49 USC § 40128 - Overflights of national parks

(a) In General.—

(1) General requirements.— A commercial air tour operator may not conduct commercial air tour operations over a national park or tribal lands, as defined by this section, except—

(A) in accordance with this section;

(B) in accordance with conditions and limitations prescribed for that operator by the Administrator; and

(C) in accordance with any applicable air tour management plan for the park or tribal lands.

(2) Application for operating authority.—

(A) Application required.— Before commencing commercial air tour operations over a national park or tribal lands, a commercial air tour operator shall apply to the Administrator for authority to conduct the operations over the park or tribal lands.

(B) Competitive bidding for limited capacity parks.— Whenever an air tour management plan limits the number of commercial air tour operations over a national park during a specified time frame, the Administrator, in cooperation with the Director, shall issue operation specifications to commercial air tour operators that conduct such operations. The operation specifications shall include such terms and conditions as the Administrator and the Director find necessary for management of commercial air tour operations over the park. The Administrator, in cooperation with the Director, shall develop an open competitive process for evaluating proposals from persons interested in providing commercial air tour operations over the park. In making a selection from among various proposals submitted, the Administrator, in cooperation with the Director, shall consider relevant factors, including—

(i) the safety record of the person submitting the proposal or pilots employed by the person;

(ii) any quiet aircraft technology proposed to be used by the person submitting the proposal;

(iii) the experience of the person submitting the proposal with commercial air tour operations over other national parks or scenic areas;

(iv) the financial capability of the person submitting the proposal;

(v) any training programs for pilots provided by the person submitting the proposal; and

(vi) responsiveness of the person submitting the proposal to any relevant criteria developed by the National Park Service for the affected park.

(C) Number of operations authorized.— In determining the number of authorizations to issue to provide commercial air tour operations over a national park, the Administrator, in cooperation with the Director, shall take into consideration the provisions of the air tour management plan, the number of existing commercial air tour operators and current level of service and equipment provided by any such operators, and the financial viability of each commercial air tour operation.

(D) Cooperation with nps.— Before granting an application under this paragraph, the Administrator, in cooperation with the Director, shall develop an air tour management plan in accordance with subsection (b) and implement such plan.

(E) Time limit on response to atmp applications.— The Administrator shall make every effort to act on any application under this paragraph and issue a decision on the application not later than 24 months after it is received or amended.

(F) Priority.— In acting on applications under this paragraph to provide commercial air tour operations over a national park, the Administrator shall give priority to an application under this paragraph in any case in which a new entrant commercial air tour operator is seeking operating authority with respect to that national park.

(3) Exception.— Notwithstanding paragraph (1), commercial air tour operators may conduct commercial air tour operations over a national park under part 91 of the  ^[1] title 14, Code of Federal Regulations if—

(A) such activity is permitted under part 119 of such title;

(B) the operator secures a letter of agreement from the Administrator and the national park superintendent for that national park describing the conditions under which the operations will be conducted; and

(C) the total number of operations under this exception is limited to not more than five flights in any 30-day period over a particular park.

(4) Special rule for safety requirements.— Notwithstanding subsection (c), an existing commercial air tour operator shall apply, not later than 90 days after the date of the enactment of this section, for operating authority under part 119, 121, or 135 of title 14, Code of Federal Regulations. A new entrant commercial air tour operator shall apply for such authority before conducting commercial air tour operations over a national park or tribal lands. The Administrator shall make every effort to act on any such application for a new entrant and issue a decision on the application not later than 24 months after it is received or amended.

(b) Air Tour Management Plans.—

(1) Establishment.—

(A) In general.— The Administrator, in cooperation with the Director, shall establish an air tour management plan for any national park or tribal land for which such a plan is not in effect whenever a person applies for authority to conduct a commercial air tour operation over the park. The air tour management plan shall be developed by means of a public process in accordance with paragraph (4).

