58610 Federal Register / Vol. 65, No. 190 / Friday, September 29, 2000 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91 and 135

[Docket No. 27919; Special Federal Aviation

Regulation (SFAR 71)]

RIN 2120–AG–44

Air Tour Operators in the State of

Hawaii

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Final rule.

SUMMARY: On August 21, 2000, the FAA

proposed to extend for 3 years Special

Federal Aviation Regulation (SFAR) 71,

which established certain procedural,

operational, and equipment

requirements for air tour operators in

the State of Hawaii. This final rule,

which adopts the proposals, will

provide additional time for the agency

to complete and issue a notice of

proposed rulemaking for a national rule

that would apply to all air tour

operators. The FAA anticipates that the

national rule, when finalized, would

replace SFAR 71, which would then be

rescinded. Thus the FAA is extending

SFAR 71 for another 3 years to maintain

the current requirements for the safe

operation of air tours in the airspace

over the State of Hawaii and provide the

additional time necessary to issue the

national rule.

DATES: This final rule is effective on

October 26, 2000.

FOR FURTHER INFORMATION CONTACT: Gary

Davis, Air Transportation Division,

AFS–200, Federal Aviation

Administration, 800 Independence

Avenue, SW, Washington, DC 20591;

Telephone (202) 267–8166.

SUPPLEMENTARY INFORMATION:

Availability of the Final Rule

You may obtain an electronic copy of

this document using a modem and

suitable communications software from

the FAA regulations section of the

FedWorld electronic bulletin board

service (telephone: (703) 321–3339).

Internet users may reach the FAA’s

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

avr.arm.nprm/nprm/.htm or the GPO’s

web page at http://www/access.gpo.gov/

nara to access recently published

documents.

You may also obtain a copy of this

rule by submitting a request to the

Federal Aviation Administration, Office

of Rulemaking, ARM–1, 800

Independence Avenue, SW,

Washington, DC 20591, or by calling

(202) 267–9677. Requests should be

identified by the docket number of this

rule.

Small Entity Inquires

The Small Business Regulatory

Enforcement Fairness Act of 1996

(SBREFA) requires the FAA to comply

with small entities requests for

information or advice about compliance

with statutes and regulations within its

jurisdiction. Therefore, any small entity

that has a question regarding this

document may contact their local FAA

official.

Internet users can find additional

information on SBREFA on the FAA’s

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

arm/sbrefa.htm.

Background

Since 1980, the air tour industry in

the State of Hawaii has grown rapidly,

particularly on the islands of Oahu,

Kauai, Maui, and Hawaii. The growth of

the tourist industry, the beauty of the

islands, and the inaccessibility of some

areas on the islands generated

significant growth in the number of air

tour flights. In 1982, there were

approximately 63,000 helicopter and

11,000 airplane tour flights. By 1991,

these numbers had increased to

approximately 101,000 for helicopters

and 18,000 for airplanes.

The growth of the air tour sightseeing

industry in Hawaii has been associated

with an escalation of accidents. During

the 9 years between 1982 and 1991,

there were 11 air tour accidents with 24

fatalities. The accident data shows an

escalation of accidents in the 3-year

period between 1991 and 1994, during

which time there were 20 air tour

accidents with 24 fatalities. The

apparent causes of the accidents ranged

from engine power loss to encounters

with adverse weather. Contributing

factors to the causes and seriousness of

accidents were: Operation beyond the

demonstrated performance envelope of

the aircraft, inadequate preflight

planning for weather and routes, lack of

survival equipment, and flying at low

altitudes (which does not allow time for

recovery or forced landing preparation

in the event of a power failure). Despite

voluntary measures taken by some

Hawaii air tour operators and an

increase in FAA’s inspections, a rise in

the number of accidents occurred,

indicating a need for additional

measures to ensure safe air tour

operations in Hawaii.

On September 26, 1994, the FAA

published the emergency final rule,

SFAR No. 71 (59 FR 49138). This action

was taken because of the increase in the

number of fatal accidents involving air

tour aircraft during the period 1991–

1994 and the causes of those accidents.

