[Federal Register Volume 68, Number 161 (Wednesday, August 20, 2003)]
[Proposed Rules]
[Pages 50085-50087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21423]


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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; Correction

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM), correction.

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SUMMARY: The FAA published a notice of proposed rulemaking on August 8, 
2003 (68 FR 47269) to continue the existing safety requirements in 
Special Federal Aviation Regulation No. 71 (SFAR 71) and eliminate the 
termination date for SFAR 71. In that proposed rule, the FAA 
inadvertently omitted the Regulatory Flexibility Analysis. This 
publication corrects that error and publishes the Regulatory 
Flexibility Analysis for public comment.

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 Rulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket

[[Page 50086]]

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 e-mail at [email protected].

SUPPLEMENTARY INFORMATION: The FAA published a notice of proposed 
rulemaking on August 8, 2003, (68 FR 47269) and the section titled 
``Initial Regulatory Flexibility Analysis'' was inadvertently left out. 
This document corrects that error.
    Correction: In FR Doc. 03-20277 published on August 8, 2003 (68 FR 
47269), on page 47271, in column 3, before the paragraph heading 
``International Trade Impact Assessment,'' add the following 
information:

Initial Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a 
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 RFA requires agencies to 
solicit and consider flexible regulatory proposals and to explain the 
rationale for their actions. The RFA 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 will have a significant economic impact on a substantial 
number of small entities. If the agency determines that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the RFA.
    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 RFA provides that the 
head of the agency may so certify and a regulatory flexibility analysis 
is not required. The certification must include a statement providing 
the factual basis for this determination, and the reasoning should be 
clear.
    The FAA conducted the required review of this proposal and 
determined that it would have a significant economic impact on a 
substantial number of small entities. Accordingly, pursuant to Section 
603 of the Regulatory Flexibility Act, the Federal Aviation 
Administration has prepared the following initial regulatory 
flexibility analysis.

Reasons Why Agency Action Is Being Considered

    The FAA is proposing to continue the existing safety standards in 
SFAR 71 without a termination date as a result of the reduction in 
accidents and incidents involving air tour operators in Hawaii and NTSB 
recommendations. The rationale for the major provisions of the NPRM are 
summarized below:
    Safety provisions addressing the risks of beyond the shore 
operations. Based on an analysis of the risks of beyond the shore 
operations and NTSB recommendations, the FAA concludes that the 
benefits of these provisions justify the costs. Based on survivors' 
testimony, life preservers alone are insufficient in preventing loss of 
life in helicopter accidents over water. Without floats, helicopters 
sink very quickly upon impact, giving occupants little time to exit the 
aircraft. The FAA believes that helicopter floats, in conjunction with 
life preservers and pre-flight briefing on water ditching procedures, 
would significantly improve the chances of survival. Therefore, this 
proposal would require life preservers and passenger briefings for all 
air tours and floats for helicopters.
    Provisions addressing weather. Between 1982 and 1994 there were 12 
weather related accidents in Hawaii while between 1994 and 2002 there 
were 3 weather related accidents. This illustrates the effectiveness of 
the existing SFAR 71 weather related provisions and warrant their 
continuation.

Statement of Objectives and Legal Basis

    The objective of this proposal is to continue a higher level of 
safety for Hawaii air tours. Under the United States Code, the FAA 
Administrator is required to consider the following matter, among 
others, as being in the public interest: assigning, maintaining, and 
enhancing safety and security as the highest priorities in air 
commerce. [See 49 U.S.C. 40101(d)(1).] Additionally, it is the FAA 
Administrator's statutory duty to carry out her responsibilities ``in a 
way that best tends to reduce or eliminate the possibility or 
recurrence of accidents in air transportation.'' [See 49 U.S.C. 
44701(c).] Accordingly, this notice proposes to amend title 14 of the 
Code of Federal Regulations to continue the safety requirements of air 
tour operations in Hawaii, without a termination date.

