21264 Federal Register / Vol. 66, No. 82 / Friday, April 27, 2001 / Proposed Rules

1There are currently 379 units of the National

Park System in the United States. For a complete

listing of all units of the national park system see

www.nps.gov/legacy/nomenclature.html.

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 136

[Docket No. FAA–2001–8690; Notice No. 01–

01]

RIN 2120–AF46

National Parks Air Tour Management

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking

(NPRM).

SUMMARY: The FAA is codifying title

VIII of Public Law 106–181, National

Parks Air Tour Management Act of 2000

(the Act), as a new part of its

regulations, 14 CFR part 136. This

action also proposes, in cooperation

with the National Park Service, a 5,000-

ft. above ground level (AGL) altitude

that will complete the definition of

‘‘commercial air tour operation’’ as

required by the Act. If an operator

conducts operations below this

proposed 5,000-ft. AGL altitude over a

national park, and otherwise meets the

statutory definition of a commercial air

tour operation, that operator would be

defined as a commercial air tour

operator and would be required to meet

the requirements of the Act and new

part 136. This action provides easy

access to portions of the Act by

publishing these portions in the Code of

Federal Regulations format as 14 CFR

part 136. This NPRM provides the

public the opportunity to comment on

an altitude that will complete the

definition of ‘‘commercial air tour

operation.’’

DATES: Send your comments on or

before June 11, 2001.

ADDRESSES: Address your comments to

the Docket Management System, U.S.

Department of Transportation, Room

PL401, 400 Seventh Street, SW.,

Washington, DC. You must identify

Docket Number FAA–2001–8690 at the

beginning of your comments.

You may also submit comments

through the Internet to http://

dms.dot.gov. You may also review the

entire public docket for this NPRM at

that same site. You may also review the

public docket 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.

FOR FURTHER INFORMATION CONTACT:

Howard Nesbitt, Flight Standards

Service, Federal Aviation

Administration, 800 Independence

Avenue, SW., Washington, DC 20591;

Telephone: (202) 493–4981.

SUPPLEMENTARY INFORMATION:

Comments Invited

Anyone may participate in this

rulemaking by providing such written

data, views, or arguments. The FAA also

invites comments relating to the

environmental, energy, federalism, or

economic impact. Include cost

estimates, if possible, for substantive

comments. Identify the regulatory

docket and submit your comments to

the DOT Rules Docket address specified

above.

The FAA will file all comments

received, as well as report summarizing

each substantive public contact with

FAA personnel on this rulemaking. The

docket is available for public inspection

before and after the comment closing

date.

The FAA will consider all comments

received on or before the closing date

before we take action on this proposed

rulemaking. We will consider comments

received late as far as possible without

incurring expense or delay.

If you want the FAA to acknowledge

receipt of your comments, include a preaddressed, stamped postcard with those

comments. On the card write

‘‘Comments to Docket No. FAA–2001–

8690.’’ We will date stamp the card and

mail it back to you.

Availability of This NPRM

You can get an electronic copy of this

NPRM from the docket with the

following steps:

(1) Go to the search function of the

Department of Transportation’s

electronic Docket Management system

(DMS) web page (http://dms.dot.gov/

search).

(2) On the search page, type in the last

four digits of the Docket number shown

at the beginning of this document. Click

on ‘‘search’’.

(3) On the next page, which contains

the Docket summary information for the

Docket you selected, click on the NPRM.

You can also get an electronic copy

using the Internet through the FAA’s

web page at http://www.faa.gov/avr/

arm/nprm/nprm.htm or the Federal

Register’s web page at http://

www.access.gpo.gov/su_docs/aces/

acrs140.htm.

You can also get a copy of this NPRM

by mail by submitting a request to the

Federal Aviation Administration, Office

of Rulemaking, 800 Independence

Avenue, SW., Washington, DC 20591, or

by calling (202) 267–9680. Be sure to

identify the Notice No. of this NPRM.

Background

The National Parks Air tour

management Act of 2000 (the Act) was

enacted on April 5, 2000, as Public Law

106–181. The Act applies to

‘‘commercial air tour operations’’

occurring over a unit of the national

park system or tribal lands within or

abutting a national park. A commercial

air tour operation is defined in the Act

as a ‘‘flight conducted for compensation

or hire in a powered aircraft where a

purpose of the flight is sightseeing over

a national park, within 1⁄2 mile outside

the boundary of any national park, or

over tribal lands, during which the

aircraft flies—(i) Below a minimum

altitude, determined by the

Administrator in cooperation with the

Director, above ground level (except

solely for purposes of takeoff or landing,

or necessary for safe operation of aircraft

as determined under the rules and

regulations of the Federal Aviation

Administration requiring the pilot-incommand to take action to ensure the

safe operation of the aircraft or (ii) less

than 1 mile laterally from any

geographic feature within the park

(unless more than 1⁄2 mile outside the

boundary).’’ See Section 803 of the Act,

to be codified at 49 U.S.C. Section

40128(f)(4)(A). In making the

determination as to whether a flight is

a commercial air tour operation, the Act

lists eight factors that the Administrator

may consider. Id. at 40128(f)(4)(B). The

term ‘‘tribal land’’ is defined in the Act

as ‘‘Indian Country (as that term is

defined in section 1151 of title 18 of the

U.S. Code) that is within or abutting a

national park.’’ The term ‘‘National

Park’’ is defined in the Act as ‘‘any unit

of the national park system.’’ 1 All

commercial air tour operations must be

conducted in accordance with the

following: (1) Title 49 of the U.S. Code

(U.S.C.) Section 40128; (2) conditions

and limitations prescribed for that

operator by the FAA; and (3) any

applicable air tour management plans.

