II

106TH CONGRESS

1ST SESSION S. 306

To regulate commercial air tours overflying the Great Smoky Mountains

National Park, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JANUARY 25, 1999

Mr. FRIST introduced the following bill; which was read twice and referred

to the Committee on Commerce, Science, and Transportation

A BILL

To regulate commercial air tours overflying the Great Smoky

Mountains National Park, 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,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Great Smoky Moun5 tains National Park Overflights Act’’.

6 SEC. 2. AIR TOUR MANAGEMENT PLANS FOR NATIONAL

7 PARKS.

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

9 States Code, is amended by adding at the end the follow10 ing:
2

S 306 IS

1 ‘‘§ 40125. Overflights of certain national parks

2 ‘‘(a) IN GENERAL.—

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

4 air tour operator may not conduct commercial air

5 tour operations over the Great Smoky Mountains

6 National Park or tribal lands adjacent thereto

7 except—

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

9 ‘‘(B) in accordance with conditions and

10 limitations prescribed for that operator by the

11 Administrator; and

12 ‘‘(C) in accordance with any effective air

13 tour management plan for that park or those

14 tribal lands.

15 ‘‘(2) APPLICATION FOR OPERATING AUTHOR16 ITY.—

17 ‘‘(A) APPLICATION REQUIRED.—Before

18 commencing commercial air tour operations

19 over the Great Smoky Mountains National Park

20 or tribal lands adjacent thereto, a commercial

21 air tour operator shall apply to the Adminis22 trator for authority to conduct the operations

23 over that park or those tribal lands.

24 ‘‘(B) COMPETITIVE BIDDING FOR LIMITED

25 CAPACITY PARKS.—Whenever a commercial air

26 tour management plan limits the number of
3

S 306 IS

1 commercial air tour flights over the Great

2 Smoky Mountains National Park or tribal lands

3 adjacent thereto during a specified time frame,

4 the Administrator, in cooperation with the Di5 rector, shall authorize commercial air tour oper6 ators to provide such service. The authorization

7 shall specify such terms and conditions as the

8 Administrator and the Director find necessary

9 for management of commercial air tour oper10 ations over the Great Smoky Mountains Na11 tional Park or tribal lands adjacent thereto.

12 The Administrator, in cooperation with the Di13 rector, shall develop an open competitive proc14 ess for evaluating proposals from persons inter15 ested in providing commercial air tour services

16 over the Great Smoky Mountains National Park

17 or tribal lands adjacent thereto. In making a

18 selection from among various proposals submit19 ted, the Administrator, in cooperation with the

20 Director, shall consider relevant factors,

21 including—

22 ‘‘(i) the safety record of the company

23 or pilots;

24 ‘‘(ii) any quiet aircraft technology pro25 posed for use;
4

S 306 IS

1 ‘‘(iii) the experience in commercial air

2 tour operations over other national parks

3 or scenic areas;

4 ‘‘(iv) the financial capability of the

5 company;

6 ‘‘(v) any training programs for pilots;

7 and

8 ‘‘(vi) responsiveness to any criteria de9 veloped by the National Park Service or

10 the Great Smoky Mountains National

11 Park.

12 ‘‘(C) NUMBER OF OPERATIONS AUTHOR13 IZED.—In determining the number of author14 izations to issue to provide commercial air tour

15 service over the Great Smoky Mountains Na16 tional Park or tribal lands adjacent thereto, the

17 Administrator, in cooperation with the Director,

18 shall take into consideration the provisions of

19 the air tour management plan, the number of

20 existing commercial air tour operators and cur21 rent level of service and equipment provided by

22 any such companies, and the financial viability

23 of each commercial air tour operation.

24 ‘‘(D) COOPERATION WITH NPS.—Before

25 granting an application under this paragraph,
5

S 306 IS

1 the Administrator shall, in cooperation with the

2 Director, develop an air tour management plan

3 in accordance with subsection (b) and imple4 ment such plan.

5 ‘‘(E) TIME LIMIT ON RESPONSE TO ATMP

6 APPLICATIONS.—The Administrator shall act on

7 any such application and issue a decision on the

8 application not later than 24 months after it is

9 received or amended.