The emergency regulatory action

established additional operating

procedures, including minimum safe

altitudes (and associated increases in

visual flight rules (VFR) weather

minimums), minimum equipment

requirements, and operational

limitations for air tour aircraft in the

state of Hawaii. On October 30, 1997,

SFAR 71 was extended until October 26,

2000.

Since the FAA believes that SFAR 71

has been successful in preventing

further accidents, the FAA is developing

a national air tour safety rule that would

address similar issues identified in

SFAR 71. This proposal for a national

rule will also be responsive to NTSB

comments and will consider issues

raised by commenters who responded to

SFAR 71 in 1994. The FAA still

anticipates that the national rule would

replace SFAR 71. This final rule extends

SFAR 71 for an additional 3 years,

which will allow time to issue the

national rule, applicable to all air tour

operators concerning air tour safety.

Comments on the Extension of SFAR 71

As stated above, SFAR was extended

in October 1997 until October 2000. The

FAA published that extension as an

interim final rule and asked for

comments on the extension. The FAA

received four comments on the interim

final rule; all four supported the

extension of SFAR 71. Commenters

included two individuals, a National

Park Service Superintendent, and the

Director of Transportation for the State

of Hawaii.

On August 21, 2000, the FAA issued

and subsequently published at 65 FR

51511 (August 23, 2000), a notice of

proposed rulemaking to extend SFAR 71

until October 26, 2003. One comment

was received on the proposal.

Blue Hawaiian Helicopters comments

that although there has been ample time

for the FAA to receive input from

Hawaii air tour operators and pilots,

effective communication has not

occurred. This commenter also states

that some air tour pilots believe the

altitude restrictions of SFAR 71 may

have contributed to the three accidents

that have occurred since the SFAR was

adopted in 1994. Blue Hawaiian

Helicopters also reports that at a recent

meeting with the FAA in Hawaii the

decision was made to form an air tour

safety working group comprised of FAA

representatives and an operator and

pilot from each of the Hawaiian islands.

The commenter applauds this decision

as it will provide a forum leading to a

safer tour environment for the flying

public.

Federal Register / Vol. 65, No. 190 / Friday, September 29, 2000 / Rules and Regulations 58611

FAA Response: The FAA justified its

promulgation of the emergency final

rule, SFAR 71, based on the large

number of accidents that occurred in

Hawaii between 1982 and 1991.

Following the publication of that

emergency final rule, the FAA

determined that rulemaking was needed

to ensure the safety of all air tour

operations. Thus the FAA dedicated

rulemaking resources to the

development of a national air tour safety

rule. By definition, SFAR’s are not

permanent regulations. The FAA

intends to replace SFAR 71 with a

national rule. The interim final rule that

extended SFAR 71 until October 26,

2000, received 4 comments; all of the

commenters supported the extension of

SFAR 71.

A final report on the causes of the

three accidents that have occurred in

Hawaii since 1994—June 28, 1998,

September 28, 1999, and July 21, 2000—

has not been issued by the National

Transportation Safety Board. Therefore,

it would be premature for the FAA to

comment on the causes of these

accidents. Nevertheless, the complete

accident history of tour operations in

Hawaii supports the extension of SFAR

71.

The FAA welcomes the suggestion of

an air tour safety working group and

expects that the group will maintain a

balanced representation of the

interested parties.

Environmental Review

In accordance with FAA Order

1050.1D, the FAA has determined that

this proposed rule is categorically

excluded from environmental review

under section 102(2)(C) of the National

Environmental Policy Act (NEPA). The

original SFAR 71 established operating

procedures, including minimum safe

altitudes, minimum equipment

requirements and operational

limitations for air tour aircraft in the

State of Hawaii. The proposed rule

would extend SFAR 71 for 3 years,

thereby maintaining the same

requirements. The extension of SFAR 71

will not involve any significant impacts

to the human environment and the FAA

has determined that there are no

extraordinary circumstances.

Regulatory Evaluation Summary

SFAR 71 established certain

procedural, operational, and equipment

requirements for air tour operators

operating in the State of Hawaii.

