[Federal Register Volume 68, Number 205 (Thursday, October 23, 2003)]
[Rules and Regulations]
[Pages 60832-60839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-26836]



[[Page 60831]]

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Part IV





Department of Transportation





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Federal Aviation Administration



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14 CFR Parts 91, 121 and 135



Air Tour Operators in the State of Hawaii; Final Rule

  Federal Register / Vol. 68, No. 205 / Thursday, October 23, 2003 / 
Rules and Regulations  

[[Page 60832]]


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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: Final rule.

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SUMMARY: This final rule continues the existing safety requirements in 
Special Federal Aviation Regulation No. 71 (SFAR 71) and eliminates the 
termination date for SFAR 71. The procedural, operational, and 
equipment safety requirements of SFAR 71 will 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: This final rule is effective October 26, 2003.

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:

Availability of the Rulemaking Documents

    You can download an electronic copy of this final rule through the 
Internet by:
    (1) Searching the Department of Transportation's (DOT) electronic 
Docket Management System (DMS) Web page (http://dms.dot.gov/search); by 
going to the DOT in person; or by requesting by mail to DOT at 400 
Seventh Street, SW., Washington, DC 20590;
    (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 final rule, any 
comments 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.

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.

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/sbref.htm. Persons without Internet access may call the office of 
rulemaking at (202) 267-8677 for more information.

Background

    On August 8, 2003, the FAA published a notice of proposed 
rulemaking (NPRM) that would continue the safety requirements of SFAR 
71 and eliminate its termination date. (68 FR 47269) The FAA omitted 
the Regulatory Flexibility Analysis from the final document. Therefore, 
on August 20, 2003, the FAA published a correction to the proposed rule 
including the Regulatory Flexibility Analysis (68 FR 50085).

Summary of Comment on the Proposal

    Note: ``Petitioners'' as used in this summary of comments refers 
to the 15 petitioners who filed a petition for rulemaking to operate 
helicopters at 300 feet above uncongested terrain, dated October 15, 
2002, Docket FAA-2002-13959. The petition may also be reviewed in 
Docket FAA-2003-14830. All material and relevant comments have been 
reviewed. Most of the comments raised issues that the FAA has 
already addressed in prior rulemakings regarding this SFAR.

Eliminate SFAR 71

    Some commenters want SFAR 71 eliminated completely. They maintain 
that the air tour operators in Hawaii should be allowed to operate 
under parts 91 and 135 like the rest of the air tour operators in the 
United States. They claim that the SFAR's additional requirements have 
not reduced the accident rate, or fatalities, and may have contributed 
to accidents and fatalities. These commenters believe that restrictions 
are unnecessary because SFAR 71 adds to pilot workload and fatigue. 
These commenters argue that pilot judgment should dictate altitude and 
standoff distances, not the SFAR, in accordance with regulatory 
practices and flight conditions. Some individual pilots state that the 
SFAR's 1500-foot altitude minimum has forced them into controlled 
airspace to maintain cloud clearance. They also state the SFAR's 
minimum altitude requirements increase the possibility of flying 
inadvertently into instrument meteorological conditions.
FAA Response
    The issues from the comments summarized above have been addressed 
in prior rulemakings concerning SFAR 71. Commenters have provided no 
new information.

SFAR 71 as a Noise Abatement Rule

    Some commenters continue to refer to SFAR 71 as a noise abatement 
regulation and ask the FAA to continue the rule or enhance it. Others 
maintain that SFAR 71 was issued to address noise and environmental 
issues, not safety, and want the SFAR eliminated. Elected officials and 
environmental groups characterize SFAR 71 as reducing noise pollution 
in Hawaii's national parks, forests, and scenic wildlife areas and ask 
for its continuation or enhancement.
FAA Response
    In 1994, the FAA issued SFAR 71 as an emergency final rule 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 FAA extended the SFAR in 1997 and 2000 to keep the SFAR's safety 
requirements in place. There were Congressional concerns that noise 
could be addressed at the same time, but noise was not the reason for 
issuing the rule. The FAA's mandate for this rulemaking was safety. The 
comments regarding noise, noise impacts, and noise benefits are 
speculative.

