6884 Federal Register / Vol. 72, No. 29 / Tuesday, February 13, 2007 / Rules and Regulations 

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. 

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 

§§ 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 §§ 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; email: 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 nonprofit, and a community event? 

3. The Four-Event Limit for Charitable and 

Non-Profit Organizations and the OneEvent 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 


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Federal Register / Vol. 72, No. 29 / Tuesday, February 13, 2007 / Rules and Regulations 6885 

1The 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. 

2The 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). 3Other than at most national parks where flights 

are limited to not more than five per month through 

§ 136.37. 

4The 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. 

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: 

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 

§ 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 §§ 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 § 91.147). 

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 § 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 § 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 


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6886 Federal Register / Vol. 72, No. 29 / Tuesday, February 13, 2007 / Rules and Regulations 

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 § 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. 

This group was previously allowed to 

operate without drug and alcohol testing 

requirements through individual 

exemptions. The language from those 

exemptions is incorporated into 

§ 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 § 119.1 will 

not be adopted. The 25-mile 

exception remains in §§ 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 § 136.13, final § 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 § 136.1. 

—Helicopter performance plan 

(proposed § 136.17) and Helicopter 

operating limitations (proposed 

§ 136.19) are merged (final § 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. 

Regulatory section Before this rule After this rule 

PART 61 

Section 61.113 ......... Paragraph (d) of this section provided 

for the 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.

Section 61.113 now directs the reader to 91.146. 

PART 91 

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. 


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Federal Register / Vol. 72, No. 29 / Tuesday, February 13, 2007 / Rules and Regulations 6887 

Regulatory section Before this rule After this rule 

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. 

PART 119 

Section 119.1 ........... This section prescribes Applicability, 

and paragraph (e)(2) describes the 

‘‘25-mile exception’’ cited in the final 

rule.

Paragraph (e)(2) remains largely the same. The differences in the final rule 

are: 

1. The paragraph used to refer to ‘‘sightseeing flights,’’ (undefined) and now 

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. 

PART 121 

Section 121.1 ........... This section prescribes Applicability for 

Part 121. Paragraph (d) addresses 

sightseeing flights.

Paragraph (d) is amended to replace the term ‘‘sightseeing’’ with ‘‘Commercial 

Air Tours.’’ This section also requires compliance with part 136, subpart A 

(National 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). 

PART 135 

Section 135.1 ........... This section prescribes Applicability for 

Part 135. Paragraph (a)(5) addresses sightseeing flights, and paragraphs (c) and (d) defined ‘‘operator’’ 

and drug and alcohol testing requirements.

1. Paragraph (a)(5) is amended to replace the term ‘‘sightseeing’’ with ‘‘Commercial Air Tours.’’ Also, the paragraph now makes reference to 119.1, and 

requires compliance with part 136, subpart A (National Air Tour Safety 

Standards). 

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. 

PART 136 

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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6888 Federal Register / Vol. 72, No. 29 / Tuesday, February 13, 2007 / Rules and Regulations 

5We have imported several conditions for private 

pilot operations in support of charity, non-profit, 

and community event flights from approximately 

100 existing exemptions. 

Regulatory section Before this rule After this rule 

Miscellaneous Requirements 

SFAR 71 ................... Was a separate rule located in front of 

Part 91.

SFAR 71 has always been attached to 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 SFAR located in front of Part 91, and Part 

93, Subpart U is where it is.

These regulations pertaining to air traffic routes and guidance in Grand Canyon National Park remain unchanged. We reserve ‘‘Subpart C’’ in Part 136 

for whenever we decide to co-locate these regulations with other Commercial Air Tour regulations. 

III. Comment Summary 

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 onesize-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 § 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 


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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 


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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 § 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 

§ 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 


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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 longstanding 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 § 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 otherthan-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 exmilitary aircraft and foreign typecertificated 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-sizefits-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 


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6See 14 CFR 91.313, 91.315, 91.317, and 91.319. 

