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Commercial Air Tour Limitations in the Grand Canyon National Park Special Flight Rules Area; Modification of the Dimensions of the Grand Canyon National Park Flight Rules Area and Flight Free Zones
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: October 11, 2000 (Volume 65, Number 197)]
[Rules and Regulations]
[Page 60352-60359]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11oc00-7]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 93
14 CFR Parts 91, 93, 121 and 135
Commercial Air Tour Limitations in the Grand Canyon National Park
Special Flight Rules Area; Modification of the Dimensions of the Grand
Canyon National Park Flight Rules Area and Flight Free Zones
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Disposition of a request for stay of compliance date.
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SUMMARY: On April 4, 2000, the FAA published two final rules for Grand
Canyon National Park (GCNP) limiting the number of commercial air tour
operations in the GCNP Special Flight Rules Area (SFRA) and modifying
the airspace of the SFRA. One rule limited commercial air tour
operations of each operator, the other redefined the SFRA airspace. A
Notice of Availability of commercial routes in the GCNP SFRA also was
issued on the same day setting forth new routes available. The
Commercial Air Tour allocations final rule was effective on May 4,
2000. The new routes and airspace modifications become effective
December 1, 2000. In July 31, 2000, the United States Air Tour
Association and seven air tour operators in GCNP requested a stay of
the compliance date for the rules. This document informs the public of
the FAA disposition of this request for a stay of the compliance date
for the final rules.
DATES: Effective: October 11, 2000.
ADDRESSES: You may view a copy of the final rules, Commercial Air Tour
Limitations in the Grand Canyon National Park Special Flight Rules Area
and Modification for the Dimensions of the Grand Canyon National Park
Special Flight Rules Area and Flight Free Zones, through the Internet
at: http://dms.dot.gov, by selecting docket numbers FAA-99-5926 and
FAA-99-5927. You may also review the public dockets on these
regulations 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 of the Nassif Building at the Department of
Transportation. 7th Ave., SW, Room 401, Washington, DC, 20590.
As an alternative, you may search the Federal Register's Internet
site at
http://www.access.gpo.gov/su__docs for access to the final rules.
You may also request a paper copy of the final rules from the
Office of Rulemaking, Federal Aviation Administration, 800 Independence
Ave., SW., Washington, DC 20591, or by calling (202) 267-9680.
FOR FURTHER INFORMATION CONTACT: Howard Nesbitt, Flight Standards
Service (AFS-200), Federal Aviation Administration, Seventh and
Maryland Streets, SW, Washington, DC 20591; telephone: (202) 493-4981.
SUPPLEMENTARY INFORMATION:
Background
On April 4, 2000, the Federal Aviation Administration published two
final rules, the Modification of the Dimensions of the Grand Canyon
National Park Special Flight Rules Area and Flight Free Zones (Air
Space Modification), and the Commercial Air Tour Limitation in the
Grand Canyon National Park Special Flight Rules Area (Commercial Air
Tour Limitation). See 65 FR 17736; 65 FR 17708; April 4, 2000. The FAA
also simultaneously published a notice of availability of Commercial
Routes for the Grand Canyon National Park (Routes Notice). See 65 FR
17698, April 4, 2000. The Commercial Air Tour Limitations final rule
because effective on May 4, 2000. The Air Space Modification final rule
and the routes set forth in the Routes Notice are scheduled to become
effective December 1, 2000. The implementation of the Air Space
Modification final rule and the new routes was delayed to provide the
air
[[Page 60353]]
tour operators ample opportunity to train on the new route system
during the non-tour season. The Final Supplementary Environmental
Assessment for Special Flight Rules in the Vicinity of Grand Canyon
National Park (SEA) was completed on February 22, 2000, and the Finding
of No Significant Impact was issued on February 25, 2000.
On May 8, 2000, the United States Air Tour Association and seven
air tour operators (hereinafter collectively referred to as the Air
Tour Providers) filed a petition for review of the two final rules
before the United States Court of Appeals for the District of Columbia
Circuit. The FAA, the Department of Transportation, the Department of
Interior, the National Park Service and various federal officials were
named as respondents in this action. On May 30, 2000, the Air Tour
Providers filed a motion for stay pending review before the Court of
Appeals. The federal respondents in this case filed a motion for
summary denial on grounds that petitioners had not exhausted their
administrative remedies. The Court granted the federal respondents
summary denial on July 19, 2000. The Grand Canyon Trust, the National
Parks and Conservation Association, the Sierra Club, the Wilderness
Society, Friends of the Grand Canyon and Grand Canyon River Guides,
Inc. (The Trust) filed a petition for review of the same rules on May
22, 2000. The Court, by motion of the Federal Respondents, consolidated
that case with that of the Air Tour Providers. The Hualapai Indian
Tribe of Arizona filed a motion to intervene in the Air Tour Providers
petition for review on June 23, 2000. The Court granted that motion on
July 19, 2000.
On July 31, 2000, the Air Tour Providers filed a motion for stay
before the FAA. Both the Hualapai Indian Tribe and the Trust filed
oppositions to the Air Tour Providers' stay motion.
Petitions
The Air Tour Providers requested that the FAA stay the effective
date of the Air Space Modification Final Rule and suspend the
effectiveness of the Commercial Air Tour Limitation final rule ``to
avoid imposing additional irreparable harm to the Air Tour Providers.''
Motion at 7. The Air Tour Providers also requested that the stay
continue pending the outcome of the judicial proceeding currently
before the United States Court of Appeals for the District of Columbia
Circuit. Specifically, the Air Tour Providers claim that the four-part
test elucidated in Washington Metropolitan Area Transit Commission v.
Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977) applies to the
FAA and thus, based on this test the FAA should grant the motion for
stay. In Washington Metropolitan, the Court specified the following
four factors that it must look at when considering whether to grant a
stay pending review. Those factors are as follows: (a) The likelihood
that the moving party will prevail on the merits; (b) the prospect of
irreparable injury to the moving party if relief is withheld; (c) the
possibility of harm to other parties if relief is granted; and (d) the
public interest.
The Air Tour Providers claimed that there is a substantial
likelihood that they will prevail on the merits because Air Tour
Providers will suffer great harm through these rules. Motion at 8.
Additionally, the Air Tour Providers argued that the FAA's actions in
issuing the final rules were arbitrary and capricious for the following
reasons: (1) The goal of ``natural quiet'' has been achieved and thus
these final rules are unnecessary, Motion at 9; (2) the agencies
offered no ``reasoned analysis'' for ``abandon[ing] the definition of
`natural quiet' they have used since the Overflights Act was enacted,
in 1987, substituting a `detectability' standard for the `noticeability
standard,' '' Motion at 9-10; (3) the agencies failed to distinguish
between aircraft sound generated by commercial aircraft and that
generated by other aircraft (military, recreational), Motion at 10; (4)
the agencies ``failed to develop quiet technology standards for the
Grand Canyon or to use the existing quiet technology incentive route,''
Motion at 9-10; (5) the agencies have ``ignor[ed] the issue of safety
and abandon[ed] existing rules that ensure aircraft safety,'' Motion at
11; (6) the agencies' failed to ``accommodate the needs of (the
elderly, disabled and mobility impaired)'', Motion at 12; (7) the
agencies failed to use current data to impose the flight caps, Motion
at 12; (8) the agencies relied on a scientifically invalid computer
sound model, Motion at 13; (9) the agencies created an exemption to
``protect the economic interest of the Hualapai (sic) * * * while
ignoring the economic interests of the Air Tour Providers,'' Motion at
13. The Air Tour Providers also maintained that the agencies' actions
violate the Regulatory Flexibility Act (RFA) by calculating the costs
to the recreational air tour operators using inadequate data; asserting
that operators can offset their losses by raising prices; failing to
analyze the costs to recreational air tour passengers; overestimating
the benefits to ground visitors; and failing to minimize the economic
impact of the final rules. Motion at 14-16.
Additionally, the Air Tour Providers argued that their economic
losses are irreparable because the loss threatens the very existence of
their business and deprives them of their constitutional rights. Motion
at 17-19. The Air Tour Providers further maintained that the agencies
would not be harmed if the stay is granted since ``natural quiet'' has
already been achieved. Motion at 19. Finally, the Air Tour Providers
stated that the public interest strongly favors granting the stay since
the ``Final Rules deal with sound that the public cannot hear'' thus,
the ``public interest in `natural quiet' at the Grand Canyon is
protected.'' Motion at 19-20. Also, under the public interest prong of
the Washington Metropolitan test, the Air Tour Providers argued that
the sudden massive economic losses would result in significant losses
to the local economy. Motion at 20. Additionally, the Air Tour
Providers maintained that because the elderly, disabled or mobility-
impaired individuals who visit the Grand Canyon by recreational air
tour will be ``specifically and unfairly burdened by the Final Rules,
the public interest weighs heavily in favor of staying the Final
Rules.'' Motion at 21. The Air Tour Providers attached statements from
air tour operators, an alternative acoustical analysis, and an
alternative economic analysis to support their contentions.
The Hualapai Indian Tribe (Hualapai) submitted its opposition to
the Air Tour Providers' request to stay the final rules arguing that
the request is an ``untimely request to the Administrator for
reconsideration of the final rule.'' Hualapai Opposition at 1. The
Hualapai further argued that the fact that the Air Tour Providers
waited three months after the effective date of the final rules to
request a stay from the Administrator ``strongly indicates the lack of
sufficient harm to warrant expedited consideration of the Stay Request,
much less to support a stay.'' Hualapai Opposition at 2. The Hualapai
maintained that the only way of staying the rules is through the
reconsideration provision because there is not other applicable
regulation ``for the issuance of a stay in FAA's procedures for
rulemaking.'' Hualapai Opposition at 2. Furthermore, the Hualapai
argued that the FAA is ``without power to reconsider (and stay) its
decision now because the time for reconsideration (and a stay) ran
several months before the Air Tour Providers submitted their Stay
Request to the Administrator.'' Hualapai Opposition at 4.
[[Page 60354]]
The Air Tour Providers replied to the Hualapai Opposition on August
24, 2000, arguing that the Hualapai were not a party to this proceeding
and did not have standing to oppose this request. Additionally, the Air
Tour Providers stated that the Hualapai Tribe erred in stating that the
Air Tour Providers had failed to demonstrate that they meet the
irreparable harm standard set forth in Washington Metropolitan. The Air
Tour Providers argued that they ``Demonstrated conclusively that the
Final Rules have caused them irreparable harm, including: (i) The
imminent closure of several of the air tour providers' businesses; (ii)
the severe and permanent downsizing of other air tour providers'
businesses; (iii) the permanent, and irreparable interference with air
tour providers' contractual relationships with their domestic and
foreign booking agents; and (iv) the deprivation of the air tour
providers' constitutional rights under the Equal Protection component
of the Fifth Amendment.'' Reply to Hualapai at 2.
Additionally, the Air Tour Providers took issue with the Hualapai's
recharacterization of the Air Tour Providers' request, arguing that it
did not ask ``the FAA to `reconsider' its decision. That matter is now
before the Court of Appeals. Instead, the Air Tour Providers asked the
FAA to stay the implementation of its rules.'' Reply to Hualapai at 2.
