Members will hear testimony on National Park Overflights
Witness Panel 1
Mr. Steve Bosak
Mr. Chairman and members of the Committee, thank you for the opportunity to present the views of the National Parks Conservation Association (NPCA) on the management of tour aircraft flying over the national parks and the delay in implementing both the National Parks Overflight Act of 1987 (PL 100-91) and the National Parks Air Tour Management Act of 2000 (106-181). My name is Steven Bosak. I am the Associate Director for Visitor Experience programs for NPCA, America’s only nonprofit citizen organization dedicated solely to protecting, preserving and enhancing the National Park System. I want to thank the Chairman and Senator McCain for your commitment to this important issue. This subcommittee has contributed greatly to our country’s national park legacy by protecting the natural quiet and natural soundscapes in our national parks with past air tour overflight legislation. Significance of Air Tour Legislation to National Parks Congress elevated two basic principles when it passed the Parks Overflight Act of 1987 and the Parks Air Tour Management Act of 2000. First: The sounds of nature are among the inherent components of the “scenery and the natural and the historic and the wild life therein,” which form the core of the National Park Service’s conservation mandate. Second: Within units of the National Park System, natural quiet – the opportunity to experience natural sounds – shall be preserved “unimpaired for the enjoyment of future generations.” These two principles embody the most fundamental purposes of the National Park Service Organic Act of 1916, and reflect the Act’s enduring importance for the world today. Taken together, these two Acts both enable and require the Park Service to exercise some regulatory authority, with the assistance of the Federal Aviation Administration, over the commercial air tours that fly over national parks. Both Acts broke new ground in ordering a high level of agency cooperation. Unfortunately, this cooperation has been difficult for both agencies, resulting in delays in implementing the intent of Congress. Cause and Impacts of Delay As this committee is well aware, it has been more than 15 years since the passage of the Parks Overflight Act, which specifically directed the Park Service and FAA to provide for the “substantial restoration of natural quiet” in the Grand Canyon. Yet the excruciatingly slow pace at which the Overflights Act and the Air Tour Management Act are being implemented contributes to the frustration and uncertainty for park visitors and air tour operators alike. While the Park Service bears some blame for the lack of progress, it has been our experience that the FAA has been reluctant to follow the intent of these laws and apply the appropriate resources to complete rulemakings in a timely and efficient manner. It has been two and a half years since Congress passed the Air Tour Management Act, but the FAA has yet to release the final rule that would complete the definition of regulated airspace over national parks. This is a non-controversial rule that mostly enacts language already recommended by the National Parks Overflight Working Group, a federally convened advisory group made up of representatives from the air tour industry, the conservation community, Native American tribal governments, and the Park Service and FAA. NPCA has submitted comments to the FAA in support of the draft language (U.S. D.O.T. Docket No. FAA-2001-8690). Our concern over the delayed rule is intensified by what we have observed around the country over the past few years: That air tour operations over national parks are increasing, and in some cases new air tour operations have sprung up over parks where no air tours previously operated. Parks such as Yellowstone and Grand Teton are now facing new air tour operations. Air tour overflights continue to be a problem over parks such as Hawaii Volcanoes, Bryce Canyon in Utah, and Glacier National Park in Montana. These parks are all on the Park Service’s priority list of units requiring air tour management plans. An NPCA survey of national park superintendents in 1998 found that 55 park units reported adverse impacts from air tour overflights. That figure represents an increase in park air tour overflights from surveys we conducted in 1994 and 1996. As you recall, the Parks Air Tour Management Act sought to avoid the unmanaged growth of the air tour industry over parks and specifically forbade the start of new operations over any park until the park had completed an air tour management plan. The FAA, however, will not commence the air tour management planning process in any park until the delayed “airspace” rule is finalized. Attached to my testimony is additional testimony I wish to submit for the record on behalf of citizens living near some of these affected national parks. These comments I am submitting attest to the frustration felt in local communities by those who are seeking to reduce the impact of air tour overflights on park visitors and park neighbors. Meeting Congressional Intent To prevent further delays in the implementation of both Acts, Congress must keep a close watch on both agencies, with a keen eye on which agency determines the standards and measurements used to assess air tour noise impacts on the parks. The intent of Congress seemed clear enough. In Section 3(b)(1) and (b)(2) of P.L. 100-91, Congress required FAA to ‘issue a final plan for management of air traffic in the air space above the Grand Canyon that implements the recommendations of the Secretary (of Interior) without change unless FAA determines that those recommendations would adversely affect aviation safety.’ But still the question regarding which agency determines impacts has dogged the entire process. The conservation community took the issue to court to provide clarification. The recent decision in U.S. Air Tour Association v. FAA by the U.S. Court of Appeals for the D.C. Circuit should provide clarity to both agencies and motivation for finishing the job expeditiously. That decision directed the FAA to give deference to the Park Service as it reconsiders its position on the standard for assessing restoration of natural quiet and the measurement of aviation noise in the Grand Canyon. Among other things, the court called upon the agencies to: · Apply the “Peak Day” standard in place of the “Average Day” standard for assessing progress towards substantial restoration of natural quiet in the Grand Canyon. Judge Garland noted in the court decision that “People do not visit the Park on ‘average’ days, nor do they stay long enough to benefit from averaging noise over an entire year. For the typical visitor, who visits the Grand Canyon for just a few days during the peak summer season, the fact that the Park is quiet ‘on average’ is cold comfort.” · Measure all aviation noise sources above the Grand Canyon when assessing progress towards substantial restoration of natural quiet. Park visitors want to see progress at the Grand Canyon; we want the Park Service to realize the goal of “substantial restoration of natural quiet” to the Canyon by 2008. We also want to see the air tour industry receive genuine incentives so that they can see a future in cooperating fully in a program that enables their clients to enjoy the views from above while providing the national park visitor on the ground the opportunity to experience the undisturbed natural sounds of the Canyon. Those incentives, though – be they in the form of so-called “quiet technology” or “noise efficiency” regulations – must be fair and reasonable not just to air tour operators, but also to the national park visitors who visit the front and backcountry of national parks with the expectation of experiencing undisturbed natural sounds. NPCA and its members also want to see forward movement on the implementation of the National Parks Air Tour Management Act. We respectfully ask the committee to help ensure that neither agency repeats the mistakes of the past. Air tour management must receive the appropriate level of priority and allocation of resources so that we can deal proactively with air tour management nationwide, as Congress intended. We respectfully ask the subcommittee to help ensure that the following goals are met to assist in the preservation of natural quiet in our national parks and restoration of natural quiet to the Grand Canyon: · Release of the National Parks Air Tour Management final rule: The FAA must release this rule as soon as possible; a two-year delay is unacceptable. The rule will define the air space over parks regulated by the law and will allow the agencies to commence the air tour management planning processes at parks impacted by air tours. The committee should demand explanations from both agencies for the cause of the delay. · Recognize the Park Service’s authority to determine air tour impacts: During the development of air tour management plans and noise management plans, the Park Service must be the agency that determines air tour impacts to natural quiet in national parks and designates the desired solutions for eliminating or mitigating unwanted air tour impacts. The FAA must focus on ensuring the safety of air tour operations over national parks. The Court of Appeals has ruled on this point and both agencies should comply with their ruling. · Develop a Noise Management Plan for Grand Canyon National Park: The Park Service, with FAA assistance, must develop a Noise Management Plan for the Grand Canyon National Park. Due date was May 1, 2002. · Analyze and release Grand Canyon air tour operations data: The FAA must analyze and release the Grand Canyon air tour operations data that it has collected since 1998. This data will enable NPS and FAA to gain a better understanding of the current air tour industry behavior and take appropriate management and noise mitigation actions. · Issue a Quiet Technology Rule: The FAA and the NPS must develop and release the “Quiet aircraft technology and noise efficiency” final rule that would give air tour operators incentives for using more quiet aircraft over national parks; this rule could include incentives for using higher capacity aircraft for fewer flights. · Release of noise model validation report and conclusion: This report would provide feedback on the effectiveness of the current noise impact model and help the agencies determine progress toward “substantial restoration of natural quiet”. The due date passed in spring of 2000. NPS received the final report from Contractor (HMMH) on June 5, 2002 but has not released its conclusions to the public. · Collect all current and past due air tour use fees at Grand Canyon and other air tour use fee parks: Some air tour companies have not been paying the air tour passenger fees to NPS as required by law. NPS is entitled to these revenues. Those air tour operators who are unwilling to pay the appropriate fees to NPS should be denied the privilege of flying over the parks requiring air tour fees. The Park Service does not allow park visitors to enter parks requiring gate fees without payment; the same standard should apply to air tour passengers if the operators wish their clients to be considered “park visitors.” · Retire the allocations over the Grand Canyon for air tour operators who cease tour operations: The Park Service and FAA can pick the “low hanging fruit” in restoring natural quiet by retiring allocations of air tour operators who go out of business. · Substantially restore natural quiet at Grand Canyon National Park: The Park Service and the FAA should meet the April 22, 2008 target date committed to by both agencies in the Final Rule preamble of the FAA on Dec. 31, 1996. The “substantial restoration of natural quiet” must meet the Park Service definition that says “50% or more of the park achieve ‘natural quiet’ (i.e. no aircraft audible) for 75-100 percent of the day.” Unless the definite steps as outlined above are finalized, this target cannot be met. In conclusion, I should emphasize that NPCA is not opposed to air tours over national parks per se; we do, however, feel that air tours over some park units are inappropriate. It is critical that the FAA and NPS fulfill the will of Congress by moving quickly on implementation and by managing these issues proactively. The FAA’s role should be to ensure the safety of air tour passengers over parks and of other aircraft in the vicinity. The National Park Service must determine what impacts commercial air tours have on national park visitors and values. This was the intent of both laws. Thank you again for allowing me the opportunity to share NPCA’s views on this issue.