The Act states that ‘‘Before

commencing commercial air tour

operations over a national park or tribal

lands, a commercial air tour operator

shall apply to the Administrator for

authority to conduct the operations over

the park or tribal lands.’’ See Section

803 of the Act, to be codified at 49

U.S.C. 40128(a)(2)(A). This application

then triggers the process for the FAA

and NPS to cooperatively develop an air

tour management plan (ATMP) for that

park or tribal land. The objective of the

Federal Register / Vol. 66, No. 82 / Friday, April 27, 2001 / Proposed Rules 21265

ATMP process is to ‘‘develop acceptable

and effective measures to mitigate or

prevent the significant adverse impacts,

if any, of commercial air tour operations

upon the natural and cultural resources,

visitor experiences, and tribal lands.’’

See Section 803 of the Act, to be

codified at 49 U.S.C. 40128(b)(1)(B).

The Act also provides that ‘‘upon

application for operating authority, the

Administrator shall grant interim

operating authority under [49 U.S.C.

Section 40128(c)] to a commercial air

tour operator for commercial air tour

operations over a national park or tribal

lands for which the operator is an

existing commercial air tour operator.’’

See Section 803 of the Act to be codified

at 49 U.S.C. Section 40128(c)(1). Such

interim operating authority is subject to

a number of requirements and

limitations, including a limit on the

number of commercial air tour

operations that may be conducted on an

interim basis pending issuance of the

ATMP for that park.

In the Act, Congress found that the

FAA has the authority ‘‘to preserve,

protect and enhance the environment by

minimizing, mitigating, or preventing

the adverse effects of aircraft overflights,

on public and tribal lands.’’ Section 802

of the Act. Congress also found that the

National Park Service (NPS) has the

responsibility of ‘‘conserving the

scenery and natural and historic objects

and wildlife in national parks and of

providing for the enjoyment of the

national parks in ways that leave the

national parks unimpaired for future

generations.’’ Id. Further, the Act states

that ‘‘the protection of tribal lands from

aircraft overflights is consistent with

protecting the public health and welfare

and is essential to the maintenance of

the natural and cultural resources of

Indian tribes.’’ Id.

The Proposal

In this rulemaking, the FAA solicits

comments on the establishment of the

altitude that completes the definition of

a commercial air tour operation. The

definition of a commercial air tour

operation cannot become fully effective

until the FAA, in cooperation with the

Director of NPS, establishes through

rulemaking a minimum altitude over

national park units and tribal lands

within or abutting a national park below

which a commercial sightseeing flight

would be defined as a commercial air

tour operation. In making the

determination that a flight is a

commercial air tour operation, the

Administrator may consider eight

factors, which are enumerated in the

Act.

The FAA, in cooperation with the

NPS, proposes that the altitude be 5,000

feet above ground level (AGL).

Therefore, under this proposed rule, if

a flight is conducted for compensation

or hire in a powered aircraft for the

purpose of sightseeing over a national

park unit (or within 1⁄2 mile of the park

boundary) or tribal land within or

abutting a national park and is less than

one mile laterally from any geographic

feature of the Park (unless more than 1⁄2

mile outside the park boundary) or flies

below 5,000 feet AGL for the purpose of

sightseeing at any point during its flight

over a park or tribal land, then that

flight and that operator would be subject

to the provisions of the Act and the new

Part 136.

A 5,000-ft. AGL altitude would

address the great majority of current and

potential commercial air tour operations

over national park units. In addition, the

National Parks Overflights Working

Group (NPOWG), which met from May

1997 through December 1997,

considered a number of possible

minimum altitudes and recommended

that the minimum altitude be set at

5,000 feet AGL. The Act acknowledged

their efforts in saying; ‘‘this title reflects

the recommendations made by that

Group.’’ See Section 802 of the Act.

The FAA reminds readers that the

5,000-ft. altitude, if adopted, would

complete the definition of commercial

air tour operation. This would trigger

the start of the ATMP process and notify

operators conducting commercial air

tour operations, as defined in the Act,

that such operations are subject to the

provisions of the Act. It does not mean

that all air tour operations would be

required to be conducted above 5,000 ft.

AGL or would be limited to that

minimum altitude. Rather the air tour

management plan for any given national

park unit would define the altitudes at

which operations may be conducted.

The 5,000-ft. AGL altitude also would

not apply to takeoffs and landings or for

other operations necessary for safety of

flight.

