49 U.S.C. § 40128 (TRANSPORTATION)
§ 40128. Overflights of national parks
(a) In General.—
(1) General requirements.—
A commercial air tour operator may not conduct commercial air tour operations over a national park or tribal lands, as defined by this section, except—
(A) in accordance with this section;
(B) in accordance with conditions and limitations prescribed for that operator by the Administrator; and
(C) in accordance with any applicable air tour management plan or voluntary agreement under subsection (b)(7) for the park or tribal lands.
(2) Application for operating authority.—
(A) Application required.—
Before commencing commercial air tour operations over a national park or tribal lands, a commercial air tour operator shall apply to the Administrator for authority to conduct the operations over the park or tribal lands.
(B) Competitive bidding for limited capacity parks.—
Whenever an air tour management plan limits the number of commercial air tour operations over a national park during a specified time frame, the Administrator, in cooperation with the Director, shall issue operation specifications to commercial air tour operators that conduct such operations. The operation specifications shall include such terms and conditions as the Administrator and the Director find necessary for management of commercial air tour operations over the park. The Administrator, in cooperation with the Director, shall develop an open competitive process for evaluating proposals from persons interested in providing commercial air tour operations over the park. In making a selection from among various proposals submitted, the Administrator, in cooperation with the Director, shall consider relevant factors, including—
(i) the safety record of the person submitting the proposal or pilots employed by the person;
(ii) any quiet aircraft technology proposed to be used by the person submitting the proposal;
(iii) the experience of the person submitting the proposal with commercial air tour operations over other national parks or scenic areas;
(iv) the financial capability of the person submitting the proposal;
(v) any training programs for pilots provided by the person submitting the proposal; and
(vi) responsiveness of the person submitting the proposal to any relevant criteria developed by the National Park Service for the affected park.
(C) Number of operations authorized.—
In determining the number of authorizations to issue to provide commercial air tour operations over a national park, the Administrator, in cooperation with the Director, shall take into consideration the provisions of the air tour management plan, the number of existing commercial air tour operators and current level of service and equipment provided by any such operators, and the financial viability of each commercial air tour operation.
(D) Cooperation with nps.—
Before granting an application under this paragraph, the Administrator, in cooperation with the Director, shall develop an air tour management plan in accordance with subsection (b) and implement such plan.
(E) Time limit on response to atmp applications.—
The Administrator shall make every effort to act on any application under this paragraph and issue a decision on the application not later than 24 months after it is received or amended.
(F) Priority.—
In acting on applications under this paragraph to provide commercial air tour operations over a national park, the Administrator shall give priority to an application under this paragraph in any case in which a new entrant commercial air tour operator is seeking operating authority with respect to that national park.
(3) Exception.—
Notwithstanding paragraph (1), commercial air tour operators may conduct commercial air tour operations over a national park under part 91 of title 14, Code of Federal Regulations if—
(A) such activity is permitted under part 119 of such title;
(B) the operator secures a letter of agreement from the Administrator and the national park superintendent for that national park describing the conditions under which the operations will be conducted; and
(C) the total number of operations under this exception is limited to not more than five flights in any 30-day period over a particular park.
(4) Special rule for safety requirements.—
Notwithstanding subsection (c), an existing commercial air tour operator shall apply, not later than 90 days after the date of the enactment of this section, for operating authority under part 119, 121, or 135 of title 14, Code of Federal Regulations. A new entrant commercial air tour operator shall apply for such authority before conducting commercial air tour operations over a national park or tribal lands. The Administrator shall make every effort to act on any such application for a new entrant and issue a decision on the application not later than 24 months after it is received or amended.
(5) Exemption for national parks with 50 or fewer flights each year.—
(A) In general.—
Notwithstanding paragraph (1), a national park that has 50 or fewer commercial air tour operations over the park each year shall be exempt from the requirements of this section, except as provided in subparagraph (B).
(B) Withdrawal of exemption.—
If the Director determines that an air tour management plan or voluntary agreement is necessary to protect park resources and values or park visitor use and enjoyment, the Director shall withdraw the exemption of a park under subparagraph (A).
(C) List of parks.—
(i) In general.—
The Director and Administrator shall jointly publish a list each year of national parks that are covered by the exemption provided under this paragraph.
(ii) Notification of withdrawal of exemption.—
The Director shall inform the Administrator, in writing, of each determination to withdraw an exemption under subparagraph (B).
(D) Annual report.—
A commercial air tour operator conducting commercial air tour operations over a national park that is exempt from the requirements of this section shall submit to the Administrator and the Director a report each year that includes the number of commercial air tour operations the operator conducted during the preceding 1-year period over such park.
(b) Air Tour Management Plans.—
(1) Establishment.—
(A) In general.—
The Administrator, in cooperation with the Director, shall establish an air tour management plan for any national park or tribal land for which such a plan is not in effect whenever a person applies for authority to conduct a commercial air tour operation over the park. The air tour management plan shall be developed by means of a public process in accordance with paragraph (4).
(B) Objective.—
The objective of any air tour management plan shall be to develop acceptable and effective measures to mitigate or prevent the significant adverse impacts, if any, of commercial air tour operations upon the natural and cultural resources, visitor experiences, and tribal lands.
(C) Exception.—
An application to begin or expand commercial air tour operations at Crater Lake National Park or Great Smoky Mountains National Park may be denied without the establishment of an air tour management plan by the Director of the National Park Service if the Director determines that such operations would adversely affect park resources or visitor experiences.
(2) Environmental determination.—
In establishing an air tour management plan under this subsection, the Administrator and the Director shall each sign the environmental decision document required by section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332) which may include a finding of no significant impact, an environmental assessment, or an environmental impact statement and the record of decision for the air tour management plan.
