[Federal Register Volume 62, Number 210 (Thursday, October 30, 1997)]
[Rules and Regulations]
[Pages 58854-58859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28724]



[[Page 58853]]

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Part V





Department of Transportation





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Federal Aviation Administration



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14 CFR Parts 91 and 135



Air Tour Operators in the State of Hawaii; Interim Rule

  Federal Register / Vol. 62, No. 210 / Thursday, October 30, 1997 / 
Rules and Regulations  

[[Page 58854]]



DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91 and 135

[Docket No. 27919; Special Federal Aviation Regulation (SFAR) No. 71-1]
RIN 2120-AG44


Air Tour Operators in the State of Hawaii

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Interim rule; disposition of comments; and request for comments 
on a draft Environmental Assessment.

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SUMMARY: On September 26, 1994, the FAA issued an emergency final rule 
as SFAR 71, which established certain procedural, operational, and 
equipment requirements for air tour operators in the State of Hawaii. 
The final rule was effective October 26, 1994; the FAA invited public 
comments on the rule until December 27, 1994. This document responds to 
public comments and extends the expiration date for SFAR 71 until 
October 26, 2000. This action will ensure that regulatory requirements 
for the safe operation of air tours in the airspace over the State of 
Hawaii remain in effect.

DATES: Comments must be received on or before December 29, 1997. This 
interim rule is effective October 26, 1997.

ADDRESSES: Comments on this interim rule should be mailed 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 may also be sent 
electronically to the Rules Docket by using the following Internet 
address: [email protected]. Comments must be marked as 
Docket No. 27919. Comments may be examined in Room 915G on weekdays 
between 9:00 a.m. and 5:00 p.m., except on federal holidays.

FOR FURTHER INFORMATION CONTACT: For a copy of this rule, contact the 
Office of Rulemaking at (202) 267-9677. For technical questions, 
contact David Metzbower, Air Transportation Division, AFS-200, Federal 
Aviation Administration, 800 Independence Avenue, SW, Washington, DC 
20591; Telephone (202) 267-3724.

SUPPLEMENTARY INFORMATION:

Availability of Interim Rule

    Any person may obtain a copy of this interim rule 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) 267-9677. Requests should be identified by the docket number of 
this proposal.
    An electronic copy of this interim rule may be downloaded using a 
modem and suitable communications software from the FAA regulations 
section of the Fedworld electronic bulletin board service (703-321-
3339), or the Federal Register's electronic bulletin board service 
(telephone 202-512-1661). Internet users may reach the FAA's web page 
at http://www.faa.gov, or the Federal Register's page at http://
www.access.gpo.gov/su__docs, for access to recently published 
rulemaking documents.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) requires the FAA to report inquiries from small entities 
concerning information on, and advice about, compliance with statutes 
and regulations within the FAA's jurisdiction, including interpretation 
and application of the law to specific sets of facts supplied by a 
small entity.
    The FAA's definitions of small entities may be accessed through the 
FAA's web page (http://www/faa.gov/avr/arm/sbrefa.htm), by contacting a 
local FAA official, or by contacting the FAA's Small Entity Contact 
listed below.
    If you are a small entity and have a question, contact your local 
FAA official. If you do not know how to contact your local FAA 
official, you may contact Charlene Brown, Program Analyst Staff, Office 
of Rulemaking, ARM-27, Federal Aviation Administration, 800 
Independence Avenue, SW, Washington, DC 20591, 1-888-551-1594. Internet 
users can find additional information on SBREFA in the ``Quick Jump'' 
section of the FAA's web page at http://www.faa.gov and may send 
electronic inquiries to the following Internet address: 9-AWA-
[email protected]

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 of 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 tour flights. By 
1991, these numbers had increased to approximately 101,000 for 
helicopters and 18,000 for airplanes. Currently in Hawaii, the air tour 
industry carries about 500,000 passengers annually. The Honolulu Flight 
Standards District Office reports that currently twenty-six operators 
conduct air tours under Part 135, using 77 aircraft of which 18 are 
airplanes and 59 are helicopters. Approximately 9 operators conduct air 
tours under Part 91 using approximately 16 aircraft, of which 9 are 
airplanes and 7 are helicopters.

