[Federal Register Volume 68, Number 204 (Wednesday, October 22, 2003)]
[Proposed Rules]
[Pages 60572-60591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-26104]



[[Page 60571]]

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Part III





Department of Transportation





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Federal Aviation Administration



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14 CFR Parts 61, 91, et al.



National Air Tour Safety Standards; Proposed Rule

  Federal Register / Vol. 68, No. 204 / Wednesday, October 22, 2003 / 
Proposed Rules  

[[Page 60572]]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 61, 91, 119, 121, 135, 136

[Docket No. FAA-1998-4521; Notice No. 03-10]
RIN 2120-AF07


National Air Tour Safety Standards

AGENCY: Federal Aviation Administration (FAA), DOT

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FAA is proposing national safety standards to govern 
commercial air tours (i.e., sightseeing). These safety standards are 
proposed as a result of accidents and incidents involving air tour 
operators and subsequent National Transportation Safety Board 
recommendations. The proposed rule is intended to increase the safety 
of commercial air tours on a national basis by requiring certification 
of air tour operators and by establishing new safety requirements.

DATES: Send your comments on or before January 20, 2004.

ADDRESSES: Address your comments to the Docket Management System, U.S. 
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., 
Washington, DC 20590-0001. You must identify the docket number FAA-
1998-4521 at the beginning of your comments, and you should submit two 
copies of your comments. If you wish to receive confirmation that FAA 
received your comments, include a self-addressed, stamped postcard.
    You may also submit comments through the Internet to http://dms.dot.gov. You may review the public docket containing comments to 
these proposed regulations in person in the Dockets Office between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
Dockets Office is on the plaza level of the NASSIF Building at the 
Department of Transportation at the above address. Also, you may review 
public dockets on the Internet at http://dms.dot.gov.

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; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: The FAA invites interested persons to 
participate in this rulemaking by submitting written comments, data, or 
views. We also invite comments relating to the economic, environmental, 
energy, or federalism impacts that might result from adopting the 
proposals in this document. The most helpful comments reference a 
specific portion of the proposal, explain the reason for any 
recommended change, and include supporting data. We ask that you send 
us two copies of written comments.
    We will file in the docket all comments we receive, as well as a 
report summarizing each substantive public contact with FAA personnel 
concerning this proposed rulemaking. The docket is available for public 
inspection before and after the comment closing date. If you wish to 
review the docket in person, go to the address in the ADDRESSES section 
of this preamble between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays. You may also review the docket using the 
Internet at the Web address in the ADDRESSES section.
    Before acting on this proposal, we will consider all comments we 
receive on or before the closing date for comments. We will consider 
comments filed late if it is possible to do so without incurring 
expense or delay. We may change this proposal in light of the comments 
we receive.
    If you want the FAA to acknowledge receipt of your comments on this 
proposal, include with your comments a pre-addressed, stamped postcard 
on which the docket number appears. We will stamp the date on the 
postcard and mail it to you.

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 (4521) of the 
Docket number shown at the beginning of this notice. Click on 
``search.''
    (3) On the next page, which contains the Docket summary information 
for the Docket you selected, click on the document number of the item 
you wish to view.
    You can also get an electronic copy using the Internet through the 
Office of Rulemaking's Web page at http://www.faa.gov/avr/armhome.htm 
or the Federal Register's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.
    You can also get a copy by submitting a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the docket number, notice number, or amendment number 
of this rulemaking.

I. Background

A. General Overview of Commercial Air Tours

    Commercial sightseeing flights over areas of scenic or general 
interest to passengers have increased considerably since the 1970s. 
During the peak growth years, the air tour industry estimates that 2 
million passengers flew annually on such flights. Sightseeing 
operations are conducted in all parts of the United States, over 
various types of scenic areas, including national parks, urban, 
coastal, and mountainous areas. The operators who conduct sightseeing 
flights as a regular part of their business are commonly known as air 
tour operators and their operations are often referred to as commercial 
air tours.
    Air tour operators typically are single-pilot operations that are 
conducted in airplanes or helicopters. While some commercial air tours 
are conducted in hot air balloons and gliders, this proposed rule is 
intended to regulate commercial air tours conducted in powered aircraft 
only. Commercial air tours are conducted in visual meteorological 
conditions (VMC), normally without radar coverage or traffic advisories 
from an air traffic control facility.
    Commercial air tours are often conducted in dense air traffic near 
popular scenic areas. These areas tend to be geographically limited in 
size. Air tour traffic typically is a mix of airplanes and helicopters, 
which have different flight characteristics (e.g., speed and 
maneuverability). As a result of these factors, pilots conducting air 
tours must use heightened vigilance and greater precision in 
navigation.
    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 of popular sites, commercial air tours normally are 
conducted at relatively low altitudes, between 500 and 1,000 feet above 
ground level (AGL). Flights conducted at these altitudes are close to 
ground obstructions and often are horizontal to high terrain. In 
addition, many air tour operators conduct flights over water. 
Currently, commercial air tours that are conducted beyond 25 statute 
miles of the departure airport, or over a unit of the national park 
system, must be certificated under Title 14 CFR part 119 to operate in 
accordance with

[[Page 60573]]

either part 121 or 135. Part 121 and part 135 contain operational, 
safety and training rules that are not limited to air tour operations. 
Exceptions to the certification requirements are contained in 14 CFR 
119.1(e). One of these exceptions, Sec.  119.1(e)(2), applies to non-
stop sightseeing flights conducted within 25 statute miles of the 
departure airport that takeoff and land at the same airport. Operators 
conducting flights under this exception are not required to be 
certificated under part 119 and are not subject to the operational 
requirements of either part 121 or 135. These excepted operations are 
subject only to the requirements of part 91.
    This proposed rule would seek to improve the overall safety of 
commercial air tours by requiring all air tour operators, with a 
limited exception for certain charitable and community events, to be 
certificated under part 119. Additionally the proposed rule would 
increase the overall safety of commercial air tours by establishing 
requirements for low-level flight, visibility limits and over water 
flights. The proposed rule is modeled on Special Federal Aviation 
Regulation (SFAR) 71, which currently governs the commercial air tour 
industry operating in Hawaii. During the 6 years from 1989 through 
1994, there were 18 air tour accidents in Hawaii, or an average of 3.46 
accidents per 100,000 flight hours. The number of accidents peaked at 8 
accidents in 1994. SFAR 71 was issued in September of 1994. There were 
8 accidents in the 6 years from 1995 through 2000, dropping to an 
average of 1.48 accidents per 100,000 flight hours. The FAA believes 
that SFAR 71 has improved the overall safety of the commercial air tour 
industry in Hawaii and now seeks to use its experience with this SFAR 
to improve commercial air tour safety throughout the United States. If 
this rulemaking is adopted, the rule will replace the requirements of 
SFAR 71 in Hawaii and apply throughout the country.

B. Accident History

    The commercial air tour industry experienced considerable growth 
from the 1970s through the mid-1990s. During that period of rapid 
growth, fatalities also increased. By improving the regulation of 
commercial air tours, the FAA hopes to reduce the number of fatalities 
and serious injuries.
    Currently, with the exception of commercial air tours conducted 
under Sec.  119.1(e)(2) (flights within 25 miles of the departing 
airport), all air tour operators must be certificated under 14 CFR part 
119 to operate in accordance with part 121 or 135. This certification 
process enables the FAA to exercise greater oversight of certificated 
operators. In contrast, flights conducted under Sec.  119.1(e)(2) are 
operated in accordance with the general aviation requirements of part 
91; the operators do not have to be certificated under part 119 and, 
thus, do not have to operate in accordance with the requirements of 
part 121 or 135. The requirements of part 121 and 135 are stricter than 
those of part 91. Parts 121 and 135 contain requirements for aircraft 
equipment performance and maintenance, crewmember training, crewmember 
flight and duty time limitations and rest requirements, reporting and 
recordkeeping and flight locating.
    As the commercial air tour industry has grown, the number of 
flights conducted under the Sec.  119.1(e)(2) exception has increased, 
as has the number of accidents. Between 1993 and 2000 there were 75 
accidents involving part 91 commercial air tours, resulting in 38 
fatalities, and 53 accidents involving part 135 commercial air tours, 
resulting in 72 fatalities. The accidents listed below involving part 
91 and 135 operators illustrate some of the safety issues raised by the 
National Transportation Safety Board (NTSB) that are addressed in this 
proposed rule. A few accidents outside of the 1993--2000 timeframe are 
listed because of the safety issues they show.
    (1) On May 20, 1989, an Aerospatiale AS350D helicopter, which was 
touring Waialae Falls in Hawaii with six passengers on board, crashed. 
After hovering at a low altitude near the falls, the pilot began a 
pedal turn and forward movement for the initial climb away from the 
falls. The main rotor revolutions per minute (rpm) decayed, and the 
pilot turned back toward the upper falls, where he thought he could 
land. However, the helicopter settled into a ravine, damaging the 
helicopter and injuring the pilot and passengers. The National 
Transportation Safety Board (NTSB) determined that the probable cause 
of the accident was the pilot's failure to maintain rotor rpm while 
turning and taking off from a hover with a relatively heavy gross 
weight. Additional factors related to the accident were the high-
density altitude and rough/uneven (rocky) terrain in the emergency 
landing area.
    (2) On June 11, 1989, a Beechcraft BE-H18, on a revenue air tour 
flight conducted under part 135, crashed in the Waipio Valley of the 
Kohala Mountains on the island of Hawaii. Its destination was Maui. The 
flight was conducted under visual flight rules (VFR). The pilot and 10 
passengers were fatally injured, and the airplane was destroyed. The 
NTSB found that the pilot of the airplane flight entered an enclosed 
canyon and proceeded beyond a point from which a safe exit could be 
made.
    (3) On April 22, 1992, a Beech Model E18S (BE-18) collided with a 
mountain on the island of Maui, Hawaii, while on a commercial air tour 
from Hilo to Honolulu, Hawaii. The flight was conducted under VFR as an 
on-demand charter flight. The pilot and all eight passengers sustained 
fatal injuries and the airplane was destroyed. The NTSB found that the 
primary cause of the accident was that the captain mistakenly deviated 
from his intended route because he did not use his navigation charts to 
confirm the correct heading. The mountain was obscured by mist, and the 
pilot did not see it until it was too late. While the pilot was 
certificated and medically qualified, he had falsified his employment 
history and did not possess the minimum hours of experience stipulated 
by the company to qualify as a pilot.
    (4) On September 29, 1992, a U.S.-registered helicopter operating 
under part 91 on a commercial air tour collided in flight with a 
commercial Canadian air tour helicopter over Niagara Falls, Canada. The 
four occupants of the U.S. helicopter were fatally injured.
    (5) On January 25, 1993, a Fairchild Hiller helicopter was 
destroyed during a commercial air tour conducted under part 91 at 
Volcanoes National Park, Hawaii. Before the accident, the pilot had 
been hovering near the shoreline, between 100 and 150 feet above sea 
level. When the pilot attempted to resume forward flight, he 
experienced a total left pedal failure. The pilot lost control and the 
helicopter landed in the ocean and sank. The helicopter was not 
equipped with floats and the pilot and four passengers were not wearing 
life preservers. Only the pilot survived. The NTSB found that the 
operator's failure to provide the passengers with life preservers was 
one factor contributing to their deaths.
    (6) On July 14, 1994, two commercial air tour accidents occurred in 
the State of Hawaii. Both involved Aerospatiale AS350-series 
helicopters and forced landings in the water adjacent to the shore. The 
first accident occurred off the island of Kauai. The flight was 
proceeding parallel to the shoreline approximately 9 miles west of the 
community of Hanalei when a total loss of power occurred. The pilot 
performed an autorotation to the water approximately 150 feet from the 
shoreline, which was at the base of a cliff. All occupants exited the 
helicopter

