stated that they are 
challenging the ``final regulatory flexibility analysis

[[Page 60355]]

of January 2000'' and that challenges under section 604 of the RFA are 
subject to judicial review. Reply to Trust at 6. The Air Tour Providers 
also asserted that the Trust's argument that the FAA satisfied its 
obligations under the RFA by minimizing the significant economic impact 
is without merit because the FAA has ``refused to take such steps'' Id. 
Finally, the Air Tour Providers maintained that the Trust's contention 
that the parties it represents will be significantly injured if the FAA 
grants the Stay Request is flawed because the standard is not 
significant injury but ``irreparable injury or harm.'' Rely to Trust at 
7. The Air Tour Providers maintained that only they have demonstrated 
irreparable injury. Id.

Agency Response

A. The Air Tour Providers Request Is Not Time Barred

    The FAA is not considering this request to be time-barred-While the 
FAA would not normally consider a stay motion filed 188 days from the 
issuance of a rule to be timely, in this instance, the Air Tour 
Providers first sought remedy in the United States Court of Appeals for 
the District of Columbia Circuit. The government then filed a Motion 
for Summary Denial of the Air Tour Provider's motion based on the fact 
that the Air Tour Providers did not file first before the FAA and thus 
exhaust its administrative remedies as required by the Federal Rule of 
Appellate Procedure Rule 18. The Court granted the government's Motion 
for Summary Denial on July 19, 2000. The Air Tour Providers then filed 
this Stay Motion with the FAA on July 31, 2000. Thus, the FAA does not 
intend to act in bad faith by refusing to even consider the Air Tour 
Providers' Motion because of the length of time that has passed between 
the issuance of the rule and the Air Tour Providers' stay request to 
the FAA. Notably, the Air Tour Providers filed their Motion with the 
FAA twelve days after the Court granted the government's Motion for 
Summary Denial.

B. The Four-Pronged Test Enunciated in Washington Metropolitan Is Not 
Applicable to an Administrative Proceeding

    The Department of Transportation has previously found that the 
four-pronged test enumerated in Washington Metropolitan for deterring 
whether to grant a stay of rules pending litigation is applicable to 
the appellate courts only. Albert O. McCauley; Herbert Gene Vance; 
Duncan Black Parker, FAA Docket CP89SO0149; FAA Docket CP89SO0137; FAA 
Docket CP89SO0182, 1990 FAA LEXIS 200 (January 12, 1990). ``The primary 
stay consideration at the trial level usually relate[s] to whether the 
public interest or the interest of the private parties involved, or 
both would be served by a delay of the proceeding.'' Id. at 7. The 
public interest, in this case, has been expressed by Congress in Public 
Law 100-91--to substantially restore natural quiet to the Grand Canyon 
National Park. Congress gave the NPS broad discretion to define 
substantial restoration of natural quite. The agencies have determined 
that the final rules at issue in this stay request would make 
substantial gains in achieving this goal. Thus, to delay or suspend the 
effective date of these rules would be contrary to the purpose of the 
Congressional mandate, unless another public interest or private 
interest was served by a stay. The private interests alleged by the Air 
Tour Providers primarily concern the economic impact of the rules. 
These interests have already been considered by the FAA in the final 
rules. There is no additional evidence presented by the Air Tour 
Providers that warrants shifting the balance achieved by these rules. 
Thus, the FAA has determined that implementing the final rules furthers 
the public interest by limiting the number of air tours that are 
permitted in the Park and establishing new routes and air space 
configurations in the Special Flight Rules Area, thereby promoting the 
statutory goal of substantial restoration of natural quite.

