[Federal Register: August 8, 2003 (Volume 68, Number 153)]
[Proposed Rules]
[Page 47269-47272]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08au03-30]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 91, 121 and 135
[Docket No. FAA-2003-14830; Special Federal Aviation Regulation (SFAR)
No. 71]
RIN 2120-AH02
Air Tour Operators in the State of Hawaii
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This action proposes to continue the existing safety
requirements in Special Federal Aviation Regulation No. 71 (SFAR 71)
and eliminate the termination date for SFAR 71. Currently, SFAR 71 is a
final rule that will expire on October 26, 2003. Since 1994, the FAA
has extended SFAR 71 for two 3-year periods. The procedural,
operational, and equipment safety requirements of SFAR 71 would
continue to apply to parts 91, 121, and 135 air tour operators in
Hawaii. SFAR 71 does not apply to operations conducted under part 121
in airplanes with a passenger-seating configuration of more than 30
seats and a payload capacity of more than 7,500 pounds or to flights
conducted in gliders or hot air balloons.
DATES: Comments must be received on or before September 8, 2003.
ADDRESSES: You may submit comments to FAA-2003-14830 by any of the
following methods:
[sbull] Web site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
[sbull] Fax: 1-202-493-2251.
[sbull] Mail: Docket Management Facility: U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-001.
[sbull] Hand Delivery: Room PL-401 on the plaza level of the Nassif
Building, 400 Seventh Street, SW., Washington, DC between 9 am and 5
pm, Monday through Friday, except Federal Holidays.
[sbull] Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting
comments.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Public
Participation heading of the SUPPLEMENTARY INFORMATION section of this
document. Note that all comments received will be posted without change
to http://dms.dot.gov, including any personal information provided.
Please see the Privacy Act heading under SUPPLEMENTARY INFORMATION and
Regulatory Notices.
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC between 9 am and 5 pm, Monday through Friday, except
Federal Holidays.
FOR FURTHER INFORMATION CONTACT: Alberta Brown, Aviation Safety
Inspector, Air Transportation Division, AFS-200, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
Telephone (202) 267-8321, or by email at Alberta.Brown@faa.gov.
SUPPLEMENTARY INFORMATION:
Public Participation
Interested persons are invited to participate in this proposed
rulemaking by submitting such data, views or arguments, as they may
desire. Comments that provide the factual basis supporting the views
and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on a proposal. Comments are specifically
invited on the overall regulatory, economic, environmental and energy-
related aspects of the proposal. If you are submitting comments on
paper, write docket number FAA-2003-14830 on your comments and submit
them in duplicate. Submit your comments to the Docket Management System
or through the internet at the addresses listed above.
Anyone who would like the FAA to acknowledge receipt of their
comments must submit a self-addressed, stamped, postcard containing the
statement ``Comments to Docket No. FAA-2003-14830.'' The postcard will
be date/time stamped and returned. All communications received on or
before the specified closing date for comments will be considered
before taking action on this proposed rule. Comments filed after the
closing date will be considered to the extent practicable. The proposal
may be changed in light of the comments received.
All comments submitted will be available for examination in the
public docket both before and after the closing date for comments. If
any substantive contact with FAA personnel occurs concerning this
proposal after its publication, a report summarizing that contact will
be placed in the docket.
Privacy Act
Anyone is able to search the electronic form of all comments
received into our dockets by the name of the individual submitting the
comment (or signing the comment, if submitted on behalf of an
association, business, labor union, etc.). You may review DOT's
complete Privacy Statement in the Federal Register published on April
11, 2000 (volume 65, Number 70, pages 19477-78), or you may visit
http://dms.dot.gov.
Availability of the Proposed Rule
You can download an electronic copy of this proposed rule through
the Internet by:
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) Web page (http://dms.dot.gov/search);
(2) Visiting the Office of Rulemaking's Web page at http://www.faa.gov/avr/armhome.htm
; or
(3) Accessing the Federal Register's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html
.
You also can 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 you put docket number FAA-2003-14830 on your request. to identify
this rulemaking.
You may review the public docket containing this proposal, any
comments
[[Page 47270]]
received, and any final disposition, in person in the Docket Management
System office (see address above) between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) requires the FAA to comply with small entities requests for
information or advice about compliance with statutes and regulations
within its jurisdiction. Internet users can find additional information
on SBREFA on the FAA's Web page at http://www.2faa.gov/avr/arm/sbrefa.htm.
