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

SUMMARY: This action establishes a temporary Special Federal Aviation

Regulation (SFAR) at Rocky Mountain National Park (RMNP) to preserve

the natural enjoyment of visitors to RMNP by preventing any potential

adverse noise impact from aircraft-based sightseeing overflights. This

action temporarily bans commercial air tour operations over RMNP while

the FAA develops a broader rule that will apply to RMNP as well as

other units of the National Park system. The final rule will expire as

soon as a general rule on such overflights is adopted.

EFFECTIVE DATE: February 7, 1997.

FOR FURTHER INFORMATION CONTACT:

Neil Saunders, Airspace and Rules Division, ATA-400, Air Traffic

Airspace Management, Federal Aviation Administration, 800 Independence

Avenue, SW, Washington, DC 20591; Telephone: 202-267-8783. For the

Final Environmental Assessment and Finding of No Significant Impact,

contact Mr. William J. Marx, Manager, Environmental Programs Division,

ATA-300, Office of Air Traffic Airspace Management, Federal Aviation

Administration, 800 Independence Avenue, SW., Washington, DC 20591;

Telephone: (202) 267-3075.

SUPPLEMENTARY INFORMATION:

Availability of the Final Rule

Any person may obtain a copy of this final rule by submitting a

request to the Federal Aviation Administration, Office of Rulemaking,

ARM-1, 800 Independence Avenue, SW, Washington, DC 20591, or by calling

202-267-9677. Communications must identify the amendment number of this

final rule.

Background

The designation of an area as a National Park is one of the highest

recognition given to any area in the country for its natural beauty and

the importance of its protection. In view of the significance of this

designation, Congress requires that National Parks by managed

consistently with the ``high public value and integrity of the National

Park System and [such management] shall not be exercised in derogation

of the values and purposes for which these areas have been established

to conserve the scenery and the nature and the historic objects and the

wildlife therein, and to leave them unimpaired for future

generations.'' Organic Act, 16 U.S.C. Sec. 1a-1; 16 U.S.C. 273-273d,

273f. The National Park Service (``NPS'') and the Federal Aviation

Administration (``FAA'') recognize that noise from aircraft may

interfere with the natural park experience for visitors on the ground

and with efforts to preserve these and other park values.

On December 22, 1993,the Department of the Interior and the

Department of Transportation joined to form an interagency working

group (``IWG'') with the objective of protecting National Parks from

the adverse effects due to excessive aircraft noise. The IWG's tasks

included reviewing the environmental and safety concerns caused by park

overflights, and working towards resolution of impacts on specific

parks.

The FAA's role in the IWG is to ensure the maintenance of aviation

safety and provide for the safe and efficient use of airspace, while

working with the Department of the Interior to achieve its role in the

IWG to protect public land resources in the national park system,

preserve environmental values for those areas, and provide for the

public enjoyment of those areas.

On April 22, 1996, President Clinton issued a memorandum for Heads

of Executive Departments and Agencies, in which he announced his Earth

Day initiative, Parks for Tomorrow. Included in that initiative was the

directive to the Secretary of Transportation, in consultation with

other appropriate officials, to consider a rulemaking to address the

potential adverse impact on Rocky Mountain National Park and its

visitors of overflights by sightseeing aircraft. The President's

announcement also directed that the value of natural quiet and the

natural experience of the park be factors in any rulemaking action,

along with protection of public health and safety.

FAA Statutory Authority

The FAA has broad authority and responsibility to regulate the

operation of aircraft and the use of the navigable airspace and to

establish safety standards for and regulate the certification of

airmen, aircraft, and air carriers. 49 U.S.C. 40104, et seq., 49 U.S.C.

40103(b). Subtitle VII of Title 49 U.S.C. provides guidance to the

Administrator in carrying out this responsibility. However, the FAA's

authority is not limited to regulation for aviation safety and

efficiency.

The FAA has authority to manage the navigable airspace to protect

persons and property on the ground. The Administrator is authorized to

``prescribe air traffic regulations on the flight of aircraft

(including regulations on safe altitudes) for * * *. (B) protecting

individuals and property on the ground'' 49 USC 40103(b)(2). In

addition, under 49 USC Section 44715(a) the Administrator of the FAA,

in consultation with the Environmental Protection Agency, is directed

to issue such regulations as the FAA may find necessary to control and

abate aircraft noise and sonic boom to ``relieve and protect the public

health and welfare.''

The FAA construes these provisions, taken together, to authorize

the adoption of this regulation, which is intended to minimize the

limit the adverse effects of aircraft noise to protect visitor

enjoyment of RMNP. The FAA finds that the regulation of the navigable

airspace, as authorized under 49 U.S.C. 40103(b)(2), is necessary, on a

temporary, limited basis, as discussed below, to control and abate

aircraft noise at RMNP under 49 U.S.C. 44715. Current policies support

the exercise of FAA authority to protect the RMNP in these unique

circumstances, at least as an interim step while the FAA proceeds to

complete a rulemaking that will address the larger issue of protecting

national parks. See generally, Section 101 of the National

Environmental Policy Act of 1969, as amended 42 U.S.C. 4321 and

Executive Order 11514, as amended by Executive Order 11991.

Rocky Mountain National Park

RMNP receives approximately three million visitors a year, making

it the sixth most visited national park in the United States, despite

its relatively small size (for a major Western national park) of

265,727 acres. RMNP is located approximately 40 miles outside the city

limits of Denver, Colorado, and approximately 50 miles from the Denver

International Airport. The topography of the park is characterized by

steep mountains, narrow valleys, and high elevations (8,000 to 14,250

ft). Seventy percent of park terrain is above 10,000 feet. In fact,

excluding Hawaii and Alaska, RMNP has the highest percentage of

mountainous elevations above 10,000 feet, compared to any other

national park.

[[Page 1193]]

RMNP presents pilots with a challenging flying environment. It has

high winds, often in excess of 100 mph. The Park's high altitudes

diminish engine performance and propeller efficiency, making it more

difficult for an aircraft to perform in high winds. The rugged terrain

limits maneuverability, and the rapidly changing weather can

unexpectedly envelop an aircraft. Perhaps in part for these reasons,

the use of the airspace over RMNP for commercial air tour operations

has so far not been extensive. Unlike many other national parks, there

are currently no air tour operators overflying the park or operating in

the surrounding airspace. However, other aviation users do operate in

the airspace above RMNP. Due to the Park's proximity to the Denver

International Airport, aircraft operating to or from the airport

overfly RMNP. Arrival and departure routes above the Park are necessary

to ensure the safe and efficient handling of air traffic into the

airport. Traffic into the airport operates at minimum altitudes of

19,000 feet above mean sea level (MSL) for jets and 16,000 feet above

MSL for turboprop aircraft. Non-commercial general aviation aircraft

also overfly the Park. While these non-commercial aircraft have not

themselves created any noise problem, their presence establishes the

feasibility of relatively low-level overflights within the park of

operators of commercial sightseeing tours with comparable equipment.

The Park provides for automobile access within its boundaries from

which there are numerous opportunities for viewing the park's vistas.

Park officials estimate that 54 percent of the park can be seen from

points along the 149 miles of roads.

Ninety-two percent of the park is proposed for inclusion in the

National Wilderness Preservation System and is required by law to be

managed by the National Park Service as a de facto wilderness until

action is taken by Congress. This means that, among other things, most

motorized vehicles must be contained within the existing roadway

system, and future development is limited.

The Governor of Colorado, members of the Colorado Congressional

delegation, and other officials have requested the Department of

Transportation to place a preemptive ban on commercial air tour

operations at RMNP. Even though there are no commercial air tour

operations at the Park currently, some operators have expressed an

interest in starting commercial air tours to officials of Estes Park,

Colorado and to the NPS. The government officials who have requested

regulatory action are concerned that an influx of commercial air tour

operations at RMNP would undermine the enjoyment of the Park by

visitors on the ground.

The FAA wishes to be responsive to concerns about the effects of

overflights on the national park system. Although the FAA is still

developing nationwide standards for overflights of national parks, a

relatively unusual set of circumstances has occurred at RMNP. Judging

from the requests received by the FAA, there is broad support to

protect the park environment by a ban on overflights among local

leaders, even in the absence of current commercial air tour

overflights. In addition, the FAA acknowledges the value in being able

to take the initiative now, before any commercial overflights occur. At

this point, there has been no environmental loss from commercial air

tour overflights, and a temporary ban on such flights will cause no

economic loss to any incumbent operator.

This temporary Special Federal Aviation Regulation will expire as

soon as a general rule on overflights over the national park system is

adopted. The FAA and DOI will be collecting quantitative data in

conjunction with the development of this broader rule that will apply

to all units of the National Park System.

Within 24 months of the effective date of this temporary ban, the

FAA, in conjunction with the NPS, will complete a review of this

temporary ban on commercial air tour operations over RMNP and publish

its findings in the Federal Register. The FAA will determine whether

the ban continues to be necessary to meet the objectives of the FAA and

NPS. This review will consider any data collected during the

development of the broader rule, as well as any other additional data

that could be relevant to the temporary ban. The FAA also will consider

any new issues relevant to RMNP that may have arisen, the effect of the

temporary ban on the benefits of the park experience, including natural

quiet, and any unanticipated burden the ban may have imposed on the air

tour industry.

Discussion of Comments

A. Introduction

On May 15, 1996 (61 FR 24582), the FAA published an NPRM proposing

several alternative methods of preserving the natural park experience

of Rocky Mountain National Park by imposing restrictions on commercial

aircraft-based sightseeing overflights. Commenters were invited to

address three alternatives: (1) A total ban; (2) limits on operations,

and (3) a voluntary agreement. As of September 1, 1996, the FAA

received 4,527 comments from individuals, air tour operators from other

geographic locations, environmental and civic organizations, state and

local governments, and groups representing the interests of various

segments of aviation. The overwhelming majority of these commenters

favor Alternative One, a ban on overflights of RMNP, while a minority

of commenters, virtually all representing aviation interests (e.g.,

National Air Transport Association (NATA), Airline Owners and Pilots

Association (AOPA), and Helicopter Association International (HAI))

state opposition to any regulation of overflights at RMNP.