[[Page 60833]]

Commenters Proposing Changes to SFAR 71

    Elected officials, the Sierra Club, and some commenters seek 
elimination of the SFAR's 500-foot deviations or ``exemptions'' from 
the minimum altitude requirements. They believe that eliminating the 
deviations would mean less noise and less impact on the human 
environment, forests, and plants of Hawaii.
    Elected officials and other commenters oppose petitioners' request 
that the FAA amend the SFAR to allow tour helicopter flights at 300 
feet above uncongested terrain because they believe noise would 
increase.
    Still other elected officials and commenters want to raise the 
SFAR's minimum altitudes because they believe air tour operations at 
higher altitudes would generate less noise.
    Still other commenters request that overflights of national parks 
in Hawaii be eliminated.
    The petitioners and some commenters want to lower minimum altitudes 
and standoff distances for helicopters because that would allow 
helicopters to fly comfortably in the rainforest and away from 
populated noise-sensitive areas. They claim it would greatly reduce air 
traffic in the SFAR's flight corridors.
FAA's Response
    SFAR 71 continues to serve a safety purpose. The FAA chooses to 
continue the altitude minimums and the deviation authority of SFAR 71 
for safety reasons. The minimum altitude and standoff distances provide 
pilots with more time to make decisions, to recover in the event of an 
error, or land in the event of an emergency. Because the FAA maintains 
control of deviations, they reduce the potential for congestion over a 
particular site at the SFAR's 1500-foot altitude while still allowing 
for a safe landing in the event of engine failure. The SFAR's 
regulatory safety requirements were promulgated based on NTSB safety 
recommendations. We disagree that the minimum altitudes and stand off 
distances should be increased, or decreased, for alleged noise 
benefits. Noise abatement is beyond the scope of this rulemaking.
    Overflights of the national parks are part of the national airspace 
system. The National Parks Air Tour Management Act of 2000 (the Act) 
was enacted on April 5, 2000. The Act applies to any person who 
conducts a commercial air tour operation over a unit of the National 
Park System, over tribal lands that are within or abutting a unit of 
the National Park System, or any area within \1/2\ mile outside a unit 
of the National Park System. The regulations codifying the National 
Parks Air Tour Management Act of 2000 can be found in Title 14, Code of 
Federal Regulations, Part 136. The FAA has no mandate to eliminate 
overflights of national parks. Banning or restricting air tour aircraft 
from national parks, or other areas, for asserted noise benefits or to 
avoid asserted impacts, is beyond the scope of this rule.
    The national parks in Hawaii will be subject to the development of 
an ATMP under 14 CFR Part 136 (67 FR 65667; October 25, 2002). The FAA 
encourages persons interested in the development of these ATMPs to 
visit the Web site at http://www.atmp.faa.gov. There you may search by 
individual park for the status of any ATMP development.

Potential for Mid-Air Collisions

    Commenters' concerns on the potential for mid-air collisions can be 
divided into four categories:
    (1) The mix of airplanes and helicopters;
    (2) Congestion at the same altitude;
    (3) The use of different frequencies; and
    (4) Weather-related factors.
    (1) Commenters state that helicopters should not be flown in an 
airplane environment. A helicopter pilot's initial reaction to 
unforecasted poor weather, and/or a mechanical problem, is to 
immediately descend to a lower altitude with slower airspeed. Fixed-
wing aircraft do not have this option.
    (2) A commenter states that the primary routes for small commuter 
and private fixed wing aircraft around the Hawaiian Islands are around 
the coastal shorelines 1000-2500 MSL. This commenter maintains that 
SFAR 71 places Hawaii air tour helicopters at the same altitudes, in 
opposite directions, and at points of no two-way communications with 
commuter and general aviation aircraft.
    Petitioners and commenters state that because of SFAR 71's altitude 
requirement and the normal orographic cloud ceiling that forms along 
the windward sides of the Hawaiian islands, helicopter tours are often 
forced to fly over, or close to, coastal communities. In these 
circumstances, general aviation airplanes fly low to stay below the 
helicopters. Commenters maintain that the practice is contrary to safe 
practices and increases the potential risk of midair collisions as well 
as noise exposure.
    (3) Commenters find that because one aircraft may be on a common 
frequency and another on an airport frequency, they may not be able to 
talk to each other. If these aircraft are at the same altitude, this 
could be a problem.
    Another individual comments that the present route structures tend 
to concentrate air traffic too densely in certain areas presenting 
greater midair accident potential. Examples are the Pahoa NDM and the 
``Mill'' in Hilo. At these points a pilot must fly between frequencies 
or off communication frequencies to monitor STID in very critical 
areas.
    (4) Commenters also state that in marginal weather, SFAR 71 
concentrates air traffic along specific routes, which is not conducive 
to a safe flight environment. Pilots have come close to mid-air 
collisions in the valleys and open areas because the SFAR requires them 
to maintain the same altitudes in the same areas. Pilots are forced to 
fly over noise sensitive areas at 1,500 feet above the surface when 
they could have avoided the areas if they could have flown lower and 
not had such cloud restriction rules.
FAA Response
    The FAA is not aware of any safety issue with allowing helicopters 
and airplanes to operate in the same airspace in Hawaii. The air tour 
environment in Hawaii is ``see and be seen.'' There has been no 
identified problem with mid-air accidents in Hawaii; the preponderance 
of accidents involve weather factors and engine shutdowns with the 
pilot having insufficient time to recover or no place to land.
    The SFAR has never prescribed routes, and this rulemaking did not 
propose doing so. If the FAA were to propose routes, to include 
frequencies, it would have to be done in a separate rulemaking.
    The FAA is aware of areas all over the country where certain 
aircraft operate safely on different frequencies. If air tour operators 
have identified an issue that needs to be brought to the attention of 
the local flight standards district office or air traffic control 
facility, then those offices will work with the operators to develop a 
common frequency format for the areas of concern. Through their own 
organizations, operators can develop common frequency monitoring 
procedures, and in an emergency, a guard channel can be used. The FAA 
is not aware of any reason to develop rules that will regulate the 
routes in these areas, and a proposal was not included in this 
document.