10 ‘‘(3) EXCEPTION.—Notwithstanding paragraph

11 (1), commercial air tour operators may conduct com12 mercial air tour operations over the Great Smoky

13 Mountains National Park or tribal lands adjacent

14 thereto under part 91 of the Federal Aviation Regu15 lations (14 CFR 91.1 et seq.) if—

16 ‘‘(A) such activity is permitted under part

17 119 (14 CFR 119.1(e)(2));

18 ‘‘(B) the operator secures a letter of agree19 ment from the Administrator and the national

20 park superintendent for that national park de21 scribing the conditions under which the flight

22 operations will be conducted; and

23 ‘‘(C) the total number of operations under

24 this exception is limited to not more than 5

25 flights in any 30-day period over the park.
6

S 306 IS

1 ‘‘(4) SPECIAL RULE FOR SAFETY REQUIRE2 MENTS.—Notwithstanding subsection (c), an exist3 ing commercial air tour operator shall, not later

4 than 90 days after the date of enactment of Great

5 Smoky Mountains National Park Overflights Act,

6 apply for operating authority under part 119, 121,

7 or 135 of the Federal Aviation Regulations (14 CFR

8 Pt. 119, 121, or 135). A new entrant commercial air

9 tour operator shall apply for such authority before

10 conducting commercial air tour operations over the

11 Great Smoky Mountains National Park or tribal

12 lands adjacent thereto.

13 ‘‘(b) AIR TOUR MANAGEMENT PLANS.—

14 ‘‘(1) ESTABLISHMENT OF ATMPS.—

15 ‘‘(A) IN GENERAL.—The Administrator

16 shall, in cooperation with the Director, establish

17 an air tour management plan for the Great

18 Smoky Mountains National Park or tribal lands

19 adjacent thereto if such a plan is not already in

20 effect whenever a person applies for authority

21 to operate a commercial air tour over the park.

22 The development of the air tour management

23 plan is to be a cooperative undertaking between

24 the Federal Aviation Administration and the

25 National Park Service. The air tour manage-
7

S 306 IS

1 ment plan shall be developed by means of a

2 public process, and the agencies shall develop

3 information and analysis that explains the con4 clusions that the agencies make in the applica5 tion of the respective criteria. Such explanations

6 shall be included in the Record of Decision and

7 may be subject to judicial review.

8 ‘‘(B) OBJECTIVE.—The objective of the air

9 tour management plan shall be to develop ac10 ceptable 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 and visitor experiences and

14 tribal 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) which may in21 clude a finding of no significant impact, an environ22 mental assessment, or an environmental impact

23 statement, and the Record of Decision for the air

24 tour management plan.
8

S 306 IS

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

2 plan for the Great Smoky Mountain National

3 Park—

4 ‘‘(A) may prohibit commercial air tour op5 erations in whole or in part;

6 ‘‘(B) may establish conditions for the con7 duct of commercial air tour operations, includ8 ing commercial air tour routes, maximum or

9 minimum altitudes, time-of-day restrictions, re10 strictions for particular events, maximum num11 ber of flights per unit of time, intrusions on pri12 vacy on tribal lands, and mitigation of noise,

13 visual, or other impacts;

14 ‘‘(C) shall apply to all commercial air tours

within 1 15 ⁄2, mile outside the boundary of that na16 tional park;

17 ‘‘(D) shall include incentives (such as pre18 ferred commercial air tour routes and altitudes,

19 relief from caps and curfews) for the adoption

20 of quiet aircraft technology by commercial air

21 tour operators conducting commercial air tour

22 operations at the park;

23 ‘‘(E) shall provide for the initial allocation

24 of opportunities to conduct commercial air

25 tours if the plan includes a limitation on the
9

S 306 IS

1 number of commercial air tour flights for any

2 time period; and

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

4 for measures taken pursuant to the subpara5 graphs (A) through (E).