Specifically, 4,479 or 98.94 percent of the commenters favor

Alternative One; 14 or .30 percent favor Alternative Two; and 7 or .15

percent favor Alternative Three. Opposition to the NPRM and to any

regulation of RMNP overflights is expressed by 27 or .60 percent of the

commenters.

The vast majority of the comments that opposed sightseeing

overflights are from private citizens who appear to have been informed

about the NPRM by newsletters and other publications distributed by

organizations such as the National Parks and Conservation Association

(NPCA). In addition, the public was informed of this proposed action

through public involvement activities at Rocky Mountain National Park.

A summary of the views presented by the commenters follows. First,

the general issues raised by the commenters are discussed. Second, the

three alternatives included in the NPRM are explained and commenters'

arguments supporting and opposing each alternative are summarized.

B. General Issues Raised by Commenters

1. FAA Authority and Procedural Rules

Helicopter Association International (HAI) (comment 4357) states

that this NPRM does not cite a statutory basis for the proposed action,

but if the basis is 49 U.S.C. 44715, the FAA failed to consult the

Environmental Protection Agency (EPA). HAI also states that the NPRM

exceeds the mandate of Congress as stated in Public Law 100-91 to

``provide for the substantial restoration of the natural quiet and

experience of the park and protection of public health and safety from

adverse effects associated with aircraft overflight in the Grand Canyon

National Park.'' The primary concern of HAI is that there is no

Congressional mandate to restore the

[[Page 1194]]

natural quiet in the RMNP. Additionally, HAI claims that the NPRM is

not in compliance with the Administrative Procedure Act, in that the

NPRM is not informative enough to allow a concerned party the

opportunity to comment appropriately, is not promulgated on the basis

of safety, but on the unsubstantiated and subjective environmental

impacts of future overflights, and is not in compliance with the FAA's

own procedural requirements in Title 14 of the Code of Federal

Regulations (14 CFR Sec. 11.65. HAI also cites the lack of an

Environmental Impact Statement (EIS).

National Air Transport Association (NATA) (comment 4229) states

that this NPRM allows federal land management agencies like the NPS to

``effectively usurp FAA jurisdiction over air traffic and airspace

itself'' which is contrary to the Federal Aviation Act of 1958 that'' *

* * specifically charge[d] the FAA with assuring safety and fostering

the development of air commerce.'' NATA and HAI state that this NPRM

represents an undue threat to the public right of transit through the

navigable airspace of the U.S. as provided for in Section 104 of the

Federal Aviation Act. For the FAA to propose such a rulemaking would be

to remove its authority to promote air commerce and safety, which would

be ``an incomprehensible dereliction of responsibility,'' in NATA's

opinion.

The United States Air Tour Association (USATA) (comment 4563)

states that the FAA fails to cite the statutory authority for the

rulemaking, which it suggests is a tacit indication that the FAA does

not have the requisite statutory authority to enact the rules put forth

in the NPRM.

The Colorado Pilots Association, Inc. (comment 4429) states that

the proposed ban would act as an unreasonable interference with

interstate and intrastate commerce.

The National Association of State Aviation Officials (NASAO)

(comment 4433) points out in a resolution issued at its Washington

conference on March 10, 1996, that the proposed rule would give the NPS

authority to direct the FAA in the use of the national airspace, which

would be interfering with the FAA's mandate under Federal law.

Southwest Safaris (comment 4583) comments that the FAA does not

have the regulatory power, as determined by Congress, to regulate that

which does not exist. This commenter adds that the FAA was mandated by

Congress to foster and promote the growth of commercial aviation, not

to ``regulate it out of existence'' and that if the NPRM is

implemented, commercial aviation would be discouraged instead of

constructively regulated on behalf of the general public's interests.

The Northern California Airspace Users Worker Group (NCAUWG)

(comment 4424), claims that the NPRM is inconsistent with the NPS

Organic Act, unduly discriminatory against aviation, and would

establish an undesirable precedent that could be used in other areas to

affect negatively the safe and efficient use of airspace. This

commenter states that the NPS was created by Congress to ``promote and

regulate the use of Federal areas known as national parks * * * [so as

to] conserve the scenery and the natural and historic objects and the

wildlife therein and to provide for the enjoyment of the same in such a

manner and by such means as will leave them unimpaired for the

enjoyment of future generations'' (16 U.S.C. 1). This commenter

contends that regulating overflights over the RMNP does nothing to

maintain the objectives listed above.

In contrasts, the Sierra Club/Grand Canyon Chapter (comment 2035)

and the Citizens for Aircraft Noise Abatement/Sedona (CANA/S) (comment

4227) contend that natural quiet has been identified by the Park

Service as a resource, citing the National Park Service Organic Act, as

amended by the Redwoods Act of 1978, that defines resource preservation

as the primary goal of the national parks. In addition, these

commenters cite the Wilderness Act of 1964, which was enacted to

protect the ``primeval character'' of designated lands and to provide

``outstanding opportunities for solitude.''

The Utah Air Travel Commission (comment 1113) oppose the NPRM

because it questions the thoroughness and completeness of the

scientific basis of the NPS's Report to Congress, in which aircraft

noise alone was singled out as obtrusive, making this report both

incomplete and biased. This commenter believes a new study is required,

complete with the identification of all obtrusive noise source, before

further regulation of park airspace is enacted. In addition, this

operations of national parks may violate the Americans with

Disabilities Act. This commenter is also concerned with the

unconditional restriction imposed on aircraft due to noise, and asks if

silent engines of the future will still be restricted.

The Utah Air Travel Commission also cites the conclusion of a

study, Tour Passenger Survey Results, that the NPS considered biased

because it was a survey of air tour passengers. The Commission believes

that while the study may be incomplete, it does not recommend the

elimination of park overflights; rather, it identifies the major value

of overflights. This, in the commenter's opinion, indicates that no

further regulation of overflights is warranted or needed.

2. Lack of Safety Justification of Any Rulemaking

The HAI (comment 4357) opposed the NPRM because there are no

studies stating that the proposed rules will promote aviation safety or

protect the environment and there has been no research conducted

stating that health issues will be advanced.

The Montana Department of Transportation (comment 4349) asserts

that aircraft overflights do not damage scenery, natural and historical

objects or wildlife in the parks. Therefore, this commenter opposes

this NPRM as it believes that ``all categories of aviation are already

by the use of navigable airspace for all respective flight activities

at this time.''

The Colorado Pilots Association, Inc. (comment 4429) states that

the proposed ban is unnecessary because aerial tours do not operate

over RMNP for obvious reasons: the high altitudes of the park; aircraft

loading factors; and the attendant operating costs associated with

running successful aerial tour operations. Thus, ``it is inappropriate

to restrict an activity that is unlikely to ever occur.''

Geo-Seis (comment 4350), a part 135 certificate holder and provider

of certain air tour operations in various parts of the U.S., oppose the

NPRM, contending that ``while no specific plans currently exist, [it]

is an operator that is contemplating operations in the RMNP,''

especially given the close proximity of its offices to the Park and the

type of helicopters this company operates. This commenter asserts that

since it operates high altitude helicopters with an excellent safety

record, it requests the FAA to reconsider prohibiting helicopter

operations in the RMNP in the future.

3. National Standards/General Aviation

National Business Aircraft Association, Inc. (NBAA) (comment 1843),

the Grand Canyon Air Tour Council (comment 2006), NATA (comment 4229),

Aircraft Owners and Pilots Association (AOPA) (comment 4356), and the

NCAUWG (comment 4424) are concerned about the potential for this

proposed rule becoming the model for national overflight standards

affecting all national parks. While the NBAA (comment 1843) has no

vested interest in commercial sightseeing operators, it takes issue

with a

[[Page 1195]]

requirement to detour around the airspace of national parks while

engaging in normal operations. NBAA is opposed to regulation

prohibiting overflights by persons other than those engaged in for-hire

sightseeing service because ``there is no substantial evidence of

significant noise impact on park area from normal (non-sightseeing)

overflights by general aviation aircraft.'' Each of these commenters

are wary of the implications of the NPRM based on the Grand Canyon

National Park Rule, that is their opinion, are inherently

discriminatory towards general aviation. AOPA (comment 4356) contends

that due to the Grand Canyon National Park Rule, general aviation is

required to fly higher altitudes than air tour operators, even though

it constitutes very little transient traffic, as opposed to the

thousands of overflights conducted by air tour operators. A similar

point is made by NASAO (comment 4433). Several of the commenters point

out that general aviation does not disturb the natural quiet of RMNP,

and the current voluntary overflight altitude of 2,000 feet is one

result of voluntary cooperation.

The Grand Canyon Air Tour Council (comment 2006) comments that the

RMNP proposal is not separable from the FAA's and the Department of the

Interior's project to develop national standards that will attempt to

regulate all air traffic over all national parks and other possible

federal land, and states that the broader issue ``needs to be brought

into the public domain for proper viewing.'' The council recommends a

voluntary agreement until the debate on national standards for park

overflights is available for national scrutiny.

AOPA (comment 4356) opposes any altitude restrictions for general

aviation over RMNP. It asserts that general aviation does not disturb

the natural quiet of the RMNP, and the current voluntary overflight

altitude of 2,000 feet has served well to negate the potential impact

of general aviation overflights.

4. Economic Considerations

Since there are no operators currently performing sightseeing air

tour operations over RMNP, the FAA in the NPRM determined that the

expected impact of this regulatory action is negligible and that this

proposed amendment would not have a significant impact on a substantial

number of small entities. Since operators may be considering starting

these types of operations over the park in the future, the FAA asked

for comment on whether any person intends to institute commercial

sightseeing operations at RMNP.

HAI (comment 4357) disagrees with the rationale that there was no

need to conduct a regulatory impact analysis because ``there are no

operators currently performing sightseeing air tour operators over

RMNP, therefore the regulatory impact is negligible.'' HAI states that

it is incumbent upon the FAA that an analysis of the future impact of

this rule be conducted.