In response to the Hualapai's assertion that the FAA lacks the power to
grant a stay request, the Air Tour Providers noted that the FAA
affirmatively stated that it has the authority to stay the effective
date of action pending judicial review pursuant to 5 U.S.C. section
705. Reply to Hualapai at 2-3. Furthermore, the Air Tour Providers
noted that the Court's Order denying the Air Tour Providers' Motion for
Stay stated that under the Federal Rules of Appellate Procedure, the
Air Tour Providers were required to file a request for a stay pending
judicial review first with the FAA because they had not demonstrated
that to do so was ``impracticale.'' Reply to Hualapai at 3. Finally,
the Air Tour Providers maintained that the request for a stay is not
time-barred because 14 CFR 11.73 does not apply.
The Trust also submitted an opposition to the Air Tour Providers'
Motion, arguing the following: (1) The request is time barred; and (2)
even if the FAA considers the Motion, the Air Tour Providers have
failed to demonstrate that they satisfy the four-pronged test. First,
the Trust maintained that the Stay Motion was filed in violation of 14
CFR 11.73 which permits a request for reconsideration to be filed
within 30 days after the rule is published. The Trust noted that the
Air Tour Providers filed their request 118 days after publication--88
days after the regulatory deadline. Trust Opposition at 2.
Second, the Trust argued that the Air Tour Providers failed to
demonstrate that the FAA adopted the final rules arbitrarily and
capriciously or abused its discretion. The Trust maintained that the
Air Tour Providers' argument that the final rules violate the
Administrative Procedures Act (APA) review almost entirely on evidence
not in the administrative record. See Trust Opposition at 4-5. In
response to the Air Tour Providers argument that the FAA violated the
RFA, the Trust argued that Section 603 of the RFA is not subject to
judicial review. The Trust also maintained that the ``RFA does not
require agencies to show that economic impacts of their rules were
absolutely minimized; it requires only a description of steps taken to
minimize significant economic impact on small entities consistent with
the stated objectives of the applicable statutes.'' Trust Opposition at
9 (emphasis in original quotation).
The Trust also argued that the Air Tour Providers failed to show
that the balancing of interests and injuries weighs in their favor
since economic loss does not constitute irreparable harm. Trust
Opposition at 9. Moreover, the Trust noted that ``other parties, such
as the Grand Canyon Trust, et al. will be significantly injured if the
FAA grants the requested stay and suspension of the final rules.''
Trust Opposition at 10 (emphasis in original quotation). The Trust
stated that ``Members of the Grand Canyon Trust, et al. are frequent
backcountry users who take great strides to enjoy unique wilderness
settings * * * Air traffic noise destroys the wilderness experience and
constitutes a significant injury to an interest protected by federal
law.'' Trust Opposition at 10. Furthermore, the Trust argued that
Congress has already determined the public interest at stake when it
required determination that the ``public interest would be served by
timely restoration of natural quiet in the Grand Canyon.'' Trust
Opposition at 10.
The Air Tour Providers replied to the Trust's Opposition on
September 14, 2000. The Air Tour Providers maintained that the Request
for Stay is an administrative proceeding before the FAA and is
completely separate and apart from any legal proceeding to which the
Trust is a party. Reply to Trust at 1. The Air Tour Providers thus
maintained that the Trust does not have the right to file a response.
Furthermore, the Air Tour Providers took issue with the Trust's
argument that the Air Tour Providers are time barred from filing their
Request for Stay. The Air Tour Providers made the same basic argument
in response to the Hualapai's Opposition. See Reply to Trust at 1-2.
The Air Tour Providers argued that the FAA can in fact consider
evidence not in the administrative record and there is no authority
barring the FAA from so doing. Reply to Trust at 2. The Air Tour
Providers maintained that the FAA is ``required to consider evidence
offered by Air Tour Providers of the irreparable harm they have
suffered as a result of the Final Rules.'' Reply to Trust at 2.
The Air Tour Providers also took issue with the Trust's assertion
that the Air Tour Providers have failed to show that they are likely to
prevail in their claim that the final rules are arbitrary and
capricious. Specifically, the Air Tour Providers argued that the
Trust's position that the Air Tour Providers have provided only ``thin
evidence'' that natural quiet was restored in the Grand Canyon prior to
implementation of the Final Rules is without merit. The Air Tour
Providers point to the ``sworn testimony of two acoustical experts
before the Subcommittee on National Parks and Public Lands of the
United States House of Representatives on two separate occasions'' and
the declaration by John Alberti. Reply to Trust at 3-4.
The Air Tour Providers also argued that the Trust's statement that
the NPS' computer sound model should be given deference because ``it
has `expertise' in the field of acoustical measurements'' is without
support. Reply to Trust at 4. The Air Tour Providers asserted that NPS
is ``not entitled to any such deference when NPS cannot support its
approach even in theory.'' Id. The Air Tour Providers then point to a
letter from the FAA to NPS in which the FAA allegedly characterized the
NPS' methodology as ``unrealistic,'' ``arbitrary and artificial,'' and
``not scientifically valid.'' Id.
The Air Tour Providers also denied the validity of the Trust's
contention that the Air Tour Providers cannot support their claims
about the significant impact of these rules on the elderly and mobility
impaired individuals. Reply to Trust at 5.
In response to the Trust's assertion that Air Tour Providers
``cannot even bring the first RFA claim because it is a challenge of
the initial regulatory flexibility analysis and therefore, is not
subject to review,'' the Air Tour Provides stated that they are
challenging the ``final regulatory flexibility analysis
[[Page 60355]]
of January 2000'' and that challenges under section 604 of the RFA are
subject to judicial review. Reply to Trust at 6. The Air Tour Providers
also asserted that the Trust's argument that the FAA satisfied its
obligations under the RFA by minimizing the significant economic impact
is without merit because the FAA has ``refused to take such steps'' Id.