[[Page 60574]]

uninjured but without wearing life preservers. Three of the occupants, 
including the pilot, drowned when they were unable to climb onto the 
rocks along the shoreline. The helicopter, which was not equipped with 
floats, sank and was recovered the following day. Life preservers were 
found aboard the helicopter, located in their containers beneath each 
seat. Surviving passengers said that they had not been briefed that 
life preservers were aboard. The NTSB determined that the probable 
causes of the accident and fatalities were `` . . . failure of the 
engine-driven fuel pump, which resulted in the loss of power, and the 
lack of aircraft flotation equipment.'' Related factors were `` . . . 
flight over water adjacent to terrain that afforded no suitable forced 
landing site, and lack of passenger briefing by the operator on the 
location and operation of life preservers.''
    The second accident occurred off the island of Molokai. The flight 
had been scheduled to tour the island of Maui. However, after receiving 
information from other tour pilots that the weather conditions along 
the planned route were deteriorating, the pilot decided to take the 
passengers to Moloka'i. According to the pilot, the helicopter was in a 
hover approximately 50 feet above the water and 150 feet from the 
shoreline to allow passengers to view a large sea cave when the pilot 
sensed a slowing of the engine/rotor system. The helicopter was 
equipped with inflatable floats, which the pilot activated as the 
helicopter entered the water. In order to activate the floats the pilot 
had to remove his hand from the collective control. According to the 
NTSB, this action may have led to a hard impact. Of the seven 
occupants, the passenger who occupied the forward left seat received 
serious injuries due to water impact and the other six occupants were 
uninjured. After stabilizing on the surface, the occupants donned life 
preservers and swam to shore, where they spent the night before being 
rescued. The NTSB determined that the probable cause of the accident 
was `` * * * the pilot's failure to properly monitor power required 
versus power available to maintain rotor rpm, resulting in rotor rpm 
decay and a forced landing.'' Related factors were `` * * * the pilot's 
change of the tour route without notifying the company, which delayed 
rescue, and the location of the arm and fire switches for the flotation 
equipment, which required the pilot to remove his hand from the 
collective control to activate that equipment.''
    (7) On July 3, 1997 an airplane lost power near Skagway, Alaska 
while on an air tour to view glaciers. The airplane ditched about 100' 
from shore near small cliffs. There were five passengers in addition to 
the pilot. The passengers exited the airplane without life preservers 
into 39-degree water. The pilot threw one life preserver out and exited 
the airplane as it sank. The pilot and one passenger survived. The 
surviving passenger reported that her husband located the life 
preserver that was thrown. Her husband placed the life preserver over 
her head after they were both in the water. The passenger indicated she 
was not aware the preserver had an inflation cylinder. At one point the 
passenger noticed the mouth inflation tube on the life preserver when 
it bumped into her face. She attempted to blow air into the tube, and 
partially inflated the preserver. The surviving passenger did not 
recall any briefing about the location or use of the life preservers. 
Her husband, who was not wearing a life preserver, did not survive. No 
other life preservers were taken from the airplane. A nearby air tour 
helicopter arrived after the passengers were in the water and threw 
additional life preservers near the passengers. Two passengers drowned 
and two passengers were not found.
    (8) On August 24, 1997, a Waco YMF (biplane) crashed into the ocean 
off the coast of Ocean City, Maryland. The pilot and 2 passengers, who 
had purchased the 15-minute sightseeing flight, received fatal 
injuries. According to the NTSB, visual meteorological conditions (VMC) 
prevailed and the pilot had not filed a flight plan for the part 91 
flight. Numerous witnesses on the beach reported watching as the 
airplane maneuvered off shore. According to their accounts, the 
airplane was flying between 500 feet and 1,000 feet above the ocean. 
The witnesses stated that the airplane did two climbing turns, the 
first heading north, and the second heading south, with the flight path 
parallel to the shoreline. On a third climbing turn, heading north 
again, the airplane entered a tight spiral or spin at the top of the 
climb, and then the rotation stopped. The airplane had approximately a 
45-degree, nose-down attitude when it impacted the water. After the 
wreckage was recovered, a preliminary inspection revealed no mechanical 
anomalies.
    (9) On June 25, 1998, a Eurocopter AS-350-BA helicopter, operated 
by a Hawaiian air tour company crashed into rugged terrain in the 
Waialeale Canyon on the island of Kauai, Hawaii. The pilot and all five 
passengers received fatal injures, and the helicopter was destroyed. 
The flight departed from Lihue Airport. Approximately 42 minutes after 
departure, the pilot completed a position report. That report was the 
last known contact between the pilot and the tour operator. When the 
pilot failed to make further reports, a search was initiated. Searchers 
located the helicopter from the air, approximately 9 miles northwest of 
the Lihue Airport, where it struck steep terrain near the top of a 
ridge. Poor weather was reported in the area of the accident and some 
operators had cancelled flights on that day.
    (10) On July 21, 2000, a commercial air tour helicopter collided 
with mountainous terrain in the Iao Valley on the island of Maui. The 
impact site was located on the north face of a 2,900-foot-high 
mountain, with a slope estimated in excess of 60 degrees. The recorded 
radar data indicated that at 1019:47 the helicopter was at 3,700 feet 
and on a northerly track. About 5 seconds later the helicopter 
commenced a course reversal. Between 1019:52 and 1019:56, the 
helicopter completed the turn and began flying along a southerly track. 
The helicopter's location was last recorded by radar at 1020:06. At 
this time it had descended to 3,100 feet. The accident site was found 
about \1/8\-mile further south from this radar location. Three other 
helicopter pilots stated that they modified their tour routes to 
exclude the area flown by the accident pilot because of the inclement 
weather conditions they observed.
    (11) On August 25, 2000, an airplane on an air tour ditched in the 
Pacific Ocean while attempting an emergency landing at Hilo 
International Airport, Hawaii. When the pilot determined that he could 
not reach the airport, he instructed the passengers to don their life 
preservers and briefed them to prepare for ditching. After the airplane 
landed in the water, all passengers except one were able to exit the 
airplane and were reached by rescue personnel within 15 minutes. One 
passenger was missing and was subsequently located in the airplane 
under 80 feet of water.

C. The NTSB Report and Recommendations

    On June 1, 1995, the NTSB issued a special investigative report 
entitled, ``Safety of the Air Tour Industry in the United States'' 
(NTSB/SIR-95/01). The report is based on NTSB accident investigations 
and on information gained from two public hearings held during the week 
of October 19, 1994, in Phoenix, Arizona, and Honolulu, Hawaii. The 
Report explained the NTSB's concerns about the safety of the air tour 
industry in the United States. The Report focused on the adequacy of 
air tour regulations and the FAA's previous amendments to those

[[Page 60575]]

regulations, the use of emergency equipment, and the effectiveness of 
the FAA's oversight and certification of air tour operators.
    As a result of the special investigation, the NTSB developed six 
safety recommendations it presented to the FAA. These recommendations 
are designed to prevent future accidents and to enhance the potential 
for occupant survival if an accident does occur. These recommendations 
are as follows:
    Recommendation No. A-95-58. Develop and implement national 
standards by December 31, 1995, within 14 CFR part 135, or equivalent 
regulations, for all air tour operations with powered airplanes and 
rotorcraft to bring them under one set of standards with operations 
specifications and eliminate the exception currently contained in 14 
CFR Part 135.1 (reiteration of exception for non-stop sightseeing 
flights within 25 miles of the airport).
    Recommendation No. A-95-59. Require special conditions within the 
operations specifications established by A-95-58 for all air tour 
operators, similar to the special conditions contained in SFAR 50-2, 
SFAR 71, and FAA Handbook 8400.10 Bulletin 92-01, to accommodate 
localized airspace restrictions and other unique conditions for such 
operations.
    Recommendation No. A-95-60. Develop and issue appropriate 
definitions for key terms such as ``air tour,'' ``air tour operator,'' 
and ``suitable landing area.''
    Recommendation No. A-95-63. Require that all helicopters equipped 
with inflatable flotation systems have the activation switch for those 
systems located on one of the primary flight controls.
    Recommendation No. A-99-57. Require all occupants of single-engine 
airplanes and single-engine helicopters operated for hire (air taxi and 
air tour) to wear life preservers when the aircraft is operating over 
water, whether float-equipped or not, unless it is operated at an 
altitude that allows it to reach a suitable landing area in the case of 
an engine failure.
    Recommendation No. A-99-58. Require passenger briefings on ditching 
procedures and the use of required flotation equipment for all air taxi 
and air tour passenger flights that operate over water at an altitude 
that would not allow them to reach a suitable landing area, including 
those that operate less than 50 miles from the shoreline.

D. The FAA's Responses to the NTSB

    The FAA's specific responses to the NTSB's recommendations are as 
follows:
    NTSB Recommendation No. A-95-58 (Establish national standards for 
air tours). The FAA believes that this proposed rule would establish 
national standards for commercial air tours that would be supplemented 
by localized airspace restrictions. The FAA also proposes to eliminate 
the broad exception currently in Sec.  119.1(e)(2). Those operators 
conducting non-stop operations for either a charitable or community 
event within 25 miles of an airport would be exempted from the 
certification requirements of part 119, although they would still be 
subject to the safety regulation at new part 136, subpart A.
    NTSB Recommendation No. A-95-59 (Provide for localized airspace 
restrictions). The FAA already has adopted regulations pertaining to 
special areas that provide localized airspace restrictions and address 
issues specific to that locale and it anticipates that it would 
continue to do so as needed. Currently, commercial air tours operating 
in Hawaii are subject to SFAR 71. That SFAR will be replaced by this 
proposed rule, if the proposal is adopted. Commercial air tours 
operating in the Grand Canyon National Park (GCNP) currently are 
subject to the regulations in part 93, subpart U. All operators 
conducting commercial air tours at GCNP already are required to be 
certificated under part 119 to operate in accordance with either part 
121 or 135. The proposed rule would supplement the existing GCNP 
regulations by providing basic safety requirements that would apply to 
all commercial air tours, unless a different site-specific requirement 
is established.
    Additionally, commercial air tours operating over units of the 
national park or adjoining tribal lands are subject to the National 
Park Air Tour Management Act of 2000 (hereafter, Air Tour Act). Under 
the Air Tour Act, all commercial air tour operators are required to be 
certificated under part 119 and to operate under either part 121 or 
135. There is a limited exception in that Act that allows commercial 
air tour operators to conduct commercial air tour operations under part 
91 provided they have a letter of authority from the FAA and there are 
no more than five part 91 flights in a month conducted over a 
particular national park. The FAA, in cooperation with the National 
Park Service (NPS), will adopt air tour management plans for each 
national park over which ``commercial air tour operations'' are flown.
    NTSB Recommendation No. A-95-60 (Adopt standard definitions to 
establish a uniform terminology). The FAA recognizes the need to 
standardize language governing commercial air tour regulation. The Air 
Tour Act adopted a definition of the term ``commercial air tour 
operation'' that is specific to flights over national parks. In 
contrast, part 93, subpart U contains a definition of the term 
``commercial air tour'' that is not limited by area of flight. This 
proposed rule would adopt the definition of ``commercial air tour'' 
contained in part 93 since that definition can apply to all commercial 
air tours, regardless of locale. This NPRM also proposes standardized 
definitions for other terms.
    NTSB Recommendation No. A-95-63 (Location of activation switch). 
The FAA proposes to require that the activation switch for the 
inflatable flotation systems for helicopters be located on one of the 
primary flight controls. In a helicopter, float activation switches 
that are not located on the primary controls require pilots to remove a 
hand from the flight controls during the ditching maneuver. The FAA 
believes that requiring the activation switch to be on a primary flight 
control would improve the pilot's ability to control the helicopter in 
an emergency situation.
    NTSB Recommendation No. A-99-57 (Wearing life preservers). The FAA 
proposes to exceed the NTSB recommendation by requiring that all 
occupants of airplanes and helicopters operated as commercial air tours 
over water wear life preservers during the flight, for both single and 
multi-engine aircraft. The FAA believes that this will address the 
problems associated with donning life preservers in the limited time 
available to passengers from the onset of an emergency to a water 
landing. By wearing life preservers from the beginning of the flight, 
occupants would be prepared for water entry, in the event of an 
emergency. This is especially significant for occupants who are 
children, elderly, handicapped, non-English speaking, or those not 
familiar with aircraft operations.
    NTSB Recommendation No. A99-58 (Passenger briefings). The FAA also 
proposes to require pre-flight passenger briefings on water ditching 
procedures, the use of required flotation equipment and procedures for 
exiting the aircraft in an emergency.

III. The Proposal

    The FAA proposes to establish national commercial air tour safety 
regulations for all operators conducting

[[Page 60576]]

commercial air tours. The FAA is proposing a new subpart A in part 136 
that would establish the general safety regulations particular to all 
commercial air tours, including those over the Grand Canyon, and those 
``commercial air tour operations'' conducted over national parks. The 
FAA anticipates that part 136 would be dedicated to air tour 
regulation. Included in this part would be the regulations pertaining 
to Grand Canyon National Park and Rocky Mountain National Park, and the 
regulations implementing the National Parks Air Tour Management Act.
    In proposing any such regulation, the FAA is required by Federal 
law to consider whether an exception is necessary for the state of 
Alaska. Specifically, Sec.  1205 of the Federal Aviation 
Reauthorization Act of 1996, Pub. L. 104-264, states:

    In modifying regulations contained in title 14, Code of Federal 
Regulations, in a manner affecting intrastate aviation in Alaska, 
the Administrator of the Federal Aviation Administration shall 
consider the extent to which Alaska is not served by transportation 
modes other than aviation, and shall establish such regulatory 
distinctions as the Administrator considers appropriate. The FAA has 
considered this requirement and proposes to impose these regulations 
on all commercial air tours including those occurring in the State 
of Alaska. Alaska has a number of air tour operators that conduct 
commercial air tours over national parks, water, and rugged, remote 
terrain. Because of its remoteness, the terrain in Alaska is more 
difficult to reach and thus, persons may need to rely on their 
survival skills for a longer period of time prior to rescue. 
Passengers on Alaskan air tours would benefit from increased safety 
like passengers elsewhere. This rule would not negatively impact the 
ability of the average Alaskan to travel by air to remote villages 
since the proposed rule would only apply to passengers on commercial 
air tours.

    FAA agrees with the NTSB that the same safety standard should be 
applied to all commercial air tours wherever they are conducted. The 
FAA believes that applying these proposed requirements to Alaskan 
commercial air tours would improve safety in Alaska and would establish 
the same standard for Alaska that is being applied to the rest of the 
country.

A. Applicability and Definitions Sections

    The proposed amendments would create a new subpart A in part 136. 
This subpart would apply to any person operating or intending to 
operate a commercial air tour and, when applicable, to all occupants of 
an aircraft engaged in a commercial air tour. This would include 
persons conducting commercial air tours for charitable or community 
events, in accordance with the proposed certification exception at part 
119.1(e)(11).
    The terms ``sightseeing'' and ``sightseeing flights'' have been 
used for years in the FAA's regulations, but are now being replaced 
with the term ``commercial air tour.'' As previously noted above, the 
Air Tour Act specifically defines the term ``commercial air tour 
operation'' to apply only to sightseeing flights over units of the 
national park system, or adjoining tribal lands that meet specified 
conditions. The regulations pertaining to GCNP (14 CFR part 93, subpart 
U), contain a broad definition for ``commercial air tour''. The FAA 
proposes to adopt the definition of ``commercial air tour'' that is 
currently contained in Title 14 CFR section 93.303 (the definition 
section for subpart U) and incorporate it into subpart A of part 136. 
This would create a uniform definition for all commercial air tours, 
except those regulated by the Air Tour Act. Under the proposed rule, 
new definitions would be added for the terms ``air tour operator,'' 
``raw terrain,'' ``suitable landing area,'' and ``shoreline''. The term 
``commercial air tour operator'' is already a defined term under the 
Air Tour Act and is particular to flights over national parks. Thus, we 
must use another term to refer to these operators and to differentiate 
them from those operators regulated by the Air Tour Act. Consequently, 
the FAA is proposing to use the term ``air tour operator.''

