[Federal Register: February 13, 2007 (Volume 72, Number 29)]
[Rules and Regulations]
[Page 6883-6914]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13fe07-6]
[[Page 6883]]
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Part V
Department of Transportation
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Federal Aviation Administration
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14 CFR Parts 61, 91, 119, 121, 135, and 136
National Air Tour Safety Standards; Final Rule
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 61, 91, 119, 121, 135, and 136
[Docket No.: FAA-1998-4521; Amendment Nos. 61-115, 91-295, 121-328,
135-107, 136-1]
RIN 2120--AF07
National Air Tour Safety Standards
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule sets safety and oversight rules for a broad
variety of sightseeing and commercial air tour flights. The rule
responds to National Transportation Safety Board (NTSB)
recommendations, Government Accountability Office (GAO) reports, and
Department of Transportation Inspector General Reports that recommend
better oversight of the sightseeing and commercial air tour industry.
The intended effect of this final rule is to standardize requirements
for air tour operators and consolidate air tour safety standards within
part 136.
DATES: This final rule is effective March 15, 2007, except for
amendments to Sec. Sec. 119.1(e)(2), 121.1, and 135.1(a)(5) and
(a)(8), which are effective September 11, 2007. Also, affected parties
do not have to comply with the information collection requirements in
Sec. Sec. 91.146, 91.147, 136.7, and 136.13 until the FAA publishes in
the Federal Register the control number assigned by the Office of
Management and Budget (OMB) for this information collection
requirement. Publication of the control number notifies the public that
OMB has approved this information collection requirement under the
Paperwork Reduction Act of 1995.
FOR FURTHER INFORMATION CONTACT: Alberta Brown, Air Transportation
Division, AFS-200, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591; telephone: (202) 267-8166;
facsimile: (202) 267-8229; e-mail: alberta.brown@faa.gov. For legal
information, contact: Bruce Glendening, Operations Law Branch, Federal
Aviation Administration, 800 Independence Avenue, SW., Washington, DC
20591; telephone: (202) 267-8011; facsimile: (202) 267-7971; e-mail:
bruce.glendening@faa.gov.
SUPPLEMENTARY INFORMATION:
Availability of Rulemaking Documents
You can get an electronic copy using the Internet by taking the
following steps:
(1) Go to the search function of the Department of Transportation's
electronic Docket Management System (DMS) Web page (http://dms.dot.gov/search
).
(2) On the search page, type in the last four digits of the Docket
number shown at the beginning of this document (4521). Click on search.
(3) On the next page, which contains the Docket summary information
for the Docket you selected, click on the item you wish to view.
You can also get an electronic copy using the Internet through the
FAA's web page at or the Government Printing Office's Web page at:
http://www.access.gpo.gov/sudocs/aces/acrs140.htm. You can also get a
copy of this final rule by mail by submitting a request to the Federal
Aviation Administration, Office of Rulemaking, 800 Independence Avenue,
SW., Washington, DC 20591, or by calling (202) 267-9680.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. You can find out more about SBREFA on the Internet at
http://www.faa.gov/avr/arm/sbrefa.cfm. All operators affected by this
final rule are ``small'' by definition.
Authority for This Rulemaking
The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. This rule is issued under
the authority granted to the Administrator by Congress in 49 U.S.C.
section 40103. Under section 40103(b)(1), the Administrator is given
the authority to ``develop plans and policy for the use of the
navigable airspace and assign by regulation or order the use of the
airspace necessary to ensure the safety of aircraft * * *'' Section
40103(b)(2) grants the Administrator the authority to ``prescribe air
traffic regulations on the flight of aircraft including regulations on
safe altitudes for (A) navigating, protecting and identifying aircraft;
(B) protecting individuals and property on the ground; (C) using the
navigable airspace efficiently; and (D) preventing collision between
aircraft, between aircraft and land or water vehicles, and between
aircraft and airborne objects.''
Table of Contents
I. Background
II. Summary of the Final Rule
A. Applicability
B. Changes From the NPRM
C. Compliance Dates
D. Before and After This Rule
III. Comment Summary
IV. General Comments on the Proposal
A. NTSB Recommendations
B. SFAR 71 Should Not Be the Model
C. Withdraw the NPRM and Establish an Advisory Committee
D. Accident Data Does Not Support the Change
E. Increased Noise and Other Impacts on National Parks
V. Comments on Part 135 Certification
A. Against Part 135 Certification
B. ``Sightseeing'' vs. ``Commercial Air Tour''
C. Antique/Vintage Civil and Military Aircraft
VI. Comments on Part 91 Operations
A. Charity, Nonprofit, and Community Events
1. What is the difference between an exception, an exemption and
a deviation?
2. What is a charitable organization, a non-profit, and a
community event?
3. The Four-Event Limit for Charitable and Non-Profit
Organizations and the One-Event Limit for Community Events
4. Private Pilots and the 500-Hour Requirement
5. Reporting Requirements
6. Life Flights, Angel Flights, and ``Emergency or Medical
Service''
B. Other Flights for Compensation or Hire
1. What Is the Difference Between an Operations Specification
and a Letter of Authorization?
2. Where Are the FAA's Drug and Alcohol Regulations and Who Has
To Comply With Them?
VII. Comments on Part 136 Operating Requirements
A. Applicability and Definitions
B. Letters of Authorization
C. Minimum Altitudes, Standoff Distances, Visibility, and Cloud
Clearance
D. Affect of the Final Rule on Grand Canyon and Hawaiian
Operations
E. Passenger Briefings
F. Overwater Operations
1. Passenger Briefing for Overwater Operations
2. Life Preservers
3. Helicopter Floats
G. Helicopter Performance Plan and Operations
VIII. Regulatory Notices and Analyses
IX. The Amendment--Final Rule Language
I. Background
Air Tour operations are conducted in all parts of the United States
over various types of terrain. This terrain includes, but is not
limited to, national parks, fairgrounds, and urban, coastal, and
mountainous areas that range from unpopulated to densely populated. The
operators conducting these flights as a regular part of their business
are
[[Page 6885]]
commonly known as air tour operators, and their operations are often
referred to as commercial air tours.
Commercial air tours vary in many ways, but certain characteristics
apply to nearly all: (1) A single pilot typically conducts the flight
during daylight hours in a single engine airplane or helicopter; (2)
flights are typically conducted in visual meteorological conditions,
often without radar coverage or traffic advisories from an air traffic
control facility; (3) flights may be conducted near popular scenic
areas geographically limited in size and in dense air traffic in which
the mix of airplanes and helicopters may have different flight
characteristics (e.g., speed and maneuverability). Because of all of
these factors and characteristics, a pilot must use heightened
vigilance and greater precision in navigation to conduct a commercial
air tour successfully and safely.
In addition, terrain is often a major factor considered in a safely
conducted flight. Many popular scenic areas are located in remote,
rugged terrain where the attraction is the natural beauty of the site.
To view the natural beauty, commercial air tours are normally conducted
at relatively low altitudes, between 500 and 1,500 feet above ground
level (AGL). Flights conducted at these altitudes may be close to
obstructions and often are alongside higher terrain. In addition, many
air tour operators conduct flights over water. When the terrain factor
is added to those discussed above, you have a unique industry needing
equally unique regulations to ensure a safe and pleasurable experience
for the passenger.
Currently, commercial air tours beyond 25 statute miles of the
departure airport, and most commercial air tours over a unit of the
national park system, must be conducted by someone certificated under
Title 14 of the Code of Federal Regulations (14 CFR) part 119,
Certification: Air Carriers and Commercial Operators. These commercial
air tours must operate in accordance with either part 121; Operating
Requirements: Domestic, Flag, and Supplemental Operations, or part 135;
Operating Requirements: Commuter and On Demand Operations and Rules
Governing Persons On Board Such Aircraft. Parts 121 and 135 contain
operational, safety, and training rules that are not limited to air
tour operations.
Part 91, General Operating and Flight Rules, applies to air tour
operators that takeoff and land at the same airport and stay within 25
miles of that airport using a ``25-mile exception'' in 14 CFR
119.1(e)(2), 121.1(d), and 135.1(a)(5).
In order to address the unique circumstances surrounding air tour
operations, the FAA published a notice of proposed rulemaking (NPRM) in
the Federal Register on October 22, 2003 (68 FR 60572). The proposed
rule was modeled on Special Federal Aviation Regulation (SFAR) 71,
which currently governs the commercial air tour industry in Hawaii. In
the NPRM, we proposed to improve the overall safety of all commercial
air tours by requiring certification under part 119, except for certain
charitable, nonprofit, or community events. New safety standards in
part 136 were proposed in the NPRM for all air tour operators, and the
proposal would have resulted in renaming and expanding the entire part.
We proposed removing the 25-mile exception altogether. The proposals
presented in the NPRM have been dropped, revised, or adopted as
discussed in this final rule.
II. Summary of the Final Rule
A. Applicability
This final rule applies to commercial air tours conducted in
airplanes and helicopters only. It does not apply to gliders (powered
or unpowered), balloons, parachutes (powered or unpowered), gyroplanes,
or airships.\1\ In this final rule we address three groups of
commercial air tour operations in airplanes and helicopters:
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\1\ The National Parks Air Tour Management Act of 2000 (49
U.S.C. 40128) (Act) is only peripherally implicated by this rule in
that the existing regulations are moved from part 136, subpart A to
part 136, subpart B. The Act applies to all powered aircraft, not
just airplanes and helicopters. To the extent an operator covered by
this rule flies within an area covered by the Act, it must meet all
requirements imposed either directly or by regulations implemented
under the Act. If not a helicopter or airplane, the requirements
imposed by this rule will not apply.
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Group 1. Part 119 certificate holders with authority to conduct
commercial air tour flights in accordance with either part 121 or part
135;
Group 2. Part 91 operators conducting commercial air tour flights
in accordance with the exception contained in section 119.1(e)(2) (also
known as the 25-mile exception); and
Group 3. Part 91 operators conducting flights for certain
charitable, nonprofit, or community events in accordance with the
exception contained in Sec. 119.1(e)(2).
Group 1
This group of commercial air tour operators must be certificated
under 14 CFR 119, to operate in accordance with either part 121 or 135.
Part 121 and part 135 contain operational, safety, and training rules
for these operators. Additionally, this group must comply with the
safety provisions in part 136. This first group continues to be subject
to the drug and alcohol testing requirements of parts 121 and 135.
Group 2
This group consists of air tour operators that would have been
certificated as an air carrier like the first group if it weren't for
the 25-mile exception in Sec. Sec. 119.1(e)(2), 121.1(d), and
135.1(a)(5). Because of the exception, this group is allowed to conduct
flights under the operating rules of part 91. The exception will
continue, except for flights over the Grand Canyon National Park.\2\
Even though flights are not conducted under part 121 or part 135, this
second group of operators continues to be subject to drug and alcohol
testing requirements. The number of flights allowed is not limited,\3\
but private pilots may not be used. Each operator must apply for, and
operate in accordance with, a Letter of Authorization (LOA) issued by
the FAA. This group must comply with the safety requirements of part
136 subpart A (as mandated in Sec. 91.147).
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\2\ The exception continues in a limited sense over all other
national parks, because the Act allows a total of five commercial
air tours per month by someone who does not hold a part 119
certificate. (See SFAR 50-2; part 93, subpart U; and part 136,
subpart B).
\3\ Other than at most national parks where flights are limited
to not more than five per month through Sec. 136.37.
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Group 3
This last group of operators conducts commercial air tours for
certain charitable, nonprofit, and community events. The flights of
this group will be limited to the 25-mile exception. This final rule
establishes a new Sec. 91.146 for charitable, nonprofit, and community
event flights allowing them to continue operating in part 91.\4\
Section 61.113(d) is revised to delete the word ``airlift,'' and a
reference to the new Sec. 91.146 is added to allow private pilots to
fly such events, and it allows them to operate without drug and alcohol
testing. Private pilots must have at least 500 hours total flight time.
Sponsors and their pilots for charitable and nonprofit events are
limited to four events each
[[Page 6886]]
calendar year. Sponsors and their pilots for a community event are
limited to one event per calendar year. An ``event'' may involve
several flights but may not last more than three consecutive days. New
Sec. 91.146 defines three kinds of flights that can be operated under
part 91, and need not be operated under part 135. The operators of
these flights must comply with the safety requirements in part 136
subpart A, but are not required to conduct drug and alcohol testing.
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\4\ The FAA finds that (1) logging flight time is a form of
compensation; (2) most charities are a business holding out to the
public through advertising and collection of fees directly through
payment of money much like an air carrier, or indirectly through
``donations'; and (3) private pilots normally may not fly for
compensation or hire. However, the FAA finds that it is in the
public interest to allow some charitable, nonprofit, and community
event flights to be conducted under part 91.
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This group was previously allowed to operate without drug and
alcohol testing requirements through individual exemptions. The
language from those exemptions is incorporated into Sec. 91.146.
B. Changes From the NPRM
The final rule differs substantially from what was proposed in the
NPRM in several areas. Most of the changes are directly in response to
comments submitted by the public. Most of the significant changes are
listed here and the justification for the changes can be found under
the discussion of comments and FAA response that follows. The changes
include:
--Part 136 is divided into subparts. Subpart A is National Air Tour
Safety Standards. Subpart B is National Parks Air Tour Management
(previously the only thing in part 136). Subpart C is reserved for SFAR
50-2 and Part 93, subpart U (both addressing Grand Canyon flight
operations).
--The proposed elimination of the 25-statute mile exception in Sec.
119.1 will not be adopted. The 25-mile exception remains in Sec. Sec.
119.1(e)(2), 121.1(d), and 135.1(a)(5).
--Commercial air tour operators in parts 121 or 135 who also conduct
commercial air tours in part 91 must have both operations
specifications and a Letter of Authorization.
--SFAR 71 for Hawaii is removed and has been incorporated into the
final rule language as Appendix A to part 136.
--Section 135.1(c) is removed because certain references to drug and
alcohol testing have been rewritten.
--Proposed deviation authority in the NPRM is deleted.
--Proposed changes to minimum altitudes, standoff distances,
visibility, and cloud clearance in the NPRM are deleted.
--The final rule section for life preservers for overwater operations
(proposed Sec. 136.13, final Sec. 136.9) is modified to greatly
reduce the burden for operators for airplanes with floats, and to some
degree, the burden for helicopters with floats. ``Life preserver'' and
``shoreline'' are defined in Sec. 136.1.
--Helicopter performance plan (proposed Sec. 136.17) and Helicopter
operating limitations (proposed Sec. 136.19) are merged (final Sec.
136.13) and amended.
C. Compliance Dates
This final rule is effective thirty days after publication.
Operators must demonstrate compliance with the new requirements 180
days thereafter. The only exception is for helicopter floats. The FAA
recognizes that affected operators may need more than six months to
equip their helicopters with floats. Accordingly, we are allowing 18
months for operators who need to modify their helicopters to complete
those modifications.
D. Before and After this Rule
To further help readers understand the changes to commercial air
tour operations in this final rule, we include here a chart that
clearly illustrates which existing regulations this final rule affects
and what new requirements are included.
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Regulatory section Before this rule After this rule
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PART 61
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Section 61.113..................... Paragraph (d) of this Section 61.113 now directs the reader to
section provided for the 91.146.
use of private pilots
during charity flights.
The section contained
certain conditions and
limitations on how private
pilots could operate for
compensation or hire in
the interest of charity.
Some of those conditions
and limitations included
who was considered a
charity, how a sponsor
must notify the FAA of an
operation, what kind of
airport was acceptable for
such operations, the
airworthiness of the
aircraft in operation, and
the number of hours a
private pilot must have to
operate such flights.
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PART 91
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Section 91.146..................... Did not exist.............. Many of the conditions and limitations from
61.113 are retained in this new section. They
are kept mostly intact with some revisions to
the private pilot hour requirement, what
information the FAA requests of the sponsor,
and the number of events a sponsor and pilot
may participate in each year \5\.
New requirements in this section include:
1. We define the terms charitable event, non-
profit event, and community event.
2. A private pilot operating a flight
described in this section must have 500
hours. This is increased from the previous
requirement for 200 hours.
3. Operations under this section are limited
for sponsors and pilots. No sponsor or pilot
may exceed 4 charitable or non-profit events
per calendar year, or exceed 1 community
event per calendar year.
4. All flights under this section must be non-
stop, beginning and ending at the same
airport, and flown within a 25-mile radius of
the airport. This has always been the case,
but not as easy to find.
[[Page 6887]]
5. Operators under this section must conduct
operations in airplanes or helicopters with a
standard airworthiness certificate.
6. Operators under this section must comply
with part 136, subpart A (National Air Tour
Safety Standards).
Section 91.147..................... Did not exist.............. This section applies to part 91 operations for
compensation or hire.
1. Operators under this section must apply for
and receive a Letter of Authorization (LOA).
This removes the burden of Operations
Specifications that come with full air
carrier status, yet allows the FAA to build a
database of part 91 compensation or hire
operators conducting air tour operations.
2. Operators under this section must comply
with drug and alcohol requirements. This is
not a new requirement, but some operators
have misunderstood the requirement. Certain
operators have received an exemption from
drug and alcohol testing requirements.
3. Operators under this section must comply
with part 136, subpart A (National Air Tour
Safety Standards).
4. Operators under this section must conduct
operations in airplanes or helicopters with a
standard airworthiness certificate. Some
Antique/Vintage civil and military aircraft
operating under this section will continue to
need exemptions from this requirement.
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PART 119
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Section 119.1...................... This section prescribes Paragraph (e)(2) remains largely the same. The
Applicability, and differences in the final rule are:
paragraph (e)(2) describes 1. The paragraph used to refer to
the ``25-mile exception'' ``sightseeing flights,'' (undefined) and now
cited in the final rule. refers to ``Commercial Air Tours'' (defined
in 119.3 and part 136, subpart A).
2. The paragraph clarifies that operations in
this exception are for compensation or hire.
3. Operators using this exception must comply
with the LOA issued under 91.147.
4. Operations in this exception must be
conducted in airplanes or helicopters with a
standard airworthiness certificate.
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PART 121
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Section 121.1...................... This section prescribes Paragraph (d) is amended to replace the term
Applicability for Part ``sightseeing'' with ``Commercial Air
121. Paragraph (d) Tours.'' This section also requires
addresses sightseeing compliance with part 136, subpart A (National
flights. Air Tour Safety Standards). We make a
technical correction in paragraph (d) to
include alcohol testing requirements in two
sections that were inadvertently removed in a
previous rulemaking (121.458 and 121.459).
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PART 135
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Section 135.1...................... This section prescribes 1. Paragraph (a)(5) is amended to replace the
Applicability for Part term ``sightseeing'' with ``Commercial Air
135. Paragraph (a)(5) Tours.'' Also, the paragraph now makes
addresses sightseeing reference to 119.1, and requires compliance
flights, and paragraphs with part 136, subpart A (National Air Tour
(c) and (d) defined Safety Standards).
``operator'' and drug and
alcohol testing
requirements.
2. Paragraph (c) is amended. Previously,
paragraph (c) defined an ``Operator'' as it
pertains to the requirements for Part 135. We
now reference part 119 to provide the drug
and alcohol definition for ``Operator'' and
replace the testing old paragraph (c) with a
new one that is made up of the requirements
previously found in paragraph (d). Part 119
did not exist when 135.1(c) was written, so
this is a technical amendment.
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PART 136
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Subpart A (136.1-136.13)........... Did not exist.............. This Subpart contains the safety standards and
definitions applicable to Commercial Air
Tours.
Subpart B.......................... Did not exist.............. We moved the requirements that were previously
the whole of part 136 into new sections and
this new subpart, but didn't change any of
the substance. This subpart contains National
Parks Air Tour Management regulations.
Subpart C.......................... Did not exist.............. We created a Subpart C and reserved the space
for the possible movement of the Grand Canyon
air traffic rules (SFAR 50-2 and Part 93
Subpart U) so commercial air tour regulations
are in one location.
Appendix A......................... Did not exist.............. This Appendix holds all of the requirements
once found in SFAR 71--Operations in Hawaii.
These requirements were previously attached
to Part 91, but we moved them into this newly
created Appendix to have all Commercial Air
Tour regulations in one location: Part 136.
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[[Page 6888]]
Miscellaneous Requirements
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SFAR 71............................ Was a separate rule located SFAR 71 has always been attached to Part 91.
in front of Part 91. We have taken all of SFAR 71 and inserted it
as Appendix A into Part 136. Now air tour
operators in Hawaii will find the same
conditions and limitations in SFAR 71 in this
new Appendix. We have not changed the text,
only the location.
SFAR 50-2 and Part 93, Subpart U... SFAR 50-2 is a separate These regulations pertaining to air traffic
SFAR located in front of routes and guidance in Grand Canyon National
Part 91, and Part 93, Park remain unchanged. We reserve ``Subpart
Subpart U is where it is. C'' in Part 136 for whenever we decide to co-
locate these regulations with other
Commercial Air Tour regulations.
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III. Comment Summary
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\5\ We have imported several conditions for private pilot
operations in support of charity, non-profit, and community event
flights from approximately 100 existing exemptions.
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We received more than 2,300 comments to this rule from individual
pilots, trade organizations, commercial air tour operators, charity
organizations, historic aircraft operators and others. At the request
of commenters, the FAA extended the comment period twice, allowing a
total of 240 days in which to comment. The FAA also convened two face-
to-face public meetings; one in Washington, D.C. on May 11, 2004, and
the other in Las Vegas, NV on May 21, 2004. In addition, the FAA
conducted a two-week Virtual Public Meeting on the Internet from
February 23 to March 5, 2004, that was further extended an additional
two weeks to March 19, 2004 due to the many comments received.
While some commenters supported the proposed rule, most notably the
National Transportation Safety Board (NTSB), most commenters opposed
the NPRM on one or more of the following grounds:
1. FAA is attempting to impose a one-size-fits-all mentality.
2. FAA does not recognize the geographical and environmental
differences associated with different operations.
