[Federal Register Volume 72, Number 29 (Tuesday, February 13, 2007)]
[Notices]
[Pages 6802-6803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-625]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration


Notice of Final Opinion on the Transferability of Interim 
Operating Authority Under the National Parks Air Tour Management Act

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of final opinion.

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SUMMARY: This notice sets forth the FAA's final opinion on the 
transferability of interim operating authority under the National Parks 
Air Tour Management Act.

FOR FURTHER INFORMATION CONTACT: James W. Whitlow, Deputy Chief Counsel 
for Policy and Adjudications, Federal Aviation Administration, 800 
Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-
3773.

SUPPLEMENTARY INFORMATION: This notice sets forth the FAA's final 
opinion on the transferability of interim operating authority.
    On April 5, 2000, Congress passed the National Parks Air Tour 
Management Act (Act). The Act set up a process by which the FAA and the 
National Park Service (NPS) would work together to establish air tour 
management plans for all units of the national park system and abutting 
tribal lands having commercial air tours. On October 25, 2002, the FAA 
published a final rule in 14 CFR part 136, National Parks Air Tour 
Management (67 FR 65662), pursuant to a mandate specified in the Act. 
This final rule completed the definition of ``commercial air tour 
operation'' by establishing the altitude (5,000 feet above ground 
level) below which an operator flying over a national park for the 
purpose of sightseeing is classified as a commercial air tour operator. 
The rule also codified provisions of the Act in the FAA's regulations 
at 14 CFR part 136.
    Under the Act, the air tour management plan (ATMP) process is 
initiated when a commercial air tour operator files an application for 
operating authority with the FAA to conduct commercial air tours over a 
national park or abutting tribal land (49 U.S.C. 40128(a); 14 CFR 
136.7). Once an application is filed, the FAA, in cooperation with the 
Director of the National Park Service, must develop and implement an 
ATMP for the park or abutting tribal land. Operators conducting 
commercial air tours over a unit of the national park system or 
abutting tribal land during the 12 month period prior to adoption of 
the Act are

[[Page 6803]]

