Petition for Writ of Certiorari — Safari Aviation, Inc. v. Blakey

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Q21162FEB 3 2003

No.

QPFIGE OF THE GLERK

In The

Supreme Coourt of the Anited States

SAPARRI AVIATION, INC., d/b/a

S4£22211 HELICOPTER TOURS,

Petitioner,

Vv.

Beers! C. BLAKEY, Administrator,

SSDS AAVIATION ADMINISTRATION,

Respondent.

Im =titeon For A Writ Of Certiorari

Te The United States Court Of Appeals

Por The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID GLENN BETTENCOURT

Attorney at Law — Hawaii Bar No. 970

Suite 425 Dillingham

Transportation Building

735 Bishop Street

Honolulu, Hawaii 96813

(808) 521-3491

2-mail airlaw@pixi.com

Counsel of Record for Petitioner

MSL LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

. es : ee .,

. : VOL RN ER Oey cg REBT RE EIN EOF .

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QUESTIONS PRESENTED

1. Whether Respondent FAA’s repetitive and cumulative

evasions and violations of the Administrative Procedure

Act’s substantive and procedural rulemaking mandates in

promulgating Special Federal Aviation Regulation 71

(SFAR 71) improperly denied Petitioner SAFARI AVIA-

TION lawful participation in this rulemaking and/or

resulted in the imposition of arbitrary, capricious, unlaw-

ful and dangerous airspace regulations.

2. Whether Respondent FAA’s claimed innovation of the

“interpretive rule” exceeded 5 U.S.C. § 553(b)(3)(A)’s exemp-

tion from the APA’s notice and comment by amending

SFAR 71 to change existing policy affecting individual

rights and obligations and thus created a de facto legisla-

tive rule.

CORPORATE DISCLOSURE STATEMENT

SAFARI AVIATION, INC. is a privately-held Hawaii

corporation with its principle places of business in Hawaii

based at Lihue, Kauai and Hilo, Hawaii; SAFARI AVIA-

TION, INC. provides mobile operations (for U.S. Forest

Service fire-fighting operations) in the State of Idaho.

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TABLE OF CONTENTS

Page

EF BIN FRESE 1 OND oo .cescvecenscnsssssvecssscoseccesenes i

CORPORATE DISCLOSURE STATEMENT............. il

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STE SEIT vicunssovennsxsossoscsncensuesevessescsepesoncens 1

JURISDICTIONAL STATEMENT ...............:ccceeeeeeees 1

REGULATORY PROVISIONS INVOLVED .............. 2

STATEMENT OF THE CASE.............scccsccssossccssceseves 2

REASONS FOR GRANTING THE PETITION ......... 9

I. THE TWO CIRCUIT DECISIONS DENYING

SAFARI ANY RELIEF CONFLICT WITH

THE MINIMAL STATUTORY RULEMAK-

ING REQUIREMENTS DICTATED BY THIS

COURT AND OTHER CIRCUITGS................... 9

A. Respondent FAA Has Refused To Consider

And/Or Respond To Extensive Relevant And

Critical Comments Provided By Knowl-

edgeable Individuals During Or Following

Its Emergency Promulgation Of SFAR 71.... 9

B. Respondent FAA’s Continued Perversion

Of The Rulemaking Process In 1997 To

Avoid Public Input Has Substantially

Prejudiced SAFARI, Exposed Its Pilots

And Passengers To Needless Aeronauti-

cal Risks, And Is Not Moot...................... 16

C. The FAA Denied Petitioner SAFARI Its

Constitutional, Statutory And Regula-

tory Right To Participate In The 2000

Rulemaking By Refusing To Comply

With Its Own NPRM Or Awaiting Mail

Delivery Of Timely Comments ................ 24

IT.

ITT.

TABLE OF CONTENTS - Continued

Page

THE NINTH CIRCUIT DECISION EXPANDS

JUDICIAL TOLERANCE OF “INTERPRETIVE

RULES” BEYOND ALL PRIOR STATUTORY

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TABLE OF AUTHORITIES

Page

I. CASES

Air Transport Ass’n v. FAA, 291 F.3d 49 (D.C. Cir.

DOOD) .ocveccesscovesescvevesceceeesescovevenssossesevasssosooscosaenseseosesveceses 27

American Hosp. Ass’n v. Bowen, 834 F.2d 1037

(D.C. Cir. 1987).........:cccsssscccsssceeseesesssecessressensseseneeeeneesnes 15

American Mining Congress v. MSHA, 995 F.2d 1106

(D.C. Cir. 19938)........::scccsssssesssrseessreesseeeeseeesesseeeneeneneeens 15

City of Alameda v. F.A.A., 285 F.3d 1143 (9th Cir.

2002), Pet. Cert. Filed, 71 USLW 3416 (No. 02-

856) (Dec. 6, 2002)..........ccssssceessreeeessneeseetreeseeeesesenneeeens 4

City of Los Angeles v. FA.A., 239 F.3d 1033 (9th Cir.

BOO1) ...rccccooreccessecsscrccsessesoossesesensoesoscssvosensenesoonenssscsnsooavoons 4

Cole v. Oroville Union High Sch. Dist., 228 F.3d

1092 (9th Cir. 2000), cert. denied, 532 U.S. 905

+) | nee _cibedseuleeibitaebtinasanntiatennsinnamaneananin 23

Cubanski v. Heckler, 781 F.2d 1421 (9th Cir. 1986)........... 28

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167 (2000)..........sccecseeeeserreeeereeees 23

Grand Canyon Air Tour Coalition v. Federal Auvia-

tion Administration, 154 F.3d 455 (D.C. Cir.

DID. ooncnsasocsssnncnssorcessassesesonnenicanersbewetanentnnnnernans TO 22

Hawaii Helicopter Operators Association v. Federal

Aviation Administration, 51 F.3d 212 (9th Cir.

BOIS) can casivacescccncvsosocccnssoovcepersssenvencesscsobovnnenseononsescosooesess 1,6

Hudson v. FAA, 192 F.3d 1031 (D.C. Cir. 1999) .........-++. 27

Marsh v. Oregon Natural Resources Council, 490

U.S. 360 (1989)...............sccsssssssseccscscssrcrecccssrevesssssscsecenes 14

TABLE OF AUTHORITIES — Continued

Page

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. |

FG ig Ge le ee Csi cetinisnttitinaniliditantneteeniiiie 14 :

National Lime Ass’n v. EPA, 627 F.2d 416 (D.C. Cir.

ee csitsistunkccicsedtuidain vestauedagiaaiaseicidalabiaiednabiaiiea iain des 14

National Tire Dealers & Retreaders Ass’n v. Brine-

gar, 491 F.2d $1 (D.C. Six. 1974) ....ccccssosscovssvcccsccvsscscceee 14

Portland Cement Ass’n v. Ruckelshaus, 486 F.2d j

375 (D.C. Cir. 1978)......... EF RPE eS 14 ,

Safari Aviation Inc. v. Garvey, 300 F.3d 1144 (9th

EamE, UIE nenasncnenisecenssdsscebieieebudeansdiiasavebiatmmennnanaaaal 1, 23

Shalala v. Guernsey Memorial Hospital, 514 U.S.

Bee Ae sctnniicevsncéenstteceasieseiaiamcbecstaiccaivesdiiasaasieam 26, 27

United States v. Picciotto, 875 F.2d 345 (D.C. Cir.

Ny icesesinsckshcsinnnrisiatadiieeaiaiemaaanieameeens 10, 26

Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C. Cir.

Tull WU scssticcsccencusenawisiiaabcddeasientiendanaiaseiepiiiisieaeamasiaine 15

II. STATUTES, RULES AND REGULATIONS

SPECIAL FEDERAL AVIATION REGULATION 71

PINES TE Pinkachccsssiesvssueketeaceexemmuenelaeenenee passim

Es BS ii vstncscicsnssiscncicnsteactiibaeseasbidemebensieaiaaenie 3

Be Gas WN Si Rtitcctsciisnenecstinienaivreeimaieene 2,3

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vii

TABLE OF AUTHORITIES — Continued

Page

14 C.FR. Part 185..........cccccccccccscssccsscscccccsessesessessvossoens 2, 3, 7

14 C.FR. § 135.203(b) .........:cccccccceeeeeesesenseeeesesseeteeeeeesesenees 7

14 C.FR. § 135.205(b) ........ eee Diiasiassadecodedessnieadsomanniana 7

14 C.ER. § 135.207 ..........:cssccscssssssscseessssseresssessssnssseeeeeeees 7

Rule 35-3, Rules of The Supreme Court of the

Umitedd States ....0...ccccccccccccssscccvesccvccsecccvcscssceesscssessesccseooes 2

House Resolution 1696, 103rd Cong., 1st Sess.

(April 5, 1993) ..........ssscesseseeseeneeseessneseeseeseessesnnennenennenens 11

III. TREATISES

ANN E. LANE Comment: Scenic Air Tours Over

Our National Parks: Exploitation of Our Na-

tional Resources or Environmental Solution? 62

J. ATR L. Ge COM. 828 ...ccccccccscsccccscccsscccccccccccsccccssssesesenes 11

THOMAS O. MCGARITY, Some Thoughts on

“Deossifying” the Rulemaking Process, 41 DUKE

LJ. 1985 (1GBB).....ccccccccccccsssvevccccccececccccvccsvscsenecseccesesonss 12

Office of the Vice President, Accompanying Report of

the National Performance Review: Improving

Regulatory Systems 42-44 (1993) .........s::ssssssssssseeneneneeesens 12

MARK SEIDENFELD, Demystifying Deossification:

Rethinking Recent Proposals to Modify Judicial

Review of Notice and Comment Rulemaking, 75

TEX. L. REV. 483 (1997) ...........:ccccessesssserseeeeeeesesseeeeeeeees 12

PAUL R. VERKUIL, Rulemaking Ossification - A

Modest Proposal, 47 ADMIN. L. REV. 453 (1995)......... 12

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OPINIONS BELOW

The Ninth Circuit Court of Appeals has issued and

published two opinions in the course of Petitioner SAFARI

AVIATION’s nine year challenge to Hawaii-specific

Special Federal Aviation Regulation 71 (“SFAR 71”),

which regulation is set forth in Appendix (hereinafter

“App.”) D. The Ninth Circuit’s most recent opinion, Safari

Aviation Inc. v. Garvey, 300 F.3d 1144 (9th Cir. 2002),

relates to the 1997 and 2000 promulgations of SFAR 71;

that opinion is reproduced as App. A. The opinion arising

out of the original 1994 industry-wide challenge to the

emergency promulgation of SFAR 71 resulted in a pub-

lished opinion by the Ninth Circuit Court of Appeals in

Hawaii Helicopter Operators Association v. Federal Avia-

tion Administration, (hereinafter “HHOA v. FAA”, 51 F.3d

212 (9th Cir. 1995) (hereinafter “HHOA Opinion”); that

prior opinion is reproduced as App. B.

JURISDICTIONAL STATEMENT

The decision of the United States Court of Appeals for

the Ninth Circuit, Safari Aviation Inc. v. Garvey, 300 F.3d

1144 (9th Cir. 2002), was entered on 26 August 2002. App.

A. Petitioner SAFARI filed a timely Petition for Rehearing

en banc and Petition for Rehearing, which were denied by

order entered 5 November 2002. This Court has jurisdic-

tion pursuant to 28 U.S.C. § 1254(a).

REGULATORY PROVISIONS INVOLVED

SPECIAL FEDERAL AVIATION REGULATION 71

(“SFAR 71”), (14 C.F.R Parts 91 & 135)

Reproduced in Full as Appendix D.

STATEMENT OF THE CASE

Petitioner SAFARI AVIATION, INC. dba SAFARI

HELICOPTER TOURS (hereinafter “SAFARI”) is an

aeronautical entity which operates both helicopters and

fixed wing aircraft within the State of Hawaii as an

on-demand Air Taxi Commercial Operator (hereinafter

“ATCO” or “air taxi”) pursuant to the authority (“Certifi-

cate”) granted by Respondent FAA Administrator

BLAKEY’ pursuant to the provisions of 14 C.F.R. Part 135

(hereinafter “Part 135”). SAFARI seeks judicial review of

the lengthy and consolidated rulemaking proceedings

conducted under the single agency Docket No. 27919

which commenced on 22 September 1994 when Respon-

dent FAA published Special Federal Aviation Regulation

No. 71 (hereinafter “SFAR 71”) as an “emergency final

rule”, 59 Fed. Reg. 49,138-49,146), effective 26 October

* The current Administrator of the Federal Aviation Administra-

‘ tion, Hon. Marion C. Blakey, has been substituted, pursuant to Rule 35-

3 of the Rules of The Supreme Court of the United States, for former

Respondent Administrator Jane F. Garvey. Hon. Jane F. Garvey herself

replaced former Administrator Mr. David R. Hinson, who promulgated

the original (and identical) Special Federal Air Regulation No. 71 on

September 22, 1994 as a final rule without providing notice or seeking

comments. Respondent Blakey will be identified as “Respondent FAA”

or the “ADMINISTRATOR”.

‘

1994, what the Administrator knew would be a highly-

contested and controversial new aeronautical regulation

imposed solely on aerial tour operations within the State

of Hawaii. ;

SAFARI’s primary flight activity consists of aerial

tours with state-of-the-art turbine-powered helicopters

over the Islands of Kauai and Hawaii (Big Island). SA-

FARI operates pursuant to an FAA-promulgated and very

comprehensive uniform national regulatory structure

adopted in APA-compliant rulemaking proceedings; during

the last sixty-five years rules governing certification of

pilots and instructors (14 C.F.R. Part 61), general operat-

ing and flight rules (14 C.F.R. Part 91), and commuter and

on-demand commercial operations (14 C.F.R. Part 135)

have been promulgated. Both the FAA and the U.S.

Department of Transportation processed and reviewed

SAFARI’s fitness pursuant to the provisions of 14 C.F.R.

Part 119, in addition to insuring its compliance with 14

C.F.R. Part 135 prior to issuing the ATCO Certificate.

The imposition of SFAR 71 on SAFARI subjected its

daily operations to hazardous conditions and financial

hardship, including an increased risk of catastrophic loss

of life of both crew and passengers due to the mandates of

Section 6 of SFAR 71. Section 6 imposes altitude and

stand-off requirements:

Section 6. Minimum flight altitudes. Except

when necessary for takeoff and landing, or oper-

ating in compliance with an air traffic control

clearance, or as otherwise authorized by the Ad-

ministrator, no person may conduct an air tour

in Hawaii: j

(a) Below an altitude of 1,500 feet

above the surface over all areas of

the State of Hawaii, and,

(b) Closer than 1,500 feet to any per-

son or property; or,

federal statute or regulation.

App. D 3-4.

This restriction can be partially portrayed as a 1,500

foot radius virtual hemisphere below and surrounding the

helicopter which the pilot and operators must insure is not

pierced by any land or structure during the flight for

purely regulatory reasons. As documented in the approxi-

mate 10,000 page Record’ maintained by Respondent FAA,

this single-state regulation was imposed following years of

anti-helicopter primarily by environmental interests,

supported by Hawaii Congresswoman Mink and others,

resulting in FAA-sponsored studies recommending an

SFAR for Hawaii.

* The Administrator’s record contains no page numbers, and most

pages are not date-stamped; it is impossible to refer to any single

document. It is also impossible to verify when and how comments and

other documents were logged. As discussed below, the FAA lost some

comments for still unexplained reasons during the 2000 renewal of

SFAR 72, and failed to review others. Petitioner SAFARI utilized

approximately 600 pages of excerpts in the court below. It is arguable

that this would give rise to jurisdiction to the district court to consider

wide-ranging constitutional challenges to the adequacy of the record-

keeping process. City of Los Angeles v. F.A.A., 239 F.3d 1033, 1034 (9th

Cir. 2001); City of Alameda v. F.A.A., 285 F.3d 1143 (9th Cir. 2002), Pet.

Cert. Filed, 71 USLW 3416 (Dec. 6, 2002) (No. 02-856).

Glau

Mie 1

The “Bubble” requirement of SFAR 71 was immedi-

ately recognized by all interests as a noise abatement

regulation, both directly and due to its effect on making

far more days “unflyable” due to the real world topography

and meteorology of the Aloha State. It also, as expected,

made helicopter tours less desirable for the consumer and

more costly for the operator, which reduced flights and

eventually reduced the number of operators through

attrition. It was also part of a regulatory two-step by which

the FAA has self-exempted virtually all of its real-world

regulation of tour helicopters from APA compliance and

empowered itself to avoid judicial review in the process.

SAFARI and others, threatened with financial exsan-

guination, were and are being denied their rightful par- —

ticipation in the promulgation of rules which both

increased risks to safety in aviation through a variety of

factors, thus negating any safety justification, and made

regulatory sense only as an ineffective noise abatement

regulation. This litigation arises out of Respondent FAA’s

continued refusal to respond with a technical (agency

expertise) rather than a legal (agency counsel) analysis of

the extensive critical comments (including those of the

National Transportation Safety Board or “NTSB”) or to

amend the concededly hazardous attributes of Section 6

of SFAR 71. SAFARI maintains both that the FAA’s

expertise has not been utilized, and that the continued

* These requirements also increased rather than decreased the

noise impact of tour helicopter operations, as a higher flight path

increased the spread of the noise footprint of the helicopter over a much

wider area, and prevent the noise energy from being attenuated by

tropical foliage.

imposition of SFAR 71 constitutes a daily peril to safety in

aviation for all airspace users in Hawaii.‘

Respondent FAA, following the decision of the Ninth

Circuit Court of Appeals on March 29, 1994, HHOA uv.

