[Federal Register Volume 66, Number 82 (Friday, April 27, 2001)]
[Proposed Rules]
[Pages 21264-21270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-10462]



[[Page 21263]]

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Part V





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 136



National Parks Air Tour Management; Proposed Rule

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

[[Page 21264]]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 136

[Docket No. FAA-2001-8690; Notice No. 01-01]
RIN 2120-AF46


National Parks Air Tour Management

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FAA is codifying title VIII of Public Law 106-181, 
National Parks Air Tour Management Act of 2000 (the Act), as a new part 
of its regulations, 14 CFR part 136. This action also proposes, in 
cooperation with the National Park Service, a 5,000-ft. above ground 
level (AGL) altitude that will complete the definition of ``commercial 
air tour operation'' as required by the Act. If an operator conducts 
operations below this proposed 5,000-ft. AGL altitude over a national 
park, and otherwise meets the statutory definition of a commercial air 
tour operation, that operator would be defined as a commercial air tour 
operator and would be required to meet the requirements of the Act and 
new part 136. This action provides easy access to portions of the Act 
by publishing these portions in the Code of Federal Regulations format 
as 14 CFR part 136. This NPRM provides the public the opportunity to 
comment on an altitude that will complete the definition of 
``commercial air tour operation.''

DATES: Send your comments on or before June 11, 2001.

ADDRESSES: Address your comments to the Docket Management System, U.S. 
Department of Transportation, Room PL401, 400 Seventh Street, SW., 
Washington, DC. You must identify Docket Number FAA-2001-8690 at the 
beginning of your comments.
    You may also submit comments through the Internet to http://dms.dot.gov. You may also review the entire public docket for this NPRM 
at that same site. You may also review the public docket in person in 
the Docket Office between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays. The Docket Office is on the plaza level.

FOR FURTHER INFORMATION CONTACT: Howard Nesbitt, Flight Standards 
Service, Federal Aviation Administration, 800 Independence Avenue, SW., 
Washington, DC 20591; Telephone: (202) 493-4981.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Anyone may participate in this rulemaking by providing such written 
data, views, or arguments. The FAA also invites comments relating to 
the environmental, energy, federalism, or economic impact. Include cost 
estimates, if possible, for substantive comments. Identify the 
regulatory docket and submit your comments to the DOT Rules Docket 
address specified above.
    The FAA will file all comments received, as well as report 
summarizing each substantive public contact with FAA personnel on this 
rulemaking. The docket is available for public inspection before and 
after the comment closing date.
    The FAA will consider all comments received on or before the 
closing date before we take action on this proposed rulemaking. We will 
consider comments received late as far as possible without incurring 
expense or delay.
    If you want the FAA to acknowledge receipt of your comments, 
include a pre-addressed, stamped postcard with those comments. On the 
card write ``Comments to Docket No. FAA-2001-8690.'' We will date stamp 
the card and mail it back to you.

Availability of This NPRM

    You can get an electronic copy of this NPRM from the docket with 
the following steps:
    (1) Go to the search function of the Department of Transportation's 
electronic Docket Management system (DMS) web page (http://dms.dot.gov/search).
    (2) On the search page, type in the last four digits of the Docket 
number shown at the beginning of this document. Click on ``search''.
    (3) On the next page, which contains the Docket summary information 
for the Docket you selected, click on the NPRM.
    You can also get an electronic copy using the Internet through the 
FAA's web page at http://www.faa.gov/avr/arm/nprm/nprm.htm or the 
Federal Register's web page at http://www.access.gpo.gov/su_docs/aces/acrs140.htm.
    You can also get a copy of this NPRM by mail by submitting a 
request to the Federal Aviation Administration, Office of Rulemaking, 
800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 
267-9680. Be sure to identify the Notice No. of this NPRM.

Background

    The National Parks Air tour management Act of 2000 (the Act) was 
enacted on April 5, 2000, as Public Law 106-181. The Act applies to 
``commercial air tour operations'' occurring over a unit of the 
national park system or tribal lands within or abutting a national 
park. A commercial air tour operation is defined in the Act as a 
``flight conducted for compensation or hire in a powered aircraft where 
a purpose of the flight is sightseeing over a national park, within \1/
2\ mile outside the boundary of any national park, or over tribal 
lands, during which the aircraft flies--(i) Below a minimum altitude, 
determined by the Administrator in cooperation with the Director, above 
ground level (except solely for purposes of takeoff or landing, or 
necessary for safe operation of aircraft as determined under the rules 
and regulations of the Federal Aviation Administration requiring the 
pilot-in-command to take action to ensure the safe operation of the 
aircraft or (ii) less than 1 mile laterally from any geographic feature 
within the park (unless more than \1/2\ mile outside the boundary).'' 
See Section 803 of the Act, to be codified at 49 U.S.C. Section 
40128(f)(4)(A). In making the determination as to whether a flight is a 
commercial air tour operation, the Act lists eight factors that the 
Administrator may consider. Id. at 40128(f)(4)(B). The term ``tribal 
land'' is defined in the Act as ``Indian Country (as that term is 
defined in section 1151 of title 18 of the U.S. Code) that is within or 
abutting a national park.'' The term ``National Park'' is defined in 
the Act as ``any unit of the national park system.'' \1\ All commercial 
air tour operations must be conducted in accordance with the following: 
(1) Title 49 of the U.S. Code (U.S.C.) Section 40128; (2) conditions 
and limitations prescribed for that operator by the FAA; and (3) any 
applicable air tour management plans.
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    \1\ There are currently 379 units of the National Park System in 
the United States. For a complete listing of all units of the 
national park system see www.nps.gov/legacy/nomenclature.html.
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    The Act states that ``Before commencing commercial air tour 
operations over a national park or tribal lands, a commercial air tour 
operator shall apply to the Administrator for authority to conduct the 
operations over the park or tribal lands.'' See Section 803 of the Act, 
to be codified at 49 U.S.C. 40128(a)(2)(A). This application then 
triggers the process for the FAA and NPS to cooperatively develop an 
air tour management plan (ATMP) for that park or tribal land. The 
objective of the