Standoff Distances in Valleys

    Commenters suggest that complying with the SFAR's 1,500-foot 
standoff

[[Page 60834]]

distances in narrow valleys makes a safe environment hazardous because 
they must fly in the middle of the valley rather than near the sides 
where there is less wind turbulence.
FAA Response
    We disagree. The FAA did not propose to make changes to the 
standoff distances in this rulemaking. The FAA does not agree that the 
SFAR's standoff distances should be reduced or eliminated for valleys 
for the reasons discussed in this and prior rulemakings. The commenters 
have not presented a compelling safety argument for reducing the rule's 
baseline standoff distance. Generally speaking, the greater the 
standoff distance, the greater the chances that the pilot can avoid a 
collision with steep rugged terrain. The FAA has granted deviations 
from the baseline standoff distance after making safety assessments on 
a location-by-location basis.

The National Air Tour Safety Rule

    A commenter states that to codify the flawed SFAR instead of 
designing a national air tour policy is unsound. A proposed national 
rule would force the FAA to provide a competent safety analysis. A 
national rule would eliminate the ``improper and extraordinary impact 
on the rulemaking process heretofore enjoyed by the Hawaii 
Congressional delegation.''
    In a related comment, an air tour operator argues that the FAA's 
policy of ``equivalent level of safety'' should move the agency to 
either eliminate SFAR 71 or to get Part 135 in line with it, if the 
agency is not going to issue a national rule anytime soon.
    Another commenter states that the FAA should present a new version 
of SFAR 71 or replace it with a national rule.
    Numerous pilots state that the rule is inherently unfair. If air 
tour operators under Part 135 can fly at a 300-foot altitude over 
congested areas in the United States mainland, why should Hawaii pilots 
be restricted to 1,500 feet?
FAA Response
    The FAA is not certain what the commenters are attempting to say in 
its discussion of the advantage enjoyed by Congressional interest of 
Hawaii, so it will not discuss that portion of the comment.
    The SFAR has been in effect without substantive change since 1994, 
and it has been successful in reducing the rate of air tour accidents 
in Hawaii. This final rule continues SFAR 71 with no changes other than 
the elimination of the expiration date; it allows SFAR 71 to continue 
until further notice from the FAA. The FAA continues to work on a 
proposed national air tour safety rule that could, if adopted, 
supersede the SFAR.
    To the extent that any commenter believes that it is only fair to 
have the altitude restriction and standoff distances in SFAR 71 apply 
to all part 135 air tour operators nationally, the FAA responds as 
follows: First, the existing SFAR and the SFAR adopted today apply to 
all air tour operators in Hawaii regardless of whether they are 
conducting tours under parts 91, 121 or 135. Second, as we have 
previously stated, the FAA is considering whether aviation safety 
requires that the longstanding air tour safety rules in Hawaii should 
be applied nationally and whether Part 91 commercial air tour operators 
should be required to operate under part 135.
    The FAA disagrees with some commenters' argument that the Hawaii 
SFAR should be set aside until the national rule is developed. The FAA 
received a series of recommendations from the NTSB, which it acted on, 
and the resulting regulatory effort was SFAR 71. Those rules have been 
effective, they have withstood court challenge, and the FAA will not 
rescind the SFAR while it considers whether to issue a national rule.

Continue or Increase the Minimum Altitude and Standoff Distances; 
Eliminate the Deviation Authority of SFAR 71.

