[Federal Register Volume 67, Number 207 (Friday, October 25, 2002)]
[Rules and Regulations]
[Pages 65662-65669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27033]



[[Page 65661]]

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Part III





Department of Transportation





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Federal Aviation Administration



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14 CFR Parts 91 and 136



National Parks Air Tour Management; Final Rule

  Federal Register / Vol. 67, No. 207 / Friday, October 25, 2002 / 
Rules and Regulations  

[[Page 65662]]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91 and 136

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


National Parks Air Tour Management

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: The FAA is codifying the provisions of title VIII of the 
National Parks Air Tour Management Act of 2000 (the Act), as a new part 
of its regulations. This action finalizes, in cooperation with the 
National Park Service, a 5,000-ft. above ground level (AGL) altitude 
that completes the definition of ``commercial air tour operation'' as 
required by the Act. If an operator conducts an operation below 5,000 
ft. AGL over a national park, and that operation otherwise meets the 
statutory definition of a commercial air tour operation, that operator 
is defined as a commercial air tour operator and is required to meet 
the requirements of the Act and the new regulations. This final rule 
also codifies the provisions of Special Federal Aviation Regulation 78, 
the prohibition against commercial air tour flights over the Rocky 
Mountain National Park, as part of the new regulations. This action 
completes the codification of the new regulations and presents it for 
public information.

DATES: This final rule is effective January 23, 2003. All operators 
seeking to conduct commercial air tour operations, as defined by the 
Act, must file an application for operating authority and have interim 
operating authority before January 23, 2003 in order to avoid a break 
in operations.

FOR FURTHER INFORMATION CONTACT: Kent Stephens, Air Transportation 
Division, Flight Standards Service, Federal Aviation Administration, 
800 Independence Avenue, SW., Washington, DC 20591; Telephone: (202) 
267-7493.

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Documents

    You can get an electronic copy using the Internet by taking 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 item you wish to view.
    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 
Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/acrs140.htm.
    You can also get a copy of this final rule 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.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. Therefore, any small entity that has a question regarding 
this document may contact its local FAA official, or the person listed 
under FOR FURTHER INFORMATION CONTACT. You can find out more about 
SBREFA on the Internet at our site, http://www.gov/avr/arm/sbrefa.htm. 
For more information on SBREFA, e-mail us at [email protected].

Background

The National Parks Air Tour Management Act of 2000

    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 ``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 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 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 lands'' is defined 
in the Act as ``Indian Country (as that term is defined in section 1151 
of title 18) 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 (ATMPs).
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    \1\ There are currently 384 units of the National Park System in 
the United States. For a complete listing of all units of the 
National Park System see http://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 49 U.S.C. Section 
40128(a)(2)(A). This application then triggers the process for the FAA, 
in cooperation with the National Park Service (NPS), to develop an ATMP 
for that park or tribal lands. The objective of an 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 49 U.S.C. Section 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 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 Section 802 of the Act, Congress found that the FAA has the 
authority ``to preserve, protect and enhance the environment by 
minimizing, mitigating,

[[Page 65663]]

or preventing the adverse effects of aircraft overflights, on public 
and tribal lands.'' Congress also found that the 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 FAA's and NPS' Proposed Altitude and Comments Received on That 
Altitude

