[Federal Register Volume 63, Number 66 (Tuesday, April 7, 1998)]
[Proposed Rules]
[Pages 16913-16916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-9075]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Ch. I

[Docket No. 28814; Summary Notice No. PR-98-1]


Petition for Rulemaking; Summary of Petition Received

AGENCY: Federal Aviation Administration (FAA), DOT

ACTION: Notice of petition for rulemaking received.

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SUMMARY: Pursuant to FAA's rulemaking provisions governing the 
application, processing, and disposition of petitions for rulemaking 
(14 CFR Part 11), this notice publishes a petition requesting the 
initiation of rulemaking procedures for the amendment of specified 
provisions of the Federal Aviation Regulations. The purpose of this 
notice is to improve the public's awareness of, and participation in, 
this aspect of FAA's regulatory activities. Publication of this notice 
is not intended to affect the legal status of any petition or its final 
disposition.

DATES: Comments on this petition must identify the petition docket 
number involved and must be received on or before June 8, 1998.

ADDRESSES: Send comments in triplicate to: Federal Aviation 
Administration, Office of the Chief Counsel, Attn: Rules Docket No. 
28814, 800 Independence Avenue, SW, Washington, DC 20591. Comments may 
also be sent electronically to the following internet address: 9-NPRM-
[email protected].
    The petition, any comments received, and a copy of any final 
disposition are filed in the assigned regulatory docket and are 
available for examination in the Rules Docket (AGC-200), Room 915G,

[[Page 16914]]

FAA Headquarters Building (FOB 10A), 800 Independence Ave., SW, 
Washington, DC 20591; telephone (202) 267-3132.

FOR FURTHER INFORMATION CONTACT: Elizabeth Allen, (202) 267-8199, 
Office of Rulemaking (ARM-105), Federal Aviation Administration, 800 
Independence Avenue, SW, Washington, DC 20591.
    This notice is published pursuant to paragraphs (b) and (f) of 
Sec. 11.27 of Part 11 of the Federal Aviation Regulations (14 CFR Part 
11).

    Issued in Washington, DC, on April 1, 1998.
Donald P. Byrne,
Assistant Chief Counsel for Regulations.

PETITION FOR RULEMAKING

    Docket No.: 28814
    Petitioner: Mr. William P. Horn, Counsel for Alaska Professional 
Hunters Association Birch, Horton, Bittner and Cherot
    Regulations Affected: 14 CFR 91.1 and 14 CFR 135
    Description of Rule Change Sought: Inasmuch as the petitioner did 
not submit a summary of the petition for rulemaking, the FAA is 
publishing the petition verbatim to ensure that each of the 
petitioner's points are presented fairly and accurately. It is the 
Petitioner's position that 14 CFR Part 91 alone governs the air 
operations of Alaskan hunt and fish guides. The petitioner wants the 
FAA to partially augment the requirements of 14 CFR Part 91. By 
contrast, it is the FAA's position that 14 CFR Parts 119, 121, and 135 
apply to the air operations of Alaskan hunt and fish guides for 
compensation or hire, and commenters should be aware that the FAA 
published a notice in the Federal Register (January 2, 1998, 63 FR 4), 
entitled, ``Compliance With Parts 119, 121, and 135 by Alaskan Hunt and 
Fish Guides Who Transport by Air for Compensation or Hire.'' On January 
30, 1998, the petitioner filed a petition for review in the U.S. Court 
of Appeals for the District of Columbia Circuit challenging the FAA's 
notice. Alaska Prof'l Hunters Ass'n v. Federal Aviation Admin., No. 98-
1051 (D.C. Cir.).