    More than 100 individuals, residents of Hawaii or persons who enjoy 
the environment there, filed almost identical comments to support 
maintaining or increasing the 1500-foot altitude, eliminating the lower 
altitudes exceptions (deviations), and giving the state of Hawaii and 
the National Park Service (NPS) the ability to restrict tour 
overflights of state and national parks and wilderness areas. They 
would like the SFAR's minimum altitude increased. Further, they object 
to petitioners' request for an amendment that would permit a 300-foot 
above the surface altitude for helicopters over uncongested areas. In 
support, they state that ``government studies'' have demonstrated that 
higher minimum altitudes save lives, constant noise adversely impacts 
human health and can ruin the wilderness experience for hikers and 
campers, and overflights disrupt Hawaii's wildlife. They also note that 
the vibration from helicopters flying close to cliffs and precarious 
rock structures may cause landslides or rock falls.
FAA Response
    In this rulemaking, the FAA proposed only to eliminate the 
expiration date. Comments regarding changing the altitude restriction 
or eliminating deviations are beyond the scope of this rulemaking and 
will not be considered.
    In response to commenters who wish to give sole authority to 
regulate the airspace of parks to the National Park Service (NPS) or 
State governments, the FAA has sole and exclusive jurisdiction and 
control over the navigable airspace. That power cannot be delegated to 
the NPS or a State absent express Congressional legislation. The 
comments are also beyond the scope of this rulemaking. As to national 
parks, the FAA is working cooperatively with the NPS on development of 
certain air tour management plans, as required by 14 CFR part 136, 
National Parks Air Tour Management. This work is being conducted 
independently of SFAR 71, and when appropriate, public participation 
will be invited.

Frequency and Reporting Requirements

    One individual comments that many pilots have discontinued the 
practice of reporting position, altitude, and direction of flight or 
report only the legal details required by SFAR 71.
FAA's Response
    The SFAR does not require any special reporting by pilots. However, 
since the purpose of the comment is unclear, the FAA offers the 
following. As a matter of general practice, the FAA allows operators to 
develop standard procedures as to how they operate in the scenic areas. 
As long as the operating procedures are not in conflict with the 
regulations, the FAA generally will not be involved. If the commenter 
is saying that pilots are ignoring operating procedures that have been 
approved by the FAA as part of the operator's manual, then the FAA 
urges the commenter to provide the necessary information to the Flight 
Standards District Office for investigation and appropriate action.

Using Landmarks for Reporting Requirements

    Another commenter recommends that, to the extent there is an 
increased risk of midair collisions, a system of common frequency and 
reports over landmarks should be used.
FAA's Response
    Development and implementation of a procedures manual for pilots 
does not require regulatory action. Incorporation of landmarks and 
common frequencies are issues that the operators and pilots

[[Page 60835]]

could agree on. In fact, a procedures manual used by operators in the 
Grand Canyon Special Flight Rules Area was developed by the Flight 
Standards District Office (FSDO) in cooperation with the operators and 
is a primary document used in the training of new pilots.
    The FAA continues to be puzzled by comments it has received on this 
rule proposal. On the one hand, commenters are demanding that SFAR 71 
needs to be rescinded, while on the other hand, commenters seem to want 
more procedural regulation. The FAA is more than willing to provide 
additional guidance and, as a result of recent accidents and the 
comments received in this rulemaking, the FAA has decided to hold a 
series of safety meetings to discuss these issues with pilots and 
operators. Additional procedural guidance may result from these 
meetings.

Public Disclosure of SFAR 71 Rulemaking Proceedings

    A commenter requests that the Administrator produce for public 
comment and inspection in the FAA docket all rulemaking documents 
related to the promulgation of SFAR 71. This commenter believes that 
this action would disclose the ``deficient safety analysis'' of SFAR 71 
and also would highlight the Congressional pressure to limit helicopter 
operations in Hawaii.
FAA's Response
    Commenters should be aware that the FAA rulemaking process is a 
public process, and issues involved with the rule are in a public 
docket open for all persons to review. The Congressional record and 
NTSB recommendations are also public documents that are readily 
available through the Internet.
    However, deliberative material and internal FAA working documents 
used in the development of an NPRM or rule are not subject to public 
scrutiny and do not belong in the public docket. These documents are 
predecisional and are exempt from public review under the Freedom of 
Information Act. Moreover, they are not helpful to anyone since the 
decision of the FAA to issue a proposal may change as issues are 
discussed internally within the FAA.
    During the development of this proposal and disposition of comments 
in this final rule, it has become apparent that many commenters believe 
SFAR 71 is a noise rule and is not related to safety. The FAA cannot 
change what commenters believe, nor will it try since neither this 
commenter nor any other commenter has provided any evidence that the 
FAA should support their opinions instead of the NTSB and the FAA's 
aviation safety expertise.
    In support of commenters, it is a matter of public record that the 
Hawaii Congressional delegation believes low flying aircraft are 
causing serious noise pollution. They have written numerous pieces of 
correspondence to the FAA concerning this issue. Air tour operators do 
not need to receive copies of internal FAA documents in order to know 
what their delegation thinks because their public position is very 
clear. On the other hand, the FAA has not been directed by any act of 
Congress to regulate air tour operators in Hawaii for noise with the 
exception of the recently passed the National Parks Air Tour Management 
Act. That act has been codified as part 136 and its provisions were 
developed by a National Parks Overflights Working Group (NPOWG), which 
included an air tour operator from Hawaii.

