[Federal Register Volume 65, Number 164 (Wednesday, August 23, 2000)]
[Proposed Rules]
[Pages 51512-51514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-21631]



[[Page 51511]]

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

Part V





Department of Transportation





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



Federal Aviation Administration



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



14 CFR Parts 91 and 135



Air Tour Operators in the State of Hawaii; Proposed Rule

  Federal Register / Vol. 65, No. 164 / Wednesday, August 23, 2000 / 
Proposed Rules  

[[Page 51512]]


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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91 and 135

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


Air Tour Operators in the State of Hawaii

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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

SUMMARY: On October 23, 1997, the FAA extended Special Federal Aviation 
Regulation (SFAR) 71, which established certain procedural, 
operational, and equipment requirements for air tour operators in the 
State of Hawaii, for 3 years. The purpose of this extension was to 
provide additional time for the agency to complete and issue a notice 
of proposed rulemaking that would apply to all air tour operators. The 
FAA anticipates that this national rule, when finalized, would replace 
SFAR 71, which would then be rescinded. The FAA proposes to extend SFAR 
71 for another 3 years, which would provide the additional time 
necessary to issue the proposal addressing commercial air tour safety 
standards and maintain the current regulatory requirements for the safe 
operation of air tours in the airspace over the State of Hawaii.

DATES: Send your comments on or before September 22, 2000.

ADDRESSES: Address your comments, 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 Gary Davis, Air Transportation Division, AFS-200, Federal 
Aviation Administration, 800 Independence Avenue, SW, Washington, DC 
20591; Telephone (202) 267-8166.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested persons are invited to participate in the proposed 
rulemaking by submitting such written data, views, or arguments as they 
may desire. Comments relating to the environmental, energy, federalism, 
or economic impact that might result from adopting the proposals in 
this document also are invited. Substantive comments should be 
accompanied by cost estimates. Comments must identify the regulatory 
docket or notice number and be submitted in duplicate to the address 
specified above.
    All comments received, as well as a report summarizing each 
substantive public contact with FAA personnel concerning this proposed 
rulemaking, will be filed in the docket. The docket is available for 
public inspection before and after the comments closing date.
    All comments received on or before the closing date will be 
considered by the Administrator before taking action on this proposed 
rulemaking. Comments filed late will be considered as far as possible 
without incurring expense or delay. The proposals in this document may 
be changed in light of the comments received.
    Commenters wishing the FAA to acknowledge receipt of their comments 
submitted in response to this document must include a pre-addressed, 
stamped postcard with those comments on which the following statement 
is made: ``Comments to Docket No. 27919.'' The postcard will be date 
stamped and mailed to the commenter.

Availability of the Proposed Rule

    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the FAA regulations section 
of the FedWorld electronic bulletin board service (telephone: (703) 
321-3339).
    Internet users may reach the FAA's web page at http://www.faa.gov/avr/arm/nprm/nprm/.htm or the GPO's web page at http://www.access.gpo.gov/nara to access recently published documents.
    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.
    Persons interested in being placed on the mailing list for future 
rulemaking documents should request from the above office a copy of 
Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution 
System, which describes the application procedure.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) requires the FAA to comply with small requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. Therefore, any small entity that has a question regarding 
this document may contact their local FAA official.
    Internet users can find additional information on SBREFA on the 
FAA's web page at http://www.faa.gov/avr/arm/sbrefa.htm.

Background

    Since 1980, the air tour industry in the State of Hawaii has grown 
rapidly, particularly on the islands of Oahu, Kauai, Mauai, and Hawaii. 
The growth of the tourist industry, the beauty of the islands, and the 
inaccessibility of some areas on the islands generated significant 
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.
    The growth of the air tour sightseeing industry in Hawaii has been 
associated with an escalation of accidents. During the 9 years 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, a rise in the number of 
accidents occurred, indicating a need for additional measures to ensure 
safe air tour operations in Hawaii.
    On September 26, 1994, the FAA published the emergency final rule, 
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

[[Page 51513]]

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. On October 30, 1997, SFAR 71 was extended until 
October 26, 2000.
    Since the FAA believes that SFAR 71 has been successful in 
preventing further accidents, the FAA is developing a national air tour 
safety rule that would address similar issues identified in SFAR 71. 
Once that rulemaking is complete, this national rule would replace SFAR 
71, which would then be rescinded.
    This proposal would extend SFAR 71 for an additional 3 years. As 
stated in the extension of SFAR 71, the FAA intends to issue a notice 
of proposed rulemaking applicable to all air tour operators concerning 
air tour safety. This national rule will be responsive to NTSB comments 
and will consider issues raised by commenters who responded to SFAR 71 
in 1994.