[[Page 21265]]

ATMP process is to ``develop acceptable and effective measures to 
mitigate or prevent the significant adverse impacts, if any, of 
commercial air tour operations upon the natural and cultural resources, 
visitor experiences, and tribal lands.'' See Section 803 of the Act, to 
be codified at 49 U.S.C. 40128(b)(1)(B).
    The Act also provides that ``upon application for operating 
authority, the Administrator shall grant interim operating authority 
under [49 U.S.C. Section 40128(c)] to a commercial air tour operator 
for commercial air tour operations over a national park or tribal lands 
for which the operator is an existing commercial air tour operator.'' 
See Section 803 of the Act to be codified at 49 U.S.C. Section 
40128(c)(1). Such interim operating authority is subject to a number of 
requirements and limitations, including a limit on the number of 
commercial air tour operations that may be conducted on an interim 
basis pending issuance of the ATMP for that park.
    In the Act, Congress found that the FAA has the authority ``to 
preserve, protect and enhance the environment by minimizing, 
mitigating, or preventing the adverse effects of aircraft overflights, 
on public and tribal lands.'' Section 802 of the Act. Congress also 
found that the National Park Service (NPS) has the responsibility of 
``conserving the scenery and natural and historic objects and wildlife 
in national parks and of providing for the enjoyment of the national 
parks in ways that leave the national parks unimpaired for future 
generations.'' Id. Further, the Act states that ``the protection of 
tribal lands from aircraft overflights is consistent with protecting 
the public health and welfare and is essential to the maintenance of 
the natural and cultural resources of Indian tribes.'' Id.

The Proposal

    In this rulemaking, the FAA solicits comments on the establishment 
of the altitude that completes the definition of a commercial air tour 
operation. The definition of a commercial air tour operation cannot 
become fully effective until the FAA, in cooperation with the Director 
of NPS, establishes through rulemaking a minimum altitude over national 
park units and tribal lands within or abutting a national park below 
which a commercial sightseeing flight would be defined as a commercial 
air tour operation. In making the determination that a flight is a 
commercial air tour operation, the Administrator may consider eight 
factors, which are enumerated in the Act.
    The FAA, in cooperation with the NPS, proposes that the altitude be 
5,000 feet above ground level (AGL). Therefore, under this proposed 
rule, if a flight is conducted for compensation or hire in a powered 
aircraft for the purpose of sightseeing over a national park unit (or 
within \1/2\ mile of the park boundary) or tribal land within or 
abutting a national park and is less than one mile laterally from any 
geographic feature of the Park (unless more than \1/2\ mile outside the 
park boundary) or flies below 5,000 feet AGL for the purpose of 
sightseeing at any point during its flight over a park or tribal land, 
then that flight and that operator would be subject to the provisions 
of the Act and the new Part 136.
    A 5,000-ft. AGL altitude would address the great majority of 
current and potential commercial air tour operations over national park 
units. In addition, the National Parks Overflights Working Group 
(NPOWG), which met from May 1997 through December 1997, considered a 
number of possible minimum altitudes and recommended that the minimum 
altitude be set at 5,000 feet AGL. The Act acknowledged their efforts 
in saying; ``this title reflects the recommendations made by that 
Group.'' See Section 802 of the Act.
    The FAA reminds readers that the 5,000-ft. altitude, if adopted, 
would complete the definition of commercial air tour operation. This 
would trigger the start of the ATMP process and notify operators 
conducting commercial air tour operations, as defined in the Act, that 
such operations are subject to the provisions of the Act. It does not 
mean that all air tour operations would be required to be conducted 
above 5,000 ft. AGL or would be limited to that minimum altitude. 
Rather the air tour management plan for any given national park unit 
would define the altitudes at which operations may be conducted. The 
5,000-ft. AGL altitude also would not apply to takeoffs and landings or 
for other operations necessary for safety of flight.
    The FAA solicits specific, tangible examples of the impact of the 
proposed 5,000-ft. AGL altitude. The FAA and the NPS also solicit 
specific information on whether there are any commercial air tours 
currently conducted at or above 5,000 feet AGL.