The FAA solicits specific, tangible

examples of the impact of the proposed

5,000-ft. AGL altitude. The FAA and the

NPS also solicit specific information on

whether there are any commercial air

tours currently conducted at or above

5,000 feet AGL.

Codification

Although the only issue for comment

for this notice is the proposed 5,000-ft.

altitude, the FAA also sets forth in this

rulemaking the codification of the Act

so that readers may have easy access to

the Act’s requirements. The FAA cannot

substantively change the Act although

the codification is modified in places so

that its format conforms with other

regulations of Title 14, Chapter 1.

Section by Section

Section 136.1 Applicability

This section codifies Sections 803 and

809 of the Act into FAA’s regulations.

These provisions have parallel

codifications in the United States Code,

which are referenced herein. It clarifies

that this new part, Part 136, applies to

any person who conducts a commercial

air tour operation over a unit of the

National Park System, over tribal lands

that are within or abutting a unit of the

National Park System, or any area

within 1⁄2 mile outside a unit of the

National Park System. It specifically

excludes the Grand Canyon National

Park, tribal lands within or abutting

Grand Canyon National Park, land or

waters located in the state of Alaska,

and air transportation routes over the

Lake Mead area.

Readers should note that there are

certain portions of the Act that are not

incorporated in this rulemaking. They

include judicial review (Section 803(a)),

competitive bidding (Section 803(a)),

quiet technology aircraft issues (Section

804), and the advisory group as

established by Section 805. The latter

three issues will be addressed in

separate rulemaking actions. The FAA

considers this altitude proposal a first

priority to establish a final rule for the

management of such commercial air

tour operations.

Section 136.3 Definitions

This section of the Act (to be codified

in Title 18 of the U.S. Code as 49 U.S.C.

Section 40128(f)) provides the reader

with the key definition applicable to

this rulemaking. Those include

commercial air tour operator, existing

commercial air tour operator, new

entrant commercial air tour operator,

commercial air tour operation, National

Park, Tribal Lands, Administrator, and

Director. Again, readers are reminded

that the focus of this rulemaking is on

establishing the altitude, 5,000 feet

AGL, which would complete the Act’s

definition of a commercial air tour

operation. With the exception of the

definition of ‘‘Superintendent,’’ which

is administrative, the other definitions

are taken directly from the Act and

cannot be changed. The definition of

‘‘Superintendent’’ is added to the

proposal because the term is used in the

Act for the exception for Part 91

commercial air tour operations as

distinguished from the use of ‘‘Director’’

in other sections.

21266 Federal Register / Vol. 66, No. 82 / Friday, April 27, 2001 / Proposed Rules

Section 136.5 Prohibition of

Commercial Air Tour Operations Over

the Rocky Mountain National Park

Section 806 of the Act prohibits all

commercial air tour operations in the

airspace over the Rocky Mountain

National Park regardless of altitude. The

FAA notes that this prohibition already

exists as SFAR 78 of 14 CFR Part 91.

When the final rule is issued in this

rulemaking, SFAR 78 will be rescinded

and the prohibition of commercial air

tour operations over Rocky Mountain

National Park will be codified as

Section 136.5.

Section 136.7 Overflights of National

Parks and Tribal Lands

This section codifies into FAA

regulation Section 803 of the Act (to be

codified in the U.S. Code as 49 U.S.C.

40128(b)) concerning ATMPs and refers

to the authority of the Administrator

and the air tour management plan. It

states that before beginning any

commercial air tour operation over a

national park or tribal land, a person

must apply to the Administrator for

operating authority. The FAA will

publish an advisory circular detailing

how operators are to comply with this

requirement. The FAA will notify the

public when the advisory circular is

available through a notice published in

the Federal Register.

This section also describes how the

Administrator, in cooperation with the

Director, will determine the number of

commercial air tour operations to

authorize for each park. In making this

determination, the Administrator, in

cooperation with the Director, will

consider the provisions of the air tour

management plan, the number of

existing commercial air tour operators,

the current level of service and

equipment provided by operators, and

the financial viability of each operator.

Congress also specified in the Act that

the FAA is directed to make every effort

to act on any ATMP application and

issue a decision on the application no

later than 24 months after it is received

or amended. See Section 803 of the Act,

to be codified as 49 U.S.C.

40128(a)(2)(E). The Act also instructs

the Administrator to give priority to

applications submitted by new entrants.

An exemption to this rule is set forth

in the Act, to be codified in 49 U.S.C

40128(a)(3) which permits a commercial

air tour operator conducting only a

limited number of commercial air tour

operations to be excepted from certain

requirements of the Act provided such

activity is permitted by Title 14 Code of

Federal Regulations Part 119. Section

119.1(e)(2) specifically excludes from

the requirement to obtain certification

for conducting operations under Part

121 or 135 ‘‘nonstop sightseeing flights

conducted with aircraft having a

passenger seat configuration of 30 or

fewer, * * * that begin and end at the

same airport, and are conducted within

a 25 statute mile radius of that airport.’’