The Petition:

January 31, 1997.
Ms. Linda Daschle,
Acting Administrator, Federal Aviation Administration, 800 
Independence Avenue, SW., Washington, D.C. 20591-0002

Re: Petition for Rulemaking on Regulation of Alaskan Aero-lodge 
Pilots

    Dear Ms. Daschle: This letter is written on behalf of the Alaska 
Professional Hunters Association (``APHA'') to petition the Federal 
Aviation Administration (``FAA'') to initiate a rulemaking pursuant 
to 5 U.S.C. Sec. 553(e) to amend 14 C.F.R. Part 91 for the purpose 
of enhancing the safety of Alaskan aero-lodge flight operations. 
(Alaskan aero-lodge flight operations are conducted by pilots and 
guides who fly guests to their lodges or remote areas for a hunting 
or fishing experience. The aero-lodge pilots primary purpose is to 
serve as a guide during a hunting or fishing trip.) We understand 
that the FAA has considered unilaterally changing the regulation of 
the Alaskan aero-lodge flight operations and pilots without using a 
rulemaking process. (The APHA wrote a letter to you on December 10, 
1996, discussing many of the issues discussed in this petition. That 
letter is incorporated by reference in this petition. A copy is 
attached as Exhibit 1.) The APHA requests that a rulemaking process 
precede any dramatic changes in regulations as required by the 
Administrative Procedure Act. By using the rulemaking process, all 
parties can be brought to the table and afforded an opportunity to 
provide meaningful comment. The APHA looks forward to working with 
the FAA in an effort to provide the public with safe and enjoyable 
outdoor experiences in Alaska.
    For the past thirty-three (33) years, the FAA has regulated the 
Alaskan aero-lodge pilots who fly passengers from remote lodges to 
even more remote hunting or fishing areas under 14 CFR Part 91. The 
FAA had determined that this transportation was incidental to the 
purpose of the business and thus the Alaskan aero-lodge pilots 
qualified for regulation under Part 91. For this three decade 
period, the aero-lodge pilots have relied upon this determination 
and have conducted their hunting and fishing operations in reliance 
on this long-standing ruling. To change their classification to Part 
135 operators would impose distinct and significantly greater 
obligations and duties on the aero-lodge pilots. APHA maintains that 
many of the requirements under Part 135 are impracticable, 
unjustified and unnecessary for aero-lodge pilots. An immediate 
change to Part 135 would not merely clarify or explain existing law 
or regulation, or remind the public of existing duties; it would 
impose substantial new duties on Alaskan aero-lodge pilots and 
subject them to the FAA's enforcement power if they fail to comply. 
These facts mandate that the FAA make such a change only as part of 
a rulemaking. (See, e.g., Jerri's Ceramic Arts v. Consumer Prod. 
Safety Comm'n, 874 F.2d 205, (4th. Cir. 1989).
    The APHA agrees with the FAA that some increased regulatory 
measures are advisable to ensure the continued safety of the Alaskan 
aero-lodge pilots and their guests. (The APHA has long been 
committed to and enjoys a reputation for the safety of its members, 
the public and the men and woman who fly in Alaska. See Exhibit 2.) 
The APHA is convinced the proposals in this petition will promote 
safe flight without imposing arbitrary, unnecessary and costly 
regulations on bush pilots and aero-lodge operators in Alaska. This 
proposed rulemaking also is consistent with 49 U.S.C. Sec. 44701: 
``Administrator of the FAA has the duty to promote regulations and 
minimum standards to promote the safe flight of civil aircraft in 
air commerce.''
    The APHA is an association of over 650 individual guides, 
outfitters, and others interested in hunting and recreational 
opportunities in Alaska. Many members of APHA rely on or are pilots 
who fly guests to their camps, lodges or remote areas where a hunt 
or other recreational activity is to be conducted. As you know, 
Alaska covers over 586,000 square miles, which is \1/5\th of the 
area of the continental United States. There are very few existing 
roads and the sheer size of the State-designated Game Management 
Units demands the use of airplanes to reach the many hunting and 
fishing sites. As an industry, the APHA uses aircraft as one of the 
means to transport hunters and anglers to and from remote locations. 
The Alaskan aero-lodge pilots do not sell transportation from Point 
A to Point B. If weather prohibits a flight or a hunt occurs in a 
nearby vicinity that can be accessed without an airplane, the guides 
still charge and receive the same compensation. In other words, the 
cost does not increase if a plane is used to transport the guests. 
Thus, the Alaskan aero-lodge pilots are correctly regulated under 
Part 91.

