Federal Register, Volume 77 Issue 130 (Friday, July 6, 2012)

[Federal Register Volume 77, Number 130 (Friday, July 6, 2012)]
[Rules and Regulations]
[Pages 39911-39921]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16667]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 93

[Docket No. FAA-2010-0302; Amdt. No. 93-97]
RIN 2120-AJ75

The New York North Shore Helicopter Route

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action requires helicopter pilots to use the New York
North Shore Helicopter Route when operating along the north shore of
Long Island, New York. The North Shore Helicopter Route was added to
the New York Helicopter Route Chart in 2008 and prior to this action,
its use has been voluntary. The purpose of this rule is to protect and
enhance public welfare by maximizing utilization of the existing route
flown by helicopter traffic one mile off the north shore of Long Island
and thereby reducing helicopter overflights and attendant noise
disturbance over nearby communities. This rule will lapse in 2 years
unless the FAA determines that a permanent rule is merited.

DATES: Effective August 6, 2012 through August 6, 2014.

ADDRESSES: For information on where to obtain copies of rulemaking
documents and other information related to this final rule, see ``How
To Obtain Additional Information'' in the SUPPLEMENTARY INFORMATION
section of this document.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning
this rule contact Gary A. Norek, Airspace, Regulations and ATC
Procedures Group, AJV-11, Federal Aviation Administration, 800
Independence Avenue SW., Washington, DC 20591; telephone 202-267-8783.
For legal questions concerning this rule contact Rebecca MacPherson,
AGC-200, Office of Chief Counsel, Federal Aviation Administration, 800
Independence Avenue SW., Washington, DC 20591; telephone 202-267-3073.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

The FAA has broad authority and responsibility to regulate the
operation of aircraft, the use of the navigable airspace and to
establish safety standards for and regulate the certification of
airmen, aircraft, and air carriers. (49 U.S.C. 40104 et seq.,
40103(b)). The FAA's authority for this rule is contained in 49 U.S.C.
40103 and 44715. Under section 40103, the Administrator of the FAA has
authority to ``prescribe air traffic regulations on the flight of
aircraft (including regulations on safe altitudes) for * * * (B)
protecting individuals and property on the ground. (49 U.S.C.
40103(b)(2)). In addition, section 44715(a), provides that to ``relieve
and protect the public health and welfare from aircraft noise,'' the
Administrator of the FAA, ``as he deems necessary, shall prescribe * *
* (ii) regulations to control and abate aircraft noise * * *''

I. Executive Summary

In response to continued concerns from a large number of local
residents who are disturbed by the level of noise from helicopters
operating over Long Island, the FAA adopts this final rule, as
proposed, to require helicopter pilots whose route of flight takes them
over the north shore of Long Island to fly the North Shore Helicopter
Route. This route is based on a voluntary route that the FAA
established in 2008. The route is published on the New York Helicopter
Route Chart. This rule also provides that when necessary for safety,
weather, or when transitioning to or from a point of landing, a pilot
may deviate from the published altitudes and routes. This action is
part of an on-going process to enhance public health and welfare by
reducing helicopter noise for residents along the north shore of Long
Island.
The FAA believes this rule is justified for several reasons.
Maximizing the utilization of the existing route by making it mandatory
is expected to help to further decrease levels of noise that have
already been voluntarily achieved. Because the route is approximately
one mile off the northern shore of Long Island and away from the
residential communities on Long Island that are the source of hundreds
of comments supporting the rule, it should not in itself cause any
environmental harm. Other than necessary deviations or transitions, the
noise from the helicopters would be over water, and there is no
evidence of any significant

[[Page 39912]]

effect of the rule on water quality, ecological resources, or other
aspects of the environment.
The rule fully addresses any safety concerns by beginning the route
at a point that minimizes interaction with LaGuardia's airport traffic,
and allowing deviations at the pilot's discretion for safety and
weather concerns.
Since the extra distance traveled is relatively minor to get to and
return from the approximately one-mile offshore route, the costs for
fuel and extra time would also be minimal. In addition, no new
equipment is required.
The FAA has noted five circumstances, the combination of which is
likely unique to Long Island, that support using our statutory
authority to move forward with a final rule.
1. Because Long Island is surrounded by water, it was possible to
develop a route that took helicopters a short distance off the
shoreline. Thus, the North Shore Helicopter Route does not adversely
affect other communities and operators can use the route without
significant additional costs.
2. There are disproportionately more multi-engine helicopters
flying in Long Island than the national averages (approximately 65%
versus 10-15% nationally.) This allows for greater use of the off-shore
route.
3. There are visual waypoints along the route that allow pilots to
fly along the route with no additional equipment during good weather.
4. The helicopter traffic along the north shore of Long Island is
largely homogenous, in that it is primarily point-to-point transit
between New York City and the residential communities along the
northern and eastern shores of Long Island.
5. The population corridor along the north shore of Long Island is
significant, and coupled with the number of airports/heliports on the
island, the FAA found it reasonable to develop a route to mitigate
noise impacts.
Since a voluntary route already exists, the only available
remaining option to further abate this noise problem is to make the
route mandatory to the extent consistent with aviation safety. In light
of the minimal costs imposed and the substantial number and volume of
complaints, the FAA finds that this rule is justified. However, the FAA
recognizes that there may already be a high rate of compliance with the
voluntary route and that it is imprudent to mandate that all
helicopters follow the route under all circumstances. Accordingly, it
is possible that the actual rates of compliance may not improve
significantly or that noise levels that are currently dispersed may
inadvertently be concentrated as a result of the rule. Consequently,
the FAA has decided to sunset the rule in 2 years in the event the
agency concludes that the rule does not reduce or alleviate noise
concerns or is otherwise unjustified. During the time that the rule is
in effect, the FAA will continue to review and monitor the
implementation of this rule and work with stakeholders to ensure that
the rule addresses the problem and is otherwise justified; if not, the
FAA will allow the rule to lapse at the end of 2 years. Alternatively,
the FAA may amend the rule to implement meaningful changes should they
be identified.