B. The Exceptions

    Section 119.1(e) contains the exceptions to the part 119 
certification requirements. Currently, part 119 does not apply to the 
following operations, unless the aircraft has a passenger-seat 
configuration of 20 seats or more or a payload capacity of 6,000 pounds 
or more and common carriage is not involved: (1) Student instruction; 
(2) nonstop sightseeing flights with aircraft having a passenger seat 
configuration of 30 or fewer and a 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; (3) ferry or training flights; 
(4) aerial work operations, including (i) crop dusting, seeding, 
spraying and bird chasing; (ii) banner towing; (iii) aerial photography 
or survey; (iv) firefighting; (v) helicopter operations in construction 
or repair work (but it does apply to transportation to and from the 
site of operations); and (vi) powerline or pipeline patrol; (5) 
sightseeing flights conducted in hot air balloons; (6) nonstop flights 
conducted within a 25 statute mile radius of the airport of takeoff for 
the purpose of parachute jumps; (7) certain helicopter operations; (8) 
operations conducted under part 133 of this chapter or 375 of this 
title; (9) emergency mail service under 49 U.S.C. 41906; or (10) 
flights carrying candidates in elections.
    Under this proposed rule, Sec.  119.1(e) would be amended to 
clarify certain exceptions and modify the exception for nonstop 
sightseeing flights conducted within 25 miles of the departing airport. 
Specifically, the student instruction exception at Sec.  119.1(e)(1) 
would be amended to include flights for the purpose of introducing 
persons to flight. Introductory flights are intended to be part of 
flight instruction or to encourage new pilot certification.
    Section 119.1(e)(2) would be removed 6 months from the date the 
final rule is published in the Federal Register.
    Section 119.1(e)(3) would be amended to add to the current 
exception aircraft demonstration flights including aerobatic 
demonstration or training flights, air combat or formation training 
flights, and aircraft sales demonstration flights.
    New Sec.  119.1(e)(11), would apply only to nonstop passenger 
carrying flights in aircraft having a passenger seating configuration 
of 30 seats or fewer, excluding each crewmember seat, having a maximum 
payload capacity of 7500 pounds, that begin and end at the same 
airport. The flights would be required to be conducted within a 25 
statute mile radius and part of a charitable or community event. 
Charitable and community events are infrequent functions that enable 
the general aviation community to contribute in a positive way to 
charitable and local causes. These flights are offered at local 
charitable or community events to raise funds for the sponsoring cause 
and to foster positive and productive working relations among the 
community, pilots, airport authorities, airport neighbors, and other 
members of the general public. When conducted by nonprofit 
organizations dedicated to promoting aviation safety, these events also 
assist in educating the general public about general aviation. Such 
events serve the public policy goals of allowing grass roots support of 
charitable and community fundraising efforts or of promoting aviation 
safety initiatives. In creating the proposed exceptions to the air 
carrier certification requirements for certain charitable and community 
events, the FAA has attempted to strike a careful balance between the 
recognition of the public benefits of such fundraising activities

[[Page 60577]]

and the need to set aviation safety standards.
    In order to qualify for an exception to the air carrier certificate 
requirements of part 119, a charitable or community event must qualify 
as one of three types of events. The first exception is for an event 
conducted to raise funds for the benefit of a charity identified by the 
U.S. Department of Treasury. The second exception is for an event 
conducted to raise funds for the benefit of a nonprofit entity, 
organized under state or Federal law, with one of the entities' 
purposes being the promotion of aviation safety. The third exception is 
for an event conducted to raise funds for the benefit of a local 
community cause not covered in the first two paragraphs of the 
exception.
    For the purposes of the charitable event exception, a charitable 
organization is identified as such by the U.S. Treasury. The FAA has 
tied this subparagraph to the U.S. Treasury because, through the 
Treasury's Internal Revenue Code, the federal government has already 
clarified which entities it believes serve a charitable public purpose 
and benefit the public good. The FAA's proposed exception recognizes 
the public policy interest in encouraging private fundraising 
activities for entities operating for a charitable purpose. However, to 
prevent such charitable fundraising events from operating as commercial 
aviation businesses themselves, the FAA proposes to limit this 
exception to four or fewer events per calendar year, with each event 
lasting no longer than 3 days in duration. If a large charitable 
organization has multiple offices or chapters, then each office or 
chapter is subject to the four or fewer limitation, rather than 
limiting the large organization (as a whole) to the four or fewer 
limitation. For example, if the American Red Cross in Los Angeles, 
California sponsors four events under the charitable exception in a 
calendar year, this would not preclude the Boise, Idaho chapter of the 
American Red Cross from sponsoring four such events of its own.
    For the exception proposed for an event conducted to raise funds 
for the benefit of a nonprofit entity, organized under state or Federal 
law, it was important to require that one of the entities' purposes 
must be the promotion of aviation safety. The FAA proposes that a 
nonprofit entity would qualify for this exception if they promote 
aviation safety through the types of activities they sponsor or the 
publications they issue. The FAA believes that encouraging other 
organizations that promote aviation safety is consistent with its 
statutory mandate to promote and encourage aviation safety. As in the 
charitable event exception, the exception for nonprofit entities that 
promote aviation safety is limited to four or fewer events per calendar 
year, with each event lasting no longer than 3 days in duration. This 
limitation is intended to prevent nonprofit entities from operating as 
commercial aviation businesses themselves. As in the charitable event 
example, if one office or chapter of a large nonprofit entity that 
promotes aviation sponsors four fundraising events, this would not 
preclude another independent chapter of the same entity from conducting 
four of its own fundraising events under this exception.
    The third exception proposed allows one event lasting 3 days or 
fewer in duration per calendar year, conducted to raise funds for the 
benefit of a local community cause not covered in the charitable or 
nonprofit entities exceptions set forth above. For several years, the 
FAA has issued exemptions to individual and/or sponsors seeking to 
conduct fundraising activities to benefit local causes, which have not 
been included in the first two exceptions set forth above. 
Specifically, members of a community may bond together to: raise funds 
to assist a member of the community who has suffered a tragic loss or 
needs medical care; raise funds for a common purpose; or get together 
for a cause that has not been incorporated in a formal charitable or 
nonprofit legal entity. It is this type of grass roots community 
support that the FAA proposes to continue to recognize as being in the 
public interest and being worthy of an exception to the air carrier 
certificate requirements. However, because such causes have not 
received a recognized legal status and do not otherwise fit within the 
other two exceptions, they will only be permitted to operate one event 
per year to prevent abuse of the exception and to ensure that such 
causes will not operate as a commercial aviation business.
    The FAA is proposing additional restrictions on the exceptions for 
charitable and fundraising events. To ensure that the events are not 
merely profitable ventures for the pilots involved, the FAA is 
proposing to allow the pilot to retain or be reimbursed only for fuel 
and oil expenses, flight time and/or a charitable tax deduction.
    To prevent air carriers from benefiting directly from such events, 
the FAA proposes language to clarify that the beneficiary of the funds 
raised must not be an entity in the business of transportation by air. 
This would not limit conducting an event to raise funds for a pilot, 
flight attendant, mechanic, or other person who works in aviation but 
has an independent need for fundraising as a member of the community. 
For example, a community event could be conducted to raise funds for a 
commercial pilot, who needed a bone marrow transplant.
    To prevent pilots, sponsors and organizations from traveling around 
a state, region, or nation to conduct multiple commercial air tours 
throughout the year, the FAA proposes to limit the number of events 
conducted by any participant in the fundraiser. For the charitable 
organization and the nonprofit entity exceptions, each pilot, 
organization or sponsor must not exceed four events in any calendar 
year. For the third exception (community events), each pilot, 
organization or sponsor is limited to one such event in any calendar 
year.
    To ensure that applicable operational safety provisions are met by 
the pilots conducting charitable and community event flights, the FAA 
proposes to require that all flights conducted under the exceptions be 
in compliance with part 91 and subpart A of part 136. These 
requirements contain safety provisions such as minimum altitudes, 
horizontal stand off distances, overwater limitations, etc.
    Finally, to keep the FAA informed of the intent to conduct 
charitable and community event flights and to provide the FAA with the 
information it needs to perform appropriate oversight of aviation, the 
FAA has proposed a notification provision. Specifically, the FAA 
proposes that the sponsor of the charitable or community flight(s) 
provide the local Flight Standards District Offices with at least 7-
days advance notice that one or more flights will be conducted under 
the charitable or community event exception. The details of what must 
be provided in the notification to the Flight Standards District Office 
are set forth in the proposed section 91.147.
    The proposed Sec.  91.147 sets forth the following specific 
requirements and prohibitions for the aircraft operator of a flight 
conducted under the charitable or community events exception. Most of 
these requirements are similar to Sec.  61.113(d) and have been 
included in the recent exemptions for charitable and community events.
    The specifics of Sec.  91.147 are set forth as follows:
    (1) The sponsor of the flights would be responsible for notifying 
the Flight Standards District Office with responsibility over the area 
at least 7 days prior to the event. The FAA

[[Page 60578]]

proposes that the sponsor of the flights provide a signed letter 
listing the name of the sponsor, purpose of the event, date, time and 
location of the event as well as all prior events participated in by 
the sponsor, pilots or operators.
    (2) The sponsor would be responsible for providing a photocopy of 
each pilot in command's pilot certificate, medical certificate, and 
logbook entries showing that the pilot is current in accordance with 
Sec. Sec.  61.56 and 61.57 and, for private pilots, that the pilot has 
logged at least 500 hours of flight time. These provisions would help 
the FAA enforce these requirements and ensure that the charitable and 
community events exception is not used by someone in the business of 
air transportation.
    (3) The event must occur at a public airport, unless otherwise 
approved by the FAA.
    (4) No aerobatic or formation flights would be permitted.
    (5) All aircraft would have to hold standard airworthiness 
certificates and each aircraft would have to be airworthy and in 
compliance with the requirements of part 91, subpart E.
    (6) Flights would be required to be made during day VFR conditions, 
unless otherwise approved by the Administrator.
    (7) All flights would be required to be conducted in accordance 
with part 136, subpart A.
    As proposed, the charitable and community events exception does not 
apply to flights operated in the Grand Canyon National Park Special 
Flight Rules Area since those flights already are required to be 
certificated under part 119. Additionally, the proposed exception does 
not apply to commercial air tours conducted over Rocky Mountain 
National Park, since the Air Tour Act specifically prohibited all 
commercial air tours, regardless of altitude, over that park. The 
proposed exception applies to other flights over national parks, but 
they must be conducted in accordance with the provisions of part 136, 
subpart B and the Air Tour Act. Under the Air Tour Act, operators may 
conduct five flights per month over a national park or abutting tribal 
land under part 91, if the operators conducting those flights have a 
letter of agreement from the FAA Flight Standards District Office for 
those flights.
    As part of creating this exception, the FAA also is proposing to 
modify Sec.  61.113(d) to establish the number of hours a private pilot 
must log prior to flying in a charitable or community event. The FAA is 
proposing that pilots at these events have logged at least 500 hours, 
instead of the current 200-hour requirement established by the existing 
Sec.  61.113(d)(1)(ii), herein renumbered as Sec.  61.113(d)(1), for 
private pilots who want to conduct charitable airlifts. A higher safety 
standard of 500 hours of flight time for private pilots is proposed for 
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 
lower standard of 200 hours of flight time for a private pilot 
conducting a charitable airlift is justified because of the emergency 
or medical service nature of the charitable airlift.

C. Certification Under Part 119

    Under the proposed rule, all air tour operators not excepted under 
Sec.  119.1(e)(11) would have to be certificated under part 119 to 
operate in accordance with either part 121 or part 135. This includes 
those operators who have been operating under part 91, pursuant to the 
exception in Sec.  119.1(e)(2). The FAA does not anticipate that 
exemptions from these requirements would be granted. All part 91 
operators affected by the changes of this proposal would be encouraged 
to begin the certification process as early as possible. Air tour 
operators who conduct commercial air tour operations over units of the 
national park under part 91 already are required by the Air Tour Act to 
be certificated under part 119.
    The FAA expects that the impact of the certification requirement on 
Hawaiian operators will be minimal since the majority of air tour 
operators in Hawaii already are certificated under part 119 and conduct 
their commercial air tours under part 135 and SFAR 71. Air tour 
operators at the Grand Canyon, who are regulated under part 93, subpart 
U, also are required to be certificated under part 119 to operate in 
accordance with either part 121 or part 135. Operators in the Grand 
Canyon would be subject to proposed subpart A of part 136. The FAA 
invites comments on specific rules in proposed subpart A that 
commenters believe would conflict with current SFAR 50-2 or part 93 
rules.
    Commercial air tours conducted in accordance with part 121 or part 
135 are subject to a higher level of safety than those conducted in 
accordance with part 91 because of the number of passengers they carry, 
the type of aircraft used in such operations and the frequency of the 
operations. For instance, most operators conducting operations in 
accordance with part 135 and all part 121 operators are required to--
    (1) Prepare operating, maintenance, and training manuals, and have 
them accepted or approved by the Administrator;
    (2) Acquire and install any equipment required for their operations 
under part 121 or part 135, as appropriate;
    (3) Train and test their crewmembers to show that those crewmembers 
are qualified to serve under part 121 or part 135, as appropriate;
    (4) Maintain flight locating or dispatch procedures; and
    (5) Develop recordkeeping systems to show that they can comply with 
part 121 or part 135 crewmember and maintenance requirements on an 
ongoing basis.
    All currently certificated air tour operators would have specific 
authority in their operations specifications to conduct commercial air 
tours under the proposed rules. The operations specifications would 
list any special authority or deviations granted to them. Part 91 
operators are not normally required to have operations specifications. 
Under this proposed rule, however, those part 91 operators conducting 
sightseeing flights who file for certification under part 119 within 
the designated time period would receive transition operations 
specifications to allow them to continue operating. These transition 
operations specifications would be effective until the certification 
process was completed. During the transition time period, any 
deviations or authorizations would be noted in their transition 
operations specifications.

