[Federal Register Volume 65, Number 190 (Friday, September 29, 2000)]
[Rules and Regulations]
[Pages 58610-58612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25139]



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Part II





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; Final Rule

  Federal Register / Vol. 65, No. 190 / Friday, September 29, 2000 / 
Rules and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91 and 135

[Docket No. 27919; Special Federal Aviation Regulation (SFAR 71)]
RIN 2120-AG-44


Air Tour Operators in the State of Hawaii

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: On August 21, 2000, the FAA proposed to extend for 3 years 
Special Federal Aviation Regulation (SFAR) 71, which established 
certain procedural, operational, and equipment requirements for air 
tour operators in the State of Hawaii. This final rule, which adopts 
the proposals, will provide additional time for the agency to complete 
and issue a notice of proposed rulemaking for a national rule that 
would apply to all air tour operators. The FAA anticipates that the 
national rule, when finalized, would replace SFAR 71, which would then 
be rescinded. Thus the FAA is extending SFAR 71 for another 3 years to 
maintain the current requirements for the safe operation of air tours 
in the airspace over the State of Hawaii and provide the additional 
time necessary to issue the national rule.

DATES: This final rule is effective on October 26, 2000.

FOR FURTHER INFORMATION CONTACT: Gary Davis, Air Transportation 
Division, AFS-200, Federal Aviation Administration, 800 Independence 
Avenue, SW, Washington, DC 20591; Telephone (202) 267-8166.

SUPPLEMENTARY INFORMATION:

Availability of the Final Rule

    You may obtain an electronic copy of this document 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.
    You may also obtain a copy of this 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 rule.

Small Entity Inquires

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) requires the FAA to comply with small entities 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, Maui, 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 
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. 
This proposal for a national rule will also be responsive to NTSB 
comments and will consider issues raised by commenters who responded to 
SFAR 71 in 1994. The FAA still anticipates that the national rule would 
replace SFAR 71. This final rule extends SFAR 71 for an additional 3 
years, which will allow time to issue the national rule, applicable to 
all air tour operators concerning air tour safety.

Comments on the Extension of SFAR 71

    As stated above, SFAR was extended in October 1997 until October 
2000. The FAA published that extension as an interim final rule and 
asked for comments on the extension. The FAA received four comments on 
the interim final rule; all four supported the extension of SFAR 71. 
Commenters included two individuals, a National Park Service 
Superintendent, and the Director of Transportation for the State of 
Hawaii.
    On August 21, 2000, the FAA issued and subsequently published at 65 
FR 51511 (August 23, 2000), a notice of proposed rulemaking to extend 
SFAR 71 until October 26, 2003. One comment was received on the 
proposal.
    Blue Hawaiian Helicopters comments that although there has been 
ample time for the FAA to receive input from Hawaii air tour operators 
and pilots, effective communication has not occurred. This commenter 
also states that some air tour pilots believe the altitude restrictions 
of SFAR 71 may have contributed to the three accidents that have 
occurred since the SFAR was adopted in 1994. Blue Hawaiian Helicopters 
also reports that at a recent meeting with the FAA in Hawaii the 
decision was made to form an air tour safety working group comprised of 
FAA representatives and an operator and pilot from each of the Hawaiian 
islands. The commenter applauds this decision as it will provide a 
forum leading to a safer tour environment for the flying public.

[[Page 58611]]

    FAA Response: The FAA justified its promulgation of the emergency 
final rule, SFAR 71, based on the large number of accidents that 
occurred in Hawaii between 1982 and 1991. Following the publication of 
that emergency final rule, the FAA determined that rulemaking was 
needed to ensure the safety of all air tour operations. Thus the FAA 
dedicated rulemaking resources to the development of a national air 
tour safety rule. By definition, SFAR's are not permanent regulations. 
The FAA intends to replace SFAR 71 with a national rule. The interim 
final rule that extended SFAR 71 until October 26, 2000, received 4 
comments; all of the commenters supported the extension of SFAR 71.
    A final report on the causes of the three accidents that have 
occurred in Hawaii since 1994--June 28, 1998, September 28, 1999, and 
July 21, 2000--has not been issued by the National Transportation 
Safety Board. Therefore, it would be premature for the FAA to comment 
on the causes of these accidents. Nevertheless, the complete accident 
history of tour operations in Hawaii supports the extension of SFAR 71.
    The FAA welcomes the suggestion of an air tour safety working group 
and expects that the group will maintain a balanced representation of 
the interested parties.

Environmental Review

    In accordance with FAA Order 1050.1D, the FAA has determined that 
this proposed rule is categorically excluded from environmental review 
under section 102(2)(C) of the National Environmental Policy Act 
(NEPA). The original SFAR 71 established operating procedures, 
including minimum safe altitudes, minimum equipment requirements and 
operational limitations for air tour aircraft in the State of Hawaii. 
The proposed rule would extend SFAR 71 for 3 years, thereby maintaining 
the same requirements. The extension of SFAR 71 will not involve any 
significant impacts to the human environment and the FAA has determined 
that there are no extraordinary circumstances.

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 final rule extends SFAR 71, there is no additional 
annual cost associated with it. The FAA believes that the extension of 
SFAR 71 would continue to prevent accidents and provide additional 
benefits.
    SFAR 71 was considered significant under DOT Regulatory Policies 
and Procedures (44 FR 11034; February 26, 1979) because it was issued 
originally as an emergency final rule. However, this final rule 
extending SFAR 71 is not considered significant.

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 final rule only extends 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 final rule and has determined 
that it will have only a domestic impact and therefore no effect on any 
trade-sensitive 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 through February 28, 2001.
    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

[[Page 58612]]

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  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 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' times) 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 240(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 of 
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 the 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 parts 91 and 135, 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 September 26, 2000.
Jane F. Garvey,
Administrator.
[FR Doc. 00-25139 Filed 9-27-00; 11:26 am]
BILLING CODE 4910-13-M