[Federal Register Volume 59, Number 185 (Monday, September 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23840]


[[Page Unknown]]

[Federal Register: September 26, 1994]


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Part V





Department of Transportation





_______________________________________________________________________



Federal Aviation Administration



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14 CFR Parts 91 and 135




Air Tour Operators in the State of Hawaii; Final Rule
DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91 and 135
[Docket No. 27919; Special Federal Aviation Regulation (SFAR) No. 71]
RIN 2120-AF53
 
Air Tour Operators in the State of Hawaii
AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: This action establishes certain procedural, operational and 
equipment requirements for air tour operators in the State of Hawaii. 
This emergency rule is necessary because of an escalation of air tour 
accidents. The regulation is intended to enhance the safety of air tour 
operations within the State.

DATES: This final rule is effective October 26, 1994. Comments must be 
received on or before December 27, 1994.

ADDRESSES: Send comments on this final rule in triplicate to: Federal 
Aviation Administration, Office of the Chief Counsel, Attention: Rules 
Docket (AGC-200), Docket No. 27919, 800 Independence Ave., SW., 
Washington, DC 20591. Comments delivered must be marked Docket No. 
27919. Comments may be examined in room 915G weekdays between 8:30 a.m. 
and 5 p.m., except on Federal holidays.
    Commenters who wish the FAA to acknowledge the receipt of their 
comments must submit with their comments a self-addressed, stamped 
postcard on which the following statement is made: ``Comments to Docket 
No. 27919.'' The postcard will be date stamped by the FAA and returned 
to the commenter.

FOR FURTHER INFORMATION CONTACT: Brian Calendine, Air Transportation 
Division, AFS-200, Federal Aviation Administration, 800 Independence 
Avenue, S.W., Washington, D.C. 20591; Telephone (202) 267-8166.

SUPPLEMENTARY INFORMATION:

Availability of Final Rule

    Any person may obtain a copy of this final rule by submitting a 
request to the Federal Aviation Administration, Office of Public 
Affairs, Attention: Public Information Center, APA-220, 800 
Independence Avenue, SW., Washington, DC 20591, or by calling (202) 
267-3485. Requests should be identified by the docket number of this 
rule.
    Persons interested in being placed on a mailing list for notices of 
proposed rulemaking should request a copy of Advisory Circular No. 11-
2A, ``Notice of Proposed Rulemaking Distribution System,'' which 
describes the application procedure.

Background

The Air Tour Industry

    Since 1980, the air tour industry in the State of Hawaii has grown 
rapidly, particularly on the islands of Oahu, Kauai, Maui, and Hawaii. 
The growth of the tourist industry, the beauty of the islands, and the 
inaccessibility of some areas on the islands has generated tremendous 
growth in the number of air tour flights. In 1982, there were 
approximately 63,000 helicopter and 11,000 airplane air tour flights. 
By 1991, these numbers had increased to approximately 101,000 for 
helicopters and 18,000 for airplanes. After a slight decline due to 
Hurricane Iniki in 1992, air tour flights in 1994 are projected to 
reach the 1991 levels. In Hawaii, the air tour industry carries about 
400,000 passengers annually. Thirty-eight operators are conducting air 
tours within the State of Hawaii, using approximately 97 helicopters 
and 16 fixed-wing aircraft. During the 9-year period between 1982 and 
1991, there were eight fatal accidents with 24 fatalities. The accident 
data shows an escalation of fatal accidents during the 3-year period 
between 1991 and 1994. During this time, there were five fatal 
accidents with 24 fatalities. (See table and figure)

Use of Helicopters in Air Tours

    Helicopters are uniquely suited for air tours in Hawaii because 
they can operate at slow speeds and hover over scenic areas. Helicopter 
air tours are often conducted close to the ground, near scenic 
attractions so passengers can see and experience the thrill of being 
close to geological and terrain features, such as lava flows and 
waterfalls.
    Some air tour operators advertise dramatic overwater flights to 
view whales, shorelines, cliffs, and waterfalls; entry into one-way 
canyons; flying close to hot molten lava; and hovering over the 
shoreline where molten lava flows into the ocean. Some advertising 
brochures, for example, describe air tours as ``excitement to the 
boiling point,'' and invite tourists to ``fly into the heart and heat 
of an active volcano'' and ``close enough to waterfalls to feel the 
cooling mist.'' One fixed-wing air tour operator formerly advertised 
that ``[w]e fly you lower and slower than any twin engine plane can . . 
. lower and slower than many helicopters do . . .''
    While passengers are often attracted to the thrill associated with 
low-flying air tours, they are generally not aware of the risks 
involved. Risks associated with low flying air tour operations include: 
unpredictable winds that create less stable flying conditions; fewer 
options to escape unforeseen weather; unmarked or unknown obstructions; 
less time to select suitable emergency landing areas; increases in 
pilot workload because of quick stops, rapid turns, and watching for 
obstructions; inability to be detected by air traffic control radar; 
inability to conduct two-way radio communication; increased likelihood 
of ingesting foreign debris, including salt water spray, into the 
engine; less overall reaction time; and congestion of low flying 
traffic at scenic locations. Further, many air tours are conducted over 
scenic areas along rugged coasts, where, in the event of an engine 
failure, the pilot must ditch in the ocean. A helicopter without 
flotation devices, unlike most light airplanes, may sink within 
moments.

