Air Tour Operators in the State of Hawaii; Final Rule DEPARTMENT OF TRANSPORTATION

SUMMARY: This action establishes certain procedural, operational and

equipment requirements for air tour operators in the State of Hawaii.

This emergency rule is necessary because of an escalation of air tour

accidents. The regulation is intended to enhance the safety of air tour

operations within the State.

DATES: This final rule is effective October 26, 1994. Comments must be

received on or before December 27, 1994.

ADDRESSES: Send comments on this final rule in triplicate to: Federal

Aviation Administration, Office of the Chief Counsel, Attention: Rules

Docket (AGC-200), Docket No. 27919, 800 Independence Ave., SW.,

Washington, DC 20591. Comments delivered must be marked Docket No.

27919. Comments may be examined in room 915G weekdays between 8:30 a.m.

and 5 p.m., except on Federal holidays.

Commenters who wish the FAA to acknowledge the receipt of their

comments must submit with their comments a self-addressed, stamped

postcard on which the following statement is made: ``Comments to Docket

No. 27919.'' The postcard will be date stamped by the FAA and returned

to the commenter.

FOR FURTHER INFORMATION CONTACT: Brian Calendine, Air Transportation

Division, AFS-200, Federal Aviation Administration, 800 Independence

Avenue, S.W., Washington, D.C. 20591; Telephone (202) 267-8166.

SUPPLEMENTARY INFORMATION:

Availability of Final Rule

Any person may obtain a copy of this final rule by submitting a

request to the Federal Aviation Administration, Office of Public

Affairs, Attention: Public Information Center, APA-220, 800

Independence Avenue, SW., Washington, DC 20591, or by calling (202)

267-3485. Requests should be identified by the docket number of this

rule.

Persons interested in being placed on a mailing list for notices of

proposed rulemaking should request a copy of Advisory Circular No. 11-

2A, ``Notice of Proposed Rulemaking Distribution System,'' which

describes the application procedure.

Background

The Air Tour Industry

Since 1980, the air tour industry in the State of Hawaii has grown

rapidly, particularly on the islands of Oahu, Kauai, Maui, and Hawaii.

The growth of the tourist industry, the beauty of the islands, and the

inaccessibility of some areas on the islands has generated tremendous

growth in the number of air tour flights. In 1982, there were

approximately 63,000 helicopter and 11,000 airplane air tour flights.

By 1991, these numbers had increased to approximately 101,000 for

helicopters and 18,000 for airplanes. After a slight decline due to

Hurricane Iniki in 1992, air tour flights in 1994 are projected to

reach the 1991 levels. In Hawaii, the air tour industry carries about

400,000 passengers annually. Thirty-eight operators are conducting air

tours within the State of Hawaii, using approximately 97 helicopters

and 16 fixed-wing aircraft. During the 9-year period between 1982 and

1991, there were eight fatal accidents with 24 fatalities. The accident

data shows an escalation of fatal accidents during the 3-year period

between 1991 and 1994. During this time, there were five fatal

accidents with 24 fatalities. (See table and figure)

Use of Helicopters in Air Tours

Helicopters are uniquely suited for air tours in Hawaii because

they can operate at slow speeds and hover over scenic areas. Helicopter

air tours are often conducted close to the ground, near scenic

attractions so passengers can see and experience the thrill of being

close to geological and terrain features, such as lava flows and

waterfalls.

Some air tour operators advertise dramatic overwater flights to

view whales, shorelines, cliffs, and waterfalls; entry into one-way

canyons; flying close to hot molten lava; and hovering over the

shoreline where molten lava flows into the ocean. Some advertising

brochures, for example, describe air tours as ``excitement to the

boiling point,'' and invite tourists to ``fly into the heart and heat

of an active volcano'' and ``close enough to waterfalls to feel the

cooling mist.'' One fixed-wing air tour operator formerly advertised

that ``[w]e fly you lower and slower than any twin engine plane can . .

. lower and slower than many helicopters do . . .''

While passengers are often attracted to the thrill associated with

low-flying air tours, they are generally not aware of the risks

involved. Risks associated with low flying air tour operations include:

unpredictable winds that create less stable flying conditions; fewer

options to escape unforeseen weather; unmarked or unknown obstructions;

less time to select suitable emergency landing areas; increases in

pilot workload because of quick stops, rapid turns, and watching for

obstructions; inability to be detected by air traffic control radar;

inability to conduct two-way radio communication; increased likelihood

of ingesting foreign debris, including salt water spray, into the

engine; less overall reaction time; and congestion of low flying

traffic at scenic locations. Further, many air tours are conducted over

scenic areas along rugged coasts, where, in the event of an engine

failure, the pilot must ditch in the ocean. A helicopter without

flotation devices, unlike most light airplanes, may sink within

moments.

