Union Calendar No. 163

106TH CONGRESS

1ST SESSION H. R. 717

[Report No. 106–273, Part I]

A BILL

To amend title 49, United States Code, to regulate

poses.overflights of national parks, and for other purJULY 29, 1999

Reported from the Committee on Transportation and

J

Infrastructure

ULY 29, 1999

Referral to the Committee on Resources extended for a

period ending not later than July 29, 1999

JULY 29, 1999

Committee on Resources discharged; committed to the

Union and ordered to be printedCommittee of the Whole House on the State of the
IB

Union Calendar No. 163

106TH CONGRESS

1ST SESSION H. R. 717

[Report No. 106–273, Part I]

To amend title 49, United States Code, to regulate overflights of national

parks, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 11, 1999

Mr. DUNCAN (for himself, Mr. LIPINSKI, and Mr. OBERSTAR) introduced the

following bill; which was referred to the Committee on Transportation

and Infrastructure, and in addition to the Committee on Resources, for

a period to be subsequently determined by the Speaker, in each case for

consideration of such provisions as fall within the jurisdiction of the committee concerned

JULY 29, 1999

Reported from the Committee on Transportation and Infrastructure

JULY 29, 1999

Referral to the Committee on Resources extended for a period ending not later

than July 29, 1999

JULY 29, 1999

Committee on Resources discharged; committed to the Committee of the

Whole House on the State of the Union and ordered to be printed

A BILL

To amend title 49, United States Code, to regulate

overflights of national parks, and for other purposes.
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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘National Parks Air

5 Tour Management Act of 1999’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—

8 (1) the Federal Aviation Administration has

9 sole authority to control airspace over the United

10 States;

11 (2) the Federal Aviation Administration has the

12 authority to preserve, protect, and enhance the envi13 ronment by minimizing, mitigating, or preventing

14 the adverse effects of aircraft overflights of public

15 and tribal lands;

16 (3) the National Park Service has the responsi17 bility of conserving the scenery and natural and his18 toric objects and wildlife in national parks and of

19 providing for the enjoyment of the national parks in

20 ways that leave the national parks unimpaired for

21 future generations;

22 (4) the protection of tribal lands from aircraft

23 overflights is consistent with protecting the public

24 health and welfare and is essential to the mainte-
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1 nance of the natural and cultural resources of In2 dian tribes;

3 (5) the National Parks Overflights Working

4 Group, composed of general aviation, commercial air

5 tour, environmental, and Native American represent6 atives, recommended that the Congress enact legisla7 tion based on the Group’s consensus work product;

8 and

9 (6) this Act reflects the recommendations made

10 by that Group.

11 SEC. 3. AIR TOUR MANAGEMENT PLANS FOR NATIONAL

12 PARKS.

13 (a) IN GENERAL.—Chapter 401 of title 49, United

14 States Code, is amended by adding at the end the fol15 lowing:

16 ‘‘§ 40125. Overflights of national parks

17 ‘‘(a) IN GENERAL.—

18 ‘‘(1) GENERAL REQUIREMENTS.—A commercial

19 air tour operator may not conduct commercial air

20 tour operations over a national park (including tribal

21 lands) except—

22 ‘‘(A) in accordance with this section;

23 ‘‘(B) in accordance with conditions and

24 limitations prescribed for that operator by the

25 Administrator; and
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1 ‘‘(C) in accordance with any applicable air

2 tour management plan for the park.

3 ‘‘(2) APPLICATION FOR OPERATING AUTHOR4 ITY.—

5 ‘‘(A) APPLICATION REQUIRED.—Before

6 commencing commercial air tour operations

7 over a national park (including tribal lands), a

8 commercial air tour operator shall apply to the

9 Administrator for authority to conduct the op10 erations over the park.

11 ‘‘(B) COMPETITIVE BIDDING FOR LIMITED

12 CAPACITY PARKS.—Whenever an air tour man13 agement plan limits the number of commercial

14 air tour operations over a national park during

15 a specified time frame, the Administrator, in

16 cooperation with the Director, shall issue oper17 ation specifications to commercial air tour oper18 ators that conduct such operations. The oper19 ation specifications shall include such terms and

20 conditions as the Administrator and the Direc21 tor find necessary for management of commer22 cial air tour operations over the park. The Ad23 ministrator, in cooperation with the Director,

24 shall develop an open competitive process for

25 evaluating proposals from persons interested in
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1 providing commercial air tour operations over