(B) Objective.— The objective of any air tour management plan shall be to develop acceptable and effective measures to mitigate or prevent the significant adverse impacts, if any, of commercial air tour operations upon the natural and cultural resources, visitor experiences, and tribal lands.

(2) Environmental determination.— In establishing an air tour management plan under this subsection, the Administrator and the Director shall each sign the environmental decision document required by section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332) which may include a finding of no significant impact, an environmental assessment, or an environmental impact statement and the record of decision for the air tour management plan.

(3) Contents.— An air tour management plan for a national park—

(A) may prohibit commercial air tour operations over a national park in whole or in part;

(B) may establish conditions for the conduct of commercial air tour operations over a national park, including commercial air tour routes, maximum or minimum altitudes, time-of-day restrictions, restrictions for particular events, maximum number of flights per unit of time, intrusions on privacy on tribal lands, and mitigation of noise, visual, or other impacts;

(C) shall apply to all commercial air tour operations over a national park that are also within 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 over a national park;

(E) shall provide for the initial allocation of opportunities to conduct commercial air tour operations over a national park if the plan includes a limitation on the number of commercial air tour operations for any time period; and

(F) shall justify and document the need for measures taken pursuant to subparagraphs (A) through (E) and include such justifications in the record of decision.

(4) Procedure.— In establishing an air tour management plan for a national park or tribal lands, the Administrator and the Director shall—

(A) hold at least one public meeting with interested parties to develop the air tour management plan;

(B) publish the proposed plan in the Federal Register for notice and comment and make copies of the proposed plan available to the public;

(C) comply with the regulations set forth in sections 1501.3 and 1501.5 through 1501.8 of title 40, Code of Federal Regulations (for purposes of complying with the regulations, the Federal Aviation Administration shall be the lead agency and the National Park Service is a cooperating agency); and

(D) solicit the participation of any Indian tribe whose tribal lands are, or may be, overflown by aircraft involved in a commercial air tour operation over the park or tribal lands to which the plan applies, as a cooperating agency under the regulations referred to in subparagraph (C).

(5) Judicial review.— An air tour management plan developed under this subsection shall be subject to judicial review.

(6) Amendments.— The Administrator, in cooperation with the Director, may make amendments to an air tour management plan. Any such amendments shall be published in the Federal Register for notice and comment. A request for amendment of an air tour management plan shall be made in such form and manner as the Administrator may prescribe.

(c) Interim Operating Authority.—

(1) In general.— Upon application for operating authority, the Administrator shall grant interim operating authority under this subsection to a commercial air tour operator for commercial air tour operations over a national park or tribal lands for which the operator is an existing commercial air tour operator.

(2) Requirements and limitations.— Interim operating authority granted under this subsection—

(A) shall provide annual authorization only for the greater of—

(i) the number of flights used by the operator to provide the commercial air tour operations over a national park within the 12-month period prior to the date of the enactment of this section; or

(ii) the average number of flights per 12-month period used by the operator to provide such operations within the 36-month period prior to such date of enactment, and, for seasonal operations, the number of flights so used during the season or seasons covered by that 12-month period;

(B) may not provide for an increase in the number of commercial air tour operations over a national park conducted during any time period by the commercial air tour operator above the number that the air tour operator was originally granted unless such an increase is agreed to by the Administrator and the Director;

(C) shall be published in the Federal Register to provide notice and opportunity for comment;

(D) may be revoked by the Administrator for cause;

(E) shall terminate 180 days after the date on which an air tour management plan is established for the park or tribal lands;

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

(G) shall promote safe commercial air tour operations;

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

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

(3) New entrant air tour operators.—

(A) In general.— The Administrator, in cooperation with the Director, may grant interim operating authority under this paragraph to an air tour operator for a national park or tribal lands for which that operator is a new entrant air tour operator if the Administrator determines the authority is necessary to ensure competition in the provision of commercial air tour operations over the park or tribal lands.