(3) Contents.—
An air tour management plan for a national park—
(A) may prohibit commercial air tour operations over a national park in whole or in part;
(B) may establish conditions for the conduct of commercial air tour operations over a national park, including commercial air tour routes, maximum or minimum altitudes, time-of-day restrictions, restrictions for particular events, maximum number of flights per unit of time, intrusions on privacy on tribal lands, and mitigation of noise, visual, or other impacts;
(C) shall apply to all commercial air tour operations over a national park that are also within ½ mile outside the boundary of a national park;
(D) shall include incentives (such as preferred commercial air tour routes and altitudes, relief from caps and curfews) for the adoption of quiet aircraft technology by commercial air tour operators conducting commercial air tour operations over a national park;
(E) shall provide for the initial allocation of opportunities to conduct commercial air tour operations over a national park if the plan includes a limitation on the number of commercial air tour operations for any time period; and
(F) shall justify and document the need for measures taken pursuant to subparagraphs (A) through (E) and include such justifications in the record of decision.
(4) Procedure.—
In establishing an air tour management plan for a national park or tribal lands, the Administrator and the Director shall—
(A) hold at least one public meeting with interested parties to develop the air tour management plan;
(B) publish the proposed plan in the Federal Register for notice and comment and make copies of the proposed plan available to the public;
(C) comply with the regulations set forth in sections 1501.3 and 1501.5 through 1501.8 of title 40, Code of Federal Regulations (for purposes of complying with the regulations, the Federal Aviation Administration shall be the lead agency and the National Park Service is a cooperating agency); and
(D) solicit the participation of any Indian tribe whose tribal lands are, or may be, overflown by aircraft involved in a commercial air tour operation over the park or tribal lands to which the plan applies, as a cooperating agency under the regulations referred to in subparagraph (C).
(5) Judicial review.—
An air tour management plan developed under this subsection shall be subject to judicial review.
(6) Amendments.—
The Administrator, in cooperation with the Director, may make amendments to an air tour management plan. Any such amendments shall be published in the Federal Register for notice and comment. A request for amendment of an air tour management plan shall be made in such form and manner as the Administrator may prescribe.
(7) Voluntary agreements.—
(A) In general.—
As an alternative to an air tour management plan, the Director and the Administrator may enter into a voluntary agreement with a commercial air tour operator (including a new entrant commercial air tour operator and an operator that has interim operating authority) that has applied to conduct commercial air tour operations over a national park to manage commercial air tour operations over such national park.
(B) Park protection.—
A voluntary agreement under this paragraph with respect to commercial air tour operations over a national park shall address the management issues necessary to protect the resources of such park and visitor use of such park without compromising aviation safety or the air traffic control system and may—
(i) include provisions such as those described in subparagraphs (B) through (E) of paragraph (3);
(ii) include provisions to ensure the stability of, and compliance with, the voluntary agreement; and
(iii) provide for fees for such operations.
(C) Public review.—
The Director and the Administrator shall provide an opportunity for public review of a proposed voluntary agreement under this paragraph and shall consult with any Indian tribe whose tribal lands are, or may be, flown over by a commercial air tour operator under a voluntary agreement under this paragraph. After such opportunity for public review and consultation, the voluntary agreement may be implemented without further administrative or environmental process beyond that described in this subsection.
(D) Termination.—
(i) In general.—
A voluntary agreement under this paragraph may be terminated at any time at the discretion of—
(I) the Director, if the Director determines that the agreement is not adequately protecting park resources or visitor experiences; or
(II) the Administrator, if the Administrator determines that the agreement is adversely affecting aviation safety or the national aviation system.
(ii) Effect of termination.—
If a voluntary agreement with respect to a national park is terminated under this subparagraph, the operators shall conform to the requirements for interim operating authority under subsection (c) until an air tour management plan for the park is in effect.
(c) Interim Operating Authority.—
(1) In general.—
Upon application for operating authority, the Administrator shall grant interim operating authority under this subsection to a commercial air tour operator for commercial air tour operations over a national park or tribal lands for which the operator is an existing commercial air tour operator.
(2) Requirements and limitations.—
Interim operating authority granted under this subsection—
(A) shall provide annual authorization only for the greater of—
(i) the number of flights used by the operator to provide the commercial air tour operations over a national park within the 12-month period prior to the date of the enactment of this section; or
(ii) the average number of flights per 12-month period used by the operator to provide such operations within the 36-month period prior to such date of enactment, and, for seasonal operations, the number of flights so used during the season or seasons covered by that 12-month period;
(B) may not provide for an increase in the number of commercial air tour operations over a national park conducted during any time period by the commercial air tour operator above the number that the air tour operator was originally granted unless such an increase is agreed to by the Administrator and the Director;
(C) shall be published in the Federal Register to provide notice and opportunity for comment;
(D) may be revoked by the Administrator for cause;
(E) shall terminate 180 days after the date on which an air tour management plan is established for the park or tribal lands;
(F) shall promote protection of national park resources, visitor experiences, and tribal lands;
(G) shall promote safe commercial air tour operations;
(H) shall promote the adoption of quiet technology, as appropriate; and
(I) may allow for modifications of the interim operating authority without further environmental review beyond that described in this subsection, if—
(i) adequate information regarding the existing and proposed operations of the operator under the interim operating authority is provided to the Administrator and the Director;
(ii) the Administrator determines that there would be no adverse impact on aviation safety or the air traffic control system; and
(iii) the Director agrees with the modification, based on the professional expertise of the Director regarding the protection of the resources, values, and visitor use and enjoyment of the park.