History and Escalation of Accidents

    The growth of the air tour sightseeing industry in Hawaii has been 
associated with an escalation of accidents. During the 9-year period 
between 1982 and 1991, there were 11 air tour accidents with 24 
fatalities. The accident data shows an escalation of accidents in the 
3-year period between 1991 and 1994, during which time there were 20 
air tour accidents with 24 fatalities. The apparent causes of the 
accidents ranged from engine power loss to encounters with adverse 
weather. Contributing factors to the causes and seriousness of 
accidents were: 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). Despite voluntary measures taken by some Hawaii air 
tour operators and an increase in FAA's inspections, the escalation of 
accidents occurred, indicating a need for additional measures to ensure 
safe air tour operations in Hawaii.
    On September 26, 1994, the FAA published an emergency final rule as 
Special Federal Aviation Regulation (SFAR) No. 71 (59 FR 49138). This 
action was taken because of the increase in the number of fatal 
accidents involving air tour aircraft during the period 1991-1994 and 
the causes of those accidents. The emergency regulatory action 
established 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.
    The comment period for the emergency rule closed on December 27, 
1994.

[[Page 58855]]

Discussion of Comments

General

    The FAA received more than 200 comments on the SFAR. Commenters 
included the National Transportation Safety Board (NTSB), state and 
local governments, air tour operators, helicopters associations, 
tourism-related organizations, citizen and environmental groups, and 
individuals. The most controversial provision of the SFAR was the 
minimum altitude requirement.
    The following discussion contains a summary of comments according 
to the specific subject areas defined in the SFAR. It should be noted 
that comments which were not relevant to these subject areas or were 
considered to be speculative are not included in this discussion.
    Because of the time that has expired since the publication of SFAR 
71, some of these comments may not have the same relevance because of 
subsequent events. In addition, air tour operators and the FAA have 
worked together to mitigate concerns that the rule is overly 
burdensome. The FAA's response to these comments is summarized at the 
end of the comment discussion.

Safety Record

    Several commenters, including the Hawaii Helicopter Operators 
Association (HHOA) and the Helicopter Association International (HAI), 
state that Hawaii's air tour operators have a good safety record that 
exceeds that of helicopter operations in other parts of the United 
States, and a safety record that exceeds the national average of 
general aviation aircraft. Other commenters say that the accident rate 
is low considering the number of flight hours and the number of 
passengers flown. HHOA and others state that recent accidents were 
caused by pilot error and mechanical failure, and not the altitude at 
which the aircraft were operated.
    Two comments were received from persons who were personally 
involved in air tour accidents in Hawaii. In addition to asking that 
all of the safety tools, such as flotation devices for aircraft and 
passengers, be used, they also comment on the lack of rescue support, 
which cost several lives in one accident. One of these individuals 
suggests that the SFAR should apply everywhere, commenting that 
``Water, helicopters, floats, and life jackets do not perform 
differently from one state to another.''

Need for Emergency Rulemaking

    Several commenters state that there is little supporting data to 
justify the FAA's issuance of the SFAR under emergency rulemaking 
provisions.
    In a petition to the FAA to withdraw or stay the SFAR (which was 
also submitted as a comment), HHOA states that, because there was no 
true emergency, the FAA should not have used the ``good cause'' 
exception of the Administrative Procedures Act (APA) to avoid rule 
issuance without notice and public comment. Some commenters believe 
that the real reason for SFAR 71 is noise, not safety.

Applicability and Definitions

    Some commenters, including HHOA, contend that states such as 
Alaska, California, and Oregon have rugged coastlines and terrain that 
pose the same hazards to air tours as Hawaii's terrain. These 
commenters posit that the SFAR, which is being imposed only on Hawaii, 
is discriminatory and puts the air tour industry in Hawaii at a 
competitive disadvantage.