    To meet the requirements of the Act, the FAA, in cooperation with 
the NPS, proposed an altitude of 5,000 ft. AGL that would complete the 
definition of a commercial air tour operation. (See 66 FR 21264; April 
27, 2001.) The comment period on the proposal closed on June 11, 2001.
    Approximately 2,400 comments were received on the proposal. The 
vast majority of these, however, are form letters making 4 major 
points: (1) They support the 5,000-ft. triggering altitude; (2) they 
believe that the FAA should recognize the NPS' expertise on natural 
quiet issues; (3) they urge immediate enforcement of the ``no new 
entrant'' clause of the Act and ask the FAA to ban those part 91 
operators who did not register within 90 days of enactment of the Act; 
and (4) they ask the FAA to define the process by which ATMPs will be 
developed. Some of these points are also supported by environmental 
associations. National Parks Conservation Association (NPCA) encourages 
the FAA to adopt the proposed 5,000-ft. AGL altitude expeditiously so 
that the ATMP process may begin. NPCA is concerned that a lower 
altitude would allow some fixed-wing aircraft to conduct air tours 
without being subject to any rules or restrictions. NPCA also urges the 
FAA to clarify the ATMP process through guidance and to clarify the 
roles of the FAA and NPS in the process. Winter Wildlands Alliance 
supports the 5,000-ft. altitude because it will not interfere with 
general aviation traffic since operators must meet the rest of the 
definition of a commercial air tour operation to be defined as a 
commercial air tour operation under the Act. The Alliance also asks the 
FAA to begin immediate enforcement of the ``no new entrant'' clause. 
Jackson Hole Conservation Alliance comments that any altitude lower 
than 5,000 ft. would be unacceptable because it would invite 
uncontrolled damage to wildlife.
    FAA Response: The FAA recognizes the support of the 5,000-ft. 
triggering altitude submitted by the majority of commenters either 
through individual comments or a form letter. The FAA and NPS will work 
together to develop ATMPs that mitigate or prevent significant adverse 
impacts on the environment. This cooperative relationship is consistent 
with the findings of Congress enumerated in Section 802 as follows:

--The FAA has sole authority to control airspace over the United States 
and 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;
--the NPS has the responsibility of conserving the scenery and natural 
and historical 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.

    The Act includes procedural requirements for establishing ATMPs, 
including holding at least one public meeting, publishing the proposed 
ATMP in the Federal Register for public comment, and soliciting the 
participation of Indian tribes whose tribal lands are, or may be, 
overflown by aircraft involved in a commercial air tour operation. 49 
U.S.C. Section 40128(b)(4). Additionally, the Act provides that in 
establishing ATMPs the FAA is the ``lead agency'' and the NPS is a 
``cooperating agency'' for purposes of compliance with regulations of 
the Council on Environmental Quality implementing the National 
Environmental Policy Act (NEPA). 49 U.S.C. Section 40128(b)(4)(C). In 
accordance with these provisions, the FAA and the NPS are working 
cooperatively to implement the Act.
    The definition of a commercial air tour operation is complete with 
the publication of this final rule. All operators wishing to conduct 
commercial air tour operations over a unit of the national park system 
or tribal lands now have 90 days to apply for operating authority, in 
accordance with the procedures outlined in an advisory circular (AC). 
This AC may be obtained from the public docket, by calling the person 
listed under FOR FURTHER INFORMATION CONTACT, or on the Internet site 
established for the ATMP process: http://www.atmp.faa.gov.
    The FAA earlier informed air tour operators of the requirements of 
the Act in a Federal Register notice published on May 26, 2000. 
However, in that notice, the FAA acknowledged that the definition of a 
commercial air tour operation was not yet complete. That definition is 
now complete and any operator defined as an air tour operator must 
obtain a part 135 or part 121 certificate, as appropriate, and 
operating authority if it operates over a national park.
    In response to commenters' concerns about ``new entrants'', the Act 
authorizes the FAA, in cooperation with the NPS, to grant interim 
operating authority to new entrant air tour operators under certain 
circumstances and subject to certain limitations. See 49 U.S.C. Section 
40128(c)(3). This provision of the Act is restated in Section 136.11(c) 
of this final rule.
    Comment: Some individual commenters find the 5,000-ft. triggering 
altitude to be too restrictive and fear that it will capture flights 
other than commercial air tours, such as pilot training flights, while 
over a park. Another commenter is concerned that the altitude and 
related definitions of an air tour operator will allow some part 91 
operators to slide through a loophole and not be governed by the 
regulations. One commenter expresses concern that, once in place, the 
restrictions on flying over parks would be extended to general aviation 
users, which in this instance would require burdensome deviations to 
fly over his State. Air Maui, a commercial operator, comments that 
there is no justification for the 5,000-ft. altitude and that a 
triggering altitude should be set by particular park or area.
    Arizona Grand Canyon Chapter of the Sierra Club recommends careful 
scrutiny of point-to-point services that claim to not be air tour 
operators.
    FAA Response: The law requires an altitude to be set by the 
Administrator to complete the definition of a commercial air tour 
operation. Once the definition is established, the operators covered by 
the definition can file for operating authority. The application for 
operating authority then triggers the ATMP process. Once established, 
an ATMP may, among other things, establish maximum or minimum 
altitudes--below the 5,000 ft. trigger altitude--for commercial air 
tour operations over the national park unit. Neither the FAA nor the 
NPS has the authority to extend the provisions of the Act to flights 
other than commercial air tour operations. Only Congress could effect 
such a change. Training flights and part 91 flights that are not 
commercial air tour operations are not captured under the Act. Criteria 
to determine whether a flight meets the definition are spelled out in 
the Act and

