[Federal Register Volume 61, Number 95 (Wednesday, May 15, 1996)]
[Proposed Rules]
[Pages 24582-24585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12133]




[[Page 24581]]


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Part III





Department of Transportation





_______________________________________________________________________



Federal Aviation Administration



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14 CFR Part 91, et al.



Special Flight Rules in the Vicinity of the Rocky Mountain National 
Park; Proposed Rule

Federal Register / Vol. 61, No. 95 / Wednesday, May 15, 1996 / 
Proposed Rules

[[Page 24582]]



DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91, 121, 127, and 135

RIN 2120-AG11
[Docket No. 28577; Notice No. 96-4]


Special Flight Rules in the Vicinity of the Rocky Mountain 
National Park

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of Proposed Rulemaking (NPRM).

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SUMMARY: The FAA is proposing to establish a Special Federal Aviation 
Regulation (SFAR) to preserve the natural quiet of Rocky Mountain 
National Park (RMNP) from any potential adverse impact from aircraft-
based sightseeing overflights. This NPRM discusses alternative methods 
to achieve this goal, and commenters are invited to address the 
alternatives. The primary alternative would impose restrictions on 
commercial sightseeing flights operated in the airspace over RMNP. 
Other alternatives include restrictions on some flights or types of 
operations over RMNP and various forms of operating procedures based on 
the particular and specific requirements of the park.

DATE: Comments must be received on or before August 13, 1996.

ADDRESS: Comments on this NPRM should be mailed, in triplicate to: 
Federal Aviation Administration, Office of the Chief Counsel, 
Attention: Rules Docket (AGC-200), Docket No. 28577, 800 Independence 
Avenue SW., Washington, DC 20591. Comments may also be sent 
electronically to the Rules Docket by using the following Internet 
address: <a href="/cdn-cgi/l/email-protection#bbd5cbc9d6d8d6cfc8fbd6dad2d795d3ca95dddada95dcd4cd"><span class="__cf_email__" data-cfemail="c2acb2b0afa1afb6b182afa3abaeecaab3eca4a3a3eca5adb4">[email protected]</span></a>. Comments must be marked Docket No. 
28577. Comments may be examined in the Rules Docket in Room 915G on 
weekdays between 8:30 a.m. and 5:00 p.m., except on Federal holidays.

FOR FURTHER INFORMATION CONTACT:
Neil Saunders, Airspace and Rules Division, ATA-400, Airspace 
Management Service, Federal Aviation Administration, 800 Independence 
Avenue SW., Washington, DC 20591; Telephone: 202-267-8783.

SUPPLEMENTARY INFORMATION: 

Comments Invited

    Interested parties are invited to participate in this proposed 
rulemaking by submitting such written data, views, or arguments as they 
may desire. Comments relating to the environmental, energy, federalism, 
or economic impact that may result from adopting the proposals in this 
notice are also invited. Comments that provide the factual basis 
supporting the views and suggestions presented are particularly helpful 
in developing reasoned regulatory decisions. Communications should 
identify the regulatory docket number and be submitted in triplicate to 
the above specified address. All communications and a report 
summarizing any substantive public contact with FAA personnel on this 
rulemaking will be filed in the docket. The docket is available for 
public inspection both before and after the closing date for receiving 
comments.
    Before taking any final action on this proposal, the Administrator 
will consider all comments made on or before the closing date for 
comments, and the proposal may be changed in light of the comments 
received. The FAA would particularly welcome comments from any operator 
that is planning or contemplating air tour operations over RMNP.
    The FAA will acknowledge receipt of a comment if the commenter 
includes a self-addressed stamped postcard with the comment. The 
postcard should be marked ``Comments to Docket No. 28577.'' When the 
comment is received by the FAA, the postcard will be dated, time 
stamped, and returned to the commenter.

Availability of the NPRM

    Any person may obtain a copy of this NPRM by submitting a request 
to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 
800 Independence Avenue SW., Washington, DC 20591, or by calling 202-
267-9677. Communications must identify the notice number of this NPRM. 
Persons interested in being placed on a mailing list for future FAA 
NPRM's should request a copy of Advisory Circular No. 11-2A, Notice of 
Proposed Rulemaking Distribution System, which describes application 
procedures.

