H.R. 717 (106th): National Parks Air Tour Management Act of 1999

106th Congress, 1999–2000. Text as of Jul 29, 1999 (Reported by House Committee).

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HR 717 RH

Union Calendar No. 163

106th CONGRESS

1st Session

H. R. 717

[Report No. 106-273, Part I]

To amend title 49, United States Code, to regulate overflights of national parks, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

February 11, 1999

Mr. DUNCAN (for himself, Mr. LIPINSKI, and Mr. OBERSTAR) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure, and in addition to the Committee on Resources, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

July 29, 1999

Reported from the Committee on Transportation and Infrastructure

July 29, 1999

Referral to the Committee on Resources extended for a period ending not later than July 29, 1999

July 29, 1999

Committee on Resources discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed


A BILL

To amend title 49, United States Code, to regulate overflights of national parks, 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 ‘National Parks Air Tour Management Act of 1999’.

SEC. 2. 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 of 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 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 (including 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 applicable air tour management plan for the park.

      ‘(2) Application for operating authority-

        ‘(A) APPLICATION REQUIRED- Before commencing commercial air tour operations over a national park (including tribal lands), a commercial air tour operator shall apply to the Administrator for authority to conduct the operations over the park.

        ‘(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 company;

          ‘(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.

      ‘(3) EXCEPTION-

        ‘(A) IN GENERAL- If a commercial air tour operator secures a letter of agreement from the Administrator and the superintendent for the national park that describes the conditions under which the commercial air tour operation will be conducted, then notwithstanding paragraph (1), the commercial air tour operator may conduct such operations over the national park under part 91 of title 14, Code of Federal Regulations, if such activity is permitted under part 119 of such title.

        ‘(B) LIMIT ON EXCEPTIONS- Not more than 5 flights in any 30-day period over a single national park may be conducted under this paragraph.

      ‘(4) SPECIAL RULE FOR SAFETY REQUIREMENTS- Notwithstanding subsection (d), an existing commercial air tour operator shall apply, not later than 90 days after the date of 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 (including tribal lands). The Administrator shall 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.

    ‘(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 (including tribal lands) 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 tours upon the natural and cultural resources, 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) (including a finding of no significant impact, an environmental assessment, and 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 limit or prohibit commercial air tour operations;

        ‘(B) may establish conditions for the conduct of commercial air tour operations, including commercial air tour operation 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 adverse noise, visual, or other impacts;

        ‘(C) may apply to all commercial air tour operations;

        ‘(D) shall include incentives (such as preferred commercial air tour operation routes and altitudes and relief from flight caps and curfews) for the adoption of quiet aircraft technology by commercial air tour operators conducting commercial air tour operations over the park;

        ‘(E) shall provide a system for allocating opportunities to conduct commercial air tours if the air tour management 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 (including 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, 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.

    ‘(c) DETERMINATION OF COMMERCIAL AIR TOUR OPERATION STATUS- In making a determination of whether a flight is a commercial air tour operation, the Administrator may consider--

      ‘(1) whether there was a holding out to the public of willingness to conduct a sightseeing flight for compensation or hire;

      ‘(2) 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;

      ‘(3) the area of operation;

      ‘(4) the frequency of flights conducted by the person offering the flight;

      ‘(5) the route of flight;

      ‘(6) the inclusion of sightseeing flights as part of any travel arrangement package offered by the person offering the flight;

      ‘(7) whether the flight would have been canceled based on poor visibility of the surface below the route of the flight; and

      ‘(8) any other factors that the Administrator considers appropriate.

    ‘(d) 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 (including 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 this section; 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 commercial air tour operations 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 the tribal lands;

        ‘(F) shall promote protection of national park resources, visitor experiences, and tribal lands;

        ‘(G) shall promote safe operations of the commercial air tour;

        ‘(H) shall promote the adoption of quiet technology, as appropriate; and

        ‘(I) shall allow for modifications of the operation based on experience if the modification improves protection of national park resources and values and of tribal lands.

    ‘(e) EXEMPTIONS-

      ‘(1) IN GENERAL- Except as provided by paragraph (2), this section shall not apply to--

        ‘(A) the Grand Canyon National Park;

        ‘(B) tribal lands within or abutting the Grand Canyon National Park; or

        ‘(C) any unit of the National Park System located in Alaska or any other land or water located in Alaska.

      ‘(2) EXCEPTION- This section shall apply to the Grand Canyon National Park if section 3 of Public Law 100-91 (16 U.S.C. 1a-1 note; 101 Stat. 674-678) is no longer in effect.

    ‘(f) 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.

      ‘(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 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; and

        ‘(B) has not engaged in the business of providing commercial air tour operations over the national park (including tribal lands) in the 12-month period preceding the application.

      ‘(4) COMMERCIAL AIR TOUR OPERATION- The term ‘commercial air tour operation’ 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 1/2 mile outside the boundary of any national park, or over tribal lands, during which the aircraft flies--

        ‘(A) 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

        ‘(B) less than 1 mile laterally from any geographic feature within the park (unless more than 1/2 mile outside the boundary).

      ‘(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, United States Code) 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.’.

    (b) CLERICAL AMENDMENT- The table of sections for chapter 401 of title 49, United States Code, is amended by adding at the end 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 and the Director 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 Act and the amendments made by this Act;

      (2) on commonly accepted quiet aircraft technology for use in commercial air tour operations over national parks (including 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 request of the Administrator and the Director, safety, environmental, and other issues related to commercial air tour operations over a national park (including 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. 5. REPORTS.

    (a) OVERFLIGHT FEE REPORT- Not later than 180 days after the date of enactment of this Act, the Administrator 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 enactment of this Act, the Administrator and the Director shall jointly transmit a report to Congress on the effectiveness of this Act in providing incentives for the development and use of quiet aircraft technology.

SEC. 6. EXEMPTIONS.

    This Act shall not apply to--

      (1) any unit of the National Park System located in Alaska; or

      (2) any other land or water located in Alaska.

SEC. 7. DEFINITIONS.

    In this Act, the following definitions apply:

      (1) ADMINISTRATOR- The term ‘Administrator’ means the Administrator of the Federal Aviation Administration.

      (2) DIRECTOR- The term ‘Director’ means the Director of the National Park Service.