History and Escalation of Accidents

    The growth of the air tour sightseeing industry in Hawaii has been 
associated with an escalation of accidents. The proximate causes of the 
accidents range from engine power loss to encounters with adverse 
weather. Contributing factors to the causes and seriousness of 
accidents are: operation beyond the demonstrated performance envelope 
of the aircraft, inadequate preflight planning for weather and routes, 
lack of survival equipment, and flying at low altitudes (which does not 
allow time for recovery or forced landing preparation in the event of a 
power failure).
    The following table is a synopsis of selected air tour accidents 
involving aircraft damage, minor or serious injuries, or fatalities 
that occurred between September 1982 and September 1994.

                      Selected Air Tour Accidents in Hawaii, September 1982-September 1994                      
----------------------------------------------------------------------------------------------------------------
    Date                 Type              Part           Location                  Injuries          Fatalities
----------------------------------------------------------------------------------------------------------------
9/2/82        Bell 206-L...............      135  Lihue...................  2 serious...............  ..........
                                                                            3 minor.................            
4/8/84        Grumman AA-5A............       91  Kamuela.................  ........................           4
9/26/85       Aerospatiale.............      135  Kula....................  5 minor.................           1
1/1/86        Cessna R172K.............      135  Kamuela.................  4 serious...............           1
5/18/86       Bell 206B................       91  Maui....................  1 serious...............           2
                                                                            1 minor.................            
3/29/87       Bell 206B................      135  Kona....................  3 serious...............           1
                                                                            1 minor.................            
4/24/87       Cessna 172N..............       91  Lihue...................  ........................           4
5/29/88       Bell 206B................      135  Honolulu................  2 minor.................  ..........
5/20/89       Aerospatiale AS350D......      135  Waialae Falls...........  7 minor.................  ..........
6/11/89       Beech H18................      135  Waipio Valley...........  ........................            
8/19/89       Aerospatiale AS350D......      135  Volcano.................  1 serious...............          11
                                                                            5 minor.................            
5/5/91        Hughes 369HS.............      135  Keanae..................  3 minor.................  ..........
6/6/91        Bell 206B................       91  Lihue...................  3 serious...............  ..........
                                                                            1 minor.................            
11/9/91       Bell 206B................      135  Hilo....................  1 serious...............  ..........
                                                                            2 minor.................            
4/22/92       Beech E18S...............      135  Mount Haleakala.........  ........................           9
9/16/92       Aerospatiale AS350B......      135  Hana....................  ........................           7
9/21/92       Bell 47..................       91  Volcano National Park...  3 minor.................  ..........
1/25/93       Fairchild Hiller FH-1100.       91  Volcano National Park...  1 minor.................           4
2/23/94       Aerospatiale AS350B......      135  Volcano National Park...  1 serious...............  ..........
                                                                            1 minor.................            
3/25/94       Hughes 369D..............      135  Hawaii National Park....  ........................  ..........
4/18/94       Hughes 369D..............      135  Waimea..................  4 serious...............           1
7/14/94       Aerospatiale AS350D......      135  Hanalei.................  ........................           3
7/14/94       Aerospatiale AS350D......      135  Molokai.................  ........................  ..........
8/11/94       Aerospatiale AS350D......      135  Waipio Valley...........  ........................  ..........
9/3/94        Hughes 369D..............      135  Hilo....................  ........................  ..........
----------------------------------------------------------------------------------------------------------------

    The table shows a total of 24 air tour fatalities between 1982 and 
1991 (9 years). Even though there was a decline in the number of air 
tour flights in 1992, the accident data show an escalation of fatal 
accidents between 1991 and 1994. From July 1991 through July 1994 (3 
years), there were 20 air tour accidents involving 24 fatalities. (See 
figure.) Since January 1993, three helicopter accidents have involved 
landings in the ocean with two of those accidents resulting in seven 
fatalities. The most recent fatal accident occurred on July 14, 1994. 
The most recent non-fatal accident occurred on September 3, 1994. (See 
table.)

BILLING CODE 4910-13-M

TR26SE94.001


BILLING CODE 4910-13-C

National Transportation Safety Board Recommendations

    Based on its investigation of the April 22, 1992, accident in 
Haleakala National Park, the National Transportation Safety Board 
(NTSB) recommended that the FAA ``[c]reate a specific classification 
for, and operating rules governing, commercial air tour operators based 
on the complexity of flight operations, aircraft flown, flight 
frequency, number of passengers carried, air traffic densities in the 
area of operation, and other relevant factors'' (A-93-8). In addition, 
the NTSB recommended that the FAA ``[i]dentify airspace which warrants 
special protection due to air tour operations,'' and ``[c]reate special 
operating rules for such airspace to reduce the potential for midair 
collisions and other accidents commensurate with meteorological and 
terrain considerations.'' (A-93-10) In response to the NTSB's 
recommendations, the FAA has informed the NTSB that it is considering a 
special rule for air tour operators in Hawaii.
    Based on the NTSB recommendations, accident investigations, and 
discussions with the NTSB, the FAA has identified the following as 
needing to be addressed:
    (1) Air tour operators fly too close and too low to various 
attractions and land features.
    (2) There is no clear definition of ``suitable landing site'' for 
helicopters.
    (3) Sightseeing helicopters are operating in the avoid area of the 
height-speed envelope (deadman's curve) where successful autorotations 
are not possible.
    (4) Helicopters operating along the shorelines of the Hawaiian 
Islands should be equipped with appropriate flotation equipment.
    (5) Passengers should be briefed before flights on the use of 
flotation gear.

