58854 Federal Register / Vol. 62, No. 210 / Thursday, October 30, 1997 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91 and 135

[Docket No. 27919; Special Federal Aviation

Regulation (SFAR) No. 71–1]

RIN 2120–AG44

Air Tour Operators in the State of

Hawaii

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Interim rule; disposition of

comments; and request for comments on

a draft Environmental Assessment.

SUMMARY: On September 26, 1994, the

FAA issued an emergency final rule as

SFAR 71, which established certain

procedural, operational, and equipment

requirements for air tour operators in

the State of Hawaii. The final rule was

effective October 26, 1994; the FAA

invited public comments on the rule

until December 27, 1994. This

document responds to public comments

and extends the expiration date for

SFAR 71 until October 26, 2000. This

action will ensure that regulatory

requirements for the safe operation of

air tours in the airspace over the State

of Hawaii remain in effect.

DATES: Comments must be received on

or before December 29, 1997. This

interim rule is effective October 26,

1997.

ADDRESSES: Comments on this interim

rule should be mailed in triplicate to:

Federal Aviation Administration, Office

of the Chief Counsel, Attention: Rules

Docket (AGC–200), Docket No. 27919,

800 Independence Ave., SW,

Washington, DC 20591. Comments may

also be sent electronically to the Rules

Docket by using the following Internet

address: 9–NPRM–

CMTS@mail.faa.dot.gov. Comments

must be marked as Docket No. 27919.

Comments may be examined in Room

915G on weekdays between 9:00 a.m.

and 5:00 p.m., except on federal

holidays.

FOR FURTHER INFORMATION CONTACT: For

a copy of this rule, contact the Office of

Rulemaking at (202) 267–9677. For

technical questions, contact David

Metzbower, Air Transportation

Division, AFS–200, Federal Aviation

Administration, 800 Independence

Avenue, SW, Washington, DC 20591;

Telephone (202) 267–3724.

SUPPLEMENTARY INFORMATION:

Availability of Interim Rule

Any person may obtain a copy of this

interim rule by submitting a request to

the Federal Aviation Administration,

Office of Rulemaking, ARM–1, 800

Independence Avenue, SW,

Washington, DC 20591, or by calling

(202) 267–9677. Requests should be

identified by the docket number of this

proposal.

An electronic copy of this interim rule

may be downloaded using a modem and

suitable communications software from

the FAA regulations section of the

Fedworld electronic bulletin board

service (703–321–3339), or the Federal

Register’s electronic bulletin board

service (telephone 202–512–1661).

Internet users may reach the FAA’s web

page at http://www.faa.gov, or the

Federal Register’s page at http://

www.access.gpo.gov/suldocs, for

access to recently published rulemaking

documents.

Small Entity Inquiries

The Small Business Regulatory

Enforcement Fairness Act of 1996

(SBREFA) requires the FAA to report

inquiries from small entities concerning

information on, and advice about,

compliance with statutes and

regulations within the FAA’s

jurisdiction, including interpretation

and application of the law to specific

sets of facts supplied by a small entity.

The FAA’s definitions of small

entities may be accessed through the

FAA’s web page (http://www/faa.gov/

avr/arm/sbrefa.htm), by contacting a

local FAA official, or by contacting the

FAA’s Small Entity Contact listed

below.

If you are a small entity and have a

question, contact your local FAA

official. If you do not know how to

contact your local FAA official, you may

contact Charlene Brown, Program

Analyst Staff, Office of Rulemaking,

ARM–27, Federal Aviation

Administration, 800 Independence

Avenue, SW, Washington, DC 20591, 1–

888–551–1594. Internet users can find

additional information on SBREFA in

the ‘‘Quick Jump’’ section of the FAA’s

web page at http://www.faa.gov and

may send electronic inquiries to the

following Internet address: 9-AWASBREFA@faa.dot.gov

Background

The Air Tour Industry

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 of the islands has generated

tremendous 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. Currently in

Hawaii, the air tour industry carries

about 500,000 passengers annually. The

Honolulu Flight Standards District

Office reports that currently twenty-six

operators conduct air tours under Part

135, using 77 aircraft of which 18 are

airplanes and 59 are helicopters.

