[Federal Register Volume 68, Number 153 (Friday, August 8, 2003)]
[Proposed Rules]
[Pages 47269-47272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20277]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91, 121 and 135

[Docket No. FAA-2003-14830; Special Federal Aviation Regulation (SFAR) 
No. 71]
RIN 2120-AH02


Air Tour Operators in the State of Hawaii

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This action proposes to continue the existing safety 
requirements in Special Federal Aviation Regulation No. 71 (SFAR 71) 
and eliminate the termination date for SFAR 71. Currently, SFAR 71 is a 
final rule that will expire on October 26, 2003. Since 1994, the FAA 
has extended SFAR 71 for two 3-year periods. The procedural, 
operational, and equipment safety requirements of SFAR 71 would 
continue to apply to parts 91, 121, and 135 air tour operators in 
Hawaii. SFAR 71 does not apply to operations conducted under part 121 
in airplanes with a passenger-seating configuration of more than 30 
seats and a payload capacity of more than 7,500 pounds or to flights 
conducted in gliders or hot air balloons.

DATES: Comments must be received on or before September 8, 2003.

ADDRESSES: You may submit comments to FAA-2003-14830 by any of the 
following methods:
    [sbull] Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    [sbull] Fax: 1-202-493-2251.
    [sbull] Mail: Docket Management Facility: U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
    [sbull] Hand Delivery: Room PL-401 on the plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC between 9 am and 5 
pm, Monday through Friday, except Federal Holidays.
    [sbull] Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Public 
Participation heading of the SUPPLEMENTARY INFORMATION section of this 
document. Note that all comments received will be posted without change 
to http://dms.dot.gov, including any personal information provided. 
Please see the Privacy Act heading under SUPPLEMENTARY INFORMATION and 
Regulatory Notices.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC between 9 am and 5 pm, Monday through Friday, except 
Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Alberta Brown, Aviation Safety 
Inspector, Air Transportation Division, AFS-200, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591; 
Telephone (202) 267-8321, or by email at [email protected].

SUPPLEMENTARY INFORMATION: 

Public Participation

    Interested persons are invited to participate in this proposed 
rulemaking by submitting such data, views or arguments, as they may 
desire. Comments that provide the factual basis supporting the views 
and suggestions presented are particularly helpful in developing 
reasoned regulatory decisions on a proposal. Comments are specifically 
invited on the overall regulatory, economic, environmental and energy-
related aspects of the proposal. If you are submitting comments on 
paper, write docket number FAA-2003-14830 on your comments and submit 
them in duplicate. Submit your comments to the Docket Management System 
or through the internet at the addresses listed above.
    Anyone who would like the FAA to acknowledge receipt of their 
comments must submit a self-addressed, stamped, postcard containing the 
statement ``Comments to Docket No. FAA-2003-14830.'' The postcard will 
be date/time stamped and returned. All communications received on or 
before the specified closing date for comments will be considered 
before taking action on this proposed rule. Comments filed after the 
closing date will be considered to the extent practicable. The proposal 
may be changed in light of the comments received.
    All comments submitted will be available for examination in the 
public docket both before and after the closing date for comments. If 
any substantive contact with FAA personnel occurs concerning this 
proposal after its publication, a report summarizing that contact will 
be placed in the docket.

Privacy Act

    Anyone is able to search the electronic form of all comments 
received into our dockets by the name of the individual submitting the 
comment (or signing the comment, if submitted on behalf of an 
association, business, labor union, etc.). You may review DOT's 
complete Privacy Statement in the Federal Register published on April 
11, 2000 (volume 65, Number 70, pages 19477-78), or you may visit 
http://dms.dot.gov.

Availability of the Proposed Rule

    You can download an electronic copy of this proposed rule through 
the Internet by:
    (1) Searching the Department of Transportation's electronic Docket 
Management System (DMS) Web page (http://dms.dot.gov/search);
    (2) Visiting the Office of Rulemaking's Web page at http://www.faa.gov/avr/armhome.htm; or
    (3) Accessing the Federal Register's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.
    You also can get a copy 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) 267-9680. Make 
sure you put docket number FAA-2003-14830 on your request. to identify 
this rulemaking.
    You may review the public docket containing this proposal, any 
comments

[[Page 47270]]

received, and any final disposition, in person in the Docket Management 
System office (see address above) between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.