Actions Other Than Rulemaking to Address the Problems

    The FAA, the State of Hawaii, and the air tour industry have been 
attempting to correct safety problems that affect air tour operations.
    In 1986, the FAA conducted a study of helicopter sightseeing 
operations in Hawaii. The study team was composed of representatives 
from the FAA, the State of Hawaii, and industry. Based on the study, 
recommendations were made to the State and to operators in Hawaii to 
improve safety and community relations. Recommendations included the 
following:
    (1) The FAA should study the possibility of imposing limitations, 
through operations specifications, that would require the helicopter to 
be operated at a combination of height and forward speed (including 
hover) that would permit a safe landing in event of engine power loss, 
in accordance with the height-speed envelope for that helicopter under 
current weight and aircraft altitude. These limitations would also 
prevent the helicopter from being flown over areas in which a safe 
forced landing could not be made.
    (2) The FAA should advise helicopter operators who conduct 
passenger-carrying operations under part 91 or part 135 that a flight 
(1) over an area in which a successful forced landing could not be 
made, or (2) at an airspeed and altitude combination that places the 
aircraft beyond its performance capability to successfully autorotate, 
would be considered a reckless operation under Sec. 91.13 (formerly 
Sec. 91.9).
    The study team was also concerned about the lack of helicopter 
flotation equipment on some aircraft, particularly for operations along 
the coastlines of the islands, where cliffs and rocks make a successful 
autorotation to shore virtually impossible. The team believes that the 
shoreline must offer a reasonable chance to land safely in the event of 
engine failure, and that, if no such area exists, appropriate 
helicopter flotation equipment should be required.
    Also, in 1986, the FAA conducted a joint study with the State of 
Hawaii on helicopter heliport and airport access. A result of that 
study was the Helicopter Operating Plan for Hawaii. Based on portions 
of that plan, the Hawaiian Helicopters Operators Association (HHOA) 
developed its ``Fly Neighborly'' program. The HHOA plan calls for 
voluntary compliance with a standoff distance of 1,500 feet and a 
minimum altitude of 1,500 feet over communities. In addition, the plan 
calls for a 3,000-foot standoff distance in areas of Volcanoes National 
Park. The HHOA program includes part 91 operators as well as part 135 
certificated operators. This is a voluntary program without FAA 
oversight.
    On January 17, 1992, the FAA issued Handbook Bulletin No. 92-01, 
Air Tour/Sightseeing Operations. The bulletin advises principal 
operations inspectors to recommend to operators that they include 
procedures in their operations manuals for conducting air tour/
sightseeing operations. The bulletin also advises the inclusion of 
charts of air tour areas, procedures for obtaining current weather, 
provisions for pilot training, and other information specific to air 
tour operations.
    In January 1994, the FAA held four public meetings in Hawaii to 
investigate complaints regarding flight safety, aircraft noise, and 
possible intrusive flights of helicopters. While the vast majority of 
the commenters addressed the noise issue, some commenters did raise 
safety issues. Some of the public meeting comments and subsequent 
comments submitted to the FAA highlight a number of personal 
experiences of individuals who witnessed helicopters flying dangerously 
low over scenic areas and above people and property on the ground. In 
some instances, witnesses claimed that the aircraft flew lower than the 
people who were walking on high elevation trails.
    The Honolulu Flight Standards District Office, during the past 3 
years, has conducted an extensive inspection and surveillance program 
of the air tour industry. On July 15, 1994, in response to a number of 
recent accidents, the FAA initiated a comprehensive review of 
operations and maintenance practices of the Hawaiian air tour 
operators. In addition, the FAA requested that all air tour operators 
in the State of Hawaii immediately conduct a ``stand down'' safety 
review of their operational and maintenance practices.