C. The Air Tour Providers Have Not Satisfied the Four-Part Test 
Enunciated in Washington Metropolitan

    Even if the four-part test enunciated in Washington Metropolitan is 
applicable to the FAA's administrative proceeding, the Air Tour 
Providers have not demonstrated that the test is satisfied and thus, 
that a stay of the Commercial Air Tour Limitations final rule and the 
Air Space Modification final rule is warranted.
1. The Air Tour Providers Have Not Demonstrated That They Are Likely To 
Prevail on the Merits
    In support of their contention that the FAA has violated the APA by 
issuing the final rules in an arbitrary or capricious manner, the Air 
Tour Providers submit contrary acoustical data in an attempt to 
discredit the agency's analysis supporting the need for the final rule. 
See Motion for Stay, Exhibit A, Statement of John Alberti. Mr. Alberti 
takes issue with the sound studies completed by the FAA and NPS in the 
1990's and states that he ``performed a neutral study of aircraft sound 
levels in the Grand Canyon.'' Alberti Statement at 2. Mr. Alberti's 
statement is similar to a statement filed in the public docket that is 
part of the administrative record to this proceeding, see 
Administrative Record, Document Number 69, Comment No. 38.
    As explained in the final rule, the FAA and NPS determined after 
the 1996 final rule that the aircraft cap did not adequately limit 
growth and noise modeling ``indicated that the potential growth in the 
number of operations could erode gains made toward substantial 
restoration of natural quiet.'' See 65 FR at 17713. The NPS' conclusion 
that substantial restoration was not going to be achieved under SFAR 
50-2, as amended in December 1996, was explained in detail in the SEA. 
See SEA at 1-5, 4-17--4-22. The fact that the Air Tour Providers have 
submitted acoustical studies to contradict the studies conducted by FAA 
and NPS does not demonstrate that the FAA violated the APA in issuing 
the final rules. It simply indicates that scientific or statistic 
analyses can differ. The law is clear, however, that the Court ``will 
give due deference to the agency especially when the agency action 
involves evaluating complex scientific or statistical data within the 
agency's expertise.'' Natural Resources Defense Council, Inc. v. EPA, 
194 F.3d 130 (D.C. Cir., 1999). In this case, the FAA has demonstrated 
a rational connection between the facts and its choice and thus it has 
satisfied the rationality standard.
    The Air Tour Providers argument that the agencies acted arbitrarily 
and capriciously by ``abandoning the definition of natural quiet they 
have used since the Overflights Act was enacted, in 1987, substituting 
a ``detectability'' standard for the ``noticeability standard'' is also 
flawed. See Motion at 8. It is not unexpected that over time new 
information, data and technology might result in a well-considered 
refinement in methodology. When such a situation occurs, ``* * * an 
agency changing its course must supply a reasoned analysis indicating 
that prior policies and standards are being deliberately changed, not 
casually ignored. * * *'' Greater Boston Television Corp. v./ FCC, 444 
F.2d 841 (D.C. Cir., 1970); cert. denied, 403 U.S. 923, 29 L. Ed. 2d 
701, 91 S. Ct. 2233 (1971).
    Section 3 of Public Law 100-91 authorizes the Secretary of Interior 
to provide continued advice and recommendations to the FAA regarding 
the interpretation of policy on noise

[[Page 60356]]