2 the park. In making a selection from among

3 various proposals submitted, the Administrator,

4 in cooperation with the Director, shall consider

5 relevant factors, including—

6 ‘‘(i) the safety record of the person

7 submitting the proposal or pilots employed

8 by the person;

9 ‘‘(ii) any quiet aircraft technology pro10 posed to be used by the person submitting

11 the proposal;

12 ‘‘(iii) the experience of the person sub13 mitting the proposal with commercial air

14 tour operations over other national parks

15 or scenic areas;

16 ‘‘(iv) the financial capability of the

17 company;

18 ‘‘(v) any training programs for pilots

19 provided by the person submitting the pro20 posal; and

21 ‘‘(vi) responsiveness of the person

22 submitting the proposal to any relevant

23 criteria developed by the National Park

24 Service for the affected park.
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1 ‘‘(C) NUMBER OF OPERATIONS AUTHOR2 IZED.—In determining the number of author3 izations to issue to provide commercial air tour

4 operations over a national park, the Adminis5 trator, in cooperation with the Director, shall

6 take into consideration the provisions of the air

7 tour management plan, the number of existing

8 commercial air tour operators and current level

9 of service and equipment provided by any such

10 operators, and the financial viability of each

11 commercial air tour operation.

12 ‘‘(D) COOPERATION WITH NPS.—Before

13 granting an application under this paragraph,

14 the Administrator, in cooperation with the Di15 rector, shall develop an air tour management

16 plan in accordance with subsection (b) and im17 plement such plan.

18 ‘‘(3) EXCEPTION.—

19 ‘‘(A) IN GENERAL.—If a commercial air

20 tour operator secures a letter of agreement

21 from the Administrator and the superintendent

22 for the national park that describes the condi23 tions under which the commercial air tour oper24 ation will be conducted, then notwithstanding

25 paragraph (1), the commercial air tour operator
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1 may conduct such operations over the national

2 park under part 91 of title 14, Code of Federal

3 Regulations, if such activity is permitted under

4 part 119 of such title.

5 ‘‘(B) LIMIT ON EXCEPTIONS.—Not more

6 than 5 flights in any 30-day period over a sin7 gle national park may be conducted under this

8 paragraph.

9 ‘‘(4) SPECIAL RULE FOR SAFETY REQUIRE10 MENTS.—Notwithstanding subsection (d), an exist11 ing commercial air tour operator shall apply, not

12 later than 90 days after the date of enactment of

13 this section, for operating authority under part 119,

14 121, or 135 of title 14, Code of Federal Regulations.

15 A new entrant commercial air tour operator shall

16 apply for such authority before conducting commer17 cial air tour operations over a national park (includ18 ing tribal lands). The Administrator shall act on any

19 such application for a new entrant and issue a deci20 sion on the application not later than 24 months

21 after it is received or amended.

22 ‘‘(b) AIR TOUR MANAGEMENT PLANS.—

23 ‘‘(1) ESTABLISHMENT.—

24 ‘‘(A) IN GENERAL.—The Administrator, in

25 cooperation with the Director, shall establish an
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1 air tour management plan for any national park

2 (including tribal lands) for which such a plan is

3 not in effect whenever a person applies for au4 thority to conduct a commercial air tour oper5 ation over the park. The air tour management

6 plan shall be developed by means of a public

7 process in accordance with paragraph (4).

8 ‘‘(B) OBJECTIVE.—The objective of any

9 air tour management plan shall be to develop

10 acceptable and effective measures to mitigate or

11 prevent the significant adverse impacts, if any,

12 of commercial air tours upon the natural and

13 cultural resources, visitor experiences, and trib14 al lands.

15 ‘‘(2) ENVIRONMENTAL DETERMINATION.—In

16 establishing an air tour management plan under this

17 subsection, the Administrator and the Director shall

18 each sign the environmental decision document re19 quired by section 102 of the National Environmental

20 Policy Act of 1969 (42 U.S.C. 4332) (including a

21 finding of no significant impact, an environmental

22 assessment, and an environmental impact statement)

23 and the record of decision for the air tour manage24 ment plan.
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1 ‘‘(3) CONTENTS.—An air tour management

2 plan for a national park—

3 ‘‘(A) may limit or prohibit commercial air

4 tour operations;