Approximately 9 operators conduct air

tours under Part 91 using approximately

16 aircraft, of which 9 are airplanes and

7 are helicopters.

History and Escalation of Accidents

The growth of the air tour sightseeing

industry in Hawaii has been associated

with an escalation of accidents. During

the 9-year period 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, the

escalation of accidents occurred,

indicating a need for additional

measures to ensure safe air tour

operations in Hawaii.

On September 26, 1994, the FAA

published an emergency final rule as

Special Federal Aviation Regulation

(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.

The comment period for the

emergency rule closed on December 27,

1994.
Federal Register / Vol. 62, No. 210 / Thursday, October 30, 1997 / Rules and Regulations 58855

Discussion of Comments

General

The FAA received more than 200

comments on the SFAR. Commenters

included the National Transportation

Safety Board (NTSB), state and local

governments, air tour operators,

helicopters associations, tourism-related

organizations, citizen and

environmental groups, and individuals.

The most controversial provision of the

SFAR was the minimum altitude

requirement.

The following discussion contains a

summary of comments according to the

specific subject areas defined in the

SFAR. It should be noted that comments

which were not relevant to these subject

areas or were considered to be

speculative are not included in this

discussion.

Because of the time that has expired

since the publication of SFAR 71, some

of these comments may not have the

same relevance because of subsequent

events. In addition, air tour operators

and the FAA have worked together to

mitigate concerns that the rule is overly

burdensome. The FAA’s response to

these comments is summarized at the

end of the comment discussion.

Safety Record

Several commenters, including the

Hawaii Helicopter Operators

Association (HHOA) and the Helicopter

Association International (HAI), state

that Hawaii’s air tour operators have a

good safety record that exceeds that of

helicopter operations in other parts of

the United States, and a safety record

that exceeds the national average of

general aviation aircraft. Other

commenters say that the accident rate is

low considering the number of flight

hours and the number of passengers

flown. HHOA and others state that

recent accidents were caused by pilot

error and mechanical failure, and not

the altitude at which the aircraft were

operated.

Two comments were received from

persons who were personally involved

in air tour accidents in Hawaii. In

addition to asking that all of the safety

tools, such as flotation devices for

aircraft and passengers, be used, they

also comment on the lack of rescue

support, which cost several lives in one

accident. One of these individuals

suggests that the SFAR should apply

everywhere, commenting that ‘‘Water,

helicopters, floats, and life jackets do

not perform differently from one state to

another.’’

Need for Emergency Rulemaking

Several commenters state that there is

little supporting data to justify the

FAA’s issuance of the SFAR under

emergency rulemaking provisions.

In a petition to the FAA to withdraw

or stay the SFAR (which was also

submitted as a comment), HHOA states

that, because there was no true

emergency, the FAA should not have

used the ‘‘good cause’’ exception of the

Administrative Procedures Act (APA) to

avoid rule issuance without notice and

public comment. Some commenters

believe that the real reason for SFAR 71

is noise, not safety.

Applicability and Definitions

Some commenters, including HHOA,

contend that states such as Alaska,

California, and Oregon have rugged

coastlines and terrain that pose the same

hazards to air tours as Hawaii’s terrain.

These commenters posit that the SFAR,

which is being imposed only on Hawaii,

is discriminatory and puts the air tour

industry in Hawaii at a competitive

disadvantage.

Flotation Devices

HHOA states that limiting the

flotation requirement to helicopters is

arbitrary and capricious because the

SFAR assumes that only helicopters

sink rapidly after forced landings on

water.