D. Specific Operating Requirements

    The FAA proposes to adopt a new subpart, subpart A, in part 136, 
for commercial air tours that will address the additional risks 
inherent in these operations. The safety provisions contained in 
proposed subpart A include: Minimum altitudes; standoff distance, 
visibility requirements; cloud clearance and requirements for over 
water operations.
1. Minimum Altitudes
    Proposed Sec.  136.3 would establish minimum altitudes for 
commercial air tours that would apply in all instances, except during 
takeoff and landing or unless otherwise authorized by the 
Administrator. The requirement to maintain a minimum altitude is 
necessary for safety because it gives the pilot additional time to 
react in an emergency, to notify and instruct passengers, to select a 
suitable landing area if necessary, and to prepare for a

[[Page 60579]]

forced landing if necessary. The base altitudes proposed in these 
sections for airplanes and helicopters are higher than those contained 
in Sec.  91.119. The FAA believes that higher altitudes are necessary 
because these are passenger-carrying operations over typically remote 
and rugged terrain or over water.
    The FAA recognizes that having a higher Above Ground Level (AGL) 
altitude may, in some instances, create a compressed flight 
environment. The NTSB voiced this concern in its comments to SFAR 71 
(which has an altitude of 1,500 feet AGL). In its comments on SFAR 71, 
the NTSB stated, ``* * * that the altitude restriction may result in a 
compression of air traffic at a common altitude of 1,500 feet AGL, 
spread over fewer routes, and in areas with the best weather. * * * 
However, the Safety Board believes that the current SFAR 71 altitude 
restriction should be reviewed to assure that there is no increase in 
the potential for in-flight collisions or inadvertent encounters with 
cloud layers.'' The NTSB also asked the FAA to ``* * * consider the 
negative effects of such restrictions that may result in unintended 
degradation of the existing level of safety.'' The NTSB reiterated its 
concern that the SFAR 71 minimum flight altitudes concentrate air 
traffic ``* * * into a compressed flight environment,'' in its letter 
to the FAA Administrator dated January 26, 1996.
    The FAA has considered these comments in light of its years of 
experience with both SFAR 71 in Hawaii and regulation of commercial air 
tours at Grand Canyon National Park. While the FAA agrees with the NTSB 
that some areas of raw terrain and some scenic areas may experience a 
compressed flight environment, the FAA believes that these proposed 
rules would provide the flexibility necessary to separate aircraft to 
accommodate for traffic density and differences in speed and 
maneuverability between airplanes and helicopters. Under proposed Sec.  
136.3(a), unless otherwise authorized by the Administrator, airplanes 
and helicopters would be allowed to fly no closer than 1,500 feet AGL 
above any person, structure, vehicle, or vessel over any area on the 
surface, including water, or no lower than 1,000 feet AGL over raw 
terrain. Under proposed Sec.  136.3(b), the Administrator could approve 
a lower minimum altitude not below 500 feet AGL, at specific areas of 
raw terrain for single engine helicopters and multi-engine helicopters 
that are not capable of flying under power to a safe landing area with 
one engine out. Multi-engine helicopters capable of flying under power 
to a safe landing area with one engine out, could be approved by the 
Administrator for flight at specific areas of raw terrain for flight at 
altitudes as low as 300 feet AGL.
    Section 136.3(c) would require operators of multi-engine 
helicopters that are not capable of flying with only one engine to a 
safe landing area and all single engine helicopters, to have a suitable 
landing area available at all times when operating at approved 
altitudes of less than 1,000 feet. These helicopters would also be 
required to operate at a combination of airspeed and altitude that is 
outside the avoid area of that helicopter's height/velocity diagram. 
The operators would be required to designate and document both the 
specific areas for such low level operations and suitable landing 
areas, in a form and manner acceptable to the Administrator. 
Photographs could be used for this purpose. In addition, the 
Administrator would require the pilot operating the helicopter to 
demonstrate in flight familiarity with the designated areas and 
suitable landing areas.
    Multi-engine helicopters that are capable of flying under power to 
a safe landing area with one engine out, when operating at approved 
altitudes below 1,000 feet AGL would be required to be able to reach a 
safe landing area after an engine power loss. A safe landing area, in 
comparison to a suitable landing area required for single engine 
helicopters, is not required to be within the auto-rotation range of 
the helicopter, does not require prior FAA approval, and includes any 
area where the helicopter could safely land.
2. Standoff Distance
    Section 136.5 would contain standoff distance requirements for 
commercial air tours. Under proposed paragraph (a), no person may 
conduct a commercial air tour closer than a horizontal radius of 1,500 
feet to any person, structure, vehicle, or vessel; or 1,000 feet to raw 
terrain. Paragraph (b) of this section would, however, provide for 
deviations from the limits for raw terrain. Under this provision, the 
Administrator could authorize an air tour operator to conduct 
commercial air tours at site-specific areas of raw terrain, at a 
horizontal radius of no less than 500 feet to raw terrain for airplanes 
and 300 feet AGL for helicopters. The determination of whether to grant 
a deviation under these provisions would be made in accordance with 
Sec.  136.21.
3. Visibility
    Proposed Sec.  136.7 would contain visibility requirements for 
commercial air tours operating in Class G airspace (i.e., uncontrolled 
airspace) at an altitude of 1,200 feet or less above the surface, 
regardless of Mean Sea Level (MSL) altitude. Under the proposed rule, 
pilots would be prohibited from conducting a commercial air tour in an 
airplane or a helicopter when the visibility is less than 2 statute 
miles during the day or 3 statute miles at night. Section 136.7(b) 
would permit the Administrator to authorize a helicopter to operate 
during the day when the visibility is at least 1 statute mile. Section 
136.7(c) would permit the Administrator to authorize a helicopter to 
operate at night when the visibility is at least 2 statute miles and 
the helicopter is being operated at a speed that provides adequate 
opportunity to see and avoid air traffic or obstructions. The 
determination of whether to grant a deviation under Sec. Sec.  136.7(b) 
or (c) would be made in accordance with Sec.  136.21. This proposal 
would help pilots avoid changing weather conditions and maintain visual 
reference to the ground.
    Currently, under Sec.  91.155, pilots operating in Class G airspace 
at 1,200 feet or less above the surface, must have visibility of at 
least 1 statute mile during the day and 3 statute miles at night. The 
proposed requirement would be stricter in daytime than that provided 
for under Sec.  91.155 because the operations that would be conducted 
under the new subparts are common carriage passenger-carrying 
operations often conducted over rugged terrain or water. A higher 
visibility requirement for nighttime operations is not deemed to be 
necessary at this time. The FAA believes that 3 miles would provide an 
adequate level of safety.
4. Cloud Clearance
    Proposed Sec.  136.9 would provide that while operating in Class G 
airspace at an altitude of 1,200 feet AGL or less above the surface, 
regardless of Mean Sea Level (MSL) altitude, no person may conduct a 
commercial air tour in an aircraft closer than 500 feet below, 1,000 
feet above, and 2,000 feet horizontally from any cloud. Section 136.9 
would permit deviations from these requirements for certain helicopter 
operations. The determination of whether to grant a deviation under 
Sec.  136.9 would be made in accordance with Sec.  136.21.
    Under Sec.  136.9, a person could operate a helicopter clear of 
clouds in accordance with the deviation procedures of Sec.  136.21 if 
(1) the helicopter is in compliance with the equipment requirements of 
Sec.  135.159 (carrying passengers under VFR at night or under VFR 
over-the-top); and (2) the pilot conducting the flight has

[[Page 60580]]

demonstrated to the Administrator the ability to execute emergency 
procedures for inadvertent flight into instrument meteorological 
conditions (IMC). The FAA believes that these additional requirements 
will provide an equivalent level of safety that would allow the 
helicopter operator to operate clear of clouds.
5. Over Water Operations
    a. Engine power loss and ditching, the problem. Commercial air 
tours are often conducted over water to facilitate better views of 
specific scenic areas. This exposes the aircraft to the potential for 
an emergency water ditching.
    Regardless of the type of aircraft, occupants generally experience 
stress and panic when an aircraft ditches. Stress and panic, added to 
the extreme physical exertion involved in exiting an aircraft that is 
filling with water or actually underwater, make escape difficult. 
Occupants tend to focus on the immediate need to get out of the 
aircraft and do not always consider equipment they may need to survive 
once they exit the aircraft. This problem exists even when passengers 
have been properly briefed pre-flight. However, occupants who 
successfully exit the aircraft wearing an uninflated life preserver may 
have an increased chance of survival while swimming to shore or waiting 
for rescue personnel, provided they understand how to use the life 
preserver.
    Helicopters pose additional problems. Unlike airplanes, helicopters 
normally roll quickly to one side in water because they are top heavy. 
Once inverted, the helicopter will fill quickly with water and sink. 
Additionally, helicopters do not have the gliding capabilities of 
airplanes, so a single engine helicopter is less likely to be able to 
reach shoreline prior to landing in the event of an engine failure. 
Consequently, ditching in helicopters is potentially more dangerous for 
passengers than ditching in airplanes.
    b. Discussion of existing provisions. Section 121.340 applies to 
airplane operations conducted over water under part 121. It requires 
life preservers or an approved flotation means (e.g., flotation 
cushions) for any over water operations. Section 121.340(b) provides 
for a deviation from the requirement for life preservers or an approved 
flotation means provided the operator can show that the water over 
which the airplane is to be operated is not of such size and depth that 
this equipment is required for the survival of its occupants in the 
event the flight terminates in that water.
    Under Sec. Sec.  121.339(a)(1) and 135.167, aircraft conducting 
extended over water operations (i.e., more than 50 miles from shore) 
must be equipped with life preservers. In addition, part 135 contains 
other requirements for land aircraft engaged in any over water 
operation. To conduct an over water operation, Sec.  135.183 
(performance requirements for land aircraft operated over water) 
requires that passenger carrying aircraft satisfy one of the following 
conditions: (1) Be operated at an altitude that allows it to reach land 
in the event of an engine failure; (2) be necessary for take off or 
landing; (3) be a multi-engine aircraft with certain single-engine 
climb characteristics; or (4) be a helicopter equipped with flotation 
devices (hereinafter called helicopter floats).
    c. Proposed requirements. Commercial air tours generally operate at 
lower altitudes for longer periods of time than other types of flights. 
Considering the heightened risks associated with commercial air tours 
conducting over water operations, the FAA has concluded that more 
stringent regulations are necessary for aircraft used in these 
operations.
    Proposed Sec.  136.11 would require occupants of all commercial air 
tour aircraft operating over water to wear approved life preservers 
while in flight. The life preserver must be worn un-inflated to permit 
the passenger to exit the aircraft quickly in an emergency. In 
addition, single-engine and certain multi-engine helicopters operated 
over water would be required to have helicopter floats installed on the 
aircraft.
    i. Life preservers. There are several types of inflatable and non-
inflatable life preservers approved for use on aircraft. Air tour 
operators using life preservers that are not inflatable would be 
required to show to the satisfaction of the Administrator that 
occupants wearing such life preservers can exit the aircraft easily. 
The most common type of life preserver is inflatable and is worn over 
the shoulders like a vest. If the life preserver is not worn in-flight 
un-inflated, the occupant must take it out of a container, put it on, 
and adjust it. Another type of life preserver is contained in a pouch 
or pack secured around the waist of each occupant. To use the life 
preserver, the occupant would pull a tab and then lift the life 
preserver over his or her head in a single motion. The life preserver 
is then ready for its intended purpose once inflated. Inflation 
normally takes about 2 seconds. Another type is a yoke type worn around 
the neck like a collar.
    While the proper donning and securing of a life preserver may not 
take a lot of time under normal non-stressful situations, it can be a 
time-consuming process in a time of high stress. Thus, to eliminate the 
delay this proposal would require air tour operators to ensure that all 
occupants don life preservers during pre-flight preparation and wear 
them throughout the duration of the flight.
    Deviations would be permitted if the air tour operator could 
demonstrate that the aircraft is operated over water that is of such 
size and depth that it is not necessary to wear a life preserver in 
order to survive in the water. The determination to grant a deviation 
would be made in accordance with Sec.  136.21.
    ii. Helicopter Floats. In addition to the life preserver 
requirement, single engine helicopters and certain multi-engine 
helicopters operated in commercial air tours over water would have to 
be equipped with fixed or inflatable floats under proposed Sec.  
136.15, unless the flight over water is necessary only for take off or 
landing. This provision is more stringent than the existing Sec.  
135.183 because the FAA has determined that equipping certain 
helicopters with floats for over water operations increases the 
likelihood of occupant survival in the event of an emergency water 
ditching. Floats would allow the helicopter to remain on the surface of 
the water for a longer period of time, thus allowing the occupants time 
to exit while the helicopter is still on the surface of the water. For 
those helicopters equipped with inflatable floats, Sec.  136.15(b) 
would require that the inflation activation switch be located on one of 
the primary flight controls (NTSB recommendation No. A-95-63) and armed 
under certain conditions.
    In Sec.  136.15(c), the FAA proposes an 18-month compliance date 
for retrofitting helicopters with floats and relocating the activation 
switch where necessary. The FAA requests comments on the proposed 
compliance date.
6. Passenger Briefing
    Proposed Sec.  136.13 would require the pilot in command to ensure 
that passengers are briefed on water ditching procedures, use of life 
preservers, and emergency egress from the aircraft before a commercial 
air tour that includes a flight segment conducted over water. This 
provision is intended to ensure that occupants understand how to use 
the life preservers they are wearing and what to do in the event of a 
water ditching.
7. Helicopter Performance Plan
    Proposed Sec.  136.17 would require air tour operators to complete 
a helicopter performance plan before each departure.