impact assessment at GCNP. Section 3 further directs that the FAA adopt 
the recommendations of NPS ``without change unless the Administrator 
determines that implementing the recommendations would adversely affect 
aviation safety.'' The two agencies have been seeking to achieve 
substantial restoration of natural quiet at GCNP pursuant to these 
congressional mandates. Therefore, in the December 1996, Final EA, as 
part of the noise methodology for determining substantial restoration 
of natural quiet and based upon NPS' recommendations, the FAA defined 
the threshold for evaluating the percent of time each day (12 hour 
daytime period) that aircraft would be audible in the park as three 
decibels above ambient. The use of this noticeability standard and 
methodology was upheld in Grand Canyon Air Tour Coalition v. FAA, 154 
F.3d 455 (D.C. Cir., 1998).
    Since 1996, NPS has refined the noise impact assessment methodology 
to be used in defining substantial restoration of natural quiet at GCNP 
to more accurately reflect the potential for aircraft noise impacts in 
the park based on the specific characteristics of the different areas 
of the Park. NPS explained its rationale for refining the methodology 
used to define substantial restoration of natural quiet in its Public 
Notice ``Change in Noise Evaluation Methodology for Air Tour Operations 
Over Grand Canyon National Park, 64 FR 3969, published January 26, 
1999. See Administrative Record, Document 108. The NPS also published a 
Notice of Disposition of Public Comments and Adoption of Final Noise 
Evaluation Methodology, 64 FR 38006, on July 14, 1999. See 
Administrative Record, Document 121. The January 26, 1999, Federal 
Register Notice explained that the standard for substantial restoration 
of natural quiet remained unchanged and only the evaluation methodology 
was to be refined. 64 FR at 3969-3970; see also 64 FR 38006, 38008. NPS 
further explained that it would apply two different threshold levels to 
different parts of the Park based upon its analysis of regions of the 
park that were determined to have greater or less noise sensitivity. 
Those areas of the Park encompassing the developed areas would be 
evaluated using the three decibels above ambient threshold (i.e., Zone 
1), while areas without development, or ``back country'' areas would be 
evaluated using the eight below ambient threshold (i.e., Zone 2). NPS 
described at length how it developed the eight decibels below ambient 
threshold, the aircraft noise monitoring, natural ambient measurements 
and INM conversion and calculations required in its July 14, 1999 
Notice and Disposition of Comments. 64 FR 38006-38012. In the final 
rule for the Commercial Air Tour Limitation, NPS and FAA further 
clarified that ``the minus 8 decibels below ambient is not the sound 
level at which aircraft must operate or the acoustic level that must be 
achieved. It is a mathematical conversion necesitated by the computer 
modeling. The minus 8 decibels below ambient describes the `starting 
point' at which the measurement of substantial restoration begins.'' 65 
FR at 17721. Therefore, the refinement of the thresholds for evaluating 
substantial restoration of natural quiet at GCNP was not arbitrary and 
capricious nor contrary to Public Law 100-91.
    In their reply to the Trust's Response to the Administrative Motion 
for Stay, the Air Tour Provider's cite to a letter from FAA to NPS 
dated June 6, 2000, to support their contention that the FAA has 
criticized the NPS' noise methodology. This letter contained FAA 
comments to NPS on its Draft Director's Order #47, ``Soundscape 
Preservation and Noise Management.'' The FAA has never interpreted 
Director's Order No. 47 as applying to GCNP. The quotes relied upon by 
the Air Tour Providers to support their assertion that the FAA 
criticized the NPS noise methodology actually addressed certain 
assumptions, quantitative assessments and approaches to evaluating the 
baseline noise environment, aircraft noise impacts and noise levels 
proposed by NPS to be utilized in National Park units that do not have 
legislative directives. Therefore, the refined evaluation methodology 
for substantial restoration of natural quiet at GCNP is not the subject 
of the June 6th letter, and the Air Tour Providers references to this 
letter are both out of context and inapplicable to the subject of the 
Motion for Stay.
    The Air Tour Providers also have failed to demonstrate that the FAA 
acted arbitrarily and capriciously by focusing on aircraft sound 
generated by commercial air tour operators. Public Law 100-91 set forth 
a broad mandate that the FAA issue regulations, pursuant to 
recommendations by NPS, to regulate aircraft overflights so as to 
substantially restore natural quiet at the Park. Congress gave the NPS 
maximum discretion to determine the best means to effect the goal. NPS 
recommended an operations limitation on air tour aircraft in its Report 
to Congress. See Recommendation 10.3.10.3, Report on Effects of 
Aircraft Overflights on the National Park System, September 12, 1994. 
Furthermore, the record supports the decision to focus on commercial 
air tour aircraft. As the FAA stated in the Commercial Air Tour 
Limitations Final Rule, ``noise generated by aircraft conducting 
commercial air tours presents a specific type of problem because these 
aircraft generally are operated repeatedly at low altitudes over the 
same routes.'' 65 FR at 17710. Additionally, FAA data indicates that 
the volume of commercial air tour traffic is much higher then general 
aviation traffic. See Regulatory Evaluation Final Rule, Commercial Air 
Tour Limitation in the Grand Canyon National Park Special Flight Rules 
Area, at 21 (January 21, 2000). Thus, the FAA's focus on commercial air 
tour aircraft is supported by the findings in the Record and the broad 
mandate set forth in Public Law 100-91.
    The FAA also did not act arbitrarily and capriciously by 
determining to impose a limitation on commercial air tours instead of 
adopting the quiet technology standards proposed in December 1996. In 
the final rule on Commercial Air Tour Limitations, the FAA reiterated 
its commitment to developing a quiet technology standard. 65 FR at 
17714. However, due to the numerous issues raised by commenters in the 
NPRM on Noise Limitation of Aircraft Operations in the Vicinity of 
Grand Canyon National Park (Docket 29770), issuance of the final rule 
in the Noise Limitations rulemaking has taken longer than anticipated. 
It is noteworthy that in that rulemaking as well, many commenters 
maintained that imposition of quiet technology would pose an 
unreasonable financial burden on the air tour industry. See 65 FR 
17714. Because the agencies found that growth in the industry had only 
temporarily arrested due to economic factors, they determined that an 
operations limitation was necessary to ``make significant strides 
towards meeting the statutory goal'' by the 2008 deadline set by the 
President of the United States. 65 FR 17714; see 65 FR 17709 
(explaining the goals set forth in the President's memorandum of April 
22, 1996).
    Additionally, the final rules at issue in this stay request were 
issued prior to the enactment of the National Park Air Tour Management 
Act. Thus, contrary to the Air Tour Providers' assertions, the issuance 
of the Commercial Air Tour Limitations final rule and the Air Space 
Modification final rule does not violate any law. The FAA also notes 
the fact that operators made equipment decisions to purchase different 
aircraft is not persuasive since the equipment decision was voluntary 
and speculative at best. The FAA never finalized the