Codification

    Although the only issue for comment for this notice is the proposed 
5,000-ft. altitude, the FAA also sets forth in this rulemaking the 
codification of the Act so that readers may have easy access to the 
Act's requirements. The FAA cannot substantively change the Act 
although the codification is modified in places so that its format 
conforms with other regulations of Title 14, Chapter 1.

Section by Section

Section 136.1  Applicability

    This section codifies Sections 803 and 809 of the Act into FAA's 
regulations. These provisions have parallel codifications in the United 
States Code, which are referenced herein. It clarifies that this new 
part, Part 136, applies to any person who conducts a commercial air 
tour operation over a unit of the National Park System, over tribal 
lands that are within or abutting a unit of the National Park System, 
or any area within \1/2\ mile outside a unit of the National Park 
System. It specifically excludes the Grand Canyon National Park, tribal 
lands within or abutting Grand Canyon National Park, land or waters 
located in the state of Alaska, and air transportation routes over the 
Lake Mead area.
    Readers should note that there are certain portions of the Act that 
are not incorporated in this rulemaking. They include judicial review 
(Section 803(a)), competitive bidding (Section 803(a)), quiet 
technology aircraft issues (Section 804), and the advisory group as 
established by Section 805. The latter three issues will be addressed 
in separate rulemaking actions. The FAA considers this altitude 
proposal a first priority to establish a final rule for the management 
of such commercial air tour operations.

Section 136.3  Definitions

    This section of the Act (to be codified in Title 18 of the U.S. 
Code as 49 U.S.C. Section 40128(f)) provides the reader with the key 
definition applicable to this rulemaking. Those include commercial air 
tour operator, existing commercial air tour operator, new entrant 
commercial air tour operator, commercial air tour operation, National 
Park, Tribal Lands, Administrator, and Director. Again, readers are 
reminded that the focus of this rulemaking is on establishing the 
altitude, 5,000 feet AGL, which would complete the Act's definition of 
a commercial air tour operation. With the exception of the definition 
of ``Superintendent,'' which is administrative, the other definitions 
are taken directly from the Act and cannot be changed. The definition 
of ``Superintendent'' is added to the proposal because the term is used 
in the Act for the exception for Part 91 commercial air tour operations 
as distinguished from the use of ``Director'' in other sections.

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Section 136.5  Prohibition of Commercial Air Tour Operations Over the 
Rocky Mountain National Park

    Section 806 of the Act prohibits all commercial air tour operations 
in the airspace over the Rocky Mountain National Park regardless of 
altitude. The FAA notes that this prohibition already exists as SFAR 78 
of 14 CFR Part 91. When the final rule is issued in this rulemaking, 
SFAR 78 will be rescinded and the prohibition of commercial air tour 
operations over Rocky Mountain National Park will be codified as 
Section 136.5.

Section 136.7  Overflights of National Parks and Tribal Lands

    This section codifies into FAA regulation Section 803 of the Act 
(to be codified in the U.S. Code as 49 U.S.C. 40128(b)) concerning 
ATMPs and refers to the authority of the Administrator and the air tour 
management plan. It states that before beginning any commercial air 
tour operation over a national park or tribal land, a person must apply 
to the Administrator for operating authority. The FAA will publish an 
advisory circular detailing how operators are to comply with this 
requirement. The FAA will notify the public when the advisory circular 
is available through a notice published in the Federal Register.
    This section also describes how the Administrator, in cooperation 
with the Director, will determine the number of commercial air tour 
operations to authorize for each park. In making this determination, 
the Administrator, in cooperation with the Director, will consider the 
provisions of the air tour management plan, the number of existing 
commercial air tour operators, the current level of service and 
equipment provided by operators, and the financial viability of each 
operator.
    Congress also specified in the Act that the FAA is directed to make 
every effort to act on any ATMP application and issue a decision on the 
application no later than 24 months after it is received or amended. 
See Section 803 of the Act, to be codified as 49 U.S.C. 40128(a)(2)(E). 
The Act also instructs the Administrator to give priority to 
applications submitted by new entrants.
    An exemption to this rule is set forth in the Act, to be codified 
in 49 U.S.C 40128(a)(3) which permits a commercial air tour operator 
conducting only a limited number of commercial air tour operations to 
be excepted from certain requirements of the Act provided such activity 
is permitted by Title 14 Code of Federal Regulations Part 119. Section 
119.1(e)(2) specifically excludes from the requirement to obtain 
certification for conducting operations under Part 121 or 135 ``nonstop 
sightseeing flights conducted with aircraft having a passenger seat 
configuration of 30 or fewer, * * * that begin and end at the same 
airport, and are conducted within a 25 statute mile radius of that 
airport.'' To qualify for the exception, such operators are required to 
obtain a letter of agreement from the Administrator and the national 
park superintendent for the particular park describing the conditions 
under which that operator will conduct its commercial air tour 
operations. This exception is limited to not more then 5 flights in any 
30-day period over a particular park. Readers should note that this 
does not mean 5 flights per operator, but rather a total of 5 flights 
for any park. For example, if there are two operators in a particular 
park who wish to use this exception, the 5 flights would have to be 
divided between them.
    Existing commercial air tour operators who did not already have 
part 119 operating authority were required to apply, not later than 90 
days after enactment of the Act, for authority under Part 119 to 
conduct operations under either part 121, or 135. See Section 803 of 
the Act, to be codified at 49 U.S.C. Section 40128. Readers are 
referred to a notice published in the Federal Register on May 26, 2000, 
reminding commercial air tour operators of this requirement. Part 119 
also sets forth the process by which a person applies for a part 119 
certificate and the types of information that are required by the 
Administrator for completing the application process. Once the 
application process is complete, the person would then conduct 
operations under 14 CFR part 121 or 14 CFR part 135, as appropriate. 
The FAA reminds operators that if they already hold an operating 
certificate under 14 CFR part 119, a second application is not 
required.