5 ‘‘(B) may establish conditions for the con6 duct of commercial air tour operations, includ7 ing commercial air tour operation routes, max8 imum or minimum altitudes, time-of-day re9 strictions, restrictions for particular events,

10 maximum number of flights per unit of time,

11 intrusions on privacy on tribal lands, and miti12 gation of adverse noise, visual, or other im13 pacts;

14 ‘‘(C) may apply to all commercial air tour

15 operations;

16 ‘‘(D) shall include incentives (such as pre17 ferred commercial air tour operation routes and

18 altitudes and relief from flight caps and cur19 fews) for the adoption of quiet aircraft tech20 nology by commercial air tour operators con21 ducting commercial air tour operations over the

22 park;

23 ‘‘(E) shall provide a system for allocating

24 opportunities to conduct commercial air tours if

25 the air tour management plan includes a limita-
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1 tion on the number of commercial air tour oper2 ations for any time period; and

3 ‘‘(F) shall justify and document the need

4 for measures taken pursuant to subparagraphs

5 (A) through (E) and include such justifications

6 in the record of decision.

7 ‘‘(4) PROCEDURE.—In establishing an air tour

8 management plan for a national park (including

9 tribal lands), the Administrator and the Director

10 shall—

11 ‘‘(A) hold at least one public meeting with

12 interested parties to develop the air tour man13 agement plan;

14 ‘‘(B) publish the proposed plan in the Fed15 eral Register for notice and comment and make

16 copies of the proposed plan available to the

17 public;

18 ‘‘(C) comply with the regulations set forth

19 in sections 1501.3 and 1501.5 through 1501.8

20 of title 40, Code of Federal Regulations (for

21 purposes of complying with the regulations, the

22 Federal Aviation Administration shall be the

23 lead agency and the National Park Service is a

24 cooperating agency); and
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1 ‘‘(D) solicit the participation of any Indian

2 tribe whose tribal lands are, or may be,

3 overflown by aircraft involved in a commercial

4 air tour operation over the park, as a cooper5 ating agency under the regulations referred to

6 in subparagraph (C).

7 ‘‘(5) JUDICIAL REVIEW.—An air tour manage8 ment plan developed under this subsection shall be

9 subject to judicial review.

10 ‘‘(6) AMENDMENTS.—The Administrator, in co11 operation with the Director, may make amendments

12 to an air tour management plan. Any such amend13 ments shall be published in the Federal Register for

14 notice and comment. A request for amendment of an

15 air tour management plan shall be made in such

16 form and manner as the Administrator may pre17 scribe.

18 ‘‘(c) DETERMINATION OF COMMERCIAL AIR TOUR

19 OPERATION STATUS.—In making a determination of

20 whether a flight is a commercial air tour operation, the

21 Administrator may consider—

22 ‘‘(1) whether there was a holding out to the

23 public of willingness to conduct a sightseeing flight

24 for compensation or hire;
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1 ‘‘(2) whether a narrative that referred to areas

2 or points of interest on the surface below the route

3 of the flight was provided by the person offering the

4 flight;

5 ‘‘(3) the area of operation;

6 ‘‘(4) the frequency of flights conducted by the

7 person offering the flight;

8 ‘‘(5) the route of flight;

9 ‘‘(6) the inclusion of sightseeing flights as part

10 of any travel arrangement package offered by the

11 person offering the flight;

12 ‘‘(7) whether the flight would have been can13 celed based on poor visibility of the surface below

14 the route of the flight; and

15 ‘‘(8) any other factors that the Administrator

16 considers appropriate.

17 ‘‘(d) INTERIM OPERATING AUTHORITY.—

18 ‘‘(1) IN GENERAL.—Upon application for oper19 ating authority, the Administrator shall grant in20 terim operating authority under this subsection to a

21 commercial air tour operator for commercial air tour

22 operations over a national park (including tribal

23 lands) for which the operator is an existing commer24 cial air tour operator.
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1 ‘‘(2) REQUIREMENTS AND LIMITATIONS.—In2 terim operating authority granted under this

3 subsection—

4 ‘‘(A) shall provide annual authorization

5 only for the greater of—

6 ‘‘(i) the number of flights used by the

7 operator to provide such tours within the

8 12-month period prior to the date of enact9 ment of this section; or

10 ‘‘(ii) the average number of flights per

11 12-month period used by the operator to

12 provide such tours within the 36-month pe13 riod prior to such date of enactment, and,

14 for seasonal operations, the number of

15 flights so used during the season or sea16 sons covered by that 12-month period;

