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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

 [Federal Register: February 13, 2007 (Volume 72, Number 29)]
[Notices]
[Page 6802-6803]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13fe07-85]

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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]
BILLING CODE 4910-13-M

 
 

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