Section 136.9  Air Tour Management Plans

    This section codifies 49 U.S.C. Section 40128(a) into the FAA's 
regulations and includes the general requirements for the establishment 
of an air tour management plan (ATMP), the contents of such a plan, 
procedures to be followed by the Administrator and the Director, and 
how amendments will be processed. Establishing an ATMP involves a 
public process whereby public meetings are held, proposed plans are 
published in the Federal Register, and the participation of any Indian 
tribe affected by the overflights of commercial air tour operations is 
solicited. An ATMP may include a broad array of alternatives: some 
parks may prohibit overflights, other parks may restrict overflights 
during certain times, and the Administrator and Director may consider 
incentives such as quiet technology aircraft. The objective of the ATMP 
is to develop ``acceptable and effective measures to mitigate or 
prevent the significant adverse impacts, if any, of commercial air tour 
operations upon the natural and cultural resources, visitor 
experiences, and tribal lands.'' (See Section 803 of the Act, to be 
codified at 49 U.S.C. 40128(b)(1)(B)). To mitigate or prevent such 
impacts the FAA, in cooperation with the NPS, may consider guidelines 
on such things as type of aircraft, routes, altitudes, time of day, and 
seasonal times, etc. Once an ATMP is finalized, any air tour operator 
wishing to conduct commercial air tour operations within a particular 
park will be required to comply with the ATMP for that park.

Section 136.11  Interim Operating Authority (IOA)

    Because the certification process cannot be accomplished 
immediately, the Act gives existing operators the opportunity to 
continue conducting existing commercial air tour operations over 
national parks. Additionally, in some instances, new entrant operators 
may be granted authority to begin operators. These procedures are 
spelled out in the Act (to be codified as 49 U.S.C. 40128(c)) and will 
be codified in regulation as section 136.11. Section 136.11 states that 
upon application for operating authority, the Administrator will grant 
IOA for existing operators. The number of flights annually authorized 
would be the greater of the number of commercial air tour operations 
conducted over the 12 months immediately prior to enactment of the Act, 
or an average number of commercial air tour operations per 12-month 
period conducted within a 36-month period prior to enactment of the 
Act. This number may not be increased, unless agreed to by the 
Administrator and the Director. The IOA, including the number of 
operations, will be published in the Federal Register for comment, and 
will be used as a basis for the development of the ATMP. The IOA must 
promote protection of national park resources, visitor experiences and 
tribal lands, safe commercial air tour operations, and the adoption of 
quiet technology, as appropriate.
    Section 136.11 also describes the IOA that may be given to new 
entrant operators. In general, such operating authority may be granted 
if the Administrator finds it necessary to

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ensure competition and if the ATMP has not been developed within 24 
months of the enactment of the Act. IOA for new entrant operators will 
not be granted if the Administrator determines that granting the IOA 
would create a safety problem or the Director determines that granting 
the IOA would create a noise problem at the part or on tribal lands.

Environmental Review

    The Act provides that the objective of an ATMP is to ``mitigate or 
prevent the significant adverse impacts, if any, of commercial air tour 
operations upon the natural and cultural resources, visitor 
experiences, and tribal lands (to be codified at 49 U.S.C. 
40128(b)(a)(B)).'' Accordingly, the purpose of this proposed rule is to 
allow achievement of this statutory objective, thereby ensuring that 
any significant adverse environmental impacts from commercial air tour 
operations are avoided.
    In accordance with FAA Order 1050.ID, the FAA has determined that 
this proposed rule is categorically excluded from environmental review 
under section 102(2)(C) of the National Environmental Policy Act 
(NEPA). In particular, this determination is based on FAA Order 
1050.1D, Appendix 4, paragraph 4.i, which applies to ``[r]egulatory 
documents which cover administrative or procedural requirements,'' and 
paragraph 4.j, which covers ``[r]egulations, standards, and exemptions 
(excluding those which if implemented may cause a significant impact on 
the human environment).''
    NEPA compliance will be performed as part of the development of 
each ATMP prepared in accordance with this rule.