[[Page 60581]]

The pilot in command would be required to review and comply with the 
performance plan. The proposed rule would require the plan to be based 
on information in the rotorcraft flight manual considering actual 
conditions that day.
    The proposed requirement is intended to enhance flight safety by 
providing operators with information necessary for weight and balance 
determinations. The FAA believes that this requirement is necessary in 
light of certain accidents, including the May 20, 1989 accident 
discussed above that involved a helicopter on a commercial air tour to 
view Waialae Falls in Hawaii.
8. Helicopter Operating Limitations
    The height/velocity diagram in the Rotorcraft Flight Manual for 
each helicopter provides the pilot with important safety information 
that helps the pilot fly at a combination of height above the ground 
and speed that will allow the pilot in command to land in the event of 
a power failure. In certain types of operations that do not involve the 
carriage of passengers for compensation or hire, it is sometimes 
necessary for a pilot to operate briefly within the avoid area of the 
height/velocity diagram. The FAA believes that air tour operations 
require a higher safety standard because they carry members of the 
public for compensation or hire. SFAR 71 requires pilots to 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/velocity envelope for that helicopter 
under current weight and aircraft altitude, except for approach to and 
transition from a hover. The FAA proposes removing the exception for 
approach to and transition from a hover because transition from and to 
a hover is a critical phase in helicopter operations, particularly at 
the relatively low altitudes above ground level where the height/
velocity diagram applies. Operating in accordance with the height/
velocity diagram would provide the pilot sufficient time to complete a 
successful autorotation in the event of a power failure.
    Proposed Sec.  136.19 would require the pilot in command to operate 
the helicopter at a combination of height and forward speed (including 
hover) necessary to permit a safe landing under current weight and 
aircraft altitude, in accordance with the height-velocity chart in the 
rotorcraft flight manual. Using the chart, the pilot in command would 
determine the altitudes and airspeeds needed to make a safe 
autorotation in the event of an engine power loss, considering the 
current weight of the aircraft and atmospheric conditions. This 
proposal is intended to prohibit pilots from operating within the avoid 
area of the height/velocity diagram for that helicopter. It is 
necessary because a safe landing may not be possible if the helicopter 
is within the avoid area of the height/velocity envelope when an engine 
power loss occurs. Therefore, the requirement would increase safety in 
the event of an engine power loss.
9. Deviations
    Section 136.21 would set forth the deviation procedures for part 
136, subpart A. In determining whether to grant deviations from the 
minimum altitude, standoff distance, visibility, cloud clearance, life 
preservers and helicopter float requirements, the Administrator would 
make sure that the deviation would maintain an equivalent level of 
safety. In so doing, the Administrator would consider eleven specific 
factors and any other factors that may provide an equivalent level of 
safety. Deviations from the life preserver requirement or the float 
requirement would require the Administrator to consider the size and 
nature of the body of water, together with any other factors.
    The deviation application would be submitted to the certificate 
holding Flight Standards District Office (FSDO) or the FSDO responsible 
for issuing transition operations specifications. Deviations would be 
detailed in the operator's operations specifications, or in the 
transition operations specifications, if the operator is a non-
certificated air tour operator.

E. Compliance Schedule

    The proposed rule sets forth the following compliance schedule:
    (1) The rule would become effective 120 days after the date of 
publication of the final rule in the Federal Register.
    (2) As of the effective date, all operators conducting commercial 
air tours, including those operators conducting operations under part 
91, would be required to begin complying with the safety requirements 
of subpart A, part 136.
    (3) Those operators conducting sightseeing flights under the 25-
mile exception at part 119.1(e)(2) would have 180 days to file for 
certification under part 119 and bring their operations into compliance 
with part 121 or part 135, as appropriate. However, these operators 
would be subject to the safety requirements of part 136, subpart A, as 
of 120 days from the publication date of the final rule.
    (4) Operators conducting commercial air tours over water in single 
engine and some twin engine helicopters that are not equipped with 
floats would have to retrofit their helicopters by the end of 18 months 
from publication of the final rule.
    (5) Flights would be permitted under Sec.  119.1(e)(2) for a period 
of 180 days from the publication of the final rule in the Federal 
Register. At the end of the 180 days, however, this exception would no 
longer be available. Only qualifying charity event flights or community 
event flights would be able to operate as per Sec.  119.1(e)(11) 
without complying with part 119 certification requirements and either 
the part 121 or 135 requirements. These charity or community event 
flights would have to begin complying with part 136, subpart A by the 
effective date of the rule.
    The FAA requests additional information from the public on how many 
operators would be affected, what the impact would be on those 
individual operators, and the compliance schedule.

Regulatory Evaluation Summary

    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 if the agency makes 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. section 
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 requires agencies to consider 
international standards and where appropriate, 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:

(1) Has benefits which do justify its costs, is not a ``significant 
regulatory action'' as defined in the Executive Order but is 
``significant''

[[Page 60582]]

as defined in DOT's Regulatory Policies and Procedures;
(2) Will have a significant impact on a substantial number of small 
entities;
(3) Imposes no barriers to international trade; and
(4) Does not impose an unfunded mandate on State, local, or tribal 
governments, or on the private sector.

    These analyses, available in the docket, are summarized below.

Description of Affected Operators and Aircraft

    Based on surveys of FSDOs and an analysis of the FAA's General 
Aviation Survey data, this analysis estimates that one or more 
provisions of the proposed rule could affect approximately 2,100 
operators and 4,400 aircraft. Approximately 1,670 operators with 3,100 
aircraft currently provide commercial air tour flights under part 91, 
and about 450 operators with 1,300 aircraft provide commercial air 
tours under part 135.
    However, these estimates include operators subject to the 
provisions of the National Parks Air Tour Management Act of 2000 (the 
Act), and operators that may be eligible for an exception under 14 CFR 
119.1(e)(2), and thus are overstated.
    The Act required part 91 air tour operators conducting commercial 
air tour operations over units of the national park system or abutting 
tribal lands to apply for certification under part 119 with certain 
exceptions. Therefore, some part 91 air tours already are required to 
obtain a part 119 certificate. In addition, an unknown number of air 
tour operators will qualify for an exception from the Act's requirement 
to obtain a part 119 certificate. An exception in the Act allows 
operators to continue operating over parks under Part 91 if such 
activity is permitted under Part 119, and the operator secures a letter 
from the Administrator and the national park superintendent for that 
particular park. The total number of all operations under this 
exception is limited to not more than 5 flights in any 30-day period. 
When these operators are identified through the implementation of the 
National Parks Air Tour Management rule the cost and benefit will be 
adjusted.
    Under 14 CFR 119.1(e)(11), part 91 operators engaged in certain air 
tours or aircraft rides provided in conjunction with charitable or 
community events, for a local community cause not covered by the 
preceding exceptions would not have to obtain a part 119 certificate. 
Data are not available to estimate the number of operators that would 
be affected by this exception and the cost and benefit will be adjusted 
when these operators are identified through the exception process.

Analysis of Costs

    The proposed rule is estimated to cost approximately $238 million 
($148 million, discounted) over ten years. Costs associated with 
individual provisions are described below.
    The proposed amendments, by removing regulatory differences between 
part 91 sightseeing and part 135 commercial air tour operations, would 
impose certification and increased operating costs on existing part 91 
operators. The FAA expects that part 91 sightseeing operators would 
take one of three options following issuance of the rule: exit the 
sightseeing industry; become certificated under part 135 as a single 
pilot operation, thereby reducing certification costs; or become 
certificated under part 135 and operate with more than one pilot. 
Existing part 91 sightseeing operators, therefore, would incur the 
following costs if required to operate under the current requirements 
of part 135: (1) Revenue losses to firms that exit the air tour 
industry; (2) revenue losses to firms that scale back to a single-pilot 
operation under part 135; (3) administrative costs incurred during the 
part 135 certification process; and (4) additional operating expenses 
associated with part 135 operations, including increased personnel and 
maintenance costs and additional reporting and recordkeeping 
requirements.
    The FAA estimates there are a total of 1,670 operators who conduct 
operations under part 91, pursuant to the exception at 119.1(e)(2). 
These operators use a total of 3,100 aircraft. A portion of these 
operators conduct flights over national parks and they are already 
required to be certificated under part 91. Approximately 41 percent of 
these operators conduct air tours less than 10 hours a year. These 
would likely exit the industry. Approximately 57 percent are one pilot 
operations, and would likely convert their operations to part 135 
operations as one pilot operators. Approximately 2 percent would 
convert to part 135 operations with more than one pilot.
    Based on these cost categories, the FAA estimates that affected 
part 91 entities would incur approximately $137 million ($85 million, 
discounted) in certification related costs over a ten-year period. 
About three percent of these costs, $4.7 million, reflect net revenue 
losses to entities that choose to exit the industry as a result of the 
rule.
    In addition to the costs of converting to and operating under 
current part 135 requirements, the proposed rule would impose costs 
related to a new subpart A in part 136. The FAA estimates that the 
following part 136 provisions added by this proposal would impose costs 
on commercial air tour operators already operating under part 135, as 
well as those obtaining new part 135 certificates: (1) The combined 
effect of altitude minima, visibility, and ceiling requirements; (2) 
helicopter float systems; (3) personal life preservers for aircraft 
occupants, (4) helicopter performance plans, and (5) passenger 
briefings.
    The proposed rule would establish minimum flight altitudes, 
visibility, and cloud clearance requirements. The cost of these 
provisions--measured as the expected net revenue loss associated with 
commercial air tour flights that would be canceled as a result of this 
proposed rule--is approximately $7.45 million per year. Over ten years, 
the costs would be approximately $74.5 million ($46 million, 
discounted). Of the total, approximately $61.5 million ($37.7 million, 
discounted) would be borne by those currently operating under part 135 
and the balance would be borne by part 91 operators that convert to 
part 135.
    While the FAA believes that the requirements described above would 
reduce the probability of emergency ditching, the FAA also believes 
that the additional water safety equipment proposed in this rule would 
contribute to saving lives and is an important element of the overall 
strategy to improve commercial air tour safety. The proposed rule would 
require any helicopter flown over water beyond any shoreline to be 
equipped with floats. Incremental costs associated with this 
requirement include: (1) Flotation system design approval or 
certification costs; (2) equipment costs; (3) installation labor costs; 
(4) aircraft downtime required for installation; (5) maintenance and 
inspection costs; and (6) operating costs due to the weight of the 
system.
    Assuming that about 25 percent of commercial air tour helicopters, 
or 112 helicopters, would be affected by these provisions, the total 
cost of helicopter floats is estimated to be $15.4 million over ten 
years ($10.3 million, discounted).
    When a helicopter without floats lands in water, it typically sinks 
quickly. Life preservers that were worn un-inflated prior to ditching 
would increase the chances of surviving either an airplane or 
helicopter emergency ditching by assisting passengers to swim

[[Page 60583]]

to shore. The floats provide additional time to exit the aircraft. For 
this reason, the proposed rule would also require that all passengers 
wear an approved un-inflated life preserver throughout commercial air 
tours conducted over water beyond any shoreline with an aircraft. This 
would apply whether or not the airplane is within gliding distance of 
the shoreline, and, for helicopters, whether the helicopter is capable 
of autorotating to the shoreline. The costs associated with this 
provision include: (1) Procurement, (2) maintenance (including the 
incremental cost of vest replacement), and (3) additional operating 
costs associated with the weight of the vests. In the absence of 
reliable data on the number of air tours conducted over water beyond 
any shoreline, the FAA assumes that of the approximately 2,850 
airplanes and 450 helicopters currently engaged in air tour or 
sightseeing service 25 percent of these aircraft would be affected by 
these provisions. Thus some 713 airplanes and 112 helicopters would 
incur costs. The FAA requests comment on this assumption and requests 
that comments be accompanied with clear and supporting economic 
documentation. The FAA estimates that incremental costs associated with 
this provision would total approximately $2.2 million ($1.4 million, 
discounted) over ten years.
    The proposed rule would require that an air tour operator complete 
a helicopter performance plan before each helicopter flight. The pilot 
in command would be required to comply with the performance plan. The 
plan must be based on information in the helicopter flight manual, 
considering the maximum density altitude to which the operation is 
planned, and must address such elements as maximum gross weight and 
center of gravity (CG), maximum gross weight and CG for hovering in or 
out of ground effect, and maximum combination of weight, altitude and 
temperature. The FAA estimates that the cost of this provision would 
total approximately $7.6 million ($4.7 million, discounted) over ten 
years.
    The proposed rule would require that passengers be briefed before 
takeoff for an air tour flight with a flight segment that is conducted 
over water beyond any shoreline. The briefing would include information 
on water ditching procedures, use of personal flotation gear, and 
emergency egress procedures. The FAA estimates that incremental costs 
associated with this provision would total approximately $1.5 million 
($900,000, discounted) over ten years.