Flotation Devices

    HHOA states that limiting the flotation requirement to helicopters 
is arbitrary and capricious because the SFAR assumes that only 
helicopters sink rapidly after forced landings on water.
    Other commenters favor requiring both flotation equipment and the 
wearing of personal flotation gear. The NTSB; the Department of 
Transportation Airports Division for the State of Hawaii; and the 
Sierra Club Legal Defense Fund point out that because helicopters sink 
more quickly in water, the use of external flotation equipment would 
provide the necessary time for passengers to exit the helicopter.
    The NTSB states that at its public hearing on air tour safety, air 
tour operators and helicopter manufacturers expressed concern about the 
capabilities of airframe-mounted helicopter flotation systems. They 
point out that a helicopter's emergency water entry may easily exceed 
the certificated vertical speed values of current systems and result in 
failure of this equipment to perform as expected. In its comment, the 
NTSB recommends that SFAR No. 71 be modified to provide for two 
redundant means of occupant survival: airframe-mounted flotation 
equipment and the wearing of a life preserver by each person while on 
board.

Helicopter Performance Plan

    One operator contends that this requirement is not necessary 
because Sec. 91.9 requires compliance with the operating limitations 
specified in the approved rotorcraft flight manual (RFM). Also, 
Sec. 135.345(b)(2) requires aircraft performance characteristics to be 
part of an operator's required training program.
    HHOA states that this requirement would, in effect, result in a 
one-state certification program because the information requested in 
the operators' certification performance plans would not be required 
elsewhere in the United States.

Helicopter Operating Limitations

    HAI states that the operating limitations could adversely affect 
operations that are routinely performed in or near the curve, such as 
external load lifting, and that operating within the height-velocity 
curve should be left to the discretion of the operator.
    Several commenters, including HHOA, contend that this requirement 
already exists in 14 CFR section 91.9, which states that the shaded 
areas or dead-man's curve area is to be avoided except under specific 
circumstances.
    The NTSB states that comments from operators and manufacturers at 
its public hearing on air tour safety question whether helicopter 
operating limitations should be placed solely on air tour operators in 
Hawaii, while non-tour operations in Hawaii and operators in other 
states remain unregulated in this area. The NTSB recommends that the 
FAA conduct discussions with interested parties to resolve the issue of 
helicopter height-velocity diagram performance.

Standoff Distance

    HHOA states that under the 1,500 foot lateral clearance (standoff) 
requirement, pilots would be forced to fly farther offshore than now 
permitted, increasing the power-off glide distance to shore in the 
event of an engine failure. HHOA adds that this requirement will cause 
two-way air traffic congestion in and over scenic canyons by forcing 
pilots to follow the midline of the canyon, thereby further decreasing 
the pilot's ability to keep a close visual surface reference sufficient 
to safely control the helicopter.

Minimum Flight Altitudes

    A number of commenters point out that the 1,500 foot above ground 
level (AGL) requirement does not take into account cloud cover and 
weather conditions in Hawaii. Commenters say that the requirement will 
increase the probability of flying into bad weather, and prevent 
helicopters from flying below the clouds where they can maintain visual 
reference to the ground.

[[Page 58856]]

The NTSB believes that the requirement may lead to increased operating 
time over water, difficulties in regulatory enforcement, and possible 
disregard of the FAA regulation.
    Some commenters state that the SFAR's minimum altitude and standoff 
requirements should not apply to fixed-wing aircraft. One operator says 
that accidents cited in the SFAR were due to pilot error and disregard 
for existing regulations which already prevent fixed-wing VFR flights 
into IMC conditions. HHOA adds that requiring helicopters to fly at 
1,500 feet forces pilots to operate helicopters as fixed-wing aircraft 
which is contrary to the certification requirements of helicopters.
    Many commenters, including the NTSB, HHOA, ALPA, and the Chamber of 
Commerce of Hawaii, state that the minimum altitude requirement will 
cause air tour traffic to be concentrated at the same altitude, 
increasing the likelihood of midair collisions.
    Several commenters, including HHOA, state that the minimum altitude 
requirement will create additional hazards for emergency landings. At 
low altitudes, pilots are better able to spot a suitable landing site; 
at higher altitudes it takes longer to land and shut off the engine, 
thereby increasing the risk of a fire and further mechanical failure. 
One operator states that the minimum altitude requirement is not needed 
because Sec. 91.119 says that no person may operate an aircraft below 
an altitude that does not allow for an emergency landing without undue 
hazard to persons or property on the surface.