17 ‘‘(B) may not provide for an increase in

18 the number of commercial air tour operations

19 conducted during any time period by the com20 mercial air tour operator above the number that

21 the air tour operator was originally granted un22 less such an increase is agreed to by the Ad23 ministrator and the Director;
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1 ‘‘(C) shall be published in the Federal Reg2 ister to provide notice and opportunity for com3 ment;

4 ‘‘(D) may be revoked by the Administrator

5 for cause;

6 ‘‘(E) shall terminate 180 days after the

7 date on which an air tour management plan is

8 established for the park or the tribal lands;

9 ‘‘(F) shall promote protection of national

10 park resources, visitor experiences, and tribal

11 lands;

12 ‘‘(G) shall promote safe operations of the

13 commercial air tour;

14 ‘‘(H) shall promote the adoption of quiet

15 technology, as appropriate; and

16 ‘‘(I) shall allow for modifications of the op17 eration based on experience if the modification

18 improves protection of national park resources

19 and values and of tribal lands.

20 ‘‘(e) EXEMPTIONS.—

21 ‘‘(1) IN GENERAL.—Except as provided by

22 paragraph (2), this section shall not apply to—

23 ‘‘(A) the Grand Canyon National Park;

24 ‘‘(B) tribal lands within or abutting the

25 Grand Canyon National Park; or
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1 ‘‘(C) any unit of the National Park System

2 located in Alaska or any other land or water lo3 cated in Alaska.

4 ‘‘(2) EXCEPTION.—This section shall apply to

5 the Grand Canyon National Park if section 3 of

6 Public Law 100–91 (16 U.S.C. 1a–1 note; 101 Stat.

7 674–678) is no longer in effect.

8 ‘‘(f) DEFINITIONS.—In this section, the following

9 definitions apply:

10 ‘‘(1) COMMERCIAL AIR TOUR OPERATOR.—The

11 term ‘commercial air tour operator’ means any per12 son who conducts a commercial air tour operation.

13 ‘‘(2) EXISTING COMMERCIAL AIR TOUR OPER14 ATOR.—The term ‘existing commercial air tour oper15 ator’ means a commercial air tour operator that was

16 actively engaged in the business of providing com17 mercial air tour operations over a national park at

18 any time during the 12-month period ending on the

19 date of enactment of this section.

20 ‘‘(3) NEW ENTRANT COMMERCIAL AIR TOUR

21 OPERATOR.—The term ‘new entrant commercial air

22 tour operator’ means a commercial air tour operator

23 that—
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1 ‘‘(A) applies for operating authority as a

2 commercial air tour operator for a national

3 park; and

4 ‘‘(B) has not engaged in the business of

5 providing commercial air tour operations over

6 the national park (including tribal lands) in the

7 12-month period preceding the application.

8 ‘‘(4) COMMERCIAL AIR TOUR OPERATION.—The

9 term ‘commercial air tour operation’ means any

10 flight, conducted for compensation or hire in a pow11 ered aircraft where a purpose of the flight is sightseeing over a national park, within 1 12 ⁄2 mile outside

13 the boundary of any national park, or over tribal

14 lands, during which the aircraft flies—

15 ‘‘(A) below a minimum altitude, deter16 mined by the Administrator in cooperation with

17 the Director, above ground level (except solely

18 for purposes of takeoff or landing, or necessary

19 for safe operation of an aircraft as determined

20 under the rules and regulations of the Federal

21 Aviation Administration requiring the pilot-in22 command to take action to ensure the safe op23 eration of the aircraft); or
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1 ‘‘(B) less than 1 mile laterally from any

2 geographic feature within the park (unless more

than 1 3 ⁄2 mile outside the boundary).

4 ‘‘(5) NATIONAL PARK.—The term ‘national

5 park’ means any unit of the National Park System.

6 ‘‘(6) TRIBAL LANDS.—The term ‘tribal lands’

7 means Indian country (as that term is defined in

8 section 1151 of title 18, United States Code) that is

9 within or abutting a national park.

10 ‘‘(7) ADMINISTRATOR.—The term ‘Adminis11 trator’ means the Administrator of the Federal Avia12 tion Administration.

13 ‘‘(8) DIRECTOR.—The term ‘Director’ means

14 the Director of the National Park Service.’’.