Persons without internet access may call the office of
rulemaking at (202) 267-8677 for more information.
Background
In 1994, the FAA issued SFAR 71 as an emergency rule because of
safety concerns about the risks associated with air tours in Hawaii and
the increase in the accident rate (59 FR 49138, September 26, 1994).
Currently, SFAR 71 imposes special safety requirements for all air
tours conducted in Hawaii under parts 91, 135, and certain part 121
operations.
Section 3 specifically addresses single engine helicopters operated
beyond the shore of any island. Without regard to gliding distance, the
helicopter must be equipped with floats adequate to accomplish a safe
emergency ditching as well as flotation gear easily accessible to each
occupant. If there are no floats on the helicopter, each occupant must
wear the flotation gear.
Section 4 applies to all helicopter air tours, not just single
engine helicopters or off shore air tours, and requires operators to
complete a performance plan before each flight. The pilot in command
must comply with the performance plan.
Section 5 requires that, except for approach to, and transition
from a hover, the pilot in command of a helicopter air tour operate at
a combination of height and forward speed (including hover) that would
permit a safe landing in the event of engine power loss, in accordance
with the height-speed envelope for that helicopter under current weight
and aircraft altitude.
Section 6 requires minimum altitudes for air tours in Hawaii. No
person may conduct an air tour in Hawaii below an altitude of 1,500
feet above the surface or closer than 1,500 feet to any person or
property. There are exceptions for altitudes necessary for takeoff and
landing, compliance with air traffic control clearances, and altitudes
prescribed by federal statute or regulation. Section 6 also allows
operators to obtain deviation authority from the FAA to operate at
lower altitudes.
Section 7 requires that each pilot in command of an air tour flight
of Hawaii, with a flight segment beyond the ocean shore of any island,
ensure that passengers are briefed on water ditching procedures, use of
flotation equipment, and how to exit from the aircraft in the event of
a water landing.
The original SFAR would have expired 3 years after becoming
effective in October 1994; however, the FAA extended the termination
date in both 1997 and 2000 for additional 3-year terms. (62 FR 58854,
October 30, 1997; 65 FR 58610, September 29, 2000.) Except for the date
extensions, SFAR 71 has continued without change to its substantive or
procedural safety requirements and has remained in effect for
approximately 9 years.
As discussed in the two extensions, the FAA will continue to
develop a national air tour safety standards notice of proposed
rulemaking. The national rulemaking will be responsive to the NTSB and
others who believe that air tour safety standards should be applicable
nationwide.
There have been three lawsuits regarding SFAR 71 rulemaking. The
Hawaii Helicopter Operators Association (HHOA) challenged the validity
of the emergency rule issued in 1994, contending that the FAA had
violated the notice and comment provisions of the Administrative
Procedure Act (APA). The United States Court of Appeals for the Ninth
Circuit upheld the promulgation of SFAR 71 as an emergency rule finding
that the FAA had properly invoked the good cause exception to section
553(c) of the APA. Also, the Court rejected HHOA's claim that the
SFAR's 1,500 foot minimum altitude requirement was arbitrary and
capricious. See Hawaii Helicopter Operators Association v. FAA, 51 F.
3d 212 (9th Cir. 1995).
When the FAA extended SFAR 71 in 1997 and 2000, Safari Aviation,
Inc., petitioned for review of both rules in the 9th Circuit. As to the
1997 interim rule, the Court held that the challenge was moot because
the rule had expired. As to the 2000 rule extending SFAR 71 without
change (except for the date) the Court found that the FAA adequately
responded to the comments it received. The FAA was required to respond
only to significant comments raising relevant points and which, if
adopted, would require a change to the proposal. The Court found that
the FAA had a rational basis for promulgating SFAR 71 and held that the
rule was not arbitrary or capricious. The Court also held that the FAA-
approved deviations from the altitude minimums in SFAR 71 were
interpretive rules not subject to the notice and comment provisions of
the APA. See Safari Aviation v. FAA, 300 F. 3d 1144 (9th Cir. 2002)
cert. denied.