II. Background

A. Statement of the Problem

Helicopter traffic between New York City and eastern Long Island
has traditionally followed one of three paths. The helicopters fly
along the north shore of Long Island and then travel to the south to
the intended destination; they travel across the middle of the island
along the Long Island Expressway until branching off to the
destination; or they travel along the south shore of Long Island and
then turn inland to the final destination. Many of the helicopters take
off or land in the Hamptons. There are two airports and a helipad that
service the Hamptons. Other operators take off or land at one of the
many other airports or heliports throughout the island. There are no
airports and very few heliports along the north shore of Long Island.
Accordingly, one might think that operators would prefer to travel
along the south shore or along the Long Island Expressway. In fact,
many operators prefer to travel along the north shore of Long Island
and then travel inland to the desired landing spot. This is because
this is a faster route and because at some locations, most notably the
Hamptons, weather delays are common for aircraft approaching from the
south.
In October 2007, Senator Charles Schumer and Representative Tim
Bishop conducted a meeting with the FAA, local helicopter operators and
airport proprietors to specifically address noise complaints stemming
from helicopter operations along the north shore of Long Island. As a
result of this meeting, the FAA designed a visual flight rules (VFR)
helicopter route, the North Shore Helicopter Route, for helicopters to
use when transiting the area that would reduce the noise impact of
helicopter traffic on populated areas by having these operations
offshore.
The FAA published the route on the Helicopter Route Chart for New
York, effective May 8, 2008. Subsequently, New York public officials
advised the FAA that they continue to receive noise complaints in this
area even with the voluntary North Shore Helicopter Route in place. The
local FAA Flight Standards District Office has also received similar
complaints.
Uniqueness of the Situation
There are a number of unique characteristics that, taken together,
made development of an alternative over-water route along the north
shore of Long Island appropriate and feasible and consistent with the
FAA's safety mandate. First, because Long Island is surrounded by
water, it was possible to develop a route that took helicopters a short
distance off the shoreline. Thus, the North Shore Helicopter Route does
not negatively impact other communities, and operators can use the
route with minimal additional costs. Second, the fleet mix in Long
Island consists of significantly more multi-engine helicopters than the
national mix, allowing more operators to use the route. There are
limits on the distance certain helicopters can prudently operate from
shore without being equipped for overwater operation. Unlike fixed wing
aircraft, helicopters are not able to glide in the event of total loss
of power for any significant distance. Thus, pilots of single-engine
rotorcraft not equipped for overwater operation need to operate close
to shore so they can land safely in the event of a loss of power.
Nationally, the vast majority (roughly between 85 and 90 percent) \1\
of helicopters have only one engine. However, the FAA believes that
about two-thirds of commercial helicopters flying from New York City to
Long Island are multi-engine helicopters, while about one-third of the
helicopters being used for this purpose have only one engine.\2\ Thus,
the need to stay close to land is less of an issue along the North
Shore than it would be in other areas of the country where the number
of single-engine helicopters is significantly greater. This highly

[[Page 39913]]

unusual situation allows us to implement an inexpensive alternative
that should effectively and safely address the considerable complaints.
Third, there are visual waypoints along the route that allow pilots to
fly along the route with no additional equipment during good weather.
While many pilots use Global Positioning System (GPS) coordinates to
track a portion of the route, they are not required to do so. Fourth,
the helicopter traffic along the north shore of Long Island is largely
homogenous, in that it is primarily point-to-point transit between New
York City and the residential communities along the northern and
eastern shores of Long Island. Unlike helicopter traffic in urban
areas, where the destination points and reasons for using a helicopter
diverge widely (e.g., news reporting, aerial traffic updates, as well
as point-to-point transit), the nature of helicopter traffic over and
along the North Shore lends itself to the development of a single route
that could be used consistently. Finally, the population corridor along
the north shore of Long Island is significant, and coupled with the
number of airports/heliports on the island, the FAA found it reasonable
to develop a route to mitigate noise impacts.
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\1\ A review of the Registry database indicated that
approximately 90 percent of all registered helicopters have a
single-engine. A review of the 2010 GA survey indicated that
approximately 85 percent of the active helicopter population is
single-engine. The discrepancies in the two data sets are a function
of filters in the survey that are designed to focus on helicopters
that are actively flown.
\2\ See Eastern Region Helicopter Council Operations Analysis--
Suffolk County, Memorial Day Weekend 2010, June 23, 2010, Docket No.
FAA-2010-0302-0898.
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Safety Implications
In developing this route, the FAA considered the potential safety
implications associated with helicopters flying in VFR conditions off
the coastline and the interaction with other traffic at or above the
specified minimum altitude. The route begins approximately 20 miles
northeast of LaGuardia in order to minimize interaction of the traffic
operating to or from that airport.
Community Involvement
The FAA, airport sponsors, state and local government, aircraft
operators, and local communities all have a role to play in reducing
aircraft noise. Community noise concerns about aircraft overflights are
uniquely local in nature and are best resolved in a voluntary manner,
at the local level, and with the participation of all affected parties.
In this instance, local participation was crucial to the development of
the voluntary route. Based on the number of complaints and public
comments to the proposed rule, the local effort, while successful in
many regards, has not fully resolved community annoyance with
helicopters flying over homes in northern Long Island.
The FAA's experience with aircraft noise has shown that community
flight path preferences vary significantly; some communities prefer to
concentrate noise over a particular area while others prefer to
disperse the flight paths so that individual neighborhoods experience
less noise overall. Thus, the FAA's policy is to respond to requests
for noise abatement flight procedural changes from airport sponsors and
to encourage the development of such proposals through the FAA's
Airport Noise Compatibility Program established under the Aviation
Safety and Noise Abatement Act of 1979.
Future Technology
While helicopter noise appears to have recently roused the greatest
number of noise complaints, over time helicopters will incorporate
better technology and become less noisy. The FAA is developing rules to
impose more stringent noise standards for all new rotorcraft models
being certificated. As these quieter aircraft are built and
incorporated into the fleet, noise levels associated with helicopter
operations should correspondingly decrease.\3\
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\3\ Should the FAA decide against allowing the rule to sunset,
we may evaluate the affected fleet as the quieter technologies are
incorporated into the helicopter fleet as a whole and may reevaluate
the continued need for a mandatory route if the majority of affected
helicopters have the quieter engines.
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However, these standards are not yet in place. Given the existence
of a voluntary route that reduces noise to some extent, the only
available remaining option to further abate this noise problem is to
require utilization of the route to the extent consistent with aviation
safety.

B. Summary of the NPRM

On May 26, 2010, the FAA published the NPRM titled ``The New York
North Shore Helicopter Route'' (75 FR 29471). The FAA proposed
requiring civil helicopters operating along Long Island, New York's
northern shoreline to utilize the published New York North Shore
Helicopter Route between the fixed waypoint Visual Point Lloyd Harbor
(VPLYD) and Orient Point. Specifically, the mandatory portion of the
route begins at a waypoint 20 miles northeast of LaGuardia Airport
(LGA) and near Huntington, NY; remains approximately one mile offshore,
extends to the eastern end of Long Island; and terminates at Orient
Point, near the eastern edge of Long Island. Helicopters operating on
this route would have to remain at or above 2,500 feet mean sea level
(MSL). The proposal contemplated helicopter pilots would deviate from
the published altitude and route under several conditions. The
conditions take into consideration the wide variety of helicopters,
their associated performance and mission profiles, the dynamic weather
environment along the route, and the pilot's responsibility to conduct
safe operations at all times. The proposal also contemplated allowing
operators to deviate from the route in order to reach their final
destination.\4\ The comment period closed on June 25, 2010.
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\4\ While the route extends to Orient Point, it is unlikely that
many operators would stay on the route that long because Orient
Point is located at the far eastern point of the island, well east
of any significant population centers.
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C. General Overview of Comments

The FAA received approximately 900 comments. Many comments were
from residents, local government, citizen groups, and businesses.
Slightly more than a third of the total number of commenters complained
about the levels of helicopter noise that they are exposed to,
particularly during the summer months. The FAA also received numerous
comments from individual pilots, many of whom were opposed to the
implementation of a mandatory route on principle. In addition, the
agency received comments from the Aircraft Owners and Pilots
Association (AOPA), the Eastern Region Helicopter Council (ERHC), the
General Aviation Manufacturers Association (GAMA), the National Air
Transportation Association (NATA), the National Business Aviation
Association (NBAA), and United Technologies Corporation (UTC/UTFlight).
The number and tenor of the comments demonstrates affected parties
at odds with each other.
On the one hand, the residents along the north shore of Long Island
emphatically agreed that helicopter overflights during the summer
months are unbearable and negatively impact their quality of life. They
opposed any route over communities, even sparsely settled areas, and
suggested the route go over the ocean. One commenter noted he had
counted over 25 helicopter operations in a 2-hour period. He also said
the flights started early in the morning and continued to early
evening. Other commenters noted that the helicopter noise interferes
with sleep, conversation, and outdoor activities. Still others
complained that the helicopters fly so low that their walls vibrated.
On the other hand, helicopter operators and their associations
argued that the helicopter noise levels over Long Island are not
appreciable, that operators are already largely flying on the voluntary
route, and that any mandated route would result in an

[[Page 39914]]

unacceptable imposition of cost and safety risk.
The FAA received more specific comments on the following general
areas of the proposal:
Justification for the rule,
Safety issues,
Route location,
Environmental concerns,
Procedural/miscellaneous, and
Economic evaluation.