History and Escalation of Accidents

The growth of the air tour sightseeing industry in Hawaii has been

associated with an escalation of accidents. The proximate causes of the

accidents range from engine power loss to encounters with adverse

weather. Contributing factors to the causes and seriousness of

accidents are: operation beyond the demonstrated performance envelope

of the aircraft, inadequate preflight planning for weather and routes,

lack of survival equipment, and flying at low altitudes (which does not

allow time for recovery or forced landing preparation in the event of a

power failure).

The following table is a synopsis of selected air tour accidents

involving aircraft damage, minor or serious injuries, or fatalities

that occurred between September 1982 and September 1994.

Selected Air Tour Accidents in Hawaii, September 1982-September 1994

----------------------------------------------------------------------------------------------------------------

Date Type Part Location Injuries Fatalities

----------------------------------------------------------------------------------------------------------------

9/2/82 Bell 206-L............... 135 Lihue................... 2 serious............... ..........

3 minor.................

4/8/84 Grumman AA-5A............ 91 Kamuela................. ........................ 4

9/26/85 Aerospatiale............. 135 Kula.................... 5 minor................. 1

1/1/86 Cessna R172K............. 135 Kamuela................. 4 serious............... 1

5/18/86 Bell 206B................ 91 Maui.................... 1 serious............... 2

1 minor.................

3/29/87 Bell 206B................ 135 Kona.................... 3 serious............... 1

1 minor.................

4/24/87 Cessna 172N.............. 91 Lihue................... ........................ 4

5/29/88 Bell 206B................ 135 Honolulu................ 2 minor................. ..........

5/20/89 Aerospatiale AS350D...... 135 Waialae Falls........... 7 minor................. ..........

6/11/89 Beech H18................ 135 Waipio Valley........... ........................

8/19/89 Aerospatiale AS350D...... 135 Volcano................. 1 serious............... 11

5 minor.................

5/5/91 Hughes 369HS............. 135 Keanae.................. 3 minor................. ..........

6/6/91 Bell 206B................ 91 Lihue................... 3 serious............... ..........

1 minor.................

11/9/91 Bell 206B................ 135 Hilo.................... 1 serious............... ..........

2 minor.................

4/22/92 Beech E18S............... 135 Mount Haleakala......... ........................ 9

9/16/92 Aerospatiale AS350B...... 135 Hana.................... ........................ 7

9/21/92 Bell 47.................. 91 Volcano National Park... 3 minor................. ..........

1/25/93 Fairchild Hiller FH-1100. 91 Volcano National Park... 1 minor................. 4

2/23/94 Aerospatiale AS350B...... 135 Volcano National Park... 1 serious............... ..........

1 minor.................

3/25/94 Hughes 369D.............. 135 Hawaii National Park.... ........................ ..........

4/18/94 Hughes 369D.............. 135 Waimea.................. 4 serious............... 1

7/14/94 Aerospatiale AS350D...... 135 Hanalei................. ........................ 3

7/14/94 Aerospatiale AS350D...... 135 Molokai................. ........................ ..........

8/11/94 Aerospatiale AS350D...... 135 Waipio Valley........... ........................ ..........

9/3/94 Hughes 369D.............. 135 Hilo.................... ........................ ..........

----------------------------------------------------------------------------------------------------------------

The table shows a total of 24 air tour fatalities between 1982 and

1991 (9 years). Even though there was a decline in the number of air

tour flights in 1992, the accident data show an escalation of fatal

accidents between 1991 and 1994. From July 1991 through July 1994 (3

years), there were 20 air tour accidents involving 24 fatalities. (See

figure.) Since January 1993, three helicopter accidents have involved

landings in the ocean with two of those accidents resulting in seven

fatalities. The most recent fatal accident occurred on July 14, 1994.

The most recent non-fatal accident occurred on September 3, 1994. (See

table.)