Background

    National parks are unique natural resources that have been provided 
special protection by law. The National Park Service (NPS) and the 
Federal Aviation Administration (FAA) recognize that excessive noise 
from aircraft overflights can interfere with NPS efforts to achieve a 
natural park experience for visitors on the ground and to preserve 
other park values.
    Ensuring access to national parks, while still maintaining the 
beauty and experience of the individual park, is one of the goals of 
the national park system. To this end, the Departments of the Interior 
and Transportation formed an interagency working group (IWG) on 
December 22, 1993, to explore ways to limit or reduce the impacts from 
overflights on national parks, including RMNP, while still ensuring 
access to the parks. The IWG's tasks include reviewing the 
environmental and safety concerns resulting from park overflights and 
working toward resolution of specific park impacts where they are found 
to exist. The FAA's role in the IWG has been to promote aviation and 
aviation safety, and to provide for the safe and efficient use of 
airspace. At the same time, the FAA recognizes the importance of 
preserving, protecting, and enhancing the environment and minimizing 
adverse effects of aviation. The Department of Interior's role in the 
IWG has been to protect public land resources in national parks, 
preserve environmental values of those areas, including wilderness 
areas, and provide for public enjoyment of those areas.
    The secretaries of the two Departments see the formation of the 
working group and the commitment to addressing the effects of park 
overflights as the initial stage in a spirit of cooperation between the 
two departments to promote an effective balance of missions. This 
cooperation is also necessary to integrate the roles of the two 
departments: the FAA's authority to control the nation's airspace to 
ensure aviation safety and efficiency, and the Department of the 
Interior's responsibility for managing the nation's parks, such as 
RMNP.
    The FAA, with the cooperation of the Department of the Interior 
through the IWG, is developing national standards that can be applied 
to air traffic over all national parks, not just RMNP. The FAA expects 
that any SFAR adopted in this rulemaking may be superseded by any 
national standards. This Notice is not a part of the discussion on 
national standards; it presents options that will be considered as 
means to minimize the adverse effects of overflights on RMNP, and it 
seeks comments and suggestions on voluntary and regulatory actions to 
deal with the issue of aircraft noise within the Park.

Rocky Mountain National Park

    Rocky Mountain National Park receives approximately three million 
visitors a year, making it the sixth most visited national park in the 
United States, despite its relatively small size (for a major Western 
national park) of 265,727 acres. RMNP is located approximately 40 miles 
outside the city limits of Denver and approximately 50 miles from the 
Denver International

[[Page 24583]]