The Grand Canyon Air Tour Council (comment 2006) claims that the

cost issue is not fully considered by the FAA. This commenter asserts

that if the FAA can use a potential noise issue to justify its proposal

it can use potential air tour operation in determining what is and what

is not a cost on society. It recommends that the FAA: (1) Assess the

monetary value of the RMNP's worth to society; (2) examine the

potential revenue that could be appropriately generated through present

and future business development (including air tours); and (3) develop

a financial mode that would attempt to ascertain cost to society versus

other values, e.g., the opportunity to see the seventy percent of the

RMNP terrain that is above 10,000 feet.

The Grand Canyon Air Tour Council further asserts that it is very

difficult to comprehend how the FAA concluded in the Regulatory

Evaluation section that ``this rule would not have a significant impact

on a substantial number of small entities and would not constitute a

barrier to international trade.'' The council states that the majority

of air tour operators fall within the federal definition of a small

business and that the majority of revenue produced by air tour

operators are from foreign visitors.

5. Quiet Aircraft

McDonnell Douglas Helicopter Systems (MDHS) (comment 4552) states

that the use of quiet aircraft technology would be more effective in

reducing noise than would flight restrictions or the imposition of a

ban. This commenter cites Congressional testimony and reports by the

NPS and FAA/National Aeronautics and Space Administration (NASA) on the

use of quiet aircraft technology and how it can be used as a noise

reduction methodology. For example, in a 1994 report to Congress, the

NPS recommended the use of quiet aircraft technology as a means to

reduce the noise effect on National Parks.

C. Proposed Alternatives

The NPRM outlined three alternative methods of preserving the

natural enjoyment at RMNP and requested specific comments on how such

agreements could be handled. Alternative One would ban commercial

aviation sightseeing tours in the vicinity of RMNP. Alternative Two

would allow commercial sightseeing tours, but would restrict the

operations to routes that would be restricted to minimum altitudes and

would follow the existing road system, among other restrictions.

Variations of this alternative were presented in the NPRM. Alternative

Three would call for voluntary agreements between air tour operators

and the NPS.

Since there were no air tour operators conducting overflights at

the time the NPRM was proposed, the three proposed alternatives were an

attempt to provide a fair representation of the possible ways to

mitigate the predicted effect of aircraft noise generated by future air

tour operators. Using the alternatives, which included suggestions

ranging from the maintenance of the status quo through the use of

voluntary agreements and restrictions on time, season, and altitudes,

to a complete ban on all future air tour operations, the FAA made an

informed decision. After considering the public policy favoring the

preservation of the natural enjoyment of our National Parks, the strong

demand from Colorado residents to ban commercial air tour overflights,

the special situation and unique features of RMNP, and the numerous

comments and alternatives, the FAA concluded that a ban on commercial

air tour operations over RMNP will ultimately inure to the benefit of

all. In effect, the ban will operate to preserve the status quo,

because there are currently no commercial air tour operations at RMNP.

The ban clearly protects the enjoyment of the park while avoiding the

imposition of restrictions that would result in a less than meaningful

opportunity for commercial air tours to operate over RMNP.

1. Alternative One--Ban Sightseeing Tours

a. Support. The majority of commenters (99 percent) support a ban

on commercial aviation sightseeing tours. Most of these commenters are

individuals who live near the park and/or have visited the park.

Organizations that support a ban include: CANA/S, Sierra Club, NPCA,

Wilderness Land Trust, League of Women Voters, Town of Estes Park,

Estes Valley Improvement Association, Inc., Larimer County Board of

County Commissioners, The Wilderness Society, and other local

governmental and non-governmental organizations. Reasons that

commenters give for supporting the ban include:

[[Page 1196]]

(i) Preserve the Natural Enjoyment of the Park. Commenters stress

that the total ban would preserve the natural enjoyment and

tranquillity of the park, which is what visitors value most in their

national park experience. Some commenters cite statistics. e.g., 96

percent of park visitors value tranquillity, and 81 percent of park

visitors are directly opposed to tour overflights. Some commenters

point out that most of the park's visitors come from urban areas and

are seeking the peace and quiet offered by the park. Others point out

that the original purpose of national parks and wilderness areas was to

provide this natural tranquillity and that overflights would destroy

this objective.

Commenters assert that the allowance of overflights at other

national parks (e.g., Grand Canyon National Park) has resulted in

unacceptable noise levels which spoil the experience of park visitors.

For example, commenter #2698 says that commercial sightseeing tours in

Sedona, Arizona's Red Rock and Canyon regions continually violate FAA

regulations which limit flight altitudes.

Roy Romer, the Governor of Colorado (comment 2156), supports

Alternative One. He cites the counties, chambers of commerce, and

hundreds of area citizens who have shown their unanimous support for a

ban on helicopter tour overflights and who believe that helicopter

tours of the park would be inconsistent with the long-term economic

development goals and quality of life in their communities. Similarly,

CANA/S (comment 4227) references two memos: One from Department of

Agriculture, Secretary Dan Glickman, to Department of Transportation,

Secretary Federico Pena (dated July 31, 1996); and the other from the

Forest Service Chief Jack Ward Thomas to Secretary Glickman (dated

April 11, 1996): ``We believe that commercial helicopter flights over

wildernesses are inconsistent with the values for which these areas

were established by Congress.''

Estes Valley Improvement Association (comment 155) claims that tour

operations would shatter the silences in the RMNP ``bowl of a valley.''

It is this commenter's belief that because the air is thin in this

area, larger and stronger helicopter engines would be necessary. This

would result in unendurable noise in the valley, thereby negatively

impacting the ground tourism as well as the quality of life for the

residents of the area.

The NPCA (comment 3634) states that, unlike commercial passenger

jets and general aviation operations, commercial air tour operations

are characterized by frequent, low-altitude flying to maximize contact

with scenic points of interest. From the perspective of NPCA's members,

this impacts on the park visitor's experience and the preservation of

natural quiet.

(ii) Safety. Estes Valley Improvement Association (comment 155)

cites the danger that tour operators would put themselves in by flying

in an area known for extreme variations in weather, as sudden storms

are common in the Great Divide and have been known to destroy

airplanes. This, in turn, is a great source of danger for helicopters,

people on the ground, and rescue operations.

Another commenter (comment 1335), based on his experience as a park

ranger at the RMNP, states that bursts of wind would prove difficult

for piston-engine aircraft to maintain altitude, air speed, and control

when operating in the ``rarefied air of these altitudes'' of the RMNP.

Also, he comments that the terrain of the park is more vertical than

horizontal and is not safe for the operation of any aircraft and that a

further danger would be for rescue personnel and victims of an

incident. He cites the specific example of a recent airplane accident

on Mount Epsilon, where the plane exploded from impact on the

mountainside; when the airplane and pilot were found, there was no safe

way to retrieve the pilot's body due to the potential of avalanches

caused by the perilous plane position on the snow cornices on top of

the cliff.

One commenter asserts that Alternative One would ensure the safety

of park visitors (passengers on overflights and visitors on the ground)

by preventing flying in a potentially unsafe mountainous area with

varying elevations and unpredictable weather conditions (e.g., quick-

forming thunderstorms, strong mountain wave winds and accompanying

turbulence). One commenter (comment 540) also asserts that the crash of

any aircraft could likely ignite a catastrophic forest fire.

(iii) Wildlife. From an ecological standpoint, commenters 295 and

1335 assert that increased air traffic can affect animals in many

negative ways: adversely affecting breeding behaviors of birds and

mammals, interrupting nesting habits, and causing stress to certain

species. Animals indigenous to these areas are apt to respond to this

noise stress by either migrating from the area or simply dying off,

unable to handle the stress to their natural habitat. In addition,

there may be an increased danger from rock falls and avalanches. To

this commenter, the most important issue is that the RMNP should serve

as a tranquil refuge to the wildlife. Posing a similar ecological

concern, a park ranger (comment 1335) mentions the greater pollution

problem when dealing with airplane crashes, scattering fuel loads and

airplane parts throughout the fragile tundra ecosystems, which require

years to recover from such accidents.

A complete ban would prevent potential negative impacts on

wildlife. Some commenters state that RMNP is one of the last refuges

for many species, and that overflights would devalue their natural

habitat and safety. This, in turn, would impact visitors' experience of

the park because many of them value wildlife sightings. It would also

be consistent with the national policy of providing protection for

national park lands.

(iv) Access for Disabled. To counter the claim that prohibiting the

flight of helicopters would disadvantage the elderly or disabled from

enjoying the park, the Estes Park Accommodations Association (comment

257) states that there are areas for cars to travel as well as tour

vans to accommodate them. The Wilderness Land Trust (comment 2027)

similarly assert that there are opportunities to partake of the scenic

vistas, making aviation sightseeing unnecessary.

Visitors who cannot or choose not to see the park on foot can

already get a good view of the park and look down on the mountains by

driving on one of the park's several roads (e.g., Trail Ridge Road) or

by using the handicap accessible trails. Thus, overflights are

unnecessary.

(v) Cost. CANA/S (comment 4227) states that the benefit (natural

quiet for the vast majority of visitors and residents who value this

resource) of Alternative One justifies its costs (a disappointed

prospective air tour operator of some unknown time in the future). The

same analysis applies to the option of maintaining the status quo

(avoiding any additional expenses now), which according to this

commenter does not ``justify its costs (uncertainty about the advent of

RMNP air tours, as well as the failure of FAA to address problems in

their early or pre-existent stages, not to mention even higher expenses

to solve problems retroactively.)'' The benefits of Alternatives Two

and Three (economic transactions between the few and the fewer) do not

justify their costs (shattered natural quiet for most individuals, and

enormous governmental expenses for dealing with the problems).

(vi) Other. The Wilderness Society (comment 4457) states that, as

has occurred at other national parks, correction of overflight problems

will be

[[Page 1197]]

virtually impossible once commercial flights have become established.

Thus, FAA action is necessary to preclude the establishment of

commercial air tour operations within RMNP and provide the highest

degree of protection for the park's resources and visitors.