FAA, App. B, rejecting an industry-wide challenge to its

self-serving declaration of an “emergency”, avoided further

judicial review. SFAR 71 was subsequently re-promulgated

identified as an “interim rule”, again without providing a

Notice of Proposed Rule Making or “NPRM”) on 26 October

1997 (62 Fed. Reg. 58,854-58,859) and subsequently a

third time via a NPRM issued on 21 August 2000 (65 Fed.

Reg. 51,512-51,514) and a final rule issued on 26 Septem-

ber 2000 (65 Fed. Reg. 58,610-51,612).

SAFARI’s turbine-powered helicopters, while often a

full order of magnitude more expensive to operate than

many other elderly fixed-wing tour aircraft, allowed

significant airspace operational advantages within Re-

spondent FAA detailed national regulatory framework, in

addition to substantially increasing safety, reliability and

the “Aloha” experience of the tour. The FAA, recognizing

the specific attributes of helicopter operations, provides

substantially different operational rules, in large part to

separate different types of aircraft altitude. SFAR 71

* SAFARI nearly lost a helicopter and all seven on board on 25

October 1995 in a nearly catastrophic imminent head-on midair

collision near Volcano, Hawaii. SAFARI’s Supplemental Excerpt of

Record below, at 27-31, are digital frames captured from the on-board

digital camera at .5 second intervals. At the 300 knot closing speed,

SAFARI’s pilot had less than two seconds (four pictures or 60 video

frames) to recognize the traffic and conduct a violent evasive maneuver;

SAFARI’s aircraft missed the descending high-speed fixed-wing twin by

less than 50 feet.

a Ti sid PO

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contradicted all prior airspace regulatory theory by doing

the opposite; it concentrated aircraft at one altitude near

the bases of clouds at scenic locations where aircraft

concentrate.’

14 C.F.R. Part 135 requires air taxi helicopters to

operate no lower than 300 feet AGL (above ground level)

in congested areas, 14 C.F.R. § 135.203(b), but the pilot

must also maintain a visual surface reference “ ... suffi-

cient to safely control the helicopter”. 14 C.F.R. § 135.207.

Outside of congested or restricted airspace helicopters

operating less 1200 feet AGL (generally Class G airspace)

are allowed to operate “clear of clouds”, but only if“...

operated at a speed that allows the pilot adequate oppor-

tunity to see any air traffic or obstruction in time to avoid |

a collision.” 91 C.F.R. § 91.155(b)(1). If the helicopter is

operating as a Part 135 flight below 1200 feet AGL, the

“clear of clouds” visibility requirement increases to 1/2

mile daytime and one mile at night. 14 C.F.R.

§ 135.205(b). Non air taxi helicopters may operate at any

altitude “... if the operation is conducted without hazard

to persons or property on the surface.” 14 C.F.R.

§ 91.119(d). All fixed-wing aircraft and helicopters are

required, 14 C.F.R. § 91.155(a), to generally maintain 3

’ Because many tour routes cross from valley floors over the

adjacent ridge (known as a pali), flights which are perfectly safe and

legal in the other 49 states cannot be completed in Hawaii purely for

regulatory reasons. With cumulus cloud bases at 2500 AGL (normal

good weather), any pali higher than 500 feet will force a detour or

abandonment of the tour, despite unrestricted horizontal visibility and

an order of magnitude more vertical clearance from ground/cloud bases

(2000 feet total) than is FAA-acceptable in all other states. In addition,

the horizontal stand-off required from palis on both sides of the route

concentrated traffic in the center of valleys at the same altitude.

mile visibility and at least 500 feet below, 1000 feet above

and 2000 feet horizontal standoff distance from any clouds

when operating above 1200 feet AGL.

This soon to be repeated rulemaking process’ has

resulted in regulatory process reduced to a _ word-

processing exercise, allowing Respondent FAA arbitrary

and judicially unreviewable discretion to authorize opera-

tors to avoid financial disaster only if they accede to the

Administrator’s use of processed “interpretive rules”

amending SFAR 71 to change existing policy affecting

individual rights and obligations and thus creating a de

facto legislative rule. The FAA may not exercise plenary

substantive and procedural authority over all operations

conducted pursuant to the so-called “deviation” authority

granted by the Administrator as a license or authorization

based upon a sub rosa set of non-APA regulations.

* The Ninth Circuit Court of Appeals below recognized the FAA

stated intent to replace SFAR 71 with a national air tour rule “in the

near future”, quoting the FAA’s 26 September 2000 claim “‘.. . that the

forthcoming national tour rule would soon replace SFAR 71’” and that

SFAR 71 only remains in effect until October 2003. App. A-7. No NPRM

has been filed proposing any national rule or further extension of SFAR

71.

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REASONS FOR GRANTING THE PETITION

I. THE TWO CIRCUIT DECISIONS DENYING

SAFARI ANY RELIEF CONFLICT WITH THE

MINIMAL STATUTORY RULEMAKING RE-

QUIREMENTS DICTATED BY THIS COURT

AND OTHER CIRCUITS.

A. Respondent FAA Has Refused To Consider

And/Or Respond To Extensive Relevant

And Critical Comments Provided By

Knowledgeable Individuals During Or Fol-

lowing Its Emergency Promulgation Of

SFAR 71.

Respondent FAA’s sole regulatory response to the

massive and detailed safety criticisms of SFAR 71, pre- .

pared more than three years after the emergency promul-

gation, was: ;

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 ma-

jority of air tour operators. Air tour operators of

fixed wing 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 con-

duct 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.

62 Fed. Reg. at 58,857 (1997). What this response con-

cealed is that the ink was not even dry on the “deviations”,

which were granted only that same day and could be

revoked by the Administrator at any time. As is discussed

below, this abuse of the allowable scope of “interpretive

rules” approved by the Ninth Circuit has allowed the

averred interpretive rules to engulf the legislative rules

they purport to apply.

The fallacy of this response, as discussed below, is

that the FAA intends to withhold and/or revoke these

deviations as sanctions for SFAR violations, thus re-

creating the lack of separation for those who need it the

most. This response also indicates the lack of APA-

mandated adequate response and the abuse of the “inter-

pretive rule” exemption. 5 U.S.C. §553(b)(3)(A). All

historical FAA airspace regulation utilized APA-compliant

rulemaking for such substantive rules rather than the

hybrid “interpretive rule/deviation authority” surrogate

the FAA utilized to empower itself to avoid the hardships

a democratic society places on governmental action by the

APA. United States v. Picciotto, 875 F.2d 345 (D.C. Cir.

1989): :

The FAA rulemaking detours and lack of re-

sponse to comments can only be due to the gene-

sis of this rule as of at least mixed purpose. By

early 1994, it was apparent that political forces

in Hawaii, including the late Congresswoman

Patsy T. Mink, might succeed in inducing Re-

spondent FAA to commence a rulemaking pro-

ceeding regarding tour helicopters and scenic

area overflights; these interests had an absolute

right to do so. The FAA was close to commencing

proceedings by proper NPRM procedures in June

oi ii hagce

1994,” but two well-reported helicopter accidents

on 14 July 1994 provided FAA counsel with the

“emergency” it needed to avoid what it knew

would be a contentious proceeding. Following an

FAA official’s announcement to Congress in July

1994 that the FAA would issue an SFAR for Ha-

waii, officials and operators from the Hawaii

Helicopter Operators Association (“HHOA”) offi-

cials unsuccessfully attempted to meet with

7 See App. E, consisting of a draft Hawaii-specific Air Tour

regulation dated 6 June 1994, and the contents therein. The goal of this

regulation was to require all tour operators to become ATCO’s, and

then to impose altitude and other restrictions via what are known as .

“Operational Specifications” or OpSecs, issued by the Administrator

pursuant to 14 C.F.R. § 119.51. The purposes of this was to require all

tour aircraft to “.. . operate under special operating procedure designed

to enhance safety and noise abatement.”, App. E-1, and invited com-

ments, inter alia, relating to the “environmental . .. impact... ” of the

proposal. App. E-2.

The draft proposal then references complaints about “overflight

operations” and “noise”, and goes on to document Rep. Mink’s legisla-

tive efforts (H.R. 1696-103 Congress) to regulate airspace for environ-

mental goals. App. E-5. Two of the three goals sought by the FAA

proposal related to noise impacts, which its past efforts (along with the

HHOA) to resolve involved encouraging “fly neighborly” operations.

App. E-6. The discussion then referred to prior FAA meetings to discuss

purely environmental impacts, App. E-6, addressed only noise abate-

ment under the “General Issues” heading, App. E-14-15, and then

asserted the power to protect “environmental values on the surface. ...”

App. E-15-16. This proposal became SFAR 71, but with all of the

environmental language omitted and further discussion of safety added.

While SAFARI has not raised any NEPA issues herein, it should be

noted that aerial tours may be the most environmentally friendly

method of viewing National Parks and scenic areas. Comment:

SCENIC AIR TOURS OVER OUR NATIONAL PARKS: EXPLOITA-

TION OF OUR NATIONAL RESOURCES OR ENVIRONMENTAL

SOLUTION? 62 J. Air L. & Com.

Respondent FAA or obtain a draft of the pro-

posed SFAR. What became SFAR 71 was a le-

gally-cleansed version of the draft NPRM.

App. E.

These pre-promulgation efforts at regulatory input

were completely rebuffed by the FAA. The FAA may have

reduced the APA democratic protections as part of official

government policy to “push the envelope” in streamlining

rulemaking. In 1993, the Clinton administration’s Na-

tisnal Performance Review (NPR) suggested that agencies

experiment with direct final rulemaking.’ This process,

dubbed “ossification”,’ was utilized by Respondent FAA in

the initial promulgation and subsequent re-promulgations

of SFAR 71 as a device to avoid both the APA’s statutory

requirements and judicial review.

This Court need only review the substantial and

critical comments contained in Chairman Hall’s 27 Octo-

ber 1994 letter (App. F) documenting the Safety Board’s

post-promulgation review of SFAR 71 to conclude the FAA

had created a dangerous operational environment and has

now answers (other than noise abatement goals) for its

Section 6 of SFAR 71. NTSB Chairman Hall cautioned:

* See Office of the Vice President, Accompanying Report of the

National Performance Review: Improving Regulatory Systems 42-44

(1993).

* See Thomas 0. McGarity, Some Thoughts on “Deossifying” the

Rulemaking Process, 41 Duke L.J. 1385 (1992); Mark Seidenfeld,

Demystifying Deossification: Rethinking Recent Proposals to Modify

Judicial Review of Notice and Comment Rulemaking, 75 Tex. L. Rev.

483 (1997); Paul R. Verkuil, Rulemaking Ossification - A Modest

Proposal, 47 Admin. L. Rev. 453 (1995).

However, the safety Board believes that the

SFAR 71 provision that, “no person may conduct

an air tour in Hawaii below an altitude of 1,500

feet above the surface of State of Hawaii or closer

that (sic) 1,500 feet to any person or property (or

as authorized by the Administrator), may pre-

sent midair collision hazards or encounters with

cloud layers that are more serious than the haz-

ards of flights at lower altitudes.

App. F-4. Chairman Hall noted that it was “obvious” that

Section 6 would concentrate air tour traffic at that alti-

tude, and critically observed:

Furthermore, weather patterns around the

Hawaiian islands should be a major factor in set-

ting any minimum altitude for air tour opera-

tious. The orographic effect of changing

windward and leeward air flow produces cloud

formations along tour routes that must be con-

sidered when defining altitude requirements.

App. F-5. Chairman Hall reiterated:

The Safety Board believes that it is impera-

tive that the FAA conduct further discussions

with the interested parties in Hawaii to resolve

the issue of optimum flight altitudes for air tour

operators and, at the same time, consider the

negative effects of such restrictions that may re-

sult in unintended degradation of the existing

level of safety.

App. F-5.

Judicial review of rulemaking requires a searching

review of rulemaking records (if they exist) and the sub-

stantive merits of agency decisions, asking whether

regulatory officials had taken a “hard look” at all of the

issues and data. Marsh v. Oregon Natural Resources

Council, 490 U.S. 360, 378 (1989) (“searching and careful

inquiry”); Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43, 46-57 (1983); National

Lime Ass’n v. EPA, 627 F.2d 416, 451 n.126 (D.C. Cir.

1980); National Tire Dealers & Retreaders Ass’n v. Brine-

gar, 491 F.2d 31, 35-41 (D.C. Cir. 1974); Portland Cement

Ass'n v. Ruckelshaus, 486 F.2d 375, 402 (D.C. Cir. 1973).

The APA’s arbitrary and capricious standard of review

provided a mechanism for invalidating rules that judges

regard as understudied or ill-conceived, even assuming

their promulgation was procedurally beyond reproach.

The FAA’s sole reliance on an “engine power loss”

argument” as being the predominant accident scenario,

without considering the comments of Chairman Hall and

others concerning other accident scenarios, is a major

defect. Safety in aviation is rarely as simple as one acci-

dent scenario. The FAA ignored SFAR 71’s impact on

traffic concentration, weather-induced “white-out”, contin-

ued flight into terrain (CFIT), pilot human factors and

adverse regulatory attitude, among others. No valid

reason existed for the secrecy, then or now, and it would

have been far more sensible for the FAA to at least have

The Administrator’s continued repetition of the so-called “engine

loss scenario” and failure to discuss other accident modes reveals that

the FAA did not consider all aspects of aviation safety. The FAA has

multiple sources’ of accurate information on accidents other than final

NTSB reports, yet avoided discussing two fatal accidents claiming 13

lives (now with judicial approval) knowing that neither involved an

engine failure. 65 Fed Reg. 58611. If it was not “premature” to discuss

(without NTSB reports) all the other accidents it relied upon to justify

SFAR 71’s renewal, it was not premature to discuss.

allowed access to the draft documents if in fact SFAR 71

did not from its inception discuss environmental and noise

issue ala the Mink NPRM.

It is impossible from the FAA responses for this Court

to determine which comments were “not relevant”, “specu-

lative” or “mooted by subsequent events” as claimed; it is

also impossible to determine what safety concerns were

identified and supposedly resolved. Nor is it possible to

discern how the FAA will treat those operators who don’t

receive deviations or have them revoked. A near presump-

tion exists that both agency review and judicial review of

emergency promulgations must be more exacting, which

the lower court failed to perform. American Mining Con-

gress v. MSHA, 995 F.2d 1106, 1111 (D.C. Cir. 1993)

(observing that “any agency statement not subjected to

notice-and-comment rulemaking will be more vulnerable

to attack”). Respondent FAA must be presumed that its

paper trail of rulemaking may eventually result in more

critical review. American Hosp. Ass’n v. Bowen, 834 F.2d

1037, 1044 (D.C. Cir. 1987) (noting that rulemaking

“‘assur[es] that the agency will have before it the facts and-

information relevant to a particular administrative prob-

lem, as well as suggestions for alternative solutions’ ”);

Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1028 (D.C. Cir.

1978) (explaining that notice-and-comment procedures

“maximize the susceptibility of the record to judicial

magazine”). The Administrator’s continued refusal to

respond to safety comments should result in adverse

inferences respecting whether it is merely refusing to

concede either its initial mistakes or its underlying noise

abatement primary goals.

B. Respondent FAA’s Continued Perversion Of

The Rulemaking Process In 1997 To Avoid

Public Input Has Substantially Prejudiced

SAFARI, Exposed Its Pilots And Passengers

To Needless Aeronautical Risks, And Is Not

Moot.

The FAA re-promulgated SFAR 71 in 1997 badged as

an “interim rule”, seeking to utilize that legal fiction to

justify its second failure to issue any NPRM and consider

comments. 62 Fed. Reg. 58,854. The renewal was made the

rule effective four days before it was published, comments

were invited only on the ‘draft Environmental Assess-

ment,’ which exists anywhere in the nine year record, the

events subsequent to the initial judicial review of the

“emergency” rule document that the Administrator was

oblivious to criticisms.

The conduct of the FAA within days of the effective

date of the emergency SFAR 71 (and certainly after receipt

of Chairman Hall’s 27 October 1994 letter) establish for

any reasonable mind that the FAA had foreseen that

SFAR 71 would be far more draconian, hazardous and

financially devastating than it had claimed in SFAR 71’s

boilerplate promulgation document or had been admitted

by FAA legal counsel. SAFARI immediately sought a

deviation pursuant to Section 6 the same day SFAR 71

took effect, but was denied any relief based upon a still-

secret non-APA regulation which apparently co-existed

within the FAA to provide the “real” rules. As revealed by

Mr. Beckner’s letter denying a deviation, App. G, the FAA

was secretly implementing phantom regulations which did

not purport to interpret or clarify SFAR 71 in any manner,

but instead constituted sub rosa regulations which changed

existing policy, affected individual rights and obligations

ee ae 7

ee eed

and purported to bind both the regulator and the regu-

lated.

On 13 December 1995 then Administrator David

Hinson responded to critical inquiries from Hawaii’s

senior Senator Daniel K. Inouye:

We are developing responses to the approxi-

mately 100 formal comments we received on the

SFAR. After analyzing those comments and the

input from all relevant sources, including the

recommendations of the National Transportation

Safety Board (NTSB), the rulemaking team will

make appropriate changes to SFAR 71. The

rulemaking team will address many of the issues

you raise, including compression of traffic be-

cause of the altitude limitation and whether

a lower altitude may be used safely in certain

regions of Hawaii. We anticipate finalizing that

rulemaking in the near future.