Other commenters favor requiring

both flotation equipment and the

wearing of personal flotation gear. The

NTSB; the Department of Transportation

Airports Division for the State of

Hawaii; and the Sierra Club Legal

Defense Fund point out that because

helicopters sink more quickly in water,

the use of external flotation equipment

would provide the necessary time for

passengers to exit the helicopter.

The NTSB states that at its public

hearing on air tour safety, air tour

operators and helicopter manufacturers

expressed concern about the capabilities

of airframe-mounted helicopter flotation

systems. They point out that a

helicopter’s emergency water entry may

easily exceed the certificated vertical

speed values of current systems and

result in failure of this equipment to

perform as expected. In its comment,

the NTSB recommends that SFAR No.

71 be modified to provide for two

redundant means of occupant survival:

airframe-mounted flotation equipment

and the wearing of a life preserver by

each person while on board.

Helicopter Performance Plan

One operator contends that this

requirement is not necessary because

§ 91.9 requires compliance with the

operating limitations specified in the

approved rotorcraft flight manual

(RFM). Also, § 135.345(b)(2) requires

aircraft performance characteristics to

be part of an operator’s required training

program.

HHOA states that this requirement

would, in effect, result in a one-state

certification program because the

information requested in the operators’

certification performance plans would

not be required elsewhere in the United

States.

Helicopter Operating Limitations

HAI states that the operating

limitations could adversely affect

operations that are routinely performed

in or near the curve, such as external

load lifting, and that operating within

the height-velocity curve should be left

to the discretion of the operator.

Several commenters, including

HHOA, contend that this requirement

already exists in 14 CFR section 91.9,

which states that the shaded areas or

dead-man’s curve area is to be avoided

except under specific circumstances.

The NTSB states that comments from

operators and manufacturers at its

public hearing on air tour safety

question whether helicopter operating

limitations should be placed solely on

air tour operators in Hawaii, while nontour operations in Hawaii and operators

in other states remain unregulated in

this area. The NTSB recommends that

the FAA conduct discussions with

interested parties to resolve the issue of

helicopter height-velocity diagram

performance.

Standoff Distance

HHOA states that under the 1,500 foot

lateral clearance (standoff) requirement,

pilots would be forced to fly farther

offshore than now permitted, increasing

the power-off glide distance to shore in

the event of an engine failure. HHOA

adds that this requirement will cause

two-way air traffic congestion in and

over scenic canyons by forcing pilots to

follow the midline of the canyon,

thereby further decreasing the pilot’s

ability to keep a close visual surface

reference sufficient to safely control the

helicopter.

Minimum Flight Altitudes

A number of commenters point out

that the 1,500 foot above ground level

(AGL) requirement does not take into

account cloud cover and weather

conditions in Hawaii. Commenters say

that the requirement will increase the

probability of flying into bad weather,

and prevent helicopters from flying

below the clouds where they can

maintain visual reference to the ground.
58856 Federal Register / Vol. 62, No. 210 / Thursday, October 30, 1997 / Rules and Regulations

The NTSB believes that the requirement

may lead to increased operating time

over water, difficulties in regulatory

enforcement, and possible disregard of

the FAA regulation.

Some commenters state that the

SFAR’s minimum altitude and standoff

requirements should not apply to fixedwing aircraft. One operator says that

accidents cited in the SFAR were due to

pilot error and disregard for existing

regulations which already prevent fixedwing VFR flights into IMC conditions.

HHOA adds that requiring helicopters to

fly at 1,500 feet forces pilots to operate

helicopters as fixed-wing aircraft which

is contrary to the certification

requirements of helicopters.

Many commenters, including the

NTSB, HHOA, ALPA, and the Chamber

of Commerce of Hawaii, state that the

minimum altitude requirement will

cause air tour traffic to be concentrated

at the same altitude, increasing the

likelihood of midair collisions.