Airport. The topography of the park is characterized by steep 
mountains, narrow valleys, and high elevations (8,000 to 14,250 ft). 
Seventy percent of park terrain is above 10,000 feet.
    As with other similar mountainous areas, RMNP presents pilots with 
a challenging flying environment. It has high winds, often in excess of 
100 mph. The park's high altitudes diminish engine output and propeller 
efficiency, making it more difficult for an aircraft to perform in high 
winds. The rugged terrain limits maneuverability, and rapidly changing 
weather can envelop an aircraft. Perhaps in part for these reasons, the 
use of the airspace over RMNP has so far not been extensive. Unlike 
many other national parks, there are currently no air tour operators 
overflying the park or operating in the surrounding airspace. Other 
aviation users do operate in the airspace above RMNP. Non-commercial, 
general aviation aircraft overfly the park following the routes 
established for safe passage through the topography. In addition, due 
to the Park's proximity to the Denver International Airport, aircraft 
operating to or from the airport overfly RMNP. Arrival and departure 
routes above the Park are necessary to ensure the safe and efficient 
handling of air traffic into the airport. Traffic into the airport 
operates at approximately 19,000 feet above mean sea level (MSL) for 
jets and 16,000 feet above MSL for turboprop aircraft.
    The Park enjoys an extensive road system within its boundaries, 
which provides numerous opportunities for viewing the park's vistas. 
Park officials estimate that 54 percent of the park can be seen from 
one or more of the 149 miles of roads.
    Ninety-two percent of the park is proposed for conclusion in the 
National Wilderness Preservation System and is required by law to be 
managed as a de facto wilderness until action is taken by Congress. 
This means that, among other things, most motorized vehicles must be 
contained within specific narrow corridors on the existing roadway 
system, and no future development is permitted. The natural quiet 
provided by the wilderness environment is valued by park users. In a 
survey of RMNP users conducted for the NPS, 93 percent of the 
respondents listed tranquillity as an ``extremely'' or ``very'' 
important value found in the park. And approximately 90 percent stated 
that the noise from helicopter tours would affect their enjoyment of 
the park. A copy of the study has been placed in the rulemaking docket.
    Recently, the Department of Transportation has been requested by 
the Governor of Colorado, members of the Colorado Congressional 
delegation, and other officials to place a preemptive ban on air tour 
operations at RMNP. Even though there are no air tour operations at the 
Park currently, some operators apparently have expressed an interest in 
starting such tours to officials of Estes Park, Colorado. The 
government officials who have requested regulatory action are concerned 
that an influx of air tour operations at RMNP would undermine enjoyment 
of the Park by visitors on the ground.
    The FAA wishes to be responsive to concerns about the effects of 
overflights on the national park system. Although, as noted, the FAA is 
still developing nationwide standards for overflights of national 
parks, a relatively unusual set of circumstances has occurred at RMNP. 
Judging from the requests received by the FAA, there is apparently 
broad support for limitations on overflights among local leaders, even 
in the absence of current overflights. There is also value in being 
able to take the initiative now, before any overflights occur. At this 
point, there has been no environmental loss from overflights and no 
economic loss to any incumbent operator. Accordingly, the Department is 
exploring the options and alternatives available. The IWG has examined 
both traditional regulatory solutions and alternatives to regulation 
during its review of the national overflight issue.
    Following a review of the comments submitted in response to this 
Notice, the FAA could proceed immediately to implement a final rule 
that best balances the competing needs of different users of the park. 
Therefore, comment is requested on each alternative listed in the 
Proposal Section, as the FAA could adopt none, one, or a combination of 
the listed alternatives. Comments are also invited to recommend an 
approach different from those discussed here. Any such recommendation 
should fully discuss the associated costs and benefits of the 
recommended approach.

Environmental Documentation

    This notice proposes a number of alternatives for addressing 
potential aviation noise issues over Rocky Mountain National Park. The 
FAA will select viable alternatives based on comments received and 
other pertinent information, identify a proposed alternative for final 
rulemaking, and if rulemaking is selected, publish a draft 
environmental assessment for comment. The draft assessment will 
evaluate all selected alternatives, at minimum assessing the current 
condition, the preferred alternative, and the worst case scenario. 
Comments on the draft environmental assessment will be evaluated and a 
final assessment prepared prior to issuing a final rule.

Regulatory Evaluation

    Federal regulations must undergo several economic analyses. First, 
Executive Order 12866 directs that each Federal agency shall propose or 
adopt a regulation only upon a reasoned determination that the benefits 
of the intended regulation justify its costs. Second, the Regulatory 
Flexibility Act of 1980 requires agencies to analyze the economic 
effect of regulatory changes on small entities. Third, the Office of 
Management and Budget directs agencies to assess the effects of 
regulatory changes on international trade. In conducting these 
analyses, the FAA has determined that this proposed rule is ``a 
significant regulatory action'' as defined in the Executive Order and 
the Department of Transportation Regulatory Policies and Procedures. 
This rule would not have a significant impact on a substantial number 
of small entities and would not constitute a barrier to international 
trade. Due to the minimal economic impact of this proposed rulemaking, 
further economic analysis is not necessary under the Department's 
Regulatory Policies and Procedures.
    Some of the proposed alternative rules would not impose any costs 
on society. However, Alternative One would prevent air tour operators 
form overflying the RMNP for sightseeing purposes for the limited 
duration of the SFAR. Currently, there are no sightseeing air tour 
operators overflying RMNP, and no operator has taken formal action to 
begin such operations. However, some operators may be considering 
starting these types of operations over the park in the future. 
Alternative One would prevent these possible sightseeing air tour 
overflights, for a period to be specified, in order to give the FAA and 
the NPS time to study the situation and to develop a plan for 
controlling these overflights to minimize or eliminate their effect on 
park visitors on the ground.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) was enacted by 
Congress to ensure that small entities are not unnecessarily burdened 
by government regulations. The RFA requires agencies to review rules 
that may have a ``significant economic impact on a substantial number 
of small entities.''
    There are no operators currently performing sightseeing air tour 
operations over RMNP. Therefore, the expected impact of this regulatory