Small Entity Inquiries

    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. Internet users can find additional information 
on SBREFA on the FAA's Web page at http://www.2faa.gov/avr/arm/sbrefa.htm. Persons without internet access may call the office of 
rulemaking at (202) 267-8677 for more information.

Background

    In 1994, the FAA issued SFAR 71 as an emergency rule because of 
safety concerns about the risks associated with air tours in Hawaii and 
the increase in the accident rate (59 FR 49138, September 26, 1994). 
Currently, SFAR 71 imposes special safety requirements for all air 
tours conducted in Hawaii under parts 91, 135, and certain part 121 
operations.
    Section 3 specifically addresses single engine helicopters operated 
beyond the shore of any island. Without regard to gliding distance, the 
helicopter must be equipped with floats adequate to accomplish a safe 
emergency ditching as well as flotation gear easily accessible to each 
occupant. If there are no floats on the helicopter, each occupant must 
wear the flotation gear.
    Section 4 applies to all helicopter air tours, not just single 
engine helicopters or off shore air tours, and requires operators to 
complete a performance plan before each flight. The pilot in command 
must comply with the performance plan.
    Section 5 requires that, except for approach to, and transition 
from a hover, the pilot in command of a helicopter air tour operate at 
a combination of height and forward speed (including hover) that would 
permit a safe landing in the event of engine power loss, in accordance 
with the height-speed envelope for that helicopter under current weight 
and aircraft altitude.
    Section 6 requires minimum altitudes for air tours in Hawaii. No 
person may conduct an air tour in Hawaii below an altitude of 1,500 
feet above the surface or closer than 1,500 feet to any person or 
property. There are exceptions for altitudes necessary for takeoff and 
landing, compliance with air traffic control clearances, and altitudes 
prescribed by federal statute or regulation. Section 6 also allows 
operators to obtain deviation authority from the FAA to operate at 
lower altitudes.
    Section 7 requires that each pilot in command of an air tour flight 
of Hawaii, with a flight segment beyond the ocean shore of any island, 
ensure that passengers are briefed on water ditching procedures, use of 
flotation equipment, and how to exit from the aircraft in the event of 
a water landing.
    The original SFAR would have expired 3 years after becoming 
effective in October 1994; however, the FAA extended the termination 
date in both 1997 and 2000 for additional 3-year terms. (62 FR 58854, 
October 30, 1997; 65 FR 58610, September 29, 2000.) Except for the date 
extensions, SFAR 71 has continued without change to its substantive or 
procedural safety requirements and has remained in effect for 
approximately 9 years.
    As discussed in the two extensions, the FAA will continue to 
develop a national air tour safety standards notice of proposed 
rulemaking. The national rulemaking will be responsive to the NTSB and 
others who believe that air tour safety standards should be applicable 
nationwide.
    There have been three lawsuits regarding SFAR 71 rulemaking. The 
Hawaii Helicopter Operators Association (HHOA) challenged the validity 
of the emergency rule issued in 1994, contending that the FAA had 
violated the notice and comment provisions of the Administrative 
Procedure Act (APA). The United States Court of Appeals for the Ninth 
Circuit upheld the promulgation of SFAR 71 as an emergency rule finding 
that the FAA had properly invoked the good cause exception to section 
553(c) of the APA. Also, the Court rejected HHOA's claim that the 
SFAR's 1,500 foot minimum altitude requirement was arbitrary and 
capricious. See Hawaii Helicopter Operators Association v. FAA, 51 F. 
3d 212 (9th Cir. 1995).
    When the FAA extended SFAR 71 in 1997 and 2000, Safari Aviation, 
Inc., petitioned for review of both rules in the 9th Circuit. As to the 
1997 interim rule, the Court held that the challenge was moot because 
the rule had expired. As to the 2000 rule extending SFAR 71 without 
change (except for the date) the Court found that the FAA adequately 
responded to the comments it received. The FAA was required to respond 
only to significant comments raising relevant points and which, if 
adopted, would require a change to the proposal. The Court found that 
the FAA had a rational basis for promulgating SFAR 71 and held that the 
rule was not arbitrary or capricious. The Court also held that the FAA-
approved deviations from the altitude minimums in SFAR 71 were 
interpretive rules not subject to the notice and comment provisions of 
the APA. See Safari Aviation v. FAA, 300 F. 3d 1144 (9th Cir. 2002) 
cert. denied.

