Notice of Interim Operating Authority Granted to Commercial Air Tour Operators Over National Parks and Tribal Lands Within or Abutting National Parks

AGENCY:

Federal Aviation Administration, DOT.

ACTION:

Notice.

SUMMARY:

On October 25, 2002, the Federal Aviation Administration (FAA) published the final rule for Title 14, Code of Federal Regulations (14 CFR) part 136, National Parks Air Tour Management (67 FR 65662). The rule became effective on January 23, 2003. On January 27, 2005, the FAA published a notice of opportunity for commercial air tour operators granted interim operating authority (IOA) under the National Parks Air Tour Management Act of 2000 (the Act) to review and self-correct annual authorizations (70 FR 3972). based on the responses to that notice, the FAA made some corrections to interim operating authority. The Act also requires the interim operating authority granted under the Act to be published in the Federal Register for notice and the opportunity for comment. This notice fulfills that statutory requirement.

FOR FURTHER INFORMATION CONTACT:

Gene Kirkendall, Flight Standards Service, Federal Aviation Administration, 800 Independence Ave., SW., Washington, DC 20591; telephone (202) 385-4510; e-mail Gene.Kirkendall@FAA.GOV.

SUPPLEMENTARY INFORMATION:

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 the mandates specified in the Act, enacted on April 5, 2000. This final rule (part 136) 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 would be classified as a commercial air tour operator. The rule also codified provisions of the Act. In accordance with 14 CFR 136.7(b), before commencing commercial air tour operations over a unit of the national park system or tribal lands within or abutting a national park, a commercial air tour operator is required to apply to the Administrator for authority to conduct the operations over the park or tribal lands. Title 14 CFR 136.11(a) states that: “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.” Consistent with the Act, 14 CFR 136.11(b)(3) also states that IOA granted under that section would be published in the Federal Register to provide notice and opportunity for comment.

Prior to issuing this notice, the FAA became aware that there may have been some errors in the number of commercial air tours initially reported and received. There are several reasons why these errors could have occurred, such as (1) Operators were not required to keep records of the number of commercial air tours conducted over national parks prior to the adoption of the Act; (2) there was a 21/2 year time lapse between the passage of the Act and the effective date of the part 136 rule; and (3) there appeared to have been confusion over how to initially report information, especially for operators flying over more than one park. The FAA understood that operators should have requested and received IOA that reflects the actual number of commercial air tours that were conducted during the relevant time period set forth in the statute and the rule and that every effort should be made to standardize the counting of flights requiring IOA.

Consequently, the FAA provided an opportunity for air tour operators to review and correct, if necessary, their annual authorizations. Specifically, on January 27, 2005, the FAA published “Notice of Opportunity To Self-Correct Annual Authorizations for Commercial Air Tour Operators Over National Parks and Tribal Lands Within or Abutting National Parks” (70 FR 3972). This notice informed all operators of the self-correcting process and the rules to follow in counting air tours over parks. Individual notices were also sent by first class mail to all operators who initially reported their number of annual commercial air tour operations. The deadline for completing this review and self-correction was February 21, 2005.

In response to this self-correction process, the FAA received 19 responses from commercial air tour operators. Six operators reported no change in their original reported numbers; three included national parks and/or tribal lands that were unintentionally not listed; three decreased their total annual numbers due to re-examination of their flight paths that were originally thought to penetrate a national park or tribal lands; and seven reported errors made by them or in the data entry process. Based on these responses, the FAA has issued corrected IOA.

The FAA has not confirmed the numbers reported by operators. Operators were notified that if comments are received in response to this current notice that provide substantive information that an operator does not qualify under the law as an existing operator or has erroneously reported the number of flights flown over a park or tribal lands within or abutting the park unit, the FAA may investigate and take corrective action, if necessary, to bring the operator into compliance with the law. IOA may be further amended, if necessary.

In this notice, the FAA is publishing the names of the existing operators who have applied for and received IOA, the national parks and/or tribal lands over which they fly, and the number of operations authorized for each park and/or tribal land. This information is provided so that the public has notice and an opportunity to comment, as required by the Act and 14 CFR part 136. The FAA and the National Park Service (NPS) also will consider this information in the development of Air Tour Management Plans (ATMP) for the parks, which will replace IOA.