App. H-1 (Emphasis supplied). Nothing Administrator

Hinson represented to Sen. Inouye took place thereafter;

no “appropriate changes” were made, nor were the “many

issues ... raise[d]” subsequently addressed “by the

rulemaking team”. Although Administrator Hinson

claimed that only two of the 16 Near Mid Air Collision

(NMAC) reports filed subsequent to the effective date were

valid, even these were never subsequently discussed by

the FAA rulemakers,” App. H-1, and again refused to

*’ SAFARI had provided the FAA with multiple copies of its taped

NMAC to numerous FAA officials, but never received a response or

further inquiry from the FAA.

allow a formal meeting between the FAA and the affected

operators and pilots. App. H-3.

On 26 December 1995 virtually every helicopter tour

pilot in Hawaii (53 pilots with more than a half million

logged helicopter hours) petitioned Administrator Hinson

to reduce the minimum altitude to 500 feet AGL, to

provide 500 feet separation from fixed wing traffic at 1000

feet AGL.” When they received no response, Chairman

Hall again wrote Administrator Hinson on 26 January

1996 to again express the Safety Board’s continued appre-

hension following an inspection trip to Hawaii about

negative impact of SFAR 71 on the safety of air tours and

the FAA’s underestimation of the massive financial impact

SFAR 71 had on the industry generally. App. J.

Chairman Hall underscored his prior critical com-

ments:

Please allow me to share with you some of

the concerns the Safety Board continues to have

regarding the air tour industry, particularly in

the State of Hawaii. It has been more than a year

since SFAR 71 was published for comment; the

“ Although Administrator Hinson was correct in asserting to Sen.

Inouye that numerous helicopter operators had (only after the judicial

ruling in March 1995) received deviations down to 1000 feet AGL, he

failed to mention that fixed-wing tour operators were also given

deviations down to that same altitude and that no separation of

dissimilar aircraft types had been achieved. App. H-2-3. Administrator

Hinson also failed to mention that these 1000 foot deviations were

conditioned on altering the stand-off language contained in Section 6(b)

of SFAR 71 from “any person or property” (which therefore did not

include raw terrain) to “closer than 1500 feet from any terrain”. These

changes made this deviation more dangerous and useless than SFAR 71

itself, and SAFARI refused to accede to this demand.

wclaltir

Safety Board provided comment to this rule on

October 27, 1995. The Board continues to believe

that SFAR 71, however well intentioned, presents

an aviation safety issue, specifically Section 6

“Minimum Flight Altitudes” (1,500 feet above the

surface and 1,500 feet standoff distance.)

My firsthand visit tells me that this rule has

adversely affected the Hawaiian air tour industry

to a far greater degree than anticipated. The rule

does not take into consideration the impact of lo-

cal weather conditions on the available airspace

for cir tour operations, which has been a serious

impediment to the industry. I have flown with the

operators, and I have held discussions with their

management personnel. They explained that the

concentration of air traffic now forced into a

compressed flight environment along the coastal

areas is the result of the unique weather pattern

of the islands and the minimum altitude re-

quirements of SFAR 71.

During our discussions and again during my

observation of their air operations, the operators

explained that, on designated tour routes, when

confronted with a possible emergency, helicopter

pilots are confident they can select a suitable

landing site and effect and emergency landing

from flight altitudes of 5000 feet above the ter-

rain.

App. J 1-2. (Emphasis supplied).

Chairman Iiall again sought FAA cooperation with

the affected operators, and predicted with eerie accuracy:

The Safety Board believes that the air tour

operators are prepared to significantly contribute

to the improvement of their industry if given the

opportunity. The Board also believes that the

standards put forth in the TOPS program are

reasonable and that the minimum altitude provti-

sion (500 feet), and perhaps others, can be applied

immediately as a basis for the revision of SFAR

71.

I recently spoke with Dave Harrington of the

FAA’s Flight Standards Service on the subject of

the Hawaii air tour industry. May I please take

this opportunity to encourage you and Mr. Har-

rington to move forward on both the anticipated

SFAR 71 revision and on the development of a

nationwide policy for air tour operations. To fur-

ther delay action on this issue will perpetuate the

mistrust and strained communications between

the FAA and the air tour operators and, more im-

portantly, continue the negative effects of the con-

centration of air traffic in Hawaii that result in

an unintended degradation of the existing level of

safety.

App. J 3-4. (Emphasis supplied). The FAA continued to

stonewall even the NTSB, and took no rulemaking action

for another twenty months.

As is discussed below, the FAA attempt to thwart

criticisms and further opposition by finally granting

deviations to many operators including SAFARI effective

30 October 1997. SAFARI’s Operations Specifications

(OpSpecs), App. K, represent the type of specific airspace

regulatory language which the APA requires to be prom-

ulgated within SFAR itself, rather than as a mere license

or authorization which the Administrator may withdraw

at will in the future. The FAA itself recognized the scope,

breadth and criticism of SFAR 71 made in comments to

which it was required to respond. 62 Fed. Reg. 58,854,

58,855. The FAA arbitrarily and unlawfully declined to

respond to many (possibly 100+) comments, without

identification, by vaguely claiming:

The following discussion contains a sum-

mary of comments according to the specific sub-

ject 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.

62 Fed. Reg. at 58,855. (Emphasis supplied).

The FAA, facing hard questions and unanswerable

criticisms and no longer relying on any professed emer-

gency in 1997, improperly postponed further its considera-

tion of safety-related comments while damning the

commenters impacted by SFAR 71 with faint praise:

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 pro-

posed 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 rule-

making 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 can-

not 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 an-

ticipates that the national rule, when finalized,

will replace SFAR 71-1, which would then be re-

scinded.

62 Fed. Reg. at 58,857. The agency’s procedure was en- )

tirely defective when it retroactively published the Interim :

Rule in 1997 without a NPRM, and it failed to even await ;

or consider comments during the 2000 renewal, its actions

were arbitrary, capricious and contrary to law, and are not

moot. A

The FAA’s belated responses failed to comply with the

rulemaking requirements recognized in Grand Canyon Air

Tour Coalition v. Federal Aviation Administration, 154

F.3d 455 (D.C. Cir 1998):

An agency is required to provide a meaning-

ful opportunity for comments, which means that

the agency’s mind must be open to considering

them. See McLouth [Steel Products Corp v. Tho-

mas, 838 F.2d 1317 (D.C. Cir. 1988)] at 1323. An

agency must demonstrate the rationality of its

decision making process by responding to those

comments which are deemed relevant and sig-

nificant. See Professional Pilots Fed’n. v. FAA, |

118 F.3d 758, 763 (D.C. Cir. 1997); Home Box Of-

fice, Inc., v. FCC, 567 F.2d 9, 35 (D.C. Cir. 1977).

154 F.3d at 468.

The Circuit Court erred when it concluded that “...

no purpose would be served by reviewing ... ” the rule-

making procedures for this non-NPRM rulemaking in the

1997 interim rule proceeding, and dismissed SAFARI’s

petition as moot. Safari Aviation Inc. v. Garvey, App. A-9.

SAFARI is entitled to judicial review of the 1997 rule, as it

continues to exist in an environment where the abusive

rulemaking in 2000 relied upon it. This scenario presents

the classical exemption from mootness where the defective

rulemaking is “capable of repetition, yet evading review.”

See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 190-91 (2000). The ‘capable of

repetition, yet evading review exception to mootness

applies only when “(1) the challenged action is too short in ©

duration to be fully litigated before cessation or expiration,

and (2) there is a reasonable expectation that the same

complaining party will be subjected to the same action

again.” Cole v. Oroville Union High Sch. Dist., 228 F.3d

1092, 1098 (9th Cir. 2000), cert. denied, 5382 U.S. 905

(2001).

Even if the Circuit Court was not disturbed with the

FAA’s dubious claim of an emergency in 1994, and its 1997

failure to use a notice and comment process, the Circuit

Court shirked its statutory duty of judicial review and

utilized clearly false findings to criticize SAFARI for

catching the FAA once again at deficient rulemaking.

C. The FAA Denied Petitioner SAFARI Its

Constitutional, Statutory And Regulatory

Right To Participate In The 2000 Rulemak-

ing Refusing To Comply With Its Own

NPRM Or Await Mail Delivery Of Timely

Comments.

The Ninth Circuit opinion excused the FAA’s latest

rulemaking insolence by falsely implying that Petitioner

SAFARI’s critical comments respecting the 2000 reprom-

ulgation were untimely, which calls into question whether

it exercised the judicially-required scrutiny of self-serving

“mistakes” such as promulgating a rule prior to the close

of the comment period. The lower court incorrectly

claimed:

The deadline for comments on the proposed

extension was September 22, 2000.

Safari mailed its comments regarding the

proposed extension of SFAR 71 on September 22,

2000, and the FAA received them on September

25, 2000.

App. A-6. The NPRM stated:

DATES: Send your comments on or before Sep-

tember 22, 2000.

65 Fed. Reg. 51512. SAFARI’s comments were both timely

and ignored. Rather than conceding that the FAA had

jumped the gun, the Court accepted the FAA litigation

claim that this exclusion from the rulemaking process was

harmless. App. A. 12-13. The FAA was not going to listen

to comments, so this conclusion is accurate but the finding

illegal.

SAFARI’s comments were based upon an extensive

study and reconstruction of the two fatal helicopter acci-

dents, App. L1-4, unlike the off-hand comment of Blue

Hawaiian Helicopters that “ ... some air tour pilots

believe that SFAR 71 may have contributed to three

accidents that have occurred since the SFAR was adopted

in 1994.” 65 Fed. Reg. 58.610. The Ninth Circuit Court

was insufficiently skeptical of FAA litigation claims, and

SAFARI was materially prejudiced by both the lack of

insight contained in the Court’s disingenuous whitewash

and uncritical acceptance of the FAA claim disputing

relevance of SAFARI comments seeking to avoid further

loss of life.

II. THE NINTH CIRCUIT DECISION EXPANDS

JUDICIAL TOLERANCE OF “INTERPRETIVE

RULES” BEYOND ALL PRIOR STATUTORY

OR JUDICIAL LIMITS.

The decision below provides carte blanche power to

the FAA to impose unreasonably restrictive rules (even by

emergency “good cause” rulemaking) and then to exercise

unbridled agency discretion and/or to create de facto

substantive rules internally to effect the real system of

regulation. The Ninth Circuit erred in its analysis of

Respondent FAA use of the so-called “deviation authority”

to alter, amend and repeal portions of Section 6, and

declined to define what it considered to be the legal and

factual criteria for a valid interpretive rule. SAFARI

challenged the FAA’s use of non-APA promulgated “rules”

to de facto amend SFAR 71 by means of “exceptions” and

“deviations” in response to massive safety and economic

criticisms, rather than amending the underlying SFAR 71

itself in response to the comments SAFARI and virtually

all other aviation entities.

The decision below conflicts with prior precedent of

this Court, of the District of Columbia Circuit and with

prior panel decisions in the Ninth Circuit. This non-APA

rulemaking power does not exist, United States v. Pic-

clotto, 875 F.2d 345 (D.C. Cir. 1989), and approves of a

scope of interpretive rules far beyond the limitations of

Shalala v. Guernsey Memorial Hospital, 514 ‘US. 87

(1995). The panel decision ruled:

We also reject Safari’s objections to the

FAA’s practice of granting case-by-case devia-

tions to avoid clustering of aircraft at the 1,500

foot level. The deviations are interpretive rules

which apply the “exceptions” provision of Section

6 of SFAR 71.

App. A-11. The panel offered no analysis of its factual or

legal perception of the exercise of authority to issue

binding “deviations” from Section 6 as merely “interpre-

tive”; significantly, it failed to identify what law or regula-

tion was being “interpreted.”

The only possible applicable language being inter-

preted would be Section 6’s phrase “ ... as otherwise

authorized by the Administrator.” Although this is a

common phrase throughout Federal Aviation Regulations,

it does not legally qualify to exempt future non-APA

rulemaking. This phrase, as implemented by the FAA and

authorized by the Ninth Circuit, claims unilateral FAA

power to reserve to itself by one APA rulemaking the

future power to exempt itself from the APA. This same

claim was made and rejected long ago in United Siates v.

Picciotto, 875 F.2d 345, 347-48 (D.C. Cir. 1989) (“Such

agency-generated exemptions would frustrate Congress’

underlying policy in enacting the APA by rendering

compliance optional.”) -

The FAA has properly utilized interpretive rules in

the past and is cognizant of the legal restrictions on their

use of interpretive rules where legislative rulemaking

(also known as substantive rules) is required. See Air

Transport Ass’n. v. FAA, 291 F.3d 49 (D.C. Cir. 2002) (FAA

clarification by letter of phrase “Scheduled completion of

any flight segment” in highly specific duty time regula-

tions to avoid abuse; the interpretation was “fairly encom-

passed” within regulation it purports to construe); Hudson

vu. FAA, 192 F.3d 1031, 1035-36 (D.C. Cir. 1999) (Interpre- .

tive rules and policy statements merely interpret legal

norm rather than imposing or elaborating a legal norm).

This Court, in Shalala v. Guernsey Memorial Hospital, 514

U.S. 87 (1995) set forth the proper use of interpretive

rules; it stated:

We can agree that APA rulemaking would

still be required if PRM § 233 adopted a new po-

sition inconsistent with any of the Secretary’s ex-

isting regulations.

514 U.S. at 100 (Emphasis supplied).

Although the FAA labeled these deviations as being

issued on a “case-by-case” basis, the record belies that

claim. Both the language of the OpSpecs containing the

deviations, and the criteria for issuing them, establish

that they are de facto legislative rules. App. K. Although

the processing of the OpSpecs for deviations may proceed

on a case-by-case basis, the criteria to be applied were

fixed, both by Mr. Beckner’s letter (App. G) and the later

standardized OpSpec language (App. K) were fixed. The

lower Court had an independent duty to review of self-

serving agency labels created only in litigation, Cubanski v

Heckler, 781 F.2d 1421, 1426 (9th Cir. 1986), but failed to

do so.

The Court below relied on documents not in the

Record and overlooked the non-existence of one critical

document (which was only created on 4 April 2002) after

oral argument was scheduled in this case; it was not

available to the public as required. The document “Guid-

ance for Air Tour Operations Below 1,500 Feet AGL in

Hawaii; OpSpec B048”, was utilized by the panel to

support its own ruling, but SAFARI maintains that

comprehension of this document established as a matter of

law that the deviation authority documents were intended

to bind both the FAA and the Operators 300 F.3d at 1151

[Emphasis supplied]. Detailed criteria are the same as

rules, and the OpSpecs derived from these detailed criteria

read far more like regulations than interpretations, and

are substantive rules which require APA procedures.

App. K.

Section 6 of SFAR 71 contained flight altitudes set by

regulation which were specific and detailed; the lower

court sought to morph the FAA’s attempt to reserve unto

itself complete legal authority to amend rather than

clarify or interpret SFAR 71 into a mere interpretation of

SFAR 71:

By granting the deviations, the FAA has

provided “the majority of Hawaii air tour opera-

tors” with specific interpretations of how SFAR

7V’s minimum altitude requirement applies to

them in light of their individual safety qualifica-

tions and differences in local terrain and prevail-

ing conditions.

App. A-11. SFAR 71’s minimum altitude is clearly 1500

feet AGL. Because Section 6 of SFAR 71 left nothing to

clarify or interpret, the Panel has authorized the FAA to

engage in substantive legislative rulemaking altering

altitudes, amending Section 6, granting new rights and

imposing new obligations without APA compliance.

One characteristic of the deviations which exclude

them from being interpretive rules is that the FAA has

reserved to itself the power to revoke them at will from

individual operators. What the Administrator giveth, the

Administrator may taketh away. See Petitioner SAFARI’s

OpSpecs:

J. This authorization may be canceled im-

mediately for non-compliance of one or more of

the above stated conditions.

App. K-2. Subsequently, the FAA revealed that its policy

of enforcement of SFAR 71 would rely upon its claimed

power to summarily terminate the deviations. During the

2000 rulemaking, SAFARI and other operators received an

FAA Order involuntarily altering its Operations Specifica-

tions to state the Administrator’s “ ... intent to revoke

SFAR 71 authorization below 1,500 feet for thirty days in

the event a company’s air tour pilot is charged with any

violation of the SFAR 71 authorization.” App. M. The

panel’s finding that the use of deviations (and the docu-

ments the FAA has promulgated to bind itself and opera-

tors in obtaining and revoking deviations) were

interpretive rather than substantive illegally expands

agency exemption are beyond any legal authority.

II. CONCLUSION

For the reasons and authorities contained herein,

Petitioner SAFARI AVIATION, INC. respectfully prays for

this Court to issue a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit.

DATED: Honolulu, Hawaii, 3 February 2003.

DAVID GLENN BETTENCOURT

Attorney for Petitioner

Safari Aviation, Inc.

dba Safari Helicopter Tours

A-1

APPENDIX A

300 F.3d 1144

United States Court of Appeals,

Ninth Circuit.

SAFARI AVIATION INC., dba Safari Helicopter Tours,

Petitioner,

Jane F. GARVEY, Administrator, Federal Aviation Admini-

stration, Respondents.

Safari Aviation Inc., dba Safari Helicopter Tours, Peti-

tioner,

Federal Aviation Administration, Respondent.

Nos. 98-70013, 00-71520.

Argued and Submitted May 7, 2002.

Filed Aug. 26, 2002.

David Glenn Bettencourt, Honolulu, Hawaii, for the

petitioner.

Constance A. Wynn, Department of Justice, Civil

Division, Washington, D.C., for the respondent.

On Petitions for Review of Two Orders of the Federal

Aviation Administration. FAA No. 27919.

Before WALLACE, TASHIMA and TALLMAN, Circuit

Judges.

OPINION

TALLMAN, Circuit Judge.

