[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 306 Introduced in Senate (IS)]







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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Great Smoky Mountains National Park 
Overflights Act''.

SEC. 2. AIR TOUR MANAGEMENT PLANS FOR NATIONAL PARKS.

    (a) In General.--Chapter 401 of title 49, United States Code, is 
amended by adding at the end the following:
``Sec. 40125. Overflights of certain national parks
    ``(a) In General.--
            ``(1) General requirements.--A commercial air tour operator 
        may not conduct commercial air tour operations over the Great 
        Smoky Mountains National Park or tribal lands adjacent thereto 
        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 effective air tour 
                management plan for that park or those tribal lands.
            ``(2) Application for operating authority.--
                    ``(A) Application required.--Before commencing 
                commercial air tour operations over the Great Smoky 
                Mountains National Park or tribal lands adjacent 
                thereto, a commercial air tour operator shall apply to 
                the Administrator for authority to conduct the 
                operations over that park or those tribal lands.
                    ``(B) Competitive bidding for limited capacity 
                parks.--Whenever a commercial air tour management plan 
                limits the number of commercial air tour flights over 
                the Great Smoky Mountains National Park or tribal lands 
                adjacent thereto during a specified time frame, the 
                Administrator, in cooperation with the Director, shall 
                authorize commercial air tour operators to provide such 
                service. The authorization shall specify such terms and 
                conditions as the Administrator and the Director find 
                necessary for management of commercial air tour 
                operations over the Great Smoky Mountains National Park 
                or tribal lands adjacent thereto. The Administrator, in 
                cooperation with the Director, shall develop an open 
                competitive process for evaluating proposals from 
                persons interested in providing commercial air tour 
                services over the Great Smoky Mountains National Park 
                or tribal lands adjacent thereto. 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 company or 
                        pilots;
                            ``(ii) any quiet aircraft technology 
                        proposed for use;
                            ``(iii) the experience in commercial air 
                        tour operations over other national parks or 
                        scenic areas;
                            ``(iv) the financial capability of the 
                        company;
                            ``(v) any training programs for pilots; and
                            ``(vi) responsiveness to any criteria 
                        developed by the National Park Service or the 
                        Great Smoky Mountains National Park.
                    ``(C) Number of operations authorized.--In 
                determining the number of authorizations to issue to 
                provide commercial air tour service over the Great 
                Smoky Mountains National Park or tribal lands adjacent 
                thereto, 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 companies, 
                and the financial viability of each commercial air tour 
                operation.
                    ``(D) Cooperation with nps.--Before granting an 
                application under this paragraph, the Administrator 
                shall, in cooperation with the Director, 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 act on any such 
                application and issue a decision on the application not 
                later than 24 months after it is received or amended.
            ``(3) Exception.--Notwithstanding paragraph (1), commercial 
        air tour operators may conduct commercial air tour operations 
        over the Great Smoky Mountains National Park or tribal lands 
        adjacent thereto under part 91 of the Federal Aviation 
        Regulations (14 CFR 91.1 et seq.) if--
                    ``(A) such activity is permitted under part 119 (14 
                CFR 119.1(e)(2));
                    ``(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 flight operations will be 
                conducted; and
                    ``(C) the total number of operations under this 
                exception is limited to not more than 5 flights in any 
                30-day period over the park.
            ``(4) Special rule for safety requirements.--
        Notwithstanding subsection (c), an existing commercial air tour 
        operator shall, not later than 90 days after the date of 
        enactment of Great Smoky Mountains National Park Overflights 
        Act, apply for operating authority under part 119, 121, or 135 
        of the Federal Aviation Regulations (14 CFR Pt. 119, 121, or 
        135). A new entrant commercial air tour operator shall apply 
        for such authority before conducting commercial air tour 
        operations over the Great Smoky Mountains National Park or 
        tribal lands adjacent thereto.
    ``(b) Air Tour Management Plans.--
            ``(1) Establishment of atmps.--
                    ``(A) In general.--The Administrator shall, in 
                cooperation with the Director, establish an air tour 
                management plan for the Great Smoky Mountains National 
                Park or tribal lands adjacent thereto if such a plan is 
                not already in effect whenever a person applies for 
authority to operate a commercial air tour over the park. The 
development of the air tour management plan is to be a cooperative 
undertaking between the Federal Aviation Administration and the 
National Park Service. The air tour management plan shall be developed 
by means of a public process, and the agencies shall develop 
information and analysis that explains the conclusions that the 
agencies make in the application of the respective criteria. Such 
explanations shall be included in the Record of Decision and may be 
subject to judicial review.
                    ``(B) Objective.--The objective of the 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 
                tours upon the natural and cultural resources and 
                visitor experiences and tribal lands.
            ``(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 the Great 
        Smoky Mountain National Park--
                    ``(A) may prohibit commercial air tour operations 
                in whole or in part;
                    ``(B) may establish conditions for the conduct of 
                commercial air tour operations, 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 tours 
                within \1/2\, mile outside the boundary of that 
                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 at the park;
                    ``(E) shall provide for the initial allocation of 
                opportunities to conduct commercial air tours if the 
                plan includes a limitation on the number of commercial 