Economic Summary

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 directs that each Federal agency 
shall propose or adopt a regulation only upon a reasoned determination 
that the benefits of the intended regulation justify its costs. Second, 
the Regulatory Flexibility Act of 1980 requires agencies to analyze the 
economic effect of regulatory changes on small entities. Third, the 
Trade Agreement Act of 1979 directs agencies to assess the effect of 
regulatory changes on international trade. Fourth, Public Law 104-4 
requires federal agencies to assess the impact any of federal mandates 
on state, local, tribal governments, and the private sector. The FAA 
has determined that this rule is a ``significant regulatory action'' 
under section 3(f) of Executive Order 12866 and Department of 
Transportation policies and procedures (44 FR 11034, February 26, 1979) 
because of significant Congressional and public interest in this 
rulemaking. This proposed rule would not have a significant impact on a 
substantial number of small entities. In addition, this rule would not 
constitute a barrier to international trade. Finally, the FAA has 
determined that the proposal would not impose a federal mandate on 
state, local, or tribal governments, or the private sector of $100 
million per year.

Benefit--Cost Analysis

    This proposed rule would codify the applicable provisions of the 
Act concerning commercial air tour operations over national parks into 
a new part 136. The Act and the proposed rule are also applicable to 
the commercial air tour operations over the area within \1/2\ mile 
outside the boundary of any national park or over tribal lands within 
or abutting national parks, or less than 1 mile laterally from any 
geographic feature within the park. The Act and the proposed rule 
specifically exclude the Grand Canyon National Park and tribal lands 
within or abutting it, air transportation routes over the Lake Mead 
area, and land or waters located in Alaska. Congress directed the FAA, 
in cooperation with the NPS, to determine the minimum altitude under 
which commercial air tour operations would be subject to the provisions 
of the statute. An altitude of less than 5,000 feet above ground level 
is proposed as the altitude that completes the definition of a 
commercial tour operation to be subject to part 136. A 5,000-ft. AGL 
altitude would address the great majority of current and potential 
commercial air tour operations over national park units. In addition, 
the National Parks Overflights Working Group (NPOWG), which met from 
May 1997 through December 1997, considered a number of possible minimum 
altitudes and recommended that the minimum altitude be set at 5,000 
feet AGL.
    These new statutory provisions will enable the FAA to develop 
acceptable and effective measures to mitigate or prevent the 
significant adverse effects, if any, of commercial air tour operations 
upon the natural and cultural resources, visitor experiences, and 
tribal lands.
    The costs and benefits of this rule cannot be evaluated effectively 
without taking account of specific noise mitigation measures that would 
be incorporated in an ATMP for a specific park. The NPS and FAA thus 
intend to prepare such evaluations when specific plans specified in 
Section 136.9 (Air Tour Management Plans) are proposed.

Initial Regulatory Flexibility Determination and Assessment

    The Regulatory Flexibility Act (RFA) of 1980 establishes ``as a 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the rule and of applicable statutes, 
to fit regulatory and informational requirements to the scale of the 
business, organization, and government jurisdictions subject to 
regulation.'' To achieve that principle, the RFA requires agencies to 
solicit and consider flexible regulatory proposals and to explain the 
rational for their actions. The RFA covers a wide range of small 
entities, including small businesses, not-for-profit organizations and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the determination is that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the RFA.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the RFA provides that the 
head of the agency may so certify and a regulatory flexibility analysis 
is not required. The certification must include a statement providing 
the factual basis for this determination, and the reasoning should be 
clear.
    The FAA has determined that this proposed rule imposes no costs on 
small commercial air tour operators because the actual effect on small 
entities will be determined by individual ATMPs. This proposed rule is 
limited to only what has been authorized by this Act. Accordingly, 
pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the 
Federal Aviation Administration certifies that this rule will not have 
a significant impact on a substantial number of small entities. The FAA 
solicits comments on this determination.

International Trade Impact Assessment

    The Trade Agreement Act (TAA) of 1979 prohibits Federal agencies 
from engaging in any standards or related activities that create 
unnecessary obstacles to the foreign commerce of the United States. 
Legitimate domestic objectives, such as safety, are not considered 
unnecessary obstacles. The TAA also requires consideration of 
international standards and where appropriate, that they be the basis 
for U.S. standards. In addition, consistent

[[Page 21268]]

with the Administration's belief in the general superiority and 
desirability of free trade, it is the policy of the Administration to 
remove or diminish to the extent feasible, barriers to international 
trade, including both barriers affecting the export of American goods 
and services to foreign countries and barriers affecting the import of 
foreign goods and services into the United States.
    In accordance with the above Act and policy, the FAA has assessed 
the potential effect of this proposed rule and has determined that it 
will have only a domestic impact and therefore no effect on any trade-
sensitive activity.