Several commenters, including

HHOA, state that the minimum altitude

requirement will create additional

hazards for emergency landings. At low

altitudes, pilots are better able to spot a

suitable landing site; at higher altitudes

it takes longer to land and shut off the

engine, thereby increasing the risk of a

fire and further mechanical failure. One

operator states that the minimum

altitude requirement is not needed

because § 91.119 says that no person

may operate an aircraft below an

altitude that does not allow for an

emergency landing without undue

hazard to persons or property on the

surface.

Visibility and Cloud Clearance

Several commenters point out that the

minimum altitude requirements in the

SFAR do not take into account changing

cloud cover and weather conditions in

Hawaii which affect pilots’ visibility

and ability to maintain required

distances from clouds. NTSB notes that

the 1,500 foot altitude may cause

encounters with cloud layers not found

at lower altitudes. Some commenters

say that pilots would best avoid

unforeseen weather conditions and

maintain sufficient visibility by flying

below the clouds and maintaining

visual reference to the ground.

Briefing Passengers

Commenters on this issue express

support for the requirement. HAI states

that although passenger briefing is

already standard practice for most

operators, the requirement will ensure

that passenger briefing takes place.

Costs

Many commenters state that the SFAR

will devastate Hawaii’s helicopter

tourist industry and related businesses,

many of which are small businesses.

Commenters say that over 650,000

visitors take helicopter tours annually,

and that the helicopter tour industry

contributes $100 million per year to

Hawaii’s economy. Several tourism

organizations say that since the SFAR

took effect, bookings dropped 40 to 50

percent which is equivalent to an

annual revenue loss of $35 million.

Some of these commenters add that the

SFAR will impact 1,000–2,000 people

employed by the helicopter tour

industry and related businesses. A pilot

commented that the air tour industry

raises $100 million annually, and noted

that this represents a considerable tax

contribution to the State of Hawaii.

Commenters on this issue included

hotel associations, a trade association, a

visitors’ bureau, a publishing company,

and a resort association. A number of

form letters were received expressing

that Hawaii has an unemployment

problem and that this rule will be

tantamount to taking away jobs. A

different form letter stated that the rule

is excessive, that most tour operators are

‘‘eco-friendly’’, and that air tour

operators perform valuable community

assistance in supporting disaster

assistance.

Several operators cite revenue losses

since the SFAR took effect due to the

necessity of grounding flight operations

when cloud ceilings were below 1,500

feet AGL. Several commenters,

including HAI, contend that the SFAR

underestimates the number of no-fly

days tour operators experience because

of low cloud ceilings.

HAI quotes from the SFAR, which

states ‘‘. . . although the 1,500 foot

minimum altitude requirement has a

significant economic impact on a

substantial number of small entities, it

provides superior operational safety.’’

HAI says that this equates to the notion

of ‘‘overly burdening’’ these same small

entities.

Monitoring, Enforcement, and

Voluntary Efforts

Some commenters, including HAI,

point out that better enforcement of

existing regulations would help prevent

air tour accidents and that Hawaii’s

FSDO staff should be increased for this

purpose. HHOA adds that air safety

would be improved if expanded weather

operations were provided by more than

the one Flight Service Station in

Honolulu.

Some commenters state that the

helicopter air tour industry is already

using voluntary measures to ensure

safety and reduce noise. An operator,

the Kauai County Council, and the Maui

Air Traffic Association say that HHOA’s

‘‘Fly Neighborly’’ program, which

recommends a 1,500 foot minimum

altitude, is a good means to ensure

voluntary compliance with existing

regulations.

Environmental Impacts

A number of commenters state that

the minimum altitude should be 2

miles, not 1,500 feet. These commenters

cite the value of the wilderness

experience and the protection of

wildlife as justification for banning

flights over national parks in Hawaii.

They urge the FAA to make the SFAR

permanent.

One commenter who lives 14 miles

from Kahului Airport expresses concern

that in an emergency, a helicopter with

little altitude would be forced to land

near her house and urges enforcement of

the 1,500 foot restriction. A major

environmental association states that

deviations from the rule should only be

allowed for reasons of safety.