Ms. Peggy GilliganDeputy Associate Administrator for Aviation SafetyU.S. Department of Transportation
Chairman Hollings, Senator McCain, Members of the Committee: I am pleased to be here to discuss the status of the implementation of the National Park Overflights Act that was passed in 1987. My name is Margaret Gilligan and I am the Deputy Associate Administrator for Regulations and Certification. My office, along with several others at FAA, is currently responsible for working with our colleagues from the National Park Service (NPS) to achieve the goals set forth in the legislation, namely the substantial restoration of natural quiet to the Grand Canyon National Park (GCNP). At the outset, I would like to say that FAA has worked and will continue to work diligently and cooperatively with NPS on this very important goal. National parks in this country are truly a national treasure. They provide people from all over the country and all over the world the opportunity to experience the magnificence and splendor of this great country, from the vistas of the Grand Canyon, to the beauty of mighty redwoods, to the monuments that grace this city. In 1987, Congress enacted the National Park Overflights Act (Act), recognizing the importance of preserving a pristine experience for visitors to the GCNP. The Act recognized that it was essential for visitors to experience the beauty of the park without the distraction of aircraft noise and directed that NPS and FAA work together to achieve a substantial restoration of natural quiet in the park. Toward that end, the legislation directed NPS to define the term substantial restoration of natural quiet and to submit recommendations to the FAA that would achieve that goal. FAA is responsible under the Act for implementing the NPS recommendations and ensuring that they are consistent with safety. Never before had FAA been directed to accomplish such a goal – restoring natural quiet to a sizable land area where aviation tour operations were frequent and extensive. This task has proven more controversial and challenging than anyone thought it would be at the time it was passed. It is true that we have not yet fully achieved what Congress directed us to do in 1987. Critics have charged that we have been lax in our implementation of the Act. However, I assure you that we have been investing substantial time and resources on this issue for some time--even before enactment of the Act. I hope that my testimony today will show the complexity of the issues we face and that our efforts have brought us closer to achieving the worthy goals of the Act. To give you a graphical overview of the level of activity the FAA has been devoting to this issue, we have attached a matrix listing the work that has been completed with regard to GCNP. The FAA had been working to enhance the level of safety in the airspace over the park since before the legislation was passed. The operating environment over the canyon can be very challenging. After several air tour accidents over the Park during the mid-1980’s, the need for further FAA regulation was evident. At that time, general aviation aircraft were operating below the canyon’s rim where pilot options--should something go wrong--were extremely limited. Consequently, when Congress passed its legislation in 1987, FAA had already issued operating restrictions that prohibited aircraft operations below the canyon’s rim and established fixed routes for aircraft to follow in order to reduce mid-air collisions and improve overall safety. Following passage of the Act, the FAA issued a Special Federal Aviation Regulation (SFAR) 50-2 in May 1988 in response to NPS recommendations. This SFAR restricted where and at what altitudes pilots could fly. At that time, we believed that this response to the NPS recommendations met the stated goal of the legislation. In 1994, NPS set forth its definition of substantial restoration of natural quiet - that 50% of the park achieve natural quiet (no audible aircraft noise) for 75% to 100% of the day – and issued recommendations on how to achieve the goal. As the Act requires, the FAA must follow the NPS definition of natural quiet and implement NPS recommendations unless the FAA identifies a safety problem with the recommendation. In 1994, NPS determined that aircraft noise would be audible at three decibels above the average natural ambient sound level (a so-called "noticeability" standard). While the FAA initially believed substantial restoration had been met with the implementation of SFAR 50-2, an environmental evaluation of commercial air tour operations in the park in 1996 indicated that SFAR 50-2 had not achieved that goal. At that time, the noise assessment concluded that only 31% of the park experienced natural quiet for at least 75% of the day and that the percentage was likely to decline in the years to come without additional measures being taken. Based upon this assessment, in December 1996 the FAA issued a final rule that adopted the NPS definition and instituted additional operational restrictions for air tours, such as establishing new flight free zones, setting curfews that prohibited operation from sunset to sunrise, and limiting the number of aircraft that could be used to fly commercial air tours. At that time, we estimated that with these restrictions, in addition to the development and use of quiet technology, a substantial restoration of natural quiet would have been achieved by 2008. Unfortunately, the following year we determined that we had underestimated the number of air tour aircraft operating in the park, which resulted in the restrictions being less effective than had been predicted. After the