Consumer Losses

    Air tour passengers may incur direct costs or opportunity costs as 
a result of this proposed rule. These costs could be attributable to 
either a tour operator exiting the tour business as a result of this 
proposed rule or an increase in flight cancellations due to the 
proposed minimum flight altitudes, visibility, and cloud clearance 
requirements. The FAA is unable to provide a quantitative estimate of 
these losses. However, based on the assumptions made in this 
evaluation, the FAA has estimated the number of air tour flight hours 
lost. Assuming one-hour tours, there would be approximately 46,000 
fewer air tours available to the public or approximately 92,000 fewer 
air tour flights assuming half hour tours. The FAA requests comments on 
how the dollar value to consumers of the lesser availability of air 
tours should be estimated in the final rule.

Analysis of Benefits

    The FAA estimates that the proposed rule would accrue annual 
benefits of approximately $49 million, for total benefits of $490 
million ($301 million, discounted) over ten years. The FAA believes the 
proposed rule would improve the safety of commercial air tours 
throughout the country. The benefits associated with individual 
provisions are described below.
    The purpose of requiring air carrier certification is to reduce the 
number of accidents and incidents associated with sightseeing 
operations. Based on a comparison of accident rates for part 91 
sightseeing tours and part 135 commercial air tours, the FAA estimates 
that restricting the 25-mile exception under Sec.  119.1(e)(2) could 
produce benefits of $48 million ($30 million, discounted) over ten 
years.
    The estimated benefits associated with minimum altitude, 
visibility, and cloud clearance requirements can be attributed to: (1) 
Increased time available for the pilot to react in an emergency, (2) 
prevention of situations in which the pilot unexpectedly encounters 
IMC, and (3) avoidance of adverse weather conditions. Estimated 
benefits are based on an analysis of Hawaiian air tour operations 
because data for this region are the most complete. This data is 
different from the data used in the part 119 exception analysis since 
it includes 10 accidents occurring prior to 1993. It is being employed 
since it is the best representative data to address the proposed 
weather provisions. The causes of accidents involving commercial air 
tours appear, from the data available, to be relatively uniform 
throughout the country (inadvertent Instrument Meteorological 
Conditions (IMC), Controlled Flight Into Terrain) and commercial air 
tours, wherever they occur, tend to have similar characteristics (they 
fly relatively slow, low, and close to physical landmarks). This 
analysis shows that the rate of air tour accidents related to low 
flying and weather is approximately 9.49 accidents per million flight 
hours. The analysis also shows that while the part 135 accident rate is 
lower, the fatality rate is much higher than that of part 91 operators. 
This apparent anomaly is due to two factors: (1) At least for airplane 
operations, part 121/135 operators tend to have larger airplanes and 
carry more passengers, therefore, a single fatal accident in a large 
airplane can significantly raise the fatality rate, and (2) although 
rare, the typical part 121/135 commercial air tour accident involves 
controlled flight into terrain at cruise speed, resulting in a high 
fatality rate and few survivors. On the other hand, part 91 commercial 
air tour operators experience more accidents than part 135 operators 
but a higher proportion result from mechanical problems. Accidents 
caused by mechanical problems are often survivable, particularly 
helicopter accidents. The FAA estimates that the potential ten-year 
benefits for the affected air tour fleet would be approximately $405 
million ($249 million, discounted).
    The benefits associated with helicopter flotation systems and 
personal life preservers are considered together. Based on an analysis 
of three overwater accidents, one of which occurred prior to 1993, the 
FAA estimates that the potential benefits for flotation systems and 
life preservers are $37 million ($23 million, discounted) over ten 
years. While Hawaiian air tour operators usually cannot adjust their 
routes to avoid flying over water, it is possible that air tour 
operators on the mainland might have more opportunities to adjust their 
routes to avoid the fuel penalty and the expense of a flotation system. 
However, even on the mainland, many of the known commercial air tours 
fly over water at Lake Mead; Niagara Falls; the Statue of Liberty; 
Ocean City, Maryland; in Alaska and in Florida. The FAA does not know 
what effect these possible route adjustments would have on the 
estimated benefits or consumer enjoyment. The FAA therefore requests 
comments, including economic data, on this issue.

[[Page 60584]]

Benefit/Cost Comparison

    The FAA estimates the total costs of the proposed rule to be 
approximately $238 million over ten years ($148 million, discounted) 
and the total benefits to be approximately $490 million ($301 million, 
discounted) over the same period. Accordingly, the FAA concludes that 
the total benefits of the rule would justify the total costs.
    To state the comparison differently, the FAA has also computed the 
cost of the rule per estimated life saved. Based on an adjusted cost of 
$220 million (to reflect the cost savings attributable to avoided 
aircraft damage expenses resulting from fewer accidents) and an 
estimated 130 lives saved if the rule is 100 percent effective over 10 
years and no other factors were involved, the rule is estimated to cost 
$1.7 million per life saved. If, for example, the rule were 75 percent 
effective, the FAA estimates that the cost per life saved would be $2.2 
million. The rule would have to be less than 56 percent effective for 
the cost per fatality avoided to appreciably exceed $3.0 million.

Initial Regulatory Flexibility Analysis

    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 Act 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 determination is that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the Act.
    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 1980 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 proposal and 
determined that it would have a significant economic impact on a 
substantial number of small entities. Accordingly, pursuant to Section 
603 of the RFA, the Federal Aviation Administration has prepared the 
following initial regulatory flexibility analysis.

Reasons Why Agency Action Is Being Considered

    The FAA is proposing national safety standards to govern commercial 
air tours as a result of accidents and incidents involving air tour 
operators and NTSB recommendations made in response to those accidents 
and incidents. The rationale for each of the major provisions of the 
NPRM--discussed in detail in the regulatory evaluation--are summarized 
below:

    Restriction of the exception for sightseeing flights under 14 
CFR 119.1(e)(2). Based on available accident data, the FAA concludes 
that (1) there are significant differences in risks between 
sightseeing flights conducted under part 91 and air tour flights 
conducted under air carrier/commercial operator regulations, and (2) 
these risk differentials justify the proposal that the exception 
(from parts 119, 121, and 135 certification and operating 
requirements) for part 91 sightseeing operators be restricted. 
Regulatory action is also justified in view of the public 
expectation that all operators offering commercial air tours are 
regulated and surveilled to a level of safety higher than that 
applied to the general aviation operator.
    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. Based on survivors' testimony, life preservers alone are 
insufficient in preventing loss of life in helicopter accidents over 
water. Without floats, helicopters sink very quickly upon impact, 
giving passengers little time to exit the aircraft. The FAA believes 
that helicopter floats, in conjunction with life preservers, would 
significantly improve the chances of survival. Airplane passengers 
will also benefit from the requirement to wear life preservers when 
air tour flights are conducted over water.

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. A primary objective of 
this proposal is to significantly reduce the accident rate for those 
currently operating under part 91.
    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 Administrator's statutory duty to carry out his 
or 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 (i.e., employ fewer than 1,500 
employees). An estimated 1,672 part 91 operators and 453 part 121/135 
operators would be affected by the rule. The part 91 operators own 
about 3,100 aircraft, while the part 121/135 operators have about 1,300 
aircraft. This rule would impose annualized costs per operator of: (1) 
$600 to part 91 operators who exit the sightseeing industry; (2) 
$11,200 to part 91 operators who obtain part 135 certificates as 
single-pilot operators; (3) $75,000 to part 91 operators who obtain 
part 135 certificates and operate with more than one pilot; (4) $14,400 
to current part 135 operators; (5) $19,200 to $39,500 to any operator 
owning one helicopter that is operated over water; and (6) $220 
additional to any operator owning an airplane that is operated over 
water.

Projected Reporting, Recordkeeping and Other Compliance Requirements

    Entities converting to part 135 operations would be subject to the 
reporting requirements applicable to all part 135 air carriers. The FAA 
estimates the annualized cost for a single pilot operator would be $510 
and for an operator with more than one pilot $2,540. The reporting 
requirements of part 136 would impose an additional cost of $30 for an 
airplane that is operated over water, and $340 for any operator owning 
one helicopter operated over water.

Overlapping, Duplicative, or Conflicting Federal Rules

    The proposed rule would not overlap, duplicate, or conflict with 
existing Federal Rules.

Analysis of Alternatives

    The FAA invites comment from potentially affected operators 
regarding possible alternatives to the provisions discussed above. Some 
options that were considered during the formulation of this proposal 
are discussed below.

[[Page 60585]]

    Grandfather part 91 operators: The FAA considered allowing existing 
part 91 sightseeing operators to continue operating under part 91, 
while requiring that operators entering the sightseeing/air tour market 
operate under part 135. While this alternative could reduce the cost of 
the rule by more than $150 million over ten years, it could also reduce 
total benefits by more than $148 million over the same period. While 
the costs marginally outweigh the benefits, the FAA believes that the 
rule's objective--improving the safety of air tours and providing one 
level of air tour safety for the flying public--would not be met under 
this alternative. Accordingly, the FAA has chosen not to grandfather 
existing operators.
    Lengthen the compliance period: As written, the rule would require 
certification within six months of the date the final rule is issued. 
Safety requirements included in subparts O of part 121 and subpart E of 
part 135 would be met within 120 days from the date the final rule is 
issued. Helicopter float requirements in part 136.15 have a separate 
compliance schedule. To reduce the burden on small entities, the FAA 
considered a longer compliance period. Lengthening the compliance 
period to ten years, for example, would have saved some compliance 
costs on aircraft due to be removed from service within the ten-year 
period. The FAA believes, however, that the sightseeing/air tour 
accident history justifies government action in the near term. Between 
1993 and 2000, there were some 75 accidents involving part 91 
sightseeing flights and 53 accidents involving part 135 air tours. 
Combined, some 110 people died in these accidents. The FAA believes, 
therefore, that the higher standards should be implemented 
expeditiously and has chosen not to adopt this alternative.
    Require helicopter floats or life preservers instead of both: The 
proposed rule would require both floats and life preservers for 
overwater air tour flights in helicopters. In lieu of this requirement, 
the FAA considered requiring either floats or life preservers--rather 
than both--similar to existing requirements under SFAR 71 for 
operations in Hawaii. Under this alternative, operators could avoid the 
costs of flotation systems ($15.4 million over ten years) by purchasing 
personal flotation devices ($403,000 over ten years). Although this 
alternative would result in substantial cost savings, the FAA believes 
that the safety objectives would not be met through this alternative. 
Based on survivors' descriptions, the FAA believes that life preservers 
alone are insufficient in preventing loss of life in helicopter 
accidents over water. Helicopters typically take on water and sink very 
quickly upon impact, giving passengers little time to exit the 
aircraft. Helicopter floats, in conjunction with life preservers, would 
significantly improve the chances of survival. For this reason, the FAA 
has chosen not to adopt this alternative.

Affordability Analysis

    The FAA lacks reliable revenue and profit data for many of the 
entities affected by this rule and, therefore, is unable to explicitly 
compare the potential costs imposed to revenues or profits. This is 
because part 91 operators represent the small end of the industry, 
entering and exiting the market easily and continuously with no 
reporting or notification requirements. The FAA believes, however, that 
the higher-cost provisions of the rule (e.g., helicopter floats) would 
be borne by the larger, more profitable part 135 entities. The FAA 
invites comment on the potential impact of the rule on revenues and 
profits.

Business Closure Analysis

    The FAA estimates that about 700 part 91 operators currently 
providing sightseeing flights would elect to stop providing the 
service. These operators, however, provide relatively few sightseeing 
flights (fewer than ten hours annually). The FAA concludes, therefore, 
that sightseeing revenue represents a small percentage of total 
revenue, and that these operators would remain in business and obtain 
revenues elsewhere.

Disproportionality Analysis

    Almost all entities in the air tour/sightseeing market are small. 
Accordingly, the costs imposed by this proposed rule would be borne 
almost entirely by small businesses. It is likely that the larger of 
the small entities would be better able to absorb the costs of the rule 
and could experience a competitive advantage over the smaller entities 
operating in the same market. Air tour safety needs to be and can be 
significantly improved, and the FAA believes that the only way to 
accomplish this is to impose 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 proposed 
rule. For example, the FAA assumes that one-quarter of all helicopters 
in air tour service will incur the costs of floats. It is highly 
possible that the actual percentage will be lower than one-quarter 
because some operators already have floats to comply with Sec.  
135.183, 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 to which 13 helicopter tour operators subscribe that 
requires occupants to wear a personal flotation device.
    The FAA has also endeavored to avoid underestimating revenue losses 
to part 91 operators. To estimate lost revenue associated with scaling 
down operations to obtain a certificate using only a single pilot, the 
FAA assumes that part 91 operators have as many pilots as they do 
aircraft. In fact, some operators have one pilot and more than one 
aircraft. Such operators would experience little or no loss in revenue 
by becoming single-pilot part 135 operators, even though this analysis 
assumes some lost revenue for all but the first aircraft.
    In addition, the FAA assumes that no requests for exemptions will 
be granted, that performance penalties apply to all flights (not just 
air tours), and that additional paperwork will take additional time 
(i.e., it will not be absorbed into existing recordkeeping duties). 
Each of these assumptions leads to a conservative estimate of costs.

International Trade Impact Assessment

    The Trade Agreement 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 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards. The FAA has assessed the 
potential effect of this proposed rule and has determined that it would 
only have a domestic impact and therefore no affect on any trade-
sensitive activity. The FAA is unaware of any evidence that suggests 
that safety regulations (as opposed to noise limitations) adopted in 
Hawaii and the Grand Canyon National Park, for example, affected the 
demand for air tour flights by foreign visitors. Conversely, widely 
publicized air tour accidents may adversely affect all air tour 
operators. The proposed regulations strengthen the entire air tour 
industry by standardizing requirements for all operators.