Safari Aviation, Inc., d/b/a Safari Helicopter Tours

(“Safari”) is an aeronautical business which operates

helicopters and fixed-wing aircraft for sightseeing tours of

A-2

tourist attractions in Hawaii as an on-demand Air Taxi

Commercial Operator. Safari petitions for review of two

orders of the Federal Aviation Administration (“FAA”)

promulgating Special Federal Aviation Regulation 71

(“SFAR 71”), which establishes procedural, operational,

and equipment safety requirements for air tour operators

in Hawaii. We upheld emergency rule SFAR 71, issued on

September 16, 1994, in Hawaii Helicopter Operators Ass’n.

v. FAA, 51 F.3d 212 (9th Cir.1995). In No. 98-70013, Safari

petitions for review of the FAA’s decision to extend SFAR

71 for an additional three years. In No. 00-71520, Safari

petitions for review of the FAA’s decision to establish

SFAR 71 as a final rule. Safari contends that the FAA

unlawfully and arbitrarily promulgated SFAR 71, and that

the final rule decreases aviation safety and increases the

risk of predictable accident scenarios. We have jurisdiction

under 49 U.S.C. § 46110, and we dismiss the petition in

appeal No. 98-70013 as moot, and deny the petition in

appeal No. 00-71520.

I. Facts and Prior Proceedings

A. Emergency Rule SFAR 71

The FAA issued SFAR 71 as an emergency rule in

September 1994. Air Tour Operators in the State of Ha-

wali, 59 Fed.Reg. 49,138 (Sept. 26, 1994) (codified at 14

C.F.R. pts. 91 & 135). The FAA cited “an escalation of air

tour accidents” as the reason for the rule, and stated that

“(t]he regulation is intended to enhance the safety of air

tour operations within the State.” Jd. Accident data for the

nine-year period between 1982 and 199], a time of sub-

stantial industry growth, established that there were eight

air tour accidents in Hawaii which resulted in a total of

twenty-four fatalities. For the three-year period from July

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1991 through July 1994, the agency reported that the

accident rate jumped to twenty air tour accidents with

twenty-four fatalities. Jd. at 49,139.

The FAA was concerned about the substantial in-

crease in the accident rate and the risks associated with

low-flying air tours in Hawaii.’ SFAR 71 imposes “Special

Operating Rules” for airplane and single-engine helicopter

air tours. Section 3 of the regulation requires operators

who venture off shore to either use amphibious helicopters

or helicopters equipped with floats; or they must require

passengers to wear approved flotation gear. Id. at 49,145.

Section 4 requires operators to file a helicopter perform-

ance plan before each air tour flight. Section 5 mandates

that air tour operators maintain appropriate height and

forward speed to allow the safe landing of helicopters in

the event of an engine failure. Jd. at. 49,146.

Section 6 imposes a minimum flight altitude of 1,500

feet above ground level for all aircraft, and requires

operators to maintain a standoff distance of 1,500 feet

from any person or property except when necessary for

takeoff and landing, air traffic control compliance, or as

otherwise authorized by the FAA. Section 7 requires air

tour operators to brief passengers on water ditching

procedures, use of required flotation equipment, and

emergency egress from the aircraft in the event of a water

' The FAA also cited the fact that the National Transportation

Safety Board (“NTSB”) made specific recommendations to the FAA

regarding the need for increased safety regulation of air tours in

Hawaii following its investigation of an accident which occurred near

Mt. Haleakala on the Island of Maui in April 1992. 59 Fed.Reg. at

49,141.

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landing. Id. The emergency rule became effective on

October 26, 1994, and the public comment period ended on

December 27, 1994.

The Hawaii Helicopter Operators Association

(“HHOA”) promptly petitioned this Court to challenge the

validity of the emergency rule on the ground that it was

issued in violation of the Administrative Procedure Act’s

(“APA”) notice and comment provision, 5 U.S.C. § 553(c).

In a published opinion, we held that the FAA had properly

invoked the good cause exception to § 553(c), and we

rejected HHOA’s claim that the 1,500-foot minimum -

altitude requirement in SFAR 71 was arbitrary and

capricious. Hawaii Helicopter Operators Ass’n. v. FAA, 51

F.3d 212, 214-16 (9th Cir.1995).”

B. Interim Rule SFAR 71

The FAA extended SFAR 71 as an interim rule on

October 30, 1997, with the stated goal of “ensur[ing] that

regulatory requirements for the safe operation of air tours

in the airspace over the State of Hawaii remair in effect.”

Air Tour Operators in the State of Hawaii, 62 Fed.Reg.

58,854 (Oct. 30, 1997) (codified at 14 C.F.R. pts. 91 & 135).

The FAA also published a “discussion” of some of the more

than 200 public comments it received from entities includ-

ing the NTSB, air tour operators, helicopter associations,

and environmental groups. Jd. at 58,855-58,859.

? Our opinion also expressly retained jurisdiction “of any further

petitions for review of SFAR No. 71 or any other successor regulation

from the comment period” by the Hawaii Helicopter panel. 51 F.3d at

216. The prior panel subsequently relinquished jurisdiction to this

panel of the Court.

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Many comments were critical of the minimum flight

altitude requirement, including the concern that the

requirement does not account for cloud cover and weather

conditions in Hawaii which affect visibility and may

compromise a pilot’s ability to maintain the required

distance from clouds. Several commenters, including the

HHOA, also warned that the minimum altitude require-

ment will cause air tour traffic to be concentrated at the

same altitude, thereby increasing the risk of mid-air

collisions and decreasing overall air safety. The NTSB

expressed the concern that the altitude requirement may

lead to increased operating time over water, difficulties in

regulatory enforcement, and possible disregard of the FAA

regulation.

The FAA agreed that the minimum operating altitude

requirement was “[o]ne of the most contentious aspects” of

SFAR 71, but noted that “after working closely with air

tour operators,” it had mitigated the problem by allowing

selected deviations on a case-by-case basis. Jd. at 58,857.

Since 1994, the FAA has granted deviations to “the major-

ity of air tour operators” in Hawaii. For instance, air tour

operators of single-engine helicopters have been granted

deviations to conduct air tours at a minimum of 500 feet.

These deviations are site-specific, and are only allowed

over areas of raw terrain (i.e., areas devoid of persons,

vehicles, etc.). Safety is not compromised, the FAA asserts,

because of additional safety measures, including careful

FAA screening of operators before they are granted a

deviation. Id.

In response to comments regarding costs associated

with complying with SFAR 71, the FAA states that it

“believes that the SFAR has not had a direct impact on the

viability of the air tour industry in Hawaii.” By granting

— TL I IN IIE LA OE TL TT NT A LE TT a

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deviations, the FAA contends, it has mitigated the costs of

the SFAR and ensured that commercially viable air tours

are still available to the public. Finally, in response to

comments that the FAA’s promulgation of SFAR 71 was a

response to residents’ complaints about noise pollution, the

FAA “reiterates its strong statement” that safety was the

reason the agency promulgated the rule.

C. Final Rule SFAR 71

The FAA issued a notice of proposed rulemaking

(“NPRM”) on August 23, 2000, indicating an intent to

extend interim rule SFAR 71 for another three years and

soliciting comments on the extension of SFAR 71 as a final

rule. Air Tour Operators in the State of Hawaii, 65

Fed.Reg. 51,512 (Aug. 23, 2000) (codified at 14 C.F.R. pts.

91 & 135). In this NPRM, the FAA explained that the

extension was necessary to provide additional time for the

agency to issue an NPRM regarding a national rule that

would apply to all air tour operators. Jd. The deadline for

comments on the proposed extension was September 22,

2000.

Safari mailed its comments regarding the proposed

extension of SFAR 71 on September 22, 2000, and the FAA

received them on September 25, 2000. In its statement,

Safari contended that “the imprudent and unjustified

specifications within SFAR 71 have claimed the lives of

thirteen person[sic] in two fatal helicopter accidents. ... ”

The document goes on to detail how the 1,500 foot mini-

mum altitude requirement may have played a factor in

two recent air tour helicopter accidents.

The FAA nonetheless issued the final rule extending

SFAR 71 for another three years on September 29, 2000.

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Air Tour Operators in the State of Hawaii, 65 Fed.Reg.

58,610 (Sept. 29, 2000) (codified at C.F.R. pts. 91 & 135).

The FAA again indicated its intent, in the near future, to

promulgate a national rule to apply to all air tour opera-

tors, at which time SFAR 71 would be rescinded. Jd. In its

discussion of the comments regarding the extension of

SFAR 71, the FAA indicated that it had received four

comments, all of which supported the extension. Regard-

ing the NPRM published on August 23, 2000, the FAA

reported having received only one adverse comment, from

Blue Hawaiian Helicopters. This comment indicated that

“some air tour pilots believe the altitude restrictions may

have contributed to the three accidents that have occurred

since the SFAR was adopted in 1994.” Id. The FAA did not -

review Safari’s comments before issuing the final rule

extending SFAR 71.

The FAA justified its promulgation of emergency final

rule SFAR 71 on the grounds that a “large number of

accidents ... occurred in Hawaii between 1982 and 1991”;

that the interim and final versions of SFAR 71 were

needed to ensure the safety of all air tour operations in

Hawaii; and that the forthcoming national air tour safety

rule would soon replace SFAR 71. As to the cause of the

three accidents referenced by Blue Hawaiian, the FAA

declined to respond on the ground that the NTSB had not

yet issued a final report on any of these accidents, but that

the “cornplete accident history of tour operations in Hawaii

supports the extension of SFAR 71.” Jd. at 58,611.

D. Circuit Court Proceedings

Safari filed a timely petition for review of the October

1997 interim rule. The parties consented to mediation

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pending the FAA’s publication of a NPRM regarding the

“forthcoming” national air tour safety rule. After three

years in mediation, and with the expiration of the interim

rule looming, the FAA reissued SFAR 71 as a final rule on

September 29, 2000. Safari then filed a timely petition for

review of the final rule. In light of the FAA’s failure to

publish the NPRM regarding a national air tour rule,

Safari’s two petitions were subsequently consolidated and

submitted for our decision.

II. Analysis

Under the APA, we may not set aside an agency’s

action unless it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law....” 5

U.S.C. § 706(2)(A) (2001); Brower v. Evans, 257 F.3d 1058,

1065 (9th Cir.2001). We also apply the arbitrary and

capricious standard to resolve factual disputes involving

substantial agency expertise. Ninilchik Traditional Coun-

cil v. United States, 227 F.3d 1186, 1194 (9th Cir.2000).

Review under this standard is narrow, and we must not

substitute our judgment for that of the agency. Jd. “Agency

action should be overturned only when the agency has

‘relied on factors which Congress has not intended it to

consider, entirely failed to consider an important aspect of

the problem, offered an explanation for its decision that

runs counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a difference in

view or the product of agency expertise.’” Pac. Coast Fed’n

of Fishermen’s Ass’ns, Inc. v. Nat'l Marine Fisheries Serv.,

265 F.3d 1028, 1034 (9th Cir.2001) (quoting Motor Vehicle

Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)).

i ica pia io

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A. The Rulemaking Proceedings

Safari seeks review of both the October 1997 interim

rule, which expired on October 26, 2000, and the October

2000 final rule, which remains in effect until October

2003. As the life of the interim rule is over, no purpose is

served by reviewing its rulemaking procedures. However,

the final rule is in substance identical to the interim rule.

Comments and responses made during the promulgation

of the interim rule address the same issues as were raised

with respect to the final rule. Therefore, while we do not

review the October 1997 interim rule and its associated

rulemaking procedures, we may nonetheless consider the

comments and the FAA’s responses with respect to the

October 1997 interim rule in reviewing the promulgation

of the October 2000 final rule. As we explain later, we

dismiss Safari’s procedural complaints regarding the

interim rule as moot because that rule has expired.

Safari argues that the FAA failed to conduct a mean-

ingful disposition of “possibly 100+” comments it received

which were critical of its safety analysis, and that it

dismissed criticism from knowledgeable sources (i.e.,

pilots) by simply referring to its practice of granting

deviations in response to these concerns. In particular,

Safari contends that the FAA failed to address comments

that the 1,500-foot minimum altitude requirement does

not take into account prevailing weather conditions in

Hawaii, that it may increase the probability of flying into

bad weather, that it will cause air tour traffic to be concen-

trated at the same altitude, and that it creates hazardous

conditions for emergency landings. As for the FAA’s policy

of granting deviations, Safari suggests that because the

FAA did not detail the circumstances under which it

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grants (or declines to grant) deviations, this practice may

itself constitute unlawful rulemaking.

“The APA requires an agency to: (1) publish a general

notice of proposed rulemaking; (2) give interested parties

an opportunity to participate in the rulemaking through

submission of data, views, and arguments; and (3) adopt a

rule after consideration of the relevant matter presented.”

Hall v. EPA, 273 F.3d 1146, 1163 (9th Cir.2001). We will

not usually overturn agency action unless there is a

showing of prejudice to the petitioner. Jd. at 1163-64. An

agency’s failure to respond to comments will not support

reversal unless it reveals that the agency’s decision was

not based on consideration of the relevant factors. Am.

Mining Cong. v. EPA, 965 F.2d 759, 771 (9th Cir.1992).

The FAA adequately responded to the comments it

received regarding SFAR 71. The FAA was required to

respond only to “significant” comments, a category limited

to those which “raise relevant points, and which, if

adopted, would require a change in the agency’s proposed

rule.” Jd. Both parties agree that the most “contentious”

aspect of SFAR 71 is the 1,500-foot minimum altitude

requirement. The FAA summarized the numerous safety

concerns which were raised regarding this requirement,

and explained in response that it believed that the re-

quirement would improve safety by giving pilots more

time to react to emergency situations. It is reasonable to

believe that pilots of higher flying aircraft will have more

time to locate a suitable landing site in an emergency, and

will be better able to prepare and instruct passengers.

Thus, the FAA both acknowledged the comments identified

by Safari and provided a reasoned response which demon-

strated that its action was based on relevant safety con-

siderations.

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We also reject Safari’s objections to the FAA’s practice

of granting case-by-case deviations to avoid clustering of

aircraft at the 1,500 foot level. The deviations are inter-

pretive rules which apply the “exceptions” provision of

Section 6 of SFAR 71. We review de novo whether an

agency's action results in an interpretation or a new rule.

Gunderson v. Hood, 268 F.3d 1149, 1154 (9th Cir.2001).

Interpretive rules are not subject to APA notice or com-

ment provisions because they clarify or explain existing

law or regulations in order to advise the public of the

agency’s construction of the rules it administers. Id. By

granting the deviations, the FAA has provided “the major-

ity of Hawaii air tour operators” with specific interpreta-

tions of how SFAR 71’s minimum altitude requirement

applies to them in light of their individual safety qualifica-

tions and differences in local terrain and prevailing

conditions. This is another rational reason the FAA has

provided to explain why the safety related criticisms of

SFAR 71 have been mitigated since the rule’s enactment.’

Safari also argues that the FAA ignored the comments

it made in response to the rulemaking. Safari contends

that the FAA failed to include its comments regarding the

August 23, 2001, NPRM in the administrative record, and

that it failed to issue a response. By making these omissions,

* The FAA cites agency documents which detail the criteria for granting

deviations under SFAR 71. See Air Transportation Operation Inspector's

Handbook, Section 8400.10, Vol. 1, Chap. 4, § 4, “Exemptions, Deviations,

Waivers and Authorizations,” (available at http///www.faa.gov/avr/afs/faa/

8400/8400_vol1/1_004_04.pdf); Section 8400.10, Vol. 3, Chap. 1, §4,

Part B, Op Spec B048, “Operations in the Vicinity of the Hawaiian

Islands,” (available at http://www.opspecs.com/OpssDraftParaTalks/ Final/

01-b48.doc).

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Safari asserts that the FAA denied its constitutional,

statutory, and regulatory right to participate in the rule-

making.

The FAA admits that it “overlooked” Safari’s comment

on the final rule, as well as the comments submitted by

three other groups.‘ These four comments were not exam-

ined by the FAA until after the final rule went into effect.

The FAA argues, however, that its failure to consider the

comments before promulgating the final rule does not

support reversal because none of the four comments raised

new issues. SFAR 71 had already been extended twice, the

FAA contends, and had remained unchanged since its

initial enactment in 1994. The FAA was not required to

reiterate its prior responses to issues which were ade-

quately addressed during previous rulemaking proceed-

ings.

We hold that the FAA’s failure to examine Safari’s

comments before promulgating the final rule is harmless

under these circumstances. The main thrust of Safari’s

comments on the final rule concerned safety aspects of the

1,500-foot minimum flight altitude requirement, an issue

that had been extensively commented on and discussed in

previous rulemaking proceedings. Most of Safari’s points

were also made by Blue Hawaiian Helicopters, an entity

* The other “lost” comments were from two organizations with

concerns about flights [sic] paths over sensitive areas, and a govern-

ment organization’s favorable comments regarding the final rule. The

environmental concerns raised by the two organizations were substan-

tially addressed in the FAA’s promulgation of the interim rule, and the

FAA's failure to address them before promulgating the final rule is not

at issue in this proceeding.

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whose comments were specifically referenced by the FAA

in the final rule. Blue Hawaiian argued, just as Safari did,

that recent air tour accidents had been caused by SFAR

71.

The FAA declined to address the cause of these acci-

dents because the NTSB reports were not yet available,

but reiterated that the overall accident rate during the

period before enactment of SFAR 71 justified the safety

measures contained therein. 65 Fed.Reg. 58,610, 58,611.