Other commenters state that the air

tour industry is growing so rapidly in

Hawaii that private heliports are

springing up, allowing even more

uncontrolled growth. Therefore, more

controls than are provided by SFAR 71

may be needed.

The docket contains comments from

several neighborhood associations who

comment that the SFAR is forcing tours

to be rerouted over their property, that

the FAA is not enforcing the 1,500 foot

restriction for all operators, that all

pilots conducting air tour operations

should be required to have Part 135

certificates, and that the FAA should

implement a system for tracking

violators. One association suggests a

$2,000 fine, per violation, per day, for

each offender.

FAA’s Response

The FAA finds that the issuance of

SFAR 71 is justified by the accidents

that occurred from 1982–1991. The

Court of Appeals for the Ninth Circuit

supported the FAA’s finding by holding

that the FAA had good cause for

emergency rulemaking because of the

increase in recent fatal accidents (U.S.

Court of Appeals for the Ninth Circuit,

No. 94–70703, March 29, 1995; Hawaii

Helicopter Operators v. Federal

Aviation Administration, 51 F. 3d 212

(9th Cir. 1995). Moreover, the FAA finds

that the rule has been successful in

accident prevention. Since its issuance,

there have been only three incidents—
Federal Register / Vol. 62, No. 210 / Thursday, October 30, 1997 / Rules and Regulations 58857

all engine failures that landed safely

with no injuries.

One of the most contentious aspects

of the SFAR for operators was the

minimum operating altitude. The FAA,

after working closely with air tour

operators, believes that this problem has

been somewhat mitigated. Since 1994,

the FAA has allowed deviations from

SFAR 71 for the majority of air tour

operators. Air tour operators of fixedwing aircraft have been granted

deviations to conduct air tours at a

minimum altitude of 1,000 feet; air tour

operators of single-engine helicopters

have been granted deviations to conduct

air tours at a minimum of 500 feet. The

use of deviations has provided

separation between the fixed-wing

aircraft and helicopters around the

scenic areas where the traffic is the most

dense. The FAA has provided an

equivalent level of safety to that of the

higher altitude by additional safety

measures for those air tour operators.

Each air tour operator that is granted a

deviation from the higher altitude is

evaluated on a case by case basis. Each

deviation is site-specific and allows

operation only over areas of raw terrain

(areas devoid of any persons, vessels,

vehicles or structure). The altitude over

populated areas and other than raw

terrain remains at 1500 feet. The pilots

for each respective operator must

demonstrate knowledge of the specific

sites during FAA flight checks at each

specific site. Also during those flight

checks, the pilots must demonstrate the

ability to successfully autorotate to an

alternate emergency landing area at each

specific site.

In response to the comments on costs,

the FAA believes that that the SFAR has

not had a direct impact on the viability

of the air tour industry in Hawaii.

Because of the willingness of the air

tour operators to work with FAA, viable

air tours have been created without an

adverse impact on safety. It is important

to remember that these comments on

costs were made immediately following

the issuance of the SFAR and before the

deviations were in place.

In response to comments suggesting

that the purpose of SFAR 71 was to

mitigate noise, the FAA reiterates its

strong statement made in the emergency

final rule that the purpose of that

rulemaking was for reasons of safety.

In response to comments on flotation

devices and performance flotation gear,

the FAA has by operations

specifications required each helicopter

operator to require passengers to wear

personal flotation gear when operating

over water whether or not the helicopter

is equipped with exterior flotation

devices.

The FAA has prepared a draft

Environmental Assessment (EA) which

addresses the environmental comments

previously submitted during the

emergency rulemaking and analyzes the

environmental impacts of this rule, the

extension of SFAR 71.