A. Proposed Regulatory Additions to Part 91

    Although the APHA recognizes the benefit of increased safety, it 
is not persuaded that the Alaskan aero-lodge pilots should be 
subject to all requirements of Part 135. As explained below, this is 
simply unnecessary. The APHA proposes that Part 91 continue to apply 
but with added requirements, some taken from Part 135, that match 
the realities of the Alaskan aero-lodge pilot situation. The APHA 
also proposes that there be a phase-in period of at least one year.
    1. Adding additional minimum pilot certification, experience and 
qualifications to Part 91 for aero-lodge pilots will increase safety 
by requiring more experienced pilots.
    Currently, under Part 91, pilots need to have a pilots license 
without any more advanced certification. In addition, Part 91 has a 
relatively low minimum hour requirement and requires a third class 
medical certificate.
    After careful consideration and in recognition of the sometimes 
challenging flight conditions in Alaska, the APHA recommends that 
Part 91 be amended, for application in Alaska, to impose the 
following four new requirements on aero-lodge pilots:
    a. Aero-lodge pilots must have a Commercial Rating.
    By requiring the aero-lodges to hire commercial pilots, the FAA 
is increasing the base level of skill required of aero-lodge pilots. 
The increased aeronautical knowledge and flight proficiency 
requirements beyond that required for a standard pilot's license 
makes good sense when applied to the aero-lodge pilots. Commercial 
pilots are required to have a higher level of knowledge about 
airplane operations, including retractable landing gear, loading and 
balance computations and an advanced knowledge of the significance 
and use of the airplane performance speeds. In addition, commercial

[[Page 16915]]

pilots must also competently perform precision approaches to normal 
and crosswind takeoffs and landings as well as utilizing specified 
approach speeds. Commercial pilot ratings also require demonstrated 
competence in more emergency situations than a standard pilot 
license.
    The requirement for increased knowledge regarding loading and 
balance computations makes good sense for aero-lodge pilots who 
often bring people and significant amounts of gear into the 
wilderness. Increased emergency procedure training is also a 
significant benefit as the aero-lodge pilots operate in remote areas 
with less predictable weather.
    b. Aero-lodge pilots must have a minimum of 500 hours of flight 
time in Alaska.
    This requirement exceeds that required for a commercial pilot. 
Where a commercial pilot is only required to have 250 hours of 
flight time, the APHA is recommending that aero-lodge pilots be 
required to have 500 hours of flight time in Alaska. Increasing the 
number of hours required to fly as an aero-lodge pilot will 
necessitate the hiring of more experienced and safer pilots. 
Moreover, requiring significant experience in Alaska will help 
insure that aero-lodge pilots are fully capable of dealing with the 
unique terrain and weather conditions found in Alaska.
    c. Aero-lodge pilots must participate in an annual flight 
review.
    Under 14 CFR 61.56, pilots must participate in a flight review 
every two years. The APHA recommends the aero-lodge pilots 
participate in an annual flight review. This will demand the aero-
lodge pilots keep their skills sharp and inform them of the newest 
safety innovations. Allowing the aero-lodge pilots to schedule their 
annual flight reviews in the off-season will encourage compliance by 
the pilots and help the aero-lodges remain operational in the active 
hunting/fishing seasons.
    d. Aero-lodge pilots must qualify for and receive a second class 
medical certificate.
    As a commercial pilot, aero-lodge pilots would have to qualify 
for and receive a second class medical certificate. As you are 
aware, the primary difference between a second class and third class 
medical certificate is the increased vision requirements. When 
flying in remote, uncontrolled airspace, it is vital that a pilot's 
vision be clear enough to detect otherwise unannounced aircraft. In 
addition, the importance of using aeronautical maps increases when 
flying in remote areas. By requiring the aero-lodge pilots have a 
second-class medical certificate you will help ensure they can 
clearly and easily read the aeronautical maps as well as live by the 
rule of ``See and be seen.''
    These significant changes would go a long way toward increasing 
safety by requiring more experienced pilots without requiring the 
far more extensive Part 135 requirements that are better suited for 
bona fide air taxi operations.
    2. Adding additional aircraft requirements will help aero-lodge 
pilots ensure the high quality of their aircraft and equipment.
    The APHA is also committed to aircraft safety and related 
maintenance requirements. The APHA recommends that Part 91 be 
amended to require Alaskan aero-lodge pilots to meet the 
manufacturers' recommended overhaul times for the engine, propeller 
and prop governor. In addition, the APHA recommends that the 
aircraft be required to have annual and 125 hour inspections to 
ensure superior maintenance of the equipment. This recommendation 
exceeds the current requirements for Part 91 operators and raises 
the standard for maintenance of the aircraft used in the Alaskan 
bush.
    3. Proposed regulatory language.
    The APHA recommends that the following language be adopted to 
institute the above changes:
    91.1(c). In addition to complying with this Part, each person 
who operates an aircraft to transport guests and/or equipment to or 
from a commercial hunting, fishing, or recreational lodge in Alaska 
shall also comply with Sec. Sec. 61.121, 61.123, 61.127, 61.129, 
61.139, 67.15, and 135.421. In addition, these pilots must also have 
a total of at least 500 hours of flight time in Alaska as a pilot 
and participate in an annual flight review as described under 
Sec. 61.56 and their airplane must be inspected after 125 hours of 
flight time. These requirements go into effect one year from the 
date of publication as a final rule.