To qualify for the exception, such

operators are required to obtain a letter

of agreement from the Administrator

and the national park superintendent for

the particular park describing the

conditions under which that operator

will conduct its commercial air tour

operations. This exception is limited to

not more then 5 flights in any 30-day

period over a particular park. Readers

should note that this does not mean 5

flights per operator, but rather a total of

5 flights for any park. For example, if

there are two operators in a particular

park who wish to use this exception, the

5 flights would have to be divided

between them.

Existing commercial air tour operators

who did not already have part 119

operating authority were required to

apply, not later than 90 days after

enactment of the Act, for authority

under Part 119 to conduct operations

under either part 121, or 135. See

Section 803 of the Act, to be codified at

49 U.S.C. Section 40128. Readers are

referred to a notice published in the

Federal Register on May 26, 2000,

reminding commercial air tour operators

of this requirement. Part 119 also sets

forth the process by which a person

applies for a part 119 certificate and the

types of information that are required by

the Administrator for completing the

application process. Once the

application process is complete, the

person would then conduct operations

under 14 CFR part 121 or 14 CFR part

135, as appropriate. The FAA reminds

operators that if they already hold an

operating certificate under 14 CFR part

119, a second application is not

required.

Section 136.9 Air Tour Management

Plans

This section codifies 49 U.S.C.

Section 40128(a) into the FAA’s

regulations and includes the general

requirements for the establishment of an

air tour management plan (ATMP), the

contents of such a plan, procedures to

be followed by the Administrator and

the Director, and how amendments will

be processed. Establishing an ATMP

involves a public process whereby

public meetings are held, proposed

plans are published in the Federal

Register, and the participation of any

Indian tribe affected by the overflights

of commercial air tour operations is

solicited. An ATMP may include a

broad array of alternatives: some parks

may prohibit overflights, other parks

may restrict overflights during certain

times, and the Administrator and

Director may consider incentives such

as quiet technology aircraft. The

objective of the ATMP is to develop

‘‘acceptable and effective measures to

mitigate or prevent the significant

adverse impacts, if any, of commercial

air tour operations upon the natural and

cultural resources, visitor experiences,

and tribal lands.’’ (See Section 803 of

the Act, to be codified at 49 U.S.C.

40128(b)(1)(B)). To mitigate or prevent

such impacts the FAA, in cooperation

with the NPS, may consider guidelines

on such things as type of aircraft, routes,

altitudes, time of day, and seasonal

times, etc. Once an ATMP is finalized,

any air tour operator wishing to conduct

commercial air tour operations within a

particular park will be required to

comply with the ATMP for that park.

Section 136.11 Interim Operating

Authority (IOA)

Because the certification process

cannot be accomplished immediately,

the Act gives existing operators the

opportunity to continue conducting

existing commercial air tour operations

over national parks. Additionally, in

some instances, new entrant operators

may be granted authority to begin

operators. These procedures are spelled

out in the Act (to be codified as 49

U.S.C. 40128(c)) and will be codified in

regulation as section 136.11. Section

136.11 states that upon application for

operating authority, the Administrator

will grant IOA for existing operators.

The number of flights annually

authorized would be the greater of the

number of commercial air tour

operations conducted over the 12

months immediately prior to enactment

of the Act, or an average number of

commercial air tour operations per 12-

month period conducted within a 36-

month period prior to enactment of the

Act. This number may not be increased,

unless agreed to by the Administrator

and the Director. The IOA, including the

number of operations, will be published

in the Federal Register for comment,

and will be used as a basis for the

development of the ATMP. The IOA

must promote protection of national

park resources, visitor experiences and

tribal lands, safe commercial air tour

operations, and the adoption of quiet

technology, as appropriate.

Section 136.11 also describes the IOA

that may be given to new entrant

operators. In general, such operating

authority may be granted if the

Administrator finds it necessary to

Federal Register / Vol. 66, No. 82 / Friday, April 27, 2001 / Proposed Rules 21267

ensure competition and if the ATMP has

not been developed within 24 months of

the enactment of the Act. IOA for new

entrant operators will not be granted if

the Administrator determines that

granting the IOA would create a safety

problem or the Director determines that

granting the IOA would create a noise

problem at the part or on tribal lands.

Environmental Review

The Act provides that the objective of

an ATMP is to ‘‘mitigate or prevent the

significant adverse impacts, if any, of

commercial air tour operations upon the

natural and cultural resources, visitor

experiences, and tribal lands (to be

codified at 49 U.S.C. 40128(b)(a)(B)).’’

Accordingly, the purpose of this

proposed rule is to allow achievement

of this statutory objective, thereby

ensuring that any significant adverse

environmental impacts from

commercial air tour operations are

avoided.

In accordance with FAA Order

1050.ID, the FAA has determined that

this proposed rule is categorically

excluded from environmental review

under section 102(2)(C) of the National

Environmental Policy Act (NEPA). In

particular, this determination is based

on FAA Order 1050.1D, Appendix 4,

paragraph 4.i, which applies to

‘‘[r]egulatory documents which cover

administrative or procedural

requirements,’’ and paragraph 4.j, which

covers ‘‘[r]egulations, standards, and

exemptions (excluding those which if

implemented may cause a significant

impact on the human environment).’’