6 ‘‘(4) PROCEDURE.—In establishing a commer7 cial air tour management plan for the Great Smoky

8 Mountains National Park or tribal lands adjacent

9 thereto, the Administrator and the Director shall—

10 ‘‘(A) initiate at least one public meeting

11 with interested parties to develop a commercial

12 air tour management plan for the park;

13 ‘‘(B) publish the proposed plan in the Fed14 eral Register for notice and comment and make

15 copies of the proposed plan available to the

16 public;

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

18 in sections 1501.3 and 1501.5 through 1501.8

19 of title 40, Code of Federal Regulations (for

20 purposes of complying with those regulations,

21 the Federal Aviation Administration is the lead

22 agency and the National Park Service is a co23 operating agency); and

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

25 tribe whose tribal lands are, or may be,
10

S 306 IS

1 overflown by aircraft involved in commercial air

2 tour operations over a national park or tribal

3 lands, as a cooperating agency under the regu4 lations referred to in paragraph (4)(C).

5 ‘‘(5) AMENDMENTS.—Any amendment of an air

6 tour management plan shall be published in the

7 Federal Register for notice and comment. A request

8 for amendment of an air tour management plan

9 shall be made in such form and manner as the Ad10 ministrator may prescribe.

11 ‘‘(c) INTERIM OPERATING AUTHORITY.—

12 ‘‘(1) IN GENERAL.—Upon application for oper13 ating authority, the Administrator shall grant in14 terim operating authority under this paragraph to a

15 commercial air tour operator for the Great Smoky

16 Mountains National Park or tribal lands adjacent

17 thereto for which the operator is an existing com18 mercial air tour operator.

19 ‘‘(2) REQUIREMENTS AND LIMITATIONS.—In20 terim operating authority granted under this

21 subsection—

22 ‘‘(A) shall provide annual authorization

23 only for the greater of—

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

25 operator to provide such tours within the
11

S 306 IS

1 12-month period prior to the date of enact2 ment of the Great Smoky Mountains Na3 tional Park Overflights Act; or

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

5 12-month period used by the operator to

6 provide such tours within the 36-month pe7 riod prior to such date of enactment, and,

8 for seasonal operations, the number of

9 flights so used during the season or sea10 sons covered by that 12-month period;

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

12 the number of operations conducted during any

13 time period by the commercial air tour operator

14 to which it is granted unless the increase is

15 agreed to by the Administrator and the Direc16 tor;

17 ‘‘(C) shall be published in the Federal Reg18 ister to provide notice and opportunity for com19 ment;

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

21 for cause;

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

23 date on which an air tour management plan is

24 established for that park or those tribal lands;

25 and
12

S 306 IS

1 ‘‘(F) shall—

2 ‘‘(i) promote protection of national

3 park resources, visitor experiences, and

4 tribal lands;

5 ‘‘(ii) promote safe operations of the

6 commercial air tour;

7 ‘‘(iii) promote the adoption of quiet

8 technology, as appropriate; and

9 ‘‘(iv) allow for modifications of the op10 eration based on experience if the modi11 fication improves protection of national

12 park resources and values and of tribal

13 lands.

14 ‘‘(3) NEW ENTRANT AIR TOUR OPERATORS.—

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

16 cooperation with the Director, may grant in17 terim operating authority under this paragraph

18 to an air tour operator for the Great Smoky

19 Mountains National Park or tribal lands adja20 cent thereto if that operator is a new entrant

21 air tour operator if the Administrator deter22 mines the authority is necessary to ensure com23 petition in the provision of commercial air tours

24 over that national park or those tribal lands.
13

S 306 IS

1 ‘‘(B) SAFETY LIMITATION.—The Adminis2 trator may not grant interim operating author3 ity under subparagraph (A) if the Adminis4 trator determines that it would create a safety

5 problem at that park or on tribal lands, or the

6 Director determines that it would create a noise

7 problem at that park or on tribal lands.

