II

106TH CONGRESS

1ST SESSION S. 81

To authorize the Federal Aviation Administration to establish rules governing

park overflights.

IN THE SENATE OF THE UNITED STATES

JANUARY 19, 1999

Mr. MCCAIN (for himself, Mr. FRIST, Mr. ALLARD, and Mr. AKAKA) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

A BILL

To authorize the Federal Aviation Administration to establish

rules governing park overflights.

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 Over5 flights Act’’.

6 SEC. 2. FINDINGS.

7 The Congress finds that—

8 (1) the Federal Aviation Administration has

9 sole authority to control airspace over the United

10 States;
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1 (2) the Federal Aviation Administration has the

2 authority to preserve, protect, and enhance the envi3 ronment by minimizing, mitigating, or preventing

4 the adverse effects of aircraft overflights on the pub5 lic and tribal lands;

6 (3) the National Park Service has the respon7 sibility of conserving the scenery and natural and

8 historic objects and wildlife in national parks and of

9 providing for the enjoyment of the national parks in

10 ways that leave the national parks unimpaired for

11 future generations;

12 (4) the protection of tribal lands from aircraft

13 overflights is consistent with protecting the public

14 health and welfare and is essential to the mainte15 nance of the natural and cultural resources of In16 dian tribes;

17 (5) the National Parks Overflights Working

18 Group, composed of general aviation, air tour, envi19 ronmental, and Native American representatives,

20 recommended that the Congress enact legislation

21 based on its consensus work product; and

22 (6) this Act reflects the recommendations made

23 by that Group.
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1 SEC. 3. AIR TOUR MANAGEMENT PLANS FOR NATIONAL

2 PARKS.

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

4 States Code, is amended by adding at the end the follow5 ing:

6 ‘‘§ 40125. Overflights of national parks

7 ‘‘(a) IN GENERAL.—

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

9 air tour operator may not conduct commercial air

10 tour operations over a national park or tribal lands

11 except—

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

13 ‘‘(B) in accordance with conditions and

14 limitations prescribed for that operator by the

15 Administrator; and

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

17 tour management plan for that park or those

18 tribal lands.

19 ‘‘(2) APPLICATION FOR OPERATING AUTHOR20 ITY.—

21 ‘‘(A) APPLICATION REQUIRED.—Before

22 commencing commercial air tour operations

23 over a national park or tribal lands, a commer24 cial air tour operator shall apply to the Admin25 istrator for authority to conduct the operations

26 over that park or those tribal lands.
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1 ‘‘(B) COMPETITIVE BIDDING FOR LIMITED

2 CAPACITY PARKS.—Whenever a commercial air

3 tour management plan limits the number of

4 commercial air tour flights over a national park

5 area during a specified time frame, the Admin6 istrator, in cooperation with the Director, shall

7 authorize commercial air tour operators to pro8 vide such service. The authorization shall speci9 fy such terms and conditions as the Adminis10 trator and the Director find necessary for man11 agement of commercial air tour operations over

12 the national park. The Administrator, in co13 operation with the Director, shall develop an

14 open competitive process for evaluating propos15 als from persons interested in providing com16 mercial air tour services over the national park.

17 In making a selection from among various pro18 posals submitted, the Administrator, in co19 operation with the Director, shall consider rel20 evant factors, including—

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

22 or pilots;

23 ‘‘(ii) any quiet aircraft technology pro24 posed for use;
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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 affected national park.

11 ‘‘(C) NUMBER OF OPERATIONS AUTHOR12 IZED.—In determining the number of author13 izations to issue to provide commercial air tour

14 service over a national park, the Administrator,

15 in cooperation with the Director, shall take into

16 consideration the provisions of the air tour

17 management plan, the number of existing com18 mercial air tour operators and current level of

19 service and equipment provided by any such

20 companies, and the financial viability of each

21 commercial air tour operation.

22 ‘‘(D) COOPERATION WITH NPS.—Before

23 granting an application under this paragraph,

24 the Administrator shall, in cooperation with the

25 Director, develop an air tour management plan
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1 in accordance with subsection (b) and imple2 ment such plan.

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

4 APPLICATIONS.—The Administrator shall act on

5 any such application and issue a decision on the

6 application not later than 24 months after it is

7 received or amended.

8 ‘‘(3) EXCEPTION.—Notwithstanding paragraph

9 (1), commercial air tour operators may conduct com10 mercial air tour operations over a national park

11 under part 91 of the Federal Aviation Regulations

12 (14 CFR 91.1 et seq.) if—

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

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

15 ‘‘(B) the operator secures a letter of agree16 ment from the Administrator and the national

17 park superintendent for that national park de18 scribing the conditions under which the flight

19 operations will be conducted; and

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

21 this exception is limited to not more than 5

22 flights in any 30-day period over a particular

23 park.