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 

§ 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. 

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 § 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 

§ 91.147, Passenger carrying flights for 

compensation or hire (Not otherwise 

covered by § 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 

§ 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.’’


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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 § 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, § 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 § 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 §§ 135.117 

(briefing), 135.183 (over water), and 

§§ 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 § 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 nonprofit organizations, currently operating 

safely under exemption letters, from this 

rule. EB Air commented that this 


jlentini on PROD1PC65 with RULES3
6894 Federal Register / Vol. 72, No. 29 / Tuesday, February 13, 2007 / Rules and Regulations 

7Today, the FAA issues exemptions for World 

War II era airplanes with Experimental and 

Restricted Category airworthiness certificates that 

include extensive maintenance and operational 

requirements. 

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 twoplane 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 § 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 § 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. 

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 

§ 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 § 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 


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Federal Register / Vol. 72, No. 29 / Tuesday, February 13, 2007 / Rules and Regulations 6895 

8The operation was subject to EAA’s Exemption 

No. 7830 for ‘‘Young Eagles’’ and is discussed in 

more detail later in this preamble. 

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 § 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. 

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 § 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 §§ 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 § 91.146. Part 91 operators who 

are uncomfortable with the limitations 

in § 91.146 and wish to continue flights 

benefiting charities, nonprofit 

organizations, and individuals or 

organizations supporting a community 

event may use § 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 


jlentini on PROD1PC65 with RULES3
6896 Federal Register / Vol. 72, No. 29 / Tuesday, February 13, 2007 / Rules and Regulations 

9Exemption 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. 

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 §§ 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 § 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 nonprofit 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 (§ 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 

§ 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 § 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 fourVerDate Aug<31>2005 17:10 Feb 12, 2007 Jkt 211001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM 13FER3

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Federal Register / Vol. 72, No. 29 / Tuesday, February 13, 2007 / Rules and Regulations 6897 

10Exemption No. 7112 was originally issued to 

AOPA on February 3, 2000. 

event limitation to be new or 

unexpected. 

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 § 91.146. In creating the 

new § 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: 

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 § 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 § 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 

§ 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 § 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 § 91.146 may operate in 

accordance with § 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 § 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 


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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 

§ 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 

§ 61.56 for a flight review and § 61.57 

for takeoffs and landings. 

f. Hold a current third-class medical 

certificate in accordance with 

§ 61.23(a)(3). 

g. Meet the requirements of 

§ 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 § 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 § 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 

§ 135.243, Pilot in Command 

Qualifications, requires a minimum 

pilot qualification to conduct part 135 

operations. It involves the most noncomplex part 135 flight: single engine, 

day, VFR, single pilot. § 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 § 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 

§ 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 (§ 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 (§ 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 


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11 It is possible for a pilot to be a sponsor. 

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 § 91.146(e). The 1,000 

chapters of EAA may each qualify as a 

sponsor.11

6. Life Flights, Angel Flights, and 

‘‘Emergency or Medical Service’’

We proposed amending § 61.113(d)(1) 

through (d)(7) in the NPRM to create 

two new sections numbered 

§ 61.113(d)(1) and § 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 ‘‘passengercarrying airlift’’ in § 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 (§ 61.113 and § 91.146). 

In addition, the FAA erred when 

writing the NPRM. In the NPRM, we 

presented § 61.113 and proposed 

allowing private pilots to fly point-topoint and beyond 25 miles from the 

departure airport (in proposed 

§ 61.113(d)(1)), carrying passengers for 

compensation or hire. 

Flights previously conducted under 

the provisions of § 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 § 61.113, as interpreted, has always 

been to raise money for an IRSrecognized 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 ondemand 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 pointto-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 § 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 § 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 

§ 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 § 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 

§ 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 


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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 

§ 91.147 (Passenger carrying flights for 

compensation or hire (Not otherwise 

covered by § 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 

§ 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 § 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 § 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 § 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 § 91.119 for 

minimum altitudes and standoff 

distances will continue to do so. A part 

135 operator who used § 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 § 136.5, 

‘‘Additional Requirements for Hawaii.’’