(3) New entrant air tour operators.—
(A) In general.—
The Administrator, in cooperation with the Director, may grant interim operating authority under this paragraph to an air tour operator for a national park or tribal lands for which that operator is a new entrant air tour operator without further environmental process beyond that described in this paragraph, if—
(i) adequate information on the proposed operations of the operator is provided to the Administrator and the Director by the operator making the request;
(ii) the Administrator agrees that there would be no adverse impact on aviation safety or the air traffic control system; and
(iii) the Director agrees, based on the Director’s professional expertise regarding the protection of park resources and values and visitor use and enjoyment.
(B) Safety limitation.—
The Administrator may not grant interim operating authority under subparagraph (A) if the Administrator determines that it would create a safety problem at the park or on the tribal lands, or the Director determines that it would create a noise problem at the park or on the tribal lands.
(C) ATMP limitation.—
The Administrator may grant interim operating authority under subparagraph (A) of this paragraph only if the air tour management plan for the park or tribal lands to which the application relates has not been developed within 24 months after the date of the enactment of this section.
(d) Commercial Air Tour Operator Reports.—
(1) Report.—
Each commercial air tour operator conducting a commercial air tour operation over a national park under interim operating authority granted under subsection (c) or in accordance with an air tour management plan or voluntary agreement under subsection (b) shall submit to the Administrator and the Director a report regarding the number of commercial air tour operations over each national park that are conducted by the operator and such other information as the Administrator and Director may request in order to facilitate administering the provisions of this section.
(2) Report submission.—
Not later than 90 days after the date of enactment of the FAA Modernization and Reform Act of 2012, the Administrator and the Director shall jointly issue an initial request for reports under this subsection. The reports shall be submitted to the Administrator and the Director with a frequency and in a format prescribed by the Administrator and the Director.
(e) Exemptions.—
This section shall not apply to—
(1) the Grand Canyon National Park; or
(2) tribal lands within or abutting the Grand Canyon National Park.
(f) Lake Mead.—
This section shall not apply to any air tour operator while flying over or near the Lake Mead National Recreation Area, solely as a transportation route, to conduct an air tour over the Grand Canyon National Park. For purposes of this subsection, an air tour operator flying over the Hoover Dam in the Lake Mead National Recreation Area en route to the Grand Canyon National Park shall be deemed to be flying solely as a transportation route.
(g) Definitions.—
In this section, the following definitions apply:
(1) Commercial air tour operator.—
The term “commercial air tour operator” means any person who conducts a commercial air tour operation over a national park.
(2) Existing commercial air tour operator.—
The term “existing commercial air tour operator” means a commercial air tour operator that was actively engaged in the business of providing commercial air tour operations over a national park at any time during the 12-month period ending on the date of the enactment of this section.
(3) New entrant commercial air tour operator.—
The term “new entrant commercial air tour operator” means a commercial air tour operator that—
(A) applies for operating authority as a commercial air tour operator for a national park or tribal lands; and
(B) has not engaged in the business of providing commercial air tour operations over the national park or tribal lands in the 12-month period preceding the application.
(4) Commercial air tour operation over a national park.—
(A) In general.—
The term “commercial air tour operation over a national park” means any flight, conducted for compensation or hire in a powered aircraft where a purpose of the flight is sightseeing over a national park, within ½ mile outside the boundary of any national park (except the Grand Canyon National Park), or over tribal lands (except those within or abutting the Grand Canyon National Park), during which the aircraft flies—
(i) below a minimum altitude, determined by the Administrator in cooperation with the Director, above ground level (except solely for purposes of takeoff or landing, or necessary for safe operation of an aircraft as determined under the rules and regulations of the Federal Aviation Administration requiring the pilot-in-command to take action to ensure the safe operation of the aircraft); or
(ii) less than 1 mile laterally from any geographic feature within the park (unless more than ½ mile outside the boundary).
(B) Factors to consider.—
In making a determination of whether a flight is a commercial air tour operation over a national park for purposes of this section, the Administrator may consider—
(i) whether there was a holding out to the public of willingness to conduct a sightseeing flight for compensation or hire;
(ii) whether a narrative that referred to areas or points of interest on the surface below the route of the flight was provided by the person offering the flight;
(iii) the area of operation;
(iv) the frequency of flights conducted by the person offering the flight;
(v) the route of flight;
(vi) the inclusion of sightseeing flights as part of any travel arrangement package offered by the person offering the flight;
(vii) whether the flight would have been canceled based on poor visibility of the surface below the route of the flight; and
(viii) any other factors that the Administrator and the Director consider appropriate.
(5) National park.—
The term “national park” means any unit of the National Park System.
(6) Tribal lands.—
The term “tribal lands” means Indian country (as that term is defined in section 1151 of title 18) that is within or abutting a national park.
(7) Administrator.—
The term “Administrator” means the Administrator of the Federal Aviation Administration.
(8) Director.—
The term “Director” means the Director of the National Park Service.
(Added Pub. L. 106–181, title VIII, § 803(a), Apr. 5, 2000, 114 Stat. 186; amended Pub. L. 108–176, title III, § 323(a), Dec. 12, 2003, 117 Stat. 2541; Pub. L. 109–115, div. A, title I, § 177, Nov. 30, 2005, 119 Stat. 2427; Pub. L. 112–95, title V, § 501, Feb. 14, 2012, 126 Stat. 100; Pub. L. 112–141, div. C, title V, § 35002, July 6, 2012, 126 Stat. 843; Pub. L. 115–254, div. B, title V, § 539(c), Oct. 5, 2018, 132 Stat. 3370.)
heading: Editorial Notes
heading: References in Text
text: The date of the enactment of this section, referred to in subsecs. (a)(4), (c)(2)(A), (3)(C), and (g)(2), is the date of enactment of Pub. L. 106–181, which was approved Apr. 5, 2000.