Unfunded Mandates Reform Act Assessment

    The Unfunded Mandates Reform Act of 1995 (UMRA), enacted as Public 
Law 104-4 on March 22, 1995, is intended, among other things, to curb 
the practice of imposing unfunded Federal mandates on State, local, and 
tribal governments.
    Title II of the UMRA requires each Federal agency to prepare a 
written statement assessing the effects of any Federal mandate in a 
proposed or final agency rule that may result in a $100 million or more 
expenditure (adjusted annually for inflation) in any one year by State, 
local, and tribal governments, in the aggregate, or by the private 
sector; such a mandate is deemed to be a ``significant regulatory 
action.''
    This proposed rule does not contain such a mandate. Therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply.

Paperwork Reduction Act

    The FAA finds that although this is a process rulemaking, there 
will be a paperwork and recordkeeping burden on both the agencies and 
the air tour operators. This NPRM, however, only describes a process. 
Actual paperwork requirements will be determined according to 
individual ATMPs, developed through a public process which will involve 
public meetings and publication in the Federal Register for notice and 
comment. Public Law 106-181 states that the Administrator shall ``make 
every effort'' to act on an application for an ATMP for a park within 
24 months. Within this 24 months, the agencies must publish current air 
tour operations for a park for public comment, hold public meetings, 
and prepare the plan. Although the FAA does not anticipate that an ATMP 
will be developed for each of the 379 parks, even if only 50 parks are 
initially affected, the burden will considerable. Since the FAA does 
not know how many applications will be received or in what timeframe, 
the agency specifically solicits comments from air tour operators who 
anticipate filing applications. In addition, the notifications received 
by the FAA in response to the notice to part 91 operators who will 
eventually receive a certificate under part 119 with authority to 
operate under part 121 or part 135 should provide some of the number of 
commercial air tour operators.

List of Subjects in 14 CFR Part 136

    Aircraft, Air transportation, Aviation safety, National parks, 
Recreation and recreation areas.

The Proposed Amendment

    For the reasons set forth above, the Federal Aviation 
Administration proposes to add a new part 136 to chapter I of title 14 
of the Code of Federal Regulations as follows:

PART 136--NATIONAL PARKS AIR TOUR MANAGEMENT

Sec.
136.1   Applicability.
136.3   Definitions.
136.5   Prohibition of commercial air tour operations over the Rocky 
Mountain National Park.
136.7   Overflights of national parks and tribal lands.
136.9   Air tour management plans (ATMP).
136.11   Interim operating authority.

    Authority:  49 U.S.C. 106(g), 40113, 40119, 44101, 44701, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 46105.


Sec. 136.1  Applicability.

    (a) This part restates and paraphrases several sections of the 
National Parks Air Tour Management Act of 2000, including section 803 
(to be codified at 49 U.S.C. 40128) and Sections 806 and 809. This part 
clarifies the requirements for the development of an air tour 
management plan for each park in the national park system.
    (b) Except as provided in paragraph (c) of this section, this part 
applies to each commercial air tour operator who conducts a commercial 
air tour operation over:
    (1) A unit of the national park system;
    (2) Tribal lands as defined in this part; or
    (3) Any area within one-half mile outside the boundary of any unit 
of the national park system.
    (c) This part does not apply to a commercial air tour operator 
conducting a commercial air tour operation:
    (1) Over the Grand Canyon National Park;
    (2) Over that portion of tribal lands within or abutting the Grand 
Canyon National Park;
    (3) Over any land or waters located in the State of Alaska; or
    (4) While flying over or near the Lake Mead Recreation Area, solely 
as a transportation route, to conduct a commercial air rout over the 
Grand Canyon National Park.


Sec. 136.3  Definitions.

    For purposes of this part:
    (a) Commercial air tour operator means any person who conducts a 
commercial air tour operation.
    (b) Existing commercial air tour operator means a commercial air 
tour operator who was actively engaged in the business of providing 
commercial air tour operations over a national park at any time during 
the 12-month period ending on April 5, 2000.
    (c) New entrant commercial air tour operator means a commercial air 
tour operator who:
    (1) Applies for operating authority as a commercial air tour 
operator for a national park or tribal lands; and
    (2) Has not engaged in the business of providing commercial air 
tour operations over the national park or tribal lands for the 12-month 
period preceding the application.
    (d) Commercial air tour operation:
    (1) Means any flight, conducted for compensation or hire in a 
powered aircraft where a purpose of the flight is sightseeing over a 
national park, within \1/2\ mile outside the boundary of any national 
park, or over tribal lands, during which the aircraft flies:
    (i) Below 5,000 feet above ground level (except for the purpose of 
takeoff or landing, or as necessary for the safe operation of an 
aircraft as determined under the rules and regulations of the Federal 
Aviation Administration requiring the pilot-in-command to take action 
to ensure the safe operation of the aircraft);
    (ii) Less than 1 mile laterally from any geographic feature within 
the park (unless more than \1/2\ mile outside the boundary); or
    (iii) Except as provided in paragraph (c) of this section.
    (2) The Administrator may consider the following factors in 
determining whether a flight is a commercial air tour operation for 
purposes of this part:
    (i) Whether there was a holding out to the pubic of willingness to 
conduct a sightseeing flight for compensation or hire;
    (ii) Whether a narrative that referred to areas or pints of 
interest on the surface below the route of the flight was provided by 
the person offering the flight;