The Sierra Club, Grand Canyon Chapter (comment 2035) strongly

supports Alternative One and adds the following recommendations: the

rule should be implemented permanently; four bordering Congressionally

designated wilderness areas should also be covered under this no-air-

tour-flight rule, specifically, Comanche Peak, Indian Peak, Neota, and

the Neversummer Wildernesses; general aviation should be subjected to

the same rule as air tour operators, except that low altitude flights

may be required for emergency purposes like search and rescue, fire-

fighting, etc.; and the rule should apply to airspace adjacent to the

protected areas as well.

b. Oppose. (i) Air Transportation--Least Damaging. Commenters such

as the HAI (comment 4357) and Geo-Seis (comment 4350) claim that

helicopters and other air tours are the most environmentally sound

means to enjoy RMNP because, unlike those visitors on foot, the air

tour visitors do not trample vegetation, disturb artifacts or leave

behind any refuse. In addition, air tours do not require roads or other

infrastructure development. More importantly, they provide a service to

the handicapped and elderly, who would not otherwise be able to visit

the park. Finally, these tours may fulfill the need to provide rescue

and emergency airlift.

NATA (comment 4229) and HAI (comment 4357) state that these

proposals are discriminatory in nature as no other modes of access to

the Park have been proposed to be limited. NATA states that ground

traffic ``extol a much more tangible price on the natural beauty of the

Park'' while air tours ``leave no residual effects within the Park that

affect the enjoyment of the Park by persons on the ground.''

(ii) Temporary Ban While Studying. NATA (comment 4229) notes that

the idea behind the prohibition of all flights is to allow the FAA and

NPS the opportunity to ``study the situation and to develop a plan for

controlling these overflights to minimize or eliminate their effect on

park visitors on the ground.'' This commenter thinks that this

alternative is counter-intuitive to this stated objective, as no data

would be able to be collected if no flights were permitted to take

place in the RMNP. In order to accurately determine the effect of air

tours within the Park, air tours must be allowed within the Park, as

extrapolating or estimating the data from other sources would be

inaccurate due to the unique characteristics of all parks. In

conclusion, NATA believes that the fact no sightseeing operators

provide service to the Park is irrelevant and future opportunities to

provide access to the Park are eliminated unfairly.

(iii) Air Tour Operators comparable to General Aviation Aircraft.

The USATA (comment 4563) points out that, according to the NPRM,

commercial aircraft currently overfly the park on a daily basis at

19,000 and 16,000 feet above mean sea level (MSL). USATA says that

these altitudes are less than 2,000 feet above the highest peaks and

also adds that, since seventy percent of the park terrain at RMNP is

10,000 feet MSL, most of the general aviation aircraft currently flying

through RMNP are following routes where the Park's peaks rise above

these aircraft. USATA states that with numerous aircraft moving in,

around and above RMNP, NPS officials, in discussions with the FAA, have

found that these aircraft have not caused any serious noise problem.

USATA believes that air tour aircraft are akin to general aviation

aircraft and commercial overflights, and if used properly, would

present negligible effects.

(iv) Other. Temsco Helicopters (comment 4575), an operator that

conducts air tours in Alaska, says that prohibiting air tours would be

discriminatory to air tour operators. This commenter also says that

alternative one would create interpretation problems. For example,

``are flights that are point to point but fly through RMNP air tours?

Is a photo flight an air tour?''

2. Alternative Two--Permit Sightseeing tours with Limitations

a. Support. Geo-Seis (comment 4350) would support some time-

specific restrictions under this option and suggests that the times be

modified to parallel optimum flight conditions, which are primarily

earlier in the mornings to mid-afternoon.

b. Oppose. (i) Enforcement. The Estes Valley Improvement

Association (comment 155) claims that limiting operations is completely

unsatisfactory primarily because of the inability of any agency to

monitor this regulation. This commenter and others believe that the

proposed requirement of flying 2,000 feet above ground-level is not

practical or enforceable since the ground-level varies so drastically

from 7,500 to 14,255 feet.

CANA/S (comment 4227) claims that the FAA's 2,000-foot above-

ground-level guideline for flights over noise-sensitive areas is

routinely ignored by air tour operators. In addition, HAI's flight

guidelines are also often ignored.

An individual commenter (comment 325) says that a 2,000 ft. above

ground level restriction is meaningless because ``[o]ver much of the

park's terrain hikers could throw rocks down on the occupants of a

plane complying with the restriction.'' Also, seasonal restrictions are

meaningless because the park is used year-round by skiers and others.

(ii) Noise Issue. Estes Valley Improvement Association (comment

155) states that since noise from aircraft reverberates all over the

valley, this option to keep flying only over roads would not solve the

reduction in noise issue, as this area is where the highest percentage

of residents, visitors and lower groups of animals would be affected.

Similarly, CANA/S (comment 4227) adds, noise from aircraft flying

at 2,100 feet above ground is, for all intents and purposes,

indistinguishable from that at 2,000 feet. Therefore, this alternative

and the voluntary agreement fail to address many aspects of the natural

quiet equation. This commenter adds, according to NPS's 1992 Aircraft

Overflight Study: Effect of Aircraft Altitude upon Sound Levels at the

Ground, any doubling of flight altitude (say from 2,000 feet to 4,000

feet) would, based on divergence alone, result in only a 12 decibel

reduction (NPS, page 3). This commenter contends that this may be

helpful in the instance of already quiet aircraft, but loud aircraft

would still shatter the quiet.

The Wilderness Society (comment 4457) states that the restrictions

of Alternative Two would not eliminate the degradation of visitors'

experiences. Routing flights over road corridors would mean that more

visitors would be affected by the noise, and routing flights over

backcountry areas would affect the highest quality wilderness and

wildlife habitat. In addition, restrictions on elevation above ground

level would not eliminate the noise problem, and would result in as a

de facto ban at those altitudes where noise levels were reduced to an

acceptable level because the distance from the ground to the aircraft

would be too great to afford a decent view. Finally, it would also be

extremely difficult to enforce an altitude restriction.

(iii) Lack of Data. Taking a different approach to this

alternative, NATA (comment 4229) perceives that the variants presented

by this alternative

[[Page 1198]]

offer nothing more than varying forms of restrictions. This commenter

assumes that the basis for this action is to enhance the environment of

the Park by visitors on the ground by limiting air tour operations

during these periods. However, NATA asserts, no quantifiable data

exists as to how limiting air access to the Park will enhance the

experience of visitors on the ground. According to a survey of Park

users conducted by the NPS, about 90 percent of the visitors to the

Park stated that their enjoyment of the Park would be affected by

helicopter noise. This commenter states that using this data to limit

all overflight operations is ludicrous, and ``the FAA cannot apply

theoretical data to a nonexisting situation.''

HAI (comment 4357) believes that this NPRM does not provide

sufficient information for meaningful comment. For instance, no

information on what routes are considered in Alternative Two was

included and there are no maps or charts provided for an analysis of

proposed routes. This lack of information makes it impossible to

comment in detail.

(iv) Other. NPCA (comment 3634) states that, in a park environment

that is totally free of commercial air tour activity, placing

limitations on operations would invite the establishment of such

activity. NPCA adds that any limit, less restrictive than a total and

permanent ban, would result in the derogation of park values rather

than any improvement of current conditions.

Temsco Helicopters (comment 4575), which supports alternative

three, states that time and seasonal restrictions of alternative two

would make any kind of air tour operation unworkable. For example,

seasonal restrictions would make operations economically unfeasible and

would close the park to one type or class of visitor for a portion of

the year.

USATA (comment 4563) disapproves of imposing limits on the routes

used by air tour aircraft and points out that the ability of these

aircraft to operate away from populated areas is a positive factor.

USATA states that air tours would cause the least amount of

environmental damage to wilderness areas and would therefore be

supporting the mission of the Wilderness Act to preserve the ``primeval

character and influence'' of these areas.

USATA goes on to point out its difficulties with Variants A, B, and

C. USATA says that the 2,000 feet AGL limitation of Variant A would be

in effect a ``one-size-fits-all'' approach would could exacerbate the

presence of sound from aircraft; this was the case in Haleakala

National Park which was required to meet a 1,500 foot AGL minimum by

SFAR 71. USATA also states that the time limitations of Variant B would

be unreasonable because it would be impossible to present many of the

wonders of the park in the absence of flight. Finally, USATA says that

the seasonal limitations of Variant C would threaten the viability of

air tour operations seeking to operate in RMNP because many of these

companies would need to operate year round in order to stay in

business.

3. Alternative 3--Voluntary Agreement

a. Support. The Grand Canyon Air Tour Council (comment 2006)

contends that this is the only viable option. This commenter believes

that a voluntary agreement is necessary, because such an agreement

provides a solution ``where no authority exists for effecting

regulatory options (as in the case of this RMNP NPRM).'' This commenter

provides reasons why the other two alternatives are not acceptable: the

disregard to the interests of the elderly and handicapped to have air

tour availability in the RMNP, the lack of an Environmental Impact

Statement prior to the implementation of the proposed SFAR, and the

fact that this proposal is based on a request by Colorado's Governor,

the Congressional delegation, and other officials from Colorado

specifically, none of whom are the owners of this national park and do

not represent a federal statutory authority nor a legislative mandate.

Therefore, in this commenter's opinion, it ``would appear incumbent

upon the FAA to decide to proceed only with Alternative Three and

request the involvement of potential tour operators in the

establishment of a voluntary agreement to prohibit or limit

operations.''

Temsco Helicopters (comment 4575) points out that there are good

examples of existing voluntary agreements that are working well. For

example, in Alaska, where this commenter operates, the best routes and

altitudes have been refined over the years and have resulted in the

least impact and very few complaints. This commenter states that an

SFAR would not allow for the kind of refinements and positive results

that such agreements have fostered.

Geo-Seis (comment 4350), an air tour operator, believes that given

the personal preferences of paying customers on these flights and

limitations on flights due to adverse weather conditions, voluntary and

satisfactory operating agreements could easily be established with most

operators.

AOPA (comment 4356) believes ``cooperation between general aviation

pilots and the NPS has always been a cornerstone of aviation's efforts

to preserve the park experience of ground visitors. The current

voluntary overflight altitude of 2,000 feet is one result of this

cooperation.''

