Special Flight Rules in the Vicinity of Grand Canyon National Park

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91, 93, 121, and 135

[Docket No. 28537; SFAR-50-2; Amendment 93-76]

Special Flight Rules in the Vicinity of Grand Canyon National

Park

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: On December 31, 1996, the FAA published a final rule that

codified the provisions of Special Federal Aviation Regulation (SFAR)

No. 50-2, Special Flight Rules in the Vicinity of Grand Canyon National

Park (GCNP); modified the dimensions of GCNP Special Flight Rules Area

(SFRA); established new and modified existing flight-free zones;

established new and modified existing flight corridors; established

reporting requirements for commercial sightseeing companies operating

in the SFRA; prohibited commercial sightseeing operations during

certain time periods; and limited the number of aircraft that can be

used for commercial sightseeing operations in the GCNP SFRA. On

February 21, 1997, the FAA delayed the implementation of certain

portions of that final rule. Specifically, that action delayed the

effective date for 14 CFR 93.301, 93.305, and 93.307 of the final rule

and reinstated portions of and amended the expiration date of SFAR No.

50-2. However, that action did not affect or delay the implementation

of the curfew, aircraft restrictions, reporting requirements or the

other portions of the rule. This amendment will delay the effective

date for 14 CFR 93.301, 93.305, and 93.307 of the December 31, 1996

final rule until January 31, 2000. Additionally, this rule will amend

the expiration date of those portions of SFAR No. 52-2 that were

reinstated in the February 21, 1997 final rule and extended in the rule

published on December 17, 1997.

EFFECTIVE DATE: January 29, 1999.

FOR FURTHER INFORMATION CONTACT: Ellen Crum, Airspace and Rules

Division, ATA-400, Office of Air Traffic Airspace Management, Federal

Aviation Administration, 800 Independence Avenue, SW., Washington, DC

20591; Telephone (202) 267-8783.

SUPPLEMENTARY INFORMATION:

Background

On December 31, 1996, the FAA published three concurrent actions (a

final rule, a Notice of Proposed Rulemaking (NPRM), and a Notice of

Availability of Proposed Commercial Air Tour Routes) in the Federal

Register (62 FR 69301) as part of an overall strategy to further reduce

the impact of aircraft noise on the GCNP environment and to assist the

National Park Service (NPS) in achieving its statutory mandate imposed

by Public Law 100-91. The final rule amended part 93 of the Federal

Aviation Regulations and added a new subpart to codify the provisions

of SFAR No. 50-2, modified the dimensions of the GCNP Special Flight

Rules Area; established new and modifies existing flight-free zones

(FFZ's); established new and modifies existing flight corridors; and

established reporting requirements for commercial sightseeing companies

operating in the Special Flight Rules Area. In addition, to provide

further protection for park resources, the final rule prohibited

commercial sightseeing operations in the Zuni and Dragon corridors

during certain time periods, and placed a temporary limit on the number

of aircraft that can be used for commercial sightseeing operations in

the GCNP Special Flight Rules Area. These provisions originally were to

become effective on May 1, 1997.

On February 21, 1997, the FAA issued a final rule and request for

comments that delayed the implementation of certain sections of the

final rule (62 FR 8862; February 26, 1997). Specifically, that action

delayed the implementation date, until January 31, 1998, of those

sections of the rule that address the Special Flight Rules Area,

flight-free zones, and flight corridors, respectively sections 93.301,

93.305, and 93.307. In addition, certain portions of SFAR No. 50-2 were

reinstated and the expiration date was extended. With the goal to

address concerns about the air tour routes possible, implementation was

delayed to allow the FAA and the Department of the Interior (DOI) to

consider comments and suggestions to improve the proposed route

structure. This latter action did not affect or delay the

implementation of the curfew, aircraft cap, or reporting requirements

of the rule. This delay was subsequently extended until January 31,

1999 (62 FR 66248; December 17, 1997).

By Notice No. 98-18 (63 FR 67544; December 7, 1998) the FAA

proposed to further extend the effective date for certain portions of

the final rule until January 31, 2000.