Finally, the Air Tour Providers maintained that the Trust's contention
that the parties it represents will be significantly injured if the FAA
grants the Stay Request is flawed because the standard is not
significant injury but ``irreparable injury or harm.'' Rely to Trust at
7. The Air Tour Providers maintained that only they have demonstrated
irreparable injury. Id.
Agency Response
A. The Air Tour Providers Request Is Not Time Barred
The FAA is not considering this request to be time-barred-While the
FAA would not normally consider a stay motion filed 188 days from the
issuance of a rule to be timely, in this instance, the Air Tour
Providers first sought remedy in the United States Court of Appeals for
the District of Columbia Circuit. The government then filed a Motion
for Summary Denial of the Air Tour Provider's motion based on the fact
that the Air Tour Providers did not file first before the FAA and thus
exhaust its administrative remedies as required by the Federal Rule of
Appellate Procedure Rule 18. The Court granted the government's Motion
for Summary Denial on July 19, 2000. The Air Tour Providers then filed
this Stay Motion with the FAA on July 31, 2000. Thus, the FAA does not
intend to act in bad faith by refusing to even consider the Air Tour
Providers' Motion because of the length of time that has passed between
the issuance of the rule and the Air Tour Providers' stay request to
the FAA. Notably, the Air Tour Providers filed their Motion with the
FAA twelve days after the Court granted the government's Motion for
Summary Denial.
B. The Four-Pronged Test Enunciated in Washington Metropolitan Is Not
Applicable to an Administrative Proceeding
The Department of Transportation has previously found that the
four-pronged test enumerated in Washington Metropolitan for deterring
whether to grant a stay of rules pending litigation is applicable to
the appellate courts only. Albert O. McCauley; Herbert Gene Vance;
Duncan Black Parker, FAA Docket CP89SO0149; FAA Docket CP89SO0137; FAA
Docket CP89SO0182, 1990 FAA LEXIS 200 (January 12, 1990). ``The primary
stay consideration at the trial level usually relate[s] to whether the
public interest or the interest of the private parties involved, or
both would be served by a delay of the proceeding.'' Id. at 7. The
public interest, in this case, has been expressed by Congress in Public
Law 100-91--to substantially restore natural quiet to the Grand Canyon
National Park. Congress gave the NPS broad discretion to define
substantial restoration of natural quite. The agencies have determined
that the final rules at issue in this stay request would make
substantial gains in achieving this goal. Thus, to delay or suspend the
effective date of these rules would be contrary to the purpose of the
Congressional mandate, unless another public interest or private
interest was served by a stay. The private interests alleged by the Air
Tour Providers primarily concern the economic impact of the rules.
These interests have already been considered by the FAA in the final
rules. There is no additional evidence presented by the Air Tour
Providers that warrants shifting the balance achieved by these rules.
Thus, the FAA has determined that implementing the final rules furthers
the public interest by limiting the number of air tours that are
permitted in the Park and establishing new routes and air space
configurations in the Special Flight Rules Area, thereby promoting the
statutory goal of substantial restoration of natural quite.
C. The Air Tour Providers Have Not Satisfied the Four-Part Test
Enunciated in Washington Metropolitan
Even if the four-part test enunciated in Washington Metropolitan is
applicable to the FAA's administrative proceeding, the Air Tour
Providers have not demonstrated that the test is satisfied and thus,
that a stay of the Commercial Air Tour Limitations final rule and the
Air Space Modification final rule is warranted.
1. The Air Tour Providers Have Not Demonstrated That They Are Likely To
Prevail on the Merits
In support of their contention that the FAA has violated the APA by
issuing the final rules in an arbitrary or capricious manner, the Air
Tour Providers submit contrary acoustical data in an attempt to
discredit the agency's analysis supporting the need for the final rule.
See Motion for Stay, Exhibit A, Statement of John Alberti. Mr. Alberti
takes issue with the sound studies completed by the FAA and NPS in the
1990's and states that he ``performed a neutral study of aircraft sound
levels in the Grand Canyon.'' Alberti Statement at 2. Mr. Alberti's
statement is similar to a statement filed in the public docket that is
part of the administrative record to this proceeding, see
Administrative Record, Document Number 69, Comment No. 38.
As explained in the final rule, the FAA and NPS determined after
the 1996 final rule that the aircraft cap did not adequately limit
growth and noise modeling ``indicated that the potential growth in the
number of operations could erode gains made toward substantial
restoration of natural quiet.'' See 65 FR at 17713. The NPS' conclusion
that substantial restoration was not going to be achieved under SFAR
50-2, as amended in December 1996, was explained in detail in the SEA.
See SEA at 1-5, 4-17--4-22. The fact that the Air Tour Providers have
submitted acoustical studies to contradict the studies conducted by FAA
and NPS does not demonstrate that the FAA violated the APA in issuing
the final rules. It simply indicates that scientific or statistic
analyses can differ. The law is clear, however, that the Court ``will
give due deference to the agency especially when the agency action
involves evaluating complex scientific or statistical data within the
agency's expertise.'' Natural Resources Defense Council, Inc. v. EPA,
194 F.3d 130 (D.C. Cir., 1999). In this case, the FAA has demonstrated
a rational connection between the facts and its choice and thus it has
satisfied the rationality standard.