With the rulemaking, the FAA will

extend SFAR 71 for an additional 3

years. During this time the FAA intends

to issue a notice of proposed rulemaking

which will apply to all air tour

operators. This national rule will be

responsive to NTSB comments and

those operators who commented that

the SFAR was discriminatory against

operators in Hawaii. The proposed

rulemaking will consider some of the

same issues that commenters have noted

in responding to SFAR 71; in this

context, the comments on SFAR 71 have

been helpful to the FAA. Since the

national air tour rulemaking is not yet

ripe, the FAA cannot divulge details of

the proposed rule, but does encourage

those persons who commented on SFAR

71 to submit comments to the proposed

national rule when it is published. The

FAA anticipates that the national rule,

when finalized, will replace SFAR 71–

1, which would then be rescinded.

Environmental Review

Because there were a considerable

number of comments on the

environmental effects of the emergency

final rule issued as SFAR 71, the FAA

has prepared a draft Environmental

Assessment to assure compliance with

the National Environmental Policy Act

of 1969 (NEPA) and other applicable

environmental laws, regulations and

orders.

A copy of the draft EA may be

obtained by calling Linda Williams,

Office of Rulemaking, FAA, 800

Independence Ave., SW, Washington,

DC 20591, at (202) 267–9685. An

electronic copy is available at http://

www.faa.gov. Comments on the draft

EA should be mailed to the address

given or sent electronically to 9–NPRM–

CMTS@.faa.dot.gov and clearly marked

as ‘‘Comments to the draft EA for

Extension of SFAR 71.’’ The comment

period for the draft EA is the same as

for the interim rule, on or before

December 29, 1997.

Based upon the draft EA and

comments received on the draft EA, the

FAA will determine whether to issue a

final EA and a Finding of No Significant

Impact (FONSI) or to prepare an

environmental impact statement. If a

final EA and FONSI are determined

appropriate for the final rule, these

documents will be available in Docket

No. 27919 and on the Internet at http:/

/www.faa.gov.

Regulatory Evaluation Summary

In accordance with SFAR 71, certain

procedural, operational, and equipment

requirements were established for air

tour operators currently operating in the

State of Hawaii. Compliance with SFAR

71 was estimated to increase costs

approximately $2.1 million, in current

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 lifevests 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. All these dollar

estimates have been updated to current

dollars from 1994 dollars. A copy of the

Final Regulatory Evaluation, Final

Regulatory Flexibility Determination,

and Trade Impact Assessment

completed for the original SFAR have

been placed in the docket.

The FAA has worked with the air tour

operators to lessen the burden of lost

revenue from canceled tours. This has

been accomplished by allowing

deviations from SFAR 71 for specific air

tour operations evaluated on a case by

case basis. When deviations of 1,000

feet for fixed-wing aircraft and 500 feet

for single-engine helicopters are

granted, the estimated revenue loss may

be overstated, because the deviations

allow a tour operation to take place that

otherwise would have been canceled

under the minimum flight altitudes of

SFAR 71. Therefore, because of the FAA

allowing deviations from SFAR 71 for

the majority of air tour operators in

Hawaii, much of the estimated $1.9

million revenue loss did not occur.

However, due to other safety measures

for air tour operators, such as separation

between fixed-wing and helicopter

operations around scenic areas,

deviations from flight altitudes have not

compromised safety. Since the issuance

of SFAR 71, there have been no fatalities

or injuries as a result of the new

procedural, operational or equipment

requirements. In view of the foregoing,

the FAA has determined that the

extension to SFAR 71 is cost beneficial.

This regulation is considered

significant under DOT Regulatory

Policies and Procedures (44 FR 11034;

February 26, 1979) because it was
58858 Federal Register / Vol. 62, No. 210 / Thursday, October 30, 1997 / Rules and Regulations

issued originally as an emergency final

rule. A final regulatory evaluation of the

regulation, including a Regulatory

Flexibility Determination and Trade

Impact Analysis, has been placed in the

docket. A copy may be obtained by

contacting the person identified under

FOR FURTHER INFORMATION CONTACT. The

FAA has determined that this action is

a significant regulatory action under

Executive Order 12866.