[[Page 60586]]

Unfunded Mandates Reform Act Analysis

    The Unfunded Mandates Reform Act of 1995 (the Act) 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 an expenditure of $100 million or more (adjusted 
annually for inflation) 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.''
    This proposed rule does not contain such a mandate. The 
requirements of Title II do not apply.

Paperwork Reduction Act

    This proposal 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 the proposed rule 
on air tour operators because accurate and complete data on the number 
of operators, tours, and aircraft is not yet available. This is because 
there are no formal reporting requirements for air tour operations and 
comprehensive industry data is scarce. 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.
    Proposed Sec.  136.13 would require the pilot in command to ensure 
that passengers are orally briefed before takeoff for an air tour 
flight that includes a flight segment that is conducted over water 
beyond any shoreline. This briefing would be in addition to the 
passenger briefings required by Sec. Sec.  121.571, 121.573 and 
135.117. The briefing would include information on water ditching 
procedures, use of personal flotation gear, and emergency egress from 
the aircraft. The FAA estimates that this requirement would affect 
approximately 101,550 air tours annually by approximately 825 
operators, assuming half the required briefings would be provided by a 
recorded announcement. Each safety briefing would take 3 minutes, and 
the pilot conducts the briefing at an average rate of $29 per hour. 
Using these numbers, compliance will require 5,078 hours at a combined 
annual cost to the affected operators of $147,275.
    This proposal would require part 91 air tour operators to apply 
under part 119 for certification under either part 135 or part 121. The 
FAA estimates that approximately 60 percent of the 1,650 part 91 
operators that are currently conducting air tours would convert to part 
135. It is unlikely that any would apply under part 121. The FAA 
estimates that the remaining part 91 operators would discontinue air 
tours but continue in other lines of business. This burden would affect 
only part 91 operators. For many part 91 operators, air tours comprise 
only an occasional portion of their business, if at all. They would 
only apply for certification under parts 135 or 121 if the benefits 
outweigh the costs. For the approximate 980 part 91 operators that 
would certificate under parts 135 and 119, the certification costs 
would become applicable. See OMB-2120-0039 (for part 135 certification 
requirements) and OMB-2120-0593 (for part 119 certification 
requirements).
    Proposed Sec.  136.17 would require a performance plan for 
helicopter tour operations. It would require a one-page document that 
the operator would develop per the rotorcraft flight manual for each 
type of helicopter considering density, altitude, gross weight, and 
center of gravity limits. Although required by this NPRM, an evaluation 
of aircraft performance is a requirement during flight planning for any 
flight, including for rotorcraft. The performance would be different 
for each make and model of helicopter and different for each flight 
since conditions would be different. These performance plans are 
already required for helicopters operating in Hawaii. The FAA estimates 
that 375 helicopters would be required to prepare performance plans. 
This would require 26,250 hours per year at a cost of $761,250.
    The agency is soliciting comments to (1) evaluate whether the 
proposed collection of information is necessary for the proper 
performance of the functions of the agency, including whether the 
information will have practical utility; (2) evaluate the accuracy of 
the agency's estimate of the burden; (3) enhance the quality, utility, 
and clarity of the information to be collected; and (4) minimize the 
burden of the collection of information on those who are to respond, 
including through the use of appropriate automated, information 
technology (for example, permitting electronic submission of 
responses).
    Individuals and organizations may submit comments on the 
information collection requirement by December 22, 2003. Comments 
should be submitted to the address listed in the ADDRESSES section of 
this document.
    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. The public will be notified of the 
OMB control number when assigned.

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 maximum extent practicable. The FAA has 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to these proposed regulations.

Executive Order 13132, Federalism

    The FAA has analyzed this proposed 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.

Environmental Analysis

    FAA Order 1050.1D defines FAA actions that may be categorically 
excluded from preparation of a National Environmental Policy Act (NEPA) 
environmental impact statement. In accordance with FAA Order 1050.1D, 
appendix 4, paragraph 4(j), this proposed rulemaking action qualifies 
for a categorical exclusion.

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,

[[Page 60587]]

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 Proposed Amendment

    For the reasons set forth above, the Federal Aviation 
Administration proposes to amend 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 Sec.  61.113 by revising paragraph (d) to read as follows:


Sec.  61.113  Private pilot privileges and limitations: Pilot in 
command.

* * * * *
    (d) A private pilot may act as pilot in command of an aircraft used 
only in the following passenger-carrying operations for compensation or 
hire:
    (1) The operation is a charitable airlift for the benefit of a 
charity identified by the U.S. Department of Treasury that provides 
emergency or medical service and the pilot has logged at least 200 
hours of flight time and complies with all of the conditions of this 
paragraph; or
    (2) The operation is for a charitable or community event described 
in Sec.  119.1(e)(11) of this chapter, in accordance with the 
provisions and limitations of Sec.  91.147 and subpart A of part 136, 
and provided the pilot has logged at least 500 hours of flight time.
* * * * *

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 [Removed]

    4. Remove SFAR No. 71.
    5. Add Sec.  91.147 to read as follows:


Sec.  91.147  Passenger-carrying flights for charity or community 
events.

    (a) A passenger-carrying flight for a charity or community event, 
as described in Sec.  119.1(e)(11) of this chapter, for which the 
passengers make a donation to the charitable or community organization 
may be conducted under the following conditions and limitations:
    (1) Unless otherwise authorized by the Administrator, the sponsor 
of the flight must notify the FAA Flight Standards District Office with 
jurisdiction over the area concerned at least 7 days before the event;
    (2) The sponsor must furnish a signed letter that shows the name of 
the sponsor, the purpose of the event, the date and time of the event, 
the location of the event and all prior events participated in by the 
sponsor(s), pilot(s) or operator(s);
    (3) The sponsor must furnish a photocopy of each pilot in command's 
pilot certificate, medical certificate, and logbook entries that show 
the pilot is current in accordance with Sec. Sec.  61.56 and 61.57 of 
this part, and that any private pilot who will be used has logged at 
least 500 hours of flight time;
    (4) The flight is conducted from a public airport that is adequate 
for the aircraft to be used, or from another airport that the FAA has 
approved for the operation;
    (5) No aerobatic or formation flights are conducted;
    (6) Each aircraft used for the charitable or community event holds 
a standard airworthiness certificate;
    (7) Each aircraft used for the charitable or community event is 
airworthy and complies with the applicable requirements of subpart E of 
part 91 of this chapter;
    (8) Each flight for the charitable or community event is made 
during day VFR conditions; and
    (9) No person may conduct a flight under the provisions of this 
paragraph unless that flight is conducted in accordance with the 
appropriate safety provisions for commercial air tour flights described 
in part 136, subpart A, of this chapter, for the type aircraft being 
used.
    (b) [Reserved]

PART 119--CERTIFICATION: AIR CARRIERS AND COMMERCIAL OPERATORS

    6. 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.

    7. Amend Sec.  119.1 by revising paragraphs (e)(1), (e)(2), (e)(3) 
and (e)(4)(iii) and by adding paragraph (e)(11) to read as follows:


Sec.  119.1  Applicability.

* * * * *
    (e) * * *
    (1) Student instruction, including introductory flights given by a 
certificated flight instructor;
    (2) Nonstop commercial air tours conducted before [date 6 months 
from the date the final rule is published], with aircraft having a 
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. Such operations are subject to the provisions specified in 
Sec.  121.1(d) or Sec.  135.1(a)(5) of this chapter, as applicable. For 
nonstop commercial air tours conducted in the vicinity of the Grand 
Canyon National Park, Arizona, the requirements of SFAR 50-2, subpart U 
of part 93, and part 119, as applicable, apply.
    (3) Ferry, demonstration, or training flights, including:
    (i) Aerobatic demonstrations or training flights;
    (ii) Air combat or formation training flights;
    (iii) Aircraft sales demonstration flights; or
    (iv) Aircraft demonstration flights other than those specified 
above (does not include flights where the purpose is sightseeing).
    (4) * * *
    (iii) Aerial photography or survey (does not include sightseeing);
* * * * *
    (11) A nonstop sightseeing flight in support of a charitable or 
community event when the following requirements are met:

[[Page 60588]]

    (i) The flight must be in aircraft having a passenger seat 
configuration of 30 seats or fewer, excluding each crewmember seat, and 
a maximum payload capacity of 7500 pounds;
    (ii) The flight must begin and end at the same airport, and be 
conducted within a 25 statute mile radius of that airport;
    (iii) Each charitable or community event must qualify as one of the 
following:
    (A) One of four or fewer events per calendar year, with each event 
lasting 3 days or fewer in duration, conducted to raise funds for the 
benefit of a charity identified by the U.S. Department of Treasury;
    (B) One of four or fewer events per calendar year, lasting 3 days 
or fewer in duration each, conducted to raise funds for the benefit of 
a nonprofit entity, organized under State or Federal law, with one of 
the entities' purposes being the promotion of aviation safety; or
    (C) One event per calendar year, lasting 3 days or fewer in 
duration, conducted to raise funds for the benefit of a local community 
cause not covered in paragraphs (e)(11)(iii)(A) or (B) of this section;
    (iv) The aircraft operator may retain, or be reimbursed for, only 
that portion of the passenger payments for the flight that does not 
exceed the pro rata cost of owning, operating and maintaining the 
aircraft for that flight;
    (v) The beneficiary of the funds raised must not be an entity in 
the business of transportation by air;
    (vi) All flights conducted under this provision must be in 
compliance with subpart A, part 136 of this chapter and part 91 of this 
chapter;
    (vii) In accordance with the requirements of Sec.  91.147 of this 
chapter, the sponsor of the flight must notify the FAA Flight Standards 
District Office with jurisdiction over the area concerned at least 7 
days before the event and furnish the required details of the 
charitable or community event and the pilots who will be operating the 
flights;
    (viii) An operator or pilot conducting operations described in 
paragraphs (e)(11)(iii)(A) and (B) of this section must not participate 
in more than 4 charitable or community events in a calendar year;
    (ix) An operator or pilot conducting operations described in 
subparagraph (e)(11)(iii)(C) of this section must not participate in 
more than one community event in a calendar year;
    (x) Paragraph (e)(11) of this section does not apply to nonstop 
sightseeing flights for compensation or hire conducted within the Grand 
Canyon National Park (GCNP) Special Flight Rules Area (SFRA). Flights 
conducted in the GCNP SFRA must be certificated under part 119 in 
accordance with section 93.315 of this chapter;
    (xi) Paragraph (e)(11) of this section applies to nonstop 
sightseeing flights conducted over units of the national park, or 
abutting tribal lands, provided the operator has secured a letter of 
agreement from the FAA as specified under subpart B of part 136 and is 
operating in accordance with that agreement; and
    (xii) Paragraph (e)(11) of this section does not apply over Rocky 
Mountain National Park.

PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL 
OPERATIONS

    8. 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.

    9. Amend Sec.  121.1 by:
    a. Revising paragraph (d) introductory text;
    b. Redesignating paragraphs (e) and (f) as (f) and (g) 
respectively; and
    c. Adding a new paragraph (e).
    The additions and revisions read as follows:


Sec.  121.1  Applicability.

* * * * *
    (d) Before [date 6 months from the date the final rule is published 
in the Federal Register], nonstop commercial air tours conducted for 
compensation or hire in accordance with Sec.  119.1(e)(2) of this 
chapter with airplanes having a 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 must comply only with Sec. Sec.  
121.455, 121.457, 121.458 and 121.459. 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 FAA-approved 
anti-drug and alcohol misuse prevention programs to perform--
    (1) * * *
    (2) * * *
    (e) Nonstop sightseeing flights described in paragraph (d) of this 
section must comply with the provisions of Part 136, Subpart A of this 
chapter by [date 120 days after publication of the final rule in the 
Federal Register].
* * * * *

PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND OPERATIONS

    10. 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.

    11. Amend Sec.  135.1 by revising paragraph (a)(5) and paragraph 
(c) to read as follows:


Sec.  135.1  Applicability.

    (a) * * *
    (5) Before [date 6 months after the date the final rule is 
published in the Federal Register], nonstop commercial air tours 
conducted for compensation or hire in accordance with Sec.  119.1(e)(2) 
of this chapter that begin and end at the same airport and are 
conducted within a 25-statute-mile radius of that airport; provided 
further that these operations must comply only with Sec. Sec.  135.249, 
135.251, 135.253, 135.255, and 135.353 and with part 136, subpart A of 
this chapter by [date 60 days after the final rule is published in the 
Federal Register].
* * * * *
    (c) Before [date 6 months after the date that the final rule is 
published in the Federal Register] for the purpose of Sec. Sec.  
135.249, 135.251, 135.253, 135.255, and 135.353, operator means any 
person or entity conducting non-stop commercial air tours in an 
airplane or helicopter that begin and end at the same airport and are 
conducted within a 25 statute mile radius of that airport, except for 
flights specified in Sec.  119.1(e)(11) of this chapter.
* * * * *

PART 136--AIR TOURS

    12. The authority citation for part 136 is revised to read as 
follows:

    Authority: 49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44702, 
44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904, 
44912, 46105.

    13. Revise the heading for part 136 as shown above.
    14. Redesignate the following sections to consist of a new subpart 
B--National Parks Air Tour Management:

------------------------------------------------------------------------
                                                           Redesignated
                         Current                                as:
------------------------------------------------------------------------
136.1...................................................          136.31
136.3...................................................          136.33
136.5...................................................          136.35

[[Page 60589]]

 
136.7...................................................          136.37
136.9...................................................          136.39
136.11..................................................          136.41
------------------------------------------------------------------------

    15. Add a new subpart A to read as follows:

Subpart A--Commercial Air Tours

Sec.
136.1 Applicability and definitions.
136.3 Minimum altitudes.
136.5 Standoff distance.
136.7 Visibility.
136.9 Cloud clearance.
136.11 Passenger briefing.
136.13 Life Preservers.
136.15 Helicopter floats.
136.17 Helicopter performance plan.
136.19 Helicopter operating limitations.
136.21 Deviation procedures.
136.23-136.29 [Reserved]

    Authority: 49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44702, 
44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904, 
44912, 46105.