(B) Safety limitation.— The Administrator may not grant interim operating authority under subparagraph (A) if the Administrator determines that it would create a safety problem at the park or on the tribal lands, or the Director determines that it would create a noise problem at the park or on the tribal lands.

(C) ATMP limitation.— The Administrator may grant interim operating authority under subparagraph (A) of this paragraph only if the air tour management plan for the park or tribal lands to which the application relates has not been developed within 24 months after the date of the enactment of this section.

(d) Exemptions.— This section shall not apply to—

(1) the Grand Canyon National Park; or

(2) tribal lands within or abutting the Grand Canyon National Park.

(e) Lake Mead.— This section shall not apply to any air tour operator while flying over or near the Lake Mead National Recreation Area, solely as a transportation route, to conduct an air tour over the Grand Canyon National Park. For purposes of this subsection, an air tour operator flying over the Hoover Dam in the Lake Mead National Recreation Area en route to the Grand Canyon National Park shall be deemed to be flying solely as a transportation route.

(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 over a national park.

(2) Existing commercial air tour operator.— The term “existing commercial air tour operator” means a commercial air tour operator that was actively engaged in the business of providing commercial air tour operations over a national park at any time during the 12-month period ending on the date of the enactment of this section.

(3) New entrant commercial air tour operator.— The term “new entrant commercial air tour operator” means a commercial air tour operator that—

(A) applies for operating authority as a commercial air tour operator for a national park or tribal lands; and

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

(4) Commercial air tour operation over a national park.—

(A) In general.— The term “commercial air tour operation over a national park” means any flight, conducted for compensation or hire in a powered aircraft where a purpose of the flight is sightseeing over a national park, within 1/2 mile outside the boundary of any national park (except the Grand Canyon National Park), or over tribal lands (except those within or abutting the Grand Canyon National Park), during which the aircraft flies—

(i) below a minimum altitude, determined by the Administrator in cooperation with the Director, above ground level (except solely for purposes of takeoff or landing, or necessary for safe operation of an aircraft as determined under the rules and regulations of the Federal Aviation Administration requiring the pilot-in-command to take action to ensure the safe operation of the aircraft); or

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

(B) Factors to consider.— In making a determination of whether a flight is a commercial air tour operation over a national park for purposes of this section, the Administrator may consider—

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

(ii) whether a narrative that referred to areas or points of interest on the surface below the route of the flight was provided by the person offering the flight;

(iii) the area of operation;

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

(v) the route of flight;

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

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

(viii) any other factors that the Administrator and the Director consider appropriate.

(5) National park.— The term “national park” means any unit of the National Park System.

(6) Tribal lands.— The term “tribal lands” means Indian country (as that term is defined in section 1151 of title 18) that is within or abutting a national park.

(7) Administrator.— The term “Administrator” means the Administrator of the Federal Aviation Administration.

(8) Director.— The term “Director” means the Director of the National Park Service.

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[1]  So in original. The word “the” probably should not appear.

Source

(Added Pub. L. 106–181, title VIII, § 803(a),Apr. 5, 2000, 114 Stat. 186; amended Pub. L. 108–176, title III, § 323(a),Dec. 12, 2003, 117 Stat. 2541; Pub. L. 109–115, div. A, title I, § 177,Nov. 30, 2005, 119 Stat. 2427.)

References in Text

The date of the enactment of this section, referred to in subsecs. (a)(4), (c)(2)(A), (3)(C), and (f)(2), is the date of enactment of Pub. L. 106–181, which was approved Apr. 5, 2000.

Amendments

2005—Subsec. (e). Pub. L. 109–115inserted at end “For purposes of this subsection, an air tour operator flying over the Hoover Dam in the Lake Mead National Recreation Area en route to the Grand Canyon National Park shall be deemed to be flying solely as a transportation route.”

2003—Subsec. (a)(1). Pub. L. 108–176, § 323(a)(1), inserted “, as defined by this section,” after “tribal lands” in introductory provisions.