publication of the 1996 final rule, the FAA was sued by both the Grand Canyon Trust and the Air Tour Coalition. The Grand Canyon Trust alleged that the government had not done enough fast enough and the Air Tour Coalition alleged that the government had done too much too soon. The Court found in favor of the government in this action. In 1999, NPS announced it was refining its methodology for assessing the noise impacts related to substantial restoration of natural quiet. NPS decided, after it had gathered additional data, that different thresholds of impact should be applied in different parts of the park: Zone One, approximately one-third of the park, would continue to apply an aircraft audible, or noticeability, standard – three decibels above the ambient sound level; and Zone Two, which is mostly the backcountry areas of the park, would have a "detectability" standard applied because visitors in these more remote areas are likely to be more active listeners who would be disturbed by aircraft noise. NPS data indicated that an active listener could detect aircraft noise at eight to eleven decibels below ambient noise levels. Consequently, NPS decided that the threshold for impact in Zone Two should be eight decibels below ambient noise levels. In January of 2000, the NPS issued a technical report on the Change in Noise Evaluation Methodology. This report suggested that quiet should be attained on “any given day” – a change from the standard used in the Environmental Assessment we had issued. In February 2000, FAA issued a Final Supplemental Environmental Assessment in which FAA continued as it had in previous assessments to use the “average annual day” to determine the percentage of the day that would be substantially restored to natural quiet. The assessment did not consider noise from aircraft other than air tour operators because such noise was considered to be minimal. On April 4, 2000, FAA issued an Airspace Rule, which modified flight paths over the park, and a Limitations Rule, which imposed a cap on the total number of commercial air tours that may be operated over the park. Based on the noise modeling in the environmental assessment, which reflected the NPS change in noise evaluation methodology, FAA and NPS concluded that everything we had done would result in approximately 43% of the park being restored to natural quiet. NPS was a cooperating agency, and concurred that the model we were using was appropriate. In May of 2000, FAA was sued by both the Air Tour Coalition and the Grand Canyon Trust. Both challenged the validity of the Limitations Rule. The Air Tour Coalition stated that the rule was unlawful for several reasons, including its reliance on what they believed was an improper change in the definition of natural quiet, and argued that the acoustic methodology was scientifically flawed. The Court of Appeals dismissed this challenge. The Grand Canyon Trust charged that the rule was unlawful because the FAA improperly altered the NPS definition of natural quiet by using an average day, rather than an any given day standard in our noise methodology, and because we failed to consider aircraft noise that came from aircraft other than those used by air tour operators. The Court of Appeals upheld this challenge and remanded the case to the FAA in order for the rule to be modified consistent with the court’s ruling. That decision was issued on August 16, 2002, less than two months ago. Obviously, the court decision will require NPS and FAA to reevaluate the issues that were remanded to us. FAA is trying to determine how to obtain noise data that includes aircraft other than air tour operators. Throughout our preparation of the Limitations Rule FAA and NPS agreed on the use of an average day standard. We are trying to work out whether we should analyze noise on an average day or any given day or against some other standard. Once NPS clarifies the “day” it intended for us to use, we will apply it. Until FAA and NPS survey the available data and FAA obtains guidance from NPS, FAA can only say that the percentage of the park that has achieved a substantial restoration of natural quiet ranges between 19% and 43%, depending on the methodology applied. A strict interpretation of “day” will almost certainly mean that to close the gap between where we are now and where we need to be will require placing additional operating restrictions on the air tour industry. As I have emphasized, NPS will determine the noise standard that is applied. The supplemental notice of proposed rulemaking on Noise Limitations for Aircraft Operations in the Vicinity of Grand Canyon National Park (proposing definitions of quiet technology) is undergoing executive review. While the implementation of a quiet technology designation will not by itself achieve substantial restoration of natural quiet in the park, we believe that the quiet technology standard is a vital component in the establishment of incentives and other mechanisms to achieve the goal. I do not underestimate the frustration this Committee feels about the fact that a statutory direction that was enacted in 1987 has yet to be fully implemented. This has been a challenging process in which the definition of success has evolved over time and the government has faced repeated legal challenges. The fact that substantial restoration of quiet has not yet been achieved does not mean that there has not been a significant reduction in aircraft noise at GCNP. The extent of our progress truly depends upon how it is measured. Our work will continue and I am confident that, in the end, visitors to the park will enjoy the experience envisioned by Congress and this Committee.