The Petition for Rulemaking

    In October 2002, 15 helicopter air tour operators and their pilots 
who operate in Hawaii petitioned to amend SFAR 71. Each of the 
identical petitions was signed by air tour pilots. The petitions are 
available in docket number FAA-2002-13959 as well as this rulemaking 
docket. Petitioners state that the 1,500-foot minimum altitude 
requirement in SFAR 71, even with FAA approved specific deviation 
authority, ``is cumbersome and lacks flexibility in dynamic 
circumstances.'' They maintain that the altitude requirement in SFAR 71 
is ``unnecessarily restrictive and compromises safety by taking away 
pilot options.'' Petitioners state that ``pilot judgment should dictate 
altitude and standoff distances in accordance with well-established FAA 
regulatory practice and helicopter industry experience.''
    Petitioners agree that the 1,500-foot minimum altitude restriction 
should be maintained for habitable structures and congregations of 
persons. For other areas, however, they request that the FAA amend the 
altitude restriction for helicopters to align it with federal aviation 
regulation section 135.203 (14 CFR 135.203). The 300-ft. altitude 
restriction in 14 CFR 135.203 refers to VFR helicopter operations over 
congested areas; however, petitioners maintain that 300 feet is a 
reasonable minimum altitude to apply to helicopter tour operations in 
noncongested areas in Hawaii. They ask the FAA to amend SFAR 71 to 
allow air tour helicopter operations at 300 feet except when operating 
over habitable structures or congregations of people.
    Petitioners maintain that allowing helicopter air tours as low as 
300 feet would make ``SFAR 71 safer because pilot decision-making would 
no longer be compromised by pressure to maintain unreasonable altitudes 
in certain circumstances.'' They believe that ``the pilot would then 
have the latitude to determine the safe and most reasonable route of 
flight considering terrain and weather.''
    Petitioners state that SFAR 71 causes helicopter tours to fly over, 
or very close to, communities concentrated along the coast of the 
windward side of the Hawaiian Islands in order to stay at 1,500 feet 
and remain under the cloud

[[Page 47271]]

ceiling. They state that general aviation airplanes fly low in this 
area to stay below the helicopter tour flights. They assert that this 
practice is ``contrary to common sense, increases the potential for 
mid-air collisions, and increases noise exposure for coastal 
communities.'' Finally, petitioners state that a review of the pre-SFAR 
helicopter accidents in Hawaii would disclose that ``a 300 foot 
restriction would have been equally effective in preventing almost 
every accident attributed to low altitude.''
    In an identical addendum to the petition, some petitioners state 
that SFAR 71 should be rescinded and that the rules governing 
helicopter flight and equipment should be uniform throughout the United 
States. These petitioners maintain that parts 91 and 135 are 
established safety regulations acceptable to helicopter tour pilots and 
tour operators on a nationwide level. They contend that SFAR 71 was 
imposed because of a political outcry for increased regulations. They 
also maintain that the accident history used to support SFAR 71 shows 
that if the pilots and operators had complied with existing 
regulations, the accidents would not have occurred or the outcomes 
would have been different.

The FAA's Response

    The FAA has considered the petitioners' views, arguments and 
information in formulating this notice of proposed rulemaking. During 
the years that SFAR 71 has been in effect, the FAA has received many 
comments about the minimum altitude requirement; it continues to be a 
contentious issue. When the FAA issued SFAR 71 in 1994 as an emergency 
rule, the National Transportation Safety Board and others criticized 
the minimum altitude requirement because of a concern that tour 
operations would be concentrated at that altitude increasing the risk 
of mid-air collisions and derogating safety. In practice, the FAA has 
granted deviations to a majority of the operators, which has mitigated 
this concern. By granting the deviations, the FAA has provided the 
majority of air tour operators with specific interpretations of how the 
minimum altitude requirement of SFAR 71 applies to them in light of 
their individual safety qualifications and differences in local terrain 
and prevailing conditions.
    The petitions and addendums to the petitions raise issues again 
that are similar to comments received by the agency during the three 
rulemaking proceedings on this SFAR. The helicopter air tour operators 
do not agree with the 1,500-ft. altitude minimum and they want to fly 
lower at 300 feet over other than congested areas in Hawaii without 
obtaining an FAA authorized deviation. They acknowledge, however, that 
a minimum altitude of 300 feet would not have prevented all the pre-
SFAR accidents attributable to low altitude. SFAR 71 limits the minimum 
altitude at which air tours may be conducted and, to that extent, the 
FAA agrees with petitioners that SFAR 71 has taken away a pilot option. 
An altitude of 1,500 feet provides a pilot with more distance, and thus 
time, to avoid an accident or to deal with an error.
    In summary, SFAR 71 has been successful in reducing the air tour 
accident rate in Hawaii and does not compromise safety. Any FAA issued 
deviations from the altitude requirement will continue to be site 
specific because the public interest in safety requires a case-by-case 
and site-by-site assessment for each altitude deviation request.