USATA (comment 4563) supports the use of voluntary agreements and

says that its organization would work with the FAA, NPS, and others in

drafting a letter of agreement. The agreement should address these

issues: (1) areas that would be covered, (2) possible restrictions and

identities of the participants, (3) discussion on how an agreement

would be implemented in the necessary time frame, (4) how an altitude

restriction would be enforced, (5) suggested penalties for violations,

and (6) the circumstances under which an agreement could be terminated.

b. Oppose. Many commenters say that voluntary compliance is

unrealistic because operators would not voluntarily limit their own

profits and because it would be difficult to enforce. For example,

commenter #325 says that the park is sufficiently large to be a

challenge to monitoring of compliance.

The Estes Valley Improvement Association (comment 155) believes

that this proposal is completely unrealistic since, currently,

operators do not exist in the RMNP, and no possible route of

overflights could make tolerable the noise which would fill the Valley

and the Park.

NPCA (comment 3634) states that voluntary agreements have a history

of failure and cites the experience at Hawaii Volcanoes National Park

where many operators, after having given verbal agreements to park

management, backed away from written agreements for fear that a rogue

operator would capitalize on non-compliance and seize market share.

Similarly, the Wilderness Society (comment 4457) states that voluntary

agreements have not successfully protected park resources and that

violations occur for which the Park Service has no recourse.

On the NPRM's use of the Statue of Liberty and Jefferson National

Expansion Memorial as examples of successful voluntary flight

agreements, CANA/S (comment 4227) refutes the ability of the FAA to use

them as examples. These locales are site-specific, urban ones, where

``natural quiet'' did not already exist to any appreciable degree,

particularly with the 500-foot above ground level altitude agreements

in effect. These locales are in no way comparable to those of much more

vast territory, much of it wilderness, and much of it relatively

[[Page 1199]]

quiet. The sightseeing objective of those two examples is to swoop

around a single entity. Similarly, NATA (comment 4229) claims that

while these self-regulated, self-policing cases have been successful

for those specific parks, no air tour operators currently provide

service to the RMNP, and no agreements can be made between the

government and ``air tour operators which may exist in the future.''

Response to Comments

As will be described in greater detail below, the comments offered

many cogent and informative remarks for consideration by the FAA. The

number and quality of the comments received demonstrated to the FAA the

importance and complexity of this issue as it relates to RMNP. All

comments were thoroughly read and analyzed.

Many of the commenters offered similar arguments for either

acceptance or rejection of the various alternatives presented in the

NPRM. Due to the vast number of the comments, the section below is a

summary of the assertions alleged in the comments and the corresponding

response by the FAA.

FAA Authority To Manage the Airspace

Several commenters questioned what they considered was the apparent

usurpation by the NPS of the FAA's statutory authority and jurisdiction

to regulate the national airspace system. They asserted that the NPS,

through this rule, had gained control over the navigable airspace in

complete disregard to the FAA's statutory mandate. The regulation of

navigable airspace is the sole responsibility of the FAA. The United

States Congress has clarified this issue by vesting the FAA with sole

authority for the management and control of the navigable airspace. In

addition, safety remains the FAA's primary consideration and plays a

necessary and integral role in any decision made by the agency.

The allegation that the NPS has assumed jurisdiction for the

management of the national airspace is unfounded. The FAA and NPS

worked closely together, however, to base any regulatory action on

FAA's statutory authority and responsibility. Toward this end, for

example, no action was even proposed until the FAA made a determination

that there would be no adverse effect on aviation safety in navigable

airspace from any of the proposals stated in the NPRM.

Several commenters argued that the FAA lacked the authority to

regulate a problem that ``does not exist.'' These commenters argue that

it is premature for the FAA to regulate this area, where commercial air

tours do not presently operate over RMNP. The Administrator of the FAA

is charged with the duty of regulating the use of the navigable

airspace, adopting regulations deemed necessary to abate aircraft

noise, and protecting persons and property on the ground. The

Administrator has the authority to regulate whenever previous history

or evidence has revealed a propensity for future problems.

The FAA acknowledges that each of the national parks differ in

their topography, nature, size and purpose, but certain experiences

found in one park also occur in other parks. Experience with commercial

air tour operations in Badlands National Park, Bryce Canyon National

Park, Glacier National Park, Glacier Bay National Park, Great Smokey

Mountains National Park, Grand Canyon National Park and Mt. Rushmore

National Memorial have demonstrated the rise in the number of

commercial air tour operations conducted over the parks and a

concomitant increase in the noise from such operations.

For example, at Glacier National Park, The NPS estimates that from

1986-1996 the number of fixed wing and helicopter tours at the park

increased from 100 to 800 and the number of tour operators from one to

five. At Badlands National Park, NPS estimates that the single air tour

operator offering helicopter tours conducted over 400 flights in a five

month period, or an average of three flights per hour during peak

periods. These flights are repetitive in nature concentrated in two

basic circular flight patterns over the same area again and again,

constantly disturbing the quiet of the park. The air tour operations

have led to numerous complaints by visitors to the park.

Bryce Canyon has air tour operations from several locations within

the vicinity of the park. At Bryce Canyon Airport, located 3.5 miles

north of the park, NPS reports that the number of enplanements has

increased dramatically from 1299 in 1991 to approximately 4700 per year

in the current year. Likewise, the number of air tour operators, from

all locations, has increased from one to five. At the Mt. Rushmore

National Memorial, the Park Service estimates that the number of

overflights has increased from 2400 per year to 4000 per year along

with an increase of tour operators from one to four. All of the tour

operators use helicopters and the majority of these flights are

concentrated in the summer months at the rate of approximately 30 per

day.

In addition, the Park Service has conducted a survey of park users

at RMNP, which indicated that ninety-three percent of visitors

considered tranquility to be an ``extremely'' or ``very'' important

value in the park. Approximately ninety percent of the visitors

surveyed stated that noise from helicopter tours would affect their

enjoyment of the park. A copy of the survey has been placed in the

docket of this proceeding.

Based upon this information from RMNP visitors, the growth of tour

operations at these other parks, and the apparent representations of

potential tour operators, the FAA has concluded that the introduction

of air tour operations at RMNP is a real possibility in the absence of

regulation. Further, if commercial air tours are established at RMNP,

the actions by commercial air tour operators at the other parks

suggests that the number of commercial air tour operators and the

number of daily over flights would both increase beyond de minimus

levels. Air tour operations would tend to visit many of the points of

interest where ground-based visitors are likely to concentrate and to

conduct operations at altitudes so as to maximize contact with these

points of interest. The increase in operations and their proximity to

major points of interest would lead to increased noise levels thereby

impacting the quiet enjoyment of RMNP expected and desired by visitors

to the park.

While the FAA has determined that a permanent rule regarding

oversights of Rocky Mountain National Park by commercial tour operators

should be made part of the overall rulemaking on overfights of all

national park units, the FAA is taking this temporary action now to

avert the introduction of such operators into RMNP while the national

rule is completed. The experience gained from other national parks

forms part of the basis for the Administrator's decision to move at

this time to protect Rocky Mountain National Park.

Administrative Procedure Act

One commenter alleged that the FAA has failed to comply with the

Administrative Procedure Act's notice and opportunity for comment

requirements by failing to provide sufficient information to allow a

meaningful response to Alternative Two. As an example, the commenter

suggests that, under Alternative Two, the absence of maps and charts

deprives the commenter of a meaningful opportunity to analyze the

proposed routes.

Section 553(b) of the Administrative Procedure Act provides that

``notice shall include--(3) either the terms of substance of the

proposed rule or a

[[Page 1200]]

description of the subjects and issues involved.'' Under the

alternatives section, the FAA solicited comments on numerous proposals,

while requesting new ideas on possible restrictions. The Agency

received many comments on the proposed alternatives, but no new

alternative that had not already been proposed. (Had the FAA received a

new, significantly different, proposal on which it relied, the FAA

would have issued a Supplemental NPRM to solicit comments on the new

proposal prior to taking action.) The number and specificity of the

received comments demonstrate a general understanding of the proposed

alternatives. Therefore, the FAA concludes that it has provided

sufficient detailed information concerning the description of the

subjects and issues involved to comply with the terms of the

Administrative Procedure Act by affording interested parties with a

meaningful opportunity to comment on the proposal.

``Natural Quiet'' Standard

One commenter challenged the action of the FAA as proposed in the

NPRM by alleging that the actions of the FAA exceeded the Congressional

mandate provided under Public Law 100-91 to substantially restore the

natural quiet of the Park, because that standard was devised solely for

the protection of the Grand Canyon. The commenter further opined that

the attempt to achieve ``natural quiet'' in RMNP was inappropriate and

without any Congressional mandate.

It is true that Public Law 100-91 was directed to restoring the

``natural quiet'' of Grand Canyon National Park only and not to the

other parks in the national system. Public Law 100-91 provides for the

substantial restoration of the natural quiet and experience of the

Grand Canyon National Park and protection of public health and safety

from adverse affects associated with aircraft overflights. The FAA is

taking separate action on restoring the quiet of Grand Canyon National

Park.

In this final rule, however, the FAA is carrying out President

Clinton's directive to promote natural quiet at Rocky Mountain National

Park. As noted above, the President's Parks for Tomorrow initiative

specified that the restoration of natural quiet, and the natural

enjoyment of RMNP are goals to be addressed by this rulemaking. By

promulgating this final rule, the FAA is cooperating with the NPS to

further the goal of protecting Rocky Mountain National Park, its

environment, and visitors' enjoyment, to ensure that the potential

problems associated with noise from commercial air tour operations do

not arise while a long-term solution is developed to protect RMNP and

other national park units from the adverse effects of overflights by

tour operators.

Another commenter asserted that NPS's report to Congress, while

espousing the restoration of natural quiet, singled out only noise as

being obtrusive. The commenter alleged that this made the report

incomplete and biased.

The NPS's report to Congress: Report on Effects of Aircraft

Overflights on the National Park System responded to the Congressional

mandate set forth in Public Law 100-91. The scope of the mandate was

limited to the impacts of aircraft overflight on the national park

system with distinctions to be made among various categories of

aircraft overflights. The law made no provision to identify or compare

any impacts on the national park system from other activities or

sources. To the extent that other activities, such as ground

transportation, may have an adverse effect on parks' environment or

visitor experience, these effects can be dealt with by the NPS under

its authority.