Mr. Alan Stephen
Mr. Chairman and members of the Committee, I am Alan R. Stephen, vice president of Grand Canyon Airlines, an air tour operator at Grand Canyon National park. I also serve as chief executive officer of Twin Otter International, Las Vegas, NV, a leasing company that produces deHavilland Twin Otter aircraft in “Vistaliner” configuration used widely for aerial sightseeing, particularly at Grand Canyon. The Vistaliner employs quiet aircraft technology that we developed in making the Vistaliner among the quietest air tour aircraft flying today. This hearing seeks testimony on the current rules and restrictions governing overflight of national parks and public lands. I would like to address that by speaking specifically first to the status of the rules at Grand Canyon and what impact these rules have had on the air tour business. Then I will address our thoughts on the process that is in place to manage air tours over national parks nationwide. Grand Canyon Overflight Regulations I have spent the better part of the past two decades seeking to preserve a meaningful air tour experience at Grand Canyon while I have staunchly advocated air tour regulations that reasonably protect Grand Canyon ground visitors from aircraft sounds. It is in that context I speak today in total frustration about how our government has long ago lost its way in developing fair air tour management rules. I first became involved in Grand Canyon overflight issues in the mid-1980’s. There was no special use airspace designated then by which air tour operators were regulated. Therefore individual operators were free to fly whatever routes at whatever altitudes they desired regardless of how those routes impacted sensitive visitor rim, trail, and river activities and the historical and cultural sites within and around Grand Canyon. The debate between the Park Service, environmental and native-American interests and the air tour industry on how to deal with overflights at the time was heated, unfocused and unending. That controversy was not good for air tour business because we were not perceived as good neighbors yet many in our industry felt that the flight restrictions that were being proposed would soon put them out of business. Despite that debate, some of us in the air tour business recognized that something had to be done. The companies with whom I am associated were the first in the industry to seek creation of a special use airspace over Grand Canyon. We recognized that it was necessary for air safety reasons to restrict the number of, and to provide for, separate routes for fix wing and helicopter operators, and to establish minimum operating altitudes and aircraft position reporting protocols. Importantly we felt that all air tours over Grand Canyon had to be regulated under the commercial aviation rules of Part 135 so operators would comply with commercial aviation standards for flight crew qualification and training. Under Part 135 and its power to bring certificate action, FAA could also enforce strict compliance with the Grand Canyon overflight regulations. Our companies recognized that there needed to be finality in the debate over aircraft sound impact. We actively supported the passage of legislation that had as its objective substantial restoration of natural quiet and visitor experience at Grand Canyon. I so testified before this Senate Committee then and it became law as the National Parks Overflights Act of 1987. The resulting air tour regulations at Grand Canyon are known today as special use airspace, “SFAR 50-2.” This rule has resulted in air tours being conducted for the past decade and a half in a safe and efficient manner for the confidence of the flying public. The route restrictions and establishment of flight-free zones have resulted in a stunning decline in visitor complaints over aircraft sound, from over 1,000 annually to about two dozen per year and that decline in noise complaints comes even as park visitation has doubled from 2.5 to about 5 million persons annually. Vast stretches of Grand Canyon are free today from air tour overflight and for the vast majority of Grand Canyon National Park visitors, air tour aircraft are inaudible. Unfortunately, that result has not satisfied the critics of air tours at Grand Canyon and debate over “substantial restoration” and “natural quiet” has raged on. Over the years there have been numerous public hearings, congressional inquiries, sound studies, policy determinations and rulemakings and I have participated actively in virtually all of them. Unfortunately these actions have resulted in ever more severe and I believe largely unwarranted air tour flight restrictions. Let me cite a few examples: · The most popular air tour route, Las Vegas to the Grand Canyon-South Rim, has been eliminated affecting 400,000 air tour passengers annually. · Curfews have been imposed on South Rim-originating air tours that are neither tied to the hours of sunrise and sunset or dates for observing daylight savings; meanwhile motorized raft trips are free to operate during periods of the day air tours cannot. · NPS would have the North Rim of Grand Canyon off-limits to air tours even though the North Rim is closed to ground visitors seven months per year because it is impassible due to snow. · Caps on operations have been imposed unrelated to historical levels of activity leaving my company, Grand Canyon Airlines, limited to less than half the number of air tour flights than it conducted a decade earlier and despite our use of quiet aircraft. Quiet aircraft technology to us has always been a key in permitting quality air tours over Grand Canyon to continue, while reducing air tour aircraft audibility to an acceptable level for most ground visitors. Quiet aircraft technology does not render any aircraft absolutely quiet and some of our critics are fond of saying so in opposition to quiet aircraft incentives. Yet, the flaw in such thinking is that the whole air tour regulatory scheme at Grand Canyon since 1987 has been that air tour restrictions have been applied without regard to how noisy or how quiet any particular air tour aircraft may be. We were particularly pleased…and hopeful…when this Senate Committee initiated legislation in 1999 to require NPS and FAA to define quiet aircraft and provide meaningful incentives for air tour operators of conventional aircraft to retrofit them with quiet aircraft technology. I am sure you are as acutely aware, as we are, that two and one half years after the President signed that legislation into law, all we have to show for quiet aircraft technology is a report to Congress from FAA that it cannot