The FAA also pointed to its practice of granting deviations

to the majority of air tour operators as evidence that it

mitigated the negative effects of the minimum altitude

requirement. Finally, the sharp drop in the accident rate

since the enactment of SFAR 71 persuasively suggests

that it has helped to increase overall air tour safety. 62

Fed.Reg. 58,854, 58,856-58,857. In light of these facts, the

FAA's response to comments regarding the cause of recent

air tour accidents was adequate.

Safari claims that the FAA engaged in “improper ex

parte contacts” during the rulemaking proceedings and

requests that we direct supplementation of the adminis-

trative record as a remedy. Safari fails to cite any evidence

of improper communications between the FAA and Ha-

waii’s congressional delegation, or with any other officials.

We reject this unsubstantiated claim.

Finally, Safari identifies two minor procedural defi-

ciencies regarding the extension of SFAR 71 as an interim

rule in 1997 as grounds for reversal of the FAA’s actions.

Because the interim rule has since expired, these proce-

dural issues are moot.

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B. The Basis for SFAR 71

Safari argues that SFAR 71 is itself arbitrary and

capricious because it imposes requirements on Hawaii's

air tour industry not applicable to pilots in any of the 49

other states. Safari argues that Hawaii’s topography alone

cannot justify SFAR 71, and suggests the rule was moti-

vated by complaints about noise raised by some residents

who objected to overflights of their land.

We reject Safari’s bald assertion that in extending

SFAR 71, the FAA “secretly attempted to establish a one-

state noise rule in the guise of a safety rule.” The FAA's

rulemaking in this case is a rational response to the

escalation of air tour accidents (and attendant fatalities)

just prior to its promulgation, and the request by the

NTSB for increased FAA safety regulation of Hawaii air

tour operators. Extension of SFAR 71 as both an interim

and final rule is also justified by the decrease in the air

tour accident rate subsequent to the initial promulgation

of SFAR 71. We hold that the rule is neither arbitrary nor

capricious.

III. Conclusion

The FAA did not arbitrarily and capriciously deny

Safari the opportunity to participate in a meaningful

rulemaking proceeding when it twice extended SFAR 71.

The FAA solicited and later discussed comments it re-

ceived from interested parties, and fairly addressed the

relevant criticisms of the rule. Safari’s claims regarding

the FAA’s failure to address some of its comments and its

assertions regarding minor procedural defects in the

rulemaking process are rejected because Safari failed to

demonstrate any prejudice. Finally, the FAA had a rational

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basis for promulgating SFAR 71, and the rule is not

arbitrary or capricious.

The petition in No. 98-70013 is DISMISSED. The

petition in No. 00-71520 is DENIED.

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APPENDIX B

51 F.3d 212

United States Court of Appeals,

Ninth Circuit.

HAWAII HELICOPTER OPERATORS

ASSOCIATION, Petitioner,

FEDERAL AVIATION ADMINISTRATION ;

Respondent.

No. 94-70703.

Argued and Submitted Jan. 10, 1995.

Decided March 29, 1995.

Patricia Barlow, Carole Morrell, Elliott Myles, Law

Offices of Patricia Barlow, San Francisco, CA, for petitioner.

Timothy P. Melcher, FA.A., Washington, DC, for

respondent.

Petition for Review of a Federal Aviation Administra-

tive Order.

Before: GOODWIN and SCHROEDER, Circuit Judges,

and TASHIMA, District Judge.

SCHROEDER, Circuit Judge:

The Hawaii Helicopter Operators Association

(“HHOA”) petitions, pursuant to 49 U.S.C. § 46110(a), for

review of the Federal Aviation Administration’s issuance of

* Honorable A. Wallace Tashima, United States District Judge for

the Central District of California, sitting by designation.

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Special Federal Aviation Regulation (“SFAR”) No. 71

establishing special operating rules, procedures and

limitations for airplane and helicopter air tour operators

in Hawaii. The regulation was promulgated on an emer-

gency basis pursuant to the exception contained in 5

U.S.C. § 553, which exempts an agency from complying

with the notice and comment requirements of the Admin-

istrative Procedure Act (“APA”) where good cause exists.

HHOA’s principal grievance is with SFAR No. 71’s prohibi-

tion against air tour aircraft flying below a minimum

altitude of 1,500 feet. HHOA also objects to the require-

ments that helicopters be amphibious and equipped with

emergency flotation gear, or that each person on board

wear approved flotation gear.

The FAA promulgated SFAR No. 71 after a series of

seven helicopter accidents involving four fatalities, which

occurred in the first nine months of 1994. The regulation

was promulgated September 26, 1994. It became effective

on October 26, 1994.

HHOA initially contends that the FAA improperly

invoked 5 U.S.C. § 553(b)(B), the good cause exception to

the notice and comment requirements of the APA’s rule-

making provision. The APA provides that notice and

comment may be waived by an agency when it “for good

cause finds (and incorporates the finding and a brief

statement of reasons therefor in the rules issued) that

notice and public procedure thereon are impracticable,

unnecessary, or contrary to the public interest.” 5 U.S.C.

§ 553(b)(B).

This court has said that our “inquiry into whether the

Secretary properly invoked ‘good cause’ proceeds case-

by-case, sensitive to the totality of the factors at play.”

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Alcaraz v. Block, 746 F.2d 593, 612 (9th Cir.1984). We have

observed that notice and comment procedures should be

waived only when “delay would do real harm.” Busch-

mann v. Schweiker, 676 F.2d 352, 357 (9th Cir.1982)

(quoting U.S. Steel Corp. v. EPA, 595 F.2d 207, 214 (5th

Cir.1979)), reh’g granted, 598 F.2d 915 (1979); see also

Washington State Farm Bureau v. Marshall, 625 F.2d 296,

306-07 (9th Cir.1980).

In this case the FAA based its invocation of the “good

cause” exception on Hawaii's “recent escalation of fatal air

tour accidents.” The FAA further explained that the

problem was urgent:

Despite voluntary measures, the cooperation of

the Hawaii air tour operators, and the FAA's in-

spections, the accident data show that voluntary

measures and existing regulations are insuffi-

cient to ensure safe air tour operations in Ha-

waii. The recent accidents ... indicate an urgent

safety problem that cannot be adequately ad-

dressed solely by enforcement of existing regula-

tions.

Air Tour Operators in the State of Hawaii, 59

Fed.Reg. 49138, 49145 (Sept. 26, 1994) (to be codified at 14

C.F.R. §§ 91 and 135). The FAA listed specific facts sup-

porting its reasons for issuing SFAR No. 71. These facts

included: (1) there had been 20 air tour accidents between

1991 and 1994, including 24 fatalities; (2) among the 20

accidents, seven had occurred in 1994; (3) the most recent

fatal accident had occurred on July 14, 1994; (4) the most

recent non-fatal accident had occurred on September 4,

B-4

1994, only three weeks before SFAR No. 71 was promul-

gated.’

We perceive no indication in this record that the FAA

waived notice and comment for any reasons other than its

concern about the threat to public safety reflected in an

increasing number of helicopter accidents. The FAA

adequately explained the basis for taking emergency

action without waiting for public participation. Compare

San Diego Air Sports Center, Inc. v. FAA, 887 F.2d 966, 970

(9th Cir.1989) (FAA did not comply with provisions of § 553

when it issued letter disallowing parachuting without any

explanation of why it felt emergency action was needed

and where only known accident had occurred two years

earlier. ).

HHOA also contends that SFAR No. 71 is arbitrary

and capricious. See 5 U.S.C. § 706(2)(A). A decision is

arbitrary and capricious within the meaning of the APA

when the agency

has relied on factors which Congress has not in-

tended it to consider, entirely failed to consider

an important aspect of the problem, offered an

explanation for its decision that runs counter to

the evidence before the agency, or is so implausi-

ble that it could not be ascribed to a difference in

view or the product of agency expertise.

‘ In the FAA's letter to HHOA denying HHOA's petition for stay of

SFAR No. 71, the FAA noted that another non-fatal accident occurred

on October 24, 1994, two days before SFAR No. 71 was to become

effective.

B-5

Beno v. Shalala, 30 F.3d 1057, 1073 (9th Cir. 1994)

(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 44, 103 S.Ct. 2856, 2867, 77

L.Ed.2d 443 (1983)). The reviewing court “may not substi-

tute its judgment for the agency’s; rather, it is limited to

an inquiry whether the agency's decision was based on a

consideration of relevant factors and whether there was a

clear error of judgment.” Marshall, 625 F.2d at 302. An

agency’s factual findings must be upheld “if those findings

are supported by substantial evidence on the record as a

whole.” Arkansas v. Oklahoma, 503 U.S. 91, 113, 112 S.Ct.

1046, 1060, 117 L.Ed.2d 239 (1992).

HHOA’s principal objection is to the 1,500 foot mini-

mum flying altitude requirement. The FAA summarized

its rationale as follows:

Hawaii’s unique topography often complicates

access to suitable emergency landing areas. The

air tour accidents in Hawaii have been character-

ized by insufficient time for pilots to locate suit-

able landing areas after engine power loss or

other problems leading to accidents. The re-

quirement to maintain an altitude of 1,500 feet

above the surface is necessary for safety because

it allows the pilot sufficient time to react in an

emergency, to notify and instruct passengers, and

to prepare for a forced landing. An aircraft oper-

ating at least 1,500 feet above the surface allows

the pilot a greater opportunity to select a suit-

able landing site than would be the case at lower

altitudes.

Air Tour Operators in the State of Hawaii, 59

Fed.Reg. 49138, 49143. On the basis of the record before

this court, the regulation bears a rational relationship to

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legitimate FAA safety concerns and is neither arbitrary

nor capricious.

HHOA also objects to the SFAR 71’s flotation re-

quirements, contending that no rational basis supports

singling out helicopters flown in Hawaii for such regula-

tion. The regulation itself adequately explains that flota-

tion requirements were imposed after a study of recent

helicopter accidents in Hawaii showed that crash victims

of accidents where flotation equipment was available were

much less likely to drown than victims of helicopter

accidents where no such equipment was available. Air

Tour Operators in the State of Hawaii, 59 Fed.Reg. 49138,

49142. We conclude that a reasonable basis supported the

flotation requirement.

HHOA also contends that due process requires the

FAA to provide some notice and comment before promul-

gating the regulation. Where the requirements of § 553

have been satisfied, however, the Constitution imposes no

higher procedural requirements. Cf. Vermont Yankee

Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524, 98 S.Ct.

1197, 1202, 55 L.Ed.2d 460 (1978) (“[Section 553 estab-

lishes] the maximum procedural requirements which

Congress was willing to have the courts impose upon

agencies in conducting rulemaking procedures.” ).

| Moreover, the FAA has not barred all input from

interested parties such as HHOA. Under SFAR No. 71,

interested persons are invited to submit such

comments as they desire regarding this

SFAR. ... All communications received on or be-

fore the close of the comment period will be con-

sidered by the Administrator, and this SFAR may

be changed in light of the comments received. All

B-7

comments will be available, both before and after

the closing dates for comments, in the Rules

Docket for examination by interested parties.

Air Tour Operators in the State of Hawaii, 59

Fed.Reg. 49138, 49145.

In this manner, the FAA left the record open for a

comment period that has recently expired. The FAA has

indicated that it may modify SFAR No. 71 in response to

comments. The record reflects that a number of comments,

including comments from the National Transportation

Safety Board, have directed criticism at SFAR No. 71.

These comments may well merit response by the FAA.

When the FAA does respond to the comments, its

action, including any modifications of the regulation, will

constitute final agency action reviewable by this court.

See, e.g., 14 C.F.R. §§ 11.61-11.69.

This panel will retain jurisdiction of any further

petitions for review of SFAR No. 71 or any successor

regulation emerging from the comment period. See, e.g.,

Klein v. Sullivan, 978 F.2d 520, 521 (9th Cir.1992).

REVIEW DENIED.

C-1

APPENDIX C

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAFARI AVIATION INC.,

dba Safari Helicopter Tours,

Petitioner,

Vv.

JANE F. GARVEY,

Administrator, FEDERAL

AVIATION ADMINISTRATION,

Respondents.

SAFARI AVIATION INC.,

dba Safari Helicopter Tours,

Petitioner,

FEDERAL AVIATION

ADMINISTRATION,

Respondent.

No. 98-70013

FAA No. 27919

ORDER

No. 00-71520

FAA No. 27929

(Filed Nov. 5, 2002)

Before: WALLACE, TASHIMA and TALLMAN, Circuit

Judges.

The panel has voted to deny

the petition for panel

rehearing. Judges Tashima and Tallman have voted to

C-2

deny the petition for rehearing en banc and Judge Wallace

has so recommended.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for

rehearing en banc are denied.

D-1

APPENDIX D

The Amendment

In consideration of the foregoing, the Federal Aviation

Administration amends parts 91 and 135 of the Federal

Aviation Regulations (14 CFR parts 91 and 135) as fol-

lows:

PART 91 — GENERAL OPERATING AND FLIGHT RULES

1. The authority citation for part 91 continues to

read as follows:

Authority: 49 U.S.C. app. 1301(7), 1303, 1344, 1348,

1352 through 1355, 1401, 1421 through 1431, 1471, 1472,

1502, 1510, 1522, and 2121 through 2125; Articles 12, 29,

31, and 32(a) of the Convention on International Civil

Aviation (61 stat. 1180); 42 U.S.C. 4321 et seq.; E.O.

11514, 35 FR 4247, 3 CFR, 1966-1970 Comp., p. 902; 49

U.S.C. 106(g).

PART 135 — AIR TAXI OPERATORS AND COMMERCIAL

OPERATORS

2. The authority citation for part 135 continues to

read as follows:

Authority: 49 U.S.C. app. 1354(a), 1355(a), 1421

through 1431, and 1502; 49 U.S.C. 106(g).

3. In parts 91 and 135, Special Federal Aviation

Regulation No. 71, the text of which will appear at the

beginning of part 91, is added to read as follows:

D-2

SFAR No. 71 — Special Operating Rules for Air Tour

Operators in the State of Hawaii

Section 1. Applicability. This Special Federal Avia-

tion Regulation prescribes operating rules for airplane and

helicopter visual flight rules air tour flights conducted in

the State of Hawaii under parts 91 and 135 of the Federal

Aviation Regulations. This rule does not apply to flights

conducted in gliders or hot air balloons.

Section 2. Definitions. For the purposes of this

SFAR:

“Air tour” means any sightseeing flight conducted

under visual flight rules in an airplane or helicopter for

compensation or hire.

“Air tour operator” means any person who conducts an

air tour.

Section 3. Helicopter flotation equipment. No person

may conduct an air tour in Hawaii in a single-engine

helicopter beyond the shore of any island, regardless of

whether the helicopter is within gliding distance of the

shore, unless:

(a) The helicopter is amphibious or is equipped with

floats adequate to accomplish a safe emergency ditching

and approved flotation gear is easily accessible for each

occupant; or

(b) Each person on board the helicopter is wearing

approved flotation gear.

Section 4. Helicopter performance plan. Each opera-

tor must complete a performance plan before each helicop-

ter air tour flight. The performance plan must be based on

the information in the Rotorcraft Flight Manual (RFM),

D-3

considering the maximum density altitude for which the

operation is planned for the flight to determine the follow-

ing:

(a) Maximum gross weight and center of gravity

(CG) limitations for hovering in ground effect;

(b) Maximum gross weight and CG limitations for

hovering out of ground effect; and,

temperature for which height-velocity information in the

RF. is valid.

The pilot in command (PIC) must comply with the

performance plan.

Section 5. Helicopter operating limitations. Except

for approach to and transition from a hover, the PIC shall

operate the helicopter at a combination of height and

forward speed (including hover) that would permit a safe

landing in event of engine power loss, in accordance with

the height-speed envelope for that helicopter under cur-

rent weight and aircraft altitude.

Section 6. Minimum flight altitudes. Except when

necessary for takeoff and landing, or operating in compli-

ance with an air traffic control clearance, or as otherwise

authorized by the Administrator, no person may conduct

an air tour in Hawaii:

(a) Below an altitude of 1,500 feet above the surface

over all areas of the State of Hawaii, and,

(b) Closer than 1,500 feet to any person or property;

or,

D-4

or regulation.

Section 7. Passenger briefing. Before takeoff, each

PIC of an air tour flight of Hawaii with a flight segment

beyond the ocean shore of any island shall ensure that

each passenger has been briefed on the following, in

addition to requirements set forth in Sec. 91.107 or

135.117:

(a) Water ditching procedures;

(b) Use of required flotation equipment; and

water landing.

Section 8. Termination date. This Special Federal

Aviation Regulation expires on October 26, 1997.

Issued in Washington, DC, on September 22, 1994.

David R. Hinson,

Administrator.

[FR Doc. 94-23840 Filed 9-22-94; 11:42 am]

BILLING CODE 4910-13-M

E-1

APPENDIX E

DRAFT 6-6-94

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR parts 91 and 135

[Docket No. XXXXX; Amendment Numbers 91-XXX,

135-XXX, RIN:

Airtour Sightseeing Special Regulation - Hawaii

AGENCIES: Federal Aviation Administration

ACTION: Notice of Proposed Rulemaking (NPRM)

SUMMARY:

This notice proposes a Special Federal Aviation Regu-

lation (SFAR) for Hawaii that will nullify the exception

found in section 135.1(b)(2) regarding sightseeing flights

that begin and end at the same airport, and are conducted

within a 25-statute-mile radius of that airport. The SFAR

would require all commercial air tour/sightseeing opera-

tors to operate under Part 135 at all times with special

operating procedures designed to enhance safety and noise

abatement. The Proposed rule defines commercial air tour

sightseeing operations and sets operating conditions and

limitations including weather requirements for conducting

commercial airtour sightseeing flights. The terms “air tour

operations and sightseeing” are defined by the rule. The

FAA believes this will ensure greater safety in airtour

operations when everyone who conducts air tour/sight-

seeing operations is meeting the requirements of Part 135

including necessary record keeping for FAA audits to

determine aircraft airworthiness, flight following, crew

training, pilot checking and flight and rest.