[[Page 65664]]

codified in the regulations at 14 CFR Section 136.3(d)(2). The 
Administrator may consider additional criteria in any specific 
circumstance. See 14 CFR Section 136.3(d)(2)(viii).
    Comment: Many individuals do not understand the 5,000-ft. proposal 
as a triggering altitude but assumed that this is a proposed minimum 
operating altitude for parks in general. Most of these individuals 
support a 5,000-ft. minimum operating altitude over parks. A few 
individuals urge a ban on overflights of national parks. In addition, 
one of these individuals specifically recommends no flights at all 
below 16,000-ft. AGL if a total ban on commercial air tours over parks 
is not implemented. Another person's preference is that aircraft fly at 
altitudes and distances to prevent any noise pollution to the parks. 
One person recommends including non-motorized aircraft as part of that 
park overflight ban.
    FAA response: Again, the law requires that the Administrator set 
the altitude to complete the definition of a commercial air tour 
operation. The FAA believes it is clear that the triggering altitude is 
to be used only to determine which air tour flights will be subject to 
this specific regulation. The suggestion to set a 16,000-ft. altitude 
is beyond the scope of the NPRM. The Act does not attempt to impose a 
ban over all units of the national park system, though a specific ATMP 
may ban commercial air tour operations (below 5,000 ft. AGL) over some 
or all of a particular park. The FAA knows of no commercial air tour 
operation that uses non-motorized aircraft. In any event, one element 
of the statutory definition of a ``commercial air tour operation'' is 
that it is conducted in a ``powered aircraft.'' See 49 U.S.C. Section 
40128(f)(4)(A).
    Comment: One individual supports the 5,000-ft. triggering altitude, 
but raises the issue of how to deal with air carriers who must fly 
below that altitude for landing and takeoff when there is an airport 
within a park, such as Jackson Hole Airport in Wyoming. A few people 
propose exclusion for air tours operating out of Jackson Hole Airport 
since it is in Grand Teton National Park.
    FAA response: The Act specifically states that aircraft may descend 
below the altitude set by the FAA, in cooperation with NPS, for 
purposes of take-off and landing. See 49 U.S.C. Section 
40128(f)(4)(A)(i). Thus, for example, if an air carrier flight is 
operating below 5,000 ft. AGL above a unit of the National Park System, 
but that operation is strictly for purposes of takeoff and landing at 
an airport in or near the park, then such a flight is not a 
``commercial air tour operation.'' A Jackson Hole airport exclusion is 
not part of this rulemaking.
    Comment: Another individual is concerned about how the number of 
operations performed by interim operators is counted. This commenter 
encourages the use of financial records to document actual flights 
conducted to protect the honest operator.
    FAA response: The method that the Principal Operations Inspector 
for each operator will use in determining the number of actual flights 
that the operator conducted will be spelled out in a procedures manual 
being developed by the FAA. Financial records will certainly be one of 
the sources used, along with aircraft log books, flight plans, 
maintenance records, etc., in the determination of interim operating 
authorizations.
    Comment: Nevada Commercial Aviation Council for Tourism supports 
the 5,000-ft. altitude and the exclusion of flying over the Lake Mead 
area as a transportation route from the ATMP process.
    FAA response: Lake Mead is a unit of the national park system and 
is thus included in the ATMP process by the terms of the Act. The Act 
excludes flights over or near the Lake Mead Recreational Area that are 
solely for transportation to conduct a commercial air tour over the 
Grand Canyon. The Act states the factors to be used in determining 
whether a flight is a commercial air tour operation.
    Comment: Helicopter Association International expresses no opinion 
on the 5,000-ft. triggering altitude, but notes that since most 
helicopter operations are conducted below 5,000 feet, this will not 
serve as an effective way of distinguishing helicopter air tour 
operations from other helicopter operations. One individual opposes 
unregulated helicopter tours due to noise impacts to visitors, fire 
danger, and negative impacts to wildlife.
    FAA response: The ATMP process will take into consideration all 
effects of commercial air tour operations, whether fixed wing or rotary 
wing. The Act specifies additional criteria, other than altitude, for 
determining whether or not an operation is a commercial air tour 
operation.
    Comment: National Air Transportation Association (NATA) and 
Aircraft Owners and Pilots Association (AOPA) recommend a triggering 
altitude of 3,000 ft. AGL. AOPA remarks that 3,000 ft. AGL is the start 
altitude for visual flight rules (VFR) cruising altitudes and this 
lower trigger altitude will better separate the commercial air tour 
aircraft from general aviation, avoiding an intermix with other higher 
altitude aircraft. AOPA notes that the National Parks Overflights 
Working Group (NPOWG) recommended 5,000-ft. AGL altitude only as a 
``place holder'' that would be identified in association with other 
triggering altitudes that they considered. AOPA expresses concern that 
this altitude may be used to justify future restrictions on aircraft 
overflights. AOPA also commends the FAA for including the limited 
exemption for part 91 operators codified in the Act. Other commenters 
state that the 5,000-ft. AGL altitude is too restrictive, unnecessary 
and unreasonable and recommend alternative altitudes such as 2,000, 
2,500 and 3,000 ft. AGL.
    FAA response: A trigger altitude of 3,000 ft. AGL will not separate 
air tour traffic from general aviation. Nothing in the Act or this 
final rule requires general aviation operations to fly above the 
triggering altitude, regardless of whether that trigger altitude is 
3,000 ft. AGL or 5,000 ft. AGL as proposed and adopted here. The FAA 
believes the 5,000-ft. trigger altitude reasonably captures any viable 
air tour traffic over a unit of the National Park System. The FAA 
agrees with the National Parks Conservation Association that the 5,000-
ft. altitude is reasonable in that some fixed wing aircraft could 
possibly conduct a viable air tour above 3,000 ft. and not be 
``captured'' in the definition, whereas a 3,000 ft. altitude would 
capture virtually all rotor wing aircraft. The Act does not authorize 
the FAA or NPS to evaluate significant adverse impacts of non 
commercial air tour operations.
    Comment: Finally, one person recommends the NPS work with the FAA 
to implement relevant provisions of the Glacier National Park General 
Management Plan that would ban commercial air tours over the park.
    FAA response: The General Management Plan will be a consideration 
in the development of any ATMP at Glacier National Park.