The Petition for Rulemaking
In October 2002, 15 helicopter air tour operators and their pilots
who operate in Hawaii petitioned to amend SFAR 71. Each of the
identical petitions was signed by air tour pilots. The petitions are
available in docket number FAA-2002-13959 as well as this rulemaking
docket. Petitioners state that the 1,500-foot minimum altitude
requirement in SFAR 71, even with FAA approved specific deviation
authority, ``is cumbersome and lacks flexibility in dynamic
circumstances.'' They maintain that the altitude requirement in SFAR 71
is ``unnecessarily restrictive and compromises safety by taking away
pilot options.'' Petitioners state that ``pilot judgment should dictate
altitude and standoff distances in accordance with well-established FAA
regulatory practice and helicopter industry experience.''
Petitioners agree that the 1,500-foot minimum altitude restriction
should be maintained for habitable structures and congregations of
persons. For other areas, however, they request that the FAA amend the
altitude restriction for helicopters to align it with federal aviation
regulation section 135.203 (14 CFR 135.203). The 300-ft. altitude
restriction in 14 CFR 135.203 refers to VFR helicopter operations over
congested areas; however, petitioners maintain that 300 feet is a
reasonable minimum altitude to apply to helicopter tour operations in
noncongested areas in Hawaii. They ask the FAA to amend SFAR 71 to
allow air tour helicopter operations at 300 feet except when operating
over habitable structures or congregations of people.
Petitioners maintain that allowing helicopter air tours as low as
300 feet would make ``SFAR 71 safer because pilot decision-making would
no longer be compromised by pressure to maintain unreasonable altitudes
in certain circumstances.'' They believe that ``the pilot would then
have the latitude to determine the safe and most reasonable route of
flight considering terrain and weather.''
Petitioners state that SFAR 71 causes helicopter tours to fly over,
or very close to, communities concentrated along the coast of the
windward side of the Hawaiian Islands in order to stay at 1,500 feet
and remain under the cloud
[[Page 47271]]
ceiling. They state that general aviation airplanes fly low in this
area to stay below the helicopter tour flights. They assert that this
practice is ``contrary to common sense, increases the potential for
mid-air collisions, and increases noise exposure for coastal
communities.'' Finally, petitioners state that a review of the pre-SFAR
helicopter accidents in Hawaii would disclose that ``a 300 foot
restriction would have been equally effective in preventing almost
every accident attributed to low altitude.''
In an identical addendum to the petition, some petitioners state
that SFAR 71 should be rescinded and that the rules governing
helicopter flight and equipment should be uniform throughout the United
States. These petitioners maintain that parts 91 and 135 are
established safety regulations acceptable to helicopter tour pilots and
tour operators on a nationwide level. They contend that SFAR 71 was
imposed because of a political outcry for increased regulations. They
also maintain that the accident history used to support SFAR 71 shows
that if the pilots and operators had complied with existing
regulations, the accidents would not have occurred or the outcomes
would have been different.
The FAA's Response
The FAA has considered the petitioners' views, arguments and
information in formulating this notice of proposed rulemaking. During
the years that SFAR 71 has been in effect, the FAA has received many
comments about the minimum altitude requirement; it continues to be a
contentious issue. When the FAA issued SFAR 71 in 1994 as an emergency
rule, the National Transportation Safety Board and others criticized
the minimum altitude requirement because of a concern that tour
operations would be concentrated at that altitude increasing the risk
of mid-air collisions and derogating safety. In practice, the FAA has
granted deviations to a majority of the operators, which has mitigated
this concern. By granting the deviations, the FAA has provided the
majority of air tour operators with specific interpretations of how the
minimum altitude requirement of SFAR 71 applies to them in light of
their individual safety qualifications and differences in local terrain
and prevailing conditions.
The petitions and addendums to the petitions raise issues again
that are similar to comments received by the agency during the three
rulemaking proceedings on this SFAR. The helicopter air tour operators
do not agree with the 1,500-ft. altitude minimum and they want to fly
lower at 300 feet over other than congested areas in Hawaii without
obtaining an FAA authorized deviation. They acknowledge, however, that
a minimum altitude of 300 feet would not have prevented all the pre-
SFAR accidents attributable to low altitude. SFAR 71 limits the minimum
altitude at which air tours may be conducted and, to that extent, the
FAA agrees with petitioners that SFAR 71 has taken away a pilot option.
An altitude of 1,500 feet provides a pilot with more distance, and thus
time, to avoid an accident or to deal with an error.
In summary, SFAR 71 has been successful in reducing the air tour
accident rate in Hawaii and does not compromise safety. Any FAA issued
deviations from the altitude requirement will continue to be site
specific because the public interest in safety requires a case-by-case
and site-by-site assessment for each altitude deviation request.