III. Discussion of Public Comments and Final Rule

A. Justification for the Rule

Several commenters alleged that the proposal does not have adequate
factual support. Some commenters argued that according to industry
measurements, compliance on the voluntary route is very high already
and that mandating this route is therefore not necessary. According to
data collected by ERHC after the voluntary route was implemented,
roughly 85-95 percent of operators observed over multiple holiday
weekends comply with the North Shore Helicopter Route.\5\ ERHC noted
that it believes the noise complaints are coming from a relatively
small number of households. While ERHC can demonstrate that relatively
few households call its noise hotline, it cannot demonstrate these
individuals are the only ones disturbed by the existing noise levels.
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\5\ The FAA has not been able to independently assess the
validity or reliability of these estimates. In any event, the FAA
continued to receive noise complaints after implementation of the
voluntary route.
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Other commenters stated that the lack of environmental analysis
makes it impossible to determine that the rule actually addresses the
concerns. ERHC and the Town of East Hampton contended that without such
analysis, it is arbitrary and capricious to conclude that the route
reduces noise on nearby communities.
As stated earlier, the original reason for establishing the North
Shore Helicopter Route was to reduce noise from helicopter flights over
communities along the north shore of Long Island by moving those
flights offshore and establishing a minimum altitude. Because the route
applies only to VFR flights, the FAA cannot definitively determine its
current level of use. Even assuming the level of use is high, as
alleged by the commenters, it is neither arbitrary nor capricious for
the FAA to conclude, even without a specific noise analysis, that
increasing use of the route by making it mandatory will further reduce
noise impacts from helicopters operating along the north shore of Long
Island. ERHC's contention that only a small number of households object
to the helicopter noise levels is called into question by the hundreds
of comments the FAA received supporting the mandatory use of the
offshore route and the complaints filed with local government and FAA.
No one contends that pilots are using the route 100 percent of the
time, and the FAA cannot determine how long operators fly along the
route (either geographically or at the specified altitudes) when they
do use it. While the final rule allows operators to deviate from the
route for safety (including adverse weather) or to reach their
destination, the FAA is unable to determine whether operators are
currently deviating for other reasons. However, based on comments to
the NPRM and the continued concerns expressed by the residents' elected
officials, the FAA understands that helicopter overflights continue to
be a problem for the residents along the north shore of Long Island.
The FAA, with the assistance of the John A. Volpe National
Transportation Systems Center (Volpe Center), analyzed data from the
Performance Data Analysis and Reporting System (PDARS) to assess the
noise of flight operations along the north shore of Long Island.\6\ The
FAA reviewed helicopter traffic for the Memorial Day and Fourth of July
weekends in the summer of 2011. That data indicated that helicopter
traffic is greater on the Fridays before the long holiday weekends and
on the last day of the holiday weekend than in the interim period.
Based on this limited data set, as well as the assertions in the
comments that the problem is greater in the summer, it is reasonable to
assume that traffic is not evenly distributed throughout the year and
on all days of the week. Thus, while overall cumulative noise levels
may be low when averaged across the year, helicopter overflights could
be more disturbing on certain days when they are experienced several
times over a period of several hours or the course of a day. Maximizing
the utilization of the existing route by making it mandatory will
secure and improve upon the decreased levels of noise that have been
voluntarily achieved.
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\6\ The Performance Data Analysis and Reporting System (PDARS)
supports the collection, archiving, and reporting of flight plan and
radar track data from Air Route Traffic Control Centers, Terminal
Radar Approach Control facilities, and Air Traffic Control Towers to
manage aviation activity within the National Airspace System (NAS).
The PDARS data analyzed by the FAA for this rule represents visual
flight rule (VFR) aircraft operating in Class E and G airspace along
the northern shoreline of Long Island, New York. The data represent
aircraft using a transponder code indicating VFR operation and
altitude.
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B. Safety Issues

ERHC objected to the over-water route because it places some
helicopters beyond the autorotation performance distance needed to
reach land in the event of an engine failure or other emergency.
The FAA notes that safety is its highest priority. To the extent a
helicopter operator cannot safely fly along the North Shore Helicopter
Route, this rule specifically allows for deviation.
The FAA recognizes the varying capabilities of helicopters, and
this rule permits pilots to deviate from the rule for safety, weather,
or when transitioning to or from a destination or point of landing.
Under Sec. 91.3, the pilot in command is directly responsible for and
is the final authority as to the operation of that aircraft. Therefore,
if flight along this route places a helicopter beyond the autorotation
performance distance to the shore and the helicopter is not equipped
with flotation devices, such as life jackets or helicopter floats, the
pilot is permitted to deviate from the route and altitude.
AOPA stated there is no altitude discrimination between opposite
direction helicopter traffic transiting the route. AOPA further stated
that the FAA, at a minimum, should provide additional guidance on
altitude assignments for opposite direction traffic in order to
decrease the risk of a mid-air accident over Long Island.
As an initial matter, the FAA agrees that additional guidance is
useful and is developing guidance that will be available before use of
the route becomes mandatory. The FAA also acknowledges that opposite
direction VFR traffic takes place along this route, but this is not
unusual. There already are rules governing rights of way in VFR
conditions, and Sec. Sec. 91.113 and 91.155 are applicable to pilots
operating along this route. These rules respectively address right of
way rules for converging aircraft, approaching aircraft head on,
overtaking aircraft, and the appropriate visibility minimums.
The FAA encourages operators to identify industry best practices
and operational procedures for use on the route. The FAA also will
develop a voluntary training awareness course for operators, which will
include these best practices and emphasize industry's ``fly
neighborly'' program as described on the New York Helicopter Route
Chart. Most importantly, this rule provides pilots with the needed
flexibility to