The Final Rule

    In this rulemaking, the FAA establishes 5,000 feet AGL as the 
altitude that completes the definition of the term ``commercial air 
tour operation.'' Therefore, 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 
below 5,000 feet above ground level (except solely for purposes of 
takeoff or landing, or necessary for safe operation of an aircraft as 
determined

[[Page 65665]]

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 less than 1 mile laterally from any 
geographic feature within the park (unless more than \1/2\ mile outside 
the boundary) would be subject to the provisions of the Act and the new 
part 136.
    The 5,000-ft. AGL altitude addresses the great majority of current 
and potential commercial air tour operations over national park units. 
In addition, the 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 ft. AGL. The Act acknowledged 
their efforts stating; ``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 completes the 
definition of commercial air tour operation. This final rule notifies 
operators conducting commercial air tour operations, as defined in the 
Act, that such operations are subject to the provisions of the Act. 
Because this definition is now complete, Section 136.7 requires 
commercial air tour operators to apply for operating authority. 
Application by a person to conduct a commercial air tour operation over 
a unit of the National Park System triggers the ATMP process. It does 
not mean that all air tour operations will be required to be conducted 
above 5,000 ft. AGL or that they will be limited to that minimum 
altitude. Rather the air tour management plan for any given national 
park unit will define the altitudes (below 5,000 ft. AGL) at which 
operations may be conducted.