No Justification for Altitude Restrictions

    A commenter states that although accident statistics show that a 
compelling argument can be made for the life vest requirement in SFAR 
71, just the opposite is true of the altitude restriction. This 
commenter notes that 77% of the accidents attributable to engine 
failures occurred before the SFAR was issued; 23% occurred afterward. 
The engines used in the pre-SFAR timeframe are no longer in use. The 
engines used predominantly in the post-SFAR timeframe have proven very 
reliable.
FAA's Response
    The decrease in engine failures is encouraging; however, in-flight 
engine failures (e.g., mechanical failures, fuel starvation) continue 
to occur.
    To the extent that commenters are suggesting that the altitude 
restriction and associated increases in weather minimums are not 
necessary, the FAA disagrees. The SFAR's life vest and altitude 
requirements have been analyzed in the regulatory evaluation and each 
measure provides a safety benefit. The altitude baseline in the SFAR, 
which is higher than those altitudes suggested by some commenters, 
gives a pilot a better opportunity to make a safe landing should an 
engine failure occur. The FAA has granted deviations from the baseline 
altitude of 1,500 feet to lower altitudes based on numerous factors, 
including whether the terrain permits a safe landing and the 
performance capabilities of the aircraft.

Additional Training as an Alternative

    A commenter states that given the unique terrain and climate 
features of Hawaii, if the FAA is really concerned about safety, it 
should mandate additional training instead of imposing artificial 
altitudes. Another commenter credits the Tour Operators Program of 
Safety (TOPS), that has been in effect since the mid-1990's, with 
providing great benefits to the safety of air tour operations in 
Hawaii.
FAA's Response
    The FAA considered the uniqueness of Hawaii when it issued SFAR 71 
in 1994. Additional training may be necessary in the future but the FAA 
does not consider such measures necessary at this time.
    Operators are always free to provide additional training; the 
regulations contain only minimum requirements. The FAA encourages 
programs such as TOPS that can provide pilots additional training 
benefits and help develop a culture of compliance.

The FAA's Claim That the SFAR Has Increased Safety Is Misleading

    Some commenters believe that the altitude restriction has not been 
the contributing cause to the decrease in accidents, but rather cite 
three factors: (1) Efforts of air tour operators and pilots to increase 
training and standards; (2) the replacement of helicopters with engines 
that had a high failure rate with helicopters with reliable engines; 
and (3) a number of safety devices, such as the use of flotation 
devices, that were mandated by the SFAR. This commenter states that it 
is the operators' opinion that the altitude restriction may have added 
to the accident potential.
    Other commenters state that the intent of the SFAR was to reduce 
accidents and fatalities/injuries due to loss of power in cruise.
FAA's Response
    The FAA agrees that the overall decrease in the accident rate may 
be due to a number of unquantifiable factors. However, as stated 
previously, the altitude restrictions in SFAR 71 are needed. The 
reasons the FAA issued the SFAR, with the altitude restriction, are 
articulated in the 1994 final rule and discussed in the extensions. The 
stated intent of the 1,500-foot altitude provision is not to prevent 
accidents solely due to loss of power in cruise. Comments that the SFAR 
increases the potential for accident have been addressed in prior 
rules, and the FAA disagrees with such comments.