Sec.  136.1  Applicability and definitions.

    (a) This subpart applies to each person operating or intending to 
operate a commercial air tour and, when applicable, to all occupants of 
an aircraft engaged in a commercial air tour. When any requirement of 
this part is more stringent than any other requirement of this chapter, 
the person operating the commercial air tour must comply with the 
requirement in this part. Furthermore, when a flight for compensation 
or hire has another purpose in addition to sightseeing, that flight is 
subject to this subpart as well as any other applicable rules.
    (b) As of the effective date of this rule, no person may conduct a 
commercial air tour without notifying the FAA and receiving commercial 
air tour authority in its operations specifications, or for part 91 
operators seeking certification under part 119, receiving transitional 
operations specifications.
    (c) For the purposes of this part the following definitions apply.
    Air tour operator means any person who conducts a commercial air 
tour.
    Commercial air tour--

(1) Means any flight conducted for compensation or hire in a powered 
aircraft where a purpose of the flight is sightseeing.
(2) The Administrator may consider the following factors in determining 
whether a flight is a commercial air tour for purposes of this part--
    (i) Whether there was a holding out to the public of willingness to 
conduct a sightseeing flight for compensation or hire;
    (ii) 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;
    (iii) The area of operation;
    (iv) How often the person offering the flight conducts such 
flights;
    (v) The route of flight;
    (vi) The inclusion of sightseeing flights as part of any travel 
arrangement package;
    (vii) Whether the flight in question would have been canceled based 
on poor visibility of the surface below the route of the flight; and
    (viii) Any other factors that the Administrator and Director 
consider appropriate.
    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, river or tidal basin that is above the high water 
mark and excludes land areas that are intermittently under water.
    Suitable landing area means an area that provides the operator 
reasonable capability to land without damage to equipment or persons, 
designated by the operator and accepted by the Administrator, at a 
specific site that provides an emergency landing area for a single-
engine helicopter in the event of an engine power loss, or a 
multiengine helicopter that does not have the capability to reach a 
safe landing area after an engine power loss.


Sec.  136.3  Minimum altitudes.

    (a) Except when necessary for takeoff and landing, or unless 
otherwise authorized by the Administrator, no person may conduct a 
commercial air tour:
    (1) Below an altitude of 1,500 feet AGL above any person, 
structure, vehicle, or vessel.
    (2) Below an altitude of 1,000 feet AGL over raw terrain.
    (b) Notwithstanding paragraph (a)(2) of this section, operators 
conducting commercial air tours in helicopters may be authorized by the 
Administrator to operate:
    (1) Multi-engine helicopters that are not capable of flying under 
power to a safe landing area with one engine out, and single engine 
helicopters, at altitudes as low as 500 feet AGL at site-specific areas 
of raw terrain in accordance with the deviation procedures of Sec.  
136.21, or
    (2) Multi-engine helicopters that are capable of flying under power 
to a safe landing area with one engine out, at altitudes as low as 300 
feet AGL at site-specific areas of raw terrain in accordance with the 
deviation procedures of Sec.  136.21.
    (c) When operating at approved altitudes of less than 1,000 feet 
AGL, air tour operators must comply with the following:
    (1) For multi-engine helicopters that are not capable of flying 
under power to a safe landing area with one engine out, and single-
engine helicopters:
    (i) Have an approved, suitable landing area available at all times 
and
    (ii) Operate at an approved combination of airspeed and altitude 
that is not within the avoid areas of the helicopter's height velocity 
diagram, according to the data in the appropriate rotorcraft flight 
manual. When designating a suitable landing area, the air tour operator 
must ensure that the area selected can be reached based upon the 
helicopter's autorotative capabilities, as provided in the appropriate 
rotorcraft flight manual.
    (2) For multi-engine helicopters that are capable of flying under 
power to a safe landing area with one engine out:
    (i) Be able to reach a safe landing area after an engine power 
loss, considering weight and atmospheric conditions; and
    (ii) Operate at an approved combination of airspeed and altitude 
that is not within the avoid areas of the helicopter's height velocity 
diagram according to the data in the appropriate rotorcraft flight 
manual.
    (3) For multi-engine helicopters that are not capable of flying 
under power to a safe landing area with one engine out, and single 
engine helicopters:
    (i) Designate and document the specific areas of proposed operation 
below 1,000 feet and suitable landing areas within those areas, in a 
form and manner acceptable to the Administrator; and
    (ii) Have the pilot demonstrate to the Administrator in-flight 
familiarity with the designated areas of low-level operation and the 
suitable landing area.


Sec.  136.5  Standoff distance.

    (a) No person may conduct a commercial air tour in an aircraft 
closer than a horizontal radius of --
    (1) 1,500 feet to any person, structure, vehicle, or vessel; or
    (2) 1,000 feet to raw terrain.
    (b) Notwithstanding paragraph (a)(2) of this section, an air tour 
operator of airplanes may be authorized by the Administrator to conduct 
commercial air tours at specific areas of raw terrain, at a horizontal 
radius of no less than 500 feet to raw terrain in accordance with the 
deviation procedures of Sec.  136.21.
    (c) Notwithstanding paragraph (a)(2) of this section, air tour 
operators of

[[Page 60590]]

helicopters may be authorized by the Administrator to conduct 
commercial air tours, at site-specific areas of raw terrain, at a 
horizontal radius of no less than 300 feet to raw terrain in accordance 
with the deviation procedures of Sec.  136.21. In such instances, the 
Administrator may impose additional safety requirements.


Sec.  136.7  Visibility.

    (a) While operating in Class G airspace at an altitude of 1,200 
feet or less above the surface, regardless of MSL altitude, no person 
may conduct a commercial air tour in an aircraft under VFR when the 
flight visibility is less than the following:
    (1) Day--2 statute miles.
    (2) Night--3 statute miles.
    (b) Notwithstanding paragraph (a)(1) of this section, an air tour 
operator may be authorized by the Administrator to operate a helicopter 
during the day in visibility of at least 1 statute mile in accordance 
with the deviation procedures of Sec.  136.21.
    (c) Notwithstanding paragraph (a)(2) of this section, an air tour 
operator may be authorized by the Administrator to operate a helicopter 
at night in visibility of at least 2 statute miles when the helicopter 
can be operated at a speed that provides adequate opportunity to see 
and avoid air traffic or obstructions in accordance with the deviation 
procedures of Sec.  136.21.


Sec.  136.9  Cloud clearance.

    (a) Except as provided in paragraph (b) of this section, while 
operating in Class G airspace at an altitude of 1,200 feet or less 
above the surface, regardless of MSL altitude, no person may conduct a 
commercial air tour in an aircraft closer than 500 feet below, 1,000 
feet above, or 2,000 feet horizontally from any cloud.
    (b) In accordance with the deviation procedures of Sec.  136.21, an 
air tour operator may be authorized by the Administrator to operate a 
helicopter clear of clouds when:
    (1) The helicopter is in compliance with the equipment requirements 
of Sec.  135.159 of this chapter; and
    (2) The flight is conducted by a pilot who has demonstrated to the 
Administrator the ability to execute emergency procedures for 
inadvertent flight into instrument meteorological conditions.


Sec.  136.11  Passenger briefing.

    Before takeoff, each pilot in command of a commercial air tour with 
a flight segment that is conducted over water shall ensure that each 
occupant has been briefed on all of the following:
    (a) Procedures for water ditching.
    (b) Use of required personal flotation equipment.
    (c) Procedures for emergency egress from the aircraft in the event 
of a water landing.


Sec.  136.13  Life preservers.

    (a) All persons conducting commercial air tours in aircraft over 
water beyond any shoreline must comply with this section, except when 
the over water operation is necessary only for takeoff or landing, or 
unless otherwise authorized by the Administrator in accordance with the 
deviation procedures of Sec.  136.21. This requirement applies 
regardless of the requirements of Sec.  135.183 of this chapter, or 
whether the airplane is capable of gliding to the shoreline or the 
helicopter is capable of autorotating to the shoreline.
    (b) Except as provided in paragraph (d) of this section, prior to 
take-off the air tour operator and pilot in command must ensure that 
each occupant is wearing an approved un-inflated life preserver that is 
ready to use for its intended purpose.
    (c) An air tour operator may be authorized by the Administrator to 
use one of the following for any occupant with the physical capacity to 
use it:
    (1) A life preserver contained in a pouch that is worn around the 
waist, where the un-inflated life preserver can be operated by pulling 
on a tab and lifting it over the head in a single motion and the life 
preserver is ready to use for its intended purpose, once inflated; or
    (2) Any other type of life-preserver configuration determined by 
the Administrator to be comparable to the life preserver described in 
paragraph (c)(1) of this section with respect to speed, ease of 
donning, and use.
    (d) An air tour operator may be authorized by the Administrator to 
operate an aircraft over water without complying with paragraphs (b) or 
(c) of this section, if the air tour operator shows in accordance with 
the deviation procedures under Sec.  136.21 that the water over which 
the aircraft is to be operated is not of such size and depth that 
wearing a life preserver, as prescribed in this section, would be 
required for the survival of its occupants in the event the flight 
terminates in that water.


Sec.  136.15  Helicopter floats.

    (a) A helicopter used in commercial air tours 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 helicopter's rotorcraft flight manual.
    (b) Each helicopter required to be equipped with an inflatable 
flotation system must:
    (1) Have the activation switch for the flotation system on one of 
the primary flight controls and
    (2) Have the flotation system armed when the helicopter is over 
water and is flying at a speed that does exceed the maximum speed 
prescribed in the Rotorcraft Flight Manual for flying with the 
flotation system armed.
    (c) Air tour operators required to comply with paragraphs (a) and 
(b) of this section must meet these requirements on or before [date 18 
months after the date the final rule is published in the Federal 
Register.]
    (d) The requirements of this section do not apply if the flight 
over water is necessary only for take-off or landing.
    (e) An air tour operator may be authorized by the Administrator to 
operate an aircraft over water without complying with paragraphs (a) or 
(b) of this section, if the air tour operator shows in accordance with 
the deviation procedures under Sec.  136.21 that the water over which 
the aircraft is to be operated is not of such size and depth that 
helicopter floats, as prescribed in this section, would be required for 
the survival of its occupants in the event the flight terminates in 
that water.


Sec.  136.17  Helicopter performance plan.

    (a) Each air tour operator must complete a performance plan for 
each helicopter commercial air tour before departure. 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) [Reserved]

[[Page 60591]]

Sec.  136.19  Helicopter operating limitations.

    Except for take-off and landing, the pilot in command shall operate 
a helicopter at a combination of height and forward speed (including 
hover) necessary to permit a landing in the event of an engine power 
loss, in accordance with the height-velocity diagram in the rotorcraft 
flight manual for the helicopter and the helicopter's current weight 
and altitude.


Sec.  136.21  Deviation procedures.

    An air tour operator may be issued a deviation by the Administrator 
from the following sections of this subpart if the Administrator finds 
that the operation can be conducted with an equivalent level of safety 
under the terms of the deviation: Sec.  136.3, Minimum altitudes; Sec.  
136.5, Standoff distance; Sec.  136.7, Visibility; Sec.  136.9, Cloud 
clearance; Sec.  136.13, Life preservers; and Sec.  136.15, Helicopter 
floats.
    (a) For Sec.  136.3, Minimum altitudes; Sec.  136.5, Standoff 
distance; Sec.  136.7, Visibility; and Sec.  136.9, Cloud clearance, 
the Administrator considers the following factors, as appropriate, when 
determining whether to approve a deviation:
    (1) Traffic density;
    (2) Mix of traffic;
    (3) Nature of operation;
    (4) Ability to operate the aircraft at a speed that will provide 
adequate opportunity to see and avoid air traffic and obstructions;
    (5) Character of terrain;
    (6) Size of the area of operation;
    (7) Pilot workload (e.g., number of pilots performing an operation 
and whether routine narrative is provided);
    (8) Quality and quantity of meteorological services;
    (9) Navigational facilities;
    (10) Weather conditions in the area of operation;
    (11) Size and type of the aircraft; and
    (12) Any other relevant factors that may provide an equivalent 
level of safety.
    (b) For Sec.  136.13, Life preservers, and Sec.  136.15, Helicopter 
floats, the Administrator will consider the size and nature of the body 
of water and any other factors, as appropriate, when determining 
whether a deviation will be approved.
    (c) An application for a deviation under this part must be made in 
writing and in a manner prescribed by the Administrator. The 
application must be submitted to the certificate-holding Flight 
Standards District Office or the Flight Standards District Office 
responsible for issuing operations specifications.
    (d) Any deviation granted under this section will be detailed in 
the certificated air tour operator's operations specifications or in 
transition operations specifications issued to a non-certificated air 
tour operator, pending certification. In granting a deviation, the 
Administrator may impose additional requirements to provide an 
equivalent level of safety. A deviation is effective when placed in the 
air tour operator's operations specifications.


Sec. Sec.  136.23-136.29  [Reserved]

    16. In newly designated subpart B of part 136, remove the words 
``this part'' wherever they appear and add, in their place, the words 
``this subpart''.

    Issued in Washington, DC, on October 9, 2003.
James Ballough,
Director, Flight Standards Service.
[FR Doc. 03-26104 Filed 10-21-03; 8:45 am]
BILLING CODE 4910-13-P