comply with your directive. This continuing debate over substantial restoration of natural quiet at Grand Canyon rages because each time the National Park Service sets out its definition, NPS inevitably changes that definition to ever lower thresholds of air tour sound detection. Even now, the noise modeling used by NPS at Grand Canyon has not been validated (by NPS’s own admission in the Federal Register Notice that established minus 8 dB below ambient for measuring natural quiet) nor are the regulations for air tour restrictions final. Instead the latest round of flight restrictions we have fought so hard over these past four years would be only interim measures until a final “Comprehensive Noise Management Plan” for Grand Canyon is developed. I am no expert in the science of sound. As a layman I suspect that as long as our aircraft are audible, no matter how quiet and far removed from the sites ground visitors frequent at Grand Canyon, we will NEVER satisfy the National Park Service and our environmental critics until air tours are eliminated entirely at Grand Canyon. This is particularly troubling to me because I remember my discussions with Senate and House committee chairs, Senator Dale Bumpers and Representative Bruce Vento regarding passage of the National Parks Overflight Act. I was assured that the legislation in no way was intended to put air tour operators at Grand Canyon out of business but that Congress had serious concerns over air tour flight safety and air tour aircraft sound it wanted FAA and NPS to address. Those problems were largely resolved by SFAR 50-2. Thus, its time to bring this matter to an end by adopting a set of reasonable and final air regulations based on real-world measurement of air tour aircraft sound and incentives for air tour operators to employ only quiet aircraft. National Parks Overflight Management President Clinton in 1996 signed an Executive Order directing the Departments of Interior and Transportation to develop a framework for regulating air tour activity over national parks nationwide. Wisely, these agencies recognized that the best chance for enacting such rules in a timely manner was to bring NPS and FAA together with aviation, environmental and native-American interests in developing such national air tour regulations. Thus the National Parks Overflight Working Group (NPOWG) was commissioned and I am proud that I was asked to serve as a member of that federal advisory committee. NPOWG worked because we all had a stake in the outcome of that process. Aviation members proposed that air tours nationwide be regulated using the Grand Canyon model: that air tours would be flown under FAA Part 135 rules and Operations Specifications that would prescribe tour routes, altitudes, and frequencies. Environmental and native-American interests brought to the table expertise regarding the mandate of the NPS to preserve and protect national park resources and sensitive historical and cultural sites within or adjacent to our national Parks. We all recognized that air tour regulation had to be developed in accordance with the National Environmental Protection Act (NEPA). We argued, but resolved, the matter of lead authority and cooperating authority of the Federal Agencies and what objectives were to be achieved in regulating national park air tours . Our sessions were fractious, but productive. We finally agreed that air tours over National Parks should be permitted, but not in all circumstances, and that air tours should be conducted in accordance with the reasons our national parks were established; to protect for future generations unimpaired their unique resources whether geological, biological, historical or cultural. The product of NPOWG, the “Air Tour Management Plan” (ATMP) process was not perfect, but we felt it was workable. We recommended that it become a matter of federal law and that the same interests, aviation, environmental and native-American, continue to have an advisory role in its implementation. Once again, this Senate Committee led the way in introducing that legislation and it too was signed into law two and one half years ago in the same legislation that provided for revitalizing our aviation infrastructure and directed FAA to adopt quiet aircraft incentives at Grand Canyon. Like we have proposed for so long as a solution in mitigating air tour sounds at Grand Canyon, NPOWG adopted strong language in support of quiet aircraft incentives as good public policy. Unfortunately, the Air Tour Management Plan process has yet to be implemented at any national park and we await publication of the final rules that will define what types of operations over National Parks will come under it. FAA and NPS have established the advisory group as Congress directed, the National Park Overflight Advisory Group (NPOAG), of which I am a member. In fact, I am leaving here immediately today to return to Grand Canyon to attend the second meeting of NPOAG being held tomorrow at which time I expect to learn what progress FAA and NPS have made in implementing the ATMP process. Throughout the nearly two decades I have spent representing the air tour industry, I have always felt that aerial sightseeing was an environmentally sensitive and appropriate manner for national park visitation. Air touring permits visitors to appreciate the unique reasons our national parks have been established by seeing often remote and/or inaccessible sites and features. Air tours are consistent with the NPS mandate to protect and preserve park resources impaired for future generations since air tour passengers impose no long lasting impact on, or demand for, park resources. Air tourists require no roads or trails, campsites or sanitation services, leave no garbage, pick no flowers and take no souvenirs. Although aircraft sound is the sole short-coming of air visitation, air tour sound is temporary and can be mitigated by choosing appropriate routes and altitudes so any associated sound impact is brief, if not virtually inaudible, for the vast majority of park ground visitors. That said, I recognize that there are times and places where air touring may not always be appropriate over national parks and public lands. I will continue to represent our industry’s interests but with a keen appreciation for the concerns of others over how air tours can have adversely affects if not regulated properly. You have my word that I will continue to be committed to seeing through those objectives for Grand Canyon and as we apply the ATMP process to other national park locations. Thank you for your interest in our testimony. I am pleased to answer any questions you may have.