24 ‘‘(4) SPECIAL RULE FOR SAFETY REQUIRE25 MENTS.—Notwithstanding subsection (c), an exist-
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1 ing commercial air tour operator shall, not later

2 than 90 days after the date of enactment of the Na3 tional Parks Overflights Act, apply for operating au4 thority under part 119, 121, or 135 of the Federal

5 Aviation Regulations (14 CFR Pt. 119, 121, or

6 135). A new entrant commercial air tour operator

7 shall apply for such authority before conducting

8 commercial air tour operations over a national park

9 or tribal lands.

10 ‘‘(b) AIR TOUR MANAGEMENT PLANS.—

11 ‘‘(1) ESTABLISHMENT OF ATMPS.—

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

13 shall, in cooperation with the Director, establish

14 an air tour management plan for any national

15 park or tribal land for which such a plan is not

16 already in effect whenever a person applies for

17 authority to operate a commercial air tour over

18 the park. The development of the air tour man19 agement plan is to be a cooperative undertaking

20 between the Federal Aviation Administration

21 and the National Park Service. The air tour

22 management plan shall be developed by means

23 of a public process, and the agencies shall de24 velop information and analysis that explains the

25 conclusions that the agencies make in the appli-
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1 cation of the respective criteria. Such expla2 nations shall be included in the Record of Deci3 sion and may be subject to judicial review.

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 and visitor experiences and

10 tribal 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) which may in17 clude a finding of no significant impact, an environ18 mental assessment, or an environmental impact

19 statement, and the Record of Decision for the air

20 tour management plan.

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

22 plan for a national park—

23 ‘‘(A) may prohibit commercial air tour op24 erations in whole or in part;
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1 ‘‘(B) may establish conditions for the con2 duct of commercial air tour operations, includ3 ing commercial air tour routes, maximum or

4 minimum altitudes, time-of-day restrictions, re5 strictions for particular events, maximum num6 ber of flights per unit of time, intrusions on pri7 vacy on tribal lands, and mitigation of noise,

8 visual, or other impacts;

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

within 1 10 ⁄2 mile outside the boundary of a na11 tional park;

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

14 relief from caps and curfews) for the adoption

15 of quiet aircraft technology by commercial air

16 tour operators conducting commercial air tour

17 operations at the park;

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

19 of opportunities to conduct commercial air

20 tours if the plan includes a limitation on the

21 number of commercial air tour flights for any

22 time period; and

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

24 for measures taken pursuant to subparagraphs

25 (A) through (E).
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1 ‘‘(4) PROCEDURE.—In establishing a commer2 cial air tour management plan for a national park,

3 the Administrator and the Director shall—

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

5 with interested parties to develop a commercial

6 air tour management plan for the park;

7 ‘‘(B) publish the proposed plan in the Fed8 eral Register for notice and comment and make

9 copies of the proposed plan available to the

10 public;

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

12 in sections 1501.3 and 1501.5 through 1501.8

13 of title 40, Code of Federal Regulations (for

14 purposes of complying with those regulations,

15 the Federal Aviation Administration is the lead

16 agency and the National Park Service is a co17 operating agency); and

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

19 tribe whose tribal lands are, or may be,

20 overflown by aircraft involved in commercial air

21 tour operations over a national park or tribal

22 lands, as a cooperating agency under the regu23 lations referred to in paragraph (4)(C).

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

25 tour management plan shall be published in the
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1 Federal Register for notice and comment. A request

2 for amendment of an air tour management plan

3 shall be made in such form and manner as the Ad4 ministrator may prescribe.

5 ‘‘(c) INTERIM OPERATING AUTHORITY.—

6 ‘‘(1) IN GENERAL.—Upon application for oper7 ating authority, the Administrator shall grant in8 terim operating authority under this paragraph to a

9 commercial air tour operator for a national park or

10 tribal lands for which the operator is an existing

11 commercial air tour operator.