15 (b) CLERICAL AMENDMENT.—The table of sections

16 for chapter 401 of title 49, United States Code, is amend17 ed by adding at the end the following:

‘‘40125. Overflights of national parks.’’.

18 SEC. 4. ADVISORY GROUP.

19 (a) ESTABLISHMENT.—Not later than 1 year after

20 the date of enactment of this Act, the Administrator and

21 the Director shall jointly establish an advisory group to

22 provide continuing advice and counsel with respect to com23 mercial air tour operations over and near national parks.

24 (b) MEMBERSHIP.—
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1 (1) IN GENERAL.—The advisory group shall be

2 composed of—

3 (A) a balanced group of—

4 (i) representatives of general aviation;

5 (ii) representatives of commercial air

6 tour operators;

7 (iii) representatives of environmental

8 concerns; and

9 (iv) representatives of Indian tribes;

10 (B) a representative of the Federal Avia11 tion Administration; and

12 (C) a representative of the National Park

13 Service.

14 (2) EX-OFFICIO MEMBERS.—The Administrator

15 (or the designee of the Administrator) and the Di16 rector (or the designee of the Director) shall serve

17 as ex-officio members.

18 (3) CHAIRPERSON.—The representative of the

19 Federal Aviation Administration and the representa20 tive of the National Park Service shall serve alter21 nating 1-year terms as chairman of the advisory

22 group, with the representative of the Federal Avia23 tion Administration serving initially until the end of

24 the calendar year following the year in which the ad25 visory group is first appointed.
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1 (c) DUTIES.—The advisory group shall provide ad2 vice, information, and recommendations to the Adminis3 trator and the Director—

4 (1) on the implementation of this Act and the

5 amendments made by this Act;

6 (2) on commonly accepted quiet aircraft tech7 nology for use in commercial air tour operations over

8 national parks (including tribal lands), which will re9 ceive preferential treatment in a given air tour man10 agement plan;

11 (3) on other measures that might be taken to

12 accommodate the interests of visitors to national

13 parks; and

14 (4) at request of the Administrator and the Di15 rector, safety, environmental, and other issues re16 lated to commercial air tour operations over a na17 tional park (including tribal lands).

18 (d) COMPENSATION; SUPPORT; FACA.—

19 (1) COMPENSATION AND TRAVEL.—Members of

20 the advisory group who are not officers or employees

21 of the United States, while attending conferences or

22 meetings of the group or otherwise engaged in its

23 business, or while serving away from their homes or

24 regular places of business, may be allowed travel ex25 penses, including per diem in lieu of subsistence, as
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1 authorized by section 5703 of title 5, United States

2 Code, for persons in the Government service em3 ployed intermittently.

4 (2) ADMINISTRATIVE SUPPORT.—The Federal

5 Aviation Administration and the National Park

6 Service shall jointly furnish to the advisory group

7 clerical and other assistance.

8 (3) NONAPPLICATION OF FACA.—Section 14 of

9 the Federal Advisory Committee Act (5 U.S.C.

10 App.) does not apply to the advisory group.

11 SEC. 5. REPORTS.

12 (a) OVERFLIGHT FEE REPORT.—Not later than 180

13 days after the date of enactment of this Act, the Adminis14 trator shall transmit to Congress a report on the effects

15 overflight fees are likely to have on the commercial air

16 tour operation industry. The report shall include, but shall

17 not be limited to—

18 (1) the viability of a tax credit for the commer19 cial air tour operators equal to the amount of any

20 overflight fees charged by the National Park Service;

21 and

22 (2) the financial effects proposed offsets are

23 likely to have on Federal Aviation Administration

24 budgets and appropriations.
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1 (b) QUIET AIRCRAFT TECHNOLOGY REPORT.—Not

2 later than 2 years after the date of enactment of this Act,

3 the Administrator and the Director shall jointly transmit

4 a report to Congress on the effectiveness of this Act in

5 providing incentives for the development and use of quiet

6 aircraft technology.

7 SEC. 6. EXEMPTIONS.

8 This Act shall not apply to—

9 (1) any unit of the National Park System lo10 cated in Alaska; or

11 (2) any other land or water located in Alaska.

12 SEC. 7. DEFINITIONS.

13 In this Act, the following definitions apply:

14 (1) ADMINISTRATOR.—The term ‘‘Adminis15 trator’’ means the Administrator of the Federal

16 Aviation Administration.

17 (2) DIRECTOR.—The term ‘‘Director’’ means

18 the Director of the National Park Service.