[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