The date of enactment of the FAA Modernization and Reform Act of 2012, referred to in subsec. (d)(2), is the date of enactment of Pub. L. 112–95, which was approved Feb. 14, 2012.
heading: Amendments
text: 2018—Subsec. (a)(3). Pub. L. 115–254 substituted “under part 91 of title 14,” for “under part 91 of the title 14,”.
2012—Subsec. (a)(1)(C). Pub. L. 112–95, § 501(a), inserted “or voluntary agreement under subsection (b)(7)” before “for the park”.
Subsec. (a)(5). Pub. L. 112–95, § 501(b), added par. (5).
Subsec. (b)(1)(C). Pub. L. 112–141 amended subpar. (C) generally. Prior to amendment, text read as follows: “An application to begin commercial air tour operations at Crater Lake National Park may be denied without the establishment of an air tour management plan by the Director of the National Park Service if the Director determines that such operations would adversely affect park resources or visitor experiences.”
Pub. L. 112–95, § 501(c)(1), added subpar. (C).
Subsec. (b)(7). Pub. L. 112–95, § 501(c)(2), added par. (7).
Subsec. (c)(2)(I). Pub. L. 112–95, § 501(d)(1), added subpar. (I) and struck out former subpar. (I) which read as follows: “shall allow for modifications of the interim operating authority based on experience if the modification improves protection of national park resources and values and of tribal lands.”
Subsec. (c)(3)(A). Pub. L. 112–95, § 501(d)(2), substituted “without further environmental process beyond that described in this paragraph, if—” for “if the Administrator determines the authority is necessary to ensure competition in the provision of commercial air tour operations over the park or tribal lands.” and added cls. (i) to (iii).
Subsecs. (d) to (g). Pub. L. 112–95, § 501(e), added subsec. (d) and redesignated former subsecs. (d) to (f) as (e) to (g), respectively.
2005—Subsec. (e). Pub. L. 109–115 inserted at end “For purposes of this subsection, an air tour operator flying over the Hoover Dam in the Lake Mead National Recreation Area en route to the Grand Canyon National Park shall be deemed to be flying solely as a transportation route.”
2003—Subsec. (a)(1). Pub. L. 108–176, § 323(a)(1), inserted “, as defined by this section,” after “tribal lands” in introductory provisions.
Subsec. (b)(3)(A), (B). Pub. L. 108–176, § 323(a)(2), inserted “over a national park” after “operations”.
Subsec. (b)(3)(C). Pub. L. 108–176, § 323(a)(3), inserted “over a national park that are also” after “operations”.
Subsec. (b)(3)(D). Pub. L. 108–176, § 323(a)(4), substituted “over a national park” for “at the park”.
Subsec. (b)(3)(E). Pub. L. 108–176, § 323(a)(5), inserted “over a national park” before “if the plan includes”.
Subsec. (c)(2)(A)(i), (B). Pub. L. 108–176, § 323(a)(6), inserted “over a national park” after “operations”.
Subsec. (f)(1). Pub. L. 108–176, § 323(a)(7), inserted “over a national park” after “operation”.
Subsec. (f)(4). Pub. L. 108–176, § 323(a)(10), inserted “over a national park” after “operation” in heading.
Subsec. (f)(4)(A). Pub. L. 108–176, § 323(a)(8), in introductory provisions, substituted “commercial air tour operation over a national park” for “commercial air tour operation” and “park (except the Grand Canyon National Park), or over tribal lands (except those within or abutting the Grand Canyon National Park),” for “park, or over tribal lands,”.
Subsec. (f)(4)(B). Pub. L. 108–176, § 323(a)(9), inserted “over a national park” after “operation” in introductory provisions.
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of 2012 Amendment
text: Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of Title 23, Highways.
heading: Effective Date of 2003 Amendment
text: Amendment by Pub. L. 108–176 applicable only to fiscal years beginning after Sept. 30, 2003, except as otherwise specifically provided, see section 3 of Pub. L. 108–176, set out as a note under section 106 of this title.
heading: Effective Date
text: Section applicable only to fiscal years beginning after Sept. 30, 1999, see section 3 of Pub. L. 106–181, set out as an Effective Date of 2000 Amendments note under section 106 of this title.
heading: Overflights in Grand Canyon National Park
text: Pub. L. 112–141, div. C, title V, § 35001, July 6, 2012, 126 Stat. 842, provided that:
“(a) Determinations With Respect to Substantial Restoration of Natural Quiet and Experience.—
“(1) In general.—
Notwithstanding any other provision of law, for purposes of section 3(b)(1) of Public Law 100–91 ([former] 16 U.S.C. 1a–1 note [now set out below]), the substantial restoration of the natural quiet and experience of the Grand Canyon National Park (in this section referred to as the ‘Park’) shall be considered to be achieved in the Park if, for at least 75 percent of each day, 50 percent of the Park is free of sound produced by commercial air tour operations that have an allocation to conduct commercial air tours in the Park as of the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112–141, set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of Title 23, Highways].
“(2) Considerations.—
“(A) In general.—
For purposes of determining whether substantial restoration of the natural quiet and experience of the Park has been achieved in accordance with paragraph (1), the Secretary of the Interior (in this section referred to as the ‘Secretary’) shall use—
“(i) the 2-zone system for the Park in effect on the date of enactment of this Act to assess impacts relating to substantial restoration of natural quiet at the Park, including—
“(I) the thresholds for noticeability and audibility; and
“(II) the distribution of land between the 2 zones; and
“(ii) noise modeling science that is—
“(I) developed for use at the Park, specifically Integrated Noise Model Version 6.2;
“(II) validated by reasonable standards for conducting field observations of model results; and
“(III) accepted and validated by the Federal Interagency Committee on Aviation Noise.