Need for Emergency Rulemaking

    Despite the voluntary measures, the cooperation of the Hawaii air 
tour operators, and the FAA's inspections, the accident data show that 
additional measures are necessary to ensure safe air tour operations in 
Hawaii. The current regulatory scheme is not comprehensive enough to 
ensure the safety of all air tour operations in Hawaii.
    Section 91.119 prescribes minimum altitudes for airplanes and 
helicopters that provide for the protection of persons and property on 
the surface. Generally, a pilot may not operate below an altitude 
allowing, if power failure occurs, an emergency landing without undue 
hazard to persons or property on the surface. Helicopters may be 
operated at lower altitudes than airplanes if the operation is 
conducted without hazard to persons or property on the surface and the 
pilot can conduct a safe emergency landing in the event of power 
failure.
    Under ideal conditions, a helicopter, unlike an airplane, can land 
at or near zero forward speed, provided the landing area is relatively 
level and free of obstructions. Factors that make an emergency landing 
site unsuitable include obstacles, rugged terrain, congested areas and 
water. Obstacles range from natural terrain features and trees to 
buildings and utility towers with wires strung between them.
    A major factor affecting safety of flight in any single engine 
aircraft at low altitude is the limited choice of suitable emergency 
landing areas. Hawaii's unique topography--active volcanoes spewing hot 
molten lava, sharp cliffs, cascading waterfalls, rugged coastlines, 
mist-shrouded mountains, dense tropical rainforests and deep, closed 
canyons--often complicates access to suitable emergency landing areas. 
The air tour accidents in Hawaii indicate that helicopter pilots have 
had insufficient time to locate suitable landing areas after engine 
power loss or other problems leading to accidents.
    Based on the recent escalation of accidents caused by unsafe 
operating practices, and the fact that voluntary measures are 
insufficient, the FAA is implementing this emergency final rule as 
Special Federal Regulation (SFAR) No. 71.

The Special Federal Aviation Regulation

    The FAA is promulgating these requirements in an SFAR, rather than 
a general rule, to address the unique problems associated with the 
Hawaiian air tour operating environment.
    This emergency regulatory action establishes additional operating 
procedures, including minimum safe altitudes (and associated increases 
in visual flight rules (VFR) weather minimums), minimum equipment 
requirements, and operational limitations for air tour aircraft in the 
State of Hawaii.

Applicability and Definitions

    This SFAR applies to parts 91 and 135 air tour operators in the 
State of Hawaii (section 1). In section 2, ``air tour'' is defined as 
any VFR sightseeing flight conducted in an airplane or helicopter for 
compensation or hire. ``Air tour operator'' is defined as any person 
who conducts an air tour.

Flotation Devices

    The SFAR requires that any single-engine air tour helicopter flown 
beyond the shore of any island must be amphibious or equipped with 
emergency floats and approved flotation gear easily accessible for each 
occupant, or that each person on board the helicopter wear approved 
flotation gear. An amphibious helicopter or one equipped with floats 
will allow a safe emergency ditching. This requirement is specific to 
helicopters because helicopters, unlike airplanes, may sink rapidly 
after forced landings on water.
    These requirements should reduce the risk of drowning, such as the 
deaths that occurred on January 25, 1993, when a helicopter, operating 
under part 91, crashed in deep water while on a sightseeing flight to 
view molten lava flowing into the ocean off the coast of Volcanoes 
National Park. 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 flotation devices, and 
the pilot and four passengers were not wearing lifevests. Only the 
pilot survived. The NTSB found that a factor which contributed to the 
passengers' fatal injuries was the operator's failure to provide 
lifevests to the passengers.
    In a July 14, 1994, accident, an air tour helicopter with seven 
people on board made a forced landing in the Pacific Ocean after losing 
power off Kauai's Na Pali Coast. Three passengers swam to shore and 
another was rescued from the water. The pilot and two other passengers 
drowned. The helicopter was not equipped with flotation devices, and 
the passengers did not have sufficient time to don the lifevests on 
board the helicopter.
    Later, on the same day, a different air tour helicopter made a 
forced landing after losing power off the north coast of Molokai. All 
persons aboard the helicopter swam to shore and were rescued the next 
day. The helicopter was equipped with flotation devices, and the pilot 
and passengers had sufficient time to don the lifevests.
    Flotation equipment on a helicopter should allow the helicopter to 
remain afloat long enough for the persons to egress safely; the 
individual flotation gear should allow the survivors an opportunity to 
swim to shore or to be picked up by rescue personnel. Flotation 
equipment/lifevests helped to ensure the survival of the passengers in 
the second accident on July 14.
    The FAA is considering changing the rule to require that all 
single-engine helicopters conducting air tour operations beyond the 
shore of any island be amphibious or fitted with flotation devices. 
Therefore, the FAA is requesting comments on this possibility. At the 
close of the comment period, the FAA will analyze the comments received 
and, based on its analysis, determine if further rulemaking is 
necessary.

Helicopter Performance Plan

    Section 4 requires that, before departure, the air tour operator 
must complete a performance plan for the helicopter flight. The pilot 
in command (PIC) is required to comply with the performance plan. The 
plan must be based on information in the rotorcraft flight manual 
(RFM), considering the maximum density altitude to which the operation 
is planned and must address such elements as maximum gross weight and 
center of gravity, maximum gross weight for hovering in or out of 
ground effect, and maximum combination of weight, altitude, and 
temperature for which height-velocity information in the RFM is valid. 
This requirement is necessary in light of accidents attributable to the 
failure of the pilot to stay outside the avoid area of the helicopter 
height-velocity envelope. The flight is not limited to the out-of-
ground effect (OGE) ceiling, and the helicopter may be operated at a 
higher altitude provided no hovering is planned.
    This requirement should enhance flight safety in light of certain 
accidents, including that which took place on May 20, 1989. On that 
date, an Aerospatiale AS350D was on a local sightseeing flight to view 
Waialae Falls with six passengers on board. 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 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.