NEPA compliance will be performed

as part of the development of each

ATMP prepared in accordance with this

rule.

Economic Summary

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 Trade

Agreement Act of 1979 directs agencies

to assess the effect of regulatory changes

on international trade. Fourth, Public

Law 104–4 requires federal agencies to

assess the impact any of federal

mandates on state, local, tribal

governments, and the private sector.

The FAA has determined that this rule

is a ‘‘significant regulatory action’’

under section 3(f) of Executive Order

12866 and Department of

Transportation policies and procedures

(44 FR 11034, February 26, 1979)

because of significant Congressional and

public interest in this rulemaking. This

proposed rule would not have a

significant impact on a substantial

number of small entities. In addition,

this rule would not constitute a barrier

to international trade. Finally, the FAA

has determined that the proposal would

not impose a federal mandate on state,

local, or tribal governments, or the

private sector of $100 million per year.

Benefit—Cost Analysis

This proposed rule would codify the

applicable provisions of the Act

concerning commercial air tour

operations over national parks into a

new part 136. The Act and the proposed

rule are also applicable to the

commercial air tour operations over the

area within 1⁄2 mile outside the

boundary of any national park or over

tribal lands within or abutting national

parks, or less than 1 mile laterally from

any geographic feature within the park.

The Act and the proposed rule

specifically exclude the Grand Canyon

National Park and tribal lands within or

abutting it, air transportation routes over

the Lake Mead area, and land or waters

located in Alaska. Congress directed the

FAA, in cooperation with the NPS, to

determine the minimum altitude under

which commercial air tour operations

would be subject to the provisions of the

statute. An altitude of less than 5,000

feet above ground level is proposed as

the altitude that completes the

definition of a commercial tour

operation to be subject to part 136. A

5,000-ft. AGL altitude would address

the great majority of current and

potential commercial air tour operations

over national park units. In addition, the

National Parks Overflights Working

Group (NPOWG), which met from May

1997 through December 1997,

considered a number of possible

minimum altitudes and recommended

that the minimum altitude be set at

5,000 feet AGL.

These new statutory provisions will

enable the FAA to develop acceptable

and effective measures to mitigate or

prevent the significant adverse effects, if

any, of commercial air tour operations

upon the natural and cultural resources,

visitor experiences, and tribal lands.

The costs and benefits of this rule

cannot be evaluated effectively without

taking account of specific noise

mitigation measures that would be

incorporated in an ATMP for a specific

park. The NPS and FAA thus intend to

prepare such evaluations when specific

plans specified in Section 136.9 (Air

Tour Management Plans) are proposed.

Initial Regulatory Flexibility

Determination and Assessment

The Regulatory Flexibility Act (RFA)

of 1980 establishes ‘‘as a principle of

regulatory issuance that agencies shall

endeavor, consistent with the objective

of the rule and of applicable statutes, to

fit regulatory and informational

requirements to the scale of the

business, organization, and government

jurisdictions subject to regulation.’’ To

achieve that principle, the RFA requires

agencies to solicit and consider flexible

regulatory proposals and to explain the

rational for their actions. The RFA

covers a wide range of small entities,

including small businesses, not-forprofit organizations and small

governmental jurisdictions.

Agencies must perform a review to

determine whether a proposed or final

rule will have a significant economic

impact on a substantial number of small

entities. If the determination is that it

will, the agency must prepare a

regulatory flexibility analysis as

described in the RFA.

However, if an agency determines that

a proposed or final rule is not expected

to have a significant economic impact

on a substantial number of small

entities, section 605(b) of the RFA

provides that the head of the agency

may so certify and a regulatory

flexibility analysis is not required. The

certification must include a statement

providing the factual basis for this

determination, and the reasoning should

be clear.

The FAA has determined that this

proposed rule imposes no costs on small

commercial air tour operators because

the actual effect on small entities will be

determined by individual ATMPs. This

proposed rule is limited to only what

has been authorized by this Act.

Accordingly, pursuant to the Regulatory

Flexibility Act, 5 U.S.C. 605(b), the

Federal Aviation Administration

certifies that this rule will not have a

significant impact on a substantial

number of small entities. The FAA

solicits comments on this

determination.

International Trade Impact Assessment

The Trade Agreement Act (TAA) of

1979 prohibits Federal agencies from

engaging in any standards or related

activities that create unnecessary

obstacles to the foreign commerce of the

United States. Legitimate domestic

objectives, such as safety, are not

considered unnecessary obstacles. The

TAA also requires consideration of

international standards and where

appropriate, that they be the basis for

U.S. standards. In addition, consistent

21268 Federal Register / Vol. 66, No. 82 / Friday, April 27, 2001 / Proposed Rules

with the Administration’s belief in the

general superiority and desirability of

free trade, it is the policy of the

Administration to remove or diminish

to the extent feasible, barriers to

international trade, including both

barriers affecting the export of American

goods and services to foreign countries

and barriers affecting the import of

foreign goods and services into the

United States.

In accordance with the above Act and

policy, the FAA has assessed the

potential effect of this proposed rule

and has determined that it will have

only a domestic impact and therefore no

effect on any trade-sensitive activity.