3. Part 91 operators will go out of business if forced into part
135.
4. Millions of Americans would be denied the opportunity to
experience flight at a grassroots level. This would ground vintage
aircraft, barnstorming, military history, and other areas of aviation
promotion and heritage.
5. The existing rules are more than adequate if obeyed by operators
and enforced by the FAA against operators who do not obey them.
6. The proposal is not supported by accident data. Since air tour
accidents are all in part 135, why does the FAA propose to place all
operators in part 135?
7. There is insufficient evidence to ensure that the proposed
rules, if adopted, would result in increased safety.
8. Flights operated for ``charity'' would be stopped.
9. Deviation authority should not be in the rule.
10. The proposed rule mixes helicopters and airplanes at one
altitude (compression).
11. Compliance with proposed minimum altitudes and standoff
distances result in an undesirable tour and thus would result in a loss
of business.
12. Many operators have agreements with air traffic to conduct
flights a certain way and this proposal conflicts with those specific
agreements.
Below we discuss and respond to the many suggestions and arguments
presented to us during the comment period. We broke our response to
comments into four major categories to make it easier to read. Within
those four categories, we have tried to address some general concerns
before providing any detailed response. For instance, it became obvious
when reading comments that many people did not understand the
difference between an ``exemption,'' an ``exception,'' and a
``deviation.'' Therefore, we answer that question before going into
specific comments under the ``part 91 operations'' section of comment
response. The four categories we've used to organize our response to
comments are:
1. General comments on the proposal;
2. Comments on extending part 135 certification for the entire
industry;
3. Comments on part 91 operations; and
4. Comments on part 136 operating requirements.
IV. General Comments on the Proposal
The comments addressed here were in opposition to the general
nature of the rule. Comments in opposition to specific parts of the
proposal are addressed in the sections two, three, and four of this
preamble.
A. National Transportation Safety Board (NTSB) Recommendations
The Aircraft Owners and Pilots Association (AOPA) stated that the
``FAA has promulgated this NPRM in response to NTSB recommendations
concerning the safety of commercial air tours.'' AOPA argued that FAA
had already issued regulations to address most of the NTSB's concerns
through SFARs 50-2 (Grand Canyon) and 71 (Hawaii), and therefore, the
sole justification for the NPRM was NTSB recommendation A-95-58, which
recommended eliminating the 25-mile sightseeing exception in Sec.
119.1(e)(2). AOPA asserted that the FAA's accident data does not
support inclusion of sightseeing and charity flights,'' and contended
that ``the FAA is NOT compelled to adopt all NTSB recommendations and
has the authority and ability to close NTSB recommendations with
alternative or no action.'' AOPA cited a few specific examples from the
549 NTSB recommendations it found ``that were closed with no action
taken because the FAA either disagreed with the NTSB's recommendation
or failed to take action in a timely manner.''
The FAA agrees with AOPA that it is not compelled to adopt NTSB
recommendations. The NTSB is charged with issuing recommendations that
it believes will improve the safety of aviation without any
consideration of the costs of these recommendations. In this case, the
recommendations were based on a study of the entire air tour industry;
including operations conducted under the 25-mile exception. The FAA
decided during the NPRM stage of this rulemaking that the NTSB
recommendations had some validity and attempted to meet their intent
with proposed rule language.
In view of the comments, we have decided not to eliminate the 25-
mile exception as presented in the proposal. The cost associated with
placing all air tour operations into part 121 or part 135 far outweighs
any potential increase in safety. However, aviation safety requires
these commercial air tours comply with
[[Page 6889]]
some additional safety rules. The problems that resulted in the NTSB
recommendations are not limited to the Grand Canyon and Hawaii. They
are common to most commercial air tour flights conducted throughout the
U.S. Thus, many aspects the special aviation safety rules that apply to
commercial air tour operations in the Grand Canyon and Hawaii should
also apply to the rest of the country.
The NTSB, in its comments submitted to the NPRM, supported the
proposed rule and believed implementation of the requirements in the
proposal was long overdue. We have analyzed all comments received in
response to the NPRM and find that the regulatory action the FAA is
taking is an appropriate and responsible response to the NTSB
recommendations.
B. SFAR 71 Should Not Be the Model
A number of commenters, including the Experimental Aircraft
Association (EAA), the United States Air Tour Association (USATA), the
Helicopter Association International (HAI), Blue Hawaiian Helicopters,
Air Vegas Airlines, and the National Air Transportation Association
(NATA), questioned the FAA's basis for modeling the proposed rules on
SFAR 71, which governs the commercial air tour industry operating in
Hawaii. Commenters argued that the SFAR 71 rules were not responsible
for the improved safety in air tour operations in Hawaii. They stated
that air tour operations in Hawaii are safer because of improved
technology and operators taking more action to improve safety.
Specifically, Papillon Airways Inc., commenting on behalf of the Tour
Operators Program of Safety (TOPS), cited two reports that state SFAR
71 had no effect on the accident rate reduction since its enactment.
One report posited that the altitude restriction in SFAR 71 has
actually made air tours in Hawaii more dangerous by compressing
available airspace. The other acknowledged a decrease in accidents but
did not credit SFAR 71 with that decrease. Papillon claimed that the
reduction in the number of accidents since SFAR 71 is due entirely to
replaced engines (resulting in fewer power failures) and the creation
of TOPS.
Other commenters, including the NTSB and NorthStar, stated that FAA
did not complete a review of the effectiveness of SFAR 71 in this
rulemaking process, which they believe is necessary to evaluate whether
the SFAR 71 rules actually accomplished their intended goal. They also
commented that the majority of existing part 121 and 135 air tour
operations are concentrated in unique areas of the nation, primarily
Hawaii and the Grand Canyon, and that these environments are not
typical of the remainder of the country. They suggested it would not be
appropriate to extrapolate regulations that might be working in one
specialized area to the entire universe of air tour operations.
Additionally, they stated that there are already layers of regulations
applicable to Hawaii and the Grand Canyon, and the NPRM would establish
complicated rules, making compliance all the more difficult.
The FAA agrees that there may be multiple reasons for accident rate
improvement in Hawaii and other parts of the country. However, we also
believe that SFAR 71 has had a positive impact. Certainly, improved
technology aided in making air tour operations in Hawaii safer, but we
do not support the claim that technology and operator action are solely
responsible for improved safety. Rather, we believe there is a
relationship between the imposition of a minimum, mandatory safety
standard and the decrease in accidents. Purely voluntary improvements
that significantly increase safety would be unlikely to coincide so
neatly with the implementation of SFAR71.
The United States has many areas with rugged terrain, bodies of
water, and vertical cliffs that are subject to rapidly changing weather
patterns. Although air tours may vary as to what kind of terrain is
flown over, the FAA's concerns over flights conducted throughout the
United States are the same. For example, flight over water presents a
risk to passengers regardless of whether that water is the Pacific
Ocean, Lake Mead, or a large reservoir.
C. Withdraw the NPRM and Establish an Advisory Committee
A number of commenters (AOPA, NATA, Antique Airplane Association,
Aviation Foundation of America (AFA), The Lightship Group) recommended
the FAA withdraw the NPRM on the grounds that, as NATA asserted,
``There is a lack of sufficient data to support the FAA's determination
of a need for, and the costs associated with, the proposed
regulations.'' AOPA stated, ``Nothing in the original Federal Register
notice or information that has been made available during the comment
period, including the FAA virtual meeting, indicates there is a
significant safety issue on sightseeing and charity flights that the
FAA must address by advancing this rulemaking initiative.''
The Antique Airplane Association suggested the FAA consider ``the
formation of an industry run organization to effect and enhance these
type operations.'' AFA and The Lightship Group recommended the FAA
establish an Aviation Rulemaking Committee or an Aviation Rulemaking
Advisory Committee to assist in drafting a rule taking the aviation
community's concerns into account.
We declined to establish a rulemaking committee to develop national
air tour standards. The FAA already developed an NPRM for National Air
Tour Safety Standards, had a 240-day comment period, and conducted an
Internet meeting and two public meetings. We received over 2,300
comments in the docket. We do not believe a rulemaking committee would
provide any additional information. Accordingly, we have developed this
final rule based on the comments already submitted.
D. Accident Data Does Not Support Change
A number of commenters questioned the accident data used by the FAA
to justify the proposed rule changes. Most of these commenters
questioned the basis for requiring operation under part 135 since a
high number of the cited accidents involved aircraft operating under
part 135 at the time of the accident. Collings said, ``Since many of
the accidents involve part 135 operators, it should be clear that part
135 is not the answer.'' The Seaplane Pilots Association stated, ``Of
the 12 accidents cited as exemplary of the need for this change, 83%
were conducted under part 135.'' Similarly, the Tennessee Department of
Transportation stated, ``Part 135 air tours resulted in almost twice as
many deaths as their part 91 counterparts.''
The Minnesota Department of Transportation (MDOT) raised questions
about the statistics cited in the NPRM and asserted that they did ``not
bolster the argument that part 135 operations are safer.'' MDOT said
that there was no data that would allow the reader to put the cited
numbers in context. MDOT asked, ``Did the 75 accidents stem from 1,000
or 10,000 or 100,000 total operations?''
The Professional Airways Systems Specialists (PASS) questioned the
FAA's use of the August 24, 1997, crash off Ocean City, MD, as one of
the reasons for changing the rules. The NTSB report indicated that the
aircraft stalled and crashed because the pilot began an aerobic
maneuver at an altitude of approximately 300 feet AGL. PASS asked,
``Since the aircraft was already in violation of a FAR, how is making
the pilot meet part 119 and part 135 going to keep this kind of
accident from happening?'' The Seaplane Pilots
[[Page 6890]]
Association also asserted, ``Many of the accidents profiled resulted
from actions that are prohibited under both part 91 and part 135, and
part 135 status appeared to have little effect on the safety of the
flights profiled in the NPRM.'' TOPS said, ``Safety statistics do not
justify special regulations for helicopter tours conducted by
commercial operators under part 135 (as differentiated from ``sight-
seeing'' flights conducted on an ad hoc basis under part 91).'' It
continued, ``TOPS operators during calendar year 2003 experienced 1.13
accidents per 100,000 air tour hours, compared with 998 accidents per
100,000 flying hours for the civil helicopter fleet at large.''
Kenmore Air Harbor questioned the use of accidents in Hawaii
(particularly helicopter accidents) to justify the proposed rule.
Kenmore stated, ``Needed regulations, which address safety deficiencies
in Hawaii should not nor need not apply to other geographical areas.''
HAI, NorthStar Trekking (NorthStar), and other commenters also
questioned the use of Hawaii accidents to justify the proposed rule
changes. In a similar vein, AFA stated that the accidents cited as
justification for the NPRM are mostly helicopter operations over water
in Hawaii and do not reflect the ``superb safety record of part 91
fixed wing operators* * *''
The NTSB argued that better reporting requirements could lead to
the development of better data. It stated, ``national air tour safety
standards should include a provision that is similar to 14 CFR
121.693(e), which requires the certificate holder to include a list of
passengers' names on the load manifest or to secure this information by
another means.''
The FAA acknowledges that the data on part 91 accidents is less
than ideal. Thus, comparing a list of part 135 accidents against a list
of part 91 accidents is not productive. Only a few of the total number
of part 91 accidents researched were listed in the NPRM. The official
NTSB accident reports we researched didn't specify whether the flight
was ``sightseeing.'' Some reports said ``sightseeing'' in the
narrative, but most only noted the flight as part 91. Because of these
limitations in the data, the FAA cannot assume that part 91 flights
are, in fact, safer than part 135 flights. An accident during a part 91
operation at a traditional sightseeing spot like the Grand Canyon,
Niagara Falls, or at a water fall in Hawaii is normally expected to be
a sightseeing flight, but it might not be. An accident report that
doesn't say ``sightseeing'' or ``air tour'' is not necessarily a
definitive report that sightseeing did not take place, or that the
flight would not be considered an air tour. The data on part 135
operations is more robust. A part 135 sightseeing accident is normally
listed that way; as a sightseeing accident. The part 135 operators
conducting sightseeing flights are well known and their accidents are
usually newsworthy. Most part 135 sightseeing operators conduct
sightseeing flights all day, every day (although some are seasonal)
providing more data points.
In other words, the accident data presented in the NPRM may have
given the impression that there were more part 135 accidents than part
91, but that is not necessarily true, particularly as a percentage of
total sightseeing operations. As we discussed in the NPRM, we have
definitive data between 1993 and 2000 that there were 75 part 91
commercial air tour accidents, and 53 part 135 commercial air tour
accidents. While the data is simply not accurate enough for us to
conclude an exact number of part 91 flights that include sightseeing
and how many of those have had an accident, the captured part 91
flights need new standards for their operation. MDOT makes a good point
in its comment that the number of accidents listed is hard to put into
perspective unless it is known how many part 91 and part 135 commercial
air tour flights took place in that time. The first step in gathering
enough information to calculate an accurate accident rate will be the
establishment of the database supported by the application and approval
of LOAs, as required in Sec. 91.147. Since we are not requiring part
91 operators to report flight hours in this final rule, we still will
not be able to calculate an accident rate when this rule is published.
However, part of the safety improvements in this rule include increased
FAA oversight of these operations. Through the LOA, we will now have
geographic oversight of operations on which we previously did not have
information. In response to the NTSB comment and recommendation to
include a provision similar to 14 CFR Sec. 121.693(e) in the rule,
which would have required operators to list passenger names on load
manifests, that recommendation is outside the scope of this rulemaking.
However, we anticipate that the database based on LOA applications will
generate useful data for future analysis.
The FAA does not agree with the commenters who believe rulemaking
to improve regulatory safety is not justified unless an actual accident
is experienced by a particular operator, group of operators, type of
operator, or foundation. Such an approach would result in an
impracticable regulatory scheme and would inevitably result in the FAA
failing to adequately assure the safety of the flying public. When the
NTSB and FAA investigate an accident, the recommendations are applied
to the broad category of operators or persons who conduct the same type
of operation and who might have the same potential risk of a similar
accident. For instance, if particular operators using 30-passenger
turboprop airplanes crash on approach due to preventable crew errors,
the FAA would not regulate only those particular crew members. The FAA
would regulate all operators and crews using the same equipment. In
this final rule the FAA is regulating the air tour industry, not just
those air tour operators experiencing an accident.
E. Increased Noise and Other Impacts on National Parks
The USATA believed the proposed lower altitudes for multi-engine
helicopters provided an incentive to convert to noisier twin-engine
helicopters. The commenter believed this was in conflict with the
National Parks Air Tour Management Act of 2000, which mandates
incentives for quiet technology aircraft. USATA stated, ``This mixed
message is confused and shows a lack of policy coherence and
initiative. Which way does the FAA want the helicopter air tour
industry to go? The FAA should have a well reasoned, coherent and
coordinated plan that addresses both public safety and noise abatement
for the air tour industry.''
NorthStar commented that the proposed altitude restrictions would
be less safe and would result in more noise impact. NorthStar also
commented that the FAA had not included any noise data or analysis as a
part of this NPRM and had therefore not provided an adequate
opportunity for comment on what appears to be the rationale behind the
change in minimum altitudes.
The National Park Service (NPS) was particularly concerned about
the potential for adverse effects on wildlife resources as a result of
the proposed altitude restrictions. The NPS was concerned that the
proposed minimum standard of 1,000 feet AGL over ``raw terrain'' may
affect sensitive park resources or visitor experience. Of special
concern to NPS were the proposed special deviations that would have
allowed the FAA to approve a lower minimum altitude of not less than
500 feet AGL for single engine helicopters, and not less than 300 feet
AGL for multi-engine helicopters. The NPS commented that the scientific
community had studied the effects of
[[Page 6891]]
aircraft flight on wildlife for many years and provided details on
studies that showed negative impacts to wildlife due to low-level
aircraft. NPS concluded, ``The NPS appreciates the concerns of the NTSB
and the FAA that minimum flight standards could create a compressed
flight environment, particularly over areas of high interest. However,
no analysis of alternatives has been presented for the suggested AGL
and therefore, without additional information, it is not possible to
determine if there is an option that affords greater protection to park
resources while also allowing for a safe, high quality air tour.''
NPS also stated that it was a cooperating agency and cosignatory
with the FAA and they together are responsible for implementation of
the National Parks Air Tour Management Act of 2000. Accordingly, the
NPS had some concern regarding the potential impact this rulemaking
process will have on the National Environmental Policy Act (NEPA)
analyses and resultant air tour management plans (ATMPs). NPS stated
that the National Parks Air Tour Management Act also outlines
appropriate alternative actions that may be considered in an ATMP.
These actions, NPS commented, may include the prohibition of air tours
over a national park, in whole or in part, and may establish conditions
for the conduct of commercial air tours. The operations may include
commercial air tour routes, maximum or minimum altitudes, time of day
restrictions and maximum number of flights per a unit of time. NPS
stated that two of these actions, commercial air tour routes and
maximum or minimum altitudes, are identical to the type of actions
identified in the proposed rule.
We did not propose any commercial air tour routes, time of day
restrictions, or maximum number of flights per unit of time in the
NPRM, because this rule is limited to addressing the safety of air
tours, not their impact on the environment. As noted by NPS, those
concerns are more appropriately handled as part of the ATMPs. In regard
to altitudes, we did not adopt any of the proposed altitude changes,
and the long-standing altitude restrictions continue unchanged.
Accordingly, the FAA does not believe that this rule changes the ATMP
analysis in this regard.
The FAA does not agree that this rule will circumvent the goal of
the Act and its promotion of quieter aircraft. The FAA anticipates
ATMPs will address NPS's concerns for the national parks by
establishing tour routes, altitude limits, incentives for quiet
aircraft technology, and other requirements where necessary. Since many
of the air tour operators fly inside and outside national parks, the
conversion to quiet technology will have a broader benefit than just
inside national parks. In any event, this final rule does not change
any of the altitude minimums already in place. Those altitudes are
safety-driven. Any future ATMP final rule that changes altitude
minimums must meet established safety standards.
With regard to the NPS's specific concern about allowing airplanes
to descend to 1,000 feet AGL and helicopters to 500 feet AGL or 300
feet AGL, the FAA notes that current part 135 Visual Flight Rule (VFR)
minimum altitudes are established in Sec. 135.203 at 500 feet above
the surface during daytime for airplanes, and 300 feet above the
surface for helicopters operating over congested areas. There is no
listed minimum for helicopters over other-than-congested areas. In
other-than-congested areas, helicopters may go below 300 feet AGL. FAA
Advisory Circular 91-36D, Visual Flight Rules (VFR) Flight Near Noise-
Sensitive Areas (as amended, September 17, 2004), recommends a 2,000
feet AGL limit over ``noise sensitive areas.'' This is a voluntary
limit that is based on general environmental concerns and not the
safety concerns that are the identified purpose of this final rule.
The FAA has more restrictive altitude standards for air tours in
Grand Canyon National Park and Hawaii because of the large number of
commercial air tour flights in a relatively small amount of airspace
and the demonstrated hazards. In view of many of the comments and our
reassessment of the relative safety risks, the FAA decided not to
change minimum altitudes in other portions of the country. For the same
reasons, we decided not to adopt the proposed visibility, cloud
clearance, and standoff distance restrictions for other portions of the
country. Any ATMP supplements this final rule.
V. Comments on Part 135 Certification
A. Against Part 135 Certification
Some commenters stated that the requirement to be certificated
under part 119 and obtain approval to operate under part 135 would be
difficult or impossible for certain types of aircraft and operations.
Sopwith Ltd., used as an example the Ford TriMotor aircraft it
operates, and stated, ``While the Ford is a type-certificated design
and holds a standard airworthiness certificate, the Ford cannot be
operated under part 135, because it cannot meet all the requirements of
part 135.'' Similarly, AFA commented that many vintage ex-military
aircraft and foreign type-certificated aircraft do not hold standard
airworthiness certificates and cannot qualify under part 135. EB Air
asked how operators of such aircraft would address and conform to the
many part 135 requirements regarding time life items such as engine and
propeller total times, engine accessory service life, and replacement
of parts.
Bar Harbor Aviation commented that the additional paperwork,
bookkeeping, manual writing, equipment, time, and money required to
become a part 135 operation would not make the operation any safer,
just more complex and expensive to operate. Waldo Wright's Flying
Service commented that, ``Because of the increased regulatory standards
and certification costs of a multi-pilot part 135 certificate, I would
have no choice but to split my company up and apply for a one aircraft-
one operator part 135 certificate for each aircraft.'' Waldo Wright
also commented on the difficulty and expense of obtaining insurance for
operations conducted under part 135, compared to part 91. USATA
believed a ``one-size-fits-all'' approach was not the most prudent way
to approach the issue. USATA stated that the FAA failed to take into
consideration the uniqueness of full-time commercial air tour
operations and the considerable experience of current part 135 and 121
commercial air tour operators in publishing the NPRM, and would impose
additional new requirements with too broad a regulatory brush. USATA
stated, ``Evidence of that is clear since nearly every operational
regulatory provision contained in this NPRM also contains a way in
which the FAA Administrator may grant exceptions. If nearly all of
these proposed requirements are `exceptionable,' then the justification
for imposing them in the first place must be suspect.'' AFA stated that
there is no statistical data that can lead one to conclude that the
affected operations would be any safer if required to become
certificated and operated under part 135.
AOPA stated that ``It is important to note that the primary reason
for eliminating the part 91 exemption under the National Parks Air Tour
Management final rule was not because of safety, but was a regulatory
means to control these operations for purposes of conducting air tours
over national parks.'' Similar comments were made during public face-
to-face meetings and the Internet meeting.
In the National Park Air Tour Management final rule, certification
under part 119 was required for all
[[Page 6892]]
operators with limited exceptions. The FAA issued the final rule for
the National Parks requiring certification for many reasons, including
improved safety and oversight, and to meet requirements contained in
legislation.