[[Page 24584]]

action is negligible, and the Agency determines that this proposed 
amendment would not have a significant impact on a substantial number 
of small entities. However, we have asked elsewhere for comment on 
whether any person intends to institute commercial sightseeing 
operations at RMNP. Any such person is also invited to discuss the 
impact of the proposed rule.

International Trade Impact Analysis

    This action is not expected to have an adverse impact either on the 
trade opportunities for U.S. firms doing business abroad or on foreign 
firms doing business in the United States. This assessment is based on 
the fact that the segment of the aviation industry that may be affected 
by this Notice and subsequent rule do not compete with similar 
operators abroad. That is, their competitive environment would be 
limited to RMNP.

Federalism Implications

    This action would not have substantial effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. Indeed, State and local government representatives has 
been among the advocates for FAA regulatory action to protect RMNP from 
the noise created by overflights. Therefore, in accordance with 
Executive Order 12612, it is determined that this action will not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

International Civil Aviation Organization and Joint Aviation 
Regulations

    In keeping with United States obligations under the convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Organization Standards and Recommended 
Practices (SARP) to the maximum extent practicable. For this action, 
the FAA has reviewed the SARP of Annex 10. The FAA has determined that 
the proposals in this Notice, if promulgated, will not present any 
differences.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 
104-13), there are no requirements for information collection 
associated with the proposed regulation.

Conclusion

    For the reasons set forth above, the FAA has determined that this 
NPRM is a significant regulatory action under Executive Order 12866. 
The FAA certifies that this NPRM will not have a significant economic 
impact, positive or negative, on a substantial number of small entities 
under the criteria of the Regulatory Flexibility Act. This NPRM is 
considered significant under DOT Regulatory Policies and Procedures.

The Proposal

    As previously stated, the FAA wishes to be responsive to concerns 
about the effects of overflights on the national park system. For that 
reason, the FAA is considering the following alternatives in response 
to RMNP and the overflights issue. The FAA may proceed immediately to a 
final rule based on this proposal that would implement the best 
alternative or alternatives. Therefore, comment is required on each of 
these proposals. The FAA may adopt one or a combination of several of 
the listed proposals.
    The following alternatives are listed in descending order of 
restrictiveness. Each alternative lists the specific implementing, 
regulatory language followed by an explanation of the alternative and 
possible variations on the alternative.

Alternative One: Ban on commercial Aviation Sightseeing Tours

    ``No person may operate an aircraft within the lateral boundaries 
of RMNP if the purpose of that operation is to carry passengers for 
hire for the purpose of sightseeing or air tours.''
    This alternative would prohibit flights within RMNP by commercial 
air tour operators. In the opinion of RMNP officials, air torus are the 
kind of operations that pose the greatest potential danger of creating 
adverse effects on the Park. The FAA's preliminary view is that air 
tour operations generally differ from other operations; e.g., in 
frequency and altitude above ground level. In addition, of course, air 
tour operations tend to visit points of interest within the park, where 
ground-based visitors are also likely to concentrate. General aviation 
would continue to operate over the Park under this variation. In 
discussions with the FAA, NPS officials have indicated that other forms 
of aviation activities within RMNP have not, to date, caused any 
serious noise problem. The FAA specifically seeks comment on whether 
the nature of air tour operations justify banning them while continuing 
to permit other commercial and private operations.