Mr. Paul Hoffman
I wish to thank the committee for the opportunity to appear today to discuss the implementation of public laws regarding overflights of national parks. Since 1975 Congress has addressed the issue of aircraft overflights of national parks three times, with particular emphasis on Grand Canyon National Park. I would like to summarize for the committee the Department’s progress on implementing these laws both at Grand Canyon National Park and across the entire National Park System. Passed in January, 1975, Public Law 93-620, “The Grand Canyon National Park Enlargement Act”, requires the Secretary to determine whether aircraft overflights are likely to pose a threat to visitor safety and whether there is a "significant adverse effect to natural quiet and experience of the park.” If such threats are found, the Secretary has a responsibility to make recommendations to the Federal Aviation Administration (FAA) for any rules, regulations, or any other appropriate actions to mitigate these impacts. In accordance with Public Law 93-620, acoustic and sociological studies were completed and a public planning process was progressing. However, the studies and process were truncated by a mid-air collision between two air tour aircraft in 1986 and PL 100-91, the National Parks Overflights Act of 1987, was passed the following year. Section 3 of Public Law 100-91 specifically addressed the restoration of natural quiet at Grand Canyon National Park. Under this law, the Secretary is directed to submit recommendations to the Administrator of the FAA regarding “actions necessary for the protection of resources in the Grand Canyon from adverse impacts associated with aircraft overflights.” The Act requires the FAA to implement the recommendations of the Secretary without change unless the Administrator determines that implementing the regulation adversely affects aviation safety. The Department forwarded recommendations to the FAA in December, 1987, which became part of Special Federal Aviation Regulation 50-2 (SFAR 50-2). The regulation, which became effective in September, 1988, established fixed routes, altitudes for air tours, and flight-free zones. Public Law 100-91 also required the National Park Service (NPS) to submit a report to Congress on whether the FAA's SFAR 50-2 “has succeeded in substantially restoring the natural quiet in the park," and to suggest revisions to the regulation. The National Park Service conducted extensive acoustical and sociological research between 1989 and 1993 to meet this requirement. The NPS submitted a Report on Effects on Aircraft Overflights on the National Park Service to Congress on September 12, 1994. The report to Congress recommended many revisions to SFAR 50-2 to substantially restore natural quiet at Grand Canyon National Park. FAA Final Rules (1996) established reporting requirements, changed airspace restrictions and routes for air tours, capped the number of aircraft authorized for air tours at Grand Canyon, and set curfews for air tours in the eastern Canyon. Some of the airspace and route changes were implemented, while others were deferred in order to permit further discussions with DOI on proposed new routes and further consultation with Indian tribes bordering the Park. The 1996 Final Rule has been the subject of several legal challenges that were unsuccessful. Title VIII of P.L. 106-181, the National Parks Air Tour Management Act, addresses the management of aircraft overflights for the entire National Park System. Specific provisions for Grand Canyon National Park affirm the requirement to achieve substantial restoration of natural quiet. In addition, it requires a definition of “quiet aircraft technology” and the creation of quiet aircraft technology incentive routes, provided these routes would not negatively impact substantial restoration of natural quiet, Native American lands, or safety. Litigation on the two FAA Final Rules issued in 2000 was filed by the U.S. Air Tour Association (USATA) and an environmental coalition led by the Grand Canyon Trust. The USATA sought to have the flight caps rule set aside largely for procedural reasons. The environmental coalition asked the court to order the FAA to follow the wording of P.L 100-91, and use the annual peak day, rather than average annual day, in modeling the achievement of substantial restoration of quiet. Use of annual peak day levels sets a higher standard, which means that summer visitors, and visitors on any day, will experience substantial restoration of natural quiet. In August, 2002, the U.S. Court of Appeals issued a decision regarding the suit filed by the USATA which had two significant outcomes. The court held that the use of an annual average day for measuring “substantial restoration of the natural quiet” appears inconsistent and remanded the issue to the agencies for further consideration and clarification. Second, the court concluded that exclusion of non-tour aircraft from the noise-model was arbitrary and capricious and must also be reconsidered by the agencies. The courts ruled in favor of the NPS as the appropriate agency to set the goal for substantial restoration of quiet. The NPS has determined that having 50% of the park quiet for 75% of the time would meet the goal of having substantial restoration of quiet in the Grand Canyon National Park. Various factors impact the attainment of this goal, including the choice of acoustic model, whether average day or peak day measurements are used, and which sound data are used for modeling aircraft noise. The NPS is currently reviewing the impacts of these factors. The FAA and NPS are jointly funding a computer model validation study at Grand Canyon National Park. The study compares modeling results with field acoustic observations to determine the degrees of accuracy and precision that existing computer models provide. The study compares models developed by the FAA, NPS, and the U.S. Air Force and National Aeronautical and Space Administration. A Technical Review Committee (TRC), a panel of internationally recognized experts in acoustics and experimental research design, has provided their technical expertise to validate the research methodology and review study results. It is expected that the revised report will be available to the public in the fall of 2002. Regarding the nationwide implementation of the National Parks Air Tour Management Act of 2000 (P.L. 106-181), we continue to work closely with the Federal Aviation Administration in many ways to implement the Air Tour Management Plan provisions that would establish a requirement of an air tour management plan for all commercial air tour operations over national parks to mitigate or prevent any significant adverse effects on natural and cultural resources, park visitors or affected tribal lands. The FAA has been working through the process of developing regulations to implement provisions of the National Parks Air Tour Management Act with some delay resulting from the change in Administration. Consistent with the Administration’s objective in encouraging interagency collaboration in these matters, the Department of the Interior is working with the Department of Transportation to establish cooperative procedures for the preparation of the Air Tour Management Plans. With respect to Grand Canyon National Park, use of an Alternative Dispute Resolution process is currently under consideration as a vehicle for reaching collaborative agreement on the best way to restore natural quiet and to retain the opportunity for the public to enjoy the park via air tours. Thank you, Mr. Chairman, for this opportunity to testify and we would be most happy to answer any questions the Committee may have for us.