Many of these part 91 operators compete with part 135 commercial
air tour operators, and have chosen to operate under the exception
provided in Sec. 119.1(e)(2). In making this choice, the operator does
not have the flexibility provided to an air carrier but can
significantly lower operational costs while receiving compensation for
the flight. The FAA recognizes that many of the commenters could meet
the requirements to operate under part 135, but only at a significant
increase in overall cost of operation.
Aircraft with an airworthiness certificate that is other than
``standard'' (e.g., ``Restricted Category,'' ``Limited Category,'' or
``Experimental Category'') cannot be used to carry people for
compensation or hire.\6\ (14 CFR 91.313, 91.315, 91.317, and 91.319.)
An ``Experimental Category'' certificate does not allow carrying
passengers at all. Most, if not all, of the military and many vintage
airplanes have restricted airworthiness certificates. Thus, the
operators of such aircraft can only carry persons for compensation or
hire if they have an exemption. Many of the commenters said they do not
fit into part 135, but it is evident that some of those same commenters
also may not fit into part 91 when carrying passengers for compensation
or hire. The FAA recognizes that some of the aircraft with other than
standard airworthiness certificates could meet standard airworthiness
certificate requirements. Operators of these aircraft could apply for a
standard airworthiness certificate, which would relieve them of any
obligations to operate under an exemption.
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\6\ See 14 CFR 91.313, 91.315, 91.317, and 91.319.
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In response to many of these comments, the FAA will allow operators
currently conducting air tours under part 91 to remain in part 91. The
25-mile exception in Sec. 119.1(e)(2) will not be eliminated as
proposed. Since these operations tend to be similar to commercial air
tour operations (i.e., day-time VFR, low-level, single pilot, short-
term, non-stop flights over varying types of terrain), we will require
these flights to comply with the safety provisions of part 136 subpart
A.
The 25-mile exception is for passenger-carrying compensation or
hire flights in airplanes (of a certain size) and helicopters (of a
certain size) operating within 25-statute miles of the departure
airport, and the flight must return to that same airport. As has always
been the case, the exception does not apply to point-to-point
transportation landing at a second airport. Passenger-carrying flights
operated for compensation or hire outside the exception must be
conducted in accordance with the operating provisions of parts 121 or
135 as appropriate, or under an exemption.
We added the requirement to Sec. 91.147, Passenger carrying
flights for compensation or hire (Not otherwise covered by Sec.
91.146), for operators to apply for and operate in accordance with a
Letter of Authorization (LOA). LOAs are legal documents required by
rule to be in writing and under which the operator must provide certain
information concerning how it conducts its business. This provision
addresses the concerns voiced in NTSB Recommendation A-95-58, where the
NTSB expressed concern that the FAA did not have any way of overseeing
these operators, because FAA didn't know who they were and where they
operated. This LOA requirement provides us with basic information on
the operator and its business that is less extensive than the
information and numerous other requirements needed to become an air
carrier, but greater than what we have under the existing regulations.
The LOA merely adds some data elements to the registration requirements
already applicable to these operators under the FAA's drug and alcohol
testing regulations. We have determined that the LOA is significantly
less burdensome than obtaining a part 119 certificate for operations
under 135. Because the LOA requirement provides a relationship between
the FAA and the Sec. 91.147 operator, as well as the information the
FAA needs for tracking the operator, we believe it satisfies the
substance of the NTSB's recommendation.
B. ``Sightseeing'' vs. ``Commercial Air Tours''
EAA maintained there should be a regulatory distinction between
``air tour operators'' and ``sightseeing'' flight operations. EAA saw
air tour operators as being fairly substantial commercial ventures
operating a fleet of aircraft in continuous (perhaps seasonal) service
over recognized public attractions such as national parks and
monuments. However, EAA believed operators conducting more casual
``sightseeing'' flights using a single aircraft and more random general
interest routing should not be held to the same standards as ``air tour
operators.'' In this regard, EAA believed the existing exception for
``sightseeing flights'' from parts 119 and 135 is appropriate. EAA
provided suggested rule language to clarify the definition of
``commercial air tour'' and to make other changes.
PASS stated that the FAA's proposed response to the NTSB's
recommendation number A-95-58 is flawed and unworkable because it
failed to recognize the differences between operators providing public
air transportation in the full sense of the word (i.e. a certificated
air carrier), and those providing a lesser service. PASS stated that
Congress intended the FAA to provide only a sensible ``minimum level of
safety standard'' for other air commerce operations when they enacted
the FAA Act of 1958, and again when they re-codified the law at 49
U.S.C. 44701. In the FAA's set of proposals, PASS stated, the FAA did
not adequately consider the differences between public transportation
of an air carrier, and the unique type of ``sightseeing event'' this
segment of air commerce provides to the public.
The General Aviation Manufacturers Association (GAMA) commented
that ``The air tour industry is rich in its diversity with companies
ranging from individuals that offer rides in single airplanes to
organizations specializing in vintage flying to helicopter and fixed
wing operators with large fleets operating in the nation's national
parks.'' According to GAMA, the NPRM did not properly accommodate the
range of operations performed by these different entities.
HAI also commented that a distinction should be drawn and
recognized by the FAA between commercial air tours and sightseeing
operations. According to HAI, commercial air tours, for the most part,
are conducted under part 135 where the operator realizes a major part
of its income is from air tours and advertises, either seasonally or
annually, for air tours over specific and recognizable scenic features.
Sightseeing, on the other hand, tends to fall under part 91, where less
specific, more generalized flights are conducted over different and
varying routes. HAI commented that there are significant numbers of
operators who safely conduct thousands of sightseeing flights under
part 91. HAI stated the FAA did not produce any compelling evidence
indicating that the relatively small percentage of passengers choose to
sightsee via part 91 operations do so at an increased risk.
Similarly, Sopwith, Ltd., stated that the FAA had lost sight of
what is, and what is not, a ``commercial air tour.'' The problem,
according to Sopwith, is confusion over the word ``sightseeing.''
[[Page 6893]]
Sopwith believes local flights flown as introductory rides or as
barnstorming rides in vintage aircraft may be characterized as
``sightseeing'', but they are not a ``commercial air tour'' activity.
Sundance Helicopters, Columbia Seaplane Pilots Association, Papillon
Airways, Inc., U.S. Parachute Association, and the Collings Foundation
made similar comments.
Offering a different view, NATA believed ``there is sufficient
cause to maintain local sightseeing in part 91,'' and ``FAA could take
steps to identify the population and implement any necessary safety
standards within part 91, should they be necessary.''
We have listened to the comments and decided not to force any part
91 operators to move into part 135 as long as they adhere to the
conditions of the 25-mile exception. Many operators in part 91 now
operate a business similar to an air carrier that is limited to
conducting commercial air tours. They advertise for hire and carry more
passengers than many air carriers. Their Websites are replete with
advertising, and many operate every day and move from airport to
airport seasonally.
HAI commented that there are thousands of part 91 flights conducted
in a single aircraft, with a single pilot. We know there are many
operators who conduct flights under part 91 (single pilot, compensation
or hire flights in an on-demand environment), under the existing 25-
mile exception. Some of these operators go to a different airport each
weekend and conduct flights under the 25-mile exception at that new
airport. These operators have been conducting flights with little
oversight by the FAA since they have no fixed base of operation and no
assigned Flight Standards District Office (FSDO). This rule captures
these part 91 operations by requiring the operators to report to the
local FSDO or through an LOA stored in an FAA database.
One purpose of this rule is to raise the existing level of safety
specifically for current part 91 air tour operators. In view of several
comments, we believe that if we eliminated the 25-mile exception, many
operators who now operate under that exception would go out of
business. The FAA believes there are other alternatives to achieve
satisfactory safety goals, minimize impact on the industry, and still
increase the level of safety, rather than eliminating the 25-mile
exception. We are imposing the safety requirements found in part 136
subpart A on all commercial air tour operators, including those
operating under the 25-mile exception. We set forth our justification
for the part 136 subpart A safety requirements further in the document.
In addition, we are adopting the data collection provisions that would
have been included had these operators been required to comply with
part 135 (see new Sec. 91.147). The data that we collect will assist
the FAA in monitoring these operations, which will result in greater
oversight of the industry and the ability to measure the safety
benefits of the rule.
Before this final rule, Sec. 119.1(e)(2) applied to certain
``sightseeing'' flights for compensation or hire conducted within 25
miles of the takeoff airport and return to the same airport (not point-
to-point transportation). In this final rule, we have deleted the word
``sightseeing'' from the 25-mile exception and inserted the phrase
``commercial air tour'' in its place. (See new Sec. 119.1(e)(2)) It is
important to note that commercial air tours are defined as flights of
which one purpose is sightseeing. Sightseeing is one of the several
factors the FAA considers when assessing whether or not a flight is an
air tour operation. (See ``commercial air tour'' definition new
sections 136.1 and 119.3).
C. Antique/Vintage Civil and Military Aircraft
Many commenters addressed the applicability of the proposals to
classic and vintage military aircraft used for ``barnstorming'' rides.
The AFA stated that the result of implementing the NPRM ``would be the
elimination of `barnstorming' as we know it. In the process tens of
thousands of people will be deprived each year of the opportunity to
experience golden age, classic and vintage military aircraft by riding
in such aircraft at air shows, county fairs or just for the fun of
going to a local airport where such rides are offered.'' GAMA did not
believe that the air tour rules should address ``barnstorming,''
stating, ``there is no accident record indicating that this type of
operation is at risk. These airplanes are maintained by enthusiasts who
are highly safety conscious and well equipped at properly managing the
risk of that type of flight operation.''
AFA also commented that virtually no historic or vintage aircraft
can meet part 135 regulations, and the burden on the owner/operator of
such aircraft to write manuals, become certified, keep records, and
operate under part 135 rules would impose a severe economic burden that
few would chose to meet even if the aircraft qualified under part 135.
NATA commented that many businesses are built around the concept of
``seeing the sights'' in an antique or vintage aircraft. NATA conducted
a survey on the NPRM and found that those who reported sightseeing
rides were their primary business also reported that they did not
believe their aircraft could meet part 135 requirements.
Commenters stated that the main obstacle to part 135-certification
would be meeting the airworthiness requirements. Waldo Wright's Flying
Service listed some types of aircraft used for barnstorming, such as
the Travel Air 4000, the New Standard D-25, the Brunner Winkel Bird,
the Boeing Stearman, the Waco UPF and YKS models, and stated, ``While
some of the above aircraft manufactured in the 1940's may have Pilot
Operating Handbooks, Maintenance and Parts Manuals, the aircraft
vintage 1929-1939 have no such luxury; they are operated in accordance
with markings, placards and operations limitations. To bring aircraft
like these into conformity with FAR Part 135 would be very costly to
small operators, if not impossible.'' They suggest that, instead of
requiring certification under part 119, part 91 operators be required
to submit a Written Statement of Operation that states who will do what
flights, where, when, and in what equipment. This statement could be
renewed annually along with the submission of a flight hour summary and
completion of a survey. The FAA could then monitor the industry and
collect reliable and accurate data that could then be used for future
comparison and study.
Alaska Seaplanes suggested that part 91 operators be registered
with their local FSDO, which would help the FAA develop statistics and
enforce the current rules. Alaska Seaplanes also suggested leaving part
91 as it is but with the addition of Sec. Sec. 135.117 (briefing),
135.183 (over water), and Sec. Sec. 135.203 and 135.205 (altitude and
visibility) for these compensation and hire flights.
Various commenters suggested ways to limit the applicability of the
proposed rule. Waldo Wright's Flying Service suggested the FAA impose
the floats requirement or restrict overwater flights in helicopters,
but leave other operators alone. Sopwith Ltd. suggested adding
barnstorming flights and introductory rides to the list of excluded
operations in proposed Sec. 119.1. Similarly, Belle Air Tours
suggested that vintage aircraft be added to the list of aircraft
excluded from these rules, such as balloons, gliders, warbirds, and
aerobatic and air combat simulation flights. The Collings Foundation
suggested excluding non-profit organizations, currently operating
safely under exemption letters, from this rule. EB Air commented that
this
[[Page 6894]]
segment of aviation is most often operated by small one or two plane
operations constrained by the high cost of aircraft ownership,
maintenance, rising fuel costs, and seasonal weather. PartAir, Inc.,
stated that the NPRM is ``an ill-considered and misplaced effort at
improving `safety' through elimination-by-regulation of a significant
area of aviation.''
Barnstorming Adventures, Ltd., commented that sightseeing and air
tour operations could be made safer; however it strongly recommended to
the FAA that a layer of regulation is not the answer. This commenter
provided an extensive summary of its sightseeing operations and the
economics of the industry. Barnstorming Adventures, Ltd. suggested that
some oversight of the industry would be acceptable compared to the
proposed certification as a part 135 air carrier. The commenter
suggested that certification, as proposed in the NPRM, would be costly
and unjustified.
There are many terms for the types of aircraft considered in these
comments. The terms include: barnstorming, vintage, military, warbirds,
antique, and classic. The FAA recognizes that this type of operation is
often a ``business'' traveling from airport to airport offering rides
for a fee, much like those aircraft operators traveling from farm to
farm offering airplane rides in the early part of the 20th century.
Today, ``barnstormers'' travel from airport to airport and offer rides
in antique and vintage airplanes, thus recreating the experience of the
past by using the same airplanes used during that era. There is no way
to know which flights are only ``introductory'' flights. The FAA also
recognizes that in order for these businesses to exist and collect
money, a means to allow compensation or hire flights must be provided
in the regulations.
Prior to the FAA proposal, the only exception provided from
certification under part 119 that effectively fit these flights was the
25-mile sightseeing exception in aircraft with standard airworthiness
certificates. Although commenters have stated that sightseeing is not
always a purpose of the flight, the FAA considers the overall character
of the flight to be sightseeing, even if a primary purpose may be the
experience of flight in an historic aircraft. There are hundreds of
part 135 small one or two-plane operations that are also constrained by
high cost, aircraft ownership, maintenance, rising fuel cost and
seasonal weather. In response, we have decided to retain this 25-mile
exception with some minor revisions.
``Barnstorming'' operators using aircraft with standard
airworthiness certificates may continue to operate under part 91, but
if they desire to continue to use the 25-mile exception, they must
comply with the process provided by FAA in this final rule to allow an
operator to apply for and receive an LOA. The LOA, obtained through the
operator's FSDO, will include information such as the operator's name,
address, management, maintenance responsibility, aircraft information,
and the operator's drug and alcohol prevention program. Sufficient time
is provided in the rule for operators to apply for and receive the
approved LOA from the FAA. Once received, operators must comply with
the provisions of the LOA when operating under new Sec. 91.147. The
operator must keep the information in the LOA current. This will
develop a database as NTSB and Alaska Seaplanes recommended.
``Barnstorming'' operators should realize that the new
Sec. 91.147, which allows them to operate under part 91 rather than
part 135, continues to require each aircraft have a standard
airworthiness certificate (not Limited, Restricted, or Experimental
Categories). We know that many of the aircraft used in these types of
experience flights can never have standard airworthiness certificates
and operate under an exemption today.\7\ These operators will continue
to need an exemption from the standard airworthiness requirement for
all compensation or hire aircraft operations.
---------------------------------------------------------------------------
\7\ Today, the FAA issues exemptions for World War II era
airplanes with Experimental and Restricted Category airworthiness
certificates that include extensive maintenance and operational
requirements.
---------------------------------------------------------------------------
VI. Comments on Part 91 Operations
A. Charity, Nonprofit, and Community Events
Before discussing the specific comments about part 91 operations,
we believe it is beneficial to the reader and those affected by this
rule to explain some of our terms up front. It became apparent,
especially during the Internet meeting, that many affected by this
final rule were confused about certain terms we use.
1. What is the difference between an exception, an exemption, and a
deviation?
Many comments indicated confusion with the terms ``exception'' and
``exemption.'' An exemption is permission the FAA grants pursuant to 14
CFR part 11 to a specific party to allow that party to operate outside
the regulations. The party requesting the exemption must show unique
circumstances why a particular regulation, or portions of that
regulation, should not apply to it. The party must also demonstrate
that granting an exemption will not adversely impact safety. Grants of
exemption generally have conditions and limitations specific to the
request made by the petitioner. The exemption applies only to the
person(s) or company it is issued to, and has a specific exemption
number assigned to it. Exemptions are designed to address unique
circumstances not contemplated by existing regulations and are not
applicable to a significant portion of the regulated entities. A
familiar type of exemption granted by the FAA are those to sponsors and
pilots conducting certain flights for charitable organizations that
allow them to operate without drug and alcohol testing.
An exception is written into the regulation with the word
``except'' and is available to everyone. An operator does not have to
apply for an exception. If an operator meets the conditions for the
exception, the general rule no longer applies for the operator. For
example, a rule might read: ``Except in the cases described in
paragraphs (d) through (g) of this section, all aircraft must be
painted red before takeoff.'' The exceptions to red paint would be
found in paragraphs (d), (e), (f), and (g).
A deviation is provided in regulatory language when the FAA
foresees circumstances under which the general rule language shall not
apply. A deviation is different from an exception in that a deviation
requires specific approval from the Administrator. However, unlike an
exemption (which also requires Administrator approval), deviations can
be approved at the local level whenever good cause is shown. It is not
necessary to demonstrate unique circumstances. For example, proposed
Sec. 136.7, Visibility, had a two statute mile visibility requirement
during the day in paragraph (a), but paragraph (b) allowed for
authorization by the Administrator to operate a helicopter during the
day in visibility of at least one statute mile in accordance with the
deviation procedures of Sec. 136.21. The proposed Visibility and
Deviation authority have been deleted in this final rule in response to
public comments.
By reading the thousands of comments, the FAA found that many
different types of operators use the ``25-mile exception.'' This
exception relieves the operator from holding a part 119 air carrier
certificate and permits it to operate under part 91. Some operators
[[Page 6895]]
don't know they use the 25-mile exception, but they would need to hold
a part 119 air carrier certificate for their operations without it.
Many of these commenters said they are not offering ``sightseeing''
flights, and that they just let the passengers ``experience''
something--e.g., aviation history, military history, or freedom. What
some commenters misunderstood is that the general rule requires that
someone carrying people or property for compensation or hire must
comply with air carrier rules. While there are exceptions to this
general rule (such as those found in 119.1(e)), there is no exception
for ``experience'' flights. We believe many of these operators not only
give the passengers an ``experience,'' but also do some form of
sightseeing and thus fall within the 25-mile exception. The same set of
safety standards will apply to these flights regardless of how the
operator chooses to describe them. In Sec. 136.1, we define a
commercial air tour and list what we will consider in determining what
kind of operation is considered a commercial air tour. Sightseeing is
described in the definition. Therefore, if you are offering sightseeing
as part of one of these ``experience'' flights, you might fall within
the 25-mile exception, but you would be subject to the safety
provisions of part 136 subpart A.
In addition, many pilots appear not to know the conditions and
limitations of the exemption they operate under. During the FAA's
Internet meeting, one private pilot said that he had already conducted
certain flights for a couple of years and didn't have 200 hours yet.
The sponsor for whom this pilot flew clearly requires 200 hours of
total time for private pilots.\8\ Either the sponsor holding the
exemption did not brief that particular pilot, or the pilot did not
know he was operating under an exemption at all. The conditions and
limitations of an exemption are specific and require the sponsor (to
whom the exemption was issued) to brief the pilots about the exemption
prior to each event. This discussion continues under the private pilot
hour requirement heading below.
---------------------------------------------------------------------------
\8\ The operation was subject to EAA's Exemption No. 7830 for
``Young Eagles'' and is discussed in more detail later in this
preamble.
---------------------------------------------------------------------------
Also during the FAA's Internet meeting, it became clear some pilots
don't know the FAA's drug and alcohol testing requirements apply to
them. Some commenters openly admit they advertise for customers, charge
for flights, pay their workers, and otherwise operate as a business.
They are clearly not flying for charity, and are not operating under
any exemption. These operations are for compensation or hire and are
subject to the drug and alcohol testing requirements.
In this final rule, the FAA gives relief for drug and alcohol
testing for the limited operations in Sec. 91.146 in the interest of
charity. Section 91.147 may be used by those not willing to be limited
to a certain number of events in a calendar year. Section 91.147
requires drug and alcohol testing compliance.
2. What are charitable, nonprofit, and community events?
For the purposes of our rule, we have categorized organizations and
operations that operate for ``free'' or solely for the benefit of
others in three different ways. These events are either sponsored by a
``charitable'' or ``nonprofit'' organization, or qualify as a
``community event.''
A charitable event is an event that raises funds for a charitable
organization recognized as such by the U.S. Department of the Treasury
under 26 U.S.C. section 170 (Internal Revenue Code). Sponsoring pilots
and donors may deduct contributions that raise funds for the benefit of
a charitable organization. An example of a charitable organization
event is a pancake breakfast at which passengers make a contribution to
an organization, such as the American Cancer Society, in exchange for
breakfast and a flight over their town. A nonprofit event is an event
that raises funds for a nonprofit entity organized under State or
Federal law, with one of the entity's purposes being the promotion of
aviation safety. The sponsor or the pilot(s) of nonprofit event flights
would not deduct contributions under section 170 of the Internal
Revenue Code. For example, aviation museums conduct flights to raise
funds to keep the museum in operation and preserve the aircraft in
their possession. A community event is a flight flown for a good or
worthy cause and occurs only once in a calendar year, January 1-
December 31. The sponsor or pilot of community event flights would not
deduct contributions under section 170 of the Internal Revenue Code. An
example of a community event is flights to raise money to assist a
family whose home was destroyed by fire. Another example is a raffle
for a free flight; the money raised from the raffle goes to purchase
new computers at the youth center.
The operating limitations and regulations for charitable,
nonprofit, and community events are found in this rule under Sec. Sec.
