[Federal Register Volume 73, Number 69 (Wednesday, April 9, 2008)]
[Notices]
[Pages 19246-19248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7410]
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DEPARTMENT OF THE INTERIOR
National Park Service
Public Notice: Clarifying the Definition Of ``Substantial
Restoration of Natural Quiet'' at Grand Canyon National Park, Arizona
AGENCY: National Park Service, Department of the Interior.
ACTION: Public Notice: Clarifying the definition of ``substantial
restoration of natural quiet'' at Grand Canyon National Park.
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SUMMARY: This notice clarifies the definition used by Grand Canyon
National Park (GCNP) for achieving substantial restoration of natural
quiet as mandated by the 1987 Overflights Act (Pub. L. 100-91)
(Overflights Act). This clarification of the definition is necessary to
address current acoustic conditions to comply with the intent of
recommendations provided in the 1995 Report to Congress,\1\ and respond
to a 2002 U.S. Court of Appeals decision. The provisions of the Special
Flight Aviation Regulation (SFAR) 50-2 have not resulted in substantial
restoration of natural quiet of GCNP. Given the volume of high altitude
commercial jet and general aviation traffic overflying the Grand Canyon
above 17,999 feet Mean Sea Level (MSL) and a recent court decision, the
substantial restoration goal as currently defined cannot be attained.
This clarification of the restoration definition, while focusing on air
tour and air tour related and general aviation aircraft that are
conducting overflights of GCNP at altitudes at or below 17,999 MSL,
also incorporates measures to address noise from all aircraft. The 1995
definition of substantial restoration of natural quiet is being
clarified to distinguish between aircraft noise generated above and
below 17,999 feet MSL. The Special Flight Rules Area (SFRA) ceiling was
set at 17,999 MSL to avoid additional requirements, restrictions and
[[Page 19247]]
regulations that occur at or above 18,000 MSL.
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\1\ National Park Service, (1995) Report of Effects of Aircraft
Overflights on the National Park System, Report to Congress, July
1995.
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GCNP and the Federal Aviation Administration (FAA) are currently
engaged in the preparation of an environmental impact statement (EIS)
entitled ``Special Flight Rules Area in the Vicinity of Grand Canyon
National Park.'' GCNP, in consultation with the FAA, has determined in
the noise methodology section of the EIS that aviation noise above
17,999 feet MSL will be considered as a cumulative impact for purposes
of the EIS, and aircraft noise generated at or below 17,999 feet MSL,
within the Special Flights Rules Area (SFRA) will be managed to attain
the NPS recommendations and meet restoration management objectives
consistent with GCNP management direction, 2006 NPS Management
Policies, and the 1995 Report to Congress.
The NPS proposes the following clarification to the definition of
substantial restoration of natural quiet.
(a) Substantial restoration of natural quiet at GCNP will be
achieved when the reduction of noise from aircraft operations at or
below 17,999 feet MSL results in 50% or more of the park achieving
restoration of the natural quiet (i.e., no aircraft audible) for 75%
to 100% of the day, each and every day; and
(b) The NPS defines the substantial restoration of natural quiet
from all aircraft above 17,999 feet MSL, to mean that there will be
an overall reduction in aviation noise generated above 17,999 feet
MSL above the park over time through the implementation of measures
in accordance with FAA commitments.
The NPS also clarifies that 50% of GCNP is a minimum in the
restoration goal. This includes not only the impacts of aircraft noise
on the soundscape but the impact of noise on the visitor experience and
natural, cultural and historic resources for the entire park. The
analysis of noise impacts in the overflights EIS will be based on the
defined substantial restoration goal, park values and purposes, and the
GCNP General Management Plan land zoning objectives and overall park
management objectives.\2\ NPS has deferred the assessment of aviation
safety to FAA's jurisdiction. Both agencies have agreed to consider the
noise from all aircraft in the ongoing ETS and planning process.
Further, both agencies have agreed to consider reducing aircraft noise
over the park in the future from aircraft operating above 17,999 feet
MSL over the SFRA, while removing aircraft operations above 17,999 MSL
from direct regulation in this action. This notice seeks public comment
on the clarification of the NPS definition of substantial restoration.
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\2\ National Park Service (1995) General Management Plan for
Grand Canyon National Park.
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DATES: This notice will be on public review for 30 days, May 9, 2008.
ADDRESSES: If you wish to comment, you may mail or hand deliver
comments to the name and address below or comment online via http://parkplanning.nps.gov/grca (select ``Substantial Restoration
Clarification''). Comments must be received within 30 days from the
date of this printing. You may also view a copy of this clarification
through the Internet at: http://www.nps.gov/grca/naturescience/soundscape.htm.