[[Page 39915]]

maneuver off the route and/or altitude for weather, safety, or
transition to/from a point of landing. FAA guidance on conducting
operations subject to this rule will enhance pilot awareness and the
safety of flights operating within the vicinity of this route. Should
the level of traffic indicate an unacceptable level of safety risk, the
FAA may choose to mandate separation standards for east- and westbound
traffic in a subsequent rulemaking. Nothing in this rule should be
construed as restricting or limiting in any way an air ambulance
operator's ability to deviate from this route in order to provide
emergency medical services.
ERHC argued that under the current rules, only the New York
Helicopter Route Chart and New York Sectional depict the North Shore
Helicopter Route, neither of which is required to be carried by pilots
operating under VFR. ERHC further argued that the New York Sectional
and New York Terminal Area Chart would need to be updated with the
mandatory route and would need to be made mandatory for flight. ERHC
asserted that the FAA would have to address the charting of the route
as well as requirements to carry charts and sectionals, as no such
requirements currently exist.
In accordance with Sec. 91.103, the pilot in command is
responsible before the beginning of a flight to become familiar with
all information concerning the flight. Under this final rule, that
responsibility includes being aware of the mandatory route when
planning to fly along the north shore of Long Island. Though there is
no specific requirement for pilots to carry aeronautical charts, the
FAA believes that prudent pilots would carry charts, especially given
the complexity and volume of air traffic in the greater New York City
metropolitan area. The FAA will issue a notice to airmen (NOTAM)
providing the operational requirements of this rule to augment
information available to pilots.
Some commenters alleged this route would mix together VFR and
instrument flight rules (IFR) aircraft. Portions of the route are
located in Class E airspace where both IFR and VFR operations are
conducted. However, this is not a unique situation for any Class E
airspace area. Existing FAA regulations and air traffic control
procedures provide for the safe integration of VFR and IFR operations.
VFR pilots are responsible to see and avoid other traffic, which is how
they operate today. Again, it must be emphasized that utilizing this
route does not exempt pilots from this responsibility.

C. Route Location

This action requires helicopter operators to use the currently
published North Shore Helicopter Route when transiting the north shore
of Long Island. The mandatory portion of the route begins at VPLYD
waypoint located approximately 20 miles northeast of LGA, remains
approximately one mile offshore, and extends to the eastern end of Long
Island, terminating at Orient Point.
Some commenters stated that the definition of the geographical
boundaries of the route is insufficient and difficult to identify
visually.
The FAA believes the route is sufficiently defined. A VFR route is
to be flown under visual conditions. Pilotage, as defined in 14 CFR
1.1, is an acceptable means by which to conduct operations along the
route. Most of the route is located just one mile off the shoreline,
which provides adequate visual reference for navigation purposes. The
route was developed and designed by the FAA in cooperation with local
helicopter operators, many of whom according to ERHC, have been flying
this route for several years. The FAA meets regularly with local
helicopter operators to discuss safety and noise issues. In the four
years since this route was published, the FAA is not aware of any
concerns regarding navigating the route.
ERHC asserted proposed airspace changes would lower Class B
dimensions and impose higher workloads on air traffic controllers and
IFR traffic. ERHC further asserted that since the controllers have no
ability to deny VFR operators clearance, the burden would be higher on
the air traffic controllers (ATC) and IFR operators. ERHC posited that
if the North Shore Helicopter Route falls within the redesigned Class B
Airspace, the VFR helicopter operators would further burden ATC
controllers as they would be required to receive special VFR (SVFR)
clearances whenever weather minimums are less than those prescribed in
the Code of Federal Regulations.
The FAA notes that while airspace changes for the New York Class B
Airspace area have been under discussion for many years, there are no
formal proposals under consideration to date. With respect to the ATC
workload, controllers provide services on a first come, first serve
basis. If necessary, controllers may direct aircraft to remain clear of
the Class B airspace or to standby, or controllers may refuse traffic
from other sectors. If weather conditions deteriorate to the point
where a pilot requires a SVFR clearance, the same first come first
serve basis applies. The FAA notes that fixed wing SVFR operations are
currently prohibited in the New York Class B Airspace Area.
Most residents and local government groups supported the over-water
location of the route, and moving the helicopter traffic away from
their communities by overflying the water. However, numerous commenters
expressed opposition to the route, mistakenly believing the route would
pass over land and therefore, bring helicopter overflights over their
homes and communities. Obviously all helicopter operators planning on
landing on Long Island will, at some point, have to fly inland in order
to land. Were there no provision to allow operators to leave the route
to transit to their destination, the likely impact on a few
communities, notably those near VPLYD and Orient Point, would bear the
brunt of the noise associated with the majority of helicopters flying
over their communities. However, there are nine airports and 16
heliports on Long Island to the east of VPLYD. The noise associated
with flying to an airport or other landing site should be dispersed
among the affected communities. This is because this final rule allows
pilots to deviate from the route for purposes of reaching their
destination. The FAA notes that a local news article published during
the comment period incorrectly placed the route over land. It is
possible that some of the commenters were responding to the incorrect
information contained in that news article.
ERHC also objected to the route, stating the route is difficult to
navigate, and will require the purchase of helicopter charts and GPS
equipment to comply with the regulation.
The NPRM did not propose any changes to the current published
route, which is over water. This route was the result of many meetings
and consultations between the FAA, local helicopter operators,
residents, and elected officials. The FAA and the interested parties
selected and agreed on the waypoints that are located near, or parallel
to easily seen and identified locations along the shore. For example,
VPLYD and VPJAY were chosen because of their proximity to two
physically prominent locations (Lloyd Point, situated at the northern
most spot on Lloyd Neck, and Old Field Point, a lighthouse location
near Port Jefferson, respectively). The FAA designed the route to be
over water, as it would prevent helicopter traffic from overflying
residential areas. This voluntary route was charted and has been flown
by helicopter operators for

[[Page 39916]]

several years. The FAA is not aware of any navigational or safety
issues associated with the use of this route.

D. Environmental Concerns

Several commenters contended that the FAA has failed to analyze
adequately the final rule's environmental consequences, as required by
the National Environmental Policy Act of 1969 (NEPA), as amended, 42
U.S.C. 4321 et seq. ERHC alleged that without an adequate description
of the proposed route, it is impossible to provide comments on whether
there would be extraordinary circumstances that would preclude use of a
categorical exclusion to comply with NEPA. ERHC further noted the lack
of analysis to determine whether increased noise and operations over
the water would affect water quality or ecological resources. Several
commenters asserted that the rule would cause noise to concentrate over
some communities.
The FAA's analysis of its PDAR data indicates that existing levels
of helicopter noise is below levels at which homes are significantly
impacted.\7\ Beyond making use of the North Shore Helicopter Route
mandatory, the rule does not change the existing route, which has been
charted and flown by helicopter operators for several years. The rule
allows pilots to deviate from the route when transitioning to or from a
destination or point of landing, thus avoiding concentrated operations
at any particular point of entry or exit along the route. Therefore, it
is reasonable to assume that those pilots currently complying with the
voluntary route will continue to follow the same flight paths to the
extent they have been following them in the past, with the same
resulting pattern of noise dispersion among underlying communities.
---------------------------------------------------------------------------

\7\ Long Island North Shore Helicopter Route Environmental
Study, John A. Volpe National Transportation Systems Center. The FAA
analyzed data from the PDARS. The PDARS supports the collection,
archiving, and reporting of flight plan and radar track data from
Air Route Traffic Control Centers, Terminal Radar Approach Control
facilities, and Air Traffic Control Towers to manage aviation
activity within the National Airspace System (NAS). The PDARS data
analyzed by the FAA for this rule represents visual flight rule
(VFR) aircraft operating in Class E and Class G airspace in the
vicinity of the northern shoreline of Long Island, New York. The
data represent aircraft using a transponder code indicating VFR
operation and altitude. The FAA's analysis modeled noise from
approximately 15,600 flight operations, based on an average of 42.8
operations per day over 11 days around Memorial Day and July 4,
2011. The resulting noise levels were below DNL 45 dB. Under federal
guidelines, residential land uses are considered compatible with
noise levels below DNL 65 dB. 14 CFR part 150, appendix A, Table 1.
---------------------------------------------------------------------------