Helicopter Operating Limitations

    Section 5 requires that the PIC shall operate the helicopter 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-velocity envelope for that helicopter under current 
weight and aircraft altitude. This requirement is necessary to prevent 
pilots from hovering for periods of time beyond the performance 
capability of the helicopter and outside what the height-velocity 
diagram permits for safe operation.
    This requirement prohibits aircraft from being operated in 
dangerous flight regimes, such as the January 25, 1993, accident 
discussed previously (when the pilot was hovering at a low altitude 
over a lava flow). It also is intended to prevent the type of accidents 
that occurred on March 25, 1994, and April 18, 1994. On March 25, 1994, 
the pilot of a Hughes 369D helicopter operated under part 135 lost 
control and collided with mountainous terrain by the Puu'oo Vent in 
Hawaii National Park. The helicopter had become enveloped in a steam 
cloud at a 40-foot hover just before the pilot lost control. The 
helicopter was destroyed; the pilot and passengers sustained minor 
injuries. On April 18, 1994, a Hughes 369D helicopter lost power during 
an OGE hover and collided with rocky terrain below Waimea Falls, 
Waimea, Kauai. The helicopter was on a sightseeing flight operated 
under part 135. The pilot and three passengers were seriously injured. 
One passenger was fatally injured.
    The requirement increases the possibility of safe landing in the 
event of engine failure. A safe landing may not be possible if the 
helicopter is within the avoid area of the height-velocity envelope 
when the engine failure occurs.

Minimum Flight Altitudes

    Section 6 requires that, unless operating in compliance with an air 
traffic control clearance, or as otherwise authorized by the 
Administrator, air tour operations may not be conducted below an 
altitude of 1,500 feet above the surface; and closer than 1,500 feet 
from any person or property; or below any altitude provided by Federal 
statute or regulation. As noted earlier, Hawaii's unique topography 
often complicates access to suitable emergency landing areas. The air 
tour accidents in Hawaii have been characterized by insufficient time 
for pilots to locate suitable landing areas after engine power loss or 
other problems leading to accidents. The requirement to maintain an 
altitude of 1,500 feet above the surface is necessary for safety 
because it allows the pilot sufficient time to react in an emergency, 
to notify and instruct passengers, and to prepare for a forced landing. 
An aircraft operating at least 1,500 feet above the surface allows the 
pilot a greater opportunity to select a suitable landing site than 
would be the case at lower altitudes. The FAA notes that these minimum 
distances are consistent with HHOA's Fly Neighborly program.
    The accident data also show low-flying aircraft flying VFR into 
instrument meteorological conditions (IMC). An additional benefit from 
the 1,500-foot minimum altitude will be the increased basic VFR weather 
minimums for these air tour operations. This provision is necessary in 
light of the numerous accidents that have occurred when the aircraft 
flew into terrain because of low visibility or because the pilot was 
flying too low. The accident data show that this is a problem for both 
airplanes and helicopters. For instance, on April 24, 1987, an air tour 
flight operated under part 91 collided with terrain in the Waimae 
Canyon. Marginal visual meteorological conditions were reported in the 
vicinity of the accident site. The pilot and three passengers were 
fatally injured. In the January 25, 1993, accident, in which the 
helicopter crashed in deep water after hovering between 100 and 150 
feet above sea level, the NTSB noted that a contributing factor to the 
accident was the pilot's choice of a hover altitude/position inadequate 
to reach a shoreline in the event of an emergency.
    On June 11, 1989, a Beechcraft BE-H18, operating under part 135 on 
a sightseeing flight, crashed near a waterfall in the Waipio Valley of 
the Kohala Mountains on the island of Hawaii. After filing a VFR flight 
plan, the pilot had departed Hilo International Airport for Maui. The 
pilot entered a closed canyon and ultimately impacted the canyon wall 
600 to 900 feet below the rim. The pilot and 10 passengers were fatally 
injured, and the airplane was destroyed by impact forces and postcrash 
fire. The NTSB determined that the probable cause of the accident was 
the pilot's improper decision to maneuver with insufficient altitude in 
a canyon area.
    On April 22, 1992, a Beechcraft E-18S operating on a VFR air tour 
flight collided with mountainous terrain in Haleakala National Park in 
an area where fog had reduced visibility around the mountain top. The 
FAA had provided a full weather briefing to the pilot, including an 
advisory that VFR flight was not recommended over the interior sections 
of all islands, and a forecast indicating isolated areas of 3 miles 
visibility due to haze and moderate rainshowers. The aircraft was 
destroyed, and the pilot and eight passengers were killed. Weather 
reports and witness statements indicate that IMC existed in the area at 
the time of the accident. The NTSB determined that the probable cause 
of this accident was the pilot's decision to continue visual flight 
into IMC that obscured rising mountainous terrain and his failure to 
use properly available navigational information to remain clear of the 
island.
    On September 16, 1992, an Aerospatiale AS-350B departed on a 
sightseeing flight even though adverse weather conditions including 
thunderstorms, rainshowers, and poor visibility were reported. A 
witness reported rainshowers and mountain obscuration about the time of 
the accident. He stated that he saw a helicopter flying in and out of 
clouds and stated that he could not understand why a helicopter would 
be flying so close to the mountains given the adverse weather 
conditions. The NTSB determined that a probable cause of the accident, 
which involved seven fatalities, was the pilot's inflight decision to 
continue VFR flight into adverse weather conditions. A factor in the 
accident was the pilot's inability to see and avoid the mountainous 
terrain due to the thunderstorms.