The Air Tour Providers argument that the agencies acted arbitrarily
and capriciously by ``abandoning the definition of natural quiet they
have used since the Overflights Act was enacted, in 1987, substituting
a ``detectability'' standard for the ``noticeability standard'' is also
flawed. See Motion at 8. It is not unexpected that over time new
information, data and technology might result in a well-considered
refinement in methodology. When such a situation occurs, ``* * * an
agency changing its course must supply a reasoned analysis indicating
that prior policies and standards are being deliberately changed, not
casually ignored. * * *'' Greater Boston Television Corp. v./ FCC, 444
F.2d 841 (D.C. Cir., 1970); cert. denied, 403 U.S. 923, 29 L. Ed. 2d
701, 91 S. Ct. 2233 (1971).
Section 3 of Public Law 100-91 authorizes the Secretary of Interior
to provide continued advice and recommendations to the FAA regarding
the interpretation of policy on noise
[[Page 60356]]
impact assessment at GCNP. Section 3 further directs that the FAA adopt
the recommendations of NPS ``without change unless the Administrator
determines that implementing the recommendations would adversely affect
aviation safety.'' The two agencies have been seeking to achieve
substantial restoration of natural quiet at GCNP pursuant to these
congressional mandates. Therefore, in the December 1996, Final EA, as
part of the noise methodology for determining substantial restoration
of natural quiet and based upon NPS' recommendations, the FAA defined
the threshold for evaluating the percent of time each day (12 hour
daytime period) that aircraft would be audible in the park as three
decibels above ambient. The use of this noticeability standard and
methodology was upheld in Grand Canyon Air Tour Coalition v. FAA, 154
F.3d 455 (D.C. Cir., 1998).
Since 1996, NPS has refined the noise impact assessment methodology
to be used in defining substantial restoration of natural quiet at GCNP
to more accurately reflect the potential for aircraft noise impacts in
the park based on the specific characteristics of the different areas
of the Park. NPS explained its rationale for refining the methodology
used to define substantial restoration of natural quiet in its Public
Notice ``Change in Noise Evaluation Methodology for Air Tour Operations
Over Grand Canyon National Park, 64 FR 3969, published January 26,
1999. See Administrative Record, Document 108. The NPS also published a
Notice of Disposition of Public Comments and Adoption of Final Noise
Evaluation Methodology, 64 FR 38006, on July 14, 1999. See
Administrative Record, Document 121. The January 26, 1999, Federal
Register Notice explained that the standard for substantial restoration
of natural quiet remained unchanged and only the evaluation methodology
was to be refined. 64 FR at 3969-3970; see also 64 FR 38006, 38008. NPS
further explained that it would apply two different threshold levels to
different parts of the Park based upon its analysis of regions of the
park that were determined to have greater or less noise sensitivity.
Those areas of the Park encompassing the developed areas would be
evaluated using the three decibels above ambient threshold (i.e., Zone
1), while areas without development, or ``back country'' areas would be
evaluated using the eight below ambient threshold (i.e., Zone 2). NPS
described at length how it developed the eight decibels below ambient
threshold, the aircraft noise monitoring, natural ambient measurements
and INM conversion and calculations required in its July 14, 1999
Notice and Disposition of Comments. 64 FR 38006-38012. In the final
rule for the Commercial Air Tour Limitation, NPS and FAA further
clarified that ``the minus 8 decibels below ambient is not the sound
level at which aircraft must operate or the acoustic level that must be
achieved. It is a mathematical conversion necesitated by the computer
modeling. The minus 8 decibels below ambient describes the `starting
point' at which the measurement of substantial restoration begins.'' 65
FR at 17721. Therefore, the refinement of the thresholds for evaluating
substantial restoration of natural quiet at GCNP was not arbitrary and
capricious nor contrary to Public Law 100-91.
In their reply to the Trust's Response to the Administrative Motion
for Stay, the Air Tour Provider's cite to a letter from FAA to NPS
dated June 6, 2000, to support their contention that the FAA has
criticized the NPS' noise methodology. This letter contained FAA
comments to NPS on its Draft Director's Order #47, ``Soundscape
Preservation and Noise Management.'' The FAA has never interpreted
Director's Order No. 47 as applying to GCNP. The quotes relied upon by
the Air Tour Providers to support their assertion that the FAA
criticized the NPS noise methodology actually addressed certain
assumptions, quantitative assessments and approaches to evaluating the
baseline noise environment, aircraft noise impacts and noise levels
proposed by NPS to be utilized in National Park units that do not have
legislative directives. Therefore, the refined evaluation methodology
for substantial restoration of natural quiet at GCNP is not the subject
of the June 6th letter, and the Air Tour Providers references to this
letter are both out of context and inapplicable to the subject of the
Motion for Stay.
The Air Tour Providers also have failed to demonstrate that the FAA
acted arbitrarily and capriciously by focusing on aircraft sound
generated by commercial air tour operators. Public Law 100-91 set forth
a broad mandate that the FAA issue regulations, pursuant to
recommendations by NPS, to regulate aircraft overflights so as to
substantially restore natural quiet at the Park. Congress gave the NPS
maximum discretion to determine the best means to effect the goal. NPS
recommended an operations limitation on air tour aircraft in its Report
to Congress. See Recommendation 10.3.10.3, Report on Effects of
Aircraft Overflights on the National Park System, September 12, 1994.
Furthermore, the record supports the decision to focus on commercial
air tour aircraft. As the FAA stated in the Commercial Air Tour
Limitations Final Rule, ``noise generated by aircraft conducting
commercial air tours presents a specific type of problem because these
aircraft generally are operated repeatedly at low altitudes over the
same routes.'' 65 FR at 17710. Additionally, FAA data indicates that
the volume of commercial air tour traffic is much higher then general
aviation traffic. See Regulatory Evaluation Final Rule, Commercial Air
Tour Limitation in the Grand Canyon National Park Special Flight Rules
Area, at 21 (January 21, 2000). Thus, the FAA's focus on commercial air
tour aircraft is supported by the findings in the Record and the broad
mandate set forth in Public Law 100-91.