E-2

EFFECTIVE DATE: June X, 1994. Comments on this

ANPRM must be received on or before [Insert date 30 days

after date of publication in the Federal Register].

ADDRESSES: Comments on this notice should be

mailed, in triplicate, to: Federal Aviation Administration,

Office of Chief Counsel, Attention: Rules Docket (AGC-

200), Docket No.__, 800 Independence Avenue, SW.,

Washington, DC 20591. Comments delivered must be

marked Docket No. __. Comments may be examined in

Room 915G weekdays between 8:30 a.m. and 5 p.m.,

except on Federal holidays.

FOR FURTHER INFORMATION CONTACT: XXXXX

XXXXXXXKXXXXKXKKX, Federal Aviation Administration,

800 Independence Avenue, SW., Washington, DC 20591,

telephone (202) 267-XXXX.

SUPPLEMENTARY INFORMATION:

Comments Invited Interested persons are invited to

participate in this proposed rulemaking by submitting

such written data, views, or arguments as they may

desire. Comments relating to the environmental, energy,

federalism, or economic impact that might result from

adopting the proposals in this notice are also invited.

Substantive comments should be accompanied by cost

estimates. Comments should identify the regulatory

docket number and should be submitted in triplicate to the

Rules Docket address specified above. All comments

received on or before the specified closing date for com-

ments will be considered by the Administrator before

taking action on this proposed rulemaking. The proposals

contained in this notice may be changed in light of com-

ments received. All comments received will be available,

both before and after the closing date for comments, in the

E-3

Rules Docket for examination by interested persons. A

report summarizing each substantive public contact with

FAA personnel ¢oncerned with this rulemaking will be

filed in the docket. Commenters wishing the FAA to

acknowledge receipt of their comments submitted in

response to this notice must include a pre-addressed,

stamped postcard on which the following statement is

made: “Comments to Docket No. __.” The postcard will be

date stamped and mailed to the commenter.

Availability of NPRM

Any person may obtain a copy of this NPRM by

submitting a request to the Federal Aviation Administra-

tion, Office of Public Affairs, Attention: Public Inquiry

Center, APA-200, 800 Independence Avenue, SW., Wash-

ington, DC 20591, or by calling (202) 267-3485.

Communications must identify the notice number of this

NPRM. Persons interested in being placed on the mailing

list for future NPRM’s should request from the above office

a copy of Advisory Circular No. 11-2A, Notice of Proposed

Rulemaking Distribution System, which describes the

application procedure.

BACKGROUND:

The Hawaiian Air Tour sightseeing industry has experi-

enced rapid growth and an associated increase in the

number of sightseeing accidents during the past ten years.

According to a recent NTSB summary, there have been 23

fatalities since January, 1989. Most accidents have been

small helicopters (19) and are attributed primarily to pilot

error and aircraft maintenance, however, a contributing

factor in some of the helicopter accidents is pilots operat-

ing outside of the demonstrated performance capabilities

of the aircraft.

E-4

The situation is aggravated with operations conducted by

non-certificated Part 91 operators who have little or no

FAA oversight of aircraft maintenance, pilot training and

pilot flight testing and who may not meet financial re-

sponsibilities required of Part 135 operators. Presently,

Part 135 operators can chose [sic] to operate under Part 91

taking advantage of lower weather conditions and/or fly at

lower altitudes and possibly avoiding pilot flight time

limitations encountered in Part 135 flying.

There are approximately 36 Part 135 operators with

roughly 90 helicopters and about ten airplanes dedicated

to air tour/sightseeing in Hawaii. There are normally

fewer than approximately ten non-certificated operators

conducting commercial sightseeing flights under Part 91.

The helicopters conduct low altitude hovering near scenic

attractions where there is generally limited suitable

terrain for recovery in event of engine power loss. Flights

conducted in the Volcanoes National Park on the big

island are subject to harsh operating environments with

high operating temperatures when flying low over hot

molten volcanic lava vents and skylights with hot sulfuric

gases emitting with venting steam. Single engine helicop-

ters are also taking passengers beyond gliding distance

from the shoreline to view the hot lava falling into the

ocean.

The FAA has received numerous complaints on overflight

operations in Hawaiian cities and residential communi-

ties, National and State parks, wildlife refuge areas, state

natural area reserves, sanctuaries and areas of significant

historic value. The vast majority of scenic flights in Hawaii

are conducted in small helicopters. Most complaints concern-

ing aircraft safety and noise originate from helicopter over-

flights. During the past ten years 19 sightseeing accidents

E-5

have occurred in Hawaii — 15 since January, 1989; 5 this

year since February 12, 1994. The latest accident involv-

ing a fatality occurred on April 18, 1994. Last year on

January 25, 1993, a helicopter operating under Part 91

crashed in deep water while on an [sic] sightseeing flight

to view molten lava flowing into the ocean off the coast of

Volcanoes National Park on the island of Hawaii, the pilot

survived, four foreign passengers were lost. The National

Transportation Safety Board issued Safety Recommenda-

tion A-93-10 to the FAA calling for special operating rules

to reduce the potential for midair collisions and other

accidents commensurate with weather and terrain consid-

erations.

On April 5, 1993 the 103rd Congress, first session, ac-

cepted a proposal, H.R. 1696 drafted by Hawaiian Repre-

sentative, Patsy Mink to provide for the regulation of

airspace over national park system lands in Hawaii by the

Federal Aviation Administration and the national Park

Service, and for other purposes. H.R. 1696 calls for all

flights to be conducted under Part 135 and would impose

other stringent operating limitations. In May of last year

Mrs. Mink conducted a meeting in Hawaii to provide

citizens an opportunity to comment on problems related to

H.R. 1696 in their own communities; there was over-

whelming community support for the bill.

The goals of the FAA In Hawaii are to maintain public

safety in aviation operations; protect wildlife sanctuaries

and the natural environment that supports it from any

adverse effects of aircraft operations; and reduce objec-

tionable noise experienced by the community. The FAA

has taken several steps to address the challenges faced in

Hawaii. The FAA conducted a study of helicopter sightsee-

ing operations in Hawaii in 1986. Recommendations were

E-6

made to the state and to operators in Hawaii to improve

safety and community relations as a result of that study.

The FAA also conducted a joint study with the state in

1986, on helicopter heliport and airport access. A result of

that study was a Helicopter operating plan for Hawaii.

The Hawaiian Helicopter Operators Association (HHOA)

followed some of the~Helicopter Operating Plan sugges-

tions in developing their fly neighborly program in Hawaii.

The existing HHOA plan calls for voluntary compliance

with standoff distances and minimum altitude over

communities, sanctions are self imposed without FAA

oversight. The HHOA program includes Part 91 commer-

cial operators as well as Part 135 certificated operators.

The FAA held a series of public hearings in January,

1994, to elicit public comments and recommendations for

regulatory or policy action related to overflights, including

their effects on parks. There are 9 tour operators on the

island of Hawaii and there are approximately 60 commer-

cial air tours a day over the Hawaii Volcanoes National

Park. At Haleakala, which was established to preserve

resources in “natural condition,” (39 Stat. 432, 4), there

are 7 companies based on the island of Maui offering

helicopter tours as well as other companies based on the

other islands. On clear days, helicopters fly over the park

during all hours of daylight so that helicopter noise is

audible over 30 minutes of every daylight hour (personal

communication, Haleakala NP). Both parks receive com-

plaints from visitors, usually verbal, about the noise and

intrusiveness of commercial air sightseeing tours. Inter-

pretive talks, wildlife observations and censuses, ceremo-

nies, and other normal activities are interrupted by air

tour overflights. NPS recognizes that the commercial air

tour industry is important to the economy of Hawaii but

E-7

also believes that it is charged with protecting the superla-

tive resources of its national parks, including natural

quiet, unimpaired.

Hawaii — Actions to Date

The majority of flights conducted by helicopter com-

panies in Hawaii are commercial air tour/sightseeing

operations. The FAA has received numerous complaints of

flights over residential communities, national parks,

wildlife refuge areas, state natural reserve areas, sanctu-

aries and areas of significant historic/cultural value.

Issues raised by the growth of air tour/sightseeing activity

and the associated increase in the number of flights -

conducted over a given area include aircraft noise, flight

safety, and airport site constraints near scenic areas.

Some complaints about sightseeing helicopter activity may

be related to other aviation operations such as military,

police, drug interdiction or other government agency

activity.

The FAA has taken several steps to address the

overflight issues in Hawaii. In 1986 the FAA conducted a

study of helicopter sightseeing operations in Hawaii. As a

result of that study recommendations were made to the

State and to operators in Hawaii to improve safety and

community relations. Also in 1986 the FAA conducted a

joint study with the State on heliport and airport access. A

result of that study was a helicopter operating plan for

Hawaii. Numerous meetings have since been held with

NPS personnel, industry, and the community including

four public meetings conducted in January 1994.

The current Part 135 rule is difficult to enforce since there

is no requirement for the Part 135 operator operating

E-8

under Part 91 or a Part 91 operator to produce appropriate

records or other proof that it was operating within Part 91

rules. Operations under the current rule have no record

keeping or flight and duty requirements. Commercial

operators, holding themselves out to the public for com-

pensation or hire, have the same obligation as an air

carrier in fulfilling their responsibility to perform services

with the highest degree of safety in the public interest,

however the provisions of the Federal Aviation Regula-

tions necessary to enforce that obligation are deficient.

Delete the exception found in § 135.1(b)(2), concerning

sightseeing flights that begin and end at the same airport,

and are conducted within a 25 statute mile radius of that

airport. The amendment would require sightseeing opera-

tors to operate under Part 135, rather than Part 91 in

accordance with current FAR provisions. The FAA believes

that this rulemaking is necessary to ensure that anyone

who conducts sightseeing operations in an aircraft is

meeting the necessary recordkeeping for FAA audits to

determine aircraft airworthiness, crew training, checking

and flight and duty time compliance and the operations

specifications required by Part 135 would provide a higher

level of safety than is now being provided. In addition the

FAA has determined that it should revise the current

§ 135.1(b)(5) to include an exception for gliders as well as

balloons. This is necessary to prevent bringing aircraft

under Part 135 that are unsuitable for operations under

that part.

HAWAII AIRTOUR/SIGHTSEEING OPERATIONS

ISSUE: The Hawaiian Air Tour sightseeing industry has

experienced rapid growth during the past ten years. With

E-9

that rapid growth in air tourism there has been an in-

creasing number of aircraft accidents. The accidents are

attributed primarily to pilot error, however, a contributing

factor in most of the helicopter accidents is operating

outside of the demonstrated performance envelope of the

aircraft. The accident rate may be exacerbated by insuffi-

cient pilot training and checking in skills and knowledge

associated with operating at maximum performance in

harsh environments. The situation is aggravated when

operations are conducted by non-certificated Part 91

operators who have little or no FAA oversight of aircraft

maintenance, pilot training and pilot flight testing. The

situation is also aggravated when Part 135 operators

chose to operate under Part 91to take advantage of lower -

weather conditions and/or fly at lower altitudes and

possibly to avoid pilot flight time limitations encountered

in Part 135 flying. The noise from numerous overflying

helicopters is also seriously aggravating local communi-

ties.

BACKGROUND: There are approximately 36 Part 135

operators with roughly 90 helicopters dedicated to air

tour/sightseeing. There are also a number of air taxi Part

135 operators conducting mostly airplane sightseeing

operations. In addition there are a few other operators

using helicopters and/or airplanes conduct sightseeing

activities over Hawaii under the general operating rules of

FAR Part 91. There are times when certificate holding

Part 135 operators conduct sightseeing flights under Part

91. In addition, there are commercial airline operations,

military operations, law enforcement agencies and agricul-

tural operations as well as flight training organizations,

helicopter lift companies, and a host of private owners and

E-10

operators. These activities affect a diverse and complex

airspace systems [sic].

The FAA has received numerous complaints on overflight

operations in Hawaiian cities and residential communi-

ties, National and State parks, wildlife refuge areas, state

natural area reserves, sanctuaries and areas of significant

historic value. The vast majority of scenic flights in Ha-

waii are conducted in small helicopters. Most complaints

concern aircraft noise and endangerment and originate

from helicopter overflights.

During the past ten years numerous sightseeing accidents

have occurred, five have occurred since (2/12/94) the latest

(4/18/94) involved a fatality. On January 25, 1993, a

helicopter operating under Part 91 crashed in deep water

off the coast of Volcanoes National Park on the island of

Hawaii, the pilot survived, four foreign national passen-

gers were lost.

On April 5, 1993 the 103rd Congress, first session, ac-

cepted a proposal, H.R. 1696 drafted by Hawaiian repre-

sentative, Patsy Mink to provide for the regulation of

airspace over National Park System lands in the State of

Hawaii by the Federal Aviation Administration and the

national Park Service, and for other purposes. In May of

last year Mrs. Mink conducted a meeting in Hawaii to

provide citizens an opportunity to comment on problems

related to H.R. 1696 in their own communities.

The goal of the FAA In Hawaii is to maintain public safety

through safe operating practices for air tour operators;

protect wildlife and the natural habitat that supports it;

and reduce adverse noise experienced by the community.

The FAA has taken several steps to address the challenges

faced in Hawaii. In 1986 the FAA conducted a study of

E-11

helicopter sightseeing operations in Hawaii. As a result of

that study recommendations were made to the state and to

operators to [sic] in Hawaii to improve safety and commu-

nity relations. Also in 1986 the FAA conducted a joint

study with the state on helicopter heliport and airport

access. A result of that study was a Helicopter operating

plan for Hawaii.

Numerous meetings have been held with park service

personnel, industry, and the community including four

public meetings during January, 1994. Recently the FAA

drafted an FAA action plan for the management of the

airspace in the [sic] Hawaii. That plan includes steps to be

taken immediately including voluntary agreements, and |

dictates more stringent actions to follow if noise and

safety-related issues are not adequately abated. In March,

of 1994, the FAA and the National Park service jointly

issued an Advanced Notice of Proposed Rulemaking

(ANPRM) concerning overflights of units of the National

Park system (59 FR 12740). The ANPRM addresses

overflights of Grand Canyon National Park and the parks

in the state of Hawaii, with particular emphasis on over-

flights by commercial air tour operators.

GENERAL ISSUES:

The FAA believes that each of the following measures

' would have some benefit, in certain circumstances, as an

effort to mitigate the noise impact of aircraft overflights of

particularly noise-sensitive areas. The potential noise

mitigation value of each measure is summarized. For the

measures listed that have not been used by the agency

before, the FAA has not concluded that such actions would

meet the legal and policy considerations summarized

E-12

above, and specific comment is requested on the benefits,

costs, and impacts of each.

Prohibition of flights during inclement weather, i.e.,

at some cost in inconvenience and lost business for air tour

operators and reduced access to air tours for their passen-

gers, the public would enjoy a virtual absence of aircraft

noise in sensitive areas for specific periods.

Altitude restrictions.

Different altitudes are also specified for fixed-wing

aircraft and helicopters for safety and efficiency reasons.

Generally, noise mitigation is achieved through higher

minimum altitudes because the greater the slant-range

distance from an aircraft to a point on the surface, the

lower the sound level on the surface from aircraft noise.

However, this mitigation can be offset or reversed based

on attenuation factors such as hills, heavily wooded areas,

and “soft ground” terrain.

FAA Authorities: The FAA has broad authority and

responsibility to regulate the operation of aircraft, and to

establish safety standards for and regulate the certifica-

tion of airmen, aircraft, and air carriers. Federal Aviation

Act of 1958, as amended (FAAct), Section 307(a) and (c);

Title VI. The FAAct provides guidance to the Administra-

tor in carrying out this responsibility. Section 104 provides

to each citizen of the United States a public right of transit

through the navigable airspace of the United States.

Section 305 directs and authorizes the Administrator to

encourage and foster the development of civil aeronautics

and air commerce. Section 306 requires the Administrator,

in exercising his authority, to give full consideration to the

E-13

requirements of national defense, commercial and general

aviation, and to the public right of freedom of transit

through the navigable airspace.

The FAA’s authority is not limited to regulation for avia-

tion safety, efficiency, and development. Subsection 307(c)

of the FAAct provides that FAA air traffic rules and flight

regulations may be adopted “for the protection of persons

and property on the ground.” The FAA considers this

protection to extend to environmental values on the

surface as well as to the safety of persons and property.

Section 611 of the FAAct, “in order to afford present and

future relief to the public health and welfare from aircraft

noise,” directs the Administrator to adopt regulations “as _

the FAA may find necessary for the control and abatement

of aircraft noise,” including application of such regulations

to any of the various certificates issued under Title VI.

Finally, it is the general policy of the Federal Government

that the FAA, like other agencies, will exercise its author-

ity in a manner that will enhance the environment, and

that FAA will make a special effort to preserve the natural

beauty of public park and recreation lands, wilderness

areas, and wildlife refuges. Section 101 of the National

Environmental Policy Act of 1969, as amended, 42 U.S.C.

Section 4321; Section 4(f) of the Department of Transpor-

tation Act, 49 U.S.C. Section 303; and Executive Order

11514, as amended by Executive Order 11991.