Visibility and Cloud Clearance

    Several commenters point out that the minimum altitude requirements 
in the SFAR do not take into account changing cloud cover and weather 
conditions in Hawaii which affect pilots' visibility and ability to 
maintain required distances from clouds. NTSB notes that the 1,500 foot 
altitude may cause encounters with cloud layers not found at lower 
altitudes. Some commenters say that pilots would best avoid unforeseen 
weather conditions and maintain sufficient visibility by flying below 
the clouds and maintaining visual reference to the ground.

Briefing Passengers

    Commenters on this issue express support for the requirement. HAI 
states that although passenger briefing is already standard practice 
for most operators, the requirement will ensure that passenger briefing 
takes place.

Costs

    Many commenters state that the SFAR will devastate Hawaii's 
helicopter tourist industry and related businesses, many of which are 
small businesses. Commenters say that over 650,000 visitors take 
helicopter tours annually, and that the helicopter tour industry 
contributes $100 million per year to Hawaii's economy. Several tourism 
organizations say that since the SFAR took effect, bookings dropped 40 
to 50 percent which is equivalent to an annual revenue loss of $35 
million. Some of these commenters add that the SFAR will impact 1,000-
2,000 people employed by the helicopter tour industry and related 
businesses. A pilot commented that the air tour industry raises $100 
million annually, and noted that this represents a considerable tax 
contribution to the State of Hawaii. Commenters on this issue included 
hotel associations, a trade association, a visitors' bureau, a 
publishing company, and a resort association. A number of form letters 
were received expressing that Hawaii has an unemployment problem and 
that this rule will be tantamount to taking away jobs. A different form 
letter stated that the rule is excessive, that most tour operators are 
``eco-friendly'', and that air tour operators perform valuable 
community assistance in supporting disaster assistance.
    Several operators cite revenue losses since the SFAR took effect 
due to the necessity of grounding flight operations when cloud ceilings 
were below 1,500 feet AGL. Several commenters, including HAI, contend 
that the SFAR underestimates the number of no-fly days tour operators 
experience because of low cloud ceilings.
    HAI quotes from the SFAR, which states ``. . . although the 1,500 
foot minimum altitude requirement has a significant economic impact on 
a substantial number of small entities, it provides superior 
operational safety.'' HAI says that this equates to the notion of 
``overly burdening'' these same small entities.

Monitoring, Enforcement, and Voluntary Efforts

    Some commenters, including HAI, point out that better enforcement 
of existing regulations would help prevent air tour accidents and that 
Hawaii's FSDO staff should be increased for this purpose. HHOA adds 
that air safety would be improved if expanded weather operations were 
provided by more than the one Flight Service Station in Honolulu.
    Some commenters state that the helicopter air tour industry is 
already using voluntary measures to ensure safety and reduce noise. An 
operator, the Kauai County Council, and the Maui Air Traffic 
Association say that HHOA's ``Fly Neighborly'' program, which 
recommends a 1,500 foot minimum altitude, is a good means to ensure 
voluntary compliance with existing regulations.

Environmental Impacts

    A number of commenters state that the minimum altitude should be 2 
miles, not 1,500 feet. These commenters cite the value of the 
wilderness experience and the protection of wildlife as justification 
for banning flights over national parks in Hawaii. They urge the FAA to 
make the SFAR permanent.
    One commenter who lives 14 miles from Kahului Airport expresses 
concern that in an emergency, a helicopter with little altitude would 
be forced to land near her house and urges enforcement of the 1,500 
foot restriction. A major environmental association states that 
deviations from the rule should only be allowed for reasons of safety.
    Other commenters state that the air tour industry is growing so 
rapidly in Hawaii that private heliports are springing up, allowing 
even more uncontrolled growth. Therefore, more controls than are 
provided by SFAR 71 may be needed.
    The docket contains comments from several neighborhood associations 
who comment that the SFAR is forcing tours to be rerouted over their 
property, that the FAA is not enforcing the 1,500 foot restriction for 
all operators, that all pilots conducting air tour operations should be 
required to have Part 135 certificates, and that the FAA should 
implement a system for tracking violators. One association suggests a 
$2,000 fine, per violation, per day, for each offender.