91.146 and 91.147. Those sections provide the total duration (three
days) allowed under each designation (charitable, nonprofit, community
event) and describe who is eligible to conduct such events. Part 91
operators who want to continue in part 91 and operate charity flights
may do so under Sec. 91.146. Part 91 operators who are uncomfortable
with the limitations in Sec. 91.146 and wish to continue flights
benefiting charities, nonprofit organizations, and individuals or
organizations supporting a community event may use Sec. 91.147.
Charities or nonprofits also have the option of becoming a part 135
operator.
While the FAA has clarified the regulatory language in the final
rule, the comments to the NPRM disclosed several misconceptions about
the differences between charitable, nonprofit, and community events.
One major misconception relates to the difference between a flight
that is ``free'' and one flown for compensation or hire. Several
charities receive compensation through ``donations.'' Some passengers
donate money to a charity and expect a flight in return for donating
money. Another popular ``free'' flight is one given at an event that
charges a fee for attendance and each person paying the fee receives a
``free'' aircraft ride during the event. The FAA considers these
flights to be operated for compensation or hire.
It is often hard to determine whether a pilot is working for
``free,'' or is being compensated in some manner. In the interest of
charity, the FAA has allowed certain forms of compensation or hire,
such as the ability to log pilot time and the ability to accept payment
for aircraft fuel and oil. Some pilots own or borrow the aircraft used
and aren't paid for their pilot time. Some pilots rent an aircraft and
are reimbursed by the sponsor. Some pilots are reimbursed for aircraft
rental but provide their time for free. Some pilots who own the
aircraft they fly are able to ``write-off'' some ownership expenses.
Some pilots are paid to fly.
A pilot who flies his or her own aircraft every weekend of the year
and receives compensation each weekend is not working for ``charity''
when a portion of the proceeds is given to the airport manager the last
day of the event. At best, that is a gift to the airport manager and is
often given to guarantee an invitation to the next event. Other pilots
and mechanics are retired or wealthy and really do work for free, a
true gift to charity.
Some charities have full-time pilots and mechanics on their payroll
and maintain expensive aircraft and facilities. These organizations
need money for employees of the organization and for maintaining their
[[Page 6896]]
facilities, but that does not exclude them from the list of charity,
nonprofit, or community event operators. The aircraft used for charity,
nonprofit, and community event flights must be maintained and that
money must come from somewhere. All of the flights by these museums and
charities involve ``compensation,'' but in the interest of public good
and charity, the FAA has allowed them to operate outside of part 135
requirements. In this final rule, operators of these kinds of flights
will continue to be allowed to operate outside of part 135
requirements, even though the FAA considers the operations to be for
compensation or hire. However, there are certain new requirements they
must abide by, and those are found in Sec. Sec. 91.146 and 91.147.
3. The Four-Event Limit for Charitable and Non-Profit Organizations and
the One-Event Limit for Community Events
AFA and Sopwith Ltd. objected to the proposed condition in Sec.
119.1(e)(11) limiting charitable rides conducted under part 91 to four
events per organization per year with each event lasting no longer than
3 days. The commenters thought the proposed restriction is not
justified and is unnecessary.
The Collings Foundation went further by commenting that many of the
proposed restrictions, including the requirements for a standard
airworthiness certificate and a limit of four or fewer events per
calendar year per organization or pilot without a clearly defined
exemption, would totally eliminate the capability of nonprofit
organizations to fly historic aircraft. Organizations such as the EAA,
Commemorative Air Force, Collings Foundation, National Warplane Museum,
and Yankee Air Force, fly historic aircraft at many locations around
the country. Collings argued that these organizations would no longer
be able to function. Also, many nonprofit aviation organizations could
not survive without donations associated with a flight experience or
special donations to keep certain aircraft flying. The Collings
Foundation cited estimates that more than one-half of all B-17s and all
of the B-24s and B-29s flying today would be grounded by the proposed
rule.
EAA stated that its organization and its network of nearly 1,000
chapters is one of the largest sponsors of charitable and community
flight operations in the world. EAA stated that its success rate and
safety record are unparalleled and are supported by strenuous training
and oversight programs sponsored by the association. EAA stated that it
and several other organizations also conduct aircraft demonstration
flights all over North America, giving the public an unmatched
opportunity to experience firsthand the history of aviation in such
aircraft as the Ford Tri-Motor, a Boeing B-17 bomber, and a replica of
the famous Spirit of St. Louis. EAA opposed inclusion of additional
requirements on these operations in the strongest terms.
The Owls Head Transportation Museum commented that the proposed
rules would affect not only the Museum, but also many other nonprofit
organizations in the mid-coast Maine area. The museum stated that it
has high standards placed on its aircraft, maintenance, and pilots. The
museum also boasted that, although it has given more than 3,000 rides,
it has maintained a perfect safety record, incurring neither accident
nor incident. The Museum also donates a number of rides to other
nonprofit organizations so that they may raffle the rides to raise
funds. The Owls Head Transportation Museum stated that these are the
groups that will suffer the most in mid-coast Maine if the 25-mile
exception is eliminated in the final rule.
AFA objected to the proposal that restricts charitable flights to
only four events per calendar year, per organization, lasting no longer
than 3 days each. AFA suggests that this restriction is nonsensical and
that by adopting this limit, the FAA is convinced that these flights
are too dangerous to be flown often. AFA commented that by the FAA's
logic, these flights should be completely eliminated. AFA asks if it is
safe to operate charitable flights in four events per year, why is it
not safe to operate them 365 days each year?
In summary, commenters believed that the rule, if adopted as it was
proposed, would result in an end to charity and community event flights
for various foundations. They also believed the rule is not justified
based on safety, nor is needed to improve safety. Some commenters
stated they are against any limitations on charity and community events
while others are against the elimination of the 25-mile exception.
Determining that certain comments have merit, we made some
revisions to the final rule. The intent of the proposal is maintained
in this final rule. All flights on behalf of charitable or non-profit
organizations, as defined in the rule, may continue in part 91, and a
limited number are allowed without meeting the drug and alcohol rules
that would otherwise apply. Flights sponsored by charitable and non-
profit organizations are limited to four events per year. Local
chapters of national charities or non-profit organizations are
considered separately for this rule, with each chapter entitled to four
events per year. The AFA comment with regard to the four-event
limitation has merit, but suggests the commenter does not understand
why this limit should be imposed. As stated above, charitable,
nonprofit, and community event flights are events for compensation or
hire. However, we recognize these events are a tremendous benefit to
the public and deserve some exceptions from the normal regulations
necessary for part 91 compensation or hire flights. Therefore, we
created a rule (Sec. 91.146) that allows sponsors of charitable,
nonprofit, and community event flights to employ pilots, often as
volunteers, to give rides to the public without meeting drug and
alcohol requirements normally imposed on a part 91 compensation or hire
flight, and without having a certificate under part 119.
The four-event limit is the current limit imposed through
exemptions.\9\ This limit is not new; nor is it based on safety
concerns. Rather, the concern is with the nature of these flights. To
maintain the charitable nature of these flights, it is necessary to
place some restrictions on them. If the interest of charity were taken
out of the equation and all else were equal, operations of this kind
would be required to be part 135, and thus be subject to more stringent
regulation and oversight. The regulatory standards applied to part 135
flights would likely turn charitable organizations away from their
practice, which is not the FAA's intent with this rulemaking. The FAA
has historically chosen four events per year as a reasonable balance
that separates a charitable event from an event run by an air carrier.
The one event per year limitation on community events recognizes that
the primary interest of the operator is more likely to be business-
oriented than a charitable or non-profit organization. If an operator
is unhappy with the limit, it may fly more than four events per
calendar year, but it must comply with the requirements in Sec.
91.147. Those requirements include implementing a drug and alcohol
testing program in accordance with 14 CFR part 121, appendices I and J.
An operator complying with Sec. 91.147 would also not be able to use
private pilots. The operator has a choice of which regulation to
follow, and operators currently conducting flights under an exemption
should not find the four-
[[Page 6897]]
event limitation to be new or unexpected.
---------------------------------------------------------------------------
\9\ Exemption No. 7112, held by AOPA, contains this event
limitation. That exemption, along with others, is the basis for the
event limitation in this final rule.
---------------------------------------------------------------------------
Many of the commenters who operate antique aircraft seem to believe
that if they operate in accordance with an exemption, the FAA will
cancel the exemption once this final rule is published. Because the
rule encapsulates current exemptions to charitable or non-profit
organizations from drug and alcohol testing, as long as participation
is limited to four events per year, charitable or non-profit
organizations will no longer need these exemptions. Any exemptions
issued because a commercial air tour operator does not have a standard
airworthiness certificate for its airplane will need to continue. When
the expiration date on the exemption arrives, the petitioner may re-
apply for renewal. At that point, the FAA may grant, deny, or change
the exemptions. This rule does not change that policy.
The FAA has determined that the conditions and limitations included
in the exemptions should also be included in this final rule. Since
commenters failed to provide any rational basis to not include certain
proposed limitations for ``charitable, nonprofit, or community
events,'' the FAA has incorporated those limits in new Sec. 91.146. In
creating the new Sec. 91.146 for charitable, nonprofit, and community
events, we have attempted to strike a careful balance between the
recognition of the public benefits of such fundraising activities and
the need to set aviation safety standards. Community events are limited
to only one per sponsor in a calendar year, as proposed in the NPRM.
This limit is not specifically derived from community event exemptions,
but was proposed so that a community event sponsor would not have to go
through the extra effort of applying for and receiving an IRS
classification.
This final rule will continue current FAA policy. Current
exemptions allow for a pilot to fly only four events per year for a
charity, nonprofit, or community event. As stated above, this limit is
not new, and has been included in exemptions issued for years. For
example, Exemption 7112C,\10\ issued to AOPA on May 20, 2004 states in
condition and limitation 11:
---------------------------------------------------------------------------
\10\ Exemption No. 7112 was originally issued to AOPA on
February 3, 2000.
The event sponsor may conduct no more than four events in a
calendar year. Each person operating under this exemption must
provide AOPA with a statement on behalf of the event sponsor,
indicating that neither the event sponsor nor any participating
pilot has participated in more than four similar events in a
---------------------------------------------------------------------------
calendar year.
The event limitations were also explained in the NPRM.
For operators choosing to exceed the four-event minimum, we have
incorporated a new Sec. 91.147 in this final rule to provide relief
from the need to certify as an air carrier. It does not provide
exclusion from the existing ``drug and alcohol'' testing requirements.
The new Sec. 91.147 does not place any limitation on the number of
events as long as the operator registers with the FAA as required in
the rule. For example, Owls Head Transportation Museum may continue its
operations in accordance with Sec. 91.146, if its raffle flights are
grouped to fit into the requirement of no more than four events per
year. If that doesn't work, they may operate in accordance with Sec.
91.147. If their aircraft do not have standard airworthiness
certificates, the museum will continue to need an exemption.
There may be cases where a sponsor could qualify for all three
categories. A sponsor with separate chapters is allowed four events for
each chapter. So, the 1,000 chapters of EAA may each sponsor four,
three-day events each year. Each pilot is limited to a maximum of 12
calendar days of flying per year (four events, three days per event).
Each event (charitable, nonprofit, or community) may be up to three
days in duration. Each situation counts as one event for that pilot. In
this final rule we do not limit the number of flights conducted during
each event, although a normally prudent pilot and event sponsor would
consider pilot fatigue.
In the NPRM, we proposed limiting both the sponsor and the pilot to
four events per calendar year. We have kept that limitation in the
final rule. Commenters questioned the source and reasoning for the
limit. The source is existing exemptions, and its reasons are the
public policy considerations separating charitable, nonprofit, and
community events from events run solely for profit or business.
Operators who do not wish to comply with the limitations of Sec.
91.146 may operate in accordance with Sec. 91.147. Operators of either
part may also become air carriers in accordance with parts 119 and 135.
4. Private Pilots and the 500-Flight Hour Requirement
Most of the commenters on the issue of private pilots objected to
the proposed increase in pilot flight time from 200 to 500 hours. AOPA,
NATA, AFA, PASS, and EAA commented that the FAA did not provide any
safety data or statistics to support this change. EAA believed it is
irresponsible for the FAA to create additional regulatory burdens on
the general public when no information has been presented to indicate
that there is currently a safety concern, or that any significant
increase in safety would result from the change.
AFA stated that the proposal would shrink the pool of pilots able
to help local charities and will drive hundreds of small sightseeing
operations out of business. AFA also asked what the logic was behind
the 500-hour limit. AFA also suggested there should be a cutoff date
for when the 500 hours was accumulated so that most of it was not done
too far in the past, such as 50 years. AOPA cited its own study, which
found that 22 percent of pilots surveyed provide charity sightseeing
flights and would no longer be eligible if the higher hour requirement
were implemented. AOPA also stated that charities predict annual losses
of nearly $200,000 if the 500-hour requirement is imposed. AOPA stated
that organizations benefiting from these flights include Vietnam
Veterans of America, Visiting Nurses Association, Wings of Mercy
(medical flights), Volunteer Fire Departments, and local technical
schools.
We discussed the 500-hour requirement for private pilots flying
charitable, nonprofit, and community events at length during the public
meetings (including the Internet meeting). Over the years, we have
issued exemptions with the 500-hour private pilot requirement with
breakdowns of what the 500 hours must include. The hourly breakdown
required for Exemption No. 7830, issued to EAA, is found below.
Although it is required in the exemption, we did not propose, nor do we
adopt, a specific breakdown of the required hours necessary to conduct
a flight described in Sec. 91.146. The 500-hour requirement for
private pilots who wish to fly in a charitable, nonprofit, or community
event is not a new requirement for many; it has simply never been
written into regulation.
Commenters stated that many flights would be grounded by the 500-
hour flight time requirement proposed for private pilots. It is likely
some of these commenters were operating under a 500-hour condition and
limitation for private pilots in an exemption today. For example,
Exemption No. 7830 was issued to EAA for ``Young Eagles'' flights. In
that exemption, we stated that:
``A higher safety standard of 500 hours of flight time for
private pilots is proposed for
[[Page 6898]]
charitable and community events because these events typically
involve a larger number of passengers, are held over a period of one
to three days, and are generally a pleasure activity for the
passenger.''
The conditions and limitations in Exemption No. 7830 are more
restrictive than the proposal or this final rule. Below is condition
and limitation 2 from Exemption No. 7830:
2. Each pilot who conducts flights under this exemption must--
a. Hold at least a private pilot certificate with the appropriate
category, class, and type rating, if necessary, for the aircraft to be
used under this exemption in accordance with Sec. 61.31(a), (d), (e),
(f), (h), (i), and part 61, subpart E.
b. Have a minimum of 500 hours total flight time.
c. Have a minimum of 200 hours in the category of aircraft to be
flown.
d. Have a minimum of 50 hours in the class of aircraft to be flown.
e. Meet the currency requirements in Sec. 61.56 for a flight
review and Sec. 61.57 for takeoffs and landings.
f. Hold a current third-class medical certificate in accordance
with Sec. 61.23(a)(3).
g. Meet the requirements of Sec. 61.113(d).
h. Have a logbook entry for each event in which he or she
participates.
Exemption No. 7830 was extended in 2004 and applies to all private
pilots flying ``Young Eagles'' flights. Therefore, we are surprised to
receive comments from EAA regarding the 500-hour minimum for private
pilots conducting charitable flights. EAA is the holder of Exemption
No. 7830, which clearly states a 500-hour minimum for private pilots as
discussed above. We received some comments from pilots conducting
operations under this exemption who are completely unaware of the
limitation. During the Internet public meeting in 2004, we received one
comment from a private pilot who stated:
``I've flown a dozen or so Cub Scouts and Boy Scouts, and have
flown 4 `Young Eagles' since earning my Private Pilot's license in
2000. Why does the FAA suddenly feel I am unqualified simply because
I only have 150 hours in my logbook? I'm either qualified to fly or
I am not.''
The commenter was obviously unaware of the 500-hour requirement in
the exemption under which he was operating, as well as the 200-hour
requirement in Sec. 61.113. Some exemptions issued in the past have
required private pilots to have only 200 hours to fly these charitable,
nonprofit, or community events. We have decided to adopt the more
stringent criteria set forth in Exemption No. 7830, which requires 500
hours. We are not amending exemptions with this final rule, but we are
amending Sec. 61.113(d).
While AOPA commented in opposition to the 500-hour private pilot
requirement, its own findings indicate that pilots with 500 hours of
total time are involved in fewer accidents than those with fewer hours.
Safety support for setting 500 hours as a minimum requirement is found
in the 2005 AOPA Air Safety Foundation's Nall Report (page 9 of 19).
The report shows that pilots with fewer than 500 hours of total time
accounted for 34% of all accidents (28% of all fatal). The report
states specifically that ``The first 500 hours of a pilot's flying
career are the most critical, with 34.4 percent of the total and 28.7
percent of fatal accidents occurring then.''
The 500-hour requirement is also consistent with the part 135 rules
regarding single pilot-in-command flying visual flight rules. We
believe 500 hours is a more appropriate limit, because each event that
can last up to three days and can carry numerous passengers on what is
essentially a pleasure ride for hire. The existing Sec. 135.243, Pilot
in Command Qualifications, requires a minimum pilot qualification to
conduct part 135 operations. It involves the most non-complex part 135
flight: single engine, day, VFR, single pilot. Sec. 135.243 includes
the requirements that a pilot:
--Hold at least a commercial pilot certificate with appropriate
category, class, and type ratings
--Have at least 500 hours time as a pilot, including:
--At least 100 hours cross-country;
--At least 25 hours at night; and
--An instrument rating.
--At least a 2nd class pilot medical certificate
--Pass oral and practical examinations at least once a year.
Lastly, the Antique Airplane Association commented that Sec.
61.129 requires only 250 hours flying experience to hold a commercial
pilot's certificate, yet the proposed rule would not allow commercial
pilots to conduct flights for charity until they meet the 500 hour
requirement. The 500-hour requirement is only for private pilots. A
Commercial or Airline Transport Pilot is not limited to any number of
flight hours and is eligible to fly in a charitable, nonprofit, or
community event by virtue of holding the certificate. Some might wonder
why this is the case.
It may seem incongruous that the FAA would require more of private
pilots than of commercial pilots. However, the FAA has substantially
more oversight over the quality and type of hours required for a
commercial certificate. In order to advance to the commercial
certificate, a pilot's training demands 100 hours in powered aircraft,
100 hours as pilot-in-command, and at least 50 hours in cross-country
flight, among other more detailed requirements. A private pilot can
have 200 hours of flight time that includes none of this experience. In
other words, because of approved curriculum, we know a commercial pilot
with 200 hours will have the experience we demand to conduct an air
tour flight. We have no such assurances for a private pilot, but have
determined that the additional hours should be sufficient to adequately
protect the flying public.
5. Reporting Requirements
EAA strongly opposed the proposed Sec. 91.147(a)(2), which
requires that event sponsors track and document the participation of
pilots and operators in all prior events, including those not under the
purview of the current event sponsor. According to EAA, it is
unreasonable for it to track and document pilots flying charitable
flights for other sponsors throughout the year. If anything, it should
only be required to track and document flights that it sponsors. EAA
stated that this provision creates a significant increase in time spent
on needless paperwork and unnecessarily burdens the FAA's field
inspector workforce. EAA's exemption (Exemption No. 7111 as amended)
currently requires the sponsor to provide the FAA with an annual report
of all persons who have conducted operations under the exemption. The
report must include the date of the event, the event sponsor, the
pilot's name and certificate number, and the charitable or community
event for which funds are being raised. That exemption is the origin
for the requirement we proposed; however, we inadvertently exceeded the
exemption's reporting requirement.
The proposal (Sec. 91.147(a)(2)) mandated documentation of ``all
prior events participated in by the sponsor(s), pilot(s) or
operator(s).'' We agree with EAA that it is unnecessarily burdensome to
require documentation beyond the current calendar year. We never
intended to have a sponsor report all previous activity. We have
revised the final rule language (Sec. 91.146(e) (1) and (3)) so that
the sponsor reports prior events in which the sponsor participated for
only the current calendar year. Additionally, the pilot must certify
his or her own statement of
[[Page 6899]]
prior events in which he or she participated for the current calendar
year. EAA is not responsible for keeping track of the flying their
pilots do for other sponsors. Rather, their pilots are responsible for
giving EAA a signed statement of prior events participated in during
the current calendar year regardless of which sponsor they flew for.
EAA must include that statement when reporting to the FSDO in
accordance with Sec. 91.146(e). The 1,000 chapters of EAA may each
qualify as a sponsor.\11\
---------------------------------------------------------------------------
\11\ It is possible for a pilot to be a sponsor.
---------------------------------------------------------------------------
6. Life Flights, Angel Flights, and ``Emergency or Medical Service''
We proposed amending Sec. 61.113(d)(1) through (d)(7) in the NPRM
to create two new sections numbered Sec. 61.113(d)(1) and Sec.
61.113(d)(2). These sections were specific in that paragraph (d)(1)
referred to emergency or medical services and did not refer to nonstop
flights being conducted from the same airport (the 25-mile exception).
Paragraph (d)(2) was developed for the 25-mile exception. The purpose
of the amended language was to eliminate confusion with the term
``passenger-carrying airlift'' in Sec. 61.113(d) that applied only to
private pilots. The unintended result was confusion of a different
kind. As discussed above, this final rule has been rewritten to
continue private pilot flights for charitable activities and to define
the three kinds of charities (Sec. 61.113 and Sec. 91.146).
In addition, the FAA erred when writing the NPRM. In the NPRM, we
presented Sec. 61.113 and proposed allowing private pilots to fly
point-to-point and beyond 25 miles from the departure airport (in
proposed Sec. 61.113(d)(1)), carrying passengers for compensation or
hire.
Flights previously conducted under the provisions of Sec.