NEPA Requirements

Some commenters maintain that the FAA should prepare an

environmental impact statement (EIS) pursuant to the National

Environmental Policy Act of 1969, prior to issuing the final rule

because they contend that implementation of any of the alternatives of

the proposed SFAR, except the ban alternative (Alternative 1), will

have a significant adverse affect on the quality of the human

environment.

According to the FAA's Environmental Order 1050.1D, the final rule

is a Federal action which requires compliance with the NEPA. Consistent

with the FAA Order 1050.1D, Para. 35, the FAA prepared a draft

environmental assessment (DEA). The DEA did not disclose potentially

significant direct or indirect impacts affecting the quality of the

human environment. On November 21, 1996, the FAA announced the

availability of the DEA for notice and comment. The comment period on

the DEA remained open until December 23, 1996. Based on the comments

received on the DEA and further analysis, the FAA has issued a Final

EA. The FAA has determined that no additional environmental analysis is

required and has issued a finding of no significant impact (FONSI). The

final EA and FONSI has been issued and is available for review in the

Docket. For copies of the documents, contact the person listed in the

For Further Information Contact section listed above.

This final rule constitutes final agency action under 49 U.S.C.

46110. Any party to this proceeding having a substantial interest may

appeal the order to the courts of appeals of the United States or the

United States Court of Appeals for the District of Columbia upon

petition, filed within 60 days after entry of this Order.

EPA Consultation

One commenter states that the NPRM does not cite a statutory basis

for the proposed action, but if the basis is 40 U.S.C. 44715, the FAA

failed to consult the EPA.

The FAA is, in fact, relying on 40 U.S.C. 44715 and has consulted

with EPA. The EPA believes that the environmental assessment adequately

supports a finding of no significant impact.

Airline Deregulation Act

Another commenter believes that by promulgating the NPRM, the FAA

has violated Section 102 of the Airline Deregulation Act of 1978 by

failing to: (1) Encourage the entry of new carriers into air

transportation, (2) foster the expansion of existing carriers into

additional air transportation markets, and (3) insure the existence of

a competitive airline industry. The commenter cites the possibility

that interstate operators might become interested in commercial air

tours in the future.

The statutory obligation to encourage development and competition

among air carriers is not unconstrained. The FAA has authority to

regulate, restrict, or prohibit activities by operators when necessary

in the public interest. The final rule effects a temporary ban on

commercial air tour operations over the Rocky Mountain National Park;

the FAA has determined such a ban is necessary to allow for the orderly

development of a comprehensive approach to regulating air tour

operations at RMNP and other parks in a manner that is consistent with

the needs of park visitors on the ground. The potential that an

interstate operator will become interested in commercial air tour

operations at RMNP at some unspecified point, let alone during this

interim period, is pure speculation, irrespective of the informal

remarks of the commenters, and fails to rise to the level of a

protectable interest. Moreover, it is important to recognize that a

major reason the final rule has been promulgated, prior to the

existence of commercial air tours, is to avoid the unnecessary

interruption of established commercial service by whatever

[[Page 1201]]

regulation is adopted in the broader national rulemaking now underway

on park overflights.

This rulemaking arose in response to public demand. The policy for

preserving the natural enjoyment at our national parks has been

formulated by the FAA to facilitate the adaptation of the air

transportation system to the present and future needs and interests of

the public. Any potential air tour operator currently evaluating

whether to provide air tour operations within Rocky Mountain National

Park will be able to participate in the development of the rulemaking

on national park overflights at all parks, including RMNP.

Americans With Disabilities Act

Several comments were received alleging that the final rule will

violate the Americans With Disabilities Act, Sec. 2(a)(8) by depriving

disabled persons of equal opportunity for full participation in the

enjoyment of the Rocky Mountain National Park. According to these

comments, commercial air tour operations will be the only way disabled

individuals can enjoy the vistas of RMNP.

To the contrary, Rocky Mountain National Park offers an unique

opportunity for disabled individuals to enjoy its spectacular vistas

via its extensive road system. Approximately 54% of the RMNP can be

viewed from some point along its 149 miles of winding road. In this

aspect, RMNP is unique in its ability to provide access to recreational

experiences via trails which allow access to backcountry and scenic

vistas. Moreover, the NPS has established facilities and programs

within RMNP to enhance the opportunities for visitors with disabilities

to experience the Park. Thus, FAA believes that this rule does not

violate the ADA.

Economic Costs

One commenter suggested that the FAA should conduct a cost/benefit

analysis to determine whether the costs of implementing the NPRM will

exceed its ultimate value to society. The imposition of this ban will

not have an economic impact on commercial air tour operations over RMNP

today because they are non-existent. Nor does the FAA consider it

probable that significant levels of new services will arise during the

temporary period between adoption of this rule and completion of the

more comprehensive rulemaking on national park overflights. The FAA's

intent is specifically to avert economic damage to commercial air tour

operators by acting prior to one of more operators commencing business

on the assumption that they will be allowed to operate over RMNP once

the general rule is adopted. By acting expeditiously, the FAA will

enable these operators to avoid making the capital investments

necessary to engage in these operations that may be subject to future

restrictions as part of the national rule.

However, it would be an error to minimize the true impetus for the

final rule which is to preserve the natural resources at RMNP,

including the quiet and solitude. In this respect, it is difficult to

assign a monetary value to the benefit to be gained by this rule.

Specifically with respect to the economic value attached to the

preservation of environmental values, some economic analysis models

(such as use of a ``willingness to pay'' analysis) could ascertain an

economic value to society of such an asset. However, such analysis is

not necessarily directly comparable in a cost/benefit basis with the

economic valuations of costs and benefits that the FAA undertakes for

other rulemakings. As a result, the information provided through such

an effort would have little analytical or probative value.

National Standards/General Aviation

Many of the commenters that expressed opposition to this rule

stated that it is premature for the FAA to take action concerning one

park within the national park system when it is currently drafting a

rule to cover all aviation operations within the total national park

system. The commenters felt that parks should not be dealt with on a

case-by-case basis, but should be incorporated into any national

standards that are promulgated.

To some extent, the FAA agrees with these concerns. For that

reason, this rule will terminate when national standards are adopted.

However, in view of the strong local demand for action to ensure

preservation of Rocky Mountain National Park and the ripeness of this

proceeding, the FAA is taking the opportunity to establish temporary

protective measures at RMNP while the national standards are being

adopted. By Presidential Declaration dated April 22, 1996, the

President directed the Secretary of Transportation to consider and

draft a Notice of Proposed Rulemaking that would propose national

standards for air tour overflights of the national parks. The FAA is

working on that national rule currently and will follow rulemaking

procedures, including proceeding with notice and opportunity for

comment, prior to taking any final action. The FAA has designed its

Rocky Mountain National Park rule to terminate on the adoption of

national standards.

Certain commenters raised an objection that even though the air

tour ban would apply to only commercial air tour operators, the rule

proposed still represents an undue threat to the public right,

including that of general aviation aircraft, to transit the navigable

airspace of the United States. This final rule is strictly limited to

overflights by commercial air tour operators over RMNP. Air tour

operations differ from general aviation operations in the frequency of

trips and their operational altitudes. In addition, air tours generally

operate over picturesque areas where ground traffic congregates and at

altitudes intended to maximize contact with these areas. Therefore, air

tour operations are distinguishable from general aviation operations to

such a degree as to remove any perceived threat to the right of general

aviation aircraft to transit RMNP. Under the provisions of the final

rule, all other aircraft will remain undisturbed in their current

routes and altitudes of flight.

Quiet Technology

Another commenter recommends that rather than banning commercial

air tours over the RMNP, the FAA should follow the recommendations of a

1994 report to Congress where the NPS suggested the use of quiet

aircraft technology as a means of reducing the noise effect on National

Parks. The NPS report to Congress suggested that quieter aircraft could

be used in substantial restoration of natural quiet in Grand Canyon

National Park (GCNP). It identified Dtt C-6-300, Vistaliner and Cessna

208 Caravan airplanes, and the McDonnell Douglas ``No Tail Rotor''

helicopters as the quietest aircraft currently operating in GCNP. The

NPS made this determination based on its evaluation of aircraft

certification data derived from applicable noise certification

standards in Part 36 of Title 14 of the CFR, and from NPS flyover noise

measurements taken in the park. Because of the temporary nature of this

rule, the FAA determined that quiet technology would not provide an

adequate alternative. Quiet technology ultimately holds great promise

for ensuring the compatibility of air tour overflights and the

maintenance of quiet for ground-based visitors of national parks.

Indeed, movement toward the use of quiet technology forms a cornerstone

of the FAA's proposal for a long-term solution to overflights of the

Grand Canyon. And the FAA will want to explore the role quiet

technology should play in the national rule. However, for this interim

period, a temporary ban on

[[Page 1202]]

commercial air tour operations will maintain the status quo and allow

an orderly resolution of questions pertaining to quiet technology and

other issues. To the extent that technological change would allow the

operation of commercial air tours within RMNP in a manner consistent

with the protection of the Park, its resources, and its enjoyment by

visitors, the FAA will review this rule in the future.

The Lack of Air Tour Operators

Certain commenters questioned whether this rule was even necessary,

because aerial tours do not operate over RMNP for obvious reasons: the

high altitudes of the park; aircraft loading factors; and the attendant

operating costs associated with running successful aerial tour

operations. The FAA, in cooperation with the NPS, is currently

developing regulations to govern aircraft overflight of national parks.

Since the inception of that effort, interest has been expressed by an

operator to commence commercial air tour service at RMNP. As a

practical matter, it was the fact that a commercial air tour operator

was contemplating engaging in flights over RMNP that caused the

Governor of Colorado, members of the Colorado Congressional delegation,

and Estes Park, Colorado officials to request the FAA to preemptively

ban such operations at RMNP.