FAA's Response

    The FAA finds that the issuance of SFAR 71 is justified by the 
accidents that occurred from 1982-1991. The Court of Appeals for the 
Ninth Circuit supported the FAA's finding by holding that the FAA had 
good cause for emergency rulemaking because of the increase in recent 
fatal accidents (U.S. Court of Appeals for the Ninth Circuit, No. 94-
70703, March 29, 1995; Hawaii Helicopter Operators v. Federal Aviation 
Administration, 51 F. 3d 212 (9th Cir. 1995). Moreover, the FAA finds 
that the rule has been successful in accident prevention. Since its 
issuance, there have been only three incidents--

[[Page 58857]]

 all engine failures that landed safely with no injuries.
    One of the most contentious aspects of the SFAR for operators was 
the minimum operating altitude. The FAA, after working closely with air 
tour operators, believes that this problem has been somewhat mitigated. 
Since 1994, the FAA has allowed deviations from SFAR 71 for the 
majority of air tour operators. Air tour operators of fixed-wing 
aircraft have been granted deviations to conduct air tours at a minimum 
altitude of 1,000 feet; air tour operators of single-engine helicopters 
have been granted deviations to conduct air tours at a minimum of 500 
feet. The use of deviations has provided separation between the fixed-
wing aircraft and helicopters around the scenic areas where the traffic 
is the most dense. The FAA has provided an equivalent level of safety 
to that of the higher altitude by additional safety measures for those 
air tour operators. Each air tour operator that is granted a deviation 
from the higher altitude is evaluated on a case by case basis. Each 
deviation is site-specific and allows operation only over areas of raw 
terrain (areas devoid of any persons, vessels, vehicles or structure). 
The altitude over populated areas and other than raw terrain remains at 
1500 feet. The pilots for each respective operator must demonstrate 
knowledge of the specific sites during FAA flight checks at each 
specific site. Also during those flight checks, the pilots must 
demonstrate the ability to successfully autorotate to an alternate 
emergency landing area at each specific site.
    In response to the comments on costs, the FAA believes that that 
the SFAR has not had a direct impact on the viability of the air tour 
industry in Hawaii. Because of the willingness of the air tour 
operators to work with FAA, viable air tours have been created without 
an adverse impact on safety. It is important to remember that these 
comments on costs were made immediately following the issuance of the 
SFAR and before the deviations were in place.
    In response to comments suggesting that the purpose of SFAR 71 was 
to mitigate noise, the FAA reiterates its strong statement made in the 
emergency final rule that the purpose of that rulemaking was for 
reasons of safety.
    In response to comments on flotation devices and performance 
flotation gear, the FAA has by operations specifications required each 
helicopter operator to require passengers to wear personal flotation 
gear when operating over water whether or not the helicopter is 
equipped with exterior flotation devices.
    The FAA has prepared a draft Environmental Assessment (EA) which 
addresses the environmental comments previously submitted during the 
emergency rulemaking and analyzes the environmental impacts of this 
rule, the extension of SFAR 71.
    With the rulemaking, the FAA will extend SFAR 71 for an additional 
3 years. During this time the FAA intends to issue a notice of proposed 
rulemaking which will apply to all air tour operators. This national 
rule will be responsive to NTSB comments and those operators who 
commented that the SFAR was discriminatory against operators in Hawaii. 
The proposed rulemaking will consider some of the same issues that 
commenters have noted in responding to SFAR 71; in this context, the 
comments on SFAR 71 have been helpful to the FAA. Since the national 
air tour rulemaking is not yet ripe, the FAA cannot divulge details of 
the proposed rule, but does encourage those persons who commented on 
SFAR 71 to submit comments to the proposed national rule when it is 
published. The FAA anticipates that the national rule, when finalized, 
will replace SFAR 71-1, which would then be rescinded.