Briefing Passengers

    Section 7 contains the requirement that passengers be briefed (in 
addition to Secs. 91.102 and 135.117) before takeoff for an air tour 
flight with a flight segment beyond the ocean shore of any island. The 
briefing shall include information on water ditching procedures, use of 
personal flotation gear, and emergency egress from the aircraft. The 
PIC must orally brief passengers, distribute written instructions, or 
ensure that passengers have been briefed on emergency procedures. This 
provision is necessary in light of the flotation equipment requirements 
set forth in this emergency rule.

Related Rulemaking

    This SFAR is an emergency final rule addressing air tour operations 
in the State of Hawaii in light of the increasing frequency of 
accidents. The FAA is considering other rulemaking action to address 
noise and other issues concerning sightseeing overflights in national 
parks and other scenic areas. On March 17, 1994, the FAA and the 
National Park Service (NPS) issued a joint advance notice of proposed 
rulemaking (ANPRM) (59 FR 12740) seeking public comment on general 
policy and specific recommendations for voluntary and regulatory 
actions to address the effects of aircraft overflights on national 
parks. The FAA is currently analyzing comments submitted in response to 
the ANPRM. This SFAR is an emergency rule and not a final action in 
response to the joint FAA/NPS ANPRM.
    The promulgation of requirements and restrictions in this SFAR, 
including the minimum flight altitude restriction, does not preclude 
the FAA from revisiting the issues addressed in the SFAR. As mentioned 
above, changes to this SFAR may be necessitated after a review of the 
comments received from related regulatory proposals. Additionally, this 
SFAR may be amended after consideration of the comments received on 
this SFAR.

Paperwork Reduction Act

    This rule contains no information collection requests requiring 
approval of the Office of Management and Budget pursuant to the 
Paperwork Reduction Act (44 U.S.C. 3507 et. seq.).

Regulatory Evaluation Summary

Introduction

    Changes to Federal regulations are required to undergo several 
economic analyses. First, Executive Order 12866 directs each Federal 
agency to propose or adopt a regulation only upon a reasoned 
determination that the benefits of the intended regulation justify its 
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies 
to analyze the economic effect of regulatory changes on small entities. 
Third, the Office of Management and Budget directs agencies to assess 
the effect of regulatory changes on international trade. With respect 
to this rule, the FAA has determined that it: (1) is ``a significant 
regulatory action'' as defined in the Executive Order; (2) is 
significant as defined in the DOT Regulatory Policies and Procedures 
(44 FR 11034; February 26, 1979); (3) will have a significant impact on 
a substantial number of small entities; and (4) will not constitute a 
barrier to international trade. Therefore, a full regulatory analysis, 
which includes the identification and evaluation of cost-reducing 
alternatives to this rule, has been prepared. This regulatory 
evaluation summary presents a concise analysis of the costs and 
benefits associated with the final rule that amends the Federal 
Aviation Regulations by establishing certain operational, procedural, 
and equipment requirements for air tour operators in the State of 
Hawaii.

Costs

    The FAA estimates the total cost of the SFAR to be about $2.0 
million, with a present value of $1.8 million (7 percent discount 
rate), from 1995 to 1997. The FAA assumes that air tour operators will 
elect to have lifevests on board the helicopter rather than installing 
external flotation gear because the costs are dramatically lower. This 
present value cost includes the cost of about $190,000 to provide 
lifevests on the affected helicopters; the potential of $1.6 million in 
lost revenue to air tour operators due to minimum flight altitudes; and 
$10,000 for the development of a helicopter performance plan. Other 
requirements of the rule--helicopter operating limitations and 
passenger briefing--will impose little if any cost.