The Proposal
The FAA proposes to continue the safety requirements of SFAR 71
without a termination date because of the success of SFAR 71 in
reducing the air tour accident rate in Hawaii and the proven
effectiveness of the SFAR's requirements.
Environmental Review
In accordance with FAA Order 1050.1D, the FAA has determined that
this proposed rule is categorically excluded from environmental review
under section 102(2)(C) of the National Environmental Policy Act. The
original SFAR 71 established procedural, operational, and equipment
safety requirements for air tour aircraft in the state of Hawaii. This
proposal would maintain the same requirements. This rulemaking will not
involve any significant impacts to the human environment and the FAA
has determined that there are no extraordinary circumstances.
Regulatory Evaluation Summary
This regulatory evaluation estimates the benefits and costs of a
proposed rule that would continue the existing safety requirements in
SFAR 71 and eliminate its termination date. Currently, SFAR 71 is a
final rule that will expire on October 26, 2003. Since 1994, the FAA
has extended SFAR 71 for two 3-year periods. The procedural,
operational, and equipment safety requirements of SFAR 71 would
continue to apply to parts 91, 135, and certain 121 air tour operators
in Hawaii. SFAR 71 does not apply to operations conducted under part
121 in airplanes with a passenger-seating configuration of more than 30
seats and a payload capacity of more than 7,500 pounds or to flights
conducted in gliders or hot air balloons.
The FAA estimates the total cost of this proposed rule at $29.8
million or $20.9 million, discounted. The costs reflect maintenance and
operating costs attributable to flotation devices and flotation gear,
operating costs required for calculating helicopter performance plans
and providing passenger briefing for emergency egress in the event of a
water landing. Lost opportunity costs would also be incurred due to the
minimum weather provisions.
The quantified monetary benefits of the proposed rule are estimated
at $125.3 million. An estimated 39 fatalities would be avoided, if the
rule were 100 percent effective and the rule would have to be less than
23 percent effective for the cost per fatality avoided to exceed the
benchmark value of $3.0 million.
The FAA has determined that the benefits of the proposed rule would
exceed the cost. The rule would not impact on international trade
because the affected operators do not compete with foreign operators.
The rule would not have an unfunded mandate exceeding $100 million
annually on the private sector or state, local, and tribal governments.
The FAA has determined that the proposed rule would have a significant
impact on a substantial number of small air tour operators.
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.
In accordance with the above statute, the FAA has assessed the
potential effect of this proposed rule and has determined that it would
have only a domestic impact and therefore no affect on any trade-
sensitive activity.
Paperwork Reduction Act
SFAR 71 contains information collection requirements. Those same
requirements apply to this extension. OMB approval (No. 2120-0620) has
been extended through January 31, 2004.
[[Page 47272]]
Unfunded Mandates Reform Act
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 the 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.
Federalism Implications
The regulations herein will not have substantial direct effects on
the State, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, the FAA certifies that this regulation will not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
List of Subjects
14 CFR Part 91
Aircraft, Airmen, Aviation safety.
14 CFR Part 121
Air carriers, Aircraft, Airmen, Aviation safety, Charter flights,
Safety, Transportation.
14 CFR Part 135
Air taxi, Aircraft, Airmen, Aviation safety.
The Amendment
The Federal Aviation Administration proposes to amend 14 CFR parts
91, 121, and 135 as follows:
PART 91--GENERAL OPERATING AND FLIGHT RULES
1. The authority citation for part 91 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120, 44101, 44111,
44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306,
46315, 46316, 46502, 46504, 46506-46507, 47122, 47508, 47528-47531.
PART 121--OPERATING REQUIREMENTS: DOMESTIC FLAG, AND SUPPLEMENTAL
OPERATIONS
2. 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, 46105.
3. Add SFAR No. 71 to part 121.
PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND OPERATIONS
4. 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.
5. In parts 91, 121, and 135, SFAR NO. 71--Special Operating Rules
For Air Tour Operators In The State of Hawaii, Section 8 is revised to
read as follows:
SFAR NO. 71--Special Operating Rules for Air Tour Operators in the
State of Hawaii
* * * * *
Section 8. Termination date. This SFAR NO. 71 shall remain in
effect until further notice.
Issued in Washington, DC on August 4, 2003.
John M. Allen,
Acting Director, Flight Standards Service.
[FR Doc. 03-20277 Filed 8-5-03; 4:47 pm]
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