[[Page 21269]]

    (iii) The area of operation;
    (iv) The frequency of flights conducted by the person offering the 
flight;
    (v) The route of flight;
    (vi) The inclusion of sightseeing flights as part of any travel 
arrangement package offered by the person offering the flight;
    (vii) Whether the flight would have been canceled based on poor 
visibility of the surface below the route of flight; and
    (viii) Any other factors that the Administrator and director 
consider appropriate.
    (3) For purposes of Sec. 136.5 of this part, means any flight 
conducted for compensation or hire in a powered aircraft where a 
purpose of the flight is sightseeing over a national park.
    (e) National park means any unit of the national park system. (See 
title 16 of the U.S. Code, section 1, et. seq.)
    (f) Tribal lands means that portion of Indian country (as that term 
is defined in section 1151 of title 18 of the U.S. Code) that is within 
or abutting a national park.
    (g) Administrator means the Administrator of the Federal Aviation 
Administration.
    (h) Director means the Director of the National Park Service.
    (i) Superintendent means the duly appointed representative of the 
National Park Service for a particular unit of the national park 
system.


Sec. 136.5  Prohibition of commercial air tour operations over the 
Rocky Mountain National Park.

    All commercial air tour operations in the airspace over the Rocky 
Mountain National Park are prohibited regardless of altitude.


Sec. 136.7  Overflights of national parks and tribal lands.

    (a) General. A commercial air tour operator may not conduct 
commercial air tour operations over a national park or tribal land 
except:
    (1) In accordance with this section;
    (2) In accordance with conditions and limitations prescribed for 
that operator by the Administrator; and
    (3) In accordance with any applicable air tour management plan for 
the park or tribal lands.
    (b) Application for operating authority. Before commencing 
commercial air tour operations over a national park or tribal lands, a 
commercial air tour operator shall apply to the Administrator for 
authority to conduct the operations over the park or tribal lands. 
Advisory Circular 119-xxx contains information on how to submit such an 
application.
    (c) Number of operations authorized. In determining the number of 
authorizations to issue to provide commercial air tour operations over 
a national park, the Administrator, in cooperation with the Director, 
shall take into consideration the provisions of the air tour management 
plan, the number of existing commercial air tour operators and current 
level of service and equipment provided by any such operators, and the 
financial viability of each commercial air tour operation.
    (d) Cooperation with National Park Service. Before granting an 
application under this part, the Administrator, in cooperation with the 
Director, shall develop an air tour management plan in accordance with 
Sec. 136.9 and implement such a plan.
    (e) Time limit on response to applications. Every effort will be 
made to act on any application under this part and issue a decision on 
the application not later than 24 months after it is received or 
amended.
    (f) Priority. In acting on applications under this paragraph to 
provide commercial air tour operations over a national park, the 
Administrator shall give priority to an application under this 
paragraph in any case where a new entrant commercial air tour operator 
is seeking operating authority with respect to that national park.
    (g) Exception. Notwithstanding Sec. 136.7, commercial air tour 
operators may conduct commercial air tour operations over a national 
park under part 91 of this chapter if:
    (1) Such activity is permitted under part 119 of this chapter;
    (2) The operator secures a letter of agreement from the 
Administrator and the Superintendent for that park describing the 
conditions under which the operations will be conducted; and
    (3) The number of operations under this exception is limited to not 
more than a total of 5 flights by all operators in any 30-day period 
over a particular park.
    (h) Special rule for safety equipment. Notwithstanding Sec. 136.11, 
an existing commercial air tour operator shall apply, not later than 90 
days after April 5, 2000, for operating authority under part 119 of 
this chapter, for certification under part 121 or part 135 of this 
chapter. A new entrant commercial air tour operator shall apply for 
such authority before conducting commercial air tour operations over a 
national park or tribal lands that are within or about a national park. 
The Administrator shall make every effort to act on such application 
for a new entrant and issue a decision on the application not later 
than 24 months after it is received or amended.


Sec. 136.9  Air tour management plans (ATMP).