The FAA does not believe that this rule will create a negative
impact on the public welfare. It is possible that compliance with the
rule by pilots not currently complying with the voluntary route could
result in some additional flights over some communities. However,
because of the deviation allowed by the rule, the FAA cannot reliably
predict the specific flight paths these pilots will follow on their way
to or from the route. As a result, any specific noise impacts of such
flight paths are not reasonably foreseeable.
In accordance with FAA Order 1050.1E, ``Environmental Impacts:
Policies and Procedures,'' the FAA has determined that the rule is
categorically excluded from environmental review under paragraph 312f
of the order, which applies to ``regulations * * * (excluding those
which if implemented may cause a significant impact on the human
environment).'' There are no significant noise or emissions impacts,
which would be the primary concerns. The FAA determined that there are
no extraordinary circumstances that would preclude the applicability of
this categorical exclusion, and ERHC does not provide any facts
supporting the presence of any such circumstances. Moreover, ERHC does
not identify any significant effects the rule would have on water
quality, ecological resources, or any other aspect of the environment,
and the FAA has no reason to believe that any such effects would occur.
Were the rule to require pilots to follow the route in its entirety
without regard to their origin or destination, it would be reasonable
to expect an increase in noise in communities near the route's
termination points (i.e., the VPLYD waypoint and Orient Point), due to
the resulting concentration of operations entering and exiting the
route at those locations. However, the rule allows pilots to deviate
from the route when transitioning to or from a destination or point of
landing. Therefore, it is reasonable to assume that those pilots
currently complying with the voluntary route will continue to follow
the same flight paths they have been following, with the same resulting
pattern of noise dispersion among underlying communities. Compliance
with the rule by pilots not currently complying with the voluntary
route could result in additional flights over some communities.
However, because of the deviation allowed by the rule, the FAA cannot
reliably predict the specific flight paths these pilots will follow on
their way to or from the route. As a result, any specific noise impacts
of such flight paths are not reasonably foreseeable. In any event,
based on the number of helicopter operations the ERHC estimates occur
along the north shore of Long Island, any noise increase in residential
communities from further concentration of those operations would not be
significant. This conclusion is further supported by an FAA analysis of
radar and flight plan data, a copy of which has been placed in the
docket for this rulemaking.
The FAA notes that it is likely noise impacts will be felt most
keenly near airports or heliports, as the helicopters descend to land.
Nothing in this rule makes that a unique phenomenon. Rather, aircraft
noise is typically concentrated near airports, which is why the FAA
typically addresses aircraft noise through the Airport Noise
Compatibility Program.\8\
---------------------------------------------------------------------------

\8\ Presumably those airports and heliports near larger
population centers will receive have more take-offs and landings
than the airports and heliports near smaller population centers. But
this may not actually be true. It is possible that the airports and
heliports near relatively small, but more affluent population
centers will handle most of the helicopter traffic.
---------------------------------------------------------------------------

Several commenters alleged that the rule would require helicopter
operators to fly more miles and therefore burn more fuel, and that this
would cause significant environmental impacts. Specifically, ERHC
alleged, without supporting documentation,\9\ that compliance with the
rule would increase average flight time by 10 minutes, resulting in the
consumption of nearly 117,000 additional gallons of fuel per year.
---------------------------------------------------------------------------

\9\ The FAA is unable to validate the assumptions of ERHC
because it is impossible to determine where operators would choose
to divert from the route to reach their intended destinations.
However, the FAA did evaluate what it believes would be one of the
worst case scenarios in terms of additional distance by looking at
the distance between the initial waypoint at VPLYD and the
Alexanders East Heliport, which is the southernmost heliport on the
far south shore of Long Island. Assuming a 100 knot groundspeed, the
FAA calculated the direct route time as 23.4 minutes (39 nm) and the
North Shore route time as 30.6 minutes (51 nm), a difference of 7
minutes.
---------------------------------------------------------------------------

As stated above, the rule does not mandate entry or exit points,
nor does it require operators to fly any specific route to or from the
North Shore Helicopter Route. Therefore, it is not possible to reliably
determine the amount of any increase in fuel consumption that might
occur as a result of the rule. However, assuming ERHC is correct that
average flight time would increase by 10 minutes, the commenter's
estimated increase of 117,000 gallons per year would result in air
emissions well below levels determined by the U.S. Environmental
Protection Agency (EPA) to be de

[[Page 39917]]

minimis.\10\ One commenter stated that aircraft on the North Shore
Helicopter Route could impact wildlife. However, the commenter does not
provide any information in support of this assertion, and the FAA is
not aware of any reasonably foreseeable adverse impacts on wildlife
from helicopters flying on the route at or above 2,500 feet MSL.
---------------------------------------------------------------------------

\10\ See Long Island North Shore Helicopter Route Environmental
Study, John A. Volpe National Transportation Systems Center. The
North Shore Helicopter Route is located entirely within Suffolk
County, New York, which has been designated under the Clean Air Act
as a nonattainment area for particulate matter (PM-2.5) and a
moderate nonattainment area for ozone. See U.S. Environmental
Protection Agency (EPA), ``Currently Designated Nonattainment Areas
for All Criteria Pollutants,'' available at http://www.epa.gov/oaqps001/greenbk/ancl.html. In addition, the state of New York is
within the Ozone Transport Region established in section 184(a) of
the Clean Air Act, 42 U.S.C. 7511c(a). EPA has determined that for
such nonattainment areas, emissions of less than 50 tons per year of
volatile organic compounds and 100 tons per year of nitrogen oxides,
PM-2.5, or sulfur dioxide are de minimis. 40 CFR 93.153(b)(1). Using
conservative assumptions, an analysis by the FAA (a copy of which
has been placed in the docket for this rulemaking), indicates that
emissions of these pollutants from combustion of an additional
117,000 gallons of fuel would be well below these de minimis levels.
---------------------------------------------------------------------------

The Town of East Hampton raised several objections to the FAA's use
of the cited categorical exclusion for the rule. First, the Town
asserted that the categorical exclusion is inconsistent with the FAA's
intent in proposing the rule. According to the Town, if the rule would
not significantly affect the human environment, there is no basis for
saying it would reduce noise impact on nearby communities as stated in
the NPRM. Second, the Town contended that the FAA mischaracterized the
legal standard for a categorical exclusion by limiting the analysis to
adverse impacts. Third, the Town claimed that the FAA used the wrong
categorical exclusion for the rule.
The FAA does not agree that the cited categorical exclusion,
paragraph 312f of FAA Order 1050.1E, is inconsistent with the purpose
of the rule. As stated above, the purpose of the rule is to maximize
use of the North Shore Helicopter Route and reduce the noise impact of
helicopter flights over nearby communities. Categorical exclusion of
the rule from further environmental review under NEPA is fully
consistent with that purpose and is based on the FAA's analysis of the
environmental effects of the rule. The FAA also disagrees with the
Town's contention that the agency erred in basing its application of
the categorical exclusion on the absence of significant adverse
environmental impacts. The agency is not aware of any controlling
authority that precludes application of a categorical exclusion to an
action because the action has an environmental benefit. Finally, the
cited categorical exclusion specifically applies to regulations and
therefore is appropriate for this rule.