B. Requiring Aero-Lodge Pilots to Operate under Part 135 Will Not 
Improve Safety and Will Cripple a Thriving Industry

    The APHA is also strongly requesting that the FAA not require 
Alaskan aero-lodge pilots to comply with Part 135. Complying with 
the considerable paperwork and inspection requirements for Part 135 
operators would create a great hardship to the small businessmen and 
women who run Alaska's aero-lodges. Most fishing lodge operators 
only have guests for 14 weeks each summer. Hunting guides operate 
only during the limited hunting seasons in their Game Management 
Units. The season may only be 4 to 10 weeks annually. Both fishing 
and hunting guides use their aircraft to provide their lodges and 
spike camps (remote camps) with supplies, food, fuel and gear. 
Bringing necessary supplies is a large part of the flight operations 
of the aero-lodges and does not involve any passengers.
    The Alaskan aero-lodge pilots fly a minimum amount of time 
compared with Part 135 operators. They fly hunters to their remote 
camps, hunt with them and then return. For example, each aircraft of 
most aero fishing lodges (that often fly anglers six days a week) 
only fly between 100 and 200 hours annually carrying anglers.
    The following are only a few examples of how Part 135 
requirements would significantly harm the aero-lodges in Alaska:
    1. 14 C.F.R. 135.41 requires a minimum of 3 years Part 135 
experience for the Director of Operations and the Chief Pilot.
    Most aero-lodges do not have both a chief pilot and a director 
of operations. In fact, many hunting and fishing operations have 
only one pilot who serves as the chief pilot, the director of 
operations and the guide. These are small operations that should not 
be expected to fill out and keep the large amount of paperwork 
necessary to run a full service air taxi.
    In addition, the pilots with the minimum 3 years of Part 135 
experience are more interested in working in the more lucrative air 
taxi operations than working for part of the year as an Alaskan 
aero-lodge pilot. Importantly, most pilots with the required Part 
135 experience are not qualified guides. The FAA should be aware 
that the State of Alaska strictly regulates and certifies hunting 
guides; it takes a substantial effort to become a registered guide. 
Few aero-lodges can afford to hire an additional non-guide pilot who 
would work only an hour or two each day.
    2. 14 C.F.R. 135.267 requires at least 13 days of rest periods 
or at least 24 hours for each calendar quarter.
    A calendar quarter would include the months of July, August and 
September, which is almost the entire sport fishing season. For the 
vast majority of aero-lodge operations that only have one or two 
aero-lodge pilots, 13 days off during the short season would cripple 
most operations. Aero-lodge pilots simply do not have the same kind 
of duties as Part 135 operators. The former typically fly 1 to 3 
hours per day and rarely, if ever, approach the 8 hour limit per 
day. The aero-lodge pilots are not on any time table where they have 
to fly so many routes every day and routinely do not fly for 
sustained periods that induce weariness or fatigue.
    This restriction alone could put several aero-lodges out of 
business and clearly does not make sense when applied to the aero-
lodge industry.
    3. Part 135 maintenance requirements are not necessary.
    One of the biggest differences between Part 135 and Part 91 lies 
in the maintenance section. Part 135 operators must have all 
maintenance, including oil changes and seat installation, performed 
by a licensed A&P mechanic. This requirement would devastate the 
aero-lodge industry. There are few lodges in Alaska that could 
afford to hire a full time A&P mechanic to stand by to change the 
oil, a spark plug or remove a seat. In the remote locations where 
the aero-lodges are located, it is virtually impossible and 
potentially unsafe to return to a larger community where an A&P 
mechanic is available to perform routine tasks. The pilots are 
capable of performing these minor tasks and have done so for the 
past 33 years.
    The aero-lodge operators recognize the vital importance of safe 
equipment. With advance planning, the aero-lodge operators easily 
are able to attend the required 125 hour inspections and can 
schedule a trip to a mechanic. However, when minor, unscheduled 
mechanical problems arise, returning to a more urban location to 
find a mechanic would shut down the smaller operations entirely. The 
aero-lodge pilots should be able to make the minor repairs and keep 
the lodge in business.
    4. 14 C.F.R. 135.293 requires initial and recurrent pilot 
testing.
    An important concern for aero-lodge operators centers on a 
potential problem arising from the requirements of 14 C.F.R. 
135.293. This section requires a pilot to pass a written or oral 
test on the aircraft, navigation, air traffic control procedures, 
meteorology and new equipment within the