61.113(d) always were restricted to nonstop flights originating and
landing at the same airport, never going beyond 25 miles from that
airport. The use of the term ``airlift'' in the current regulation is
unfortunate because it is misleading. The purpose for the ``airlift''
exception in Sec. 61.113, as interpreted, has always been to raise
money for an IRS-recognized charity. The ``airlift'' exception was
never intended to authorize point-to-point transportation for
compensation or hire of sick or injured people, or their families.
Moreover, even if such transportation was done under the auspices of a
charitable organization, if any compensation was given to that
organization to transport sick or injured people, or their families,
the FAA has required that operation to be done by a certificated air
carrier. The FAA believes, in general, that the operations should be
conducted by certificated on-demand air carriers, including air
ambulances. In the past, some charitable organizations have tried to
persuade the FAA that when a third-party pays the organization to
transport a sick or injured person (or family member) in point-to-point
service, that transportation should not be recognized as compensation
or hire. The FAA has consistently rejected those arguments. If an
aircraft operator is paid by a passenger or a third party to transport
the sick or injured person, or family member, from point A to B, the
operator must be certificated.
It is worthwhile to give some examples of what has been permitted
under the rules and what will continue to be permitted under the
regulations, as amended in this final rule. Some organizations such as
Angel Flights make arrangements with corporate aircraft operators to
take sick or injured people, or family members, from point-to-point
without the corporate aircraft operator being compensated by the
passenger or by Angel Flights. Such flights are permitted.
Additionally, nothing in the old rules and nothing in this new rule
prohibits a private pilot from taking a sick or injured person from
point to point as long as it is not for compensation or hire. By
longstanding enforcement policy, the FAA has allowed aircraft operators
who take a charitable tax deduction to transport a sick or injured
person without that operator having an air carrier certificate. No
other form of compensation may be received.
If an organization has used Sec. 61.113 to operate flights from
point-to-point with private pilots, that organization is put on notice
that operations like that are not covered by Sec. 61.113. We have
dropped the term ``airlift'' to reduce any further confusion.
Additionally, the term ``emergency or medical service'' has not been
adopted because it was confusing. We are adopting the requirement for
500 hours, as proposed in the NPRM and discussed earlier in this
document.
It is unlikely that the ``transportation needs of persons with
medical and financial need'' would have ever complied with the 25-mile
exception. Returning such passengers to the departure airport would
serve no purpose. If organizations have used Sec. 61.113 for ``life
flights'' or ``angel flights,'' (carrying sick or injured passengers,
or a family member) for compensation or hire, they have been doing so
against FAA policy. They will need to comply with this final rule, or
apply for and receive a grant of exemption to conduct any future
flights of this kind. Section 61.113 now refers private pilots to Sec.
91.146 and clearly states that all operations must be nonstop, takeoff
and land from the same airport, and be flown within a 25-mile radius of
that airport.
B. Other Flights for Compensation or Hire
During the Internet meeting, we explored the possibility of part 91
commercial air tour operators remaining in part 91 and not requiring
them to comply with air carrier rules (part 121 or 135). Air carrier
certificate holders operating under parts 121 or 135 automatically need
Operations Specifications. In this final rule, the FAA does not require
certain part 91 commercial air tour operators to become air carriers,
but we will create an FAA database with information similar to
Operations Specifications. We adopted Sec. 91.147 to require such part
91 operators to send us the appropriate information in an LOA.
1. What's the difference between an Operations Specification and a
Letter of Authorization?
Operations Specifications (OpSpecs) are a set of documents required
by regulations that, among other things, set forth how a certificated
operator will conduct all its operations. An OpSpec specific to air
tour operations is appropriate for those operators conducting
operations in accordance with part 121 or 135. If all commercial air
tour operators had been moved into part 135 (or 121), all air tour
operators would have been required to have an OpSpec specific to air
tour operations included in its set of OpSpecs.
A Letter of Authorization (LOA) is an authorizing document required
by regulation for a specific kind of operation conducted under part 91.
One intended outcome of this rulemaking is to be able to identify all
air tour operations in a national database. The seven items listed in
section 91.147(c) are considered to be the minimum amount of
information needed in the national database for the issuance of the air
tour LOA to the part 91 operator to conduct air tour operations.
All standard OpSpec and LOA templates are developed at FAA
Headquarters and are maintained in the same document management system.
FAA Headquarters, FAA FSDOs, and the operators may have electronic
access to the OpSpec and the LOA templates. Part 91 operators may have
LOAs
[[Page 6900]]
issued, including but not limited to, an LOA authorizing special
airspace operations.
2. Where are the FAA's drug and alcohol testing requirements and who
has to comply with them?
The FAA's drug and alcohol testing requirements are set forth in 14
CFR part 121, appendices I and J. The drug and alcohol testing
regulations provide a comprehensive listing of specific drug and
alcohol testing provisions contained in 14 CFR parts 61, 63, 65, 67,
91, 121, and 135.
Commercial air tour operators under part 121 or 135 must comply
with drug and alcohol testing requirements. Flights conducted in
accordance with Sec. 91.147 (Passenger carrying flights for
compensation or hire (Not otherwise covered by Sec. 91.146)) formerly
referred to as 135.1(c) operations, will continue to be required to
comply with the drug and alcohol testing requirements. Flights
conducted in accordance with Sec. 91.146 (Passenger carrying flights
for the benefit of a charitable, nonprofit, or community event) do not
need to comply with drug and alcohol testing requirements.
In this final rule, if a charity or community event operator goes
beyond the limits established in Sec. 91.146 (e.g., four charity
events, one community event, use of private pilots, etc.), then that
operator is conducting operations for compensation or hire and will
operate under Sec. 91.147. These operations must comply with those
drug and alcohol testing requirements that apply to all compensation or
hire operations.
These drug and alcohol requirements are not new for charity events.
Prior to this final rule, previously granted exemptions had similar
conditions and limitations and relieved the charity flights from drug
and alcohol testing requirements. This new rule language includes
appropriate conditions and limitations in Sec. 91.146 so that
exemptions are not needed.
VII. Comments on Part 136 Operating Requirements
This final rule removes the proposed Minimum Altitudes (136.3),
Standoff Distance (136.5), Visibility (136.7), and Cloud Clearance
(136.9), based on comments. Several commenters stated that the proposal
would promote compression (mixing of airplanes and helicopters at the
same altitudes) and perhaps increase noise. We attempted to have one
national standard for these items, but it became too difficult with so
many variables present. There were always disadvantages for a
particular type of operator. The result of this final rule deletion is
that the operators will continue to use the standards they used prior
to this rule. For example, a part 91 operator who used Sec. 91.119 for
minimum altitudes and standoff distances will continue to do so. A part
135 operator who used Sec. 135.203 or Operation Specifications for
minimum altitudes and standoff distances will continue to do so. We
needed to retain the minimums for Hawaii listed in SFAR 71, but move
those Hawaii air tour rules into part 136. SFAR 71, Section 6 entitled,
Minimum Flight Altitudes, is accordingly incorporated into the final
rule as Sec. 136.5, ``Additional Requirements for Hawaii.''
We have removed the separate section for Helicopter operating
limits (proposed Sec. 136.19). We maintain the intent of the section
by including the language, ``Except for the approach to and transition
from a hover for the purpose of takeoff and landing, or during takeoff
and landing, the pilot in command must make a reasonable plan to
operate the helicopter outside of the caution/warning/avoid area of the
limiting height/velocity or height/speed diagram'' to the rule language
of Helicopter performance plan and operations (final rule Sec.
136.13).
We completely eliminated the proposal in the NPRM for Deviation
Procedures (proposed Sec. 136.21) since we are not adopting the
standoff, altitude and cloud clearance minima proposed in the NPRM.
In summary, four sections (Sec. Sec. 136.3-136.9) were deleted;
section (Sec. 136.3) has been added; section (Sec. 136.5) has been
added for operations in Hawaii only; the section for helicopter
performance plan (Sec. 136.17) and helicopter operating limitations
(Sec. 136.19) have been merged into one section (Sec. 136.13); and
one section for deviations (Sec. 136.21) has been deleted. We also
added a new paragraph (e) to Sec. 136.1 to permit pilot deviation from
part 136, subpart A in the event of an in-flight emergency.
A. Applicability and Definitions (Sec. 136.1)
EAA objected to the proposed mandate for part 91 flights for
charity or community events be conducted in accordance with the
operational rules for commercial air tour flights in part 136, subpart
A. EAA stated, ``The FAA has presented no data that would suggest a
need to place charitable and community fundraising operations under the
provisions of the proposed part 136. EAA maintains that the FAA is
required to at least identify and substantiate the existence of a
safety concern before drafting regulations that would impose additional
restrictions on an activity that has been safely conducted for at least
50 years under the existing regulations.'' EAA asserted that a
``charity or community event is not an `air tour.' ''
Section 91.146 in this final rule addresses passenger carrying
flights for charitable, nonprofit, and community events. The section
does not indicate that such flights are air tours. It does, however,
require such flights be conducted in accordance with the safety
provisions of part 136, subpart A. Section 91.205(b)(12) requires, for
aircraft operated for hire over water and beyond power-off gliding
distance from shore, approved floatation gear readily available to each
occupant and, unless the aircraft is operating under part 121, at least
one pyrotechnic signaling device. In general, part 91 doesn't require
the pilot to brief the passengers on how to use a life preserver or how
to exit the aircraft after a water ditching. However, Sec. 91.509,
Survival Equipment For Overwater Operations, applies to flights more
than 50 nautical miles beyond the shoreline because subpart F, Large
and Turbine Powered Multiengine Airplanes and Fractional Ownership
Program Aircraft, recognizes that special requirements are appropriate
for larger airplanes that may not make sense for the entire general
aviation community. The same rationale applies here. Because
charitable, nonprofit, and community event flights involve passengers
who may be unfamiliar with the risks of flight over water, these new
requirements assure an appropriate level of safety when flying over
water. The requirement obviously does not apply to those flights not
conducted over water. Hence, when EAA sponsors flights conducted in
small airplanes not over water and not in Hawaii, the passenger-
briefing requirement (Sec. 136.7) is the only safety provision
applicable.
The Lightship Group stated that, as an operator of airships, it is
concerned its industry will be included in the final rule without
regard to its clean safety record, which is better than hot air balloon
and glider operations. The Lightship Group commented that, since the
airship industry is very small due to high operating costs, new
regulations requiring additional infrastructure would pose a serious
financial strain on current operators. This commenter works with the
FAA on the Aviation Rulemaking Committee (ARC) Airship Work Group for
the purpose of clarifying regulations governing the operation of
airships, and suggests that other issues be addressed within that
workgroup. The U.S. Parachute
[[Page 6901]]
Association was also concerned about the rule's applicability to its
operation.
The U.S. Parachute Association was concerned with language proposed
in Sec. 136.1, when a flight for compensation or hire has another
purpose in addition to sightseeing, that the flight is subject to
subpart A. Although this commenter believes the FAA's intent was to
ensure that part 136 applied to operators attempting to mask
sightseeing flights behind other supposed purposes, it was concerned
the proposed language may allow the converse. That is, it may allow the
FAA to ``see'' a sightseeing flight when, in fact, the flight is truly
made for another purpose. The U.S. Parachute Association recommended
the language be revised to make it clear that part 136 only applies to
flights where the primary purpose is sightseeing.
On the other hand, the Antique Airplane Association questioned the
justification for excluding gliders and hot air balloons.
Part 136 subpart A rules do not apply to operations conducted under
part 105 (parachutes), part 101 (balloons), nor do they apply to
operations conducted in gliders (powered or unpowered). Gliders and hot
air balloons were not considered when we published the NPRM because
they did not fit into the NTSB recommendations that inspired the
proposal. Since they were not part of the proposal, we are not
including them within the scope of this final rule.
Some commenters (Coastal Helicopters, Inc., and Venture Travel,
LLC) questioned the need for part 136 at all. The Tennessee Department
of Transportation agreed that requiring flotation devices for overwater
flights and mandatory passenger briefings should be standard practice,
but suggested that those requirements be within the existing regulatory
framework rather than the proposed new part 136.
A goal of establishing part 136 is to have one location for all air
tour rules. For the operators staying in part 91, life preservers are
not otherwise required until an aircraft goes beyond 50 nautical miles
from shore, and part 91 doesn't address passenger briefings on exiting
the aircraft after a water ditching at all. To put a new life preserver
mandate in part 91 would be more confusing than the approach adopted
here.
Part 136 was created in 2003 with the codification of the National
Park Air Tour Management Act into FAA rules. The FAA envisioned at that
time that part 136 would become the regulatory part specific to air
tour regulation. Currently, air tour regulation is spread throughout
the FAA rules, with some SFARs being attached to part 91, others
attached to part 121, and a set of rules covered under part 93. This
only adds to confusion among operators who are trying to locate rules
applicable to their operations.
B. Letters of Authorization (Sec. 136.3)
Since the proposal would have moved many commercial air tour
operators from part 91 into part 121 or 135, the operators would have
needed Operations Specifications had we adopted the final rule as
proposed. Now that the final rule allows these same part 91 operators
to remain in part 91, Operations Specifications will not be issued to
these commercial air tour operators. The air carriers have Operations
Specifications while part 91 operators do not. The part 91 operators
will apply for, receive, and comply with an LOA. This new section does
not impose new requirements, but modifies the proposals in the NPRM.
As discussed above, one of the tasks of this rulemaking is to
develop a database of air tour operators. We discussed the need for a
database during our public meeting on the Internet. During the meeting
we explained items that Operations Specifications include and an air
carrier participant explained how Management Specifications work in
part 91 subpart K, Fractional Ownership Operations. No participant
expressed objection to a database.
The Hawaii air tour operators using SFAR 71 always have included
part 91 operators. Those part 91 operators have LOAs instead of
Operations Specifications. The LOAs are maintained in the same
electronic database as Operations Specifications but contain much less
data. Operations Specifications may be amended or reconsidered through
Sec. 119.51. Section 136.3 now allows amendment and reconsideration of
LOAs through Sec. 119.51 as well.
C. Minimum Altitudes, Standoff Distances, Visibility, and Cloud
Clearance (Sec. 136.3-136.9 in the NPRM)
In this final rule, the four sections proposed in the NPRM are
eliminated and a new Sec. 136.5 addresses only minimum altitudes and
standoff distances in the State of Hawaii taken from the regulation
formerly known as SFAR 71. This approach allows us to delete SFAR 71.
Commentators objected to many aspects of the proposed rule, stating
that: (1) There was no FAA consideration of geographic differences
throughout the country; (2) they opposed minimum altitudes; (3)
helicopters and airplanes should not be lumped together; (4) there was
no FAA consideration of differences between single and multiengine
aircraft; (5) standoff distances for air tour operators should not be
more restrictive than for any other operator; (6) visibility
requirements were too restrictive; and (6) cloud clearance distances
were impractical.
We find many of the comments have merit. Developing safety
standards for all commercial air tour operators generic enough for use
by operators in part 91, including those using private pilots, as well
as commercial air tour operators in 121 or 135, required consideration
of many disparate regulations found in parts 1, 91, 93, 121, 135, 136,
SFAR 50-2, SFAR 71, park manuals, procedures documents, exemptions,
Operations Specifications, and LOAs. In response to commentators, we
have chosen to return to the regulatory regime that existed before the
NPRM.
The FAA recognizes that our various offices, including Air Traffic
and Flight Standards, have established procedures with operators
necessary to resolve certain local airspace safety issues. These
procedures may be established by rule, on aviation charts, or by some
form of agreement with the operators.
We have eliminated the proposed deviation authority based on
comments. We integrated what might have been deviation approvals into
rule language as much as possible. Most commenters supported the idea
of standardized language so they don't have to apply for and justify a
deviation. As discussed below, we have moved the substance of SFAR 71
into new Appendix A to part 136. Those rules continue to have more
restrictive altitude and standoff requirements than other operations,
and we retain a deviation provision in Appendix A.
D. Effect of Final Rule on Grand Canyon and Hawaiian Operations
This final rule does not replace SFAR 50-2 (Operations in Grand
Canyon). However, since the FAA envisions its future location in a
subpart of part 136, we reserved a place for it and for part 93 subpart
U (Special Flight Rules in the Vicinity of Grand Canyon National Park,
AZ). The actual move does not occur in this final rule. Accordingly,
SFAR 50-2 and part 93 subpart U will remain in their present locations,
but may be moved in the future.
However, SFAR 71 has been moved into part 136 as Appendix A.
Placement of SFAR 71 into part 136 is not a substantive change.
Accordingly, commercial air tour operators in Hawaii may continue to
operate in accordance with their FAA-approved training
[[Page 6902]]
programs, procedures documents, Operations Specifications, and LOAs.
More specifically, this final rule does not change the established
routes or altitudes for the Grand Canyon Special Flight Rules Area. The
Grand Canyon manual and route/map or allocations structure approved by
FAA Headquarters and the Las Vegas FSDO are not canceled by this rule.
Grand Canyon operators may continue to operate commercial air tours in
accordance with FAA-approved training programs; the provisions and
limitations of their manual; \12\ the FAA-developed Grand Canyon Route
Map; and FAA-issued Operations Specifications. Grand Canyon commercial
air tour operators will continue to use the altitudes and standoff
distances approved for them by the FAA and contained in their manual
maintained at the Las Vegas FSDO. The effect on Grand Canyon air tour
operations will be felt through the safety rules in subpart A of part
136. Specifically, commercial air tour operators operating at the Grand
Canyon will now have a more detailed helicopter performance plan, and
be required to either outfit their aircraft with helicopter floats, or
have passengers don life preservers while traveling over water (Lake
Mead the most likely), dependent upon the ability to glide to beyond
the shoreline in the event of engine failure. The safety rules in
subpart A of part 136 are applicable to Grand Canyon air tour
operations.
---------------------------------------------------------------------------
\12\ The ``manual'' is FAA Order 1380.2A, Las Vegas FSDO Grand
Canyon National Park Special Flight Rules Area Procedures Manual.
---------------------------------------------------------------------------
E. Passenger Briefings (Sec. 136.7)
Coastal Helicopters and Air Vegas Airlines commented that the
passenger briefing should be addressed in part 135 and should not be
required for operations not flying over water. Air Vegas Airlines
commented that briefing passengers on water ditching procedures is
unnecessary for operations covered by SFAR 50-2 because the duration of
flight over water is so short and chances of landing in water are
minimal. GAMA believed the NTSB recommendation on passenger briefings
is appropriate and justified because of specific accidents where
passenger briefings were perceived by the NTSB to constitute a problem.
In the NPRM, we proposed to move certain part 91 operators into
part 135, forcing these air tour operators to meet the passenger-
briefing requirements in part 135. Because we are keeping the 25-mile
exception, those operators will not be covered by the passenger
briefing requirements of part 135. However, as proposed, we are
requiring all commercial air tour operators (including those allowed to
continue to operate under part 91, including SFAR 50-2) to complete
passenger safety briefings. That requirement is now found in part 136
subpart A. Overwater briefings are required for flights traveling over
water beyond the shoreline only. Those not traveling over water do not
need to abide by the overwater equipment or overwater briefing
requirements in this rule. Our additional passenger briefing
requirement in part 136 specifies overwater operations and the need for
operators to brief passengers before takeoff on procedures for water
ditching, use of required life preservers, and emergency exit
procedures in the event of a water landing. We understand Air Vegas
Airlines is concerned about having to brief passengers on overwater
procedures even though these passengers travel only briefly over Lake
Mead. Although it may be unlikely that Air Vegas Airlines will have to
attempt a landing on the water, it is possible and passengers should be
briefed for that possibility. Thus, if the operator is flying over Lake
Mead or the Colorado River at any point during the flight, they need to
brief passengers on overwater procedures before takeoff.
We added three requirements for passenger briefings proposed in the
NPRM under the assumption that a part 91 operator would have complied
with part 135. Since part 91 operators are not moving to part 135, we
need to include some requirements for passenger briefings in part 136.
Required briefings now include:
(1) Procedures for fastening and unfastening seatbelts;
(2) Prohibition on smoking; and
(3) Procedures for opening exits and exiting the aircraft.
Part 135 operators already have briefing rules and the above three
briefing requirements are no more stringent than those existing rules.
All operators need to consider that some passengers may not understand
English. This final rule does not discuss seat pocket cards, videos,
recordings, pictures, or personally ``showing'' a passenger how to
comply. Rather, it establishes a performance standard that an operator
may meet through various means.
F. Overwater Operations
Under this final rule, if you do not operate a commercial air tour
over water beyond the shoreline, you do not need to brief for overwater
evacuation procedures or have overwater life preservers or helicopter
floats. If you do operate a commercial air tour over water, this final
rule requires a passenger briefing before takeoff. This final rule also
specifies when life preservers for each occupant are required to be
available on the aircraft, and when those life preservers are required
to be worn by all occupants. Life preservers discussed in this rule
apply to both airplanes and helicopters. Floats discussed in this rule
apply only to helicopters. Each helicopter required to have floats is
also required to have life preservers. If you fly an airplane or
helicopter over water beyond the shoreline, you must brief the
passengers and comply with the life preserver requirements, regardless
of whether you have floats.
1. Passenger Briefings for Overwater (Sec. 136.7)
If you intend a flight over water beyond the shoreline, passenger
briefings are mandatory. Passengers on a commercial air tour who travel
over water must be briefed before takeoff on the appropriate
requirement for life preservers. If the life preserver is required to
be worn during the flight, the operator must brief passengers on when
to inflate it in the event of an emergency evacuation. Properly
instructing passengers to don life preservers when already in an
emergency situation is difficult since the aircraft may be unstable and
taking on water and panic sets in. Since most of these ditched flights
are flown by a single pilot, the pilot must concentrate on managing the
emergency, not on individual passengers. Thus, it is important that,
prior to flight overwater, passengers understand how to don life
preservers or be required to wear them. They must also know how to open
exits and exit the aircraft. Each of these steps is covered in the
passenger briefing before takeoff.