Unfunded Mandates Reform Act

Assessment

The Unfunded Mandates Reform Act

of 1995 (UMRA), enacted as Public Law

104–4 on March 22, 1995, is intended,

among other things, to curb the practice

of imposing unfunded Federal mandates

on State, local, and tribal governments.

Title II of the UMRA requires each

Federal agency to prepare a written

statement assessing the effects of any

Federal mandate in a proposed or final

agency rule that may result in a $100

million or more expenditure (adjusted

annually for inflation) in any one year

by State, local, and tribal governments,

in the aggregate, or by the private sector;

such a mandate is deemed to be a

‘‘significant regulatory action.’’

This proposed rule does not contain

such a mandate. Therefore, the

requirements of Title II of the Unfunded

Mandates Reform Act of 1995 do not

apply.

Paperwork Reduction Act

The FAA finds that although this is a

process rulemaking, there will be a

paperwork and recordkeeping burden

on both the agencies and the air tour

operators. This NPRM, however, only

describes a process. Actual paperwork

requirements will be determined

according to individual ATMPs,

developed through a public process

which will involve public meetings and

publication in the Federal Register for

notice and comment. Public Law 106–

181 states that the Administrator shall

‘‘make every effort’’ to act on an

application for an ATMP for a park

within 24 months. Within this 24

months, the agencies must publish

current air tour operations for a park for

public comment, hold public meetings,

and prepare the plan. Although the FAA

does not anticipate that an ATMP will

be developed for each of the 379 parks,

even if only 50 parks are initially

affected, the burden will considerable.

Since the FAA does not know how

many applications will be received or in

what timeframe, the agency specifically

solicits comments from air tour

operators who anticipate filing

applications. In addition, the

notifications received by the FAA in

response to the notice to part 91

operators who will eventually receive a

certificate under part 119 with authority

to operate under part 121 or part 135

should provide some of the number of

commercial air tour operators.

List of Subjects in 14 CFR Part 136

Aircraft, Air transportation, Aviation

safety, National parks, Recreation and

recreation areas.

The Proposed Amendment

For the reasons set forth above, the

Federal Aviation Administration

proposes to add a new part 136 to

chapter I of title 14 of the Code of

Federal Regulations as follows:

PART 136—NATIONAL PARKS AIR

TOUR MANAGEMENT

Sec.

136.1 Applicability.

136.3 Definitions.

136.5 Prohibition of commercial air tour

operations over the Rocky Mountain

National Park.

136.7 Overflights of national parks and

tribal lands.

136.9 Air tour management plans (ATMP).

136.11 Interim operating authority.

Authority: 49 U.S.C. 106(g), 40113, 40119,

44101, 44701, 44701–44702, 44705, 44709–

44711, 44713, 44716–44717, 44722, 44901,

44903–44904, 44912, 46105.

§ 136.1 Applicability.

(a) This part restates and paraphrases

several sections of the National Parks

Air Tour Management Act of 2000,

including section 803 (to be codified at

49 U.S.C. 40128) and Sections 806 and

809. This part clarifies the requirements

for the development of an air tour

management plan for each park in the

national park system.

(b) Except as provided in paragraph

(c) of this section, this part applies to

each commercial air tour operator who

conducts a commercial air tour

operation over:

(1) A unit of the national park system;

(2) Tribal lands as defined in this part;

or

(3) Any area within one-half mile

outside the boundary of any unit of the

national park system.

(c) This part does not apply to a

commercial air tour operator conducting

a commercial air tour operation:

(1) Over the Grand Canyon National

Park;

(2) Over that portion of tribal lands

within or abutting the Grand Canyon

National Park;

(3) Over any land or waters located in

the State of Alaska; or

(4) While flying over or near the Lake

Mead Recreation Area, solely as a

transportation route, to conduct a

commercial air rout over the Grand

Canyon National Park.

§ 136.3 Definitions.

For purposes of this part:

(a) Commercial air tour operator

means any person who conducts a

commercial air tour operation.

(b) Existing commercial air tour

operator means a commercial air tour

operator who was actively engaged in

the business of providing commercial

air tour operations over a national park

at any time during the 12-month period

ending on April 5, 2000.

(c) New entrant commercial air tour

operator means a commercial air tour

operator who:

(1) Applies for operating authority as

a commercial air tour operator for a

national park or tribal lands; and

(2) Has not engaged in the business of

providing commercial air tour

operations over the national park or

tribal lands for the 12-month period

preceding the application.

(d) Commercial air tour operation:

(1) Means any flight, conducted for

compensation or hire in a powered

aircraft where a purpose of the flight is

sightseeing over a national park, within

1⁄2 mile outside the boundary of any

national park, or over tribal lands,

during which the aircraft flies:

(i) Below 5,000 feet above ground

level (except for the purpose of takeoff

or landing, or as necessary for the safe

operation of an aircraft as determined

under the rules and regulations of the

Federal Aviation Administration

requiring the pilot-in-command to take

action to ensure the safe operation of the

aircraft);

(ii) Less than 1 mile laterally from any

geographic feature within the park

(unless more than 1⁄2 mile outside the

boundary); or

(iii) Except as provided in paragraph

(c) of this section.