Compliance with SFAR 71 was

estimated to increase total costs

approximately $2.1 million, in 1994

dollars, over the three year period, 1994

to 1997. Most of the increase in costs

was associated with lost revenue that

resulted from tour cancellations when

the new minimum flight altitudes could

not be achieved. Based on data

identified during the promulgation of

SFAR 71, the FAA estimated that the

cost associated with revenue loss totaled

approximately $1.9 million. Additional

costs associated with SFAR 71 included

$201.000 to provide life vests on subject

helicopters and $10,000 for the

development of a helicopter

performance plan. The estimated

potential safety benefits associated with

SFAR 71 totaled approximately $33.7

million over three years. A copy of the

Final Regulatory Evaluation, Final

Regulatory Flexibility Determination,

and Trade Impact Assessment

completed for the original SFAR was

placed in the docket.

Because this final rule extends SFAR

71, there is no additional annual cost

associated with it. The FAA believes

that the extension of SFAR 71 would

continue to prevent accidents and

provide additional benefits.

SFAR 71 was considered significant

under DOT Regulatory Policies and

Procedures (44 FR 11034; February 26,

1979) because it was issued originally as

an emergency final rule. However, this

final rule extending SFAR 71 is not

considered significant.

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980

(RFA) establishes ‘‘as principle of

regulatory issuance that agencies shall

endeavor, consistent with the objective

of the rule and of applicable statutes, to

fit regulatory and informational

requirements to the scale of the

business, organizations, and

governmental jurisdictions subject to

regulation.’’ To achieve that principle,

the Act requires agencies to solicit and

consider flexible regulatory proposals

and to explain the rationale for their

action. The Act covers a wide range of

small entities, including small

businesses, not-for-profit organizations,

and small governmental jurisdictions.

Agencies must perform a review to

determine whether a proposed or final

rule would have a significant economic

impact on a substantial number of small

entities. If the determination is that it

will, the agency must prepare a

regulatory flexibility analysis.

However, if an agency determines that

a proposed or final rule is not expected

to have a significant economic impact

on a substantial number of small

entities, section 605(b) of the 1980 Act

provides that the head of the agency

may so certify and an RFA is not

required. The certification must include

a statement providing the factual basis

for this determination, and the

reasoning should be clear.

The FAA’s original regulatory

flexibility analysis indicated that SFAR

71 would impose a ‘‘significant

economic impact on a substantial

number of small entities.’’ (See the copy

of the original Regulatory Flexibility

Determination included in the docket.)

Although the FAA has issued a

number of ‘‘deviations’’ since the

issuance of the SFAR, the overall impact

on small entities remains significant.

Although this final rule only extends

the current rule, the effect of the

extension of SFAR 71 is still significant

for small entities. Accordingly, the FAA

certifies that this extension has a

significant economic impact on a

substantial number of small entities.

International Trade Impact Assessment

The Trade Agreement Act of 1979

prohibits Federal agencies from

engaging in any standards or related

activities that create unnecessary

obstacles to the foreign commerce of the

United States. Legitimate domestic

objectives, such as safety, are not

considered unnecessary obstacles. The

statute also requires consideration of

international standards and where

appropriate, that they be the basis for

U.S. standards. In addition, consistent

with the Administration’s belief in the

general superiority and desirability of

free trade, it is the policy of the

Administration to remove or to

diminish to the extent feasible, barriers

to international trade, including both

barriers affecting the export of American

goods to foreign countries and barriers

affecting the import of foreign goods and

services into the United States.

In accordance with the above statute

and policy, the FAA has assessed the

potential effect of this final rule and has

determined that it will have only a

domestic impact and therefore no effect

on any trade-sensitive activity.

Paperwork Reduction Act

SFAR 71 contains information

collection requirements, specifically in

Section 6, Minimum flight altitudes,

and Section 7, Passenger briefing. As

required by the Paperwork Reduction

Act of 1995 (44 U.S.C. 3507(d)), the

FAA submitted these requirements to

OMB. As a result, an emergency

clearance of the information collection

requirement (No. 2120–0620) has been

approved through February 28, 2001.