“(B) Sound from other sources.—
The Secretary shall not consider sound produced by sources other than commercial air tour operations, including sound emitted by other types of aircraft operations or other noise sources, for purposes of—
“(i) making recommendations, developing a final plan, or issuing regulations relating to commercial air tour operations in the Park; or
“(ii) determining under paragraph (1) whether substantial restoration of the natural quiet and experience of the Park has been achieved.
“(3) Continued monitoring.—
The Secretary shall continue monitoring noise from aircraft operating over the Park below 17,999 feet MSL to ensure continued compliance with the substantial restoration of natural quiet and experience of the Park.
“(4) Day defined.—
For purposes of this section, the term ‘day’ means the hours between 7:00 a.m. and 7:00 p.m.
“(b) Conversion to Quiet Technology Aircraft.—
“(1) In general.—
Not later than 15 years after the date of enactment of this Act, all commercial air tour aircraft operating in the Grand Canyon National Park Special Flight Rules Area shall be required to fully convert to quiet aircraft technology (as determined in accordance with regulations in effect on the day before the date of enactment of this Act).
“(2) Conversion incentives.—
Not later than 60 days after the date of enactment of this Act, the Secretary and the Administrator of the Federal Aviation Administration shall provide incentives for commercial air tour operators that convert to quiet aircraft technology (as determined in accordance with the regulations in effect on the day before the date of enactment of this Act) before the date specified in paragraph (1), such as increasing the flight allocations for such operators on a net basis consistent with section 804(c) of the National Park[s] Air Tours [Tour] Management Act of 2000 (title VIII of Public Law 106–181) [set out below], provided that the cumulative impact of such operations does not increase noise at Grand Canyon National Park.”
heading: Grand Canyon Overflight Rules
text: Pub. L. 109–115, div. A, title I, § 177, Nov. 30, 2005, 119 Stat. 2427, provided in part that: “Nothing in this provision [amending this section] shall allow exemption from overflight rules for the Grand Canyon.”
heading: Quiet Technology Rulemaking for Air Tours Over Grand Canyon National Park
text: Pub. L. 108–176, title III, § 323(b), Dec. 12, 2003, 117 Stat. 2541, provided that:
“(1) Deadline for rule.—
No later than January 2005, the Secretary of Transportation shall issue a final rule to establish standards for quiet technology that are reasonably achievable at Grand Canyon National Park, based on the Supplemental Notice of Proposed Rulemaking on Noise Limitations for Aircraft Operations in the Vicinity of Grand Canyon National Park, published in the Federal Register on March 24, 2003.
“(2) Resolution of disputes.—
Subject to applicable administrative law and procedures, if the Secretary determines that a dispute among interested parties (including outside groups) or government agencies cannot be resolved within a reasonable time frame and could delay finalizing the rulemaking described in subsection (a), or implementation of final standards under such rule, due to controversy over adoption of quiet technology routes, establishment of incentives to encourage adoption of such routes, establishment of incentives to encourage adoption of quite technology, or other measures to achieve substantial restoration of natural quiet, the Secretary shall refer such dispute to a recognized center for environmental conflict resolution.”
heading: National Parks Air Tour Management
text: Pub. L. 106–181, title VIII, Apr. 5, 2000, 114 Stat. 185, as amended by Pub. L. 106–528, § 8(b), Nov. 22, 2000, 114 Stat. 2522, provided that:
“SEC. 801. SHORT TITLE.
“This title may be cited as the ‘National Parks Air Tour Management Act of 2000’.
“SEC. 802. FINDINGS.
“Congress finds that—
“(1) the Federal Aviation Administration has sole authority to control airspace over the United States;
“(2) the Federal Aviation Administration has the authority to preserve, protect, and enhance the environment by minimizing, mitigating, or preventing the adverse effects of aircraft overflights on public and tribal lands;
“(3) the National Park Service has the responsibility of conserving the scenery and natural and historic objects and wildlife in national parks and of providing for the enjoyment of the national parks in ways that leave the national parks unimpaired for future generations;
“(4) the protection of tribal lands from aircraft overflights is consistent with protecting the public health and welfare and is essential to the maintenance of the natural and cultural resources of Indian tribes;
“(5) the National Parks Overflights Working Group, composed of general aviation, commercial air tour, environmental, and Native American representatives, recommended that the Congress enact legislation based on the Group’s consensus work product; and
“(6) this title reflects the recommendations made by that Group.
“SEC. 803. AIR TOUR MANAGEMENT PLANS FOR NATIONAL PARKS.
“(a) In General.—
[Enacted this section.]
“(b) Conforming Amendment.—
[Amended analysis for chapter 401 of this title.]
“(c) Compliance With Other Regulations.—
For purposes of section 40128 of title 49, United States Code—
“(1) regulations issued by the Secretary of Transportation and the Administrator [of the Federal Aviation Administration] under section 3 of Public Law 100–91 ([former] 16 U.S.C. 1a–1 note [now set out below]); and
“(2) commercial air tour operations carried out in compliance with the requirements of those regulations,
shall be deemed to meet the requirements of such section 40128.
“SEC. 804. QUIET AIRCRAFT TECHNOLOGY FOR GRAND CANYON.
“(a) Quiet Technology Requirements.—
Within 12 months after the date of the enactment of this Act [Apr. 5, 2000], the Administrator shall designate reasonably achievable requirements for fixed-wing and helicopter aircraft necessary for such aircraft to be considered as employing quiet aircraft technology for purposes of this section. If the Administrator determines that the Administrator will not be able to make such designation before the last day of such 12-month period, the Administrator shall transmit to Congress a report on the reasons for not meeting such time period and the expected date of such designation.