Benefits

    Since 1982, Hawaiian air tour operators have experienced 15 
accidents involving at least one serious injury or fatality where the 
lack of flotation gear, flying into bad weather, or flying low has 
played a role in the cause of the accident. These accidents have 
resulted in 48 fatalities and 30 injuries (16 serious and 14 minor). 
This evaluation divides these accidents into three categories: (1) 
Inadvertent air tour helicopter water landings without flotation gear; 
(2) air tour helicopter accidents related to flying into bad weather or 
flying low; and, (3) air tour airplane accidents related to flying into 
bad weather or flying low.
    The potential benefits of preventing all potential sightseeing 
accidents of a similar nature over the next 3 years totals $36.8 
million, with a present value of about $32.2 million, of which $13.7 
million would be for the prevention of helicopter accidents and $18.6 
million would be for the prevention of airplane accidents.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) helps to assure that 
Federal regulations do not overly burden small businesses, small 
nonprofit organizations, and airports located in small cities. The RFA 
requires regulatory agencies to review rules that may have ``a 
significant economic impact on a substantial number of small 
entities.'' A substantial number of small entities, defined by FAA 
Order 2100.14A, ``Regulatory Flexibility Criteria and Guidance,'' is 
more than one-third, but not less than 11, of the small entities 
subject to the existing rule. To determine if the rule will impose a 
significant cost impact on these small entities, the annualized cost 
must not exceed the annualized cost threshold established in FAA Order 
2100.14A.
    Small entities potentially affected by the final rule are small on-
demand air tour operators in Hawaii using helicopter and fixed-wing 
aircraft. The FAA assumes that air tour operators will elect to have 
lifevests on board the helicopter rather than installing external 
flotation gear because the costs are dramatically lower. The FAA 
estimates that the annualized cost associated with acquiring lifevests 
for all helicopter occupants is about $127 per seat. This estimate 
incorporates the cost of purchasing the lifevests, maintenance, and the 
associated weight penalty. Also, the FAA estimates that the annualized 
cost of the 1,500-foot minimum altitude requirement is about $989 per 
seat. This cost incorporates the estimated lost profits for days when 
tour operations are prohibited due to inclement weather.
    FAA Order 2100.14A defines small on-demand operators as those 
operating with a fleet of nine or fewer aircraft, which includes 37 (7 
fixed-wing and 30 helicopter) of the 38 air tour operators in Hawaii. 
The annualized cost threshold for small operators is $4,700 in 1994 
dollars. The FAA has determined that the final rule will have a 
significant economic effect on 6 of the 7 fixed-wing air tour operators 
and 25 of the 30 affected helicopter air tour operators. The final rule 
will impose costs greater than the annualized cost threshold of $4,700 
for all affected operators except for six of the small air tour 
operators.
    Due to the significant economic impact of the final rule on a 
substantial number of small entities, the FAA examined an alternative 
minimum altitude requirement for the affected operators. The FAA 
evaluated various minimum altitude requirements including 500, 800, and 
1,000 feet so as to reduce the annualized cost of the final rule on 
individual operators. The FAA has determined that a minimum altitude 
requirement of 500 feet will be necessary to lower the annualized cost 
of the final rule below the $4,700 threshold for most air tour 
operators. (Under Sec. 91.155, pilots conducting VFR flights more than 
1,200 feet above the surface in class G airspace must maintain a 500-
foot vertical clearance below the clouds. Pilots operating VFR in class 
G airspace 1,200 feet or less above the surface must remain clear of 
clouds.) The FAA estimates that the annualized cost of a 500-foot 
minimum altitude requirement is about $81 per seat. Including the cost 
of the lifevests, the FAA has determined that the combined cost of the 
lifevests and the alternative requirement for a 500-foot minimum 
altitude will lower the annualized cost below the $4,700 threshold for 
all fixed-wing air tour operators and 26 of the 30 helicopter air tour 
operators.
    The FAA has evaluated the level of safety for the 1,500-foot 
minimum altitude requirement in the final rule and that provided by a 
500-foot minimum altitude requirement. Although the 1,500-foot minimum 
altitude requirement has a significant economic impact on a substantial 
number of small entities, it provides operational safety superior to 
that provided by a 500-foot minimum altitude and is necessary in the 
public interest. With the 1,500-foot minimum altitude, fixed-wing 
aircraft and helicopters have a longer power off gliding time, and the 
pilots are better able to select a suitable landing area in the event 
of a power failure. Hawaii's unique topography often complicates access 
to suitable emergency landing areas. The air tour accidents in Hawaii 
have been characterized by insufficient time for pilots to locate 
suitable landing areas after engine power loss or other problems 
leading to accidents. Therefore, the additional safety margins at the 
1,500-foot minimum altitude should be provided when conducting 
passenger flights.

International Trade Impact Analysis

    The SFAR will not have any impact on international trade because 
the affected operators do not compete with foreign operators. The SFAR 
will not constitute a barrier to international trade, including the 
export of U.S. goods and services to foreign countries and the import 
of foreign goods and services to the United States.

Good Cause for Immediate Adoption

    The FAA is implementing this emergency final rule due to the recent 
escalation of fatal air tour accidents. Despite voluntary measures, the 
cooperation of the Hawaii air tour operators, and the FAA's 
inspections, the accident data show that voluntary measures and 
existing regulations are insufficient to ensure safe air tour 
operations in Hawaii. The recent accidents discussed above indicate an 
urgent safety problem that cannot be adequately addressed solely by 
enforcement of existing regulations. For this reason, I find that 
notice and public procedure are impracticable and contrary to the 
public interest. However, interested persons are invited to submit such 
comments as they desire regarding this SFAR. Communications should 
identify the docket number and be submitted in triplicate to the Rules 
Docket address noted above. All communications received on or before 
the close of the comment period will be considered by the 
Administrator, and this SFAR may be changed in light of the comments 
received. All comments will be available, both before and after the 
closing dates for comments, in the Rules Docket for examination by 
interested parties.

International Civil Aviation Organization and Joint Aviation 
Regulations

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with the 
Standards and Recommended Practices of the International Civil Aviation 
Organization to the maximum extent practicable. The FAA is not aware of 
any differences that this amendment will present.

Federalism Implications

    The regulations adopted herein will not have substantial direct 
effects 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. Therefore, in 
accordance with Executive Order 12612, it is determined that this 
regulation will not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment.