12 ‘‘(2) REQUIREMENTS AND LIMITATIONS.—In13 terim operating authority granted under this

14 subsection—

15 ‘‘(A) shall provide annual authorization

16 only for the greater of—

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

18 operator to provide such tours within the

19 12-month period prior to the date of enact20 ment of the National Parks Overflights

21 Act; or

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

23 12-month period used by the operator to

24 provide such tours within the 36-month pe25 riod prior to such date of enactment, and,
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1 for seasonal operations, the number of

2 flights so used during the season or sea3 sons covered by that 12-month period;

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

5 the number of operations conducted during any

6 time period by the commercial air tour operator

7 to which it is granted unless the increase is

8 agreed to by the Administrator and the Direc9 tor;

10 ‘‘(C) shall be published in the Federal Reg11 ister to provide notice and opportunity for com12 ment;

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

14 for cause;

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

16 date on which an air tour management plan is

17 established for that park or those tribal lands;

18 and

19 ‘‘(F) shall—

20 ‘‘(i) promote protection of national

21 park resources, visitor experiences, and

22 tribal lands;

23 ‘‘(ii) promote safe operations of the

24 commercial air tour;
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1 ‘‘(iii) promote the adoption of quiet

2 technology, as appropriate; and

3 ‘‘(iv) allow for modifications of the op4 eration based on experience if the modi5 fication improves protection of national

6 park resources and values and of tribal

7 lands.

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

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

10 cooperation with the Director, may grant in11 terim operating authority under this paragraph

12 to an air tour operator for a national park for

13 which that operator is a new entrant air tour

14 operator if the Administrator determines the

15 authority is necessary to ensure competition in

16 the provision of commercial air tours over that

17 national park or those tribal lands.

18 ‘‘(B) SAFETY LIMITATION.—The Adminis19 trator may not grant interim operating author20 ity under subparagraph (A) if the Adminis21 trator determines that it would create a safety

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

23 Director determines that it would create a noise

24 problem at that park or on tribal lands.
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1 ‘‘(C) ATMP LIMITATION.—The Adminis2 trator may grant interim operating authority

3 under subparagraph (A) of this paragraph only

4 if the air tour management plan for the park or

5 tribal lands to which the application relates has

6 not been developed within 24 months after the

7 date of enactment of the National Parks Over8 flights Act.

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

10 definitions apply:

11 ‘‘(1) COMMERCIAL AIR TOUR.—The term ‘com12 mercial air tour’ means any flight conducted for

13 compensation or hire in a powered aircraft where a

14 purpose of the flight is sightseeing. If the operator

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

16 air tour, factors that can be considered by the Ad17 ministrator in making a determination of whether

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

19 not limited to—

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

21 the public of willingness to conduct a sightsee22 ing flight for compensation or hire;

23 ‘‘(B) whether a narrative was provided

24 that referred to areas or points of interest on

25 the surface;
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1 ‘‘(C) the area of operation;

2 ‘‘(D) the frequency of flights;

3 ‘‘(E) the route of flight;

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

5 part of any travel arrangement package; or

6 ‘‘(G) whether the flight or flights in ques7 tion would or would not have been canceled

8 based on poor visibility of the surface.

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

10 term ‘commercial air tour operator’ means any per11 son who conducts a commercial air tour.

12 ‘‘(3) EXISTING COMMERCIAL AIR TOUR OPERA13 TOR.—The term ‘existing commercial air tour opera14 tor’ means a commercial air tour operator that was

15 actively engaged in the business of providing com16 mercial air tours over a national park at any time

17 during the 12-month period ending on the date of

18 enactment of the National Parks Overflights Act.

19 ‘‘(4) NEW ENTRANT COMMERCIAL AIR TOUR

20 OPERATOR.—The term ‘new entrant commercial air

21 tour operator’ means a commercial air tour operator

22 that—

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

24 commercial air tour operator for a national

25 park; and
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1 ‘‘(B) has not engaged in the business of

2 providing commercial air tours over that na3 tional park or those tribal lands in the 12-

4 month period preceding the application.

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

6 The term ‘commercial air tour operations’ means

7 commercial air tour flight operations conducted—

‘‘(A) over a national park or within 1 8 ⁄2 mile

9 outside the boundary of any national park;

10 ‘‘(B) below a minimum altitude, deter11 mined by the Administrator in cooperation with

12 the Director, above ground level (except solely

13 for purposes of takeoff or landing, or necessary

14 for safe operation of an aircraft as determined

15 under the rules and regulations of the Federal

16 Aviation Administration requiring the pilot-in17 command to take action to ensure the safe op18 eration of the aircraft); and

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

20 geographic feature within the park (unless more

than 1 21 ⁄2 mile outside the boundary).

22 ‘‘(6) NATIONAL PARK.—The term ‘national

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

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

25 means ‘Indian country’, as defined by section 1151
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1 of title 18, United States Code, that is within or

2 abutting a national park.

3 ‘‘(8) ADMINISTRATOR.—The term ‘Adminis4 trator’ means the Administrator of the Federal Avia5 tion Administration.