The fact that commercial air tour service is being contemplated for

RMNP supported the FAA determination that immediate action was

necessary to preserve the natural enjoyment of visitors to RMNP by

implementing a temporary ban on commercial air tour operations. In

addition, the FAA believes it is critical to act expeditiously on this

matter to avoid any potential environmental and economic impact.

Alternatives

As previously mentioned, the FAA is attempting to implement a

regulation over RMNP that achieves the goal of preserving the natural

enjoyment of the Park by visitors by averting the future and potential

adverse effects of aircraft noise. The comments received on the

alternatives were crucial in the FAA's decision. Based on the comments,

the FAA determined that Alternatives 2 and 3 would not achieve the

desired goal. Therefore, the FAA has determined that the best

alternative in application and result would be Alternative One on a

temporary basis.

In response to the voluntary agreement alternative and the comments

received on that alternative, the FAA determined that since there are

currently no air tour operators conducting operations over the Park,

there are no operators to participate in a meaningful discussion and

negotiation with the NPS officials at the Park. The FAA is appreciative

of the willingness of certain aviation groups, such as USATA and HAI,

to participate in the drafting and implementation of a voluntary

agreement. However, without actual operators that would be willing to

be made a party to the voluntary agreement, the FAA determined that

this alternative would not achieve its desired goal.

Alternative 2 proposed to permit sightseeing tours with several

suggested limitations. The FAA partially agrees with some of the

commenters who stated that the imposition of partial restrictions would

not provide a meaningful result for the commercial air tour operators

or achieve the goal of this rulemaking. Moreover, in reviewing the

different options that could be used in conjunction with air tour

restrictions listed in Alternative 2, the FAA concluded that the

application of these options would be operationally difficult for the

commercial air tour operators. The terrain within RMNP is quite varied

and irregular, with mountain peaks and valleys differing in elevations

by thousands of feet. This forces a pilot to be more attentive to the

varying topography.

The FAA agrees with the commenters that cited the difficulty in

requiring air tour operators to conduct operations only over the

existing roadways in RMNP. Certain flight corridors may become

necessary in the future, but their establishment will necessitate a

much more comprehensive aeronautical and environmental review that just

designating the existing roadways. Given the challenging operational

environment, the FAA agrees with those comments which claim that

restrictions based on the season, time of day, or day of the week would

be economically unfeasible for air tour operators.

As noted above, the FAA can reasonably infer from the varied and

instructional information received at other parks as to the effects of

aircraft noise due to commercial air tour operations. An altitude

restriction that would increase the minimum altitude above 2,000 feet

above ground level would still have the potential to adversely impact

both visitors and resources. Therefore, the FAA determined that the

most efficient method of mitigating the potential adverse effects from

aircraft noise in this particular case would be to place the preemptive

ban on all commercial air tour operations.

Comments Received During the Reopened Comment Period

On November 21, 1996, the FAA reopened the comment period on this

rule in order to allow comment on the Draft Environmental Assessment

(DEA) that was made available at that time; public responses were also

invited to material from the National Park Service that was placed in

the docket on December 11, 1996, concerning commercial air tour

operations over national park lands.

The information showed that commercial sightseeing operations have

become very popular at a number of units of the national park system,

and are growing in popularity in others. Many park areas have either

documented or estimated significant increases in the volume of air tour

activity over the last ten years. For example, air tour flights over

Grand Canyon National Park have increased from a few hundred flights

per year in the 1960's, to 40,000 to 50,000 per year in 1986, to 80,000

to 95,000 per year in 1996, with up to 40 companies offering

sightseeing flights over the park, according to industry, FAA and/or

media estimates. Experience at Hawaii Volcanoes and Haleakala National

Park in Hawaii has been similar in trend but lower in magnitude, with

highs of 23,000 flights per year and 10 operators estimated at Hawaii

Volcanoes.

Hard statistics are lacking on the number of sightseeing operations

conducted over national park areas because, with the exception of

recent fee legislation for Grand Canyon, Hawaii Volcanoes, and

Haleakala National Parks, there are no requirements for operators to

provide such data. Even at the three parks in the fee legislation,

accurate data has not been readily available. In virtually all cases,

overflight data has to be estimated based upon a variety of sources,

such as airport operations data, limited field observations, FAA

projections for airport master planning, industry publications, and

voluntary responses to surveys and requests for information.

The trends based upon such numbers indicate increasing interest and

levels of sightseeing operations over many national park areas, which

correlates with trends for ground visitation. For example, Glacier

National Park estimates that between 1986 and 1996 the number of

overflights increased from 100 to 800 per year, and the number of

commercial air tour operators increased from one to five. Mount

Rushmore estimated an increase from 2,400 to 4,000 overflights and from

one to four operators during the same time

[[Page 1203]]

period. Sightseeing tour operators have become based within a few miles

of the park boundary during the past two years at Bryce Canyon and

Canyonlands, with major expansion of airport facilities either proposed

or approved to accommodate increasing tour operations at both places.

At present, a new helicopter tour operation is in the process of

starting up at Chickamauga-Chattanooga National Military Park.

The extended comment period closed on December 23, 1996. Forty-nine

submissions were received during the reopened comment period, most of

which were substantive comments on the proposed rule. Many of the

commenters during the reopened period had commented previously, but

were either supplementing their prior comments or were adding to or

extending their arguments.

Thirty-one commenters used the reopened comment period to express

overall support for a complete ban on commercial tour overflights.

These include the comments from the Estes Valley Improvement

Association, the Town of Grand Lake, CO, the National Parks and

Conservation Association, the Pourdre Canyon Group of the Sierra Club,

the Estes Park League of Women Voters, and the League of Women Voters

of the United States and numerous individuals. These commenters

typically stressed the need to maintain the natural enjoyment of the

Park's solitude and quiet and argued that overflights by commercial air

tour operators would adversely affect that enjoyment. Among those

expressing general opposition to the proposal were several other

individuals and Bell Helicopters Textron, Inc. Every comment submitted

during the reopened comment period was read and considered, although

neither all comments nor all points raised will be addressed

individually in this preamble. Many of the arguments presented are

similar to those that were submitted earlier and discussed above.

Several comments, however, suggested new arguments against the

imposition of a ban on commercial tour overflights, and these are

discussed below.

The new comments that addressed the DEA are discussed in the Final

Environmental Assessment for this rule and are not mentioned in the

preamble to this rule. A copy of the Final Environmental Assessment has

been placed in the rulemaking docket and is available upon request to

the person listed in the FOR FURTHER INFORMATION CONTACT section above.

Alleging that the reopened comment period was too short, the

Helicopter Association International, the Grand Canyon Air Tour

Council, and the United States Air Tour Association requested that the

DEA be withdrawn and/or the comment period extended to allow additional

time for further analysis. However, several commenters such as the

League of Women Voters, the Estes Valley Improvement Association, Inc.,

and the Town of Grand Lake, stated that the time allowed was sufficient

to analyze the DEA and found the document adequate in its review of the

relevant environmental consequences associated with this rule. Further,

as discussed above, the FAA believes that prompt completion of this

rulemaking is necessary, because the proposed ban on commercial air

tours contained in the NPRM may affect the business and investment

decisions of operators. Therefore, while in the abstract it is always

desirable to have more rather than less time for public comments, that

desire must be balanced against the need to complete the rulemaking in

a timely manner. This means that the temporary ban should be

implemented before any air tour operator attempts to start commercial

air tour operations at RMNP and then is adversely affected financially

by the imposition of the subsequent ban. Experience at other national

park units suggests that while commercial air tour operations do not

cease in the winter months, the number of commercial air tour

operations in the winter (as well as the number of new start-up air

tour businesses) is not as high as in the warmer months of the year.

Therefore, the FAA wants to impose the temporary ban in the more

dormant months of the year before new air tour operations are started.

Even though the comments offered by Southwest Safaris (Safaris)

focus on the DEA, Safaris alleges certain points that pertain both to

the DEA and this final rule. Safaris argues, among other things, that

the FAA has no basis on which to ban overflights by commercial air tour

operations, because there are no such operations currently. In the

absence of such operations, Safaris argues, there is no ``measurable''

need to prohibit them. Safaris also dismisses National Park Service

data indicating that approximately 90 percent of park visitors surveyed

stated that noise from helicopters would affect their enjoyment of the

park. (``In the last sentence, the word, `would,' does not mean `does.'

The impact of helicopter noise over RMNP is entirely hypothetical.'')

The problem with Safaris' argument is that it necessarily implies that

the FAA has no authority to act to prevent reasonably foreseeable

problems before they occur, and this is simply false. The agency is not

obliged to wait until damage occurs before exercising its authority to

stop such damage. This issue arises more frequently in the safety

context, where most of FAA's regulations arise, but it applies with no

less force in the exercise of FAA's other authorities.

Safaris also challenges the FAA's right to apply information gained

from experience with commercial tour overflights of other national

parks to RMNP. While each park has unique characteristics, the FAA

believes that some general understanding can be gained with respect to

the business of conducting tour overflights, including its growth

pattern and market considerations. The FAA's and NPS experience extends

as well to an appreciation of the effect of such overflights on park

visitors and resources. While specific topography and park

characteristics must be taken into account, the agencies general

knowledge can and must inform its projections about the nature and

effects of any air tour operations at RMNP. The FAA acknowledges that

additional information would improve our ability to forecast specific

noise impacts. The agency has determined to impose only a temporary ban

on commercial tour overflights at RMNP while a broader rule is

considered. This rulemaking allows the FAA to prevent an overflight

problem from air tour overflight from developing in RMNP, as it has in

so many other national parks.

Safaris goes on to argue, as does the Northern California Airspace

Users Working Group, that air tour operations increase rather than

diminish the value of parks, and that compared to automobile visitors,

air tour visitors cause less damage to park resources. The FAA will not

be drawn into any attempt to compare the benefits and costs to park

resources of air and ground visits. Experience from other parks that do

have air tour operations is that most air tour national park visitors

(though by no means all) are also ground visitors. Indeed, this was

confirmed by representatives of the air tour industry at the Grand

Canyon in discussions with FAA staff earlier this year. Therefore, air

tour operations do not in any large measure replace ground visits. In

view of RMNP's ready accessibility to a major metropolitan area and the

convenience with which it may be visited by automobile, it is

reasonable to assume that this will be particularly true at RMNP.