Subsec. (b)(3)(A), (B). Pub. L. 108–176, § 323(a)(2), inserted “over a national park” after “operations”.

Subsec. (b)(3)(C). Pub. L. 108–176, § 323(a)(3), inserted “over a national park that are also” after “operations”.

Subsec. (b)(3)(D). Pub. L. 108–176, § 323(a)(4), substituted “over a national park” for “at the park”.

Subsec. (b)(3)(E). Pub. L. 108–176, § 323(a)(5), inserted “over a national park” before “if the plan includes”.

Subsec. (c)(2)(A)(i), (B). Pub. L. 108–176, § 323(a)(6), inserted “over a national park” after “operations”.

Subsec. (f)(1). Pub. L. 108–176, § 323(a)(7), inserted “over a national park” after “operation”.

Subsec. (f)(4). Pub. L. 108–176, § 323(a)(10), inserted “over a national park” after “operation” in heading.

Subsec. (f)(4)(A). Pub. L. 108–176, § 323(a)(8), in introductory provisions, substituted “commercial air tour operation over a national park” for “commercial air tour operation” and “park (except the Grand Canyon National Park), or over tribal lands (except those within or abutting the Grand Canyon National Park),” for “park, or over tribal lands,”.

Subsec. (f)(4)(B). Pub. L. 108–176, § 323(a)(9), inserted “over a national park” after “operation” in introductory provisions.

Effective Date of 2003 Amendment

Amendment by Pub. L. 108–176applicable only to fiscal years beginning after Sept. 30, 2003, except as otherwise specifically provided, see section 3 ofPub. L. 108–176, set out as a note under section 106 of this title.

Effective Date

Section applicable only to fiscal years beginning after Sept. 30, 1999, see section 3 ofPub. L. 106–181, set out as an Effective Date of 2000 Amendments note under section 106 of this title.

Grand Canyon Overflight Rules

Pub. L. 109–115, div. A, title I, § 177,Nov. 30, 2005, 119 Stat. 2427, provided in part that: “Nothing in this provision [amending this section] shall allow exemption from overflight rules for the Grand Canyon.”

Quiet Technology Rulemaking for Air Tours Over Grand Canyon National Park

Pub. L. 108–176, title III, § 323(b),Dec. 12, 2003, 117 Stat. 2541, provided that:

“(1) Deadline for rule.—No later than January 2005, the Secretary of Transportation shall issue a final rule to establish standards for quiet technology that are reasonably achievable at Grand Canyon National Park, based on the Supplemental Notice of Proposed Rulemaking on Noise Limitations for Aircraft Operations in the Vicinity of Grand Canyon National Park, published in the Federal Register on March 24, 2003.

“(2) Resolution of disputes.—Subject to applicable administrative law and procedures, if the Secretary determines that a dispute among interested parties (including outside groups) or government agencies cannot be resolved within a reasonable time frame and could delay finalizing the rulemaking described in subsection (a), or implementation of final standards under such rule, due to controversy over adoption of quiet technology routes, establishment of incentives to encourage adoption of such routes, establishment of incentives to encourage adoption of quite technology, or other measures to achieve substantial restoration of natural quiet, the Secretary shall refer such dispute to a recognized center for environmental conflict resolution.”

National Parks Air Tour Management

Pub. L. 106–181, title VIII, Apr. 5, 2000, 114 Stat. 185, as amended by Pub. L. 106–528, § 8(b),Nov. 22, 2000, 114 Stat. 2522, provided that:

“SEC. 801. SHORT TITLE.

“This title may be cited as the ‘National Parks Air Tour Management Act of 2000’.

“SEC. 802. FINDINGS.