classified under the Act as existing commercial air tour operators (49 
U.S.C. 40128(f); 14 CFR 136.3). These existing operators are eligible 
to receive interim operating authority (IOA), under conditions set 
forth in the Act. IOA allows these operators to continue conducting 
commercial air tours over the parks or tribal lands pending completion 
of the ATMP. With a few limited exceptions, no other operators are 
permitted to operate pending completion of the ATMP.
    Since the Act did not directly address the issue of IOA 
transferability, the FAA must determine whether allowing 
transferability of IOA from one operator to another is consistent with 
the Act's provisions and overall goals. By notice published in the 
Federal Register on June 28, 2006, the FAA solicited comments on a 
draft opinion that concluded permitting the transferability of IOA is 
neither consistent with provisions of the Act nor its overall goals. On 
July 26, 2006, the FAA extended the comment period to September 13, 
2006.
    The FAA received six comments in response to that notice. The 
majority of commenters raised two common points. First, because of the 
amount of time it takes to complete an ATMP, failure to allow free 
transferability of IOA will inevitably result in an overall reduction 
of the number of air tour flights available to the public. Secondly, 
allowing the transfer of IOA among existing and new operators would not 
increase the overall number of potential IOA at a park and is fully 
consistent with the intent of Congress.
    The FAA acknowledges that, if IOA is not transferable, the number 
of air tours at a park may be reduced if an air tour operator goes out 
business without a successor purchaser. It must also be acknowledged, 
though, that Congress clearly intended IOA to be temporary in nature 
and severely limited FAA and NPS' ability to grant increases of IOA to 
existing operators or new entrants. The statutory scheme for IOA as 
expressed in the Act does not support the concept that Congress 
intended to allow the free trafficking in IOA. It cannot be presumed 
that, while Congress authorized FAA and the NPS to reduce, or even 
eliminate IOA prior to the implementation of an ATMP, it intended to 
preserve the existing level of air tours by permitting unrestricted 
transfer of IOA.
    Some commenters argued that the transferability mechanism for Grand 
Canyon should serve as a model for IOA. Others requested that, if it is 
decided IOA is not transferable, that decision should not apply to 
operating authority (OA) granted under an ATMP. If IOA were 
transferable, then the Grand Canyon transfer mechanism in 14 CFR 93.321 
could serve as a model; however, Grand Canyon's transfer mechanism was 
created by regulation under different statutory authority. It does not 
serve as a precedent for the transferability of IOA. On the other hand, 
this opinion only addresses the transferability of IOA. Transferability 
of OA will be covered separately, as part of the ATMP process.
    After due consideration of the comments received, the FAA issues 
the following final opinion on the transferability of IOA.
    Opinion: Congress required ATMPs to be established over units of 
the national park system and abutting tribal lands to ensure that the 
agencies analyze the environmental impact of commercial air tours upon 
such land and ``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'' (49 U.S.C. 40128(b)(1)(B); 14 CFR 
136.9(a)). Under the Act, commercial air tours are not permitted until 
an ATMP is completed for the park, unless the operator is an existing 
air tour operator as defined in the Act and receives IOA, has received 
authority to operate under part 91 with a letter of agreement from the 
Administrator and the NPS superintendent for that national park unit 
(49 U.S.C. 40128(a)(3); 14 CFR 136.7(g)), or has received authority to 
operate as a new entrant prior to the completion of the ATMP (49 U.S.C. 
40128(c)(3)(C); 14 CFR 136.11(c)).
    Congress set up the IOA process as a way of ensuring that those 
commercial air tour operators conducting commercial air tours over 
national parks at the time of Act's enactment would not be put out of 
business while the FAA, in cooperation with NPS, analyzed the 
environmental impact of the air tours on the national park unit and 
developed an ATMP. The IOA then ends 180 days after the ATMP is 
adopted.
    IOA is granted to specific operators over specific parks. Those 
operators who conducted commercial air tour operations in the 12 months 
preceding enactment (April 5, 2000) over the particular units of the 
park system for which they are applying for authority qualify for IOA. 
Those operators receive an allocation equal to the number of operations 
they conducted in the 12 month period preceding enactment, or an 
average, based on the three years preceding enactment. Thus, under the 
terms of the Act, only existing operators initially qualify for IOA.
    Additionally, a particular operator's IOA may not exceed the number 
of allocations earned by that operator for a calendar year, unless it 
was increased pursuant to the Act's provisions, which require 
concurrence between the FAA and NPS. The FAA and NPS may grant such 
increases under limited circumstances, and the allocations involved in 
the increase are not subject to sale. The FAA, in cooperation with NPS, 
may grant IOA to a new entrant air tour operator only if the FAA 
determines the authority is necessary to ensure competition in the 
provision of commercial air tour operations over the park or tribal 
lands.
    Given the specificity of the IOA authority and the limitations 
placed on that authority, FAA has concluded that Congress did not 
intend for the operators to possess it as a valuable right to be bought 
and sold. IOA was designed as a temporary solution to allow operators 
already conducting air tours at the time of the enactment of the Act to 
continue to operate pending completion of the ATMP, or new entrants to 
begin operation to ensure competition. If FAA were to conclude that IOA 
can be transferred, then operators could grow an existing business by 
adding IOA allocations to their current allotment from other operators 
and new entrants could obtain IOA allocations and start operations 
without FAA and/or NPS approval. Such an interpretation would be 
inconsistent with the overall structure of the Act.
    In consideration of the foregoing, it is the opinion of the FAA 
that IOA is not transferable.

    Issued in Washington, DC, on February 7, 2007.
James W. Whitlow,
Deputy Chief Counsel.
[FR Doc. 07-625 Filed 2-12-07: 8:45 am]
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