    (a) Establishment. In general, the Administrator, in cooperation 
with the Director, shall establish an air tour management plan for any 
national park, or tribal land for which such a plan is not in effect 
whenever a person applies for authority to conduct a commercial air 
tour operation over the park. The air tour management plan shall be 
developed by means of a public process in accordance with paragraph (d) 
of this section. The objective of any tour management plan is to 
develop acceptable and effective measures to mitigate or prevent the 
significant adverse impacts, if any, of commercial air tour operations 
upon the natural and cultural resources, visitor experiences, and 
tribal lands.
    (b) Environmental determination. In establishing an air tour 
management plan under this subsection, the Administrator and the 
Director shall each sign the environmental decision document required 
by section 102 of the National Environmental Policy Act of 1969 (42 
U.S.C. 4332) which may include a finding of no significant impact, an 
environmental assessment, or an environmental impact statement and the 
record of decision for the air tour management plan.
    (c) Contents. An air tour management plan for a park:
    (1) May prohibit commercial air tour operations in whole or in 
part;
    (2) May establish conditions for the conduct of commercial air tour 
operations, including, but not limited to, commercial air tour routes, 
maximum number of flights per unit of time, maximum and minimum 
altitudes, time of day restrictions, restrictions for particular 
events, intrusions on privacy on tribal lands, and mitigation of noise, 
visual, or other impacts.
    (3) Shall apply to all commercial air tour operations within \1/2\ 
mile outside the boundary of a national park;
    (4) Shall include incentives (such as preferred commercial air tour 
routes and altitudes, and relief from caps and curfews) for the 
adoption of quiet technology aircraft by commercial air tour operators 
conducting commercial air tour operations at the park;
    (5) Shall provide for the initial allocation of opportunities to 
conduct commercial air tour operations if the plan includes a 
limitation on the number of commercial air tour operations for any time 
period; and
    (6) Shall justify and document the need for measures taken pursuant 
to

[[Page 21270]]

paragraphs (c)(1) through (c)(5) of this section and include such 
justification in the record of decision.
    (d) Procedure. In establishing an ATMP for a national park or 
tribal lands, the Administrator and Director shall:
    (1) Hold at least one public meeting with interested parties to 
develop the air tour management plan;
    (2) Publish the proposed plan in the Federal Register for notice 
and comment and make copies of the proposed plan available to the 
public;
    (3) Comply with the regulations set forth in 40 CFR 1501.3 and 
Sec. 1501.5 through 1501.8 (for the purposes of complying with the 
regulations, the Federal Aviation Administration is the lead agency and 
the National Park Service is a cooperating agency); and
    (4) Solicit the participation of any Indian tribe whose tribal 
lands are, or may be, overflown by aircraft involved in a commercial 
air tour operation over the park or tribal lands to which the plan 
applies, as a cooperating agency under the regulations referred to in 
paragraph (d)(3) of this section.
    (e) Amendments. The Administrator, in cooperation with the 
Director, may make amendments to an air tour management plan. Any such 
amendments will be published in the Federal Register for notice and 
comment. A request for amendment of an ATMP will be made in accordance 
with Sec. 11.25 of this chapter as a petition for rulemaking.


Sec. 136.11  Interim operating authority.

    (a) General. Upon application for operating authority, the 
Administrator shall grant interim operating authority under this 
section to a commercial air tour operator for commercial air tour 
operations over a national park or tribal land for which the operator 
is an existing commercial air tour operator.
    (b) Requirements and limitations. Interim operating authority 
granted under this section:
    (1) Shall provide annual authorization only for the greater of:
    (i) The number of flights used by the operator to provide the 
commercial air tour operations within the 12-month period prior to 
April 5, 2000; or
    (ii) The average number of flights per 12-month period used by the 
operator to provide such operations within the 36-month period prior to 
April 5, 2000, and for seasonal operations, the number of flights so 
used during the season or seasons covered by that 12-month period.
    (2) May not provide for an increase in the number of commercial air 
tour operations conducted during any time period by the commercial air 
tour operator above the number the air tour operator was originally 
granted unless such an increase is agreed to by the Administrator and 
the Director;
    (3) Shall be published in the Federal Register to provide notice 
and opportunity for comment;
    (4) May be revoked by the Administrator for cause;
    (5) Shall terminate 180 days after the date on which an air tour 
management plan is established for the park and tribal lands;
    (6) Shall promote protection of national park resources, visitor 
experiences, and tribal lands;
    (7) Shall promote safe commercial air tour operations;
    (8) Shall promote the adoption of quiet technology, as appropriate, 
and
    (9) Shall allow for modifications of the interim operating 
authority based on experience if the modification improves protection 
of national park resources and values and of tribal lands.
    (c) New entrant operators. The Administrator, in cooperation with 
the Director, may grant interim operating authority under this 
paragraph to an air tour operator for a national park or tribal lands 
for which that operator is a new entrant air tour operator if the 
Administrator determines the authority is necessary to ensure 
competition in the provision of commercial air tour operations over the 
park or tribal lands.
    (d) Limitation. The Administrator may not grant interim operating 
authority under paragraph (c) of this section if the Administrator 
determines that it would create a safety problem at the park or on the 
tribal lands, or if the Director determines that it would create a 
noise problem at the park or on the tribal lands.
    (e) ATMP limitation. The Administrator may grant interim operating 
authority under paragraph (b) of this section only if the ATMP for the 
park or tribal lands to which the application relates has not been 
developed within 24 months after April 5, 2000.

    Issued in Washington, DC, on April 20, 2001.
L. Nicholas Lacey,
Director, Flight Standards Service.
[FR Doc. 01-10462 Filed 4-26-01; 8:45 am]
BILLING CODE 4910-13-M