REGULATION AFFECTED: Section 135.1(b)(2) of the

Federal Aviation Regulations (FAR) permits nonstop

sightseeing flights that begin and end at the same airport

and are conducted within a 25-statute-mile radius of that

airport to be conducted under FAR Part 91.

E-14

THE PROPOSED RULE

In consideration of the foregoing, the Federal Aviation

Administration proposes to A special Federal Aviation

Regulations as follows:

PART 135 - AIR TAXI OPERATORS AND COMMER-

CIAL OPERATORS

8. The authority citation for Part 135 continues to

read as follows:

Authority: 49 U.S.C. 1354(a), 1355(a), 1421-1431,

and 1502; 49 U.S.C. 106(g) (Revised Pub. L. 97-449,

January 12, 1983).

9. Section 135.1 is amended by adding a new para-

graph () to read as follows:

Request for Public Comment

The FAA is issuing this NPRM to gather comments on

operational and economic impact for use in developing

special Federal Aviation Rulemaking (SFAR).

a Wr adhe Nn at Pi nN ti

th Tine as no oh SMa enll OAD sat Nt Ve Aa,

ee ee

F-1

APPENDIX F

National Transportation Safety Board

Washington, D.C. 20594

OCT 27 1994

(LOGO)

Office of the Chairman

Federal Aviation Administration

Office of the Chief Counsel

Attention: Rules Docket (AGC-200), Docket No. 27919

800 Independence Ave., S.W.

Washington, D.C. 20591

Dear Sir:

The National Transportation Safety Board has re-

viewed the Special Federal Aviation Regulation (SFAR)

No. 71, “Air Tour Operators in the State of Hawaii,” Final

Rule, published in 59 FR 49138 on September 26, 1994.

The following comments pertain to the subject Docket No.

27919.

National Transportation Safety Board investigations

of air tour accidents since 1986 indicate that the existing

regulations do not provide an adequate level of safety for

air tour operations conducted within the United States.

The Safety Board has held two public hearings (1986 and

1994) and as a result made numerous safety recommenda-

tions to the FAA in an attempt to define and quantify the

national air tour industry and to examine air tour indus-

try safety performance as part of a traditional flight hours-

based incident/accident record. FAA actions to date have

produced two SFARs that affect the air tour industry.

F-2

SFAR 50-2, originally issued in 1988, dictates special

flight rules for all aircraft operating within airspace

designated as the Grand Canyon National Park Special

Flight Rules Area. Testimony by Grand Canyon air tour

operator associations at the most recent public hearing

conducted at Phoenix, Arizona, on October 11, 1994,

indicated that, although there was initial operator resis-

tance to the early FAA efforts to provide route structure

and altitude restrictions for VFR air traffic in the area of

the Grand Canyon National Park, the current special

operating rules have resulted in a more workable and

safer air operations environment in the Grand Canyon

airspace. This attitude appeared to prevail among the air

tour operators; in addition, SFAR 50-2 was reported to be

satisfactory to transit commercial operators and general

aviation airspace users. Public hearing witnesses testified

that the SFAR came into being as the result of 18 months

of participative discussions and negotiations between the

FAA and parties concerned with the use of the Grand

Canyon airspace.

The Safety Board is pleased to recognize the initiative

of the FAA to improve air tour safety with the issuance on

September 22, 1994, of SFAR No. 71, “Special Operating

Rules for Air Tour Operators in the State of Hawaii.”

Several of the provisions of SFAR 71 will provide an

immediate improved level of safety for the Hawaiian air

tour industry. However, the Safety Board must reiterate

that a permanent nationwide policy for air tour operations

is appropriate to define the industry, track its perform-

ance, and ensure equal treatment regardless of the points

of tourist interest or the location of the operator.

In particular, the Safety Board favorably notes that,

within the State of Hawaii, the FAA now defines an air

}

;

Sa i het a ae Me it ath atl NA A TN ese a Be OF th Aas Oem | GM

0 CUNO AT AAU EAT abl Minis ercnce arl cta FA te ete cey

ne (died ee

F-3

tour operator and provides specific flotation requirements

for single-engine helicopter air tour operations, and

specifies added requirements for air tour passenger

briefings.

During a public hearing on air tour safety conducted

in Honolulu, Hawaii, on October 13-14, 1994, the Safety

Board received testimony from three Hawaiian air tour

company spokespersons. All three operators related that,

in light of previous accidents, they considered it appropri-

ate that each person on board their company aircraft

should wear approved life preservers. The operators’

opinions were supported by helicopter manufacturers’

testimony based on historical experience, indicating that —

emergency water entry frequently results in difficult

egress from an overturned aircraft. They indicate that the

most beneficial item of survival equipment in this situa-

tion is an individual life preserver.

The operators and manufacturers expressed several

concerns about the capabilities of airframe-mounted

helicopter flotation systems to provide a reliable means of

passenger and crew survival. They pointed out that an

emergency water entry may easily exceed the certificated

vertical speed values of current systems and result in

failure of this equipment to fully perform as expected.

Therefore, the Safety Board believes that the SFAR 71

provision in Section 3, “Helicopter flotation,” should 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.

Public hearing testimony on the aspects of the SFAR

71 related to Section 5, “Helicopter operating limitations”

and Section 6, “Minimum flight altitudes” was profuse.

F-4

FAA witnesses indicated that the provisions were based on

a review of previous accident data and the FAA’s desire to

increase the possibility of a successful (noninjury) autoro-

tation or forced landing in the event of an inflight emer-

gency. The Safety Board believes that reasonable

measures to improve the successful termination of any

inflight emergency should be evaluated and adopted if

appropriate. However, operator comment on the stated

SFAR 71 provisions brought several complicating facts to

light.

During the public hearing, the Safety Board heard the

operators and manufacturers question whether helicopter

operating limitations should be placed solely on air tour

operators in Hawaii, while nontour operations in Hawaii

and operators in other Sates remain unregulated. The

Safety Board believes that the FAA should conduct further

discussions with the interested parties to resolve the issue

of helicopter height-velocity diagram performance and

provide for an equivalent level of safety.

The element of SFAR 71 that presents the Safety

Board with the most concern is Section 6, “Minimum flight

altitudes.” The Safety Board supports the premise of

operating at an altitude no lower than that which will

allow sufficient time for the pilot to select a suitable

landing site and prepare the aircraft and passengers for

an emergency landing. However, the Safety Board believes

that the SFAR 71 provision that, “no person may conduct

an air tour in Hawaii below an altitude of 1,500 feet above

the surface of the State of Hawaii or closer that 1,500 feet

to any person or property (or as authorized by the Admin-

istrator),” may present midair collision hazards or encoun-

ters with cloud layers that are more serious than the

hazards of flights at lower altitudes.

aside seed) semen? hi tean oe

ee ee ee Te Le eee Pere

enced

‘f

aba (ua serene eek indie ida Ae, mit ox

F-5

Public hearing testimony in Honolulu made it obvious

that the minimum height above terrain requirement of

1,500 feet will initially concentrate air tour traffic at that

flight altitude. Operators should be expected to negotiate

cooperative solutions to the concentration of air traffic, but

their efforts need to be facilitated by the FAA. Further-

more, weather patterns around the Hawaiian islands

should be a major factor in setting any minimum altitude

for air tour operations. The orographic effect of changing

windward and leeward air flow produces cloud formations

along tour routes that must be considered when defining

altitude requirements. The Safety Board believes that air

traffic concentration presents a matter that must be

resolved at the earliest possible time. Furthermore, based -

on the Safety Board’s observations of recent air tour

flights throughout the State or Hawaii, the Safety Board

believes that weather factors, in combination with the

proposed altitude restrictions, will present a serious

impediment to the successful completion of air tour flights

and may lead to increased operating time over water,

difficult regulatory surveillance and enforcement, and

could possibly lead to willful disregard for FAA flying

regulations.

The Safety Board believes that the air tour operators

in Hawaii are in a position to make significant contribu-

tions to the improvement of their industry similar to the

way in which SFAR 50-2 was developed for the Grand

Canyon. Safety Board public hearing testimony indicated

that Hawaiian operators recognize that safety can be

improved with modifications of flightpaths and minimum

flight altitudes. It was also clear from the public hearing

that the flying environment in the Grand Canyon is

dissimilar, in many ways, from operations in Hawaii. The

F-6

Safety Board believes that it is imperative that the FAA

conduct further discussions with the interested parties in

Hawaii to resolve the issue of optimum flight altitudes for

air tour operators and, at the same time, consider the

negative effects of such restrictions that may result in

unintended degradation of the existing level of safety.

The Safety Board is continuing its investigation of air A

tour operations in the United States, with emphasis on :

accidents in Hawaii, and appreciates the opportunity to 7

comment on this final rule. /

Sincerely, :

/s/ Jim Hall i

Jim Hall ef

Chairman él

RAD ew RA PSOE an Sr W Calcd tk a7 Sls OG MSA abe Lect

stab d 20 es ch bd aly ler Se

G-1

APPENDIX G

Honolulu Flight Standards

Office

Field Office

Western-Pacific Region

[LOGO]

U.S. Department Honolulu International Airport

of Transportation 135 Nakolo Place

Honolulu HI 96819-1845

Telephone: (808) 837-8300

FAX: (808) 837-8389

Federal Aviation

Administration

November 4, 1994

Safari Aviation, Inc.

P.O. Box 1941

Lihue, HI 96766

Gentlemen:

We have given careful consideration to your request for

deviation from specified sections of Special Federal Avia-

tion Regulation (SFAR) 71. We have determined that the

request for deviation dated October 23, 1994, if granted,

would not be in the public interest. Therefore, your re-

quest for deviation is denied in that it does not contain

sufficient information. The following information is pro-

vided for your reference in the event you wish to reapply.

Air tour operators in the state of Hawaii are required to

operate in accordance with the provisions of applicable

Federal Aviation Regulations which now includes the

additional provisions of SFAR 71 which became effective

October 26, 1994.

While operators are required to operate under the new

rule when conducting air tour operations in the State of

G-2

Hawaii, Operators may request deviations from certain

provisions of the SFAR pertaining to Section 6, Minimum

Flight Altitudes. Deviations of this section will be proc-

essed by the Honolulu Flight Standards District Office

(FSDO). Recommendations made as a result of the FSDO

review will be acted upon by the Air Carrier Division

(AFS-250) of the Flight Standards Service in Washington,

D.C.

This information is provided to operators conducting air

tours in the State of Hawaii for the purpose of clarification

of the operations requirements of the SFAR for which a

deviation may be requested and the form and manner in

which such a request must be presented to the Adminis-

trator.

The Administrator may authorize a deviation from the

minimum altitude requirement for operations conducted

during VFR air tour operations. Such deviations from the

required minimum altitude of 1500' AGL may be reduced

for operators to an operating altitude no lower than 500’

AGL if the operator can show a specific need for such an

operating altitude and can demonstrate that an equivalent

level of safety for operations to be conducted at those

altitudes, can be maintained.

In order to minimize the amount of time required to

process the operator’s deviation requests, the Honolulu

FSDO requests the operators to submit the following

information in its entirety as a package. This in turn will

eliminate the required telephone call-backs for clarifica-

tion of certain items or requests for additional informa-

tion.

Ese Ghee bitin oe Rea eee one ee eee oe paar tn iii cin aarti didi Sieg hietbaratce at,

G-3

An operator requesting a deviation from Section 6 of the

SFAR should keep the following in mind when preparing

the deviation request.

¢ No deviation will be granted for operations to be

conducted below 500' AGL.

No deviation will be authorized for the purpose of

reducing weather minimums. Conditions and limita-

tions will include weather minima equivalent to that

required for flight at 1500' AGL.

No deviation request will be granted for sections of the

SFAR other than for Section 6(a) and 6(b).

Deviation requests which include visibility minima —

shall not be approved for flights with visibility less

than 1'% miles. Cruise speeds will be operationally re-

duced by the use of Operations Specifications during

periods of reduced visibility operations.

All deviation requests must be operator specific. Any

request to be processed must include the following infor-

mation:

operator’s name and business address,

certificate number,

type of aircraft to be used during the deviation,

pilot authorizations required,

training program changes necessary to provide

adequate training in the operation during de-

viation from normal operating altitudes,

changes to the training program,

and proposed changes to the operations manual.

G-4

A deviation request must include the proposed route

segment or specific site at which the altitude deviation is

requested. The route segment or specific site must show or

describe:

the boundaries of the route,

altitudes to be flown,

emergency landing areas,

and verbal discussion of the attainment of an

equivalent level of safety.

Under no circumstances will deviations be authorized

which allow an operator to fly an entire tour at lower than

standard altitudes required by SFAR 71.

The operator’s request for deviation should include maps,

photos, or other descriptions of the route segment or site

for lower than standard altitudes requested. The docu-

mentation should be clearly marked and the verbal de-

scription should be concise and accurate.

Material and information provided by the operator will be

incorporated by reference in the operations specifications

issued to the operator and subject to amendment or

revision as appropriate.

Operators who utilize aircraft with small registration

markings should be prepared to affix large registration

numbers or other authorized markings on the belly of the

helicopter for easier identification from the ground. These

markings must be approved by the Administrator.

If you have any questions . ,-..ding this letter, please

contact your Principal Operations Inspector at (808) 837-

8300. If you wish to submit another request for deviation,

G-5

based on the information provided above, you may do so by

submitting two copies to your assigned Principal Opera-

tions Inspector.

Sincerely,

/s/ Peter E. Beckner

Peter E. Beckner

Manager

H-1

APPENDIX H

[LOGO]

U.S. Department Office ofthe 800 Independence

of Transportation Administrator Ave.,S.W.

Washington, D.C.

Federal Aviation 20591

Administration

Dec. 13, 1995

The Honorable Daniel K. Inouye

United States Senate

Washington, DC 20510-1102

Dear Senator Inouye:

Thank you for your letter and the letter from Mr. Scott

Shupe, Mauna Kea Helicopters, Inc., requesting the status

of the Federal Aviation Administration’s (FAA) efforts to

revise Special Federal Aviation Regulation (SFAR) 71. I

share your concern for the protection of Hawaii’s residents

and visitors. Before I address the safety and financial

information you provided, I will report on the status of the

rule and deviations granted.

We are developing responses to the approximately 100

formal comments we received on the SFAR. After analyz-

ing those comments and the input from all relevant

sources, including the recommendations of the National

Transportation Safety Board (NTSB), the rulemaking

team will make appropriate changes to SFAR 71. The

rulemaking team will address many of the issues you

raise, including compression of traffic because of the

altitude limitation and whether a lower altitude may be

used safely in certain regions of Hawaii. We anticipate

finalizing that rulemaking project in the near future.

The altitude of 1,500 feet in the SFAR was selected on the

basis of safety, and the complete rationale was detailed in

H-2

the preamble to the SFAR. Since the implementation of

the SFAR, the FAA has granted an altitude deviation of

1,000 feet to approximately 20 operators. In addition, the

FAA recently granted several operators an altitude devia-

tion of 500 feet for multiengine helicopters. All of the

deviations are closely scrutinized by the FAA and require

a finding of an equivalent level of safety. For example, we

have limited these deviations to specific sites that are not

near congested areas.

My staff has provided me with the data concerning near

midair collision (NMAC) reports for Hawaii. Often the

pilot of each aircraft involved in a NMAC files a separate

report. Since the. effective date of the SFAR, there have.

been 16 NMAC’s with 31 reports filed for those NMAC’s.

Of the NMAC reports, one involved a large commercial

fixed-wing aircraft and one involved a military helicopter.

The rest of the NMAC reports involved small helicopters of

the type used by the air tour operators.

From January 1989 through the effective date of the SFAR

(October 26, 1994), 23 NMAC reports for Hawaii were

filed. Most of the NMAC reports that were filed immedi-

ately after publication of the SFAR appeared to be in

reaction to the implementation of the new rule. The FAA

considers every NMAC report important, and the Flight

Standards Service (AFS) investigated each and every one

of those. NMAC reports. Of the 16 NMAC’s that occurred

after the effective date of the SFAR, AFS determined that

only 2 had validity. Additionally, a review of those NMAC

reports shows that of the 16 NMAC’s, two pilots were

responsible for filing reports for 5 NMAC’s.

As with any rule, the FAA developed an economic analysis

of the affect of the SFAR on the air tour industry. The

H-3

FAA is aware that the SFAR has had some impact. Al-

though the FAA is sympathetic to any economic impact

that the SFAR is having on the air tour industry in Ha-

waii, we are mindful that safety is the primary reason for

the SFAR. Between July 1991 and July 1994, there were

20 air tour accidents involving 24 deaths. Since implemen-

tation of the SFAR, there has been only one accident and

_no fatalities. That accident involved an engine failure that

resulted in four minor injuries. We have continued the

open, informal dialogue with individual operators in

Hawaii and do not believe there is a need for formal

meetings.

If I can be of further assistance, please contact me or Mr.

A. Bradley Mims, Assistant Administrator for Government

and Industry Affairs, at (202) 267-3277.

Sincerely,

/s/ David Hinson

David R. Hinson

Administrator

Enclosure

Transmitted Correspondence

I-1

APPENDIX I

David R. Hinson December 26, 1995

Administrator

Federal Aviation Administration

800 Independence Ave., S.W.

Washington, D.C. 20591

We, the undersigned professional pilots, are compelled to

advise you of a critical situation created by SFAR 71 and

to plead with you personally to get section six revised

regarding altitude and stand-off distance. The regulating

effect of section six contradicts a long standing FAA

precedent of advised separation criteria between fixed and

rotary wing aircraft. Effectively regulating helicopters to.

the same altitude and airspace as fixed wing, this regula-

tion has already caused a number of near miss occurrences

between airplanes and helicopters. To date we have never

had a tragic midair collision in Hawaii. Do we need to

have a major catastrophe here before the FAA believes the

seriousness of the situation?