Alternative Two: Limits on Operations

    ``Any person operating an aircraft below 2,000 ft AGL for the 
purpose of carrying passengers for hire for sightseeing or air tours 
within the lateral boundaries of RMNP must operate along the following 
prescribed routes: [designate routes that follow the existing Park road 
system]''
    This alternative would require aircraft that fly below 2,000 feet 
above ground level (AGL) within the Park to follow the road system. The 
purpose of this proposal would be to concentrate the noise of aircraft 
in the areas of the Park that are already exposed to a high 
concentration of noise from automobiles, buses, etc. On the other hand, 
the greatest percentage of ground-based visitors are also on or near 
the Park road system.
    Variant A: ``No person may operate an aircraft below 2,000 feet AGL 
for the purpose of carrying passengers for hire for sightseeing or air 
tours while within the lateral boundaries of RMNP.''
    Variant B: ``No person may operate an aircraft below 2,000 feet AGL 
for the purpose of carrying passengers for hire for sightseeing or air 
tours within the lateral boundaries of RMNP before 10:00 a.m. or after 
4:00 p.m.''
    Variant C: ``No person may operate an aircraft below 2,000 ft AGL 
for the purpose of carrying passengers for hire for sightseeing or air 
tours within the lateral boundaries of RMNP from June through 
September.''
    These three variations on Alternative Two are examples of the types 
of restrictions that could be utilized to minimize the effect of 
overflights on the Park. Comments would be appreciated on these as well 
as other types of restrictions that could be possible, including 
different operating altitudes and times of day and season. Commenters 
are requested to pay particular attention to the following questions:
    <bullet> Would limiting air operations to road corridors 
concentrate too much noise in high visitor use areas? Conversely, would 
limiting overflights to such areas further the goal of maximizing the 
areas within the Park where visitors can enjoy the Park's natural 
quiet?
    <bullet> Would limiting operations by time of day or season of the 
year be economically feasible for potential tour operators?

Alternative Three: Voluntary Agreement

    Voluntary agreements are non-regulatory but, due to their unique 
nature, are treated as binding by the

[[Page 24585]]

signatories and are strictly self-policed, with monitoring by the NPS. 
Voluntary agreements have proven successful in a number of cases. For 
instance, a voluntary agreement between the NPS and the operators of 
air tours around the Statute of Liberty established air tour routes 
around the Statute and Ellis Island and stand-off distances for the air 
tour aircraft. This in turn created a safer environment and a more 
enjoyable experience for the visitors to the Statute. A similar 
arrangement can be found in the voluntary agreement concerning the Arch 
National Park in St. Louis, Missouri. Of course, voluntary agreements 
are easier to achieve when there is an identifiable base of air tour 
operators with which the NPS can enter into agreement.
    This alternative would provide a non-regulatory approach to the 
situation at RMNP. Under this alternative, present and potential future 
commercial air tour operators (before they start operating) would 
voluntarily enter into an agreement that would prohibit or restrict 
operations within the boundaries of RMNP. Comments are requested on the 
following matters, among others:
    <bullet> Areas that would be covered by a voluntary agreement, 
including the nature of the possible restrictions and the identities of 
the participants;
    <bullet> How such an agreement would be enforced;
    <bullet> How an agreement could be implemented within the necessary 
time frame for action to protect the Park;
    <bullet> Suggestions with respect to penalties for violations;
    <bullet> The circumstances under which an agreement could be 
terminated; and
    <bullet> Whether a regulatory system should be imposed now to serve 
as a contingency back-up in the event that a voluntary agreement is not 
reached or is terminated. Perhaps most of all, the FAA is interested in 
comments from potential air tour operators on the circumstances under 
which they would be willing to enter into a voluntary agreement to 
prohibit or limit operations.
    Of course, as with all the listed alternatives, the FAA could 
combine a voluntary agreement with any of the other alternatives. For 
example, the FAA could choose to seek a voluntary ban on operations 
during the summer, combined with route or time-of-day restrictions 
during other months. Other combinations could be considered, and the 
above examples are intended merely as illustrations.

    Issued in Washington on May 9, 1996.
David R. Hinson,
Administrator.
[FR Doc. 96-12133 Filed 5-10-96; 3:08 pm]
BILLING CODE 4910-13-M

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