FOR FURTHER INFORMATION CONTACT: Ken McMullen, Overflights and Natural
Soundscape Program Manager, Grand Canyon National Park, 823 N. San
Francisco St., Suite B, Flagstaff, Arizona 8600l National Park Service,
Grand Canyon NP, Telephone: (928) 779-2095.
SUPPLEMENTARY INFORMATION:
Background
This notice is one of several steps being taken by the Secretary of
the Interior (SOI), through the NPS, and the FAA to fulfill the mandate
established by Congress in PL 100-91, the Overflights Act, to provide
for the substantial restoration of natural quiet in Grand Canyon
National Park. Section 3 of the Overflights Act mandated the SOI to
submit to the Administrator of the FAA recommendations ``regarding
actions necessary for the protection of resources in the Grand Canyon
from adverse impacts associated with aircraft overflights.'' The
express statutory goal for these recommendations is the ``substantial
restoration of natural quiet and experience of the park and protection
of public health and safety from adverse affects associated with
aircraft overflight.'' The Overflights Act requires the FAA
Administrator to adopt the recommendations of the SOI ``without change
unless the Administrator determines that implementing the
recommendations would adversely affect aviation safety.''
Congress did not define natural quiet or substantial restoration of
natural quiet and, instead, delegated the interpretation of the statute
to the Secretary. Under well established rules of statutory
construction, the agency's interpretation is given deference so long as
it is based on a reasonable construction of the statute. The D.C.
Circuit Court of Appeals found that the NPS had reasonable
justification for its interpretations of natural quiet and substantial
restoration of natural quiet, as set forth in the 1995 Report to
Congress. (See Grand Canyon Air Tour Coalition v. FAA, 154 F.3d 455
(D.C. Cir. 1998)).
In its 1995 Report to Congress the policy decision of the NPS was
that substantial restoration requires that 50% or more of the park
achieve natural quiet (i.e. no aircraft audible) for 75-100% of the
day. The NPS provided definitions of terms used, as well as rationale
for its noise impact assessment methods in ``Review of Scientific Basis
for Change in Noise Impact Assessment Method Used at Grand Canyon
National Park,'' 2000.\3\ In the review, the NPS defined one parameter
of substantial restoration of natural quiet to be ``* * * a threshold
not to be exceeded on any given day * * * .'' In 2002, the definition
of substantial restoration of natural quiet and the FAA's noise
methodology in the 2000 Final Supplemental Environmental Assessment was
addressed in litigation before the D.C. Circuit Court of Appeals, in
the case United States Air Tour Association v. FAA, 298 F.3d 997 (D.C.
Cir. 2002). In this case, the Court declared that `` * * * the Park
Service is entitled to deference for its interpretation of its own
definitions.'' The Court concluded ``* * * the FAA's use of an
``average annual day'' for measuring `substantial restoration of
natural quiet' appears inconsistent with both the Park Service's
definition of the term and with the premise upon which that definition
was based. * * * We must therefore remand this issue for further
consideration.'' In response to the court decision, the term ``the
day'' was clarified by the NPS in the November 7, 2003 Federal Register
Notice (68 FR 63129-63130) to mean ``each and every day.''
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\3\ National Park Service, (2000) Review of Scientific Basis For
Change in Noise Impact Assessment Method Used at Grand Canyon
National Park. January 2000.
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The D.C. Circuit Court of Appeals also found that the FAA's noise
methodology was flawed because it only accounted for noise from
commercial air tours, while ignoring noise from other types of aircraft
(commercial jets, general aviation, and military flights). The court
further stated that the Overflights Act did not provide any basis for
ignoring noise caused by such aircraft and in the absence of any
reasonable justification for excluding non-tour aircraft from its noise
model, the court concluded that this aspect of the FAA's methodology
was arbitrary and capricious and required reconsideration by the
agency.
Reasons for the Clarification
Based on the 2002 D.C. Circuit Court of Appeals decision, as well
as review
[[Page 19248]]
of Congressional intent, aircraft noise levels, and national airspace
safety and efficiency, this clarification of the restoration definition
is necessary to address the noise of all aircraft while distinguishing
how the substantial restoration of natural quiet will be achieved at
and below 17,999 feet MSL within the Special Flight Rules Area (SFRA)
and above the SFRA. The NPS recognizes that due to the impacts of
aviation noise on park resources and the visitor experience, even with
implementation of quiet technology aircraft, restoration of the natural
quiet as defined in the 1995 Report to Congress will not be achieved
without reduction of the sounds produced by jet traffic above 17,999.