[[Page 60836]]

Accident Rates

    Using the figures that supported the original promulgation of SFAR 
71, a commenter concludes that the accident rate for helicopters was 
one-fourth that of airplanes. Between 1982 and 1994, air tour airplanes 
had an accident rate of over 24 per million flights, and helicopters 
had a rate of 5.9 per million flights. This commenter maintains that 
the accident rates for helicopters in Hawaii were lower than many other 
states. Further, the commenter posits that the drop in the accident 
rate for helicopters is due to better equipment, not the SFAR, and that 
the majority of the accidents from 1982 to 1994 were because of 
mechanical failures.
FAA's Response
    The commenter is incorrect; the analysis addresses the benefits of 
the rule to airplanes and helicopters separately. While the commenter 
correctly cites information in the FAA's 1994 regulatory evaluation 
(which are also incorporated in the evaluation for this rulemaking) 
regarding airplane and helicopter accident rates, the cited accident 
rates only apply to accidents attributable to weather and flying low, 
and are not a comprehensive rate for all accidents which the commenter 
apparently assumes. The FAA's estimate of accidents avoided is only 
based on accidents rates related to specific provisions of the rule and 
are not related to accidents due to mechanical failures. Since 
accidents attributed to mechanical failures are not included, the 
helicopter accident rate is not misleading.

Affordability Analysis

    A commenter notes that the FAA stated that the drop in business 
since the enactment of the SFAR was due to the nature of tourism. This 
commenter claims that the majority of helicopter services have lost a 
great deal of income due to a lack of repeat customers because of the 
altitude and standoff distances. The claim is that prior to SFAR 71 
almost 25% of the air tour business was made up of returning tourists.
FAA's Response
    The FAA cannot use this cost estimate because the information is 
insufficient and undocumented. It is also at odds with a comment by a 
large helicopter operator that the helicopter tour industry in Hawaii 
``has flown well over 80,000 hours per year in every year since 1985.''

Cost-benefit Analysis

    A commenter contests ``the elusive cost-benefit analysis'' because 
no real analysis, statistics, or time parameters are provided. This 
commenter claims that the FAA promised, both in 1997 and 2000, that 
such an analysis would be provided in a final rule, which has not been 
forthcoming. The commenter further remarked that the estimated number 
of fatalities avoided lacked sufficient detail and another commenter 
questioned the basis for the accident rate referenced in the NPRM.
FAA's Response
    The regulatory evaluation provided a list of all Hawaii air tour 
accidents related to the provisions of SFAR 71 from 1982 to June 30, 
2003. The commenters included a listing of helicopter accidents in 
Hawaii covering the period from November 19, 1985--July 23, 2003 based 
on NTSB data. The FAA used the same database but for the time period of 
1982-June 30, 2003 and with some differences in the results. The 
commenters included three helicopter accidents that the NTSB narratives 
do not indicate were sightseeing or air tours and therefore are not 
incorporated in the FAA's analysis.\1\ The number of accidents, 
fatalities, and injuries associated with each of the major provisions 
of the rule were extracted and the accident rate per million air tour 
flights was calculated for helicopters and airplanes. The number of air 
tour flights was derived from the FAA's Terminal Area Forecast, the 
1994 FAA final regulatory evaluation and FAA operations specification 
data on air tour operators.\2\ The accident rate was determined for the 
1982-1994 and 1995-2002 time periods. The difference between the post-
SFAR and the pre-SFAR accident rates were then applied to the number of 
forecasted helicopter and airplane air tour flights to arrive at the 
estimated number of accidents that would be avoided by adoption of the 
minimum altitude and weather provision of the rule. The 1982-1994-
accident rate related to helicopter flotation gear requirement was 
applied to the forecast number of helicopter flights to estimate the 
number of fatalities that would be avoided by adoption of the flotation 
gear provision.
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    \1\ Accidents not identified by NTSB as air tours: LAX86FA243, 
LAX87FA112, and LAX01LA083. The first 2 accidents occurred in the 
take-off phase of operation and the third during a pre-departure 
check. None appear to be related to the SFAR provisions. The FAA has 
therefore not added these accidents to the database used in the 
regulatory analysis.
    \2\ FAA Office of Aviation, Policy, and Plans: Terminal Area 
Forecast, Fiscal years 2002-2020. Final Regulatory Evaluation, Final 
Regulatory Flexibility Determination, and Trade Impact Assessment: 
``Air Tour Operators in the State of Hawaii'' August 1994.
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The Final Rule

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

Justification for Immediate Adoption

    The FAA finds that good cause exists under 5 U.S.C. 553(d) for this 
final rule to become effective upon issuance. The FAA notes that this 
final rule does not change the long-standing requirements of SFAR 71 
for air tour operators in Hawaii; it only eliminates the termination 
date.