The Department of Transportation's Office of Inspector General
completed an audit report entitled Oversight of the Air Tour Industry,
May 28, 1999 (Control AV-1999-099). ``Crashes into water''
are described on page 8 of that report. One accident in Hawaii resulted
in three fatalities after all seven people aboard a helicopter survived
ditching, since the occupants were unable to use life preservers
``still located in their containers beneath each seat.'' The report may
be found at http://www.oig.dot.gov/item_details.php?item=235.
2. Life Preservers (Sec. 136.9)
In this final rule, we define ``Life Preserver'' and ``shoreline''
in Sec. 136.1 for the purposes of part 136 subpart A. We prefer
commercial air tour operators
[[Page 6903]]
outfit their aircraft with the pouch type inflatable life preserver,
but we do not require that specific type. When donned by the passenger,
an inflatable life preserver must stay in an uninflated state until
after exiting the aircraft in an emergency. It is easier for occupants
to keep the life preserver on from before takeoff until after landing
if they are wearing the pouch type life preserver. These life
preservers could be issued and re-collected while on the ground with
less wear on the preserver and fewer passengers keeping them as a
souvenir. The pouch type life preservers are not bulky or uncomfortably
hot when flying in high temperatures, so they may be more suitable for
commercial air tours in hot climates. During the development of this
rule, we considered mandating the pouch type of life preserver. As long
as individuals can safely exit the aircraft, there is no need to
mandate a pouch, or even an inflatable design. Because of comfort,
wear, and replacement concerns, we expect most operators will use the
pouch type preserver. Accordingly, our definition also permits life
preservers that are not inflatable, provided the commercial air tour
operator demonstrates to the FAA that such a preserver can be used
during an evacuation and will allow all passengers to exit the aircraft
without blocking the exit.
Scenic Airlines and Sundance Helicopters stated that the FAA has
exceeded the NTSB's recommendation in this area by proposing that
occupants must wear life preservers for the entire flight (even over
land) in twin-engine airplanes and twin-engine helicopters, even if
they can reach the shoreline in the event of a single engine failure.
Air Vegas Airlines, Papillon, Seaplane Pilots Association, and NATA
agreed that the proposal went beyond the NTSB recommendations with
respect to power-off glide to land. Belle Air Tours and Waldo Wright's
Flying Service believed that the overwater requirements should apply
only when a flight is being operated outside gliding distance to shore.
Commenters specifically argued that the proposal was contradictory to
NTSB Recommendation A-99-57, which provided an exception if the
airplane or single-engine helicopter ``is operated at an altitude that
allows it to reach a suitable landing area in the case of an engine
failure.'' Consistent with our authority, we proposed a requirement
that exceeded the NTSB recommendation. Based on comments, we have
rewritten Sec. 136.9 to consider aircraft with floats and aircraft
operating within power-off gliding distance of the shoreline. This
change does not, however, relieve operators from the requirement to
have life preservers readily available and accessible to all occupants,
or to brief occupants on the use of those life preservers. All affected
aircraft, including those with floats, must have life preservers.
Coastal Helicopters and Bar Harbor Aviation stated that wearing
life preservers could actually make the operation less safe. Coastal
stated that excited passengers who inflate the preserver before exiting
the aircraft will be buoyed to the top and not be able to exit the
aircraft. Bar Harbor feared that in the cramped quarters of small
aircraft, life preservers can get entangled in the aircraft controls as
passengers attempt to exit.
Seaplane Pilots Association stated that life preservers worn
continuously in commercial service will be subject to wear and tear far
in excess of that experienced by traditional one-time-use life
preservers, which would significantly increase operating costs and may
render the life preserver inoperative when it is actually needed.
Seaplane also cited case studies showing that it was the lack of
instruction on the use of life preservers, not the location of the life
preservers, that had the most significant impact on survivability.
Kenmore commented that passengers asked to wear life preservers and
passengers observing others wearing them prior to boarding would feel a
sense of anxiety about the impending flight. Kenmore claimed training
for pilots and a thorough passenger briefing can improve chances for
underwater egress. It recommended allowing operators to choose between
the use of inflatable life jackets and accessible floatation cushions.
Merely briefing passengers on emergency exit procedures does not
adequately assure the safety of occupants. Likewise, the risk of a life
preserver inflating inside the aircraft, or some lines getting tangled
in cramped quarters, does not outweigh the need to have occupants wear
the life preservers or know where they are and how to use them. Life
preservers worn every flight do indeed wear out faster than life
preservers tucked away in sealed heavy plastic, and we leave it up to
operators to find the best way to maintain them. As discussed below,
the life preserver requirement also provides an alternative in which
the life preserver must only be available and accessible to each
occupant and not physically worn for the duration of each flight. Thus,
we will permit the life preservers to be stored in containers as long
as passengers can easily open them. The FAA does not find a floating
cushion to be acceptable as a life preserver for the purposes of part
136 subpart A. Unlike life preservers, seat cushions have no follow-on
inspection requirement. Floating cushions do not replace life
preservers.
Sundance Helicopters recommended that the FAA should significantly
modify the proposed requirement to address only the specific geographic
locations and operators to whom these requirements should apply.
Sundance Helicopters commented that the proposed rules are based on
SFAR-71, which imposed certain requirements for life preservers and
floatation devices on helicopters, because many of the Hawaiian
operations were conducted over large bodies of water. It stated that,
``* * *to impose those same requirements in a national rule on
commercial air tour companies which typically fly over deserts or
frozen tundra is ludicrous and shows just how little thought the FAA
has put into these proposed regulations.'' Echoing this sentiment,
Kenmore Air Harbor argued against the life preserver proposal because
water conditions in Hawaii are rough, unlike the conditions in other
parts of the country where air tours are conducted. Kenmore recommended
applying the rule on a regional basis only.
The NTSB recommended that we establish one set of standards for all
air tour operations (NTSB Rec. A-95-58). With respect to life preserver
requirements, we created one set of standards for all commercial air
tours. However, we disagree with comments to follow the NTSB
recommendation (A-95-59) that suggested we accommodate localized
airspace restrictions. That recommendation (A-95-59) is not suitable
for this safety provision, because the risk of drowning is present any
time an aircraft goes down over water.
In the life preserver requirements, you will see that we have
provided relief in some instances from the requirement that each
occupant must wear a life preserver. Occupants onboard certain aircraft
only need to have the life preservers readily available and accessible.
If the airplane is float-equipped or can power-off glide to the
shoreline, a life preserver must only be available and accessible to
each occupant and need not be worn by each occupant. If a helicopter is
float-equipped, life preservers must only be available and accessible
to each occupant but need not be worn by each occupant.
[[Page 6904]]
It is important for those required to wear life preservers to do so
even if the flight is operated within power-off gliding distance of the
shoreline. In an emergency, the pilot might not maneuver to get to an
acceptable landing area beyond the shoreline. Also, the pilot might
know the power-off glide distance, but might err in estimating the
actual distance to shore. In other words, pilots of both helicopters
and airplanes may overestimate gliding capability.
3. Helicopter Floats (Sec. 136.11)
The FAA inadvertently proposed in the NPRM that all helicopters be
equipped with floats even if they are not operated over water. This was
not the FAA's intention. Under this rule, helicopter floats for
commercial air tours only apply if a portion of the flight is over
water, except if that portion is during takeoff or landing only.
We have rewritten the ``Helicopter Floats'' section in this final
rule (Sec. 136.11) to address the ability of a helicopter to power-off
glide to beyond the shoreline. If the helicopter operator knows the
performance \13\ of the helicopter (as published by the manufacturer)
would allow the helicopter to glide (autorotate) beyond the water to a
landing spot, the operator may not need helicopter floats. Operators
must make sure that the ability to glide (autorotate) to land when the
engine fails will include the ability to put the aircraft down safely
in an area beyond the shoreline. We define shoreline in part 136
subpart A, and it excludes areas that are intermittently under water at
the time of the flight, or areas that are otherwise unsuitable for
landing such as a vertical cliff. The burden is on the operator to know
the power-off gliding distance for existing conditions at the time of
flight. Thus, the operator must determine how far over the water they
may go.
---------------------------------------------------------------------------
\13\ Knowledge of performance applies to each make and model
helicopter and under conditions of each flight to include density,
altitude, and handling characteristics.
---------------------------------------------------------------------------
A helicopter need not be equipped with floats if each occupant is
wearing a life preserver while the helicopter is within power-off
gliding distance of the shoreline. The life preserver must be worn from
before take-off until the flight is no longer over water. If the
helicopter goes beyond power-off gliding distance, floats are required
for all single-engine helicopters and multi-engine helicopters
described in Sec. 136.11(a)(2). The multi-engine helicopters described
in that section don't have the performance to operate on one engine and
must comply with the same requirements as a single engine helicopter.
We have allowed operators 18 months to equip their helicopters with
floats, which is consistent with the proposal.
Papillon Airways commented that adding helicopter floats for its
operations would not increase the safety of operators, but rather
decrease it, when these operations are compared to conducting all
operations within gliding distance of the shore. Papillon also provided
details on the expected costs of installing floats, including purchase
costs, maintenance costs, and added weight that it asserted would
reduce the passenger load by one person per trip. Papillon estimated
that the cost of floats alone could amount to over $1 million a year
when the costs of added flight hours, reduced passenger loads, and all
other factors are considered. In addition, USATA obtained several
equipment cost estimates from its members. These estimates mostly
reflected three major cost elements: (1) The cost of obtaining the new
equipment; (2) The cost of installing and maintaining the new
equipment; and (3) lost revenue, because the added weight of the new
equipment would cause a reduction of one passenger per flight.
The float requirement is relaxed in this final rule to allow for
power-off glide to land beyond the shoreline. Therefore the burden on
operators is reduced from what was initially proposed in the NPRM. A
full evaluation of the costs associated with adding floats to the
affected helicopters can be found in the final regulatory evaluation
that accompanies this rule.
We received several comments regarding Grand Canyon operations that
traverse Lake Mead. We recognize the burden of requiring overwater
equipment for operators who fly over hot desert most of the time.
However, we also realize that Lake Mead is a large, deep body of water
that is too big to go around readily. While we have not had an incident
of a Grand Canyon tour operator ditching in Lake Mead, that doesn't
mean there couldn't be an incident in the future.
If operations into the Grand Canyon are in helicopters described in
Sec. 136.11(a), then floats will be required if the helicopters
operate over Lake Mead and beyond the power off glide distance to
shore. For operations within the power off glide distance for the
entire time the helicopter flies over water, floats are not required if
passengers are wearing life preservers.
Lake Mead is outside Grand Canyon National Park and outside the
airspace of SFAR 50-2. The FAA has worked with the Grand Canyon
operators for nearly 20 years and the Las Vegas FSDO has oversight. The
operators have manuals, an FAA issued map, and FAA issued routes that
apply inside the SFAR.
The Hawaii operators' history of helicopter floats is well
established, and they hardly commented about the issue. We believe
there will be no reduction in safety because the helicopter float final
rule language requires the available shoreline to be suitable for
landing once the glide is completed. Although this section includes
power-off gliding distance, which SFAR 71 did not, it still requires
the landing to be done at a location beyond the shoreline. While there
is a great deal of land that may be within power-off gliding distance
in Hawaii, the terrain is often dangerous and a landing would be nearly
impossible on such terrain.
This final rule does not provide an exception for Alaska, because
the safety risks associated with a water ditching in Alaska are at
least as grave as safety risks associated with a water ditching
elsewhere.
G. Helicopter Performance Plan and Operations (Sec. 136.13)
The Helicopter performance plan (proposed Sec. 136.17) and
Helicopter Operating Limitations (proposed Sec. 136.19) are combined
in the final rule in Sec. 136.13, Helicopter performance plan and
operations.
Various terms are used to describe helicopter performance. One of
these terms is the height/velocity diagram. However, the FAA has used
similar terms in other parts of the regulations. For example, 14 CFR
part 27 (Sec. 27.79) uses the term ``height-speed envelope.'' 14 CFR
part 29 uses the terms ``height-velocity envelope'' (Sec. 29.87), and
``height-speed envelope'' (Sec. 29.1517). For the purposes of this
rule, both terms are synonymous and are presented as the height/
velocity diagram (H/V diagram) used in Rotorcraft Flight Manuals (RFM).
The terms ``curve'', ``chart,'' and ``diagram,'' when used in
describing the H/V diagram, should be considered the same in this rule.
The ``avoid'' area, ``warning'' area, and ``caution'' area of the
height/velocity diagram are also used synonymously. For the purposes of
this discussion, this area is called the ``avoid area.'' The H/V
diagram typically shows combinations of airspeeds and heights above the
surface in which safe one-engine inoperative (autorotation in the case
of single-engine helicopter) landings have not been demonstrated during
certification.
The final rule language in Sec. 136.13 uses the term ``height/
velocity information.'' This information includes
[[Page 6905]]
not on the ``H/V diagram,'' but also a consideration of gross weight
and density altitude and their effect on the diagram. (See Rotorcraft
Flying Handbook, FAA-H-8083-21, published in 2000).
Papillon Airways commented that requiring a plan before each flight
is not practical since tour flights occur on a regularly specified
route throughout the day. The operators take into consideration weight
and balance, gross weight, duration of flight, fuel and route of flight
in ever-changing meteorological condition's, according to Papillon.
Since these conditions change, often after departure, the pilot must
maintain the flexibility of making decisions in flight as climatic
conditions change. Operators in Hawaii made a similar comment during
the Internet Public Meeting. Liberty Helicopters stated that all of its
New York City operations, except for takeoff and landings, are outside
the height/velocity envelope and that it currently monitors the gross
weight and center of gravity of all flights. Liberty Helicopters
commented that the requirement to produce a performance plan for each
flight, however, would impose an onerous amount of paperwork for each
11-minute flight and jeopardize its ability to continue operations.
HAI and several helicopter air tour operators (Coastal Helicopter,
Papillon, Sundance Helicopters, and NorthStar) strongly opposed
proposed Sec. 136.19 regarding the height/velocity diagram. HAI stated
that our proposal was inconsistent with previously published FAA
guidance on the use of the height/velocity diagram. Papillon agreed and
stated that the proposal would prohibit it from operating at its
current facility. Similarly, Sundance Helicopters stated, ``This
section is probably the most problematic and troubling part of this new
rule. If adopted it would make present helicopter tour operations
nearly obsolete in any but airport operations.''
Sundance Helicopters asked if the goal is to provide a high level
of safety, why this proposal would not be imposed on all helicopter
passenger operations, such as for offshore workers, fire fighters, and
air ambulance patients, not just sightseeing passenger flights?
NorthStar Trekking made a similar comment.
Commenters noted that the height/velocity diagram is used to advise
a helicopter operator and is not meant to be a limitation. As long as
the flight plan supports avoiding the caution/warning/avoid area of the
height/velocity diagram, commenters believed there should be no
violation of the rule.
Commercial air tour operators in Hawaii under Section 5 of SFAR 71
have been required to operate helicopters at a combination of height
and forward speed (including hover) that would permit a safe landing in
the event of an engine power loss, in accordance with the height/speed
envelope for that helicopter under current weight and aircraft
altitude. This requirement is retained under section five of Appendix A
to part 136. Thus, in Hawaii, it would be a violation of the safety
rules if the helicopter operator merely planned, but failed, to operate
the aircraft in the manner described above (except when necessary for
approach to and transition from a hover, or where necessary for safety
of flight). The FAA did not propose to reduce any of the requirements
or restrictions for commercial air tour operations in Hawaii.
As to commercial air tours in the rest of the country, the FAA can
and has placed limitations on the operation of certain aircraft in the
operating limitations of the RFM, as well as other places. Commenters'
arguments that the only place the Agency could put an additional
limitation would be in the operating limitations in the RFM, and that
the Agency should not require helicopter operators to operate in
accordance with the height/velocity diagram are in error. As outlined
above, SFAR 71 had a longstanding requirement that helicopter operators
actually operate the aircraft in a manner consistent with the height/
velocity diagram. In Sec. 136.17 of the NPRM, we proposed that
operators develop a plan and operate within that plan. In Sec. 136.19
of the NPRM, we proposed that all operators remain outside of the
caution/warning/avoid area of the height/velocity diagram, except for
takeoff and landing. In Sec. 136.13(b) of this final rule, we require
operators to make a reasonable plan to operate the aircraft outside the
caution/warning/avoid area of the height/velocity diagram. In Sec.
136.13(c), we require operators to operate the helicopter in accordance
with the plan, except when issues of flight safety arise.
For the commercial air tour industry, the FAA believes aviation
safety requires the operator to operate in accordance with the plan.
Unlike many other commercial uses of helicopters where the operator has
a financial incentive to get from point A to B as efficiently as
possible, part of the business plan of a commercial air tour operator
is to give the passengers opportunities to see certain sites on the
surface by flying lower, slower, and incorporating in-flight delays at
certain scenic areas. Commercial air tour operation business plans may
result in operations within the ``avoid'' portion of the height/
velocity diagram as a routine operating environment. Extended operation
within the ``avoid'' portion of the height/velocity diagram increases
the exposure to the risk of not being able to execute successfully an
autorotation landing in the event of an engine failure, or in the case
of multiengine helicopters, a safe one-engine-inoperative landing.
Therefore, aviation safety requires that commercial air tour operators
not only plan, but also operate in accordance with the plan. It is
likely that with each new tour, the passenger weights will be
different, temperature will be different, and altitude will vary. Those
differences can have a significant impact on the performance plan
required in Sec. 136.13. However, operators can develop performance
plans in advance, which identify maximum weights, highest temperatures
and lowest altitudes for planned tours and load the aircraft
accordingly to comply with this requirement. Paragraph (c) of the
Helicopter performance plan and operations requires the pilot in
command to comply with the plan, and any operation within the caution/
warning/avoid area should be limited to maneuvering necessary only for
takeoff and landing, or safety of flight.
Liberty commented that the requirement to produce a performance
plan for each flight would jeopardize its ability to continue
operations. The performance plans may be pre-developed by the operator
for standard conditions. The pilot in command would add any adjustments
for actual conditions. This is no different than the current practice
of using pre-developed flight plans. The operator develops the flight
plans and the pilot in command adds any differences at the time of the
flight if necessary. From the descriptions the commenters have made
they are already doing performance plans without any documentation.
In conclusion, regarding the requirements for a performance plan,
the FAA believes it is not onerous or unusual for the pilots-in-command
to be aware of the gross weight, power requirements, and center of
gravity limits of their aircraft, and that the planned operation will
be conducted safely within those limits. Much of this data can be
preplanned through the use of tabular performance data, computation of
potential maximum loading, expected ``worst case'' weather conditions,
etc.
The FAA, in response to commenters, acknowledges that the height/
velocity diagram is not a limitation per se. The
[[Page 6906]]
rule language was amended from the NPRM proposal. Now the operator must
be aware of and familiar with the H/V diagram, and consider that
information during the operation. Because accidents have occurred while
the aircraft remained in the caution/warning/avoid area of the H/V
diagram, it is essential to highlight the significance and potential
hazard of these operations for the commercial air tour operators.
The FAA does not see the considerations of the elements of
performance plans or the knowledge of the H/V diagram as additional
requirements, but merely considerations in preflight planning and
essential operational knowledge of the aircraft being flown in
commercial, passenger-carrying operations.
VIII. Regulatory Notices and Analyses
Economic Assessment, Regulatory Flexibility Determination, Trade Impact
Assessment, and Unfunded Mandates Assessment
Proposed changes to Federal regulations must undergo several
economic analyses. First, Executive Order 12866 directs each Federal
agency to propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies
to analyze the economic impact of regulatory changes on small entities.
Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. In developing U.S.
standards, this Trade Act also requires agencies to consider
international standards and, where appropriate, use them as the basis
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995
(Public Law 104-4) requires agencies to prepare a written assessment of
the costs, benefits, and other effects of proposed or final rules that
include a Federal mandate likely to result in the expenditure by State,
local, or tribal governments, in the aggregate, or by the private
sector, of $100 million or more annually (adjusted for inflation.)
In conducting these analyses, FAA has determined this rule has
benefits that justify its costs, and is a ``significant regulatory
action'' as defined in section 3(f) of Executive Order 12866 because it
raises novel policy issues contemplated under that executive order, the
proposal of which generated significant public comment. Accordingly,
this rule has been reviewed by OMB. The rule is also ``significant'' as
defined in DOT's Regulatory Policies and Procedures. The rule will have
a significant economic impact on a substantial number of small
entities, but it will not reduce barriers to international trade and
does not impose an unfunded mandate on state, local, or tribal
governments, or on the private sector. These analyses, available in the
final regulatory evaluation supporting today's rule, are summarized
below.
Final Regulatory Evaluation Summary of Cost and Benefits
The quantified potential benefits are estimated in this final
regulatory evaluation at $54.1 million or $38 million, present value,
and the costs are estimated at $29 million or $20.7 million, present
value. The potential benefits are based on avoiding 17 fatalities and
eight serious injuries, and damage or destruction of the aircraft
involved over the next 10 years, discounted at 7 percent. Part 135
commercial air tour operators will incur 82 percent of the costs of the
rule while part 91 operators will incur 18 percent of the costs.
Ninety-nine percent of costs to part 135 operators are associated with
equipping their helicopters with float systems and preparing helicopter
performance plans before each flight. The cost-benefit ratio is greater
than 1.0 for each major cost center as well as by type of operation.
However, the substantial number of part 91 and part 135 helicopter
operators that have to equip their helicopters with floats to operate
over water beyond the shoreline will experience a significant economic
impact.
Final Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
business, organizations, and governmental jurisdictions subject to
regulation.'' To achieve that principle, the RFA requires agencies to
solicit and consider flexible regulatory proposals and to explain the
rationale for their actions. The RFA covers a wide range of small
entities, including small businesses, not-for-profit organizations, and
small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the agency determines that it will, the
agency must prepare a regulatory flexibility analysis as described in
the RFA.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the RFA provides that the
head of the agency may so certify, and a regulatory flexibility
analysis is not required. The certification must include a statement
providing the factual basis for this determination, and the reasoning
should be clear.