(2) The Administrator may consider

the following factors in determining

whether a flight is a commercial air tour

operation for purposes of this part:

(i) Whether there was a holding out to

the pubic of willingness to conduct a

sightseeing flight for compensation or

hire;

(ii) Whether a narrative that referred

to areas or pints of interest on the

surface below the route of the flight was

provided by the person offering the

flight;

Federal Register / Vol. 66, No. 82 / Friday, April 27, 2001 / Proposed Rules 21269

(iii) The area of operation;

(iv) The frequency of flights

conducted by the person offering the

flight;

(v) The route of flight;

(vi) The inclusion of sightseeing

flights as part of any travel arrangement

package offered by the person offering

the flight;

(vii) Whether the flight would have

been canceled based on poor visibility

of the surface below the route of flight;

and

(viii) Any other factors that the

Administrator and director consider

appropriate.

(3) For purposes of § 136.5 of this

part, means any flight conducted for

compensation or hire in a powered

aircraft where a purpose of the flight is

sightseeing over a national park.

(e) National park means any unit of

the national park system. (See title 16 of

the U.S. Code, section 1, et. seq.)

(f) Tribal lands means that portion of

Indian country (as that term is defined

in section 1151 of title 18 of the U.S.

Code) that is within or abutting a

national park.

(g) Administrator means the

Administrator of the Federal Aviation

Administration.

(h) Director means the Director of the

National Park Service.

(i) Superintendent means the duly

appointed representative of the National

Park Service for a particular unit of the

national park system.

§ 136.5 Prohibition of commercial air tour

operations over the Rocky Mountain

National Park.

All commercial air tour operations in

the airspace over the Rocky Mountain

National Park are prohibited regardless

of altitude.

§ 136.7 Overflights of national parks and

tribal lands.

(a) General. A commercial air tour

operator may not conduct commercial

air tour operations over a national park

or tribal land except:

(1) In accordance with this section;

(2) In accordance with conditions and

limitations prescribed for that operator

by the Administrator; and

(3) In accordance with any applicable

air tour management plan for the park

or tribal lands.

(b) Application for operating

authority. Before commencing

commercial air tour operations over a

national park or tribal lands, a

commercial air tour operator shall apply

to the Administrator for authority to

conduct the operations over the park or

tribal lands. Advisory Circular 119–xxx

contains information on how to submit

such an application.

(c) Number of operations authorized.

In determining the number of

authorizations to issue to provide

commercial air tour operations over a

national park, the Administrator, in

cooperation with the Director, shall take

into consideration the provisions of the

air tour management plan, the number

of existing commercial air tour operators

and current level of service and

equipment provided by any such

operators, and the financial viability of

each commercial air tour operation.

(d) Cooperation with National Park

Service. Before granting an application

under this part, the Administrator, in

cooperation with the Director, shall

develop an air tour management plan in

accordance with § 136.9 and implement

such a plan.

(e) Time limit on response to

applications. Every effort will be made

to act on any application under this part

and issue a decision on the application

not later than 24 months after it is

received or amended.

(f) Priority. In acting on applications

under this paragraph to provide

commercial air tour operations over a

national park, the Administrator shall

give priority to an application under

this paragraph in any case where a new

entrant commercial air tour operator is

seeking operating authority with respect

to that national park.

(g) Exception. Notwithstanding

§ 136.7, commercial air tour operators

may conduct commercial air tour

operations over a national park under

part 91 of this chapter if:

(1) Such activity is permitted under

part 119 of this chapter;

(2) The operator secures a letter of

agreement from the Administrator and

the Superintendent for that park

describing the conditions under which

the operations will be conducted; and

(3) The number of operations under

this exception is limited to not more

than a total of 5 flights by all operators

in any 30-day period over a particular

park.

(h) Special rule for safety equipment.

Notwithstanding § 136.11, an existing

commercial air tour operator shall

apply, not later than 90 days after April

5, 2000, for operating authority under

part 119 of this chapter, for certification

under part 121 or part 135 of this

chapter. A new entrant commercial air

tour operator shall apply for such

authority before conducting commercial

air tour operations over a national park

or tribal lands that are within or about

a national park. The Administrator shall

make every effort to act on such

application for a new entrant and issue

a decision on the application not later

than 24 months after it is received or

amended.

§ 136.9 Air tour management plans

(ATMP).

(a) Establishment. In general, the

Administrator, in cooperation with the

Director, shall establish an air tour

management plan for any national park,

or tribal land for which such a plan is

not in effect whenever a person applies

for authority to conduct a commercial

air tour operation over the park. The air

tour management plan shall be

developed by means of a public process

in accordance with paragraph (d) of this

section. The objective of any tour

management plan is to develop

acceptable and effective measures to

mitigate or prevent the significant

adverse impacts, if any, of commercial

air tour operations upon the natural and

cultural resources, visitor experiences,

and tribal lands.