The original accounting for the

paperwork burden was as follows. SFAR

71, effective on October 26, 1994,

applies to air tour operators in the state

of Hawaii. Under the SFAR, both Part 91

and Part 135 operators are required to

58612 Federal Register / Vol. 65, No. 190 / Friday, September 29, 2000 / Rules and Regulations

provide a passenger safety briefing on

water ditching procedures, use of

required flotation equipment, and

emergency egress from the aircraft in

event of a water landing. The FAA

estimates that 100,000 air tour

operations are conducted annually by

35 operators, that each safety briefing

takes 3–4 minutes, and that the cost of

the briefing is $10.00 an hour. Using

these numbers, 400,000 minutes=6,667

× $10.00 equals $66,667.00, or

approximately $.70 per flight.

To account for the deviation

information collection requirement, two

calculations must be performed. First,

operators requested deviations to 1,000

feet, and second to 500 feet. The FAA

granted, 1,000 ft. deviations to

approximately 35 operators. It is

estimated that the preparation of a

deviation request took each operator 2

hours at $15.00 an hour for a total of

approximately $1,050.00. The cost for

the government to review the deviations

is estimated to be 1 hour of review and

operations preparation using 35 hours of

inspector time or approximately

$1,750.00 in costs. The 500 feet

deviation requests cost the operators 35

× 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

is estimated to be 100 × 1 hour ×

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

government (inspectors’ times) for all

deviations is estimated to be 35 × 3

hours × $50.00 or $5,250.00.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (the Act), enacted as

Pub. L. 104–4 on March 22, 1995,

requires each Federal agency, to the

extent permitted by law, to prepare a

written assessment of the effects of any

Federal mandate in a proposed or final

agency rule that may result in the

expenditure by State, local, or tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

(adjusted annually for inflation) in any

one year. Section 240(a) of the Act, 2

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

agency to develop an effective process

to permit timely input by elected

officers (or their designees) of State,

local, and tribal governments on a

proposed ‘‘significant intergovernmental

mandate.’’ A ‘‘significant

intergovernmental mandate’’ under the

Act is any provision in a Federal agency

regulation that would impose an

enforceable duty upon State, local, and

tribal governments, in the aggregate, of

$100 million (adjusted annually for

inflation) in any one year. Section 203

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

supplements section 204(a), provides

that before establishing any regulatory

requirements that might significantly or

uniquely affect small governments, the

agency shall have developed a plan that,

among other things, provides for notice

to potentially affected small

governments, if any, and for a

meaningful and timely opportunity to

provide input in the development of

regulatory proposals.

The FAA has determined that this

rule does not contain any Federal

intergovernmental mandates, but does

contain a private sector mandate.

However, because expenditures by the

private sector will not exceed $100

million annually, the requirements of

Title II of the Unfunded Mandates

Reform Act of 1995 do not apply.

Federalism Implications

The regulations herein will not have

substantial direct effects of the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

the FAA certifies that the regulation will

not have sufficient federalism

implications to warrant the preparation

of a Federalism Assessment.

List of Subjects

14 CFR Part 91

Aircraft, Airmen, Aviation safety.

14 CFR Part 135

Air taxi, Aircraft, Airmen, Aviation

safety.

The Amendment

The Federal Aviation Administration

amends 14 CFR parts 91 and 135 as

follows:

PART 91—GENERAL OPERATING AND

FLIGHT RULES

1. The authority citation for part 91

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40113,

40120, 44101, 44111, 44701, 44709, 44711,

44712, 44715, 44716, 44717, 44722, 46306,

46315, 46316, 46502, 46504, 46506–46507,

47122, 47508, 47528–47531.

PART 135—OPERATING

REQUIREMENTS: COMMUTER AND

ON-DEMAND OPERATIONS

2. The authority citation for part 135

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113, 44701–

44702, 44705, 44709, 44711–44713, 44715–

44713, 44715–44717, 44722.

3. In parts 91 and 135, SFAR No. 71,

Special Operating Rules For Air Tour

Operators In The State Of Hawaii,

Section 8 is revised to read as follows:

SFAR NO. 71—Special Operating Rules

for Air Tour Operators in The State of

Hawaii

* * * * *

Section 8. Termination date. This

Special Federal Aviation Regulation

expires on October 26, 2003.

Issued in Washington, DC, on September

26, 2000.

Jane F. Garvey,

Administrator.

[FR Doc. 00–25139 Filed 9–27–00; 11:26 am]

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