Environmental Review

    Because there were a considerable number of comments on the 
environmental effects of the emergency final rule issued as SFAR 71, 
the FAA has prepared a draft Environmental Assessment to assure 
compliance with the National Environmental Policy Act of 1969 (NEPA) 
and other applicable environmental laws, regulations and orders.
    A copy of the draft EA may be obtained by calling Linda Williams, 
Office of Rulemaking, FAA, 800 Independence Ave., SW, Washington, DC 
20591, at (202) 267-9685. An electronic copy is available at http://
www.faa.gov. Comments on the draft EA should be mailed to the address 
given or sent electronically to [email protected] and clearly 
marked as ``Comments to the draft EA for Extension of SFAR 71.'' The 
comment period for the draft EA is the same as for the interim rule, on 
or before December 29, 1997.
    Based upon the draft EA and comments received on the draft EA, the 
FAA will determine whether to issue a final EA and a Finding of No 
Significant Impact (FONSI) or to prepare an environmental impact 
statement. If a final EA and FONSI are determined appropriate for the 
final rule, these documents will be available in Docket No. 27919 and 
on the Internet at http://www.faa.gov.

Regulatory Evaluation Summary

    In accordance with SFAR 71, certain procedural, operational, and 
equipment requirements were established for air tour operators 
currently operating in the State of Hawaii. Compliance with SFAR 71 was 
estimated to increase costs approximately $2.1 million, in current 
dollars, over the three year period, 1994 to 1997. Most of the increase 
in costs was associated with lost revenue that resulted from tour 
cancellations when the new minimum flight altitudes could not be 
achieved. Based on data identified during the promulgation of SFAR 71, 
the FAA estimated that the cost associated with revenue loss totaled 
approximately $1.9 million. Additional costs associated with SFAR 71 
included $201,000 to provide lifevests on subject helicopters and 
$10,000 for the development of a helicopter performance plan. The 
estimated potential safety benefits associated with SFAR 71 totaled 
approximately $33.7 million over three years. All these dollar 
estimates have been updated to current dollars from 1994 dollars. A 
copy of the Final Regulatory Evaluation, Final Regulatory Flexibility 
Determination, and Trade Impact Assessment completed for the original 
SFAR have been placed in the docket.
    The FAA has worked with the air tour operators to lessen the burden 
of lost revenue from canceled tours. This has been accomplished by 
allowing deviations from SFAR 71 for specific air tour operations 
evaluated on a case by case basis. When deviations of 1,000 feet for 
fixed-wing aircraft and 500 feet for single-engine helicopters are 
granted, the estimated revenue loss may be overstated, because the 
deviations allow a tour operation to take place that otherwise would 
have been canceled under the minimum flight altitudes of SFAR 71. 
Therefore, because of the FAA allowing deviations from SFAR 71 for the 
majority of air tour operators in Hawaii, much of the estimated $1.9 
million revenue loss did not occur. However, due to other safety 
measures for air tour operators, such as separation between fixed-wing 
and helicopter operations around scenic areas, deviations from flight 
altitudes have not compromised safety. Since the issuance of SFAR 71, 
there have been no fatalities or injuries as a result of the new 
procedural, operational or equipment requirements. In view of the 
foregoing, the FAA has determined that the extension to SFAR 71 is cost 
beneficial.
    This regulation is considered significant under DOT Regulatory 
Policies and Procedures (44 FR 11034; February 26, 1979) because it was