BILLING CODE 4910-13-M

TR26SE94.001

BILLING CODE 4910-13-C

National Transportation Safety Board Recommendations

Based on its investigation of the April 22, 1992, accident in

Haleakala National Park, the National Transportation Safety Board

(NTSB) recommended that the FAA ``[c]reate a specific classification

for, and operating rules governing, commercial air tour operators based

on the complexity of flight operations, aircraft flown, flight

frequency, number of passengers carried, air traffic densities in the

area of operation, and other relevant factors'' (A-93-8). In addition,

the NTSB recommended that the FAA ``[i]dentify airspace which warrants

special protection due to air tour operations,'' and ``[c]reate special

operating rules for such airspace to reduce the potential for midair

collisions and other accidents commensurate with meteorological and

terrain considerations.'' (A-93-10) In response to the NTSB's

recommendations, the FAA has informed the NTSB that it is considering a

special rule for air tour operators in Hawaii.

Based on the NTSB recommendations, accident investigations, and

discussions with the NTSB, the FAA has identified the following as

needing to be addressed:

(1) Air tour operators fly too close and too low to various

attractions and land features.

(2) There is no clear definition of ``suitable landing site'' for

helicopters.

(3) Sightseeing helicopters are operating in the avoid area of the

height-speed envelope (deadman's curve) where successful autorotations

are not possible.

(4) Helicopters operating along the shorelines of the Hawaiian

Islands should be equipped with appropriate flotation equipment.

(5) Passengers should be briefed before flights on the use of

flotation gear.

Actions Other Than Rulemaking to Address the Problems

The FAA, the State of Hawaii, and the air tour industry have been

attempting to correct safety problems that affect air tour operations.

In 1986, the FAA conducted a study of helicopter sightseeing

operations in Hawaii. The study team was composed of representatives

from the FAA, the State of Hawaii, and industry. Based on the study,

recommendations were made to the State and to operators in Hawaii to

improve safety and community relations. Recommendations included the

following:

(1) The FAA should study the possibility of imposing limitations,

through operations specifications, that would require the helicopter to

be operated 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

current weight and aircraft altitude. These limitations would also

prevent the helicopter from being flown over areas in which a safe

forced landing could not be made.

(2) The FAA should advise helicopter operators who conduct

passenger-carrying operations under part 91 or part 135 that a flight

(1) over an area in which a successful forced landing could not be

made, or (2) at an airspeed and altitude combination that places the

aircraft beyond its performance capability to successfully autorotate,

would be considered a reckless operation under Sec. 91.13 (formerly

Sec. 91.9).

The study team was also concerned about the lack of helicopter

flotation equipment on some aircraft, particularly for operations along

the coastlines of the islands, where cliffs and rocks make a successful

autorotation to shore virtually impossible. The team believes that the

shoreline must offer a reasonable chance to land safely in the event of

engine failure, and that, if no such area exists, appropriate

helicopter flotation equipment should be required.

Also, in 1986, the FAA conducted a joint study with the State of

Hawaii on helicopter heliport and airport access. A result of that

study was the Helicopter Operating Plan for Hawaii. Based on portions

of that plan, the Hawaiian Helicopters Operators Association (HHOA)

developed its ``Fly Neighborly'' program. The HHOA plan calls for

voluntary compliance with a standoff distance of 1,500 feet and a

minimum altitude of 1,500 feet over communities. In addition, the plan

calls for a 3,000-foot standoff distance in areas of Volcanoes National

Park. The HHOA program includes part 91 operators as well as part 135

certificated operators. This is a voluntary program without FAA

oversight.

On January 17, 1992, the FAA issued Handbook Bulletin No. 92-01,

Air Tour/Sightseeing Operations. The bulletin advises principal

operations inspectors to recommend to operators that they include

procedures in their operations manuals for conducting air tour/

sightseeing operations. The bulletin also advises the inclusion of

charts of air tour areas, procedures for obtaining current weather,

provisions for pilot training, and other information specific to air

tour operations.

In January 1994, the FAA held four public meetings in Hawaii to

investigate complaints regarding flight safety, aircraft noise, and

possible intrusive flights of helicopters. While the vast majority of

the commenters addressed the noise issue, some commenters did raise

safety issues. Some of the public meeting comments and subsequent

comments submitted to the FAA highlight a number of personal

experiences of individuals who witnessed helicopters flying dangerously

low over scenic areas and above people and property on the ground. In

some instances, witnesses claimed that the aircraft flew lower than the

people who were walking on high elevation trails.

The Honolulu Flight Standards District Office, during the past 3

years, has conducted an extensive inspection and surveillance program

of the air tour industry. On July 15, 1994, in response to a number of

recent accidents, the FAA initiated a comprehensive review of

operations and maintenance practices of the Hawaiian air tour

operators. In addition, the FAA requested that all air tour operators

in the State of Hawaii immediately conduct a ``stand down'' safety

review of their operational and maintenance practices.