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preceding year. This section also requires a competency check in the 
class of aircraft the pilot commands within the preceding year. A 
very real and pressing concern for the aero-lodge operators arises 
when a lodge operator feels it is necessary to discharge his current 
pilot. If this happens, it would be a virtual impossibility to get a 
new pilot in quickly if they had to have an authorized check ride 
and pass a written or oral test.
    The FAA has recognized the difficulty in finding authorized 
check airmen in the remote parts of Alaska. Although an operator may 
be able to locate a qualified pilot, he would be prohibited from 
hiring him because of the large potential of being unable to find an 
authorized check airman, ground school for certification and 
hazardous materials certification. With the extremely short season, 
even a couple of days without a pilot could spell economic disaster 
for a guide or lodge operator.
    5. 14 C.F.R. 135.299 requires route checks for Part 135 pilots.
    This section requires an approved check pilot give a flight 
check to all Part 135 pilots within the preceding year. Importantly, 
this section requires the check ride consist of at least one flight 
over one route segment. Aero-lodge pilots do not fly standardized 
routes to and from remote fishing/hunting locations. The hunting/
fishing destinations can change daily to reflect migrations or runs 
and cannot be standardized. As such, there are no routes per se that 
could be checked. Because the routes often change daily, a check 
flight along one segment of a route does not necessarily improve 
safety.
    In addition, the areas where the aero-lodge pilots fly are 
remote and difficult to access by FAA approved check pilots. Many 
hunting and fishing camps are literally a day's flight out of 
Anchorage. It would be disastrous for an aero-lodge operator to have 
to shut down his camp while he awaited the approved check pilot to 
arrive from Anchorage or Fairbanks and then fly a sample route (that 
could change daily) with the aero-lodge pilot.
    The annual flight review recommended by APHA would address many 
of the same safety issues addressed in 14 C.F.R. 135.299, the safety 
briefings and new equipment updates. However, the route checks would 
not be necessary in an annual flight review, thus, eliminating the 
problems found in this section.

C. Conclusion

    As stated before, providing safe recreational opportunities is 
one of the primary goals of APHA. The APHA recognizes and supports 
regulation of air travel in Alaska. However, regulation that is 
unnecessary and detrimental to small businesses is not needed. The 
determination of what regulations best fit the unique situation in 
Alaska must be determined through informal consultation and 
ultimately rulemaking.
    For these reasons, the APHA looks forward to working with you 
and the Alaska Congressional Delegation to find a strong solution--
one that promotes safety, allows businesses to continue to operate 
efficiently, and does not saddle Alaskan aero-lodge pilots with 
unnecessary regulations.
    The APHA stands ready to assist you in this rulemaking.

      Sincerely,
William P Horn,
Birch, Horton, Bittner and Cherot.
[FR Doc. 98-9075 Filed 4-6-98; 8:45 am]
BILLING CODE 4910-13-P