Environmental Review

    In accordance with FAA Order 1050.1D, the FAA has determined that 
this amendment is categorically excluded from environmental review 
under section 102(2)(C) of the National Environmental Policy Act. In 
1994 the original SFAR 71 established procedural, operational, and 
equipment safety requirements for air tour aircraft in the state of 
Hawaii. This amendment will maintain those requirements and is part of 
an ongoing action. The continuation of SFAR 71 will not involve any 
significant impacts to the human environment and the FAA has determined 
that there are no extraordinary circumstances. This rule does not 
change the existing environment and is not likely to effect listed, 
endangered or threatened species. Comments requesting that the FAA ban 
overflights from critical habitat are beyond the scope of this rule.

Regulatory Evaluation Summary

    Proposed changes to Federal regulations must undergo several 
economic analyses. First, Executive Order 12866 directs that each 
Federal agency shall propose or adopt a regulation only upon a reasoned 
determination that the benefits of the intended regulation justify its 
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies 
to analyze the economic impact of regulatory changes on small entities. 
Third, the Trade Agreements Act (19 U.S.C. sections 2531-2533) 
prohibits agencies from setting standards that create unnecessary 
obstacles to the foreign commerce of the United States. In developing 
U.S. standards, this Trade Act requires agencies to consider

[[Page 60837]]

international standards and, where appropriate, that they be the basis 
for U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4) requires agencies to prepare a written assessment of 
the costs, benefits, and other effects of proposed or final rules that 
include a Federal mandate likely to result in the expenditure by State, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $100 million or more annually (adjusted for inflation.)
    In conducting these analyses, FAA has determined this rule: (1) Has 
benefits that justify its costs, is not a ``significant regulatory 
action'' as defined in section 3(f) of Executive Order 12866, and is 
not ``significant'' as defined in DOT's Regulatory Policies and 
Procedures; (2) will have a significant economic impact on a 
substantial number of small entities; (3) will not constitute a barrier 
to international trade; and (4) will not impose an unfunded mandate on 
state, local, or tribal governments, or on the private sector. The FAA 
has placed these analyses in the docket and summarized them below.

Costs

    The FAA estimates the total cost of this rule at $29.8 million or 
$20.9 million, discounted. The costs reflect maintenance and operating 
costs attributable to flotation devices and life vests, operating costs 
required for calculating helicopter performance plans and providing a 
passenger briefing for emergency egress in the event of a water 
landing. Lost opportunity costs will also be incurred due to the 
minimum weather provisions.
    The rule requires single-engine helicopters conducting air tours 
beyond the shore of any island to be either amphibious or equipped with 
flotation devices. The capital costs associated with this provision are 
reflected in the maintenance costs. In addition, there are operating 
costs from increased fuel consumption. The cost for required float 
inspections is estimated at $4.0 million over a 10-year period, $2.8 
million, discounted. The helicopters will incur an operating penalty 
from increased fuel consumption due to the extra weight of the floats. 
The FAA estimates the 10-year weight-related costs at $4.6 million or 
$3.2 million, discounted. The total operating costs of these provisions 
over a 10-year period are estimated at $8.6 million or $6.0 million, 
discounted.
    Each person on board an air tour helicopter is required to wear a 
life vest. Air tour operators in Hawaii had provided life vests aboard 
helicopters prior to the issuance of SFAR 71 in 1994 and thus already 
complied with the equipment requirement so there are no acquisition 
costs associated with this provision. Prior to SFAR 71, the life vests 
were stowed under the passenger's seat. Since the issuance of SFAR 71, 
passengers have to wear a life vest during the helicopter air tour. 
This results in additional continuing maintenance costs associated with 
these life vests since the rule requires the vests to be worn as well 
as a weight penalty. The 10-year cost totals $485,000 or $341,000, 
discounted.
    Each helicopter air tour operator must develop and comply with a 
performance plan. The development costs have already been incurred but 
each pilot must complete the performance plan before each flight. The 
10-year cost of preparing the performance plans are estimated at $4.9 
million or $3.5 million, discounted.
    The pilot in command must ensure each passenger is briefed on water 
ditching procedures, use of required life vests, and emergency egress 
from the aircraft in event of a water landing. The 10-year cost of this 
provision is estimated at $8.1 million or $5.7 million, discounted.
    Opportunity costs will also be incurred due to the minimum weather 
provisions. The total lost net revenue due to cancelled air tours is 
estimated at $7.6 million or $5.3 million, discounted.