[[Page 60357]]

Noise Limitations Final Rule, thus the FAA has not mandated a 
definition of quiet technology air tour aircraft.
    Contrary to the Air Tour Providers' accusations, the FAA considered 
comments by the air tour operators on the route system in devising the 
routes. The Air Tour Providers' Motion contains statements by Ms. 
Brenda Halverson, Papillon Airways, Inc., and Mr. Ron Williams, AirStar 
Helicopters, opposing the new route structure that goes up over the 
north rim because there is no turnaround in the Zuni Corridor for 
helicopters. NPS, in its Report to Congress, indicated that eliminating 
two way traffic in the flight corridors was critical to achieving 
substantial restoration of natural quiet. Thus, where possible, FAA has 
attempted to minimize two-way traffic in the Dragon and Zuni Point 
Corridors. The Dragon Corridor has a turnaround for helicopters only. 
The Zuni Point Corridor has a turnaround for fixed wing aircraft. Both 
helicopters and fixed wing aircraft operating in the Zuni Point 
Corridor have the option of going up over the North Rim, or if 
necessary using Black 2 and Green 3 routes that go east around the 
Desert View Flight Free Zone. The movement of the Black 2 and Green 3 
was necessary in order to protect Traditional Cultural Properties 
identified during the consultation process with the Native American 
Tribes. See 65 FR 17739; SEA at 4-40-41, Appendix H.
    Additionally, the FAA finds that the Air Tour Providers' 
allegations that the new routes are unsafe are without merit. The new 
routes were developed based on ``airspace configurations, safety 
considerations, the goal of substantial restoration of natural quiet in 
the GCNP, economic considerations, consultation with Native American 
tribes'' and comments received in response to the initial Notice and 
prior route proposals. 64 FR 37191 (July 9, 1999). As is typical when 
routes are change, the FAA flight checked the routes for safety. 
Additionally, the FAA created a computer model to assess the impact of 
peak conditions on the new route system. See 65 FR 17719-20. The FAA's 
primary concern is that air tour operators do not concentrate the use 
of their allocations into one season which could pose a safety concern 
and impede the goal of achieving substantial restoration of natural 
quiet. Id.
    The Air Tour Providers assertion that these rules are arbitrary and 
capricious because they violate the Rehabilitation Act is 
unsubstantiated. First, the Air Tour Providers make no specific 
allegation as to the provisions of the Rehabilitation Act that are 
violated and the citation referenced in the quotation contained in the 
Motion is not applicable. Second, The Air Tour Providers' evidence as 
to the percentage of air tourists who are mobility impaired, elderly or 
handicapped varies dramatically depending upon which operator is 
providing the information. (See Statement of Brenda Halverson 
supporting Motion for Stay indicating that over 75% of the Air Tour 
Provider's clients are handicapped, mobility impaired or elderly; 
Statement of Ron Norman supporting Motion for Stay indicating no less 
than 40% of AirStar Helicopters clients account for handicapped, 
mobility impaired or elderly; Comments of Grand Canyon Air Tour 
Council, September 3, 1999, indicate that about 20% of air tourists are 
``physically challenged.'') The FAA noted in the Commercial Air Tour 
Limitations Final Rule that ``over 50% of the air tour visitors to GCNP 
also visit the Park on the ground. Also, people who are handicapped, 
impaired or elderly will continue to enjoy access to the GCNP.'' 65 FR 
17716. Thus people who are handicapped, mobility impaired, or elderly 
will have the same ability to access the Grand Canyon by air as other 
individuals.
    The Air Tour Providers also attack FAA's choice of base year for 
the flight limitation because the FAA did not use current data. The 
FAA's choice of base year was reasonable and is thoroughly discussed in 
the Commercial Air Tour Limitations Final Rule wherein the FAA stated:

    Data on operations levels for the year May 1, 1997 through April 
30, 1998 comprised the most accurate and current data available 
during the period that this rule was being drafted. Data 
subsequently collected from the industry for the year May 1, 1998 
through April 30, 1999 show a slight decline in the number of total 
operations from the previous year. Thus the FAA and NPS believe that 
the period from May 1, 1997 through April 30, 1998 is a 
representative year for the purpose of imposing this allocation. See 
65 FR at 17718.

At the time this rule was being drafted, the data for the period May 1, 
1999-April 30, 2000 was not available.
    The Air Tour Providers' assertion that the use of the base year 
data violates the RFA and that the FAA ignored the Small Business 
Administration's (SBA) comments is unsubstantiated. The SBA did not 
provide any comments to the docket on the final rules until December 
20, 1999 where SBA presented its concerns at a meeting between the 
Office of Management and Budget, the FAA and representatives of the Air 
Tour Providers. (In fact, representatives of the Office of Economics 
and Policy attempted to meet with SBA several times during the time 
period the final rule was being drafted, but SBA was unable to attend 
scheduled meetings.) The comment period to the NPRM closed September 7, 
1999. At the OMB meeting the SBA noted that ``the use of future years, 
or an average of the next 2 years, might be an alternative that more 
accurately reflects the marketplace within the Grand Canyon tour 
industry and will aid in the forecasting industry growth rates.'' See 
Administrative Record, Document 70, Comment 277. The FAA believes its 
analyses of the subsequent base year dispels any concern that this year 
was an aberration; instead it appears that the base year is part of the 
business cycle. See Exhibit A, Statement of Alan Stevens to Motion to 
Stay.
    The Air Tour Providers' claim that the agencies' were arbitrary and 
capricious in relying upon an invalid computer sound model and biased 
sound data is equally unfounded. The Air Tour Providers rely on 
statements made by John Alberti asserting that the computer model used 
by the agencies is without scientific basis. To the contrary, the ``FAA 
chose to use the Integrated Noise Model (INM) for GCNP analysis because 
of its: (1) Widespread scientific acceptance; (2) use of methodology 
that conforms to industry and international standards; (3) measurement-
derived noise and performance data; (4) ability to calculate noise 
exposure over varying terrain elevation; and (5) adaptability and 
reliability for assessing a variety of situations, including GCNP noise 
impacts.'' See SEA at 4-5--4-6. The INM is well accepted in the 
scientific community and meets the standards of the Society of 
Automotive Engineers Aerospace Information Report (Air) as well as the 
International Civil Aviation Organization (ICAO) Circular. See SEA at 
4-6. The INM was specifically modified for GCNP purposes. These 
modifications, along with the aircraft and operational data inputted 
for modeling, assessing and predicting aircraft noise at GCNP were 
analyzed and explained in detail in the SEA.
    The Air Tour Providers did not provide an adequate basis for their 
statement that the FAA relied on biased sound data. The NPS provided 
information on data collection in its Disposition or Comments. 64 FR 
38006. Additionally, the FAA provided aircraft and operational data 
utilized in its noise modeling in the SEA. Again, the law is clear, the 
Court ``will give due deference to the agency especially when the 
agency action involves evaluating complex scientific or statistical 
data within the agency's expertise.'' Natural

[[Page 60358]]

