[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 81 Introduced in Senate (IS)]







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.

    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 ``National Parks Overflights Act''.

SEC. 2. FINDINGS.

    The 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 the 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, air tour, environmental, and Native 
        American representatives, recommended that the Congress enact 
        legislation based on its consensus work product; and
            (6) this Act reflects the recommendations made by that 
        Group.

SEC. 3. 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 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 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 a national park or 
                tribal lands, 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 a 
                national park area 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 national 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 
                services over the national 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 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 
                        affected national park.
                    ``(C) Number of operations authorized.--In 
                determining the number of authorizations to issue to 
                provide commercial air tour service 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 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 a national park 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 a particular 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 the National Parks 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 
        a national park or tribal lands.
    ``(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 any national park or tribal land 
                for which 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 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 
                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 a 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 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 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 subparagraphs (A) through 
                (E).
            ``(4) Procedure.--In establishing a commercial air tour 
        management plan for a national park, 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 cooperating 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 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 such tours within the 12-
                        month period prior to the date of enactment of 
                        the National Parks 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 a national park for which 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 National Parks Overflights 
                Act.
    ``(d) Definitions.--In this section, the following 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 National Parks Overflights 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) National park.--The term `national park' means any 
        unit of the National Park System.
            ``(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 a 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) Exemptions.--
            (1) Grand canyon.--Section 40125 of title 49, United States 
        Code, as added by subsection (a), does not apply to--
                    (A) the Grand Canyon National Park; or
                    (B) Indian country within or abutting the Grand 
                Canyon National Park.
            (2) Alaska.--The provisions of this Act and section 40125 
        of title 49, United States Code, as added by subsection (a), do 
        not apply to any land or waters located in Alaska.
            (3) Compliance with other regulations.--For purposes of 
        section 40125 of title 49, United States Code--
                    (A) regulations issued by the Secretary of 
                Transportation and the Administrator of the Federal 
                Aviation Administration under section 3 of Public Law 
                100-91 (16 U.S.C. 1a-1, note); and
                    (B) commercial air tour operations carried out in 
                compliance with the requirements of those regulations,
        shall be deemed to meet the requirements of such section 40125.
    (c) Clerical Amendment.--The table of sections for chapter 401 of 
title 49, United States Code, is amended by adding at the end thereof 
the following:

``40125. Overflights of national parks.''.

SEC. 4. ADVISORY GROUP.

    (a) Establishment.--Not later than 1 year after the date of 
enactment of this Act, 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 the operation of commercial air tours 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 and 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 Act;
            (2) on the designation of appropriate and feasible quiet 
        aircraft technology standards for quiet aircraft technologies 
        under development for commercial purposes, 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) on such other national park or tribal lands-related 
        safety, environmental, and air touring issues as the 
        Administrator and the Director may request.
    (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, each member 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.
    (e) Report.--The Administrator and the Director shall jointly 
report to the Congress within 24 months after the date of enactment of 
this Act on the success of this Act in providing incentives for quiet 
aircraft technology.

SEC. 5. OVERFLIGHT FEE REPORT.

    Not later than 180 days after the date of enactment of this Act, 
the Administrator of the Federal Aviation Administration shall transmit 
to Congress a report on the effects proposed overflight fees are likely 
to have on the commercial air tour 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 the proposed fee charged 
        by the National Park Service; and
            (2) the financial effects proposed offsets are likely to 
        have on Federal Aviation Administration budgets and 
        appropriations.

SEC. 6. PROHIBITION OF COMMERCIAL AIR TOURS OVER THE ROCKY MOUNTAIN 
              NATIONAL PARK.

    Effective beginning on the date of enactment of this Act, no 
commercial air tour may be operated in the airspace over the Rocky 
Mountain National Park notwithstanding any other provision of this Act 
or section 40125 of title 49, United States Code, as added by this Act.

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