We have removed the separate section 

for Helicopter operating limits 

(proposed § 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 § 136.13). 

We completely eliminated the 

proposal in the NPRM for Deviation 

Procedures (proposed § 136.21) since we 

are not adopting the standoff, altitude 

and cloud clearance minima proposed 

in the NPRM. 

In summary, four sections (§§ 136.3–

136.9) were deleted; section (§ 136.3) 

has been added; section (§ 136.5) has 

been added for operations in Hawaii 

only; the section for helicopter 

performance plan (§ 136.17) and 

helicopter operating limitations 

(§ 136.19) have been merged into one 

section (§ 136.13); and one section for 

deviations (§ 136.21) has been deleted. 

We also added a new paragraph (e) to 

§ 136.1 to permit pilot deviation from 

part 136, subpart A in the event of an 

in-flight emergency. 

A. Applicability and Definitions 

(§ 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, § 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 (§ 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 


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Association was also concerned about 

the rule’s applicability to its operation. 

The U.S. Parachute Association was 

concerned with language proposed in 

§ 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 (§ 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 § 119.51. Section 

136.3 now allows amendment and 

reconsideration of LOAs through 

§ 119.51 as well. 

C. Minimum Altitudes, Standoff 

Distances, Visibility, and Cloud 

Clearance (§ 136.3–136.9 in the NPRM) 

In this final rule, the four sections 

proposed in the NPRM are eliminated 

and a new § 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 


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12The ‘‘manual’’ is FAA Order 1380.2A, Las 

Vegas FSDO Grand Canyon National Park Special 

Flight Rules Area Procedures Manual. 

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 FAAissued 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. 

E. Passenger Briefings (§ 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 

(§ 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 (§ 136.9) 

In this final rule, we define ‘‘Life 

Preserver’’ and ‘‘shoreline’’ in § 136.1 

for the purposes of part 136 subpart A. 

We prefer commercial air tour operators 


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Federal Register / Vol. 72, No. 29 / Tuesday, February 13, 2007 / Rules and Regulations 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 § 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 floatequipped 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 floatequipped, life preservers must only be 

available and accessible to each 

occupant but need not be worn by each 

occupant. 


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6904 Federal Register / Vol. 72, No. 29 / Tuesday, February 13, 2007 / Rules and Regulations 

13 Knowledge of performance applies to each 

make and model helicopter and under conditions 

of each flight to include density, altitude, and 

handling characteristics. 

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 (§ 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 

(§ 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. 

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 § 136.11(a)(2). The multiengine 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 

§ 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 (§ 136.13) 

The Helicopter performance plan 

(proposed § 136.17) and Helicopter 

Operating Limitations (proposed 

§ 136.19) are combined in the final rule 

in § 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 (§ 27.79) 

uses the term ‘‘height-speed envelope.’’

14 CFR part 29 uses the terms ‘‘heightvelocity envelope’’ (§ 29.87), and 

‘‘height-speed envelope’’ (§ 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 oneengine inoperative (autorotation in the 

case of single-engine helicopter) 

landings have not been demonstrated 

during certification. 

The final rule language in § 136.13 

uses the term ‘‘height/velocity 

information.’’ This information includes 


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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 § 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 § 136.17 of the NPRM, we 

proposed that operators develop a plan 

and operate within that plan. In § 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 § 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 

§ 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-engineinoperative 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 § 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 predeveloped 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 


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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, passengercarrying 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 


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14See Appendix Table 1. 

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. 

§ 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. § 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 


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and the $333,357 amount for most part 

135 operators. 