HAI argues that the NPRM should be withdrawn because, in HAI's

view, the regulatory language is too vague to be enforceable. HAI

claims that the

[[Page 1204]]

proposed rule would prohibit regional air carrier and on-demand air

taxi flights that now traverse the park. The FAA has already addressed

the argument that a prohibition on air tours at RMNP would also apply

to other kinds of air operations. The short answer is that it would

not. The FAA has the same response to the comment of the Soaring

Society of America. The Soaring Society's comment argues that gliders

do not pollute measurably, either in noise or emissions, and it states

the Society would therefore oppose a general ban of aircraft flights

over a National Park. The FAA has not imposed any general ban on all

aircraft at Rocky Mountain National Park. Only commercial air tour

operations would be affected by the temporary ban adopted in this rule.

As to HAI's suggestion here that air tour operations cannot be

distinguished from point-to-point service, we believe that neither the

operators nor the FAA will have any difficulty in understanding the

difference between the high-frequency air tour service that

concentrates at places of particular interest and flights that travel

as directly as feasible between two distant cities, and happen to

traverse the park on a particular route. However, if HAI believes, as

it says, that a more specific definition is necessary, we invite HAI to

propose one, either for future use at RMNP or as part of the

development of a national rule on air tour overflights at national

parks.

Regulatory Evaluation

Federal regulations must undergo several economic analyses. First,

Executive Order 12866 directs that each Federal agency shall propose or

adopt a regulation only upon a reasoned determination that the benefits

of the intended regulation justify its costs. Second, the Regulatory

Flexibility Act of 1980 requires agencies to analyze the economic

effect of regulatory changes on small entities. Third, the Office of

Management and Budget directs agencies to assess the effects of

regulatory changes on international trade. In conducting these

analyses, the FAA has determined that this rule is a ``significant

regulatory action'' as defined in the Executive Order and the

Department of Transportation Regulatory Policies and Procedures.

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (RFA) helps to assure that

Federal regulations do not overly burden small businesses, small non-

profit organizations, and airports located in small cities. The RFA

requires regulatory agencies to review rules which may have ``a

significant economic impact on a substantial number of small

entities.'' A substantial number of small entities, defined by FAA

Order 2100.14A--``Regulatory Flexibility Criteria and Guidance,'' is

more than one-third, but not less than eleven, of the small entities

subject to the existing rule. To determine if the rule will impose a

significant cost impact on these small entities, the annualized cost

imposed on them must not exceed the annualized cost threshold

established in FAA Order 2100.14A.

Changes to Federal regulations must undergo several economic

analyses. First, Executive Order 12866 directs that each Federal agency

shall propose or adopt a regulation only upon a reasoned determination

that the benefits of the intended regulation justify its costs. Second,

the Regulatory Flexibility Act of 1980 requires agencies to analyze the

economic effect of regulatory changes on small entities. Third, the

Office of Management and Budget directs agencies to assess the effects

of regulatory changes on international trade. In conducting these

analyses, the FAA has determined that this rule is ``a significant

regulatory action'' as defined in the Executive Order and the

Department of Transportation Regulatory Policies and Procedures. This

rule will not have a significant impact on a substantial number of

small entities and would not constitute a barrier to international

trade. The FAA's criteria for ``substantial number'' are a number which

is not less than 11 and which is more than one third of the small

entities subject to this rule.

This regulatory evaluation examines the costs and benefits of

special flight rules in the vicinity of Rocky Mountain National Park

(RMNP). The rule is intended to preserve the natural enjoyment of RMNP

from any potential adverse impact from aircraft-based sightseeing

overflights. Since the impacts of the changes are relatively minor as

well as temporary, a full regulatory analysis, which includes the

identification and evaluation of cost-reducing alternatives to this

rule, has not been prepared.

Costs

At present there are no air tour operations over RMNP and, despite

some expression of interest, none have taken definitive action to

initiate service at this time. Considering the historical record, the

FAA assumed that this final rule will not lead to increased costs to an

operator over the next ten years since there are no operators.

Moreover, applications for air tour operations have been repeatedly

turned down by the town of Estes Park, and it is unlikely that

opposition to air tour operators will lessen over time there.

However, while there are no air tour operators that are currently

expected to operate in RMNP, information supplied to the docket shows

that from time to time small operators have tried to gain approval for

operating over RMNP from local authorities. In order not to overlook

the potential costs imposed by this rule to potential operators in this

analysis, the FAA has attempted to estimate this potential cost. To

estimate the potential costs to these potential operators, the FAA

employed recent data from the proposed rulemaking on ``Flight Rules in

the Vicinity of Grand Canyon National Park.''

Financial data from two small scheduled fixed wing operators and a

helicopter operator that operate over the Grand Canyon were utilized.

The three operators chosen are: a 5 passenger CE 206 operator, a 3

passenger Piper Pa-28-180 airplane operator, and a SA-341-G helicopter

operator. The estimated annual operating revenues for these operators

are respectively, $53,000, $10,000, and $16,000.

Even if the FAA assumes that three relatively small operators would

eventually gain authority to operate over RMNP in the next ten years,

the costs will still be quite small. The FAA estimates costs in lost

revenues to operators due to this rule will range from zero, which is

most likely, to $79,000 per year if three operators are denied the

ability to do business over RMNP due to the rule.

Benefits

This rule serves to preserve the desired state of quiet and

solitude in the park. Currently, the natural enjoyment of the Park is

not disturbed by air tour operators and will not be after the rule is

promulgated.

Conclusion

Small entities potentially affected by the final rule are potential

air tour operators that in the absence of the rule would operate over

Rocky Mountain National Park. The FAA estimates from zero to three

operators might be affected by the rule, well below the substantial

number criteria. The FAA thus concludes that there will not be a

significant economic impact on a substantial number of small entities.

International Trade Impact Analysis

The final rule will not have any impact on international trade

because the potentially affected operators do not

[[Page 1205]]

compete with foreign operators. The rule also will not constitute a

barrier to international trade, including the export of U.S. goods and

services to foreign countries and the import of foreign goods and

services to the United States.

Federalism Implications

This action will not have substantial effects on the States, on the

relationship between the national government and the States, or on the

distribution of power and responsibilities among the various levels of

government. Indeed, State and local government representatives have

been among the advocates for FAA regulatory action to protect RMNP from

the noise created by overflights. Therefore, in accordance with

Executive Order 12612, it is determined that this action will not have

sufficient federalism implications to warrant the preparation of a

Federalism Assessment.

International Civil Aviation Organization and Joint Aviation

Regulations

In keeping with United States obligations under the convention on

International Civil Aviation, it is FAA policy to comply with

International Civil Aviation Organization Standards and Recommended

Practices (SARP) to the maximum extent practicable. For this action,

the FAA has reviewed the SARP of Annex 10. The FAA has determined that

this action will not present any differences.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (Pub. L.

104-13), there are no requirements for information collection

associated with the proposed regulation.

Conclusion

For the reasons set forth above, the FAA has determined that this

rule is a significant regulatory action under Executive Order 12866.

The FAA certifies that this rule will not have a significant economic

impact, positive or negative, on a substantial number of small entities

under the criteria of the Regulatory Flexibility Act. This rule is

considered significant under DOT Regulatory Policies and Procedures.

List of Subjects

14 CFR Part 91

Aircraft, Airmen, Aviation Safety.

14 CFR Part 119

Air carriers, Aircraft, Aviation safety, Charter flights.

14 CFR Part 121

Air carriers, Aircraft, Aviation safety, Safety, Transportation.

14 CFR Part 135

Air Taxis, Aircraft, Airmen, Aviation safety.

The Amendment

The FAA wishes to be responsive to concerns about the effects of

overflights on the national park system. For that reason and due to the

unique situation at RMNP the FAA is temporarily banning commercial air

tour operations in the vicinity of the RMNP for sightseeing purposes

for the limited duration of the SFAR. In consideration of the

foregoing, the Federal Aviation Administration amends Title 14 of the

Code of Federal Regulations (14 CFR) parts 91, 119, 121, and 135 as

follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

1. The authority citation for part 91 continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40113, 40120, 44101, 44111,

44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306,

46315, 46316, 46502, 46504, 46506-46507, 47122, 47508, 47528-47531.

PART 119--CERTIFICATION: AIR CARRIERS AND COMMERCIAL OPERATORS

2. The Authority citation for part 19 continues to read as follows:

Authority: 49 U.S.C. 106(g), 1153, 40101, 4010, 40103, 40113,

44105, 44106, 44111, 44701-44717, 44722, 44901, 44903, 44904, 44906,

44912, 44914, 44936, 44938, 46103, 46105.

PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL

OPERATIONS

3. The authority citation for part 121 continues to read as

follows:

Authority: 49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44702,

44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904,

44912, 46105.

PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND OPERATIONS

4. The authority citation for part 135 is revised to read as

follows.

Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44709,

44711-44713, 44715-44717, 44722.

5. In parts 91, 119, 121, and 135, Special Federal Aviation

Regulation No. 78, the text of which will appear at the beginning of

part 91 is added to read as follows:

SFAR No. 78--Special Operating Rules for Commercial Air Tour Operators

in the Vicinity of the Rocky Mountain National Park

Section 1. Applicability. This Special Federal Aviation

Regulation prescribes operating rules for commercial air tour flight

operations within the lateral boundaries of the Rocky Mountain

National Park, CO.

Section 2. Definition. For the purpose of this SFAR:

``commercial air tour'' means: the operation of an aircraft carrying

passengers for compensation or hire for aerial sightseeing.

Section 3. Restriction. No person may conduct a commercial air

tour operation in the airspace over Rocky Mountain National Park,

CO.

Expiration: This SFAR will expire on the adoption of a final

rule in Docket No. 27643.

Issued in Washington on January 3, 1997.

Linda Hall Daschle,

Acting Administrator.

[FR Doc. 97-435 Filed 1-3-97; 3:46 pm]

BILLING CODE 4910-13-M