E. Procedural/Miscellaneous

ERHC argued the FAA has not cited the proper authority for this
rule and that reliance on section 44715 is ``overstated and
misapplied.'' ERHC further commented that the FAA failed to consult
with the Administrator of the EPA prior to prescribing standards and
regulations under section 44715(a), as required. It also contended that
Sec. 44715(a) was intended to authorize the FAA to promulgate
regulations addressing certification standards, not airspace matters.
NATA, UTC/UTFlight, and AOPA commented that this is the first
action by the FAA to mandate the use of a noise abatement procedure
without providing some type of operational or environmental analysis.
They argued that, historically, the FAA addresses noise abatement
action areas initiated by an airport sponsor, as it applies to takeoffs
and landings, not to the enroute operation of the aircraft.
In response to the procedural comment, the FAA did consult with the
Administrator of the EPA prior to issuing the NPRM, in accordance with
the requirements of section 44715(a). That communication and the EPA
response have been placed in the docket for this proceeding. In
promulgating this rule, the FAA cites to sections 40103(b)(2) and 44715
to articulate the breadth of its authority to address noise stemming
from aircraft overflights, aircraft operations in the airport
environment and setting aircraft certification standards. Contrary to
the commenters' assertion, the FAA possesses and has exercised its
authority in the past to address noise issues associated with aircraft
overflights.\11\ The FAA continues to believe that noise generated by
aircraft overflights generally is best addressed locally and with
voluntary measures as the primary consideration. However, the FAA is
within its authority to address the issue by regulatory action.
---------------------------------------------------------------------------

\11\ See: 33 FR 11748; August 20, 1968 (final rule designating
special air traffic rule for Lorain County Regional Airport, Lorain,
Ohio to route low altitude terminal traffic away from the Oberlin
College Conservatory of Music to avoid audible disturbances; 35 FR
5466; April 2, 1970 (final rule designating Prohibited Airspace (P-
66) Mount Vernon, VA based on a concern over the danger to
irreplaceable historic structures and the noise nuisance caused by
the low flying aircraft, including helicopters, over Mount Vernon
grounds); 62 FR 1192; January 8, 1997 (final rule temporarily
banning commercial air tour operations over Rocky Mountain National
Park in order to prevent any potential adverse noise impact from
these sightseeing aircraft).
---------------------------------------------------------------------------

UTC/UTFlight argued that the appropriate regulatory structure
already exists in 14 CFR 91.119, which provides for minimum safe
altitudes. UTC/UTFlight contended that this mandatory route redefines
minimum safe altitudes.
The FAA disagrees with UTC/UTFlight that compliance with Sec.
91.119 adequately addresses this issue. Section 91.119 provides the
minimum safe altitudes for aircraft and helicopters and is not intended
to address aircraft noise. Pilots must follow this provision, unless an
altitude is otherwise specified for certain operations. Part 93 in 14
CFR sets forth specific rules for aircraft operations that are
necessary for designated airports or defined areas.
GAMA, ERHC, and AOPA contended that the 30-day comment period was
too compressed to provide the needed analysis and response to a
proposal that raises significant technical, safety, environmental, and
operational concerns. A number of the commenters requested that the FAA
withdraw the NPRM and some commenters further requested that the FAA
instead engage in a series of public meetings and a process to
establish routes that would produce effective noise mitigation and
provide safety and operational enhancements.
The Administrative Procedure Act \12\ does not specify a minimum
period for comment. The FAA finds 30 days is not an unreasonable amount
of time to comment on the use of a route that has been in place since
2008 and, according to ERHC, has a high rate of use. The FAA also notes
that within the 30-day comment period, approximately 900 comments were
filed, some of which were extensive. Furthermore, FAA regulations
governing rulemaking provide that late filed comments will be
considered to the extent possible only if they do not significantly
delay the rulemaking process. (See 14 CFR 11.45(b)) The Agency notes
that some commenters submitted late comments, and they were considered
by this agency.
---------------------------------------------------------------------------

\12\ 5 U.S.C. 551 et seq.
---------------------------------------------------------------------------

ERHC also commented the FAA did not perform the required full
regulatory evaluation under Executive Order 12866 and Department of
Transportation Order 2100.5. ERHC argued that the FAA incorrectly
concluded that the cost of the NPRM would be so minimal as to not
require full review and that the NPRM was ``not a significant
regulatory action'' and therefore exempt from

[[Page 39918]]

review of the Office of Management and Budget (OMB).
As further discussed in the section addressing economic concerns,
at the NPRM stage and now, the action was--and is--not expected to
result in more than minimal additional costs on the affected helicopter
operators. Consequently, the FAA properly determined that the proposal
was not a significant regulatory action, as defined under Executive
Order 12866, was not significant in accordance with DOT's policy, and
did not require a full regulatory evaluation under either document.
Upon OMB appraisal of the NPRM, it agreed with FAA that it was non-
significant.
ERHC commented that the regulatory text is ``unconstitutionally
vague'' and that the ``NPRM's lack of clarity would almost certainly
result in inadvertent violations and inconsistent enforcement of the
rule,'' which violates the Due Process Clause of the Fifth Amendment to
the U.S. Constitution.
The FAA notes that ERHC was instrumental in working with the FAA to
develop the North Shore Helicopter Route. Since this route was charted
in 2008, the FAA is not aware of complaints from any operator about
inability to navigate along the route, or any concern with the route as
designed and charted. Unlike a route designed for IFR use, a VFR route
does not have lateral dimension. The mandatory portion of the route
follows the northern shoreline of Long Island from the VPLYD waypoint
point to the northern tip of Long Island at Orient Point. As stated
previously, the FAA chose waypoints that were based on the proximity to
easily identifiable visual landmarks. The FAA believes that the route
was developed using visual references that pilots can easily identify.
We do not conclude that the requirements of this rule are vague and
will result in inconsistent enforcement.
As with any other rule, the FAA will enforce this rule to the best
of its capabilities. Reports of violations will be investigated to
determine if the operator deviated for reasons of safety, weather, or
to transit to its destination. While operators will be given the
maximum latitude for deviations related to safety, a pattern of
deviations would indicate that an operator was interested more in
cutting short the route rather than any legitimate safety concerns. Any
violation of this rule may result in a civil penalty or the suspension
or revocation of the pilot's airman certificate.

