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

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: [email protected]. 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:

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?

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:

Areas that would be covered by a voluntary agreement,

including the nature of the possible restrictions and the identities of

the participants;

How such an agreement would be enforced;

How an agreement could be implemented within the necessary

time frame for action to protect the Park;

Suggestions with respect to penalties for violations;

The circumstances under which an agreement could be

terminated; and

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]

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