The Proposal

    The FAA proposes to continue the safety requirements of SFAR 71 
without a termination date because of the success of SFAR 71 in 
reducing the air tour accident rate in Hawaii and the proven 
effectiveness of the SFAR's requirements.

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. The 
original SFAR 71 established procedural, operational, and equipment 
safety requirements for air tour aircraft in the state of Hawaii. This 
proposal would maintain the same requirements. This rulemaking will not 
involve any significant impacts to the human environment and the FAA 
has determined that there are no extraordinary circumstances.

Regulatory Evaluation Summary

    This regulatory evaluation estimates the benefits and costs of a 
proposed rule that would continue the existing safety requirements in 
SFAR 71 and eliminate its termination date. Currently, SFAR 71 is a 
final rule that will expire on October 26, 2003. Since 1994, the FAA 
has extended SFAR 71 for two 3-year periods. The procedural, 
operational, and equipment safety requirements of SFAR 71 would 
continue to apply to parts 91, 135, and certain 121 air tour operators 
in Hawaii. SFAR 71 does not apply to operations conducted under part 
121 in airplanes with a passenger-seating configuration of more than 30 
seats and a payload capacity of more than 7,500 pounds or to flights 
conducted in gliders or hot air balloons.
    The FAA estimates the total cost of this proposed rule at $29.8 
million or $20.9 million, discounted. The costs reflect maintenance and 
operating costs attributable to flotation devices and flotation gear, 
operating costs required for calculating helicopter performance plans 
and providing passenger briefing for emergency egress in the event of a 
water landing. Lost opportunity costs would also be incurred due to the 
minimum weather provisions.
    The quantified monetary benefits of the proposed rule are estimated 
at $125.3 million. An estimated 39 fatalities would be avoided, if the 
rule were 100 percent effective and the rule would have to be less than 
23 percent effective for the cost per fatality avoided to exceed the 
benchmark value of $3.0 million.
    The FAA has determined that the benefits of the proposed rule would 
exceed the cost. The rule would not impact on international trade 
because the affected operators do not compete with foreign operators. 
The rule would not have an unfunded mandate exceeding $100 million 
annually on the private sector or state, local, and tribal governments. 
The FAA has determined that the proposed rule would have a significant 
impact on a substantial number of small air tour operators.

International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
establishing any standards or engaging in 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 accordance with the above statute, 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 affect on any trade-
sensitive activity.

Paperwork Reduction Act

    SFAR 71 contains information collection requirements. Those same 
requirements apply to this extension. OMB approval (No. 2120-0620) has 
been extended through January 31, 2004.

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Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (the Act) is intended, 
among other things, to curb the practice of imposing unfunded Federal 
mandates on State, local and tribal governments. Title II of the Act 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in the expenditure of $100 million or more (adjusted 
annually for inflation) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.''
    This proposed rule does not contain such a mandate. The 
requirements of Title II 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 121

    Air carriers, Aircraft, Airmen, Aviation safety, Charter flights, 
Safety, Transportation.

14 CFR Part 135

    Air taxi, Aircraft, Airmen, Aviation safety.

The Amendment

    The Federal Aviation Administration proposes to amend 14 CFR parts 
91, 121, 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 121--OPERATING REQUIREMENTS: DOMESTIC FLAG, AND SUPPLEMENTAL 
OPERATIONS

    2. The authority citation for part 121 continues to read as 
follows:

    Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 46105.

    3. Add SFAR No. 71 to part 121.

PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND OPERATIONS

    4. 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, 44715-44717, 44722.

    5. In parts 91, 121, 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 SFAR NO. 71 shall remain in 
effect until further notice.

    Issued in Washington, DC on August 4, 2003.
John M. Allen,
Acting Director, Flight Standards Service.
[FR Doc. 03-20277 Filed 8-5-03; 4:47 pm]
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