(b) Environmental determination. In

establishing an air tour management

plan under this subsection, the

Administrator and the Director shall

each sign the environmental decision

document required by section 102 of the

National Environmental Policy Act of

1969 (42 U.S.C. 4332) which may

include a finding of no significant

impact, an environmental assessment,

or an environmental impact statement

and the record of decision for the air

tour management plan.

(c) Contents. An air tour management

plan for a park:

(1) May prohibit commercial air tour

operations in whole or in part;

(2) May establish conditions for the

conduct of commercial air tour

operations, including, but not limited

to, commercial air tour routes,

maximum number of flights per unit of

time, maximum and minimum altitudes,

time of day restrictions, restrictions for

particular events, intrusions on privacy

on tribal lands, and mitigation of noise,

visual, or other impacts.

(3) Shall apply to all commercial air

tour operations within 1⁄2 mile outside

the boundary of a national park;

(4) Shall include incentives (such as

preferred commercial air tour routes and

altitudes, and relief from caps and

curfews) for the adoption of quiet

technology aircraft by commercial air

tour operators conducting commercial

air tour operations at the park;

(5) Shall provide for the initial

allocation of opportunities to conduct

commercial air tour operations if the

plan includes a limitation on the

number of commercial air tour

operations for any time period; and

(6) Shall justify and document the

need for measures taken pursuant to

21270 Federal Register / Vol. 66, No. 82 / Friday, April 27, 2001 / Proposed Rules

paragraphs (c)(1) through (c)(5) of this

section and include such justification in

the record of decision.

(d) Procedure. In establishing an

ATMP for a national park or tribal

lands, the Administrator and Director

shall:

(1) Hold at least one public meeting

with interested parties to develop the air

tour management plan;

(2) Publish the proposed plan in the

Federal Register for notice and

comment and make copies of the

proposed plan available to the public;

(3) Comply with the regulations set

forth in 40 CFR 1501.3 and § 1501.5

through 1501.8 (for the purposes of

complying with the regulations, the

Federal Aviation Administration is the

lead agency and the National Park

Service is a cooperating agency); and

(4) Solicit the participation of any

Indian tribe whose tribal lands are, or

may be, overflown by aircraft involved

in a commercial air tour operation over

the park or tribal lands to which the

plan applies, as a cooperating agency

under the regulations referred to in

paragraph (d)(3) of this section.

(e) Amendments. The Administrator,

in cooperation with the Director, may

make amendments to an air tour

management plan. Any such

amendments will be published in the

Federal Register for notice and

comment. A request for amendment of

an ATMP will be made in accordance

with § 11.25 of this chapter as a petition

for rulemaking.

§ 136.11 Interim operating authority.

(a) General. Upon application for

operating authority, the Administrator

shall grant interim operating authority

under this section to a commercial air

tour operator for commercial air tour

operations over a national park or tribal

land for which the operator is an

existing commercial air tour operator.

(b) Requirements and limitations.

Interim operating authority granted

under this section:

(1) Shall provide annual authorization

only for the greater of:

(i) The number of flights used by the

operator to provide the commercial air

tour operations within the 12-month

period prior to April 5, 2000; or

(ii) The average number of flights per

12-month period used by the operator to

provide such operations within the 36-

month period prior to April 5, 2000, and

for seasonal operations, the number of

flights so used during the season or

seasons covered by that 12-month

period.

(2) May not provide for an increase in

the number of commercial air tour

operations conducted during any time

period by the commercial air tour

operator above the number the air tour

operator was originally granted unless

such an increase is agreed to by the

Administrator and the Director;

(3) Shall be published in the Federal

Register to provide notice and

opportunity for comment;

(4) May be revoked by the

Administrator for cause;

(5) Shall terminate 180 days after the

date on which an air tour management

plan is established for the park and

tribal lands;

(6) Shall promote protection of

national park resources, visitor

experiences, and tribal lands;

(7) Shall promote safe commercial air

tour operations;

(8) Shall promote the adoption of

quiet technology, as appropriate, and

(9) Shall allow for modifications of

the interim operating authority based on

experience if the modification improves

protection of national park resources

and values and of tribal lands.

(c) New entrant operators. The

Administrator, in cooperation with the

Director, may grant interim operating

authority under this paragraph to an air

tour operator for a national park or tribal

lands for which that operator is a new

entrant air tour operator if the

Administrator determines the authority

is necessary to ensure competition in

the provision of commercial air tour

operations over the park or tribal lands.

(d) Limitation. The Administrator may

not grant interim operating authority

under paragraph (c) of this section if the

Administrator determines that it would

create a safety problem at the park or on

the tribal lands, or if the Director

determines that it would create a noise

problem at the park or on the tribal

lands.

(e) ATMP limitation. The

Administrator may grant interim

operating authority under paragraph (b)

of this section only if the ATMP for the

park or tribal lands to which the

application relates has not been

developed within 24 months after April

5, 2000.

Issued in Washington, DC, on April 20,

2001.

L. Nicholas Lacey,

Director, Flight Standards Service.

[FR Doc. 01–10462 Filed 4–26–01; 8:45 am]

BILLING CODE 4910–13–M