Description of Small Entities Affected

    The FAA concludes that all of the entities affected by the proposed 
amendments are small according to thresholds established by the Small 
Business Administration (i.e., employ fewer than 1,500 employees). An 
estimated 6 part 91 operators and 24 part 135 operators would be 
affected by the rule. The part 91 operators own about 11 aircraft, 
while the part 135 operators have about 80 aircraft. This proposed rule 
would impose total annualized costs per operator of approximately 
$99,000. According to a Small Business Administration analysis of 
Bureau of Census data for non-scheduled air transportation firms,\1\ 
firms with fewer than 500 employees have average revenues of $1.87 
million. The estimated cost to each of these small entities is 
approximately 5.3 percent of the average revenue of non-scheduled air 
transportation firms with fewer than 500 employees based on the SBA's 
Census data cited.
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    \1\ Source: SBA Advocacy Office statistics for 1997. All Hawaii 
air tour operators are assumed to have fewer than 500 employees.
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Projected Reporting, Recordkeeping and Other Compliance Requirements

    The annualized cost for completing the performance plan and 
conducting the passenger briefing would impose average annualized costs 
per operator of approximately $43,500.

Overlapping, Duplicative, or Conflicting Federal Rules

    The proposed rule would not overlap, duplicate, or conflict with 
existing Federal rules.

[[Page 50087]]

Analysis of Alternatives

    Affected operators and helicopter air tour pilots have petitioned 
the FAA to amend SFAR 71. They argue that SFAR 71's 1500-foot minimum 
altitude requirement is ``cumbersome and lacks flexibility in dynamic 
circumstances.'' The petitioners also maintain that allowing air tour 
flights as low as 300 feet above the surface would make SFAR 71 safer 
in certain circumstances.
    The FAA has considered the petitioners' views in formulating this 
proposed rule. The issues raised are similar to comments received by 
the agency during the three SFAR rulemaking preceding this proposed 
rule. The FAA concludes that 1,500 feet provides a pilot with more 
distance, and, thus time, to avoid an accident or to deal with an 
error. An altitude of 300 feet provides 80 percent less distance and 
thus, much less reaction time.

Affordability Analysis

    The FAA lacks reliable revenue and profit data on the individual 
entities affected by this rule, but the estimated cost to each of these 
small entities is approximately 5.3 percent of the average revenue of 
non-scheduled air transportation firms with fewer than 500 employees 
based on the SBA's Census data. Hawaii air tour operators have been 
subject to the proposed provisions of this rule since 1994. While there 
are fewer operators today than in 1994, the cause cannot be directly 
attributed to SFAR 71 but rather, the vagaries and nature of the 
tourism market. New air tour operators have entered the market after 
making the business decision to accept the provisions of this rule. The 
FAA invites comment on the potential impact of the proposal on revenues 
and profits.

Business Closure Analysis

    The FAA estimates that none of the operators currently providing 
air tour flights would elect to stop providing the service. These 
operators have been complying with these provisions since 1994.

Disproportionality Analysis

    All Hawaiian entities in the air tour market are small. 
Accordingly, the costs imposed by this proposal would be borne almost 
entirely by small businesses. The estimated costs are proportional to 
the frequency of operations and thus the burden is not 
disproportionate. Air tour safety in Hawaii has been significantly 
improved, and the FAA believes that the only way to continue this is to 
maintain these higher standards on these entities.

Key Assumptions Analysis

    The FAA has made several conservative assumptions in this analysis, 
which may have resulted in an overestimate of the costs of the 
proposal. For example, the FAA assumes that the pilot in command would 
conduct all pre-flight briefings but the provision only requires the 
pilot to ``ensure that each passenger has been briefed''. The briefing 
could be recorded or provided by a lower paid employee. Also, the 
helicopter life preserver costs may be overestimated since there is a 
voluntary industry standard to which 13 helicopter tour operators 
subscribe that requires occupants to wear a personal flotation device.

    Issued in Washington, DC, on August 18, 2003.
Donald P. Byrne,
Assistant Chief Counsel.
[FR Doc. 03-21423 Filed 8-18-03; 12:19 pm]
BILLING CODE 4910-13-P