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980

(RFA) was enacted by Congress to

ensure that small entities are not

unnecessarily and disproportionately

burdened by Federal regulations. The

RFA requires a Regulatory Flexibility

Analysis if a proposed rule would have

‘‘significant economic impact on a

substantial number of small entities.’’

FAA Order No. 2100.14A outlines the

FAA’s procedures and criteria for

implementing the RFA. The FAA’s

criteria for ‘‘a significant impact’’ is an

annualized cost threshold of at least

$4,900.

The FAA’s original regulatory

flexibility analysis indicated that the

SFAR would impose a ‘‘Significant

economic impact on a substantial

number of small entities.’’ (See copy of

original Regulatory Flexibility

Determination included in the docket

for this rulemaking.) The FAA estimated

the total annualized cost of the final rule

was approximately $712,000, in current

dollars. The annualized cost of the 1,500

foot minimum altitude requirement for

the air tour industry (fixed-wing and

helicopter) was approximately

$635,700. After assessing the annualized

cost for individual operators on a per

seat basis, the FAA determined that the

SFAR would impose costs greater than

the annualized cost threshold of $4,900

for 31 of 37 of the affected air tour

operators, most of whom are small

entities. The FAA calculated the

annualized cost regarding alternative

minimum altitude requirements of 500

feet, 800 feet, and 1,000 feet. Based on

this figure, the FAA determined that a

minimum altitude requirement of 500

feet would be necessary to lower the

annualized cost below the $4,900

threshold for all but four of the air tour

operators. However, after analyzing the

safety implications of lowering the

minimum altitude to 500 feet, the FAA

determined that to do so would result in

a decline in safety benefits.

Since the issuance of the SFAR, the

FAA received requests from several

operators to fly at lower altitudes. Air

tour operators requested ‘‘deviations’’

from the rule to obviate the economic

burden imposed upon them by the

SFAR. The FAA worked with the

operators to create individual

exceptions under which air tours could

occur at lower altitudes but with other

conditions imposed. The resulting

exception, referred to as a deviation,

was designed to minimize the potential

adverse economic effects on the air tour

operators while maintaining the same

level of safety as that afforded at 1,500

feet.

A deviation allows an operator to fly

at lower altitudes with the imposition of

certain additional safety requirements.

Operators must individually request a

deviation from the FAA. The FAA

considers each request on a case by case

basis and, after close scrutiny of each air

tour operation, determines whether the

issuance of a deviation from the SFAR

will achieve the desired goals. The

imposition of additional safety

requirements varies from operator to

operator. Requirements can include

safety equipment modifications and/or

special operation procedures, such as

separation between fixed-wing and

helicopter operations around scenic

areas. Currently, 16 of the 26 air tours

operating under part 135, and 2 of the

9 air tours operating under part 91, have

sought and have received deviations

from the SFAR. Those operators who

have not sought a deviation are

operating under air traffic control (ATC)

positive control and are not, therefore,

required to comply with the provisions

of the rule, or were already operating at

higher altitudes. The practical impact of

FAA issued deviations, considered

along with ATC positive control, is that

the majority of small entities are

currently operating at lower altitudes.

The FAA anticipates that it will

continue to grant deviations as it has up

to this point, which will in effect work

to mitigate the economic impact of the

SFAR on small entities.

The FAA is compelled to stand by the

results of its original regulatory

flexibility analysis despite the

reasonable conclusion that can be

drawn from these facts, namely, that

those operators who requested

deviations did so because they believed

it would be less costly than complying

with the SFAR. Although the agency

believes that costs of compliance are

now lower than originally estimated, the

agency has no data to show the extent

of any change in the economic impact

on small businesses as reported in the

original regulatory flexibility analysis.

Accordingly, the FAA certifies that this

extension has a significant economic

impact on a substantial number of small

entities.