F. Economic Evaluation

The FAA received several comments on our regulatory evaluation and
the small business impact. These commenters included ERHC, GAMA, HAI,
NATA, and NBAA, who stated the potential economic impact of the
proposed regulatory changes, particularly on small businesses, is
significant. The commenters believed the rulemaking's cost is
significant because the change in flight procedures would drive longer
flight paths for rotorcraft operating in the North Shore airspace. This
in turn would have an impact on fuel consumed. They also believed that
the final rule would force costs for additional avionics equipage.
ERHC asserted that mandating use of the North Shore Helicopter
Route, as proposed, would increase the average flight of operations not
currently using the route by 10 minutes. It estimated that 15 percent
of current operations (approximately 2,250 operations) do not follow
the voluntary route. Based on these assumptions, ERHC argued (assuming
an 85 percent compliance rate) that the rule would result in the
additional consumption of slightly less than 117,000 gallons of fuel
per year.
The FAA cannot confirm that the route is currently being used 85
percent of the time. However, for the sake of estimating the cost of
the rule, the FAA assumes that ERHC is correct. Using EHRC's numbers,
the FAA calculated the cost associated with the use of the additional
fuel. The nominal fuel price per gallon from the latest FAA fuel price
forecast for the second half of 2012 through the first half of 2014 is
$3.17.\13\ Multiplying the average fuel price by ERHC's estimate of the
additional fuel burn, over 2 years, that nominal cost equals $745,875,
or $714,569 at a 7 percent discount rate. Applying the nominal value on
a per flight basis, the nominal increase in fuel costs on a per flight
basis is approximately $150. However, as noted in footnote 12, the FAA
calculated the increase in travel time from the VPLYD and Alexanders
East Heliport, which the FAA believes represents the worst case in
terms of additional travel time, and found that the increase in time
should be approximately 7 minutes. Assuming ERHC's estimate of the
amount of fuel burned per minute of flight time is correct, then with
an increase in flight time of 7 minutes there would be an increase in
fuel cost of $105 for that flight. Since an operation between these two
points represents the worst case, the average of all affected flights
would be somewhat lower. Thus the total discounted cost over a 2-year
period would be significantly lower than $714,569.
---------------------------------------------------------------------------

\13\ http://www.faa.gov/about/office_org/headquarters_offices/apl/aviation_forecasts/aerospace_forecasts/2012-2032/.
---------------------------------------------------------------------------

The FAA has determined that this action is not expected to result
in more than minimal additional costs on the affected helicopters.
Operators that cannot comply with the route as published due to
operational limitations, performance factors, weather conditions, or
safety considerations are allowed to deviate from the provisions of
Subpart H.

G. Sunset Provision

As discussed above, it is both impractical and imprudent to require
all helicopters to fly along the entire North Shore Helicopter Route.
Operators must land at some point, and will have to deviate from the
route for that reason. Additionally, safety considerations make use of
the route imprudent under some circumstances and for some aircraft. As
has also been noted above, the FAA does not know what the current rate
of compliance with the route is or the circumstances surrounding
decisions not to use it. ERHC contends that the current rate of
compliance is already very high. There is no reason to retain this rule
if the FAA determines that it is not actually improving the noise
situation along the north shore of Long Island.
The FAA has decided to sunset this rule in 2 years if we determine
there is no meaningful improvement in the effects of helicopter noise
on quality of life or that the rule is otherwise unjustified. Should
there be such an improvement, the FAA may, after appropriate notice and
opportunity for comment, decide to make the rule permanent. Likewise,
should the FAA determine that reasonable modifications could be made to
the route to better address noise concerns (and any other relevant
concerns), we may choose to modify the rule after notice and comment.
The FAA recognizes that we did not contemplate a sunset provision
when we published the NPRM. The FAA has decided to finalize this
provision without providing an additional opportunity to comment
because we have determined that providing such a comment period is
unnecessary. The FAA has already received hundreds of comments on the
advisability of finalizing this rule. Commenters fall squarely into
three camps: those who oppose the rule as burdensome and unnecessary,
those who oppose the rule because they believe it does not go far
enough, and those who support the rule.

[[Page 39919]]

The FAA does not anticipate that providing an opportunity to comment on
a sunset provision will generate any discussion beyond that which has
already been provided in the comments received on the NPRM. The FAA
does note that any decision to extend the rule beyond 2 years or to
modify the existing route will be subject to notice and an opportunity
to comment.

IV. Regulatory Notices and Analyses

A. Regulatory Evaluation

Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 and Executive Order 13563
directs that each Federal agency shall propose or adopt a regulation
only upon a reasoned determination that the benefits of the intended
regulation justify its costs. Second, the Regulatory Flexibility Act of
1980 (Pub. L. 96-354) requires agencies to analyze the economic impact
of regulatory changes on small entities. Third, the Trade Agreements
Act (Pub. L. 96-39) prohibits agencies from setting standards that
create unnecessary obstacles to the foreign commerce of the United
States. In developing U.S. standards, the Trade Act requires agencies
to consider international standards and, where appropriate, that they
be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform
Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written
assessment of the costs, benefits, and other effects of proposed or
final rules that include a Federal mandate likely to result in the
expenditure by State, local, or tribal governments, in the aggregate,
or by the private sector, of $100 million or more annually (adjusted
for inflation with base year of 1995). This portion of the preamble
summarizes the FAA's analysis of the economic impacts of this final
rule.
Department of Transportation Order DOT 2100.5 prescribes policies
and procedures for simplification, analysis, and review of regulations.
If the expected cost impact is so minimal that a proposed or final rule
does not warrant a full evaluation, this order permits that a statement
to that effect and the basis for it be included in the preamble if a
full regulatory evaluation of the cost and benefits is not prepared.
Such a determination has been made for this final rule. The reasoning
for this determination follows.
This action is not expected to result in more than minimal
additional costs on the affected helicopter operators because many of
the existing operators already comply with the final rule requirements.
Further, no new systems are required. Thus, the rule imposes no more
than minimal cost. However, given the number of comments submitted in
response to the NPRM, this final rule has been designated as
significant under Executive Orders 12866 and 13563.

B. Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the businesses, organizations, and governmental jurisdictions
subject to regulation. To achieve this principle, agencies are required
to solicit and consider flexible regulatory proposals and to explain
the rationale for their actions to assure that such proposals are given
serious consideration.'' The RFA covers a wide-range of small entities,
including small businesses, not-for-profit organizations, and small
governmental jurisdictions.
Agencies must perform a review to determine whether a rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities,
section 605(b) of the RFA provides that the head of the agency may so
certify and a regulatory flexibility analysis is not required. The
certification must include a statement providing the factual basis for
this determination, and the reasoning should be clear.
ERHC has 35 members who provide commercial operations. According to
ERHC's comments to the NPRM, the majority of these operators fly over
Long Island and could be impacted in some way by this final rule. The
FAA presumes that all 35 commercial operators have fewer than 1,500
employees. However, assuming ERHC's estimates of current compliance are
correct, somewhere between zero and fifteen percent of total operations
are likely to be directly affected by this rule.
As noted above, the FAA believes those changes would result in an
estimated increase in costs of $105 to $150 dollars per affected
flight. The costs of commercial operations between Manhattan and the
east end of Long Island generally range between $3,500 and $9,500 per
trip, depending on the number of engines and available seats. The FAA
believes that the vast majority of operators conduct operations on
behalf of paying customers because of the cost associated with owning
and maintaining a helicopter for personal use. Accordingly, we base our
determination that the impact on small entities will not be significant
on the additional cost associated with flying along the North Shore
Helicopter Route. At an additional $150, the increase per affected
operation would range between 4 and 1.5 percent. At an additional $105,
the increase per affected operation would range between 3 and 1.1
percent. The FAA also believes that, given the cost of the overall
operation to a paying customer, much of that cost is likely to simply
be passed on to the customer. To the extent private operators incur the
additional fuel cost, the FAA believes those costs the operators will
turn to additional forms of transportation only if they determine the
additional cost in fuel justifies the longer times required to reach
their destination by other forms of transportation. Given the cost
between commercial helicopter rates and the cost to take a train or
drive, the FAA believes private operators will likely absorb the
additional cost because they value their time at a rate that already
far exceeds the existing cost difference between helicopter travel and
other forms of transportation. The rule does not require the purchase
of additional equipment and allows pilots to deviate from the
provisions if necessary, due to operational limitations of the
helicopter, performance factors, weather conditions, or safety
considerations. Therefore, the rule imposes only minimal operating
cost.
The FAA received several comments from the private sector and
industry based on our regulatory evaluation and the small business
impact. ERHC, GAMA, HAI, NATA, and NBAA commented that the potential
economic impact of the regulatory changes, particularly on small
businesses, is significant. These commenters believed the rulemaking's
cost is significant because the change in flight procedures will drive
longer flight paths for helicopters operating in the North Shore
airspace, which will have an impact on fuel consumed. They also
believed that the final rule would force costs for additional avionics
equipage.
The FAA notes that numerous small business helicopter charter
operators commented that they were already in compliance with the final
rule. The FAA further notes that operators that cannot comply with the
route as published due to safety, weather conditions, or transitioning
to or from a destination or point of landing are allowed to deviate
from the provisions of Subpart H. Therefore, this action is