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.'' See 49 U.S.C. Section 40128(b)(a)(B). 
Accordingly, this final rule supports this statutory objective and 
promotes the goal of avoiding any significant adverse environmental 
impacts from commercial air tour operations.
    In accordance with FAA Order 1050.1D, the FAA has determined that 
this final 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 of any federal mandates 
on state, local, tribal governments, and the private sector. The FAA 
has determined that this rule is not a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866 and Department of 
Transportation policies and procedures (44FR11034, February 26, 1979). 
This final 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 rule 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 final rule codifies in new part 136 the applicable provisions 
of the Act concerning commercial air tour operations over national 
parks or within \1/2\ mile of the boundary of a national park, 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 
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 5,000 ft. AGL completes the 
definition of a commercial air tour operation to determine who will be 
subject to part 136. The 5,000-ft. AGL altitude addresses the great 
majority of current and potential commercial air tour operations over 
national park units. In addition, the 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 ft. 
AGL.
    These new regulations simply codify statutory provisions from 
Public Law 106-181, and finalize Congress' directive that the 
Administrator determine an altitude to complete the definition set 
forth in 49 U.S.C. Section 40128 (f)(4)(A). The primary benefit of the 
regulations will be to enable the FAA and the NPS 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 into account 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 Sec.  136.9 (Air Tour Management Plans) are proposed.

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 
rationale 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

[[Page 65666]]

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 final rule by itself imposes no 
costs on small commercial air tour operators. The actual effect on 
small entities of implementing this rule will be determined by 
individual ATMPs. This final 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 accordance with the above Act, the FAA has assessed the 
potential effect of this final 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 final 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 no paperwork burden is imposed by the adoption 
of this final rule, which essentially adopts an altitude that completes 
the definition of commercial air tour operation. The paperwork burden 
imposed is the product of a Congressional mandate pursuant to the 
National Park Air Tour Management Act.
    The FAA and NPS acknowledge, however, that the Air Tour Management 
Process will impose paperwork requirements on the public as individual 
management plans for parks are developed and interim operating 
authority is approved. This process is delineated in an advisory 
circular. A request for approval of the paperwork requirements has been 
submitted to OMB for approval. The description below is provided so 
that interested individuals may comment on the paperwork submission 
requirements.
    Title: National Parks Air Tour Management.
    Summary: Section 40128(a)(2)(A) of the Act requires 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.'' The FAA codified this section as 14 CFR 136.7(b). An 
advisory circular assists the operator in complying with this 
application process by listing the requirements:
    [sbull] Name, mailing address, phone numbers of the company.
    [sbull] Address of principal base where operations will be 
conducted.
    [sbull] Proposed start up date for operations (for new entrants).
    [sbull] Company certificate number if a certificated operator.
    [sbull] Management personnel names, titles, phone numbers.
    [sbull] Part 91 status; Part 135 single pilot, basic, full, or 
commuter operator status; or Part 121 status.
    [sbull] Type and number of aircraft to be used in commercial air 
tour operations.
    [sbull] National park or tribal lands over which commercial air 
tour operations will be conducted.
    [sbull] The safety history of the operator.
    [sbull] Any additional information that might provide the FAA with 
a better understanding of the proposed operation (e.g., proposed or 
actual routes, altitudes, frequency of flights, time of flights, etc.).
    [sbull] For existing operators, the greater of--

--The number of commercial air tour operations within the 12-month 
period preceding April 5, 2000, or from April 1, 1999, through March 
31, 2000, or
--The average number of commercial air tour operations per 12-month 
period for the 36 months preceding April 5, 2000, or from April 1, 1997 
through March 31, 2000, and
--For seasonal operations, the number of commercial air tour operations 
that occurred during the season or seasons covered by the 12-month 
period preceding April 5, 2000, or from April 1, 1999, through March 
31, 2000.
    [sbull] Other appropriate information as may be requested by the 
Administrator--

    [sbull] Operators may submit the following optional data to support 
ATMP development--