[[Page 58858]]

issued originally as an emergency final rule. 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. The FAA has determined that this action is 
a significant regulatory action under Executive Order 12866.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) was enacted by 
Congress to ensure that small entities are not unnecessarily and 
disproportionately burdened by Federal regulations. The RFA requires a 
Regulatory Flexibility Analysis if a proposed rule would have 
``significant economic impact on a substantial number of small 
entities.'' FAA Order No. 2100.14A outlines the FAA's procedures and 
criteria for implementing the RFA. The FAA's criteria for ``a 
significant impact'' is an annualized cost threshold of at least 
$4,900.
    The FAA's original regulatory flexibility analysis indicated that 
the SFAR would impose a ``Significant economic impact on a substantial 
number of small entities.'' (See copy of original Regulatory 
Flexibility Determination included in the docket for this rulemaking.) 
The FAA estimated the total annualized cost of the final rule was 
approximately $712,000, in current dollars. The annualized cost of the 
1,500 foot minimum altitude requirement for the air tour industry 
(fixed-wing and helicopter) was approximately $635,700. After assessing 
the annualized cost for individual operators on a per seat basis, the 
FAA determined that the SFAR would impose costs greater than the 
annualized cost threshold of $4,900 for 31 of 37 of the affected air 
tour operators, most of whom are small entities. The FAA calculated the 
annualized cost regarding alternative minimum altitude requirements of 
500 feet, 800 feet, and 1,000 feet. Based on this figure, the FAA 
determined that a minimum altitude requirement of 500 feet would be 
necessary to lower the annualized cost below the $4,900 threshold for 
all but four of the air tour operators. However, after analyzing the 
safety implications of lowering the minimum altitude to 500 feet, the 
FAA determined that to do so would result in a decline in safety 
benefits.
    Since the issuance of the SFAR, the FAA received requests from 
several operators to fly at lower altitudes. Air tour operators 
requested ``deviations'' from the rule to obviate the economic burden 
imposed upon them by the SFAR. The FAA worked with the operators to 
create individual exceptions under which air tours could occur at lower 
altitudes but with other conditions imposed. The resulting exception, 
referred to as a deviation, was designed to minimize the potential 
adverse economic effects on the air tour operators while maintaining 
the same level of safety as that afforded at 1,500 feet.
    A deviation allows an operator to fly at lower altitudes with the 
imposition of certain additional safety requirements. Operators must 
individually request a deviation from the FAA. The FAA considers each 
request on a case by case basis and, after close scrutiny of each air 
tour operation, determines whether the issuance of a deviation from the 
SFAR will achieve the desired goals. The imposition of additional 
safety requirements varies from operator to operator. Requirements can 
include safety equipment modifications and/or special operation 
procedures, such as separation between fixed-wing and helicopter 
operations around scenic areas. Currently, 16 of the 26 air tours 
operating under part 135, and 2 of the 9 air tours operating under part 
91, have sought and have received deviations from the SFAR. Those 
operators who have not sought a deviation are operating under air 
traffic control (ATC) positive control and are not, therefore, required 
to comply with the provisions of the rule, or were already operating at 
higher altitudes. The practical impact of FAA issued deviations, 
considered along with ATC positive control, is that the majority of 
small entities are currently operating at lower altitudes. The FAA 
anticipates that it will continue to grant deviations as it has up to 
this point, which will in effect work to mitigate the economic impact 
of the SFAR on small entities.
    The FAA is compelled to stand by the results of its original 
regulatory flexibility analysis despite the reasonable conclusion that 
can be drawn from these facts, namely, that those operators who 
requested deviations did so because they believed it would be less 
costly than complying with the SFAR. Although the agency believes that 
costs of compliance are now lower than originally estimated, the agency 
has no data to show the extent of any change in the economic impact on 
small businesses as reported in the original regulatory flexibility 
analysis. Accordingly, the FAA certifies that this extension has a 
significant economic impact on a substantial number of small entities.

International Trade Impact Assessment

    When the FAA promulgated SFAR 71, it found that SFAR would not have 
an adverse impact on the international trade because the affected 
operators do not compete with foreign operators. The FAA certifies that 
this 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.