The FAA also did not act arbitrarily and capriciously by
determining to impose a limitation on commercial air tours instead of
adopting the quiet technology standards proposed in December 1996. In
the final rule on Commercial Air Tour Limitations, the FAA reiterated
its commitment to developing a quiet technology standard. 65 FR at
17714. However, due to the numerous issues raised by commenters in the
NPRM on Noise Limitation of Aircraft Operations in the Vicinity of
Grand Canyon National Park (Docket 29770), issuance of the final rule
in the Noise Limitations rulemaking has taken longer than anticipated.
It is noteworthy that in that rulemaking as well, many commenters
maintained that imposition of quiet technology would pose an
unreasonable financial burden on the air tour industry. See 65 FR
17714. Because the agencies found that growth in the industry had only
temporarily arrested due to economic factors, they determined that an
operations limitation was necessary to ``make significant strides
towards meeting the statutory goal'' by the 2008 deadline set by the
President of the United States. 65 FR 17714; see 65 FR 17709
(explaining the goals set forth in the President's memorandum of April
22, 1996).
Additionally, the final rules at issue in this stay request were
issued prior to the enactment of the National Park Air Tour Management
Act. Thus, contrary to the Air Tour Providers' assertions, the issuance
of the Commercial Air Tour Limitations final rule and the Air Space
Modification final rule does not violate any law. The FAA also notes
the fact that operators made equipment decisions to purchase different
aircraft is not persuasive since the equipment decision was voluntary
and speculative at best. The FAA never finalized the
[[Page 60357]]
Noise Limitations Final Rule, thus the FAA has not mandated a
definition of quiet technology air tour aircraft.
Contrary to the Air Tour Providers' accusations, the FAA considered
comments by the air tour operators on the route system in devising the
routes. The Air Tour Providers' Motion contains statements by Ms.
Brenda Halverson, Papillon Airways, Inc., and Mr. Ron Williams, AirStar
Helicopters, opposing the new route structure that goes up over the
north rim because there is no turnaround in the Zuni Corridor for
helicopters. NPS, in its Report to Congress, indicated that eliminating
two way traffic in the flight corridors was critical to achieving
substantial restoration of natural quiet. Thus, where possible, FAA has
attempted to minimize two-way traffic in the Dragon and Zuni Point
Corridors. The Dragon Corridor has a turnaround for helicopters only.
The Zuni Point Corridor has a turnaround for fixed wing aircraft. Both
helicopters and fixed wing aircraft operating in the Zuni Point
Corridor have the option of going up over the North Rim, or if
necessary using Black 2 and Green 3 routes that go east around the
Desert View Flight Free Zone. The movement of the Black 2 and Green 3
was necessary in order to protect Traditional Cultural Properties
identified during the consultation process with the Native American
Tribes. See 65 FR 17739; SEA at 4-40-41, Appendix H.
Additionally, the FAA finds that the Air Tour Providers'
allegations that the new routes are unsafe are without merit. The new
routes were developed based on ``airspace configurations, safety
considerations, the goal of substantial restoration of natural quiet in
the GCNP, economic considerations, consultation with Native American
tribes'' and comments received in response to the initial Notice and
prior route proposals. 64 FR 37191 (July 9, 1999). As is typical when
routes are change, the FAA flight checked the routes for safety.
Additionally, the FAA created a computer model to assess the impact of
peak conditions on the new route system. See 65 FR 17719-20. The FAA's
primary concern is that air tour operators do not concentrate the use
of their allocations into one season which could pose a safety concern
and impede the goal of achieving substantial restoration of natural
quiet. Id.
The Air Tour Providers assertion that these rules are arbitrary and
capricious because they violate the Rehabilitation Act is
unsubstantiated. First, the Air Tour Providers make no specific
allegation as to the provisions of the Rehabilitation Act that are
violated and the citation referenced in the quotation contained in the
Motion is not applicable. Second, The Air Tour Providers' evidence as
to the percentage of air tourists who are mobility impaired, elderly or
handicapped varies dramatically depending upon which operator is
providing the information. (See Statement of Brenda Halverson
supporting Motion for Stay indicating that over 75% of the Air Tour
Provider's clients are handicapped, mobility impaired or elderly;
Statement of Ron Norman supporting Motion for Stay indicating no less
than 40% of AirStar Helicopters clients account for handicapped,
mobility impaired or elderly; Comments of Grand Canyon Air Tour
Council, September 3, 1999, indicate that about 20% of air tourists are
``physically challenged.'') The FAA noted in the Commercial Air Tour
Limitations Final Rule that ``over 50% of the air tour visitors to GCNP
also visit the Park on the ground. Also, people who are handicapped,
impaired or elderly will continue to enjoy access to the GCNP.'' 65 FR
17716. Thus people who are handicapped, mobility impaired, or elderly
will have the same ability to access the Grand Canyon by air as other
individuals.
The Air Tour Providers also attack FAA's choice of base year for
the flight limitation because the FAA did not use current data. The
FAA's choice of base year was reasonable and is thoroughly discussed in
the Commercial Air Tour Limitations Final Rule wherein the FAA stated:
Data on operations levels for the year May 1, 1997 through April
30, 1998 comprised the most accurate and current data available
during the period that this rule was being drafted. Data
subsequently collected from the industry for the year May 1, 1998
through April 30, 1999 show a slight decline in the number of total
operations from the previous year. Thus the FAA and NPS believe that
the period from May 1, 1997 through April 30, 1998 is a
representative year for the purpose of imposing this allocation. See
65 FR at 17718.
At the time this rule was being drafted, the data for the period May 1,
1999-April 30, 2000 was not available.