[[Page 39920]]

not expected to result in more than minimal additional costs on the
affected helicopters because those operators are allowed to deviate
from the provisions of the final rule.
Therefore, as the acting FAA Administrator, I certify that this
rule will not have a significant economic impact on a substantial
number of small entities.

C. Unfunded Mandates Assessment

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in an expenditure of $100 million or more
(in 1995 dollars) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $143.1 million in lieu of $100
million. This final rule does not contain such a mandate; therefore,
the requirements of Title II of the Act do not apply.

D. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. The FAA has determined that
there is no current or new requirement for information collection
associated with this amendment.

E. International Compatibility

In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these regulations.

F. Environmental Analysis

Under regulations issued by the Council on Environmental Quality,
Federal agencies are required to establish procedures that, among other
things, identify agency actions that are categorically excluded from
the requirement for an environmental assessment or environmental impact
statement under the National Environmental Policy Act of 1969 because
they do not have a significant effect on the human environment. See 40
CFR 1507.3(b)(2)(ii), 1508.4. The required agency procedures must also
``provide for extraordinary circumstances in which a normally excluded
action may have a significant environmental effect.'' See 40 CFR
1508.4. For FAA actions, these ``categorical exclusions'' and
``extraordinary circumstances'' are listed in Chapter 3 of FAA Order
1050.1E, ``Environmental Impacts: Policies and Procedures.''
The FAA has determined that this final rule qualifies for the
categorical exclusion identified in paragraph 312f of FAA Order
1050.1E. That categorical exclusion applies to ``[r]egulations,
standards, and exemptions (excluding those which if implemented may
cause a significant impact on the human environment).'' The existing
New York North Shore Helicopter Route is a VFR route, use of which is
voluntary. Additionally, the route is located entirely over water and
away from noise-sensitive locations. Furthermore, the number of
helicopter operations along the north shore of Long Island is not high
enough for this rule to have any potential to result in significant
noise impacts. An analysis of emissions based on an overly conservative
fuel burn estimate shows that the resulting air emissions would be well
below levels determined by the EPA to be de minimis.\14\
---------------------------------------------------------------------------

\14\ See Long Island North Shore Helicopter Route Environmental
Study, John A. Volpe National Transportation Systems Center. The
North Shore Helicopter Route is located entirely within Suffolk
County, New York, which has been designated under the Clean Air Act
as a nonattainment area for particulate matter (PM-2.5) and a
moderate nonattainment area for ozone. See U.S. Environmental
Protection Agency (EPA), ``Currently Designated Nonattainment Areas
for All Criteria Pollutants,'' available at http://www.epa.gov/oaqps001/greenbk/ancl.html. In addition, the state of New York is
within the Ozone Transport Region established in section 184(a) of
the Clean Air Act, 42 U.S.C. 7511c(a). EPA has determined that for
such nonattainment areas, emissions of less than 50 tons per year of
volatile organic compounds and 100 tons per year of nitrogen oxides,
PM-2.5, or sulfur dioxide are de minimis. 40 CFR 93.153(b)(1). Using
conservative assumptions, an analysis by the FAA (a copy of which
has been placed in the docket for this rulemaking), indicates that
emissions of these pollutants from combustion of an additional
117,000 gallons of fuel would be well below these de minimis levels.
---------------------------------------------------------------------------

Therefore, implementation of this final rule is not expected to
result in significant adverse impacts to the human environment.
Moreover, implementation of the final rule will not involve any of the
extraordinary circumstances listed in Section 304 of FAA Order 1050.1E.

V. Executive Order Determinations

A. Executive Order 13132, Federalism

The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. The agency determined
that this action will not have a substantial direct effect on the
States, or the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government, and, therefore, does not have Federalism
implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use

The FAA analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The agency has determined that it
is not a ``significant energy action'' under the executive order and it
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy.

VI. How To Obtain Additional Information

A. Rulemaking Documents

An electronic copy of a rulemaking document may be obtained by
using the Internet--
1. Search the Federal eRulemaking Portal (http://www.regulations.gov);
2. Visit the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/ or
3. Access the Government Printing Office's Web page at http://www.fdsys.gov.
Copies may also be obtained by sending a request (identified by
notice, amendment, or docket number of this rulemaking) to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.

B. Comments Submitted to the Docket

Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the
docket number for this action. Anyone is able to search the electronic
form of all comments received into any of the FAA's dockets by the name
of the individual submitting the comment (or signing the comment, if
submitted on behalf of an association, business, labor union, etc.).

C. Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. A small entity with questions regarding this document,
may contact its local

[[Page 39921]]

FAA official, or the person listed under the FOR FURTHER INFORMATION
CONTACT heading at the beginning of the preamble. To find out more
about SBREFA on the Internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

VII. The Amendment

List of Subjects in 14 CFR Part 93

Air traffic control, Airspace, Navigation (air).

The Amendment

In consideration of the foregoing, the Federal Aviation
Administration amends chapter I of title 14, Code of Federal
Regulations as follows:

PART 93--SPECIAL AIR TRAFFIC RULES

0
1. The authority citation for part 93 continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40106, 40109, 40113, 44502,
44514, 44701, 44715, 44719, 46301.

0
2. Add subpart H to part 93 to read as follows:
Subpart H--Mandatory Use of the New York North Shore Helicopter Route
Sec.
93.101 Applicability.
93.103 Helicopter operations.

Subpart H--Mandatory Use of the New York North Shore Helicopter
Route

Sec. 93.101 Applicability.

This subpart prescribes a special air traffic rule for civil
helicopters operating VFR along the North Shore, Long Island, New York,
between August 6, 2012 and August 6, 2014.

Sec. 93.103 Helicopter operations.

(a) Unless otherwise authorized, each person piloting a helicopter
along Long Island, New York's northern shoreline between the VPLYD
waypoint and Orient Point, shall utilize the North Shore Helicopter
route and altitude, as published.
(b) Pilots may deviate from the route and altitude requirements of
paragraph (a) of this section when necessary for safety, weather
conditions or transitioning to or from a destination or point of
landing.

Issued in Washington, DC, on July 2, 2012.
Ray LaHood,
Secretary of Transportation.
Michael P. Huerta,
Acting Administrator.
[FR Doc. 2012-16667 Filed 7-3-12; 4:15 pm]
BILLING CODE 4910-13-P