IIB

106TH CONGRESS

1ST SESSION H. R. 717

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 28, 1999

Received; read twice and referred to the Committee on Commerce, Science,

and Transportation

AN ACT

To amend title 49, United States Code, to regulate

overflights of national parks, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE.

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

3 Tour Management Act of 1999’’.

4 SEC. 2. FINDINGS.

5 Congress finds that—

6 (1) the Federal Aviation Administration has

7 sole authority to control airspace over the United

8 States;

9 (2) the Federal Aviation Administration has the

10 authority to preserve, protect, and enhance the envi11 ronment by minimizing, mitigating, or preventing

12 the adverse effects of aircraft overflights of public

13 and tribal lands;

14 (3) the National Park Service has the responsi15 bility of conserving the scenery and natural and his16 toric objects and wildlife in national parks and of

17 providing for the enjoyment of the national parks in

18 ways that leave the national parks unimpaired for

19 future generations;

20 (4) the protection of tribal lands from aircraft

21 overflights is consistent with protecting the public

22 health and welfare and is essential to the mainte23 nance of the natural and cultural resources of In24 dian tribes;

25 (5) the National Parks Overflights Working

26 Group, composed of general aviation, commercial air
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1 tour, environmental, and Native American represent2 atives, recommended that the Congress enact legisla3 tion based on the Group’s consensus work product;

4 and

5 (6) this Act reflects the recommendations made

6 by that Group.

7 SEC. 3. AIR TOUR MANAGEMENT PLANS FOR NATIONAL

8 PARKS.

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

10 States Code, is amended by adding at the end the fol11 lowing:

12 ‘‘§ 40125. Overflights of national parks

13 ‘‘(a) IN GENERAL.—

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

15 air tour operator may not conduct commercial air

16 tour operations over a national park (including tribal

17 lands) except—

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

19 ‘‘(B) in accordance with conditions and

20 limitations prescribed for that operator by the

21 Administrator; and

22 ‘‘(C) in accordance with any applicable air

23 tour management plan for the park.

24 ‘‘(2) APPLICATION FOR OPERATING AUTHOR25 ITY.—
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1 ‘‘(A) APPLICATION REQUIRED.—Before

2 commencing commercial air tour operations

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

4 commercial air tour operator shall apply to the

5 Administrator for authority to conduct the op6 erations over the park.

7 ‘‘(B) COMPETITIVE BIDDING FOR LIMITED

8 CAPACITY PARKS.—Whenever an air tour man9 agement plan limits the number of commercial

10 air tour operations over a national park during

11 a specified time frame, the Administrator, in

12 cooperation with the Director, shall issue oper13 ation specifications to commercial air tour oper14 ators that conduct such operations. The oper15 ation specifications shall include such terms and

16 conditions as the Administrator and the Direc17 tor find necessary for management of commer18 cial air tour operations over the park. The Ad19 ministrator, in cooperation with the Director,

20 shall develop an open competitive process for

21 evaluating proposals from persons interested in

22 providing commercial air tour operations over

23 the park. In making a selection from among

24 various proposals submitted, the Administrator,
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1 in cooperation with the Director, shall consider

2 relevant factors, including—

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

4 submitting the proposal or pilots employed

5 by the person;

6 ‘‘(ii) any quiet aircraft technology pro7 posed to be used by the person submitting

8 the proposal;

9 ‘‘(iii) the experience of the person sub10 mitting the proposal with commercial air

11 tour operations over other national parks

12 or scenic areas;

13 ‘‘(iv) the financial capability of the

14 company;

15 ‘‘(v) any training programs for pilots

16 provided by the person submitting the pro17 posal; and

18 ‘‘(vi) responsiveness of the person

19 submitting the proposal to any relevant

20 criteria developed by the National Park

21 Service for the affected park.

22 ‘‘(C) NUMBER OF OPERATIONS AUTHOR23 IZED.—In determining the number of author24 izations to issue to provide commercial air tour

25 operations over a national park, the Adminis-
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1 trator, in cooperation with the Director, shall

2 take into consideration the provisions of the air

3 tour management plan, the number of existing

4 commercial air tour operators and current level

5 of service and equipment provided by any such

6 operators, and the financial viability of each

7 commercial air tour operation.

8 ‘‘(D) COOPERATION WITH NPS.—Before

9 granting an application under this paragraph,

10 the Administrator, in cooperation with the Di11 rector, shall develop an air tour management

12 plan in accordance with subsection (b) and im13 plement such plan.