The Air Tour Providers' assertion that the use of the base year
data violates the RFA and that the FAA ignored the Small Business
Administration's (SBA) comments is unsubstantiated. The SBA did not
provide any comments to the docket on the final rules until December
20, 1999 where SBA presented its concerns at a meeting between the
Office of Management and Budget, the FAA and representatives of the Air
Tour Providers. (In fact, representatives of the Office of Economics
and Policy attempted to meet with SBA several times during the time
period the final rule was being drafted, but SBA was unable to attend
scheduled meetings.) The comment period to the NPRM closed September 7,
1999. At the OMB meeting the SBA noted that ``the use of future years,
or an average of the next 2 years, might be an alternative that more
accurately reflects the marketplace within the Grand Canyon tour
industry and will aid in the forecasting industry growth rates.'' See
Administrative Record, Document 70, Comment 277. The FAA believes its
analyses of the subsequent base year dispels any concern that this year
was an aberration; instead it appears that the base year is part of the
business cycle. See Exhibit A, Statement of Alan Stevens to Motion to
Stay.
The Air Tour Providers' claim that the agencies' were arbitrary and
capricious in relying upon an invalid computer sound model and biased
sound data is equally unfounded. The Air Tour Providers rely on
statements made by John Alberti asserting that the computer model used
by the agencies is without scientific basis. To the contrary, the ``FAA
chose to use the Integrated Noise Model (INM) for GCNP analysis because
of its: (1) Widespread scientific acceptance; (2) use of methodology
that conforms to industry and international standards; (3) measurement-
derived noise and performance data; (4) ability to calculate noise
exposure over varying terrain elevation; and (5) adaptability and
reliability for assessing a variety of situations, including GCNP noise
impacts.'' See SEA at 4-5--4-6. The INM is well accepted in the
scientific community and meets the standards of the Society of
Automotive Engineers Aerospace Information Report (Air) as well as the
International Civil Aviation Organization (ICAO) Circular. See SEA at
4-6. The INM was specifically modified for GCNP purposes. These
modifications, along with the aircraft and operational data inputted
for modeling, assessing and predicting aircraft noise at GCNP were
analyzed and explained in detail in the SEA.
The Air Tour Providers did not provide an adequate basis for their
statement that the FAA relied on biased sound data. The NPS provided
information on data collection in its Disposition or Comments. 64 FR
38006. Additionally, the FAA provided aircraft and operational data
utilized in its noise modeling in the SEA. Again, the law is clear, the
Court ``will give due deference to the agency especially when the
agency action involves evaluating complex scientific or statistical
data within the agency's expertise.'' Natural
[[Page 60358]]
Resources Defense Council, Inc. v. EPA, 194 F.3d 130 (D.C. Cir., 1999).
Finally, as stated earlier, the final rules were issued and the
accompanying SEA and Record of Decision were completed prior to the
enactment of the National Parks Air Tour Management Act cited by the
Air Tour Providers. Therefore, the agencies are not in violation of the
law. Regardless, the INM is a reasonable and professionally accepted
method for assessing and predicting aircraft noise impacts and
therefore the agencies' reliance on the model and aircraft and
operational data is not arbitrary and capricious.
The Air Tour Provider's assertion that the exception created for
operators landing at the Hualapai reservation under contract with the
Hualapai Tribe is arbitrary and capricious is contrary to law. When
Congress passed the Indian Reorganization Act of 1934 an overriding
purpose of that Act was ``to establish machinery whereby Indian tribes
would be able to assume a greater degree of self-government both
politically and economically.'' Morton v. Mancari et al., 417 U.S. 535,
541; 94 S.Ct. 2474 (1974). Congress in 1934 ``determined that proper
fulfillment of its trust required turning over to the Indians a greater
control of their own destinies.'' Id. at 552. The FAA determined that
``the Hualapai would be significantly adversely impacted from an
economic perspective if the operations limitation were applied to
operators servicing Grand Canyon West Airport in support of the
Hualapai Tribe.'' 65 FR at 17718; see pages 17714-17715 and 17726-17727
(regarding trust responsibility and cost impact on tribe); see also
Final Regulatory Evaluation at 98-110. Any operator has the opportunity
to obtain the benefits of this exception (i.e., relief from
allocations) provided the operator has a contract with the Hualapai
Tribe and satisfies the conditions of the exception. The Hualapai
decide which operators to contract with.
The exception from allocations applies to the air tour operators
servicing the Hualapai Reservation. Contrary to assertions by the Air
Tour Providers, this exception does not violate the Air Tour Provider's
constitutional rights and in fact, the Air Tour Providers do not
actually identify any constitutional rights that have been violated.
Furthermore, the Air Tour Providers ignore the fact that if the
Hualapai Tribe is enjoying ``unparalleled economic growth,'' the Air
Tour Providers also are benefiting since they are providing the flight
service to the Hualapai reservation.
2. The Air Tour Providers Have Not Substantiated Irreparable Economic
Losses Nor Have They Demonstrated the Quantum of Harm Is Great
In showing irreparable harm, ``the movant must provide the proof
that the harm has occurred in the past and is likely to occur again, or
proof indicating that the harm is certain to occur in the near
future.'' Wisconsin Gas Co. v. FERC, 758 F.2d 669, 673 (D.C. Cir.