Environmental Review

    Because this proposal would maintain the current conditions, no 
further environmental review is required.

Regulatory Evaluation Summary

    SFAR 71 established certain procedural, operational, and equipment 
requirements for air tour operators operating in the State of Hawaii. 
Compliance with SFAR 71 was estimated to increase total costs 
approximately $2.1 million, in 1994 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 life vests 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. A 
copy of the Final Regulatory Evaluation, Final Regulatory Flexibility 
Determination, and Trade Impact Assessment completed for the original 
SFAR was placed in the docket.
    Because this notice proposes to extend SFAR 71, there is no 
additional cost associated with it. The FAA believes that the extension 
of SFAR 71 would continue to prevent accidents and provide additional 
benefits.
    This regulation is considered significant under DOT Regulatory 
Policies and Procedures (44 FR 11034; February 26, 1979) because it was 
issued originally as an emergency final rule.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) establishes ``as 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the rule and of applicable statutes, 
to fit regulatory and informational requirements to the scale of the 
business, organizations, and governmental jurisdictions subject to 
regulation.'' To achieve that principle, the Act requires agencies to 
solicit and consider flexible regulatory proposals and to explain the 
rationale for their action. The Act covers a wide range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule would have a significant economic impact on a substantial 
number of small entities. If the determination is that it will, the 
agency must prepare a regulatory flexibility analysis.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the 1980 Act provides that 
the head of the agency may so certify and an RFA is not required. The 
certification must include a statement providing the factual basis for 
this determination, and the reasoning should be clear.
    The FAA's original regulatory flexibility analysis indicated that 
SFAR 71 would impose a ``significant economic impact on a substantial 
number of small entities.'' (See the copy of the original Regulatory 
Flexibility Determination included in the docket.)
    Although the FAA has issued a number of ``deviations'' since the 
issuance of the SFAR, the overall impact on small entities remains 
significant. Although this proposal only would extend the current rule, 
the effect of the extension of SFAR 71 is still significant for small 
entities. Accordingly, the FAA certifies that this extension has a 
significant economic impact on a substantial number of small entities.

International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards. In addition, consistent with the Administration's belief in 
the general superiority and desirability of free trade, it is the 
policy of the Administration to remove or to diminish to the extent 
feasible, barriers to international trade, including both barriers 
affecting the export of American goods to foreign countries and 
barriers affecting the import of foreign goods and services into the 
United States.
    In accordance with the above statute and policy, the FAA has 
assessed the potential effect of this proposed rule and has determined 
that it would have only a domestic impact and therefore no effect on 
any trade-sensitivity activity.

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.
    The original accounting for the paperwork burden was as follows. 
SFAR 71, 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 an hour. Using these numbers, 400,000 
minutes = 6,667 hours  x  $10.00 equals $66,667.00, or approximately 
$.70 per flight.
    To account for the deviation information collection requirement, 
two calculations must be performed. First, operators requested 
deviations to 1,000 feet, and second to 500 feet. The FAA granted 1,000 
ft. deviations to approximately 35 operators. It is estimated that the 
preparation of a deviation request 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

[[Page 51514]]

operations preparation using 35 hours of inspector time or 
approximately $1,750.00 in costs. The 500 feet deviation requests 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 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.

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 State, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, the FAA certifies that this regulation will not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

List of Subjects

14 CFR Part 91

    Aircraft, Airmen, Aviation safety.

14 CFR Part 135

    Air taxi, Aircraft, Airmen, Aviation safety.

The Proposed Amendment

    The Federal Aviation Administration proposes to amend 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. SFAR NO.--71-Special Operating Rules for Air Tour Operators in 
the State of Hawaii, section 8, is revised to read as follows:

SFAR NO. 71--Special Operating Rules for Air Tour Operators in The 
State of Hawaii

* * * * *
    Section 8. Termination date. This Special Federal Aviation 
Regulation expires on October 26, 2003.

    Issued in Washington, DC, on August 21, 2000.
L. Nicholas Lacey,
Director, Flight Standards Service.
[FR Doc. 00-21631 Filed 8-21-00; 1:03 pm]
BILLING CODE 4910-13-M