The Act and 14 CFR part 136 limit the impacts of commercial air tour operations conducted under IOA by existing operators in several ways. IOA provides annual authorization only for the greater of: (1) The number of flights used by the operator to provide the commercial air tour operations within the 12-month period prior to the date of the Act's enactment; or (2) the average number of flights per 12-month period used by the operator to provide such operations within the 36-month period prior to the Act's enactment, and, for seasonal operations, the number of flights so used during the season or seasons covered by that 12-month period, 49 U.S.C. 40128(c)(2)(A); 14 CFR 136.11(b)(1). Any increase in the authorized number of operations under IOA must be agreed to by the FAA and the NPS, 49 U.S.C. 40128(c)(2)(B); 14 CFR 136.11(b)(2). The Act and part 136 also provide that IOA: (1) May be revoked by the Administrator of the FAA for cause; (2) shall terminate 180 days after the date on which an ATMP is established for the park or tribal lands; (3) shall promote protection of national park resources, visitor experiences, and tribal lands; (4) shall promote safe commercial air tour operations; (5) shall promote the adoption of quiet technology, as appropriate; and (6) shall allow for modifications of the IOA based on experience if the modification improves protection of national park resources and values and of tribal lands, 49 U.S.C. 40128(c)(2)(D)-(I); 14 CFR 136.11(b)(4)-(9).

The Act provides for IOA to allow commercial air tours to continue operating over national parks and tribal lands within or abutting a unit of the national park system pending the establishment of ATMPs. The Act requires that the FAA grant IOA to existing commercial air tour operators “[u]pon application for operating authority,” 49 U.S.C. 40128(c)(1), thus allowing these operators to continue to operate without a break in service. The FAA interprets the provisions in the Act requiring that IOA promote protection of national park resources, visitor experiences, and tribal lands; safe commercial air tour operations; and the adoption of quiet technology, as appropriate, to be continuing requirements of IOA rather than being tied to the initial granting of IOA. See 49 U.S.C. 40128(c)(2)(F)-(H).

In consultation with the NPS, and Native American tribes as appropriate, the FAA will monitor impacts of authorized commercial air tour operations on park resources, visitor experiences, and tribal lands within or abutting a unit of the national park system. Consistent with the statutory term “promote,” as used in 49 U.S.C. 40128(c)(2)(F)-(H), the FAA will support appropriate voluntary measures to address specific concerns raised by the NPS, or in the case of tribal lands, Native American tribes, regarding impacts from commercial air tour operations conducted under IOA. As noted above, the Act also allows for modification of IOA based on experience if the modification improves protection of national park resources and values and of tribal lands, 49 U.S.C. 40128(c)(2)(I).

Regarding the promotion of safe commercial air tour operations, the FAA will continue to address safety issues in parks covered by IOA in a manner consistent with existing regulations.

Section 805 of the Act directs the National Parks Overflights Advisory Group (NPOAG) to provide advice, information, and recommendations to the FAA and the NPS on “commonly accepted quiet aircraft technology for use in commercial air tour operations over a national park or tribal lands, which will receive preferential treatment in a given [ATMP]” (Pub. L. 106-181, title VIII, section 805(c)(2)). Section 804 of the Act requires the FAA to designate reasonably achievable requirements necessary for aircraft to be considered as employing quiet aircraft technology for purposes relating to commercial air tour operations at the Grand Canyon. Pursuant to section 804 of the Act, the FAA issued a final rule designating quiet aircraft technology for commercial air tour aircraft in Grand Canyon National Park on March 29, 2005 (70 FR 16084). Although the Grand Canyon rule does not address the NPOAG's responsibility under section 805 of the Act, the NPOAG may consider the Grand Canyon rule in making recommendations on “commonly accepted quiet aircraft technology” for use in other national parks' ATMPs. Using the advice and recommendations of the NPOAG, the FAA and the NPS will give further consideration to the appropriate promotion of the adoption of quiet technology in IOA.

The FAA solicits comments on all aspects of this notice. Comments about the status of the IOA of a commercial air tour operator or operators, including qualifications to have status as an existing air tour operator over a unit of the national park system or tribal land or the number of flights over a national park or tribal land, should be as specific as possible and include substantive, credible information to support assertions. If comments are received that provide substantive, credible information that an operator does not qualify under the law as an existing operator or has erroneously reported the number of flights flown over a park or related tribal lands, the FAA will investigate and take corrective action, to bring the operator into compliance with the law. IOA may be further amended, if necessary. Comments should be directed to the person listed under FOR FURTHER INFORMATION CONTACT.