§ 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—
(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—
(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 title 14, Code of Federal Regulations if—
(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).
(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—
(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;
(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;
(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—
(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;
(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.
(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—
(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
(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;
(vi)
the inclusion of sightseeing flights as part of any travel arrangement package offered by the person offering the flight;
(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.