“Congress finds that—

“(1) the Federal Aviation Administration has sole authority to control airspace over the United States;

“(2) the Federal Aviation Administration has the authority to preserve, protect, and enhance the environment by minimizing, mitigating, or preventing the adverse effects of aircraft overflights on public and tribal lands;

“(3) the National Park Service has the responsibility of conserving the scenery and natural and historic objects and wildlife in national parks and of providing for the enjoyment of the national parks in ways that leave the national parks unimpaired for future generations;

“(4) the protection of tribal lands from aircraft overflights is consistent with protecting the public health and welfare and is essential to the maintenance of the natural and cultural resources of Indian tribes;

“(5) the National Parks Overflights Working Group, composed of general aviation, commercial air tour, environmental, and Native American representatives, recommended that the Congress enact legislation based on the Group’s consensus work product; and

“(6) this title reflects the recommendations made by that Group.

“SEC. 803. AIR TOUR MANAGEMENT PLANS FOR NATIONAL PARKS.

“(a) In General.—[Enacted this section.]

“(b) Conforming Amendment.—[Amended analysis for chapter 401 of this title.]

“(c) Compliance With Other Regulations.—For purposes of section 40128 of title 49, United States Code—

“(1) regulations issued by the Secretary of Transportation and the Administrator [of the Federal Aviation Administration] under section 3 ofPublic Law 100–91 (16 U.S.C. 1a–1 note); and

“(2) commercial air tour operations carried out in compliance with the requirements of those regulations,

shall be deemed to meet the requirements of such section 40128. “SEC. 804. QUIET AIRCRAFT TECHNOLOGY FOR GRAND CANYON.

“(a) Quiet Technology Requirements.—Within 12 months after the date of the enactment of this Act [Apr. 5, 2000], the Administrator shall designate reasonably achievable requirements for fixed-wing and helicopter aircraft necessary for such aircraft to be considered as employing quiet aircraft technology for purposes of this section. If the Administrator determines that the Administrator will not be able to make such designation before the last day of such 12-month period, the Administrator shall transmit to Congress a report on the reasons for not meeting such time period and the expected date of such designation.

“(b) Routes or Corridors.—In consultation with the Director and the advisory group established under section 805, the Administrator shall establish, by rule, routes or corridors for commercial air tour operations (as defined in section 40128 (f) of title 49, United States Code) by fixed-wing and helicopter aircraft that employ quiet aircraft technology for—

“(1) tours of the Grand Canyon originating in Clark County, Nevada; and

“(2) ‘local loop’ tours originating at the Grand Canyon National Park Airport, in Tusayan, Arizona,

provided that such routes or corridors can be located in areas that will not negatively impact the substantial restoration of natural quiet, tribal lands, or safety.

“(c) Operational Caps.—Commercial air tour operations by any fixed-wing or helicopter aircraft that employs quiet aircraft technology and that replaces an existing aircraft shall not be subject to the operational flight allocations that apply to other commercial air tour operations of the Grand Canyon, provided that the cumulative impact of such operations does not increase noise at the Grand Canyon.

“(d) Modification of Existing Aircraft To Meet Standards.—A commercial air tour operation by a fixed-wing or helicopter aircraft in a commercial air tour operator’s fleet on the date of the enactment of this Act [Apr. 5, 2000] that meets the requirements designated under subsection (a), or is subsequently modified to meet the requirements designated under subsection (a), may be used for commercial air tour operations under the same terms and conditions as a replacement aircraft under subsection (c) without regard to whether it replaces an existing aircraft.

“(e) Mandate To Restore Natural Quiet.—Nothing in this Act [should be “this title”] shall be construed to relieve or diminish—

“(1) the statutory mandate imposed upon the Secretary of the Interior and the Administrator of the Federal Aviation Administration under Public Law 100–91 (16 U.S.C. 1a–1 note) to achieve the substantial restoration of the natural quiet and experience at the Grand Canyon National Park; and

“(2) the obligations of the Secretary and the Administrator to promulgate forthwith regulations to achieve the substantial restoration of the natural quiet and experience at the Grand Canyon National Park.