“(b) Routes or Corridors.—
In consultation with the Director and the advisory group established under section 805, the Administrator shall establish, by rule, routes or corridors for commercial air tour operations (as defined in section 40128(f) of title 49, United States Code) by fixed-wing and helicopter aircraft that employ quiet aircraft technology for—
“(1) tours of the Grand Canyon originating in Clark County, Nevada; and
“(2) ‘local loop’ tours originating at the Grand Canyon National Park Airport, in Tusayan, Arizona,
provided that such routes or corridors can be located in areas that will not negatively impact the substantial restoration of natural quiet, tribal lands, or safety.
“(c) Operational Caps.—
Commercial air tour operations by any fixed-wing or helicopter aircraft that employs quiet aircraft technology and that replaces an existing aircraft shall not be subject to the operational flight allocations that apply to other commercial air tour operations of the Grand Canyon, provided that the cumulative impact of such operations does not increase noise at the Grand Canyon.
“(d) Modification of Existing Aircraft To Meet Standards.—
A commercial air tour operation by a fixed-wing or helicopter aircraft in a commercial air tour operator’s fleet on the date of the enactment of this Act [Apr. 5, 2000] that meets the requirements designated under subsection (a), or is subsequently modified to meet the requirements designated under subsection (a), may be used for commercial air tour operations under the same terms and conditions as a replacement aircraft under subsection (c) without regard to whether it replaces an existing aircraft.
“(e) Mandate To Restore Natural Quiet.—
Nothing in this Act [should be “this title”] shall be construed to relieve or diminish—
“(1) the statutory mandate imposed upon the Secretary of the Interior and the Administrator of the Federal Aviation Administration under Public Law 100–91 ([former] 16 U.S.C. 1a–1 note [now set out below]) to achieve the substantial restoration of the natural quiet and experience at the Grand Canyon National Park; and
“(2) the obligations of the Secretary and the Administrator to promulgate forthwith regulations to achieve the substantial restoration of the natural quiet and experience at the Grand Canyon National Park.
“SEC. 805. ADVISORY GROUP.
“(a) Establishment.—
Not later than 1 year after the date of the enactment of this Act [Apr. 5, 2000], the Administrator [of the Federal Aviation Administration] and the Director of the National Park Service shall jointly establish an advisory group to provide continuing advice and counsel with respect to commercial air tour operations over and near national parks.
“(b) Membership.—
“(1) In general.—
The advisory group shall be composed of—
“(A) a balanced group of—
“(i) representatives of general aviation;
“(ii) representatives of commercial air tour operators;
“(iii) representatives of environmental concerns; and
“(iv) representatives of Indian tribes;
“(B) a representative of the Federal Aviation Administration; and
“(C) a representative of the National Park Service.
“(2) Ex officio members.—
The Administrator (or the designee of the Administrator) and the Director (or the designee of the Director) shall serve as ex officio members.
“(3) Chairperson.—
The representative of the Federal Aviation Administration and the representative of the National Park Service shall serve alternating 1-year terms as chairman of the advisory group, with the representative of the Federal Aviation Administration serving initially until the end of the calendar year following the year in which the advisory group is first appointed.
“(c) Duties.—
The advisory group shall provide advice, information, and recommendations to the Administrator and the Director—
“(1) on the implementation of this title and the amendments made by this title;
“(2) on commonly accepted quiet aircraft technology for use in commercial air tour operations over a national park or tribal lands, which will receive preferential treatment in a given air tour management plan;
“(3) on other measures that might be taken to accommodate the interests of visitors to national parks; and
“(4) at the request of the Administrator and the Director, safety, environmental, and other issues related to commercial air tour operations over a national park or tribal lands.
“(d) Compensation; Support; FACA.—
“(1) Compensation and travel.—
Members of the advisory group who are not officers or employees of the United States, while attending conferences or meetings of the group or otherwise engaged in its business, or while serving away from their homes or regular places of business, may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5, United States Code, for persons in the Government service employed intermittently.
“(2) Administrative support.—
The Federal Aviation Administration and the National Park Service shall jointly furnish to the advisory group clerical and other assistance.
“(3) Nonapplication of faca.—
Section 14 of the Federal Advisory Committee Act (5 U.S.C. App.) does not apply to the advisory group.
“SEC. 806. PROHIBITION OF COMMERCIAL AIR TOUR OPERATIONS OVER THE ROCKY MOUNTAIN NATIONAL PARK.
“Effective beginning on the date of the enactment of this Act [Apr. 5, 2000], no commercial air tour operation may be conducted in the airspace over the Rocky Mountain National Park notwithstanding any other provision of this Act or section 40128 of title 49, United States Code.
“SEC. 807. REPORTS.
“(a) Overflight Fee Report.—
Not later than 180 days after the date of the enactment of this Act [Apr. 5, 2000], the Administrator [of the Federal Aviation Administration] shall transmit to Congress a report on the effects overflight fees are likely to have on the commercial air tour operation industry. The report shall include, but shall not be limited to—
“(1) the viability of a tax credit for the commercial air tour operators equal to the amount of any overflight fees charged by the National Park Service; and
“(2) the financial effects proposed offsets are likely to have on Federal Aviation Administration budgets and appropriations.
“(b) Quiet Aircraft Technology Report.—
Not later than 2 years after the date of the enactment of this Act, the Administrator and the Director of the National Park Service shall jointly transmit a report to Congress on the effectiveness of this title in providing incentives for the development and use of quiet aircraft technology.
“SEC. 808. METHODOLOGIES USED TO ASSESS AIR TOUR NOISE.
“Any methodology adopted by a Federal agency to assess air tour noise in any unit of the national park system (including the Grand Canyon and Alaska) shall be based on reasonable scientific methods.