1985). The Wisconsin Court further stated that ``economic loss does
not, in and of itself, constitute irreparable harm.'' Id. Thus, if the
Air Tour Providers are in fact losing customers, it does not constitute
irreparable harm since the loss of customers is due to the reduction in
flights in the SFRA, which is the purpose of the flight limitation. As
discussed above, the reduction in flights is necessary in order to
achieve the statutory goal of substantial restoration of natural quiet
and to meet the President's goal for achieving substantial restoration
by 2008.
The Air Tour Providers also do not provide any direct evidence that
the harm they are suffering is immediate and imminent and will occur
over the next 6-9 months while this litigation is ongoing. The FAA's
Commercial air tour limitations final rule became effective May 4,
2000. The operators received a full years worth of allocations for the
year 2000. The operators do not provide evidence that they are close to
exhausting or have exhausted these allocations and thus must stop
conducting business. In fact, Mr. Alan Stevens of Grand Canyon Airlines
only acknowledges the theoretical possibility that he could exhaust his
allocations. See Statement of Alan Stevens at page 4. Whether the
operators will then incur damages for the year 2001 is also theoretical
and depends on demand for air tours during the portion of 2001 that
coincides with the litigation. Thus, at this point, there is no clear
evidence submitted by the Air Tour Providers that the operators
currently are losing money for the year 2000 because of the allocation
requirement or that they will lose money for the first half of 2001
because of this requirement. Additionally, while some of the operators'
statements assert they may go out of business with the imposition of
the limitations rule and the routes, they do not provide direct
evidence to demonstrate that their demise is due to these rules and not
to the cumulative effect of past business conditions in the market.
The Air Tour Providers also argue irreparable injury because the
FAA has not minimized the impact of the longer tour routes or the ``use
it or lose it provision.'' The FAA has attempted to minimize the impact
of the longer routes to the extent possible by creating a fixed wing
turnaround in the Zuni Point Corridor. The Dragon corridor contains a
turnaround for helicopters. See 65 FR at 17698. With regard to the use
it or lose it provision, the FAA eliminated the peak/non-peak
distinction that was initially contained in the NPRM. Thus, Ron
Norman's assertions that the ``FAA will rescind any flight allocations
that go unused during either the Peak or non-peak season'' is
unfounded. See Exhibit A Statement of Ron Norman at paragraph 7.
Furthermore, the FAA adopted suggestions by commenters to soften
the use it or lose it provision by lengthening the time period. In
fact, the FAA adopted a provision similar to Papillon's suggestion in
its comments whereby after 180 days of inactivity, the operator simply
sends in a letter of intent to operate that indicates why the operator
did not operate for 180 days and when it intends to resume business.
The operator then may have up to another 180 days to resume operations,
as approved by the Flight Standards District Office. An operator would
have up to 360 days of inactivity, as suggested by Air Star Helicopters
in its comments. See 65 FR 17721-17722.
The FAA's Regulatory Flexibility Act analysis comports with the
requirements of the RFA. See generally, Final Regulatory Evaluation,
Commercial Air Tour Limitations Final Rule and Airspace Modification
Final Rule, January, 2000. Providing statistical analysis to counter an
agency's own analysis is not sufficient to show that an agency acted
arbitrarily and capaciously since a court will ``give due deference to
the agency especially when the agency action involves evaluating
complex scientific or statistical data within the agency's expertise.''
See NRDC v. EPA 194 F.3d 130 (D.C. Cir., 1999). Furthermore, the fact
that the FAA did not proceed first with the Quiet Technology Rulemaking
or some other alternative now preferred by the Air Tour Providers is
not indicative that the agency violated the APA. The law is clear that
an ``agency is entitled to the highest deference in deciding priorities
among issues, including the sequence and grouping in which it tackles
them.'' Allied Local and Regional Manufacturers Caucus, et al., v. EPA,
215 F.3d 61 (2000). The agency provided a detailed economic analysis
and RFA analysis that addressed alternatives to the adopted alternative
and discussed reasons why those
[[Page 60359]]
alternatives were not adopted. Thus it has satisfied its mandate under
the RFA.
3. The Air Tour Providers Have Not Demonstrated That the Weighing of
the Interests Favors a Stay
The FAA, in enacting these rules is carrying out the statutory
mandate set forth in Public Law 100-91--to substantially restore
natural quiet in the GCNP. It has been 12 years since the enactment of
this legislation and the FAA has attempted to work with the Air Tour
Providers, the Indian Tribes, the environmental groups and the National
Park Service to come to a resolution with regard to the means of
substantially restoring natural quiet. The FAA believes that this rule
achieves the proper balance that Congress sought in adopting Public Law
100-91 between the interests of the Air Tour Providers and those of the
environmental interests and makes significant gains in substantial
restoration of natural quiet. See 65 FR 17713. This balance is
evidenced by the fact that the government has been sued in the District
of Columbia Circuit Court of Appeals for the United States by one party
(Air Tour Providers) claiming the government has done too much in
effecting the goal of Public Law 100-91 and by another party (Grand
Canyon Trust, et al.) claiming the government has not gone far enough
in fulfilling the statutory mandate. The Air Tour Providers have not
demonstrated why their interests outweigh the interest expressed by
Congress in passing Public Law 100-91.
D. Conclusion
Given that the Air Tour Providers cannot prevail under either the
public interest test followed by the Department of Transportation, or
the Washington Metropolitan test followed by the Circuit Court, the FAA
hereby denies the Air Tour Providers' Motion to Stay the final rules.
Issued in Washington, DC on October 3, 2000.
Jane F. Garvey,
Administrator.
[FR Doc. 00-25952 Filed 10-10-00; 8:45 am]
BILLING CODE 4910-13-P