“SEC. 805. ADVISORY GROUP.

“(a) Establishment.—Not later than 1 year after the date of the enactment of this Act [Apr. 5, 2000], the Administrator [of the Federal Aviation Administration] and the Director of the National Park Service shall jointly establish an advisory group to provide continuing advice and counsel with respect to commercial air tour operations over and near national parks.

“(b) Membership.—

“(1) In general.—The advisory group shall be composed of—

“(A) a balanced group of—

“(i) representatives of general aviation;

“(ii) representatives of commercial air tour operators;

“(iii) representatives of environmental concerns; and

“(iv) representatives of Indian tribes;

“(B) a representative of the Federal Aviation Administration; and

“(C) a representative of the National Park Service.

“(2) Ex officio members.—The Administrator (or the designee of the Administrator) and the Director (or the designee of the Director) shall serve as ex officio members.

“(3) Chairperson.—The representative of the Federal Aviation Administration and the representative of the National Park Service shall serve alternating 1-year terms as chairman of the advisory group, with the representative of the Federal Aviation Administration serving initially until the end of the calendar year following the year in which the advisory group is first appointed.

“(c) Duties.—The advisory group shall provide advice, information, and recommendations to the Administrator and the Director—

“(1) on the implementation of this title and the amendments made by this title;

“(2) on commonly accepted quiet aircraft technology for use in commercial air tour operations over a national park or tribal lands, which will receive preferential treatment in a given air tour management plan;

“(3) on other measures that might be taken to accommodate the interests of visitors to national parks; and

“(4) at the request of the Administrator and the Director, safety, environmental, and other issues related to commercial air tour operations over a national park or tribal lands.

“(d) Compensation; Support; FACA.—

“(1) Compensation and travel.—Members of the advisory group who are not officers or employees of the United States, while attending conferences or meetings of the group or otherwise engaged in its business, or while serving away from their homes or regular places of business, may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5, United States Code, for persons in the Government service employed intermittently.

“(2) Administrative support.—The Federal Aviation Administration and the National Park Service shall jointly furnish to the advisory group clerical and other assistance.

“(3) Nonapplication of faca.—Section 14 of the Federal Advisory Committee Act (5 U.S.C. App.) does not apply to the advisory group.

“SEC. 806. PROHIBITION OF COMMERCIAL AIR TOUR OPERATIONS OVER THE ROCKY MOUNTAIN NATIONAL PARK.

“Effective beginning on the date of the enactment of this Act [Apr. 5, 2000], no commercial air tour operation may be conducted in the airspace over the Rocky Mountain National Park notwithstanding any other provision of this Act or section 40128 of title 49, United States Code.

“SEC. 807. REPORTS.

“(a) Overflight Fee Report.—Not later than 180 days after the date of the enactment of this Act [Apr. 5, 2000], the Administrator [of the Federal Aviation Administration] shall transmit to Congress a report on the effects overflight fees are likely to have on the commercial air tour operation industry. The report shall include, but shall not be limited to—

“(1) the viability of a tax credit for the commercial air tour operators equal to the amount of any overflight fees charged by the National Park Service; and

“(2) the financial effects proposed offsets are likely to have on Federal Aviation Administration budgets and appropriations.

“(b) Quiet Aircraft Technology Report.—Not later than 2 years after the date of the enactment of this Act, the Administrator and the Director of the National Park Service shall jointly transmit a report to Congress on the effectiveness of this title in providing incentives for the development and use of quiet aircraft technology.

“SEC. 808. METHODOLOGIES USED TO ASSESS AIR TOUR NOISE.

“Any methodology adopted by a Federal agency to assess air tour noise in any unit of the national park system (including the Grand Canyon and Alaska) shall be based on reasonable scientific methods.

“SEC. 809. ALASKA EXEMPTION.

“The provisions of this title and section 40128 of title 49, United States Code, as added by section 803(a), do not apply to any land or waters located in Alaska.”