Resources Defense Council, Inc. v. EPA, 194 F.3d 130 (D.C. Cir., 1999).
    Finally, as stated earlier, the final rules were issued and the 
accompanying SEA and Record of Decision were completed prior to the 
enactment of the National Parks Air Tour Management Act cited by the 
Air Tour Providers. Therefore, the agencies are not in violation of the 
law. Regardless, the INM is a reasonable and professionally accepted 
method for assessing and predicting aircraft noise impacts and 
therefore the agencies' reliance on the model and aircraft and 
operational data is not arbitrary and capricious.
    The Air Tour Provider's assertion that the exception created for 
operators landing at the Hualapai reservation under contract with the 
Hualapai Tribe is arbitrary and capricious is contrary to law. When 
Congress passed the Indian Reorganization Act of 1934 an overriding 
purpose of that Act was ``to establish machinery whereby Indian tribes 
would be able to assume a greater degree of self-government both 
politically and economically.'' Morton v. Mancari et al., 417 U.S. 535, 
541; 94 S.Ct. 2474 (1974). Congress in 1934 ``determined that proper 
fulfillment of its trust required turning over to the Indians a greater 
control of their own destinies.'' Id. at 552. The FAA determined that 
``the Hualapai would be significantly adversely impacted from an 
economic perspective if the operations limitation were applied to 
operators servicing Grand Canyon West Airport in support of the 
Hualapai Tribe.'' 65 FR at 17718; see pages 17714-17715 and 17726-17727 
(regarding trust responsibility and cost impact on tribe); see also 
Final Regulatory Evaluation at 98-110. Any operator has the opportunity 
to obtain the benefits of this exception (i.e., relief from 
allocations) provided the operator has a contract with the Hualapai 
Tribe and satisfies the conditions of the exception. The Hualapai 
decide which operators to contract with.
    The exception from allocations applies to the air tour operators 
servicing the Hualapai Reservation. Contrary to assertions by the Air 
Tour Providers, this exception does not violate the Air Tour Provider's 
constitutional rights and in fact, the Air Tour Providers do not 
actually identify any constitutional rights that have been violated. 
Furthermore, the Air Tour Providers ignore the fact that if the 
Hualapai Tribe is enjoying ``unparalleled economic growth,'' the Air 
Tour Providers also are benefiting since they are providing the flight 
service to the Hualapai reservation.
2. The Air Tour Providers Have Not Substantiated Irreparable Economic 
Losses Nor Have They Demonstrated the Quantum of Harm Is Great
    In showing irreparable harm, ``the movant must provide the proof 
that the harm has occurred in the past and is likely to occur again, or 
proof indicating that the harm is certain to occur in the near 
future.'' Wisconsin Gas Co. v. FERC, 758 F.2d 669, 673 (D.C. Cir. 
1985). The Wisconsin Court further stated that ``economic loss does 
not, in and of itself, constitute irreparable harm.'' Id. Thus, if the 
Air Tour Providers are in fact losing customers, it does not constitute 
irreparable harm since the loss of customers is due to the reduction in 
flights in the SFRA, which is the purpose of the flight limitation. As 
discussed above, the reduction in flights is necessary in order to 
achieve the statutory goal of substantial restoration of natural quiet 
and to meet the President's goal for achieving substantial restoration 
by 2008.
    The Air Tour Providers also do not provide any direct evidence that 
the harm they are suffering is immediate and imminent and will occur 
over the next 6-9 months while this litigation is ongoing. The FAA's 
Commercial air tour limitations final rule became effective May 4, 
2000. The operators received a full years worth of allocations for the 
year 2000. The operators do not provide evidence that they are close to 
exhausting or have exhausted these allocations and thus must stop 
conducting business. In fact, Mr. Alan Stevens of Grand Canyon Airlines 
only acknowledges the theoretical possibility that he could exhaust his 
allocations. See Statement of Alan Stevens at page 4. Whether the 
operators will then incur damages for the year 2001 is also theoretical 
and depends on demand for air tours during the portion of 2001 that 
coincides with the litigation. Thus, at this point, there is no clear 
evidence submitted by the Air Tour Providers that the operators 
currently are losing money for the year 2000 because of the allocation 
requirement or that they will lose money for the first half of 2001 
because of this requirement. Additionally, while some of the operators' 
statements assert they may go out of business with the imposition of 
the limitations rule and the routes, they do not provide direct 
evidence to demonstrate that their demise is due to these rules and not 
to the cumulative effect of past business conditions in the market.
    The Air Tour Providers also argue irreparable injury because the 
FAA has not minimized the impact of the longer tour routes or the ``use 
it or lose it provision.'' The FAA has attempted to minimize the impact 
of the longer routes to the extent possible by creating a fixed wing 
turnaround in the Zuni Point Corridor. The Dragon corridor contains a 
turnaround for helicopters. See 65 FR at 17698. With regard to the use 
it or lose it provision, the FAA eliminated the peak/non-peak 
distinction that was initially contained in the NPRM. Thus, Ron 
Norman's assertions that the ``FAA will rescind any flight allocations 
that go unused during either the Peak or non-peak season'' is 
unfounded. See Exhibit A Statement of Ron Norman at paragraph 7.
    Furthermore, the FAA adopted suggestions by commenters to soften 
the use it or lose it provision by lengthening the time period. In 
fact, the FAA adopted a provision similar to Papillon's suggestion in 
its comments whereby after 180 days of inactivity, the operator simply 
sends in a letter of intent to operate that indicates why the operator 
did not operate for 180 days and when it intends to resume business. 
The operator then may have up to another 180 days to resume operations, 
as approved by the Flight Standards District Office. An operator would 
have up to 360 days of inactivity, as suggested by Air Star Helicopters 
in its comments. See 65 FR 17721-17722.
    The FAA's Regulatory Flexibility Act analysis comports with the 
requirements of the RFA. See generally, Final Regulatory Evaluation, 
Commercial Air Tour Limitations Final Rule and Airspace Modification 
Final Rule, January, 2000. Providing statistical analysis to counter an 
agency's own analysis is not sufficient to show that an agency acted 
arbitrarily and capaciously since a court will ``give due deference to 
the agency especially when the agency action involves evaluating 
complex scientific or statistical data within the agency's expertise.'' 
See NRDC v. EPA 194 F.3d 130 (D.C. Cir., 1999). Furthermore, the fact 
that the FAA did not proceed first with the Quiet Technology Rulemaking 
or some other alternative now preferred by the Air Tour Providers is 
not indicative that the agency violated the APA. The law is clear that 
an ``agency is entitled to the highest deference in deciding priorities 
among issues, including the sequence and grouping in which it tackles 
them.'' Allied Local and Regional Manufacturers Caucus, et al., v. EPA, 
215 F.3d 61 (2000). The agency provided a detailed economic analysis 
and RFA analysis that addressed alternatives to the adopted alternative 
and discussed reasons why those