                air tour flights for any time period; and
                    ``(F) shall justify and document the need for 
                measures taken pursuant to the subparagraphs (A) 
                through (E).
            ``(4) Procedure.--In establishing a commercial air tour 
        management plan for the Great Smoky Mountains National Park or 
        tribal lands adjacent thereto, the Administrator and the 
        Director shall--
                    ``(A) initiate at least one public meeting with 
                interested parties to develop a commercial air tour 
                management plan for the park;
                    ``(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 those regulations, the Federal Aviation 
Administration is the lead agency and the National Park Service is a 
co-operating agency); and
                    ``(D) solicit the participation of any Indian tribe 
                whose tribal lands are, or may be, overflown by 
                aircraft involved in commercial air tour operations 
                over a national park or tribal lands, as a cooperating 
                agency under the regulations referred to in paragraph 
                (4)(C).
            ``(5) Amendments.--Any amendment of an air tour management 
        plan 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.
    ``(c) Interim Operating Authority.--
            ``(1) In general.--Upon application for operating 
        authority, the Administrator shall grant interim operating 
        authority under this paragraph to a commercial air tour 
        operator for the Great Smoky Mountains National Park or tribal 
        lands adjacent thereto 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 such tours within the 12-
                        month period prior to the date of enactment of 
                        the Great Smoky Mountains National Park 
                        Overflights Act; or
                            ``(ii) the average number of flights per 
                        12-month period used by the operator to provide 
                        such tours 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 operations conducted during any time period by the 
                commercial air tour operator to which it is granted 
                unless the 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 
                that park or those tribal lands; and
                    ``(F) shall--
                            ``(i) promote protection of national park 
                        resources, visitor experiences, and tribal 
                        lands;
                            ``(ii) promote safe operations of the 
                        commercial air tour;
                            ``(iii) promote the adoption of quiet 
                        technology, as appropriate; and
                            ``(iv) allow for modifications of the 
                        operation based on experience if the 
                        modification improves protection of national 
                        park resources and values and of tribal lands.
            ``(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 
the Great Smoky Mountains National Park or tribal lands adjacent 
thereto if that operator is a new entrant air tour operator if the 
Administrator determines the authority is necessary to ensure 
competition in the provision of commercial air tours over that national 
park or those tribal lands.
                    ``(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 that park or on tribal 
                lands, or the Director determines that it would create 
                a noise problem at that park or on 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 enactment of the Air Transportation 
                Improvement Act.
    ``(d) Definitions.--In this section, the following 25 definitions 
apply:
            ``(1) Commercial air tour.--The term `commercial air tour' 
        means any flight conducted for compensation or hire in a 
        powered aircraft where a purpose of the flight is sightseeing. 
        If the operator of a flight asserts that the flight is not a 
        commercial air tour, factors that can be considered by the 
        Administrator in making a determination of whether the flight 
        is a commercial air tour, include, but are not limited to--
                    ``(A) whether there was a holding out to the public 
                of willingness to conduct a sightseeing flight for 
                compensation or hire;
                    ``(B) whether a narrative was provided that 
                referred to areas or points of interest on the surface;
                    ``(C) the area of operation;
                    ``(D) the frequency of flights;
                    ``(E) the route of flight;
                    ``(F) the inclusion of sightseeing flights as part 
                of any travel arrangement package; or
                    ``(G) whether the flight or flights in question 
                would or would not have been canceled based on poor 
                visibility of the surface.
            ``(2) Commercial air tour operator.--The term `commercial 
        air tour operator' means any person who conducts a commercial 
        air tour.
            ``(3) 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 tours over a national park at any time 
        during the 12-month period ending on the date of enactment of 
        the Air Transportation Improvement Act.
            ``(4) 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; and
                    ``(B) has not engaged in the business of providing 
                commercial air tours over that national park or those 
                tribal lands in the 12-month period preceding the 
                application.
            ``(5) Commercial air tour operations.--The term `commercial 
        air tour operations' means commercial air tour flight 
        operations conducted--
                     ``(A) over a national park or within \1/2\ mile 
                outside the boundary of any national park;
                     ``(B) 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); and
                     ``(C) less than 1 mile laterally from any 
                geographic feature within the park (unless more than 
                \1/2\ mile outside the boundary).
             ``(6) Great smoky mountains national park.--The term 
        `Great Smoky Mountains National Park' means the Great Smoky 
        Mountains National Park to which reference is made in section 3 
        of the Federal Water Power Act (16 U.S.C. 403b) and any other 
        unit of the National Park System in or contiguous to the State 
        of Tennessee designated by the Director.
             ``(7) Tribal lands.--The term `tribal lands' means `Indian 
        country', as defined by section 1151 of title 18, United States 
        Code, that is within or abutting the Great Smoky Mountains 
        National Park.
             ``(8) Administrator.--The term `Administrator' means the 
        Administrator of the Federal Aviation Administration.
             ``(9) Director.--The term `Director' means the Director of 
        the National Park Service.''.
    (b) Clerical Amendment.--The table of sections for such chapter 401 
is amended by adding at the end thereof the following:

``40125. Overflights of certain national parks.''.
                                 <all>