Mr. Tom Robinson
Thank you Senator McCain, Senator Hollings, Senator Rockefeller, Senator Hutchison, and other members of the Senate Commerce, Science and Transportation Committee for the opportunity to testify on the status of the effort to restore the precious resource of natural quiet to a place that was once thought of as one of the quietest places on earth, the Grand Canyon. My testimony today is intended to send three messages. The first message is to the FAA and the NPS, which are responsible for restoring natural quiet to the Grand Canyon. Fifteen years is way too long. We should not have to rely on litigation to move this process forward. The Federal Appeals Court for the District of Columbia, in its landmark August opinion, has demonstrated that it, too, has lost patience with this process and will not tolerate further delay or any effort by the NPS and the FAA to weaken the planning process or the effort to include meaningful science in this process. The second message is to our elected representatives responsible for overseeing the NPS and the FAA. Your continued oversight will be necessary to ensure that these two agencies, with very different missions, finally move beyond their dysfunctional working relationship. Finally, the last message is to the air tour industry. The legal uncertainty that has clouded this process is now behind us and the parameters have been set. It is now time to work together. The FAA and the National Park Service need our help as they both search for creative solutions and at the same time face some very difficult decisions. The Work Ahead of Us On May 1, 2002, the FAA and the Park Service were to have completed a comprehensive noise management plan for the substantial restoration of natural quiet in the Grand Canyon. This plan was promised in the 1996 Final Rule Preambles (from Federal Register, Dec. 31, 1996, Vol. 61, No. 252 at pages 69328 and 69329). The rule states that. . . “on May 1, 2002, we are supposed to move clearly from the 5-year “interim” phase to a “plan implementation”. . .phase. This was to have been the core plan by which “real improvements” were to have been sequenced and quantitatively assessed for achieving the final April 2008 restoration of natural quiet deadline for the Grand Canyon. Unfortunately, this plan has not yet been developed and it will most likely require at least two years before such a plan reaches an “operative” stage. During the past three plus years, the FAA has failed to input, and aggregate for analysis, any of the quarterly reports covering a quarter million tour operations. The reports of individual operators have simply piled up in boxes in the FAA's Las Vegas FSDO office. Thus, the FAA has no up-to-date record of air tour trends and/or noise impacts for any day, season, or other period during the past three plus years. This lack of analysis guarantees that the two-year trial term for the cap on flight operations cannot be reviewed. It also guarantees that the FAA cannot evaluate “flight congestion” as promised in the rule, as a matter of safety. This data is absolutely critical to computing the noise and the “percent substantially restored.” Another missing component is the noise model validation report and conclusion, which is based on sound monitoring studies at Grand Canyon National Park in the fall of 1999. Originally, this should have been prepared by spring 2000 to ground-truth the currently used model. However, the Park Service did not receive the final report from the contractor (HMMH) until June 5, 2002. Without this, there can be no determination about the noise levels. The release of this report will be a milestone in the scoring of substantial restoration. Late September of 2002 was the target date for the much-delayed “East End Routes”, which should have been developed in 1997. Most of the noise impact from air tours is experienced in the backcountry, on the rims, and along the river at this end of the park. Further progress is needed here if substantial restoration is to be achieved. Finally, there are still no “quiet technology” (noise efficiency) specifications and/or rule. Although quieter helicopters and airplanes will not, in themselves, solve the noise problem, they are key ingredients. Because developing quieter technology is an expensive undertaking, companies want regulatory certainty before they make the financial investment in quieter helicopters and fixed wing aircraft. According to the May issue of Rotor and Wing magazine, “the quiet in quiet helicopters is nothing if not easier and cheaper to promote than to achieve. . . every new decibel down costs much more than the last. . .it's a very expensive proposition.” I would like to conclude my testimony with a quote from Arizona's largest newspaper. “The canyon is anything hut quiet. It's not even close to the tranquility that Congress envisioned for a meaningful experience for visitors... Fifteen years is much too long to wait for a quieter park and a richer experience.” Arizona Republic, August 20, 2002