The 1995 Report to Congress concluded that SFAR 50-2 had not
resulted in substantial restoration of natural quiet in Grand Canyon
National Park and continued growth in air traffic may diminish or
negate progress to date. The report looked at air tour, military,
general aviation and high altitude commercial overflights and found
that the major aircraft noise impacts on natural quiet came from air
tour activity and high flying commercial jet traffic. Low flying
general aviation and military overflights were thought to contribute
little to the overall aircraft noise impacts. As discussed in the
Report to Congress, high altitude jets were known to be a noise issue
that the FAA needed to address. In particular it was recommended in the
report that (1) FAA not authorize any deviations from normal high
altitude routes for sight-seeing purposes; (2) FAA not authorize
deviations from normal flight plans and cruising altitudes over the
Grand Canyon for other than safety reasons; and (3) that FAA conduct a
study on high altitude commercial jet routes that may also have impacts
on natural quiet in the park. Consequently, subsequent regulations
focused on the regulation of air tour and related operations.
In 2005 and 2006, the GCNP initiated a soundscape monitoring and
data collection effort to verify the accuracy of the earlier acoustic
science and methodologies used since the early 1980's (see discussion
in 64 FR 38006-38007) and to determine the natural ambient conditions
for most of the park area. NPS noise modeling results predicted that
over 96% of the park area had aircraft noise audible for over 25% of
the 12-hour day; however, there were notable differences between air
tour aircraft flying at lower altitudes within the SFRA and high
altitude (primarily commercial) aircraft flying above the SFRA. Low
flying air tour aircraft generated more noise at ground level, but
could meet the threshold of the substantial restoration goal. Higher
altitude aircraft generated lower levels of noise at ground level, but
produced broader areas of audibility. The broader geographic coverage
of audibility of high altitude aircraft noise made achieving the NPS
percentage goals of substantially restoring natural quiet to the Grand
Canyon unattainable from a practical standpoint, no matter how few air
tour and general aviation operations occurred within the SFAR and over
the park. GCNP noise monitoring results in 2005 supported the model
predictions. The time jet aircraft (above 17,999 feet MSL) were audible
ranged between 22% and 35% of the day at four sites in remote
backcountry locations.\4\ These results are similar to those reported
by Harris Miller Miller and Hanson, Inc. in 2004 where the average
percentages of time high altitude jet traffic were audible was
34.4%.\5\
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\4\ National Park Service (2007) Report on Winter Ambient Sound
Levels in Grand Canyon National Park, Report No.GRCA-07-02.
\5\ Ross, J., Menge, C., and Miller. N.P. (2004) Percentage of
time jet aircraft are audible in Grand Canyon National Park. Harris
Miller Miller and Hanson, Inc., For NPS-HMMH Job No. 295860.044).
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In 2006, the FAA retained MITRE Corporation CAASD to conduct a
study on the feasibility of implementing a flight free zone over the
heart of GCNP for flights above 17,999 feet MSL, and adjusting traffic
routes that would avoid a large and very important portion of the Grand
Canyon. The unpublished study titled ``Impact from Restricting Flights
From Grand Canyon Airspace'' \6\ determined that ``routing of
commercial aviation would have a significant impact on the users of the
airspace, would add thousands of extra miles and flying minutes to the
routes, and safety of the airspace and operation would be negatively
impacted through increased complexity and risks.'' From the results of
the MITRE study, the FAA determined that a flight free zone for high
altitude aircraft over the Grand Canyon would adversely affect the
safety and efficiency of the national airspace system.
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\6\ Abrahamsen, T.R., Marani. G.F., and Bearer, R., (2006)
Impact on Restricting Flights From Grand Canyon Airspace. The MITRE
Corporation CAASD for the Federal Aviation Administration and
National Park Service, Report No. F063-B06-050, Presented to the
Grand Canyon Working Group, September 2006.
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Based on the data provided through the various NPS studies and the
MITRE report, the NPS acknowledges that the definition of substantial
restoration of natural quiet needs clarification to distinguish the
goals within and above the SFRA, while at the same time considering the
noise from all aircraft in order to comply with the Overflights Act and
the 2002 D.C. Circuit Court of Appeals decision.
This notice clarifies that through the application of law and
policy, the NPS is clarifying that ``(a) Substantial restoration of
natural quiet at GCNP is achieved when the reduction of noise from
aircraft operations at or below 17,999 feet MSL results in 50% or more
of the park achieving restoration of the natural quiet (i.e., no
aircraft audible) for 75% to 100% of the day, each and every day; and
(b) the NPS defines the substantial restoration of natural quiet, from
all aircraft above 17,999 feet MSL, to mean that there will be an
overall reduction in aviation noise generated above 17,999 feet MSL
above the park over time through the implementation of specific
measures in accordance with commitments made by FAA to the NPS. The NPS
also clarifies that 50% of the park is a minimum in the restoration
goal.
Dated: January 16, 2008.
Hal J. Grovert,
Acting Regional Director, Intermountain Region, National Park Service.
[FR Doc. E8-7410 Filed 4-8-08; 8:45 am]
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