[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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