Need for Emergency Rulemaking

Despite the voluntary measures, the cooperation of the Hawaii air

tour operators, and the FAA's inspections, the accident data show that

additional measures are necessary to ensure safe air tour operations in

Hawaii. The current regulatory scheme is not comprehensive enough to

ensure the safety of all air tour operations in Hawaii.

Section 91.119 prescribes minimum altitudes for airplanes and

helicopters that provide for the protection of persons and property on

the surface. Generally, a pilot may not operate below an altitude

allowing, if power failure occurs, an emergency landing without undue

hazard to persons or property on the surface. Helicopters may be

operated at lower altitudes than airplanes if the operation is

conducted without hazard to persons or property on the surface and the

pilot can conduct a safe emergency landing in the event of power

failure.

Under ideal conditions, a helicopter, unlike an airplane, can land

at or near zero forward speed, provided the landing area is relatively

level and free of obstructions. Factors that make an emergency landing

site unsuitable include obstacles, rugged terrain, congested areas and

water. Obstacles range from natural terrain features and trees to

buildings and utility towers with wires strung between them.

A major factor affecting safety of flight in any single engine

aircraft at low altitude is the limited choice of suitable emergency

landing areas. Hawaii's unique topography--active volcanoes spewing hot

molten lava, sharp cliffs, cascading waterfalls, rugged coastlines,

mist-shrouded mountains, dense tropical rainforests and deep, closed

canyons--often complicates access to suitable emergency landing areas.

The air tour accidents in Hawaii indicate that helicopter pilots have

had insufficient time to locate suitable landing areas after engine

power loss or other problems leading to accidents.

Based on the recent escalation of accidents caused by unsafe

operating practices, and the fact that voluntary measures are

insufficient, the FAA is implementing this emergency final rule as

Special Federal Regulation (SFAR) No. 71.

The Special Federal Aviation Regulation

The FAA is promulgating these requirements in an SFAR, rather than

a general rule, to address the unique problems associated with the

Hawaiian air tour operating environment.

This emergency regulatory action establishes additional operating

procedures, including minimum safe altitudes (and associated increases

in visual flight rules (VFR) weather minimums), minimum equipment

requirements, and operational limitations for air tour aircraft in the

State of Hawaii.

Applicability and Definitions

This SFAR applies to parts 91 and 135 air tour operators in the

State of Hawaii (section 1). In section 2, ``air tour'' is defined as

any VFR sightseeing flight conducted in an airplane or helicopter for

compensation or hire. ``Air tour operator'' is defined as any person

who conducts an air tour.

Flotation Devices

The SFAR requires that any single-engine air tour helicopter flown

beyond the shore of any island must be amphibious or equipped with

emergency floats and approved flotation gear easily accessible for each

occupant, or that each person on board the helicopter wear approved

flotation gear. An amphibious helicopter or one equipped with floats

will allow a safe emergency ditching. This requirement is specific to

helicopters because helicopters, unlike airplanes, may sink rapidly

after forced landings on water.

These requirements should reduce the risk of drowning, such as the

deaths that occurred on January 25, 1993, when a helicopter, operating

under part 91, crashed in deep water while on a sightseeing flight to

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

National Park. Before the accident, the pilot had been hovering near

the shoreline between 100 and 150 feet above sea level. When the pilot

attempted to resume forward flight, he experienced a total left pedal

failure. The pilot lost control and the helicopter landed in the ocean

and sank. The helicopter was not equipped with flotation devices, and

the pilot and four passengers were not wearing lifevests. Only the

pilot survived. The NTSB found that a factor which contributed to the

passengers' fatal injuries was the operator's failure to provide

lifevests to the passengers.

In a July 14, 1994, accident, an air tour helicopter with seven

people on board made a forced landing in the Pacific Ocean after losing

power off Kauai's Na Pali Coast. Three passengers swam to shore and

another was rescued from the water. The pilot and two other passengers

drowned. The helicopter was not equipped with flotation devices, and

the passengers did not have sufficient time to don the lifevests on

board the helicopter.

Later, on the same day, a different air tour helicopter made a

forced landing after losing power off the north coast of Molokai. All

persons aboard the helicopter swam to shore and were rescued the next

day. The helicopter was equipped with flotation devices, and the pilot

and passengers had sufficient time to don the lifevests.