Our industry has worked with the FAA operational staff in

Washington D.C. on this issue through lengthy discussions

including first hand flight analysis of the concerned areas.

We ask that you confer directly with those particular

people who have actually flown with us on our tours on

each island. We thought that a major improvement to this

problem had been worked out between us this past August

but the proposal was ultimately denied by ‘higher-ups’. We

den’t know who these people are or on what they based

their judgments but it certainly wasn’t from interaction

with us or the reality of this situation. Have political

considerations now taken precedent over safety concerns?

I-2

We are left bewildered at the lack of responsiveness of the

FAA to our concerns and professional judgment. The

virtual total spurning by the FAA of the input that we

have given so far in this regulatory process has caused a

substantial loss of faith and trust between us. We are

some of the most experienced helicopter pilots in the

world, who fly helicopters here every day. We deserve

serious input into the safety regulations with which we are

professionally bound to comply.

We respectfully plead with you to lower the minimum

altitude prescribed in section six to 500 feet for helicop-

ters. This will ensure us of a five hundred foot separation

from fixed-wing traffic. As we are now regulated to the

centerline of many valleys we further request that the

stand-off distance be reduced to 300 feet. This will allow

us a safer horizontal separation between inbound and

outbound transitions in scenic valleys. We ask to operate

at this lower altitude and stand-off distance only in appro-

priately designated, unpopulated areas.

Thank You for your consideration,

Name Signature Certificate Helicopter

number hours logged

The undersigned 53 professional helicopter pilots from the

State of Hawaii, representing over 530,000 hours of logged

helicopter flight experience.

Pilot signatures for letter to Mr. Hinson dated 12-26-95

CERT. HELICOPTER

/s/ Gene Perry NUMBER HOURS LOGGED

Gene Perry 1638374 11,500

I-3

/s/ Fred J. Adlard

Fred Adlard 2043388

David Chevalier 2080648

/s/ David J. Chevalier

Steve Slade 558298405

/s/ Steve O. Slade

Daryl Evans 562028366

/s/ Daryl Evans

Ronald Evans 1444253

/s/ Patrick F. Boyle

Patrick Boyle 2464666

/s/ William Payne

William Payne 2004234

/s/ Thomas L. Allen

Thomas Allen 526886655

/s/ Timothy Rory Gaffney

Timothy Gaffney 154501806

/s/ Paul Daryl

Paul Daryl 57568009

Charlie Duke 4097767164

/s/ Charlie Duke

Joeseph Phelps 483767164

/s/ Joeseph Phelps

Roger Srouji 565535245

/s/ Roger Srouji

Steve Gould 571558584

/s/ Steven Gould

Richard Potts 467310014

11,400

10,000 ae

10,000

10,000.

/s/ Richard Potts

I-4

Daniel Brown

/s/ Daniel J. Brown

5614116455

Bruce Mays

/s/ Robin E. Wallace

2230926

Robin Wallace

/s/ David Wilson

548434278

David Wilson

/s/ Richard Olsten

576769849

Richard Olsten

/s/ Curtis W. Loftsted, Jr.

Kurt Loftsted

/s/ Will Squire

Will Squire

/s/ Dave McGuff

Dave McGuff

/s/ Frank Ochipinti —__

Frank Ochipinti

. /s/ Eric Lincoln

Eric Lincoln

/s/ Keith Taylor

Keith Taylor

/s/ Scott Schupe

Scott Schupe

/s/ Donn Rasmussen

Donn Rasmussen

/s/ Ralph Dwyer

Ralph Dwyer

/s/ Richard Russell

Richard Russell

2187263

1760534

1920305

2145221

1619727

2136543

511542567

2065719

2087385

1808884

521801697

5,000

4,500

3,700

3,500

3,200

23,000

21,000

18,700

16,950

15,000

14,700

14,500

14,115

13,975

/s/ Ross Scott

Ross Scott

/s/_ Chris Reed

Chris Reed

Steve Egger

/s/ Steve Egger

Charles Benson

/s/ Paul Morris

Paul Morris

/s/ Lowell Ching

Lowell Ching

/s/ James Poulson

James Poulson

/s/ Joe Parr

Joe Parr

/s/ Bogart Kealoha

Bogart Kealoha

/s/ Joseph Song

Joseph Song

/s/ Dave Hoadley

Dave Hoadley

Dale Allen

/s/ David Fernandez

David Fernandez

/s/ Bill Eichengberger _

Bill Eichengberger

/s/ Tim Murray

Tim Murray

1963342

554824543

1957602

535426237

277444265

575485506

456925810

1990147

2175764

575907948

56987057

242195555

560779648

210407348

377460911

13,700

13,085

13,000

12,800

12,500

12,200

12,100

12,000

11,500

2,500

1,200

6,000

18,000

I-6

/s/ Mark Seigel

NAAR ME BEEFY Bg toe bce 4

Mark Seigel 565117662 6,000

/s/ Roger Olson i

Roger Olson 16888111 11,000 '

/s/_ Jim Cardin

Jim Cardin 2048127 12,000 :

Michael J. Burns 558923968 1,000

/s/ Michael J. Burns ;

Alan Ruiz 558543625 6,000 }

/s/_Adolpho J. Ruiz

Dave Ryan —~ 401829828 7,000

/s/ [Illegible] 5

Richard C.Macahan 573584184 10,600 :

/s/ Richard C. Macahan

Fifty-three Professional Pilots with over 530,000 hours of i

helicopter flight experience.

cc: Senator Daniel K. Inouye

James E. Hall, Chairman,

National Transportation Safety Board

Frank Jensen, President,

Helicopter Association International

Dan Anderson, President,

United States Air Tour Association

ER ce FRE PAACE OM EAM RS aA tas

RIED Re ORO De NIA AE FEET eH ee oF

;

Pi a, ard Ss 4 *

;

J-1

APPENDIX J

National Transportation Safety Board

Washington, D.C. 20594

JAN 26 1996

(LOGO)

Office of the Chairman

Honorable David R. Hinson

Administrator

Federal Aviation Administration

800 Independence Ave., S.W.

Washington, D.C. 20591

Dear Mr. Hinson:

Earlier this month I visited the State of Hawaii to

address the American Association of Airport Executives.

During this trip, I was also able to follow up on other

safety-related activities in the State, specifically, those

related to the air tour industry. As you know, there has

been considerable reaction to the National Transportation

Safety Board’s public hearing at Honolulu in 1994 and its

published study on the safety of the air tour industry.

There has also been considerable reaction to the Federal

Aviation Administration’s (FAA) anticipated revision to

Special Federal Aviation Regulation (SFAR) No. 71, “Air

Tour Operators in the State of Hawaii.”

Please allow me to share with you some concerns that

the Safety Board continues to have regarding the air tour

industry, particularly in the State of Hawaii. It has been

more than a year since SFAR 71 was published for com-

ment; the Safety Board provided comments to this rule on

October 27, 1995. The Board continues to believe that

J-2

SFAR 71, however well-intentioned, presents an aviation

safety issue, specifically Section 6, “Minimum Flight

Altitudes” (1,500 feet above the surface and 1,500 feet

standoff distance).

My firsthand visit tells me that this rule has ad-

versely affected the Hawaiian air tour industry to a far

greater degree than anticipated. The rule does not take

into consideration the impact of local weather conditions

on the available airspace for air tour operations, which has

been a serious impediment to the industry. I have flown

with the operators, and I held discussions with their

management personnel. They explained that the concen-

tration of air traffic now forced into a compressed flight

environment along the coastal area is the result of the

unique weather pattern of the islands and the minimum

altitude requirements of SFAR 71.

During our discussions and again during my observa-

tion of their air operations, the operators explained that,

on designated tour routes, when confronted with a possible

emergency, helicopter pilots are confident that they can

select a suitable landing site and effect an emergency

landing from flight altitudes of 500 feet above the terrain.

In June 1995, Safety Board staff were briefed by the

Helicopter Association International’s (HAI) Helicopter

Operators Tour Operations Safety Subcommittee on TOPS

(Tour Operations Safety) program. Now that I have visited

the State and personally experienced some of the air tour

issues, I concur with our staff’s view that many of the

specifications in the TOPS program accurately reflect the

needs of the nationwide tour industry, including those

operators in the State of Hawaii. I have enclosed a draft

copy of the briefing outline for your information.

J-3

The main premise of the TOPS program is ts involve

company management in the safety effort to enforce

appropriate tour standards. Those standards include such

things as:

— Minimum of 1 mile visibility

~— Minimum en route altitude of 500 feet above

ground level

— Angle of bank not more than 30°

— Angle of pitch not more than ten 10°

— Smooth transitions into each flight maneuver

or flight profile

— Avoidance of the height-velocity curve, except

for ground effect hover necessary for landings

and takeoffs

— Aeronautical decisionmaking and crew resource

management training

— Aircraft instrumentation per 14 CFR 135.159

for night visual flight rules

— Higher standards for maintenance and ground

support programs

The Safety Board believes that the air tour operators

are prepared to significantly contribute to the improve-

ment of their industry if given the opportunity. The Board

also believes that standards put forth in the TOPS pro-

gram are reasonable and that the minimum altitude

provision, and perhaps others, can be applied immediately

as a basis for the revision of SFAR 71.

I recently spoke with Dave Harrington of the FAA’s

Flight Standards Service on the subject of the Hawaiian

air tour industry. May I please take this opportunity to

encourage you and Mr. Harrington to move forward on

both the anticipated SFAR 71 revision and on the devel-

opment of a nationwide policy for air tour operations. To

further delay action on this issue will perpetuate the

J-4

mistrust and strained communications between the FAA

and the air tour operators and, more importantly, continue

the negative effects of the concentration of air traffic in

Hawaii that result in an unintended degradation of the

existing level of safety.

Sincerely,

/s/ Jim Hall

Jim Hall

Chairman

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APPENDIX L

Docket No. 27919; Special Federal Aviation

Regulation (S.F.A.R. 71) Comments of David Glenn

Bettencourt, personally and on behalf of Safari

Aviation, Inc., dba Safari Helicopter Tours

I am an aviation attorney practicing law primarily on

the Island of Oahu and Kauai, Hawaii. My office is located

in Suite 425 Dillingham Transportation Building, Grosve-

nor Center, Honolulu, Hawaii 96813. I am a pilot, and

owner of two vintage aircraft; I am also a litigant often

involved with the rulemaking and adjudicative arms

(tentacles?) of the Administrator. Safari Aviation, Inc., dba

Safari Helicopter Tours, is a Part 135 turbine helicopter

tour operator with operations on the Island of Kauai and

Hawaii. Safari Aviation, Inc., has at all times subsequent

to promulgation of S.R.A.R. 71 sought to convince the

Administrator that safety in aviation is being seriously

compromised by all aspects of S.R.A.R. 71, but-has_failed

to do so before two S.R.A.R. 71-induced tragedies. -

In the last two years, the imprudent and unjustified

specifications within S.R.A.R. 71 have claimed the lives of

thirteen person [sic] in two fatal helicopter accidents; both

the 25 June 1999 Ohana Aviation accident [NTSB No.

LAX98FA211; pilot and 5 pax dead] at Mount Waialeale,

Kauai, and the 21 June 2000 Blue Hawaiian Helicopter

accident: [NTSB No. LAX00MA273; pilot and 6 pax dead] at

Iao Valley, Maui, involved controlled flight into terrain

(CFIT) in humid tropical misting/rain conditions from

S.R.A.R. 71-mandated altitudes. Although the NTSB has

not issued its conclusions in either case, and has reportedly

* [Should have been S.F.A.R. throughout. ]

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even refused to assess the human factors/S.R.A.R. 71

components of causation, numerous aviation professionals

familiar with Hawaii operational conditions, S.R.A.R. 71

undercover “sting” enforcement practices and tour pilot

morale agree that the counter-intuitive requirements of

S.R.A:R. 71 lead [sic] to these thirteen deaths.

The Honolulu Flight Standards District Office (F.S.D.O)

engages in undercover enforcement of the altitude restric-

tions with no regard for adverse impact of overall safety,

with the simplistic view that “higher is better.” S.F.A.R. 71

remains a threat to tour aircraft safety in Hawaii; every tour

helicopter pilot fears this method of enforcement, unique to

Hawaii, as it could unfairly end a career in aviation, and

many excellent pilots simply refuse employment in Hawaii

for that reason. Prior to these two accidents, numerous pilots

had been violated by an [sic] FAA. enforcement program

which involved stationing newly-hired “Inspectors” at the

base of Waialeale to “violate” any pilot who strays closer

than the magic figure of 1,500 feet to the ground; the F.A.A.

even sought extra harsh sanctions against pilots who criti-

cized S.F.A.R. 71 on safety grounds.

Pilot Chuck Lowe would have never have lost his

visual reference to the ground and suffered a “white out”

inside a cloud had he not feared unfair but politically-

correct F.A.A. enforcement; he simply would have exer-

cised his judgment to proceed lower but with visual

reference to the ground, as he could have done in any

other state. The National Transportation Safety Board

report will be released in a few months, and no doubt will

conclude, as did your article, that the pilot became “lost

and disoriented in a cloud”, which of course is contrary to

the basic visual flight regulations (VFR). N.T.S.B. Investi-

gator Wayne Pollack has not sought the input of any

human factors investigators, and surely will not properly

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lay the blame at the feet of another government agency

when it is far easier to blame a dead pilot for “pilot error.”

The N.P.R.M. fails to even mention either the Mount

Waialeale or the Iao Valley accidents, and does a disser-

vice to helicopter pilots statewide by failing to make any

critical inquiry into the role that the F.A.A.’s politically-

inspired but ill-conceived “environmenta]” regulation had

by imparting conflicting demands on the pilots which

directly resulted in these tragedies. Mount Waialeale is a

known locale of ground-based F.A.A. observers and

equipment to spot S.R.A.R. 71 altitude or stand-off viola-

tions; the subsequent certificate actions can be career-

ending, a [sic] though always on a pilot’s mind. Had the

pilot at Mount Waialeale, Mr. Chuck Lowe [a well-trained,

competent and careful pilot] been allowed the same

operational freedom to rely upon his own professional

judgment as pilot in command that the F.A.A. expects

from helicopter pilots in the all [sic] other 49 states, this

tragedy would not have occurred.

As a pilot who has flown the same route and ground

track as the doomed flight a year ago attempting to recre-

ate the last moments of that flight, I know only too well

the conflicting demands which S.F.AR. 7 1 needlessly

inflicted on Airman Lowe and other pilots, forcing them to

ameliorate [sic] their concern for the highest standard of

safety in order to avoid being targeted by the F.A.A. for

enforcement in the name of political correctness. While the

F.A.A. continues to fault pilot decision-making, in this

type of CFIT accident, their regulatory stance, dictated by

their legal counsel, will continue to cost lives. The F.A.A.

has destroyed pilot respect for its regulatory authority and

judgment by politically-correct and abusive enforcement

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tactics, which itself could impact aviation safety in the

future.

Although less is known about the Iao Valley accident,

others who flew in the area at approximately the same

time have confirmed that an adequate (but non S.R.A.R.

71 legal) path existed into the rear of the valley; in addi-

tion, S.R.A.R. 71 requirements prevented the pilot from

providing a quality tour along an alternate route if

weather foreclosed the primary routing. The operational

freedom normally associated with commercial helicopter

operations elsewhere but denied to Hawaii tour pilots was

a major contributing factor in [sic] Iao Valley accident, but

the F.A.A. is incapable of any rational analysis which

might expose it own [sic] culpability in those deaths.

Instead, it has chosen to blame the “clear of cloud” devia-

tion authority it issued and has now unilaterally rescinded

any Operations Specifications (OpSpecs) for those limited

number of operators [including Safari) which had earned

them.

Hawaii tour helicopter pilots have achieved an excel-

lent safety record despite State of Hawaii harassment and

neglect (including lack of fair and adequate infrastructure

for safe maintenance and operations); although the F.A.A.

essentially holds helicopter tour operators to the same

standards as the airlines, it has failed to insure that they

are provided equal facilities to encourage stable, safety-

conscious operations. The Hawaii Helicopter Operators

Association (H.H.O.A.], representing nearly all tour

operators in opposing S.F.A.R. 71 in 1994, provided

detailed comments and objections to the Administrator

which go unanswered to this day. The purported discus-

sion of comments, 62 F.R. 58856-58859 [October 30, 1997],

was general and deficient at best. The present N.P.R.M.

almost concedes that fact by defending the continued

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extension of S.R.A.R. 71, on the purported continued need

for additional time to discuss those same comments

raising concerns about the present rule. The NPRM states:

Since the F.A.A. believes that S.R.A.R. 71

has been successful in preventing further acci-

dents, the F.A.A. is developing a national air tour

safety rule that would address similar issues

identified in S.R.A.R. 71. Once that rulemaking

is complete, this national rule would replace

S.R.A.R. 71, which would then be rescinded.

This proposal would extend S.R.A.R. 71 for

an additional 3 years. As stated in the extension

of S.R.A.R. 71, the F.A.A. intends to issue a no-

tice of proposed rulemaking applicable to all air

tour operators concerning air tour safety. This

national rule will be responsive to NTSB com-

ments and will consider issues raised by com-

menters who responded to S.R.A.R. 71 in 1994.

65 F.R. at 51513 [August 23, 2000; emphasis added]

All Federal Register Notices/Final Rules regarding

S.F.A.R. 71 have deliberately mixed [both in the air and in

their statistical-babble) highly-divergent types of aircraft

operatio

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