Discussion of Comments

The FAA received four comments on the proposed extension. The Grand

Canyon Air Tour Council (GCATC) comments that the rulemaking effort

would require operators to undertake extensive aerial investigation and

operational and environmental familiarization, by January 31, 2000, on

routes that have not yet been announced. For a typical fixed wing

operator this would require 60 plus training flights. Operators would

also have to develop and disseminate new marketing information,

programs, and promotion with little advance notice. GCATC describes the

FAA's record of rulemaking in GCNP as a ``four year environment of

regulatory uncertainty and exclusion.'' GCATC recommends that FAA

reschedule the implementation of the final rule to January 31, 2001,

and that the FAA undertake a stakeholders' negotiated rulemaking for

60-90 days.

United States Air Tour Association (USATA) supports GCATC's

comments and argues that the FAA and NPS have expended far more

resources in its patchwork of rulemaking than it would on a 60-90 day

negotiated rulemaking effort. USATA notes that impending, yet

unannounced additional rulemaking efforts will force small business

entities with the choice of meeting impossible time frames for

readiness and compliance or simply not being able to prepare and face

serious economic harm to their businesses. USATA recommends that the

FAA hold in abeyance the implementation of the final rules on the air

tour routes, flight free zones, and flight corridors, and instead a

formal Aviation Rulemaking Advisory Committee process with a limit of

60-90 days.

Clark County Department of Aviation and the Las Vegas Convention

and Visitors Authority (Clark County) comment that a stay of the

effective date is necessary to ensure that the new flight-free zones

are implemented without serious risks to aviation safety and the many

direct and indirect jobs that impact GCNP air tour opportunities. This

commenter notes that without other proposed routes, the implementation

of the FFZ's would leave operators only with a choice between the

unscenic Blue Direct route and the Blue 2 route that will quickly

become oversaturated. Without a replacement route, Clark County argues

that the ability of air tour operators to market a product that brings

millions of dollars to the Las Vegas economy will be seriously reduced.

Clark County also questions the FAA's ability to validate or

predict noise levels in the Grand Canyon, saying that the noise

modeling may do a poor job of reflecting actual conditions. This places

an uncertainty around the actual need for additional

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control measures. The commenter sees, as essential, the need to possess

validated noise models prior to promulgating extensive new regulations;

otherwise, the regulations are at risk for being deemed arbitrary and

capricious by the courts. Clark County urges that the FAA initiate a

stakeholder-based negotiated rulemaking, and comments that the FAA's

excuses for not doing so are neither compelling nor with substance.

Eagle Jet Charter, Inc. (EJC) supports the 1-year delay in the

effective date of the final rule. EJC asks that the FAA incorporate its

comments filed January 23, 1998, that an amendment for operations

conducted under IFR above 15,000 feet MSL be proposed and adopted

concurrently with other modifications to the GCNP airspace.

FAA Response

As stated in the notice, the FAA continues to believe that

substantial progress has been made in restoring natural quiet to the

GCNP. This has been accomplished through the curfew and a limit on the

number of aircraft that can be operated in the SFRA. In addition, the

reporting requirement has given the FAA and NPS valuable data on the

actual number of operations that currently exist in GCNP.

Although commenters suggest that a 60-90 day negotiated rulemaking

effort would bring about a successful conclusion to the many issues and

competing interests, it has been the FAA's experience that

controversial negotiated rulemaking efforts may take years rather than

months to reach a conclusion. Both the FAA and NPS are unwilling to

incur this type of additional delay for GCNP. However, if all affected

parties agree to a proposal, then the proposal should be forwarded to

FAA and NPS. Although commenters are correct in pointing out that the

regulatory process for GCNP has been time consuming, the lessons

learned in the process are not inconsiderable, and should make future

work efficient.

It is reasonable for air tour operators to expect that the FAA must

propose an air tour route system for the west end of GCNP that safely

replaces the Blue 1 route, and that this must be done in a timely

manner for purposes of training and marketing. A route proposal and

corresponding rulemaking effort is underway.

In response to Clark County's comment on the need for validated

noise models, the Integrated Noise Model (INM), as refined by FAA to

reflect the terrain and expanded to reflect the size of the area

surrounding the Grand Canyon, produces reasonably accurate predictions

of the aircraft noise exposure in the GCNP. The INM, as refined and

applied, complies with all recommended practices for the prediction of

aircraft noise. The FAA verified the reasonableness of the predicted

noise levels using data obtained from actual measurements in the Grand

Canyon. See, December 1996 Final Environmental Assessment at p. 4-5 and

Appendix C. Actual measured data correlated closely with the results

predicted using the INM.