The FAA conducted the required review of this final rule and
determined that it will have a significant economic impact on a
substantial number of small entities. Accordingly, pursuant to Section
603 of the Regulatory Flexibility Act, the Federal Aviation
Administration has prepared the following final regulatory flexibility
analysis.
Reasons Why Agency Action Is Being Taken
The FAA is adopting these national safety standards to govern
commercial air tours as a result of accidents and incidents involving
commercial air tour operators directly linked to the major provisions
of the rule and NTSB recommendations made in response to air tour and
sightseeing accidents and incidents. The rationale for each of the
major provisions of the final rule are summarized below:
Briefing provision. A basic tenet of aviation safety is that
passengers know procedures for opening exits and exiting the aircraft
and, for flight segments over water beyond the shoreline, procedures
for water ditching and use of life preservers. The FAA believes that
passenger briefings will improve the chances of survival in the event
of an accident.
Safety provisions addressing the risks of overwater operations.
Based on an analysis of the risks of overwater operations and NTSB
recommendations, the FAA concludes that the benefits of these
provisions justify the costs and potential inconvenience to passengers.
Airplane occupants will also benefit from the requirement for life
preservers when air tours are conducted over water. Based on survivors'
testimony, life preservers alone are insufficient in preventing loss of
life in helicopter accidents over water. Without floats, helicopters
sink quickly upon impact, giving occupants little time to exit the
aircraft. The FAA believes that helicopter floats, in conjunction with
life preservers, will significantly improve the chances of survival.
Therefore, this final rule will require life
[[Page 6907]]
preservers for both airplanes and helicopters and floats for
helicopters that operate overwater beyond the shoreline without gliding
capability.
Statement of Objectives and Legal Basis
The objective of this proposal is to provide a higher and uniform
level of safety for all commercial air tours.
Under the United States Code, the FAA Administrator is required to
consider the following matter, among others, as being in the public
interest: assigning, maintaining, and enhancing safety and security as
the highest priorities in air commerce [see 49 U.S.C. Sec.
40101(d)(1)]. Additionally, it is the FAA Administrator's statutory
duty to carry out her responsibilities ``in a way that best tends to
reduce or eliminate the possibility or recurrence of accidents in air
transportation.'' [see 49 U.S.C. Sec. 44701(c)]. Accordingly, this
notice proposes to amend Title 14 of the Code of Federal Regulations to
provide definitions for commercial air tours, and establish new safety
requirements for such operations.
Description of Small Entities Affected
The FAA concludes that virtually all of the entities affected by
the proposed amendments are small according to thresholds established
by the Small Business Administration.
An estimated 645 part 91 operators will be affected by the rule.
This rule will impose annualized costs per Section 91.147 operator of:
(1) $115 to provide passenger briefings and paperwork; (2) an
additional $45 to operators of airplanes whose occupants must wear life
preservers for a total of $160; (3) $3,290 to helicopter operators to
complete performance plans and provide briefings; and (4) $9,300 to
helicopter operators who have to provide life preservers and equip
their aircraft with floats in addition to completing performance plans
and providing briefings for a total cost of $12,600. An estimated 90
part 121/135 operators will be affected by the rule. This rule will
impose annualized costs per part 135 operator conducting commercial air
tours of: (1) $110 to provide passenger briefings and paperwork; (2) an
additional $205 to operators of airplanes whose occupants must wear
life preservers for a total of $315; (3) $27,800 to helicopter
operators to complete performance plans and provide briefings; and (4)
$88,400 to helicopter operators whose occupants must wear life
preservers and equip their aircraft with floats in addition to
completing performance plans and providing briefings, at a cost of
$27,800, for a total cost of $116,200.
Projected Reporting, Recordkeeping and Other Compliance Requirements
Pilots flying for charitable, non-profit, or community events must
provide a signed statement that the pilot has not flown more than three
previous events covered by section 91.146 during the current calendar
year at a cost of $7 per statement. Operators conducting flights under
section 91.147 must apply for and receive a Letter of Authorization
from the FAA at a cost of approximately $24 per operator. Section
136.13 requires each operator to complete a performance plan before
each helicopter flight by a commercial air tour operator or a flight
operated under Sections 91.146 or 91.147. The pilot must review for
accuracy at a cost of approximately $2 per flight.
Overlapping, Duplicative, or Conflicting Federal Rules
The final rule will not overlap, duplicate, or conflict with
existing Federal Rules. The Small Business Administration commented
that the requirements of the proposed rule are duplicative with the
National Parks Air Tour Management requirements. The FAA does not agree
with this comment since this final rule addresses how commercial air
tour flights are to be conducted, rather than where such flights may be
conducted. This is a safety rule. Under the National Parks Air Tour
Management requirements, each park will determine specific park rules
as they see fit. Each park may be different.
Analysis of Alternatives
Alternative 1: Lengthen the compliance period: The final rule will
require full compliance within six months from the date of issuance
with complete phase-in of the helicopter floats within 18 months of the
effective date. The FAA issued the NPRM in October 2003 alerting the
public to the proposal. In view of the more than 2,000 comments
received and the holding of public and Internet meetings, the FAA
believes that the compliance times provided are adequate. Lengthening
the compliance period to 10 years, for example, would save some
compliance costs on aircraft due to be removed from service within the
10-year period. The FAA believes, however, that the sightseeing/air
tour accident history justifies FAA action in the near term. Between
1996 and 2005, there were 17 fatalities and eight serious injuries
involving part 91 sightseeing flights and part 135 air tours. The FAA
believes, therefore, that the higher standards should be implemented
expeditiously and has chosen not to adopt this alternative.
Alternative 2: Require helicopter floats for all operations beyond
the shoreline: The NPRM required each helicopter to be equipped with a
floatation system for a flight over water except if the overwater
portion of the flight was only necessary for take-off or landing. The
final rule will only require floats if the overwater operations are
beyond the helicopter's power-off gliding distance of the shoreline.
This change from the NPRM reduces the scope of this provision and
reduces the associated costs.
The FAA believes that the safety objectives will be met through
this alternative. The FAA believes that helicopter floats alone are
insufficient to prevent loss of life. The rule requires helicopters
with floats to have life preservers for all occupants. Based on
survivors' descriptions, the FAA believes that life preservers alone
are insufficient in preventing loss of life in helicopter accidents
over water. Helicopter floats, in conjunction with life preservers,
would significantly improve the chances of survival. For this reason,
the FAA has chosen to adopt this alternative.
Alternative 3: Grandfather part 91 operators: The final rule
continues to allow flights for compensation or hire to operate under
part 91, with certain provisions. The NPRM would have required part 91
sightseeing operators to obtain part 135 certification. Adoption of
this alternative reduces the cost of the rule to part 91 operators from
about $150 million over 10 years, to $5.8 million over the same period.
Affordability Analysis
The FAA lacks specific revenue and profit data for most of the
entities affected by this rule. The United States Census Bureau data
for 2002 provides annual receipt information for Scenic and Sightseeing
Transportation, Other (NAICS 4879) which includes airplane and
helicopter operators.\14\ The receipt information is grouped into five
categories. The FAA has reviewed this information and found that the 20
largest firms had average revenues of $5.6 million and includes some
firms with receipts that exceed the SBA threshold. The average annual
receipts excluding the 20 largest firms was $333,357; the average
annual receipts excluding the 50 largest firms was $181,230. The FAA
believes it is appropriate to assess the impact of the final rule's
costs on Section 91.147 operators using the $181,230 average
[[Page 6908]]
and the $333,357 amount for most part 135 operators.
---------------------------------------------------------------------------
\14\ See Appendix Table 1.
---------------------------------------------------------------------------
The FAA determines the $160 annualized cost to part 91 airplane
operators is not a significant cost to the operator with average
revenues of $181,230. The annualized cost to 33 helicopter operators to
complete performance plans and provide briefings is a significant cost
as it accounts for approximately 1.8 percent of annual receipts.
Requiring helicopter occupants to wear life preservers and installing
floats increases the annualized costs of 17 operators to approximately
6.9 percent of annual receipts.
The FAA determines the $315 annualized cost to airplane operators
is not a significant cost to the part 135 operator with average
revenues of $333,357. The annualized cost to 38 helicopter operators to
complete performance plans and provide briefings is a significant cost
as it accounts for approximately 8.3 percent of annual receipts.
Requiring helicopter occupants to wear life preservers and installing
floats increases the annualized costs of 15 operators to approximately
35 percent of annual receipts. The FAA believes, however, that the
helicopter float costs will apply to the larger, more financially
viable part 135 entities with receipts exceeding the average revenues
used. As noted above the Census data indicates that the 20 largest
firms had average revenues of $5.6 million; using this average revenue
lowers the annualized cost to 2.1 percent.
While there are significant costs to helicopter operators, there
are a number of options the operators may exercise to avoid or minimize
these costs. If air tours do not constitute a significant share of an
operator's net revenues, an operator may elect not to continue to
provide air tours. Other operators may alter the air tour route to
avoid the compliance costs, but this may adversely affect tour
revenues. Some operators, depending on the volume of their commercial
air tour operations, may elect to only equip part of their fleet to
ensure the affordability to their business. The FAA concludes these
operators will be able to afford to comply with the final rule and
remain in business.
Business Closure Analysis
The FAA will allow operators conducting flights for compensation or
hire under part 91 to remain under part 91. This change will allow the
part 91 operators currently providing sightseeing flights to continue
to provide their service. The requirement for helicopter floats will
impose significant costs on operators who opt to continue flying over
water beyond the shoreline. These operators have 18 months to determine
whether to equip all their helicopters, formulate financial plans to
meet the initial capital float cost, or devise alternate routing to
avoid the expense. The FAA concludes that these operators would remain
in business, although we have added operator relief for ability to
glide to beyond the shoreline.
Disproportionality Analysis
Almost all entities in the commercial air tour/sightseeing market
are small (annual receipts of $6 million or less). Accordingly, the
costs imposed by this rule will be borne almost entirely by small
businesses. Helicopter operators will incur much higher costs than
airplane operators due to the requirement to equip their aircraft with
floats if they conduct operations overwater and the requirement to
prepare helicopter performance plans. The FAA believes that the only
way to accomplish the commercial air tour safety needs for helicopter
operations is to impose these higher standards on these entities.
Key Assumptions Analysis
The FAA has made several conservative assumptions in this analysis,
which may have resulted in an overestimate of the costs of the final
rule. For example, the FAA assumes that all helicopters in commercial
air tour service in areas that require floats will equip all their
helicopters with floats. It is highly possible that the number will be
lower because some operators already have floats to comply with 14 CFR
135.183 and SFAR 71 for Hawaii, some operators do not use all the
helicopters in their fleet for commercial air tours, and others who
currently operate marginally over water may change their flight plans
to remain over land. Also, the helicopter life preserver costs may be
overestimated since there is a voluntary industry standard that
requires occupants to wear a life preserver provided by the tour
operator. To the extent this is a current practice for some operators,
it is not a cost of this rule. We have estimated that the pilot may
complete the helicopter performance plans although the rule permits the
plan to be calculated by a lower paid employee as long as the pilot
reviews it for accuracy.
International Trade Impact Assessment
The Trade Agreements Act of 1979 prohibits Federal agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. The statute also requires Federal
agencies to consider international standards and, where appropriate,
use the foreign standards as the basis for U.S. standards. In
accordance with the above statute, the FAA has assessed the potential
effect of this final rule and determined that it would have only a
domestic impact and therefore no affect on any trade-sensitive
activity.
Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (Public Law 104-4) is
intended, among other things, to curb the practice of imposing unfunded
Federal mandates on State, local, and tribal governments. Title II of
the Act requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in the expenditure of $100 million or more
(adjusted annually for inflation with the base year 1995) in any one
year by State, local, and tribal governments, in the aggregate, or by
the private sector; such a mandate is deemed to be a ``significant
regulatory action.'' The FAA currently uses an inflation-adjusted value
of $128.1 million in lieu of $100 million.
This final rule does not contain such a mandate. Therefore, the
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do
not apply.
Paperwork Reduction Act
This final rule contains the following new information collection
requirements subject to review by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)).
Organizations and individuals desiring to submit comments on the
information, billing, and collection requirements should direct them to
the U.S. Department of Transportation Dockets at the address listed in
the ADDRESSES section of this document. The FAA can only roughly
estimate the effect of this final rule on air tour operators because
accurate and complete data on the number of operators, tours, and
aircraft is not yet available. One purpose of this rule is to establish
a definition of Commercial Air Tour that may be used to subsequently
collect data on the air tour industry.
Section 91.146(d) will require each pilot to certify in a signed
statement that the pilot has not flown more than three previous events
covered by this section during the current calendar year. Pilots
currently must provide sponsors with
[[Page 6909]]
their pilot and medical certificates and log book under Section
61.113(d)(1). Some sponsors have also had to submit the latter
information because of the exemptions they hold and would simply add
the certification statement For the first year, this will require 2,200
pilot x 10 minutes each x $41.66 hourly = 366.7 hours and $15,277.
Initial hours = 366.7
Initial cost = $15,277
Recurring hours = 3,300
Recurring cost = $137,493
Total Hours = 3,667,7
Total Cost = $152,770
Section 91.147 requires that operators apply for, receive and
comply with a Letter of Authorization from the FAA to conduct nonstop
passenger-carrying flights for compensation or hire. These operators
are already subject to the FAA's drug and alcohol requirements (and
thus not a part of this rule) and most of the information that must be
submitted under this section is the same general business information
(addresses, names of personnel) provided for those programs, plus
aircraft information. Initially, 645 operators will apply and
thereafter, 16 new operators will register each year. The application
will take each operator 20 minutes to complete the process. Initial
hours and cost = 645 operators x 20 minutes each x $73.77 hourly = 215
hours and $15,860.
Initial hours = 215
Initial cost = $15,860
Recurring hours = 48
Recurring cost = $3,510
Total Hours = 263
Total Cost = $19,370
Section 136.7 requires air tour operators to provide passenger
briefings. There are numerous options for presenting the required
information given the current state of electronics. Nation-wide
charitable and non-profit organizations could produce videos and
distribute to local chapters at very little cost. Commercial air tour
operators are also likely to use videos as some already do. Some 935
videos (200 by charitable and non-profit groups, 645 by Section 91.147
operators and 90 by part 135 operators) are estimated to be produced at
an initial cost of $500 each and be replaced over a 10-year period.
Presenting the information by video is less costly than oral briefings
because the cost of producing the video can be amortized over 10 years
which results in lower per briefing cost. While the automated methods
are available to individuals providing local community flights, it is
more likely the pilot will orally transmit this information to
passengers because videos would not be cost-effective. Pilot briefings
are estimated to take 3 minutes at a cost of $2.08 per briefing.
Initial videos will take 5 hours to produce at a cost of $100 per
hour or a total of 4,675 hours and a cost of $467,500. Initial oral
briefings are estimated to take 3 minutes each at a cost of $2.08 per
briefing and given before 1,000 flights.
Initial hours = 4,725 (4,675 for video productions + 50 hours for oral
briefings)
Initial cost = $469,580 ($467,500 for videos + $2,080 for oral
briefings)
Recurring hours = 4,657.5 (4,207.5 for video productions + 450 hours
for oral briefings)
Recurring cost = $439,470 ($420,750 for videos + $18,720 for oral
briefings)
Total Hours = 9,382.5 (8,882.5 for video productions + 500 hours for
oral briefings)
Total Cost = $909,050 ($888,250 for videos + $20,800 for oral
briefings)
Section 136.13 will require each operator to complete a performance
plan before each helicopter flight by a commercial air tour operator.
These estimates include all of the helicopters in the operator's fleet
although the entire fleet may not be used for commercial air tours.
Pilots will take 3 minutes to review the performance plan before each
flight at a cost of $2.08 per review. The total number of charity and
non-profit helicopter flights per year are estimated at 9,600. The
number of Section 91.147 flights is based on 42 helicopters conducting
400 air tour flight hours per year and performing 3 tours per flight
hour (42 x 400 x 3 = 50,400). The number of part 135 commercial air
tour flights are a combination of two categories of operations: (1) Air
tour hours for operations of 134 AS 350 helicopters at 1,253 hours per
year per aircraft and (2) that the average flight takes 45 minutes (134
x 1253 x (60/45) = 223,869). Commercial air tours by 169 other
helicopters used by part 135 operators are based on 556 air tour hours
per aircraft and performing 3 tours per flight hour (169 x 556 x 3 =
281,892). The total number of affected part 135 helicopter flights is
about 505,800.
Initial hours = 28,290 (9,600 + 50,400 + 505,800 = 565,800 flight x 3
minutes per flight = 1,697,400 minutes / 60 minutes per hour = 28,290
hours)
Initial cost = $1,176,864 (565,800 flights x $2.08 per flight)
Recurring hours = 2,636,010
Recurring cost = $10,591,776
Total Hours = 282,900
Total Cost = $11,768,640
Summary of Initial and Total Paperwork Hours and Costs
----------------------------------------------------------------------------------------------------------------
Initial Initial Ten year Ten year
Category hours cost hours costs
----------------------------------------------------------------------------------------------------------------
Pilot certification....................................... 366.7 $15,277 3,667.7 $152,770
Letter of Authorization................................... 215 15,860 263 19,370
Passenger briefings....................................... 4,725 469,580 9,382.5 909,050
Performance plans......................................... 28,290 1,176,864 282,900 11,768,640
-----------------------------------------------------
Total................................................. 33,596.7 1,677,581 296,213.2 12,849,830
----------------------------------------------------------------------------------------------------------------
Note: Section 136.5, Minimums for Hawaii, contains paperwork
items that have already been addressed in the paperwork package for
SFAR 71. Section 136.7, Passenger Briefings is partially covered in
paperwork packages for part 91 and for part 135.
An agency may not conduct or sponsor and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB Control Number. As required by the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA submitted a copy of
the new information collection requirements(s) in this final rule to
OMB for its review. OMB is still reviewing the submission and will
provide an OMB Control Number when the review is complete. That Control
Number will then be published separately in the Federal Register.
International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the
[[Page 6910]]
maximum extent practicable. The FAA has determined that there are no
ICAO Standards and Recommended Practices that correspond to these
regulations.
Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. We determined that this
action would not have a substantial direct effect on the States, on the
relationship between the national Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and therefore would not have federalism implications.
Regulations Affecting Intrastate Aviation in Alaska
Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat.
3213) requires the FAA, when modifying its regulations in a manner
affecting intrastate aviation in Alaska, to consider the extent to
which Alaska is not served by transportation modes other than aviation,
and to establish appropriate regulatory distinctions. In the NPRM, we
requested comments on whether the proposed rule should apply
differently to intrastate operations in Alaska. We received comments
that specifically related to intrastate aviation in Alaska and the
section we received comments about (minimum altitudes in part 136) has
been deleted in the final rule. The comments by NorthStar are addressed
in the preamble above.
Environmental Analysis
In accordance with FAA Order 1050.1E, the FAA has determined that
this amendment is categorically excluded from environmental review
under section 102(2)(C) of the National Environmental Policy Act. In
1994 the original SFAR 71 established procedural, operational, and
equipment safety requirements for air tour aircraft in the state of
Hawaii. This final rule maintains those requirements. Neither SFAR 71
nor this final rule involves any significant impacts to the human
environment and the FAA has determined that there are no extraordinary
circumstances. This rule does not change the existing environment and
is not likely to effect listed, endangered or threatened species.
Comments requesting that the FAA ban overflights from critical habitat
are beyond the scope of this rule. The National Park Service commented
about our proposed minimum altitude changes but they have not been
adopted in this final rule. A more detailed response to those issues is
included in the discussion of comments above.
Regulations that Significantly Affect Energy Supply, Distribution, or
Use
The FAA has analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). We have determined that it is not
a ``significant energy action'' under the executive order because it is
not a ``significant regulatory action'' under Executive Order 12866,
and it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy.
List of Subjects
14 CFR Part 61
Aircraft, Airmen, Aviation safety, Reporting and recordkeeping
requirements.
14 CFR Part 91
Aircraft, Airmen, Air traffic control, Aviation safety, Reporting
and recordkeeping requirements.
14 CFR Part 119
Administrative practice and procedures, Air carriers, Aircraft,
Aviation safety, Charter flights, Commuter operations, On demand
operations, Reporting and recordkeeping requirements.
14 CFR Part 121
Air carriers, Aircraft, Airmen, Alcohol abuse, Aviation safety,
Charter flights, Drug abuse, Drug testing, Reporting and recordkeeping
requirements, Safety.
14 CFR Part 135
Aircraft, Alcohol abuse, Aviation safety, drug abuse, drug testing,
Reporting and recordkeeping requirements.
14 CFR Part 136
Air transportation, Aircraft, Airplanes, Air tours, Air safety,
Aviation safety, Commercial air tours, Helicopters, National Parks,
Recreation and recreation areas, Reporting and recordkeeping
requirements.
The Amendment
0
For the reasons set forth above, the Federal Aviation Administration is
amending Title 14 of the Code of Federal Regulations parts 61, 91, 119,
121, 135 and 136 as follows:
PART 61--CERTIFICATION: PILOTS, FLIGHT INSTRUCTORS, AND GROUND
INSTRUCTORS
0
1. The authority citation for part 61 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.
0
2. Amend Sec. 61.113 by revising paragraph (d) to read as follows:
Sec. 61.113 Private pilot privileges and limitations: Pilot in
command.
* * * * *
(d) A private pilot may act as pilot in command of a charitable,
nonprofit, or community event flight described in Sec. 91.146, if the
sponsor and pilot comply with the requirements of Sec. 91.146.
* * * * *
PART 91--GENERAL OPERATING AND FLIGHT RULES
0
3. The authority citation for part 91 continues to read as follows:
Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101,
44111, 44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722,
46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531,
articles 12 and 29 of the Convention on International Civil Aviation
(61 stat.1180).