Flotation equipment on a helicopter should allow the helicopter to

remain afloat long enough for the persons to egress safely; the

individual flotation gear should allow the survivors an opportunity to

swim to shore or to be picked up by rescue personnel. Flotation

equipment/lifevests helped to ensure the survival of the passengers in

the second accident on July 14.

The FAA is considering changing the rule to require that all

single-engine helicopters conducting air tour operations beyond the

shore of any island be amphibious or fitted with flotation devices.

Therefore, the FAA is requesting comments on this possibility. At the

close of the comment period, the FAA will analyze the comments received

and, based on its analysis, determine if further rulemaking is

necessary.

Helicopter Performance Plan

Section 4 requires that, before departure, the air tour operator

must complete a performance plan for the helicopter flight. The pilot

in command (PIC) is required to comply with the performance plan. The

plan must be based on information in the rotorcraft flight manual

(RFM), considering the maximum density altitude to which the operation

is planned and must address such elements as maximum gross weight and

center of gravity, maximum gross weight for hovering in or out of

ground effect, and maximum combination of weight, altitude, and

temperature for which height-velocity information in the RFM is valid.

This requirement is necessary in light of accidents attributable to the

failure of the pilot to stay outside the avoid area of the helicopter

height-velocity envelope. The flight is not limited to the out-of-

ground effect (OGE) ceiling, and the helicopter may be operated at a

higher altitude provided no hovering is planned.

This requirement should enhance flight safety in light of certain

accidents, including that which took place on May 20, 1989. On that

date, an Aerospatiale AS350D was on a local sightseeing flight to view

Waialae Falls with six passengers on board. After hovering at a low

altitude near the falls, the pilot began a pedal turn and forward

movement for the initial climb away from the falls. The main rotor

revolutions per minute (rpm) decayed, and the pilot turned back toward

the upper falls, where he thought he could land. However, the

helicopter settled into a ravine, damaging the helicopter and injuring

the pilot and passengers. The NTSB determined that the probable cause

of the accident was the pilot's failure to maintain rotor rpm, while

turning and taking off from a hover with a relatively heavy gross

weight. Additional factors related to the accident were the high

density altitude and rough/uneven (rocky) terrain in the emergency

landing area.

Helicopter Operating Limitations

Section 5 requires that the PIC shall operate the helicopter at a

combination of height and forward speed (including hover) that would

permit a safe landing in the event of engine power loss, in accordance

with the height-velocity envelope for that helicopter under current

weight and aircraft altitude. This requirement is necessary to prevent

pilots from hovering for periods of time beyond the performance

capability of the helicopter and outside what the height-velocity

diagram permits for safe operation.

This requirement prohibits aircraft from being operated in

dangerous flight regimes, such as the January 25, 1993, accident

discussed previously (when the pilot was hovering at a low altitude

over a lava flow). It also is intended to prevent the type of accidents

that occurred on March 25, 1994, and April 18, 1994. On March 25, 1994,

the pilot of a Hughes 369D helicopter operated under part 135 lost

control and collided with mountainous terrain by the Puu'oo Vent in

Hawaii National Park. The helicopter had become enveloped in a steam

cloud at a 40-foot hover just before the pilot lost control. The

helicopter was destroyed; the pilot and passengers sustained minor

injuries. On April 18, 1994, a Hughes 369D helicopter lost power during

an OGE hover and collided with rocky terrain below Waimea Falls,

Waimea, Kauai. The helicopter was on a sightseeing flight operated

under part 135. The pilot and three passengers were seriously injured.

One passenger was fatally injured.

The requirement increases the possibility of safe landing in the

event of engine failure. A safe landing may not be possible if the

helicopter is within the avoid area of the height-velocity envelope

when the engine failure occurs.

Minimum Flight Altitudes

Section 6 requires that, unless operating in compliance with an air

traffic control clearance, or as otherwise authorized by the

Administrator, air tour operations may not be conducted below an

altitude of 1,500 feet above the surface; and closer than 1,500 feet

from any person or property; or below any altitude provided by Federal

statute or regulation. As noted earlier, Hawaii's unique topography

often complicates access to suitable emergency landing areas. The air

tour accidents in Hawaii have been characterized by insufficient time

for pilots to locate suitable landing areas after engine power loss or

other problems leading to accidents. The requirement 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 operating at least 1,500 feet above the surface allows the

pilot a greater opportunity to select a suitable landing site than

would be the case at lower altitudes. The FAA notes that these minimum

distances are consistent with HHOA's Fly Neighborly program.