Benefits

    The FAA has quantified the benefits of the life vests and minimum 
altitude provisions and estimates the monetary benefits of these 
provisions at $125.3 million. An estimated 39 fatalities will be 
avoided, if the rule is 100 percent effective. This rule would be cost 
beneficial if it were only 24 percent effective. The benefits of the 
briefing provision are reflected in the life vest provision. The 
benefits of the performance plan have not been quantified.
    Between 1982 and 1994 there were 3 helicopter water-landing 
accidents in which 8 persons drowned. These 3 accidents occurred in the 
course of an estimated 1.176 million flights or 2.55 accidents per 
million helicopter air tour flights. Applying this accident rate to the 
forecast of 1.157 million flights over the next 10-years results in 8 
fatalities averted and a monetary benefit of $24 million.
    There were 7 helicopter accidents between 1982 and 1994 related to 
weather or flying low. These accidents resulted in 11 fatalities, 9 
serious and 12 minor injuries. The helicopter air tour accident rate 
related to weather equaled 5.95 accidents per million flights. Between 
1995 and 2002 there were 2 helicopter accidents resulting in 13 
fatalities and a weather related accident rate of 2.43 accidents per 
million flights. The difference in accident rates was 3.514 accidents 
per million flights. Based on a forecast of 1.16 million helicopter 
tours over the next 10-years, applying this accident rate results in 4 
accidents avoided and 11 fatalities averted and monetary benefits of 
$38.8 million.
    Airplane air tour operators experienced 5 weather related accidents 
between 1982 and 1994 (24.04 weather-related accidents per million 
operations) but only 1 weather-related accident between 1995 and 2002 
(6.9 weather-related accidents per million operations). These 6 
accidents resulted in 39 fatalities and 4 serious injuries. The 
difference in accident rates was 17.14 per million operations. Applying 
this accident rate differential to the forecast of 183,000 flights over 
the next 10-years results in 3 accidents avoided and 20 fatalities 
averted and a monetary benefit of $62.5 million.

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.

[[Page 60838]]

    The FAA conducted the required review of this rule and determined 
that it will 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 final regulatory flexibility analysis.

Reasons Why Agency Action Is Being Considered

    The FAA will 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 rule 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 vests 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 vests and pre-flight briefing on water ditching procedures, will 
significantly improve the chances of survival. Therefore, this rule 
requires life vests 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.

Summary of Significant Issues Raised In Comment Period

    The FAA received four comments related to economic evaluation 
issues, and the FAA has determined none of the comments were 
significant. One comment mistakenly interpreted accident rate data 
presented in the economic analysis to support removing the altitude 
restriction on helicopters. Another comment questioned the basis for 
the accident rate referenced in the NPRM, and a third claimed a lack of 
detail on the estimated number of fatalities avoided. The FAA has 
provided a detailed response to these comments and determined the 
analysis questioned is accurate and complete. A fourth comment claimed 
the rule has resulted in a loss of income due to a lack of repeat 
customers, which prior to 1994 accounted for almost 25 percent of tour 
business. The comment was not supported by any documentation and was 
contrary to a comment by a small, but well-known operator, that the 
helicopter tour industry in Hawaii ``has flown well over 80,000 hours 
per year in every year since 1985''.

Statement of Objectives and Legal Basis

    The objective of this rule 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. Sec.  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. Sec.  
44701(c).] Accordingly, this rule will 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 rule 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 will be affected by the 
rule. The part 91 operators own about 11 aircraft, while the part 135 
operators have about 80 aircraft. This rule will 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, 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.

Projected Reporting, Recordkeeping and Other Compliance Requirements

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

Overlapping, Duplicative, or Conflicting Federal Rules

    The rule will not overlap, duplicate, or conflict with existing 
Federal Rules.

Analysis of Alternatives

    Affected operators and helicopter air tour pilots have petitioned 
the FAA to amend SFAR 71. They argue that SFAR 71's 1,500 feet 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 
rule. The issues raised are similar to comments received by the agency 
during the three SFAR rulemaking preceding this 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 provisions of this rule since 1994.

Business Closure Analysis

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

Disproportionality Analysis

    All Hawaiian entities in the air tour market are small. 
Accordingly, the costs imposed by this rule will 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.

[[Page 60839]]

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 rule. 
For example, the revenue loss resulting from tour cancellations due to 
the minimum flight altitude provision has been partially offset by the 
FAA's issuance of ``deviations'' allowing lower minimum altitudes and 
thus fewer tour cancellations. In addition, the FAA assumes that the 
pilot in command will 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 vest 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.

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 final 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. OMB approval 
(No. 2120-0620) has been extended through January 31, 2004.

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 final 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

0
The Federal Aviation Administration amends 14 CFR parts 91, 121, and 
135 as follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

0
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

0
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.

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

0
3. 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.

0
4. 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 October 20, 2003.
Marion C. Blakey,
Administrator.
[FR Doc. 03-26836 Filed 10-21-03; 10:39 am]
BILLING CODE 4910-13-P