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 tradesensitive 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 


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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 × 

10 minutes each × $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 × 20 minutes each × $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 × 400 × 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 × 1253 × (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 × 556 × 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 × 3 minutes 

per flight = 1,697,400 minutes / 60 

minutes per hour = 28,290 hours) 

Initial cost = $1,176,864 (565,800 flights 

× $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

Category Initial hours Initial cost Ten year 

hours 

Ten year 

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 


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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 

■ 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 

■ 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. 

■ 2. Amend § 61.113 by revising 

paragraph (d) to read as follows: 

§ 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 

§ 91.146, if the sponsor and pilot 

comply with the requirements of 

§ 91.146. 

* * * * * 

PART 91—GENERAL OPERATING AND 

FLIGHT RULES 

■ 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 

■ 4. Remove SFAR No. 71 from part 91. 

■ 5. Add § 91.146 to read as follows: 

§ 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 nonprofit 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: 


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(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 §§ 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. 

■ 6. Add § 91.147 to read as follows: 

§ 91.147 Passenger carrying flights for 

compensation or hire. 

Each Operator conducting passengercarrying flights for compensation or hire 

must meet the following requirements 

unless all flights are conducted under 

§ 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 

§§ 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 

■ 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. 

■ 8. Effective September 11, 2007, 

amend § 119.1 by revising paragraph 

(e)(2) to read as follows: 

§ 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 § 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 § 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. 

* * * * * 

■ 9. Amend § 119.3 by adding the 

following definition: 

§ 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; 


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(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 

■ 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. 

■ 11. Effective September 11, 2007, 

amend § 121.1 by revising paragraph (d) 

introductory text to read as follows: 

§ 121.1 Applicability. 

* * * * * 

(d) Nonstop Commercial Air Tours 

conducted for compensation or hire in 

accordance with § 119.1(e)(2) of this 

chapter must comply with drug and 

alcohol requirements in §§ 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 

■ 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. 

■ 13. Effective September 11, 2007, 

amend § 135.1 by revising paragraph 

(a)(5) and adding a new paragraph (a)(8) 

to read as follows: 

§ 135.1 Applicability. 

(a) * * * 

(5) Nonstop Commercial Air Tour 

flights conducted for compensation or 

hire in accordance with § 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 

§§ 135.249, 135.251, 135.253, 135.255, 

and 135.353; and with the provisions of 

part 136, subpart A, and § 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. 

* * * * * 

■ 14. Amend § 135.1 by removing 

paragraph (c), redesignating paragraph 

(d) as paragraph (c), and revising new 

paragraph (c) introductory text to read 

as follows: 

§ 135.1 Applicability. 

* * * * * 

(c) An operator who does not hold a 

part 119 certificate and who operates 

under the provisions of § 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 

■ 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. 

■ 16. Revise the heading of part 136 to 

read as set forth above. 

■ 17. Redesignate existing §§ 136.1, 

136.3, 136.5, 136.7, 136.9, and 136.11 as 

new subpart B consisting of §§ 136.31, 

136.33, 136.35, 136.37, 136.39, and 

136.41, respectively, and reserve 

§§ 136.43 through 136.49. 

■ 18. Add a heading for new subpart B 

of part 136 consisting of newly 

designated §§ 136.31, 136.33, 136.35, 

136.37, 136.39, and 136.41 to read as 

follows: 

Subpart B—National Parks Air Tour 

Management 

■ 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] 

■ 20. Add new Subpart C, titled ‘‘Grand 

Canyon National Park,’’ and reserve 

sections 136.51 through 136.69. 

■ 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] 

§ 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 § 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 


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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 sitespecific areas would provide an 

emergency landing area for a singleengine 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 


jlentini on PROD1PC65 with RULES3
6914 Federal Register / Vol. 72, No. 29 / Tuesday, February 13, 2007 / Rules and Regulations 

§§ 136.15–136.29 [Reserved] 

■ 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 heightvelocity 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 


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