“SEC. 809. ALASKA EXEMPTION.
“The provisions of this title and section 40128 of title 49, United States Code, as added by section 803(a), do not apply to any land or waters located in Alaska.”
heading: Study To Determine Appropriate Minimum Altitude for Aircraft Flying Over National Park System Units
text: Pub. L. 100–91, Aug. 18, 1987, 101 Stat. 674, as amended by Pub. L. 106–510, § 3(a)(2), (b)(2), Nov. 13, 2000, 114 Stat. 2363, provided that:
“SECTION 1. STUDY OF PARK OVERFLIGHTS.
“(a) Study by Park Service.—
The Secretary of the Interior (hereinafter referred to as the ‘Secretary’), acting through the Director of the National Park Service, shall conduct a study to determine the proper minimum altitude which should be maintained by aircraft when flying over units of the National Park System. The Secretary of Transportation, acting through the Administrator of the Federal Aviation Administration (hereinafter referred to as the ‘Administrator’), shall provide technical assistance to the Secretary in carrying out the study.
“(b) General Requirements of Study.—
The study shall identify any problems associated with overflight by aircraft of units of the National Park System and shall provide information regarding the types of overflight which may be impacting on park unit resources. The study shall distinguish between the impacts caused by sightseeing aircraft, military aircraft, commercial aviation, general aviation, and other forms of aircraft which affect such units. The study shall identify those park system units, and portions thereof, in which the most serious adverse impacts from aircraft overflights exist.
“(c) Specific Requirements.—
The study under this section shall include research at the following units of the National Park System: Cumberland Island National Seashore, Yosemite National Park, Hawaiʻi Volcanoes National Park, Haleakala̅ National Park, Glacier National Park, and Mount Rushmore National Memorial, and at no less than four additional units of the National Park System, excluding all National Park System units in the State of Alaska. The research at each such unit shall provide information and an evaluation regarding each of the following:
“(1) the impacts of aircraft noise on the safety of the park system users, including hikers, rock-climbers, and boaters;
“(2) the impairment of visitor enjoyment associated with flights over such units of the National Park System;
“(3) other injurious effects of overflights on the natural, historical, and cultural resources for which such units were established; and
“(4) the values associated with aircraft flights over such units of the National Park System in terms of visitor enjoyment, the protection of persons or property, search and rescue operations and firefighting.
Such research shall evaluate the impact of overflights by both fixed-wing aircraft and helicopters. The research shall include an evaluation of the differences in noise levels within such units of the National Park System which are associated with flight by commonly used aircraft at different altitudes. The research shall apply only to overflights and shall not apply to landing fields within, or adjacent to, such units.
“(d) Report to Congress.—
The Secretary shall submit a report to the Congress within 3 years after the enactment of this Act [Aug. 18, 1987] containing the results of the study carried out under this section. Such report shall also contain recommendations for legislative and regulatory action which could be taken regarding the information gathered pursuant to paragraphs (1) through (4) of subsection (c). Before submission to the Congress, the Secretary shall provide a draft of the report and recommendations to the Administrator for review. The Administrator shall review such report and recommendations and notify the Secretary of any adverse effects which the implementation of such recommendations would have on the safety of aircraft operations. The Administrator shall consult with the Secretary to resolve issues relating to such adverse effects. The final report shall include a finding by the Administrator that implementation of the recommendations of the Secretary will not have adverse effects on the safety of aircraft operations, or if the Administrator is unable to make such finding, a statement by the Administrator of the reasons he believes the Secretary’s recommendations will have an adverse effect on the safety of aircraft operations.
“(e) FAA Review of Rules.—
The Administrator shall review current rules and regulations pertaining to flights of aircraft over units of the National Park System at which research is conducted under subsection (c) and over any other such units at which such a review is determined necessary by the Administrator or is requested by the Secretary. In the review under this subsection, the Administrator shall determine whether changes are needed in such rules and regulations on the basis of aviation safety. Not later than 180 days after the identification of the units of the National Park System for which research is to be conducted under subsection (c), the Administrator shall submit a report to Congress containing the results of the review along with recommendations for legislative and regulatory action which are needed to implement any such changes.
“(f) Authorization.—
There are authorized to be appropriated such sums as may be necessary to carry out the studies and review under this section.
“SEC. 2. FLIGHTS OVER YOSEMITE AND HALEAKALA̅ DURING STUDY AND REVIEW.
“(a) Yosemite National Park.—
During the study and review periods provided in subsection (c), it shall be unlawful for any fixed wing aircraft or helicopter flying under visual flight rules to fly at an altitude of less than 2,000 feet over the surface of Yosemite National Park. For purposes of this subsection, the term ‘surface’ refers to the highest terrain within the park which is within 2,000 feet laterally of the route of flight and with respect to Yosemite Valley such term refers to the upper-most rim of the valley.
“(b) Haleakala̅ National Park.—
During the study and review periods provided in subsection (c), it shall be unlawful for any fixed wing aircraft or helicopter flying under visual flight rules to fly at an altitude below 9,500 feet above mean sea level over the surface of any of the following areas in Haleakala̅ National Park: Haleakala Crater, Crater Cabins, the Scientific Research Reserve, Halemauu Trail, Kaupo Gap Trail, or any designated tourist viewpoint.
“(c) Study and Review Periods.—
For purposes of subsections (a) and (b), the study period shall be the period of the time after the date of enactment of this Act [Aug. 18, 1987] and prior to the submission of the report under section 1. The review period shall comprise a 2-year period for Congressional review after the submission of the report to Congress.