Conclusion

    For the reasons discussed in the preamble, and based on the 
findings in the Regulatory Flexibility Determination and the 
International Trade Impact Analysis, the FAA has determined that this 
regulation is a significant regulatory action under Executive Order 
12866. In addition, the FAA certifies that this regulation will have a 
significant economic impact on a substantial number of small entities 
under the criteria of the Regulatory Flexibility Act. This regulation 
is considered significant under DOT Regulatory Policies and Procedures. 
A final regulatory evaluation of the regulation, including a Regulatory 
Flexibility Determination and Trade Impact Analysis, has been placed in 
the docket. A copy may be obtained by contacting the person identified 
under ``FOR FURTHER INFORMATION CONTACT.''

List of Subjects

14 CFR Part 91

    Aircraft, Airmen, Aviation safety.

14 CFR Part 135

    Air taxi, Aircraft, Airmen, Aviation safety.

The Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration amends parts 91 and 135 of the Federal Aviation 
Regulations (14 CFR parts 91 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. app. 1301(7), 1303, 1344, 1348, 1352 
through 1355, 1401, 1421 through 1431, 1471, 1472, 1502, 1510, 1522, 
and 2121 through 2125; Articles 12, 29, 31, and 32(a) of the 
Convention on International Civil Aviation (61 stat. 1180); 42 
U.S.C. 4321 et seq.; E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970 Comp., 
p. 902; 49 U.S.C. 106(g).

PART 135--AIR TAXI OPERATORS AND COMMERCIAL OPERATORS

    2. The authority citation for part 135 continues to read as 
follows:

    Authority: 49 U.S.C. app. 1354(a), 1355(a), 1421 through 1431, 
and 1502; 49 U.S.C. 106(g).

    3. In parts 91 and 135, Special Federal Aviation Regulation No. 71, 
the text of which will appear at the beginning of part 91, is added to 
read as follows:

SFAR No. 71--Special Operating Rules for Air Tour Operators in the 
State of Hawaii

    Section 1. Applicability. This Special Federal Aviation Regulation 
prescribes operating rules for airplane and helicopter visual flight 
rules air tour flights conducted in the State of Hawaii under parts 91 
and 135 of the Federal Aviation Regulations. This rule does not apply 
to flights conducted in gliders or hot air balloons.
    Section 2. Definitions. For the purposes of this SFAR:
    ``Air tour'' means any sightseeing flight conducted under visual 
flight rules in an airplane or helicopter for compensation or hire.
    ``Air tour operator'' means any person who conducts an air tour.
    Section 3. Helicopter flotation equipment. No person may conduct an 
air tour in Hawaii in a single-engine helicopter beyond the shore of 
any island, regardless of whether the helicopter is within gliding 
distance of the shore, unless:
    (a) The helicopter is amphibious or is equipped with floats 
adequate to accomplish a safe emergency ditching and approved flotation 
gear is easily accessible for each occupant; or
    (b) Each person on board the helicopter is wearing approved 
flotation gear.
    Section 4. Helicopter performance plan. Each operator must complete 
a performance plan before each helicopter air tour flight. The 
performance plan must be based on the information in the Rotorcraft 
Flight Manual (RFM), considering the maximum density altitude for which 
the operation is planned for the flight to determine the following:
    (a) Maximum gross weight and center of gravity (CG) limitations for 
hovering in ground effect;
    (b) Maximum gross weight and CG limitations for hovering out of 
ground effect; and,
    (c) Maximum combination of weight, altitude, and temperature for 
which height-velocity information in the RFM. is valid.
    The pilot in command (PIC) must comply with the performance plan.
    Section 5. Helicopter operating limitations. Except for approach to 
and transition from a hover, the PIC shall operate the helicopter at a 
combination of height and forward speed (including hover) that would 
permit a safe landing in event of engine power loss, in accordance with 
the height-speed envelope for that helicopter under current weight and 
aircraft altitude.
    Section 6. Minimum flight altitudes. Except when necessary for 
takeoff and landing, or operating in compliance with an air traffic 
control clearance, or as otherwise authorized by the Administrator, no 
person may conduct an air tour in Hawaii:
    (a) Below an altitude of 1,500 feet above the surface over all 
areas of the State of Hawaii, and,
    (b) Closer than 1,500 feet to any person or property; or,
    (c) Below any altitude prescribed by federal statute or regulation.
    Section 7. Passenger briefing. Before takeoff, each PIC of an air 
tour flight of Hawaii with a flight segment beyond the ocean shore of 
any island shall ensure that each passenger has been briefed on the 
following, in addition to requirements set forth in Sec. 91.107 or 
135.117:
    (a) Water ditching procedures;
    (b) Use of required flotation equipment; and
    (c) Emergency egress from the aircraft in event of a water 
landing.'
    Section 8. Termination date. This Special Federal Aviation 
Regulation expires on October 26, 1997.

    Issued in Washington, DC, on September 22, 1994.
David R. Hinson,
Administrator.
[FR Doc. 94-23840 Filed 9-22-94; 11:42 am]
BILLING CODE 4910-13-M