8 ‘‘(C) ATMP LIMITATION.—The Adminis9 trator may grant interim operating authority

10 under subparagraph (A) of this paragraph only

11 if the air tour management plan for the park or

12 tribal lands to which the application relates has

13 not been developed within 24 months after the

14 date of enactment of the Air Transportation

15 Improvement Act.

16 ‘‘(d) DEFINITIONS.—In this section, the following 25

17 definitions apply:

18 ‘‘(1) COMMERCIAL AIR TOUR.—The term ‘com19 mercial air tour’ means any flight conducted for

20 compensation or hire in a powered aircraft where a

21 purpose of the flight is sightseeing. If the operator

22 of a flight asserts that the flight is not a commercial

23 air tour, factors that can be considered by the Ad24 ministrator in making a determination of whether
14

S 306 IS

1 the flight is a commercial air tour, include, but are

2 not limited to—

3 ‘‘(A) whether there was a holding out to

4 the public of willingness to conduct a sightsee5 ing flight for compensation or hire;

6 ‘‘(B) whether a narrative was provided

7 that referred to areas or points of interest on

8 the surface;

9 ‘‘(C) the area of operation;

10 ‘‘(D) the frequency of flights;

11 ‘‘(E) the route of flight;

12 ‘‘(F) the inclusion of sightseeing flights as

13 part of any travel arrangement package; or

14 ‘‘(G) whether the flight or flights in ques15 tion would or would not have been canceled

16 based on poor visibility of the surface.

17 ‘‘(2) COMMERCIAL AIR TOUR OPERATOR.—The

18 term ‘commercial air tour operator’ means any per19 son who conducts a commercial air tour.

20 ‘‘(3) EXISTING COMMERCIAL AIR TOUR OPERA21 TOR.—The term ‘existing commercial air tour opera22 tor’ means a commercial air tour operator that was

23 actively engaged in the business of providing com24 mercial air tours over a national park at any time

25 during the 12-month period ending on the date of
15

S 306 IS

1 enactment of the Air Transportation Improvement

2 Act.

3 ‘‘(4) NEW ENTRANT COMMERCIAL AIR TOUR

4 OPERATOR.—The term ‘new entrant commercial air

5 tour operator’ means a commercial air tour operator

6 that—

7 ‘‘(A) applies for operating authority as a

8 commercial air tour operator for a national

9 park; and

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

11 providing commercial air tours over that na12 tional park or those tribal lands in the 12-

13 month period preceding the application.

14 ‘‘(5) COMMERCIAL AIR TOUR OPERATIONS.—

15 The term ‘commercial air tour operations’ means

16 commercial air tour flight operations conducted—

‘‘(A) over a national park or within 1 17 ⁄2 mile

18 outside the boundary of any national park;

19 ‘‘(B) below a minimum altitude, deter20 mined by the Administrator in cooperation with

21 the Director, above ground level (except solely

22 for purposes of takeoff or landing, or necessary

23 for safe operation of an aircraft as determined

24 under the rules and regulations of the Federal

25 Aviation Administration requiring the pilot-in-
16

S 306 IS

1 command to take action to ensure the safe op2 eration of the aircraft); and

3 ‘‘(C) less than 1 mile laterally from any

4 geographic feature within the park (unless more

than 1 5 ⁄2 mile outside the boundary).

6 ‘‘(6) GREAT SMOKY MOUNTAINS NATIONAL

7 PARK.—The term ‘Great Smoky Mountains National

8 Park’ means the Great Smoky Mountains National

9 Park to which reference is made in section 3 of the

10 Federal Water Power Act (16 U.S.C. 403b) and any

11 other unit of the National Park System in or contig12 uous to the State of Tennessee designated by the Di13 rector.

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

15 means ‘Indian country’, as defined by section 1151

16 of title 18, United States Code, that is within or

17 abutting the Great Smoky Mountains National Park.

18 ‘‘(8) ADMINISTRATOR.—The term ‘Adminis19 trator’ means the Administrator of the Federal Avia20 tion Administration.

21 ‘‘(9) DIRECTOR.—The term ‘Director’ means

22 the Director of the National Park Service.’’.
17

S 306 IS

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

2 for such chapter 401 is amended by adding at the end

3 thereof the following:

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

Æ