Paperwork Reduction Act

    SFAR 71 contains information collection requirements, specifically 
in Section 6. Minimum flight altitudes and Section 7. Passenger 
briefing. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), the FAA submitted these requirements to OMB. As a result, an 
emergency clearance of the information collection requirement (No. 
2120-0620) has been approved through February 28, 1998.
    SFAR 71, which became effective on October 26, 1994, applies to air 
tour operators in the state of Hawaii. Under the SFAR, both Part 91 and 
Part 135 operators are required to provide a passenger safety briefing 
on water ditching procedures, use of required flotation equipment, and 
emergency egress from the aircraft in event of a water landing. The FAA 
estimates that 100,000 air tour operations are conducted annually by 35 
operators, that each safety briefing takes 3-4 minutes, and that the 
cost of the briefing is $10.00. Using these numbers, 400,000 minutes = 
6,667 hours  x  $10.00 equals approximately $.70 per flight.
    For the deviations collection, two calculations must be done since 
operators first requested deviations to 1,000 feet, and then to 500 
feet. 1,000 ft. deviations were granted to approximately 35 operators, 
and it is estimated that the preparation took each operator 2 hours at 
$15.00 an hour for a total of approximately $1,050.00. The cost for the 
government to review the deviations is estimated to be 1 hour of review 
and operations preparation using 35 hours of inspector time or 
approximately $1,750.00 in costs. The deviation requests to 500 feet 
cost the operators 35  x  1 hour at $15.00 per hour or $525.00. Cost of 
an inspector's review is estimated at 35  x  \1/2\ hour or $875.00. In 
addition, it is necessary to include the costs for FAA inspectors 
checking pilots on specific sites for the 500 feet deviation, and the 
cost for operators' check pilots to check line pilots. The former is 
estimated to be 35  x  3 hours at an operator/aircraft cost of $250.00 
or $26,250.00. The cost to check line pilots

[[Page 58859]]

is estimated to be 100  x  1 hour  x  $250.00 or $25,000.00. The cost 
to the government (inspectors' time) for all deviations is estimated to 
be 35  x  3 hours  x  $50.00 or $5,250.00.
    Organizations and individuals desiring to submit comments on the 
information collection requirements of SFAR 71 should send them to the 
FAA's Rules Docket, the address for which is given in the ADDRESSES 
section of this interim rule.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (the Act), 
enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal 
agency, to the extent permitted by law, to prepare a written assessment 
of the effects of any Federal mandate in a proposed or final agency 
rule that may result in the expenditure by state, local, or tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any one year. 
Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal 
agency to develop an effective process to permit timely input by 
elected officers (or their designees) of State, local, and tribal 
governments on a proposed ``significant intergovernmental mandate.'' A 
``significant intergovernmental mandate'' under the Act is any 
provision in a Federal agency regulation that would impose an 
enforceable duty upon State, local, and tribal governments, in the 
aggregate, of $100 million (adjusted annually for inflation) in any one 
year. Section 203 of the Act, 2 U.S.C. 1533, which supplements section 
204(a), provides that before establishing any regulatory requirements 
that might significantly or uniquely affect small governments, the 
agency shall have developed a plan that, among other things, provides 
for notice to potentially affected small governments, if any, and for a 
meaningful and timely opportunity to provide input in the development 
of regulatory proposals.
    The FAA has determined that this rule does not contain any Federal 
intergovernmental mandates, but does contain a private sector mandate. 
However, because expenditures by the private sector will not exceed 
$100 million annually, the requirements of Title II of the Unfunded 
Mandates Reform Act of 1995 do not apply.

Federalism Implications

    The regulations 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, 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 135

    Air taxi, Aircraft, Airmen, Aviation safety.

The Amendment

    The Federal Aviation Administration amends 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. 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 135--OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND OPERATIONS

    2. 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, 44715-44713, 44715-44717, 44722.

    3. In 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. 71-1--Special Operating Rules for Air Tour Operators in the 
State of Hawaii

* * * * *
    Section 8. Termination date. This Special Federal Aviation 
Regulation expires on October 26, 2000.

    Issued in Washington, DC, on October 23, 1997.
Jane F. Garvey,
Administrator.
[FR Doc. 97-28724 Filed 10-24-97; 5:03 pm]
BILLING CODE 4910-13-M