14 ‘‘(3) EXCEPTION.—

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

16 tour operator secures a letter of agreement

17 from the Administrator and the superintendent

18 for the national park that describes the condi19 tions under which the commercial air tour oper20 ation will be conducted, then notwithstanding

21 paragraph (1), the commercial air tour operator

22 may conduct such operations over the national

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

24 Regulations, if such activity is permitted under

25 part 119 of such title.
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1 ‘‘(B) LIMIT ON EXCEPTIONS.—Not more

2 than 5 flights in any 30-day period over a sin3 gle national park may be conducted under this

4 paragraph.

5 ‘‘(4) SPECIAL RULE FOR SAFETY REQUIRE6 MENTS.—Notwithstanding subsection (c), an exist7 ing commercial air tour operator shall apply, not

8 later than 90 days after the date of the enactment

9 of this section, for operating authority under part

10 119, 121, or 135 of title 14, Code of Federal Regu11 lations. A new entrant commercial air tour operator

12 shall apply for such authority before conducting

13 commercial air tour operations over a national park

14 (including tribal lands). The Administrator shall act

15 on any such application for a new entrant and issue

16 a decision on the application not later than 24

17 months after it is received or amended.

18 ‘‘(b) AIR TOUR MANAGEMENT PLANS.—

19 ‘‘(1) ESTABLISHMENT.—

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

21 cooperation with the Director, shall establish an

22 air tour management plan for any national park

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

24 not in effect whenever a person applies for au25 thority to conduct a commercial air tour oper-
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1 ation over the park. The air tour management

2 plan shall be developed by means of a public

3 process in accordance with paragraph (4).

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

5 air tour management plan shall be to develop

6 acceptable and effective measures to mitigate or

7 prevent the significant adverse impacts, if any,

8 of commercial air tours upon the natural and

9 cultural resources, visitor experiences, and trib10 al lands.

11 ‘‘(2) ENVIRONMENTAL DETERMINATION.—In

12 establishing an air tour management plan under this

13 subsection, the Administrator and the Director shall

14 each sign the environmental decision document re15 quired by section 102 of the National Environmental

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

17 finding of no significant impact, an environmental

18 assessment, and an environmental impact statement)

19 and the record of decision for the air tour manage20 ment plan.

21 ‘‘(3) CONTENTS.—An air tour management

22 plan for a national park—

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

24 tour operations;
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1 ‘‘(B) may establish conditions for the con2 duct of commercial air tour operations, includ3 ing commercial air tour operation routes, max4 imum or minimum altitudes, time-of-day re5 strictions, restrictions for particular events,

6 maximum number of flights per unit of time,

7 intrusions on privacy on tribal lands, and miti8 gation of adverse noise, visual, or other im9 pacts;

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

11 operations;

12 ‘‘(D) shall include incentives (such as pre13 ferred commercial air tour operation routes and

14 altitudes and relief from flight caps and cur15 fews) for the adoption of quiet aircraft tech16 nology by commercial air tour operators con17 ducting commercial air tour operations over the

18 park;

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

20 opportunities to conduct commercial air tours if

21 the air tour management plan includes a limita22 tion on the number of commercial air tour oper23 ations for any time period; and

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

25 for measures taken pursuant to subparagraphs
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1 (A) through (E) and include such justifications

2 in the record of decision.

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

4 management plan for a national park (including

5 tribal lands), the Administrator and the Director

6 shall—

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

8 interested parties to develop the air tour man9 agement plan;

10 ‘‘(B) publish the proposed plan in the Fed11 eral Register for notice and comment and make

12 copies of the proposed plan available to the

13 public;

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

15 in sections 1501.3 and 1501.5 through 1501.8

16 of title 40, Code of Federal Regulations (for

17 purposes of complying with the regulations, the

18 Federal Aviation Administration shall be the

19 lead agency and the National Park Service is a

20 cooperating agency); and

21 ‘‘(D) solicit the participation of any Indian

22 tribe whose tribal lands are, or may be,

23 overflown by aircraft involved in a commercial

24 air tour operation over the park, as a cooper-
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1 ating agency under the regulations referred to

2 in subparagraph (C).

3 ‘‘(5) JUDICIAL REVIEW.—An air tour manage4 ment plan developed under this subsection shall be

5 subject to judicial review.

6 ‘‘(6) AMENDMENTS.—The Administrator, in co7 operation with the Director, may make amendments

8 to an air tour management plan. Any such amend9 ments shall be published in the Federal Register for

10 notice and comment. A request for amendment of an

11 air tour management plan shall be made in such

12 form and manner as the Administrator may pre13 scribe.