NPS, however, uses a newer, different computer model for analyzing

audibility of aircraft in park environments, called the National Park

Service Overflight Decision Support System. To address NPS concerns

about the differences between the two models, both agencies have agreed

to jointly conduct a noise model validation study. A group of experts

will be convened to develop a plan for evaluating and validating models

to be followed by field verification.

Immediate Effective Date

The FAA finds that good cause exists under 5 U.S.C. 553(d) for this

final rule to become final rule upon issuance. The FAA and NPS must

implement new air tour routes, flight-free zones, and flight corridors

at the same time in order to transition to a new operating environment

in GCNP. Currently, the effective date for the Grand Canyon final rule

(62 FR 69301; December 31, 1996) is extended until January 31, 1999. If

this final rule had not been issued, and made effective, by that date,

the new flight-free zones and flight corridors would go into effect,

resulting in considerable chaos, as some air tour routes would

disappear. This would not only be burdensome to air tour operators and

the traveling public, but it could also impose possible safety problems

in GCNP. To preclude these conflicts, this amendment is effective upon

issuance.

Economic Evaluation

In issuing the final rule for Special Flight Rules in the Vicinity

of the GCNP, the FAA prepared a cost benefit analysis of the rule. A

copy of the regulatory evaluation is located in docket Number 28537.

That economic evaluation was later revised based on new information

received on the number of aircraft being operated in the SFRA. The

reevaluation of the economic data, including alternatives considered,

was published in the Notice of Clarification (62 FR 58898). In the

notice, the FAA concluded that the rule is still cost beneficial. This

extension of the effective date for the final rule will not affect that

reevaluation, although the delay in the implementation of the FFZs will

be temporarily cost relieving for air tour operators.

Regulatory Flexibility Analysis

As required by the Regulatory Flexibility Act of 1980, as amended,

the FAA completed a final regulatory flexibility analysis of the final

rule. This analysis was also reevaluated and revised findings were

published in the Notice of Clarification referenced above, as a

Supplemental Regulatory Flexibility Analysis. This extended delay of

the compliance date will not affect that supplemental analysis.

Federalism Implications

This amendment will not have substantial direct 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. Therefore, in accordance with Executive

Order 12612, it is determined that this amendment would not have

sufficient Federalism implications to warrant the preparation of a

Federalism Assessment.

List of Subjects

14 CFR Part 91

Aircraft, Airmen, Air traffic control, Aviation safety, Noise

control.

14 CFR Part 93

Air traffic control, Airports, Navigation (Air).

14 CFR Part 121

Aircraft, Airmen, Aviation safety, Charter flights, Safety,

Transportation.

14 CFR Part 135

Air taxis, Aircraft, Airmen, Aviation safety.

The Amendment

Accordingly, the Federal Aviation Administration (FAA) amends 14

CFR parts 91, 93, 121, and 135 as follows:

PARTS 91, 121 AND 135--[AMENDED]

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.

2. 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.

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3. The authority citation for part 135 continues to read as

follows:

Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44709,

44711-44713, 44715-44717, 44722.

4. In parts 91, 121, and 135, Special Federal Aviation Regulation

No. 50-2, Section 9 is revised to read as follows:

SFAR 50-2--Special Flight Rules in the Vicinity of the Grand Canyon

National Park, AZ

* * * * *

Sec. 9. Termination date. Sections 1. Applicability, Section 4,

Flight-free zones, and Section 5. Minimum flight altitudes, expire

on 0901 UTC, January 31, 2000.

PART 93--SPECIAL AIR TRAFFIC RULES AND AIRPORT TRAFFIC PATTERNS

5. The authority citation for part 93 continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40106, 40109, 40113, 44502,

44514, 44701, 44719, 46301.

The effective date of May 1, 1997, for new Secs. 93.301, 93.305,

and 93.307 to be added to 14 CFR Chapter 1, is delayed until 0901 UTC,

January 31, 2000.

Issued in Washington, DC, on January 29, 1999.

Jane F. Garvey,

Administrator.

[FR Doc. 99-2493 Filed 1-29-99; 11:46 am]

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