[[Page 60359]]

alternatives were not adopted. Thus it has satisfied its mandate under 
the RFA.
3. The Air Tour Providers Have Not Demonstrated That the Weighing of 
the Interests Favors a Stay
    The FAA, in enacting these rules is carrying out the statutory 
mandate set forth in Public Law 100-91--to substantially restore 
natural quiet in the GCNP. It has been 12 years since the enactment of 
this legislation and the FAA has attempted to work with the Air Tour 
Providers, the Indian Tribes, the environmental groups and the National 
Park Service to come to a resolution with regard to the means of 
substantially restoring natural quiet. The FAA believes that this rule 
achieves the proper balance that Congress sought in adopting Public Law 
100-91 between the interests of the Air Tour Providers and those of the 
environmental interests and makes significant gains in substantial 
restoration of natural quiet. See 65 FR 17713. This balance is 
evidenced by the fact that the government has been sued in the District 
of Columbia Circuit Court of Appeals for the United States by one party 
(Air Tour Providers) claiming the government has done too much in 
effecting the goal of Public Law 100-91 and by another party (Grand 
Canyon Trust, et al.) claiming the government has not gone far enough 
in fulfilling the statutory mandate. The Air Tour Providers have not 
demonstrated why their interests outweigh the interest expressed by 
Congress in passing Public Law 100-91.

D. Conclusion

    Given that the Air Tour Providers cannot prevail under either the 
public interest test followed by the Department of Transportation, or 
the Washington Metropolitan test followed by the Circuit Court, the FAA 
hereby denies the Air Tour Providers' Motion to Stay the final rules.

    Issued in Washington, DC on October 3, 2000.
Jane F. Garvey,
Administrator.
[FR Doc. 00-25952 Filed 10-10-00; 8:45 am]
BILLING CODE 4910-13-P