14 ‘‘(c) DETERMINATION OF COMMERCIAL AIR TOUR

15 OPERATION STATUS.—In making a determination of

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

17 Administrator may consider—

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

19 public of willingness to conduct a sightseeing flight

20 for compensation or hire;

21 ‘‘(2) whether a narrative that referred to areas

22 or points of interest on the surface below the route

23 of the flight was provided by the person offering the

24 flight;

25 ‘‘(3) the area of operation;
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1 ‘‘(4) the frequency of flights conducted by the

2 person offering the flight;

3 ‘‘(5) the route of flight;

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

5 of any travel arrangement package offered by the

6 person offering the flight;

7 ‘‘(7) whether the flight would have been can8 celed based on poor visibility of the surface below

9 the route of the flight; and

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

11 considers appropriate.

12 ‘‘(d) INTERIM OPERATING AUTHORITY.—

13 ‘‘(1) IN GENERAL.—Upon application for oper14 ating authority, the Administrator shall grant in15 terim operating authority under this subsection to a

16 commercial air tour operator for commercial air tour

17 operations over a national park (including tribal

18 lands) for which the operator is an existing commer19 cial air tour operator.

20 ‘‘(2) REQUIREMENTS AND LIMITATIONS.—In21 terim operating authority granted under this

22 subsection—

23 ‘‘(A) shall provide annual authorization

24 only for the greater of—
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1 ‘‘(i) the number of flights used by the

2 operator to provide such tours within the

3 12-month period prior to the date of the

4 enactment of this section; or

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

6 12-month period used by the operator to

7 provide such tours within the 36-month pe8 riod prior to such date of the enactment,

9 and, for seasonal operations, the number

10 of flights so used during the season or sea11 sons covered by that 12-month period;

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

13 the number of commercial air tour operations

14 conducted during any time period by the com15 mercial air tour operator above the number that

16 the air tour operator was originally granted un17 less such an increase is agreed to by the Ad18 ministrator and the Director;

19 ‘‘(C) shall be published in the Federal Reg20 ister to provide notice and opportunity for com21 ment;

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

23 for cause;
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1 ‘‘(E) shall terminate 180 days after the

2 date on which an air tour management plan is

3 established for the park or the tribal lands;

4 ‘‘(F) shall promote protection of national

5 park resources, visitor experiences, and tribal

6 lands;

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

8 commercial air tour;

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

10 technology, as appropriate; and

11 ‘‘(I) shall allow for modifications of the op12 eration based on experience if the modification

13 improves protection of national park resources

14 and values and of tribal lands.

15 ‘‘(e) EXEMPTIONS.—

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

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

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

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

20 Grand Canyon National Park; or

21 ‘‘(C) any unit of the National Park System

22 located in Alaska or any other land or water lo23 cated in Alaska.

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

25 the Grand Canyon National Park if section 3 of
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1 Public Law 100–91 (16 U.S.C. 1a–1 note; 101 Stat.

2 674–678) is no longer in effect.

3 ‘‘(3) LAKE MEAD.—This section shall not apply

4 to any air tour operator while flying over or near the

5 Lake Mead National Recreation Area solely, as a

6 transportation route, to conduct an air tour over the

7 Grand Canyon National Park.

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 the 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 sight12 seeing over a national park, within one-half mile out13 side the boundary of any national park, or over trib14 al 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

3 than one-half 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 the enactment of this Act, the Administrator

21 and the Director shall jointly establish an advisory group

22 to provide continuing advice and counsel with respect to

23 commercial air tour operations over and near national

24 parks.

25 (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 the enactment of this Act, the Ad14 ministrator shall transmit to Congress a report on the ef15 fects overflight fees are likely to have on the commercial

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

17 shall 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 the enactment of this

3 Act, the Administrator and the Director shall jointly

4 transmit a report to Congress on the effectiveness of this

5 Act in providing incentives for the development and use

6 of quiet aircraft technology.

7 SEC. 6. METHODOLOGIES USED TO ASSESS AIR TOUR

8 NOISE.

9 Any methodology adopted by a Federal agency to as10 sess air tour noise in any unit of the national park system

11 (including the Grand Canyon and Alaska) shall be based

12 on reasonable scientific methods.

13 SEC. 7. DEFINITIONS.

14 In this Act, the following definitions apply:

15 (1) ADMINISTRATOR.—The term ‘‘Adminis16 trator’’ means the Administrator of the Federal

17 Aviation Administration.

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

19 the Director of the National Park Service.

Passed the House of Representatives September 27,

1999.

Attest: JEFF TRANDAHL,

Clerk.