International Trade Impact Assessment

When the FAA promulgated SFAR 71,

it found that SFAR would not have an

adverse impact on the international

trade because the affected operators do

not compete with foreign operators. The

FAA certifies that this SFAR will not

constitute a barrier to international

trade, including the export of U.S. goods

and services to foreign countries and the

import of foreign goods and services to

the United States.

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, 1998.

SFAR 71, which became effective on

October 26, 1994, applies to air tour

operators in the state of Hawaii. Under

the SFAR, both Part 91 and Part 135

operators are required to provide a

passenger safety briefing on water

ditching procedures, use of required

flotation equipment, and emergency

egress from the aircraft in event of a

water landing. The FAA estimates that

100,000 air tour operations are

conducted annually by 35 operators,

that each safety briefing takes 3–4

minutes, and that the cost of the briefing

is $10.00. Using these numbers, 400,000

minutes = 6,667 hours × $10.00 equals

approximately $.70 per flight.

For the deviations collection, two

calculations must be done since

operators first requested deviations to

1,000 feet, and then to 500 feet. 1,000

ft. deviations were granted to

approximately 35 operators, and it is

estimated that the preparation 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

deviation requests to 500 feet cost the

operators 35 × 1 hour at $15.00 per hour

or $525.00. Cost of an inspector’s review

is estimated at 35 × 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 × 3 hours

at an operator/aircraft cost of $250.00 or

$26,250.00. The cost to check line pilots
Federal Register / Vol. 62, No. 210 / Thursday, October 30, 1997 / Rules and Regulations 58859

is estimated to be 100 × 1 hour ×

$250.00 or $25,000.00. The cost to the

government (inspectors’ time) for all

deviations is estimated to be 35 × 3

hours × $50.00 or $5,250.00.

Organizations and individuals

desiring to submit comments on the

information collection requirements of

SFAR 71 should send them to the FAA’s

Rules Docket, the address for which is

given in the ADDRESSES section of this

interim rule.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (the Act), enacted as

Pub. L. 104–4 on March 22, 1995,

requires each Federal agency, to the

extent permitted by law, to prepare a

written assessment of the effects of any

Federal mandate in a proposed or final

agency rule that may result in the

expenditure by state, local, or tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

(adjusted annually for inflation) in any

one year. Section 204(a) of the Act, 2

U.S.C. 1534(a), requires the Federal

agency to develop an effective process

to permit timely input by elected

officers (or their designees) of State,

local, and tribal governments on a

proposed ‘‘significant intergovernmental

mandate.’’ A ‘‘significant

intergovernmental mandate’’ under the

Act is any provision in a Federal agency

regulation that would impose an

enforceable duty upon State, local, and

tribal governments, in the aggregate, of

$100 million (adjusted annually for

inflation) in any one year. Section 203

of the Act, 2 U.S.C. 1533, which

supplements section 204(a), provides

that before establishing any regulatory

requirements that might significantly or

uniquely affect small governments, the

agency shall have developed a plan that,

among other things, provides for notice

to potentially affected small

governments, if any, and for a

meaningful and timely opportunity to

provide input in the development of

regulatory proposals.

The FAA has determined that this

rule does not contain any Federal

intergovernmental mandates, but does

contain a private sector mandate.

However, because expenditures by the

private sector will not exceed $100

million annually, the requirements of

Title II of the Unfunded Mandates

Reform Act of 1995 do not apply.

Federalism Implications

The regulations herein will not have

substantial direct effects on the 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 this regulation

will not have sufficient federalism

implications to warrant the preparation

of a Federalism Assessment.

List of Subjects

14 CFR Part 91

Aircraft, Airmen, Aviation safety.

14 CFR Part 135

Air taxi, Aircraft, Airmen, Aviation

safety.

The 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 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. 71–1—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, 2000.

Issued in Washington, DC, on October 23,

1997.

Jane F. Garvey,

Administrator.

[FR Doc. 97–28724 Filed 10–24–97; 5:03 pm]

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