Special Federal Aviation Regulation No. 71--Special Operating Rules for
Air Tour Operators in the State of Hawaii
0
4. Remove SFAR No. 71 from part 91.
0
5. Add Sec. 91.146 to read as follows:
Sec. 91.146 Passenger-carrying flights for the benefit of a
charitable, nonprofit, or community event.
(a) Definitions. For purposes of this section, the following
definitions apply:
Charitable event means an event that raises funds for the benefit
of a charitable organization recognized by the Department of the
Treasury whose donors may deduct contributions under section 170 of the
Internal Revenue Code (26 U.S.C. Section 170).
Community event means an event that raises funds for the benefit of
any local or community cause that is not a charitable event or non-
profit event.
Non-profit event means an event that raises funds for the benefit
of a non-profit organization recognized under State or Federal law, as
long as one of the organization's purposes is the promotion of aviation
safety.
(b) Passenger carrying flights for the benefit of a charitable,
nonprofit, or community event identified in paragraph (c) of this
section are not subject to the certification requirements of part 119
or the drug and alcohol testing requirements in part 121, appendices I
and J, of this chapter, provided the following conditions are satisfied
and the limitations in paragraphs (c) and (d) are not exceeded:
[[Page 6911]]
(1) The flight is nonstop and begins and ends at the same airport
and is conducted within a 25-statute mile radius of that airport;
(2) The flight is conducted from a public airport that is adequate
for the airplane or helicopter used, or from another location the FAA
approves for the operation;
(3) The airplane or helicopter has a maximum of 30 seats, excluding
each crewmember seat, and a maximum payload capacity of 7,500 pounds;
(4) The flight is not an aerobatic or a formation flight;
(5) Each airplane or helicopter holds a standard airworthiness
certificate, is airworthy, and is operated in compliance with the
applicable requirements of subpart E of this part;
(6) Each flight is made during day VFR conditions;
(7) Reimbursement of the operator of the airplane or helicopter is
limited to that portion of the passenger payment for the flight that
does not exceed the pro rata cost of owning, operating, and maintaining
the aircraft for that flight, which may include fuel, oil, airport
expenditures, and rental fees;
(8) The beneficiary of the funds raised is not in the business of
transportation by air;
(9) A private pilot acting as pilot in command has at least 500
hours of flight time;
(10) Each flight is conducted in accordance with the safety
provisions of part 136, subpart A of this chapter; and
(11) Flights are not conducted over a national park, unit of a
national park, or abutting tribal lands, unless the operator has
secured a letter of agreement from the FAA, as specified under subpart
B of part 136 of this chapter, and is operating in accordance with that
agreement during the flights.
(c) (1) Passenger-carrying flights or series of flights are limited
to a total of four charitable events or non-profit events per year,
with no event lasting more than three consecutive days.
(2) Passenger-carrying flights or series of flights are limited to
one community event per year, with no event lasting more than three
consecutive days.
(d) Pilots and sponsors of events described in this section are
limited to no more than 4 events per calendar year.
(e) At least seven days before the event, each sponsor of an event
described in this section must furnish to the FAA Flight Standards
District Office with jurisdiction over the geographical area where the
event is scheduled:
(1) A signed letter detailing the name of the sponsor, the purpose
of the event, the date and time of the event, the location of the
event, all prior events under this section participated in by the
sponsor in the current calendar year;
(2) A photocopy of each pilot in command's pilot certificate,
medical certificate, and logbook entries that show the pilot is current
in accordance with Sec. Sec. 61.56 and 61.57 of this chapter and that
any private pilot has at least 500 hours of flight time; and
(3) A signed statement from each pilot that lists all prior events
under this section in which the pilot has participated during the
current calendar year.
0
6. Add Sec. 91.147 to read as follows:
Sec. 91.147 Passenger carrying flights for compensation or hire.
Each Operator conducting passenger-carrying flights for
compensation or hire must meet the following requirements unless all
flights are conducted under Sec. 91.146.
(a) For the purposes of this section and for drug and alcohol
testing, Operator means any person conducting nonstop passenger-
carrying flights in an airplane or helicopter for compensation or hire
in accordance with Sec. Sec. 119.1(e)(2), 135.1(a)(5), or 121.1(d), of
this chapter that begin and end at the same airport and are conducted
within a 25-statute mile radius of that airport.
(b) An Operator must comply with the safety provisions of part 136,
subpart A of this chapter, and apply for and receive a Letter of
Authorization from the Flight Standards District Office nearest to its
principal place of business by September 11, 2007.
(c) Each application for a Letter of Authorization must include the
following information:
(1) Name of Operator, agent, and any d/b/a (doing-business-as)
under which that Operator does business;
(2) Principal business address and mailing address;
(3) Principal place of business (if different from business
address);
(4) Name of person responsible for management of the business;
(5) Name of person responsible for aircraft maintenance;
(6) Type of aircraft, registration number(s), and make/model/
series; and
(7) An Antidrug and Alcohol Misuse Prevention Program registration.
(d) The Operator must register and implement its drug and alcohol
testing programs in accordance with part 121, appendices I and J, of
this chapter.
(e) The Operator must comply with the provisions of the Letter of
Authorization received.
PART 119--CERTIFICATION: AIR CARRIERS AND COMMERCIAL OPERATORS
0
7. The authority citation for part 119 continues to read as follows:
Authority: 49 U.S.C. 106(g), 1153, 40101, 40102, 40103, 40113,
44105, 44106, 44111, 44701-44717, 44722, 44901, 44903, 44904, 44906,
44912, 44914, 44936, 44938, 46103, 46105.
0
8. Effective September 11, 2007, amend Sec. 119.1 by revising
paragraph (e)(2) to read as follows:
Sec. 119.1 Applicability.
* * * * *
(e) * * *
(2) Nonstop Commercial Air Tours conducted after September 11,
2007, in an airplane or helicopter having a standard airworthiness
certificate and passenger-seat configuration of 30 seats or fewer and a
maximum payload capacity of 7,500 pounds or less that begin and end at
the same airport, and are conducted within a 25-statute mile radius of
that airport, in compliance with the Letter of Authorization issued
under Sec. 91.147 of this chapter. For nonstop Commercial Air Tours
conducted in accordance with part 136, subpart B of this chapter,
National Parks Air Tour Management, the requirements of part 119 of
this chapter apply unless excepted in Sec. 136.37(g)(2). For Nonstop
Commercial Air Tours conducted in the vicinity of the Grand Canyon
National Park, Arizona, the requirements of SFAR 50-2, part 93, subpart
U, and part 119 of this chapter, as applicable, apply.
* * * * *
0
9. Amend Sec. 119.3 by adding the following definition:
Sec. 119.3 Definitions.
* * * * *
Commercial air tour means a flight conducted for compensation or
hire in an airplane or helicopter where a purpose of the flight is
sightseeing. The FAA may consider the following factors in determining
whether a flight is a commercial air tour:
(1) Whether there was a holding out to the public of willingness to
conduct a sightseeing flight for compensation or hire;
(2) Whether the person offering the flight provided a narrative
that referred to areas or points of interest on the surface below the
route of the flight;
(3) The area of operation;
(4) How often the person offering the flight conducts such flights;
(5) The route of flight;
(6) The inclusion of sightseeing flights as part of any travel
arrangement package;
[[Page 6912]]
(7) Whether the flight in question would have been canceled based
on poor visibility of the surface below the route of the flight; and
(8) Any other factors that the FAA considers appropriate.
* * * * *
PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS
0
10. The authority citation for part 121 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 45101-45105, 46105.
0
11. Effective September 11, 2007, amend Sec. 121.1 by revising
paragraph (d) introductory text to read as follows:
Sec. 121.1 Applicability.
* * * * *
(d) Nonstop Commercial Air Tours conducted for compensation or hire
in accordance with Sec. 119.1(e)(2) of this chapter must comply with
drug and alcohol requirements in Sec. Sec. 121.455, 121.457, 121.458
and 121.459, and with the provisions of part 136, subpart A of this
chapter by September 11, 2007. An operator who does not hold an air
carrier certificate or an operating certificate is permitted to use a
person who is otherwise authorized to perform aircraft maintenance or
preventive maintenance duties and who is not subject to anti-drug and
alcohol misuse prevention programs to perform--
* * * * *
PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND OPERATIONS
0
12. The authority citation for part 135 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44709,
44711-44713, 44715-44717, 44722.
0
13. Effective September 11, 2007, amend Sec. 135.1 by revising
paragraph (a)(5) and adding a new paragraph (a)(8) to read as follows:
Sec. 135.1 Applicability.
(a) * * *
(5) Nonstop Commercial Air Tour flights conducted for compensation
or hire in accordance with Sec. 119.1(e)(2) of this chapter that begin
and end at the same airport and are conducted within a 25-statute-mile
radius of that airport; provided further that these operations must
comply only with the drug and alcohol testing requirements in
Sec. Sec. 135.249, 135.251, 135.253, 135.255, and 135.353; and with
the provisions of part 136, subpart A, and Sec. 91.147 of this chapter
by September 11, 2007.
* * * * *
(8) Commercial Air tours conducted by holders of operations
specifications issued under this part must comply with the provisions
of part 136, Subpart A of this chapter by September 11, 2007.
* * * * *
0
14. Amend Sec. 135.1 by removing paragraph (c), redesignating
paragraph (d) as paragraph (c), and revising new paragraph (c)
introductory text to read as follows:
Sec. 135.1 Applicability.
* * * * *
(c) An operator who does not hold a part 119 certificate and who
operates under the provisions of Sec. 91.147 of this chapter is
permitted to use a person who is otherwise authorized to perform
aircraft maintenance or preventive maintenance duties and who is not
subject to anti-drug and alcohol misuse prevent programs to perform--
* * * * *
PART 136--COMMERCIAL AIR TOURS AND NATIONAL PARKS AIR TOUR
MANAGEMENT
0
15. The authority citation for part 136 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 40119, 44101, 44701, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 46105.
0
16. Revise the heading of part 136 to read as set forth above.
0
17. Redesignate existing Sec. Sec. 136.1, 136.3, 136.5, 136.7, 136.9,
and 136.11 as new subpart B consisting of Sec. Sec. 136.31, 136.33,
136.35, 136.37, 136.39, and 136.41, respectively, and reserve
Sec. Sec. 136.43 through 136.49.
0
18. Add a heading for new subpart B of part 136 consisting of newly
designated Sec. Sec. 136.31, 136.33, 136.35, 136.37, 136.39, and
136.41 to read as follows:
Subpart B--National Parks Air Tour Management
0
19. In new subpart B of part 136, remove the words ``this part'' and
replace with the words ``this subpart'' in the following paragraphs:
136.31(a), 136.31(b), 136.31(b)(2), 136.31(c), introductory text in
136.33, 136.33(d)(2), 136.37(d), and 136.37(e).
Subpart C [Added]
0
20. Add new Subpart C, titled ``Grand Canyon National Park,'' and
reserve sections 136.51 through 136.69.
0
21. Add new subpart A to read as follows:
Subpart A--National Air Tour Safety Standards
Sec.
136.1 Applicability and definitions.
136.3 Letters of Authorization.
136.5 Additional requirements for Hawaii.
136.7 Passenger briefings.
136.9 Life preservers for over water.
136.11 Helicopter floats for over water.
136.13 Helicopter performance plan and operations.
136.15-136.29 [Reserved]
Sec. 136.1 Applicability and definitions.
(a) This subpart applies to each person operating or intending to
operate a commercial air tour in an airplane or helicopter and, when
applicable, to all occupants of the airplane or helicopter engaged in a
commercial air tour. When any requirement of this subpart is more
stringent than any other requirement of this chapter, the person
operating the commercial air tour must comply with the requirement in
this subpart.
(b) As of September 11, 2007, this subpart is applicable to:
(1) Part 121 or 135 operators conducting a commercial air tour and
holding a part 119 certificate;
(2) Part 91 operators conducting flights as described in Sec.
119.1(e)(2); and
(3) Part 91 operators conducting flights as described in 14 CFR
91.146
(c) This subpart is not applicable to operations conducted in
balloons, gliders (powered or un-powered), parachutes (powered or un-
powered), gyroplanes, or airships.
(d) For the purposes of this subpart the following definitions
apply:
Commercial Air Tour means a flight conducted for compensation or
hire in an airplane or helicopter where a purpose of the flight is
sightseeing. The FAA may consider the following factors in determining
whether a flight is a commercial air tour for purposes of this subpart:
(1) Whether there was a holding out to the public of willingness to
conduct a sightseeing flight for compensation or hire;
(2) Whether the person offering the flight provided a narrative
that referred to areas or points of interest on the surface below the
route of the flight;
(3) The area of operation;
(4) How often the person offering the flight conducts such flights;
(5) The route of the flight;
(6) The inclusion of sightseeing flights as part of any travel
arrangement package;
(7) Whether the flight in question would have been canceled based
on
[[Page 6913]]
poor visibility of the surface below the route of the flight; and
(8) Any other factors that the FAA considers appropriate.
Commercial Air Tour operator means any person who conducts a
commercial air tour.
Life preserver means a flotation device used by an aircraft
occupant if the aircraft ditches in water. If an inflatable device, it
must be un-inflated and ready for its intended use once inflated. In
evaluating whether a non-inflatable life preserver is acceptable to the
FAA, the operator must demonstrate to the FAA that such a preserver can
be used during an evacuation and will allow all passengers to exit the
aircraft without blocking the exit. Each occupant must have the
physical capacity to wear and inflate the type of device used once
briefed by the commercial air tour operator. Seat cushions do not meet
this definition.
Raw terrain means any area on the surface, including water, devoid
of any person, structure, vehicle, or vessel.
Shoreline means that area of the land adjacent to the water of an
ocean, sea, lake, pond, river or tidal basin that is above the high
water mark and excludes land areas unsuitable for landing such as
vertical cliffs or land intermittently under water during the
particular flight.
Suitable landing area for helicopters means an area that provides
the operator reasonable capability to land without damage to equipment
or injury to persons. Suitable landing areas must be site-specific,
designated by the operator, and accepted by the FAA. These site-
specific areas would provide an emergency landing area for a single-
engine helicopter or a multiengine helicopter that does not have the
capability to reach a safe landing area after an engine power loss.
(e) In an in-flight emergency requiring immediate action, the pilot
in command may deviate from any rule of this subpart to the extent
required to meet that emergency.
Sec. 136.3 Letters of Authorization.
Operators subject to this subpart who have Letters of Authorization
may use the procedures described in 14 CFR 119.51 to amend or have the
FAA reconsider those Letters of Authorization.
Sec. 136.5 Additional requirements for Hawaii.
No person may conduct a commercial air tour in the State of Hawaii
unless they comply with the additional requirements and restrictions in
appendix A to part 136.
Sec. 136.7 Passenger briefings.
(a) Before takeoff each pilot in command shall ensure that each
passenger has been briefed on the following:
(1) Procedures for fastening and unfastening seatbelts;
(2) Prohibition on smoking; and
(3) Procedures for opening exits and exiting the aircraft.
(b) For flight segments over water beyond the shoreline, briefings
must also include:
(1) Procedures for water ditching;
(2) Use of required life preservers; and
(3) Procedures for emergency exit from the aircraft in the event of
a water landing.
Sec. 136.9 Life preservers for over water.
(a) Except as provided in paragraphs (b) or (c) of this section,
the operator and pilot in command of commercial air tours over water
beyond the shoreline must ensure that each occupant is wearing a life
preserver from before takeoff until flight is no longer over water.
(b) The operator and pilot in command of a commercial air tour over
water beyond the shoreline must ensure that a life preserver is readily
available for its intended use and easily accessible to each occupant
if:
(1) The aircraft is equipped with floats; or
(2)The airplane is within power-off gliding distance to the
shoreline for the duration of the time that the flight is over water.
(3)The aircraft is a multi engine that can be operated with the
critical engine inoperative at a weight that will allow it to climb, at
least 50 feet a minute, at an altitude of 1,000 feet above the surface,
as provided in the Airplane Flight Manual or the Rotorcraft Flight
Manual, as appropriate.
(c) No life preserver is required if the overwater operation is
necessary only for takeoff or landing.
Sec. 136.11 Helicopter floats for over water.
(a) A helicopter used in commercial air tours over water beyond the
shoreline must be equipped with fixed floats or an inflatable flotation
system adequate to accomplish a safe emergency ditching, if--
(1) It is a single-engine helicopter; or
(2) It is a multi-engine helicopter that cannot be operated with
the critical engine inoperative at a weight that will allow it to
climb, at least 50 feet a minute, at an altitude of 1,000 feet above
the surface, as provided in the Rotorcraft Flight Manual (RFM).
(b) Each helicopter that is required to be equipped with an
inflatable flotation system must have:
(1) The activation switch for the flotation system on one of the
primary flight controls, and
(2) The flotation system armed when the helicopter is over water
and is flying at a speed that does not exceed the maximum speed
prescribed in the Rotorcraft Flight Manual for flying with the
flotation system armed.
(c) Fixed floats or an inflatable flotation system is not required
for a helicopter under this section if:
(1) The helicopter is over water only during the takeoff or landing
portion of the flight, or
(2) The helicopter is operated within power-off gliding distance to
the shoreline for the duration of the flight and each occupant is
wearing a life preserver from before takeoff until the aircraft is no
longer over water.
(d) Air tour operators required to comply with paragraphs (a) and/
or (b) of this section must meet these requirements on or before
September 5, 2008.
Sec. 136.13 Helicopter performance plan and operations.
(a) Each operator must complete a performance plan before each
helicopter commercial air tour, or flight operated under 14 CFR 91.146
or 91.147. The pilot in command must review for accuracy and comply
with the performance plan on the day the flight is flown. The
performance plan must be based on the information in the Rotorcraft
Flight Manual (RFM) for that helicopter, taking into consideration the
maximum density altitude for which the operation is planned, in order
to determine:
(1) Maximum gross weight and center of gravity (CG) limitations for
hovering in ground effect;
(2) Maximum gross weight and CG limitations for hovering out of
ground effect; and
(3) Maximum combination of weight, altitude, and temperature for
which height/velocity information in the RFM is valid.
(b) Except for the approach to and transition from a hover for the
purpose of takeoff and landing, or during takeoff and landing, the
pilot in command must make a reasonable plan to operate the helicopter
outside of the caution/warning/avoid area of the limiting height/
velocity diagram.
(c) Except for the approach to and transition from a hover for the
purpose of takeoff and landing, during takeoff and landing, or when
necessary for safety of flight, the pilot in command must operate the
helicopter in compliance with the plan described in paragraph (b) of
this section.
[[Page 6914]]
Sec. Sec. 136.15-136.29 [Reserved]
0
22. Add new appendix A to part 136 as follows:
Appendix A to Part 136--Special Operating Rules for Air Tour Operators
in the State of Hawaii
Section 1. Applicability. This appendix prescribes operating
rules for airplane and helicopter visual flight rules air tour
flights conducted in the State of Hawaii under 14 CFR parts 91, 121,
and 135. This appendix does not apply to:
(a) Operations conducted under 14 CFR part 121 in airplanes with
a passenger seating configuration of more than 30 seats or a payload
capacity of more than 7,500 pounds.
(b) Flights conducted in gliders or hot air balloons.
Section 2. Definitions. For the purposes of this appendix:
``Air tour'' means any sightseeing flight conducted under visual
flight rules in an airplane or helicopter for compensation or hire.
``Air tour operator'' means any person who conducts an air tour.
Section 3. Helicopter flotation equipment. No person may conduct
an air tour in Hawaii in a single-engine helicopter beyond the shore
of any island, regardless of whether the helicopter is within
gliding distance of the shore, unless:
(a) The helicopter is amphibious or is equipped with floats
adequate to accomplish a safe emergency ditching and approved
flotation gear is easily accessible for each occupant; or
(b) Each person on board the helicopter is wearing approved
flotation gear.
Section 4. Helicopter performance plan. Each operator must
complete a performance plan before each helicopter air tour flight.
The performance plan must be based on the information in the
Rotorcraft Flight Manual (RFM), considering the maximum density
altitude for which the operation is planned for the flight to
determine the following:
(a) Maximum gross weight and center of gravity (CG) limitations
for hovering in ground effect;
(b) Maximum gross weight and CG limitations for hovering out of
ground effect; and,
(c) Maximum combination of weight, altitude, and temperature for
which height-velocity information in the RFM is valid.
The pilot in command (PIC) must comply with the performance
plan.
Section 5. Helicopter Operating Limitations. Except for approach
to and transition from a hover, and except for the purpose of
takeoff and landing, the PIC shall operate the helicopter at a
combination of height and forward speed (including hover) that would
permit a safe landing in event of engine power loss, in accordance
with the height-speed envelope for that helicopter under current
weight and aircraft altitude.
Section 6. Minimum flight altitudes. Except when necessary for
takeoff and landing, or operating in compliance with an air traffic
control clearance, or as otherwise authorized by the Administrator,
no person may conduct an air tour in Hawaii:
(a) Below an altitude of 1,500 feet above the surface over all
areas of the State of Hawaii, and,
(b) Closer than 1,500 feet to any person or property; or,
(c) Below any altitude prescribed by federal statute or
regulation.
Section 7. Passenger briefing. Before takeoff, each PIC of an
air tour flight of Hawaii with a flight segment beyond the ocean
shore of any island shall ensure that each passenger has been
briefed on the following, in addition to requirements set forth in
14 CFR 91.107, 121.571, or 135.117:
(a) Water ditching procedures;
(b) Use of required flotation equipment; and
(c) Emergency egress from the aircraft in event of a water
landing.
Issued in Washington, DC, on December 22, 2006.
Marion C. Blakey,
Administrator.
[FR Doc. 07-580 Filed 2-8-07; 11:42 am]
BILLING CODE 4910-13-P