--The economic benefits of the operator's commercial air tour 
operations to the park and community
--Impact of any potential restrictions on an operator's commercial air 
tour operations
--The advantages of the operator's air tours for its customers and the 
national parks and/or tribal lands they visit
--The number of air tour visitors the operator serves on an annual or 
seasonal basis
    Except for the optional information, these are routine items that 
any company would maintain as a matter of business practice, and this 
information should not require more than an hour to collect. Operators 
are encouraged to submit the optional information, as it may aid in the 
ATMP development process. Operators may elect to submit this optional 
data as a group to reduce duplication of effort.
    Use of the information: This information collection supports the 
final rule, which was mandated by the Act.
    Respondents: We estimate that there would be about 174 respondents.
    Frequency: This is a one-time collection.
    Annual Burden Estimate: The estimate for the collection of routine 
company data is 1 hour; the collection of the optional information is 2 
hours. We estimate that a clerical assistant should be able to produce 
the application package in 4 hours.
    The hourly wage for a chief pilot/company president to produce the 
information is estimated as equivalent to a GS-14, Step 10, or $101,742 
divided by 2080 hours = $49. per hour. Clerical assistance is estimated 
as equivalent to a GS-6, Step 1, or $28,253 divided by 2080 = $13.58 
per hour.
    174 operators x 3 hours x $49. = $25,578.
    174 clerical assistants x 4 hours x $13.58 = $9, 451.78.

[[Page 65667]]

    $25,578 + $9,451.78 = $35,029.78 (total cost of 174 operators 
completing operating authority applications).
    The total reporting hour burden is 1218 hours.
    The agency is soliciting comments on this information collection 
to--
    (1) Evaluate the accuracy of the agency's estimate of the burden;
    (2) Enhance the quality, utility and clarity of the information to 
be collected; and
    (3) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.
    Individuals and organizations may submit comments on the 
information collection requirements by December 24, 2002 and should 
direct them to Docket No. FAA-2001-8609, U.S. DOT Dockets, Room PL-401, 
400 7th Street, SW., Washington, DC 20590-0001. Comments should also be 
submitted to the Office of Information and Regulatory Affairs, OMB, New 
Executive Building, Room 10202, 725 17th Street, NW., Washington, DC 
20053, Attention: Desk Officer for FAA.
    According to the regulations implementing the Paperwork Reduction 
Act of 1995 (5 CFR 1320.8(b)(2)(vi)), an agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number. 
The OMB control number for this information collection will be 
published in the Federal Register after the Office of Management and 
Budget approves it.

List of Subjects

14 CFR Part 91

    Afghanistan, Agriculture, Air traffic control, Aircraft, Airmen, 
Airports, Aviation safety, Canada, Cuba, Ethiopia, Freight, Mexico, 
Noise control, Political candidates, Reporting and recordkeeping 
requirements, Yugoslavia.

14 CFR Part 136

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

Adoption of Amendments

    For the reasons set forth above, the Federal Aviation 
Administration amends chapter I of title 14 of the Code of Federal 
Regulations 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), 1155, 40103, 40113, 40120, 44101, 
44111, 44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 
46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, 
articles 12 and 29 of the Convention on International Civil Aviation 
(61 stat. 1180).

    2. Special Federal Aviation Regulation No. 78 is removed.

    3. 14 CFR part 136 is added to read 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 
(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 where 
commercial air tour operations are flown.
    (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 tour 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 that 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 that--
    (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 enactment.
    (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 Sec.  136.5.
    (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 public of willingness to 
conduct a sightseeing flight for compensation or hire;
    (ii) Whether a narrative that referred to areas or points of 
interest on the surface below the route of the flight was provided by 
the person offering the flight;
    (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;

[[Page 65668]]

    (vii) Whether the flight would have been canceled based on poor 
visibility of the surface below the route of the flight; and
    (viii) Any other factors that the Administrator and Director 
consider appropriate.
    (3) For purposes of Sec.  136.5, 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.
    (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 this section, 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 requirement. Notwithstanding Sec.  
136.11, an existing commercial air tour operator shall apply, not later 
than January 23, 2003 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 abut 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. 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 air 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 section, 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 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

[[Page 65669]]

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 
1501.5 through 1501.8 (for the purposes of complying with 40 CFR 1501.3 
and 1501.5 through 1501.8, 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 (c) 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.
    (1) Limitation. The Administrator may not grant interim operating 
authority under this paragraph (c) 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.
    (2) ATMP limitation. The Administrator may grant interim operating 
authority under this paragraph (c) 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 October 17, 2002.
Marion C. Blakey,
Administrator.
[FR Doc. 02-27033 Filed 10-24-02; 8:45 am]
BILLING CODE 4910-13-P