2013 US Code
Title 49 - Transportation
Subtitle VII - AVIATION PROGRAMS (§§ 40101 - 50105)
Part A - AIR COMMERCE AND SAFETY (§§ 40101 - 46507)
Subpart i - general (§§ 40101 - 40130)
Chapter 401 - GENERAL PROVISIONS (§§ 40101 - 40130)
Section 40128 - Overflights of national parks
Publication Title | United States Code, 2012 Edition, Supplement 1, Title 49 - TRANSPORTATION |
Category | Bills and Statutes |
Collection | United States Code |
SuDoc Class Number | Y 1.2/5: |
Contained Within | Title 49 - TRANSPORTATION SUBTITLE VII - AVIATION PROGRAMS PART A - AIR COMMERCE AND SAFETY subpart i - general CHAPTER 401 - GENERAL PROVISIONS Sec. 40128 - Overflights of national parks |
Contains | section 40128 |
Date | 2013 |
Laws in Effect as of Date | January 16, 2014 |
Positive Law | Yes |
Disposition | standard |
Source Credit | 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; Pub. L. 112-95, title V, §501, Feb. 14, 2012, 126 Stat. 100; Pub. L. 112-141, div. C, title V, §35002, July 6, 2012, 126 Stat. 843. |
Statutes at Large References | 114 Stat. 186, 185, 2522 117 Stat. 2541 119 Stat. 2427 126 Stat. 100, 843, 842 |
Public Law References | Public Law 100-91, Public Law 106-181, Public Law 106-528, Public Law 108-176, Public Law 109-115, Public Law 112-95, Public Law 112-141 |
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(a)
(1)
(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 or voluntary agreement under subsection (b)(7) for the park or tribal lands.
(2)
(A)
(B)
(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)
(D)
(E)
(F)
(3)
(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)
(5)
(A)
(B)
(C)
(i)
(ii)
(D)
(b)
(1)
(A)
(B)
(C)
(2)
(3)
(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 ½ 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)
(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)
(6)
(7)
(A)
(B)
(i) include provisions such as those described in subparagraphs (B) through (E) of paragraph (3);
(ii) include provisions to ensure the stability of, and compliance with, the voluntary agreement; and
(iii) provide for fees for such operations.
(C)
(D)
(i)
(I) the Director, if the Director determines that the agreement is not adequately protecting park resources or visitor experiences; or
(II) the Administrator, if the Administrator determines that the agreement is adversely affecting aviation safety or the national aviation system.
(ii)
(c)
(1)
(2)
(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) may allow for modifications of the interim operating authority without further environmental review beyond that described in this subsection, if—
(i) adequate information regarding the existing and proposed operations of the operator under the interim operating authority is provided to the Administrator and the Director;
(ii) the Administrator determines that there would be no adverse impact on aviation safety or the air traffic control system; and
(iii) the Director agrees with the modification, based on the professional expertise of the Director regarding the protection of the resources, values, and visitor use and enjoyment of the park.
(3)
(A)
(i) adequate information on the proposed operations of the operator is provided to the Administrator and the Director by the operator making the request;
(ii) the Administrator agrees that there would be no adverse impact on aviation safety or the air traffic control system; and
(iii) the Director agrees, based on the Director's professional expertise regarding the protection of park resources and values and visitor use and enjoyment.
(B)
(C)
(d)
(1)
(2)
(e)
(1) the Grand Canyon National Park; or
(2) tribal lands within or abutting the Grand Canyon National Park.
(f)
(g)
(1)
(2)
(3)
(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)
(A)
(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 ½ mile outside the boundary).
(B)
(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)
(6)
(7)
(8)
(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; Pub. L. 112–95, title V, §501, Feb. 14, 2012, 126 Stat. 100; Pub. L. 112–141, div. C, title V, §35002, July 6, 2012, 126 Stat. 843.)
REFERENCES IN TEXTThe date of the enactment of this section, referred to in subsecs. (a)(4), (c)(2)(A), (3)(C), and (g)(2), is the date of enactment of Pub. L. 106–181, which was approved Apr. 5, 2000.
The date of enactment of the FAA Modernization and Reform Act of 2012, referred to in subsec. (d)(2), is the date of enactment of Pub. L. 112–95, which was approved Feb. 14, 2012.
AMENDMENTS2012—Subsec. (a)(1)(C). Pub. L. 112–95, §501(a), inserted "or voluntary agreement under subsection (b)(7)" before "for the park".
Subsec. (a)(5). Pub. L. 112–95, §501(b), added par. (5).
Subsec. (b)(1)(C). Pub. L. 112–141 amended subpar. (C) generally. Prior to amendment, text read as follows: "An application to begin commercial air tour operations at Crater Lake National Park may be denied without the establishment of an air tour management plan by the Director of the National Park Service if the Director determines that such operations would adversely affect park resources or visitor experiences."
Pub. L. 112–95, §501(c)(1), added subpar. (C).
Subsec. (b)(7). Pub. L. 112–95, §501(c)(2), added par. (7).
Subsec. (c)(2)(I). Pub. L. 112–95, §501(d)(1), added subpar. (I) and struck out former subpar. (I) which read as follows: "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."
Subsec. (c)(3)(A). Pub. L. 112–95, §501(d)(2), substituted "without further environmental process beyond that described in this paragraph, if—" for "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." and added cls. (i) to (iii).
Subsecs. (d) to (g). Pub. L. 112–95, §501(e), added subsec. (d) and redesignated former subsecs. (d) to (f) as (e) to (g), respectively.
2005—Subsec. (e). Pub. L. 109–115 inserted 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 "
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 2012 AMENDMENTAmendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of Title 23, Highways.
EFFECTIVE DATE OF 2003 AMENDMENTAmendment by Pub. L. 108–176 applicable only to fiscal years beginning after Sept. 30, 2003, except as otherwise specifically provided, see section 3 of Pub. L. 108–176, set out as a note under section 106 of this title.
EFFECTIVE DATESection applicable only to fiscal years beginning after Sept. 30, 1999, see section 3 of Pub. L. 106–181, set out as an Effective Date of 2000 Amendments note under section 106 of this title.
OVERFLIGHTS IN GRAND CANYON NATIONAL PARKPub. L. 112–141, div. C, title V, §35001, July 6, 2012, 126 Stat. 842, provided that:
"(a)
"(1)
"(2)
"(A)
"(i) the 2-zone system for the Park in effect on the date of enactment of this Act to assess impacts relating to substantial restoration of natural quiet at the Park, including—
"(I) the thresholds for noticeability and audibility; and
"(II) the distribution of land between the 2 zones; and
"(ii) noise modeling science that is—
"(I) developed for use at the Park, specifically Integrated Noise Model Version 6.2;
"(II) validated by reasonable standards for conducting field observations of model results; and
"(III) accepted and validated by the Federal Interagency Committee on Aviation Noise.
"(B)
"(i) making recommendations, developing a final plan, or issuing regulations relating to commercial air tour operations in the Park; or
"(ii) determining under paragraph (1) whether substantial restoration of the natural quiet and experience of the Park has been achieved.
"(3)
"(4)
"(b)
"(1)
"(2)
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 PARKPub. L. 108–176, title III, §323(b), Dec. 12, 2003, 117 Stat. 2541, provided that:
"(1)
"(2)
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)
"(b)
"(c)
"(1) 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
"(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)
"(b)
"(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)
"(d)
"(e)
"(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)
"(b)
"(1)
"(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)
"(3)
"(c)
"(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)
"(1)
"(2)
"(3)
"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)
"(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)
"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."
1 So in original. The word "the" probably should not appear.
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