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

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

8 (b) EXEMPTIONS.—

9 (1) GRAND CANYON.—Section 40125 of title

10 49, United States Code, as added by subsection (a),

11 does not apply to—

12 (A) the Grand Canyon National Park; or

13 (B) Indian country within or abutting the

14 Grand Canyon National Park.

15 (2) ALASKA.—The provisions of this Act and

16 section 40125 of title 49, United States Code, as

17 added by subsection (a), do not apply to any land

18 or waters located in Alaska.

19 (3) COMPLIANCE WITH OTHER REGULATIONS.—

20 For purposes of section 40125 of title 49, United

21 States Code—

22 (A) regulations issued by the Secretary of

23 Transportation and the Administrator of the

24 Federal Aviation Administration under section
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1 3 of Public Law 100–91 (16 U.S.C. 1a–1,

2 note); and

3 (B) commercial air tour operations carried

4 out in compliance with the requirements of

5 those regulations,

6 shall be deemed to meet the requirements of such

7 section 40125.

8 (c) CLERICAL AMENDMENT.—The table of sections

9 for chapter 401 of title 49, United States Code, is amend10 ed by adding at the end thereof the following:

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

11 SEC. 4. ADVISORY GROUP.

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

13 the date of enactment of this Act, the Administrator of

14 the Federal Aviation Administration and the Director of

15 the National Park Service shall jointly establish an advi16 sory group to provide continuing advice and counsel with

17 respect to the operation of commercial air tours over and

18 near national parks.

19 (b) MEMBERSHIP.—

20 (1) IN GENERAL.—The advisory group shall be

21 composed of—

22 (A) a balanced group of —

23 (i) representatives of general aviation;

24 (ii) representatives of commercial air

25 tour operators;
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1 (iii) representatives of environmental

2 concerns; and

3 (iv) representatives of Indian tribes;

4 (B) a representative of the Federal Avia5 tion Administration; and

6 (C) a representative of the National Park

7 Service.

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

9 and the Director shall serve as ex-officio members.

10 (3) CHAIRPERSON.—The representative of the

11 Federal Aviation Administration and the representa12 tive of the National Park Service shall serve alter13 nating 1-year terms as chairman of the advisory

14 group, with the representative of the Federal Avia15 tion Administration serving initially until the end of

16 the calendar year following the year in which the ad17 visory group is first appointed.

18 (c) DUTIES.—The advisory group shall provide ad19 vice, information, and recommendations to the Adminis20 trator and the Director—

21 (1) on the implementation of this Act;

22 (2) on the designation of appropriate and fea23 sible quiet aircraft technology standards for quiet

24 aircraft technologies under development for commer-
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1 cial purposes, which will receive preferential treat2 ment in a given air tour management plan;

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

4 accommodate the interests of visitors to national

5 parks; and

6 (4) on such other national park or tribal lands7 related safety, environmental, and air touring issues

8 as the Administrator and the Director may request.

9 (d) COMPENSATION; SUPPORT; FACA.—

10 (1) COMPENSATION AND TRAVEL.—Members of

11 the advisory group who are not officers or employees

12 of the United States, while attending conferences or

13 meetings of the group or otherwise engaged in its

14 business, or while serving away from their homes or

15 regular places of business, each member may be al16 lowed travel expenses, including per diem in lieu of

17 subsistence, as authorized by section 5703 of title 5,

18 United States Code, for persons in the Government

19 service employed intermittently.

20 (2) ADMINISTRATIVE SUPPORT.—The Federal

21 Aviation Administration and the National Park

22 Service shall jointly furnish to the advisory group

23 clerical and other assistance.
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1 (3) NONAPPLICATION OF FACA.—Section 14 of

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

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

4 (e) REPORT.—The Administrator and the Director

5 shall jointly report to the Congress within 24 months after

6 the date of enactment of this Act on the success of this

7 Act in providing incentives for quiet aircraft technology.

8 SEC. 5. OVERFLIGHT FEE REPORT.

9 Not later than 180 days after the date of enactment

10 of this Act, the Administrator of the Federal Aviation Ad11 ministration shall transmit to Congress a report on the

12 effects proposed overflight fees are likely to have on the

13 commercial air tour industry. The report shall include, but

14 shall not be limited to—

15 (1) the viability of a tax credit for the commer16 cial air tour operators equal to the amount of the

17 proposed fee charged by the National Park Service;

18 and

19 (2) the financial effects proposed offsets are

20 likely to have on Federal Aviation Administration

21 budgets and appropriations.

22 SEC. 6. PROHIBITION OF COMMERCIAL AIR TOURS OVER

23 THE ROCKY MOUNTAIN NATIONAL PARK.

24 Effective beginning on the date of enactment of this

25 Act, no commercial air tour may be operated in the air-
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1 space over the Rocky Mountain National Park notwith2 standing any other provision of this Act or section 40125

3 of title 49, United States Code, as added by this Act.

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