“(d) Exceptions.—
The prohibitions contained in subsections (a) and (b) shall not apply to any of the following:
“(1) emergency situations involving the protection of persons or property, including aircraft;
“(2) search and rescue operations;
“(3) flights for purposes of firefighting or for required administrative purposes; and
“(4) compliance with instructions of an air traffic controller.
“(e) Enforcement.—
For purposes of enforcement, the prohibitions contained in subsections (a) and (b) shall be treated as requirements established pursuant to section 307 of the Federal Aviation Act of 1958 [see 49 U.S.C. 40103(b)]. To provide information to pilots regarding the restrictions established under this Act, the Administrator shall provide public notice of such restrictions in appropriate Federal Aviation Administration publications as soon as practicable after the enactment of this Act [Aug. 18, 1987].
“SEC. 3. GRAND CANYON NATIONAL PARK.
“(a) Noise associated with aircraft overflights at the Grand Canyon National Park is causing a significant adverse effect on the natural quiet and experience of the park and current aircraft operations at the Grand Canyon National Park have raised serious concerns regarding public safety, including concerns regarding the safety of park users.
“(b) Recommendations.—
“(1) Submission.—
Within 30 days after the enactment of this Act [Aug. 18, 1987], the Secretary shall submit to the Administrator recommendations regarding actions necessary for the protection of resources in the Grand Canyon from adverse impacts associated with aircraft overflights. The recommendations shall provide for substantial restoration of the natural quiet and experience of the park and protection of public health and safety from adverse effects associated with aircraft overflight. Except as provided in subsection (c), the recommendations shall contain provisions prohibiting the flight of aircraft below the rim of the Canyon, and shall designate flight free zones. Such zones shall be flight free except for purposes of administration and for emergency operations, including those required for the transportation of persons and supplies to and from Supai Village and the lands of the Havasupai Indian Tribe of Arizona. The Administrator, after consultation with the Secretary, shall define the rim of the Canyon in a manner consistent with the purposes of this paragraph.
“(2) Implementation.—
Not later than 90 days after receipt of the recommendations under paragraph (1) and after notice and opportunity for hearing, the Administrator shall prepare and issue a final plan for the management of air traffic in the air space above the Grand Canyon. The plan shall, by appropriate regulation, implement the recommendations of the Secretary without change unless the Administrator determines that implementing the recommendations would adversely affect aviation safety. If the Administrator determines that implementing the recommendations would adversely affect aviation safety, he shall, not later than 60 days after making such determination, in consultation with the Secretary and after notice and opportunity for hearing, review the recommendations consistent with the requirements of paragraph (1) to eliminate the adverse effects on aviation safety and issue regulations implementing the revised recommendations in the plan. In addition to the Administrator’s authority to implement such regulations under the Federal Aviation Act of 1958 [see 49 U.S.C. 40101 et seq.], the Secretary may enforce the appropriate requirements of the plan under such rules and regulations applicable to the units of the National Park System as he deems appropriate.
“(3) Report.—
Within 2 years after the effective date of the plan required by subsection (b)(2), the Secretary shall submit to the Congress a report discussing—
“(A) whether the plan has succeeded in substantially restoring the natural quiet in the park; and
“(B) such other matters, including possible revisions in the plan, as may be of interest.
The report shall include comments by the Administrator regarding the effect of the plan’s implementation on aircraft safety.
“(c) Helicopter Flights of River Runners.—
Subsection (b) shall not prohibit the flight of helicopters—
“(1) which fly a direct route between a point on the north rim outside of the Grand Canyon National Park and locations on the Hualapai Indian Reservation (as designated by the Tribe); and
“(2) whose sole purpose is transporting individuals to or from boat trips on the Colorado River and any guide of such a trip.
“SEC. 4. BOUNDARY WATERS CANOE AREA WILDERNESS.
“The Administrator shall conduct surveillance of aircraft flights over the Boundary Waters Canoe Area Wilderness as authorized by the Act of October 21, 1978 (92 Stat. 1649–1659) for a period of not less than 180 days beginning within 60 days of enactment of this Act [Aug. 18, 1987]. In addition to any actions the Administrator may take as a result of such surveillance, he shall provide a report to the Committee on Interior and Insular Affairs and the Committee on Public Works and Transportation of the United States House of Representatives and to the Committee on Energy and Natural Resources and the Committee on Commerce, Science, and Transportation of the United States Senate. Such report is to be submitted within 30 days of completion of the surveillance activities. Such report shall include but not necessarily be limited to information on the type and frequency of aircraft using the airspace over the Boundary Waters Canoe Area Wilderness.
“SEC. 5. ASSESSMENT OF NATIONAL FOREST SYSTEM WILDERNESS OVERFLIGHTS.
“(a) Assessment by Forest Service.—
The Chief of the Forest Service (hereinafter referred to as the ‘Chief’) shall conduct an assessment to determine what, if any, adverse impacts to wilderness resources are associated with overflights of National Forest System wilderness areas. The Administrator of the Federal Aviation Administration shall provide technical assistance to the Chief in carrying out the assessment. Such assessment shall apply only to overflight of wilderness areas and shall not apply to aircraft flights or landings adjacent to National Forest System wilderness units. The assessment shall not apply to any National Forest System wilderness units in the State of Alaska.
“(b) Report to Congress.—
The Chief shall submit a report to Congress within 2 years after enactment of this Act [Aug. 18, 1987] containing the results of the assessments carried out under this section.
“(c) Authorization.—
Effective October 1, 1987, there are authorized to be appropriated such sums as may be necessary to carry out the assessment under this section.
“SEC. 6. CONSULTATION WITH FEDERAL AGENCIES.
“In conducting the study and the assessment required by this Act, the Secretary of the Interior and the Chief of the Forest Service shall consult with other Federal agencies that are engaged in an analysis of the impacts of aircraft overflights over federally-owned land.”