The accident data also show low-flying aircraft flying VFR into

instrument meteorological conditions (IMC). An additional benefit from

the 1,500-foot minimum altitude will be the increased basic VFR weather

minimums for these air tour operations. This provision is necessary in

light of the numerous accidents that have occurred when the aircraft

flew into terrain because of low visibility or because the pilot was

flying too low. The accident data show that this is a problem for both

airplanes and helicopters. For instance, on April 24, 1987, an air tour

flight operated under part 91 collided with terrain in the Waimae

Canyon. Marginal visual meteorological conditions were reported in the

vicinity of the accident site. The pilot and three passengers were

fatally injured. In the January 25, 1993, accident, in which the

helicopter crashed in deep water after hovering between 100 and 150

feet above sea level, the NTSB noted that a contributing factor to the

accident was the pilot's choice of a hover altitude/position inadequate

to reach a shoreline in the event of an emergency.

On June 11, 1989, a Beechcraft BE-H18, operating under part 135 on

a sightseeing flight, crashed near a waterfall in the Waipio Valley of

the Kohala Mountains on the island of Hawaii. After filing a VFR flight

plan, the pilot had departed Hilo International Airport for Maui. The

pilot entered a closed canyon and ultimately impacted the canyon wall

600 to 900 feet below the rim. The pilot and 10 passengers were fatally

injured, and the airplane was destroyed by impact forces and postcrash

fire. The NTSB determined that the probable cause of the accident was

the pilot's improper decision to maneuver with insufficient altitude in

a canyon area.

On April 22, 1992, a Beechcraft E-18S operating on a VFR air tour

flight collided with mountainous terrain in Haleakala National Park in

an area where fog had reduced visibility around the mountain top. The

FAA had provided a full weather briefing to the pilot, including an

advisory that VFR flight was not recommended over the interior sections

of all islands, and a forecast indicating isolated areas of 3 miles

visibility due to haze and moderate rainshowers. The aircraft was

destroyed, and the pilot and eight passengers were killed. Weather

reports and witness statements indicate that IMC existed in the area at

the time of the accident. The NTSB determined that the probable cause

of this accident was the pilot's decision to continue visual flight

into IMC that obscured rising mountainous terrain and his failure to

use properly available navigational information to remain clear of the

island.

On September 16, 1992, an Aerospatiale AS-350B departed on a

sightseeing flight even though adverse weather conditions including

thunderstorms, rainshowers, and poor visibility were reported. A

witness reported rainshowers and mountain obscuration about the time of

the accident. He stated that he saw a helicopter flying in and out of

clouds and stated that he could not understand why a helicopter would

be flying so close to the mountains given the adverse weather

conditions. The NTSB determined that a probable cause of the accident,

which involved seven fatalities, was the pilot's inflight decision to

continue VFR flight into adverse weather conditions. A factor in the

accident was the pilot's inability to see and avoid the mountainous

terrain due to the thunderstorms.

Briefing Passengers

Section 7 contains the requirement that passengers be briefed (in

addition to Secs. 91.102 and 135.117) before takeoff for an air tour

flight with a flight segment beyond the ocean shore of any island. The

briefing shall include information on water ditching procedures, use of

personal flotation gear, and emergency egress from the aircraft. The

PIC must orally brief passengers, distribute written instructions, or

ensure that passengers have been briefed on emergency procedures. This

provision is necessary in light of the flotation equipment requirements

set forth in this emergency rule.

Related Rulemaking

This SFAR is an emergency final rule addressing air tour operations

in the State of Hawaii in light of the increasing frequency of

accidents. The FAA is considering other rulemaking action to address

noise and other issues concerning sightseeing overflights in national

parks and other scenic areas. On March 17, 1994, the FAA and the

National Park Service (NPS) issued a joint advance notice of proposed

rulemaking (ANPRM) (59 FR 12740) seeking public comment on general

policy and specific recommendations for voluntary and regulatory

actions to address the effects of aircraft overflights on national

parks. The FAA is currently analyzing comments submitted in response to

the ANPRM. This SFAR is an emergency rule and not a final action in

response to the joint FAA/NPS ANPRM.

The promulgation of requirements and restrictions in this SFAR,

including the minimum flight altitude restriction, does not preclude

the FAA from revisiting the issues addressed in the SFAR. As mentioned

above, changes to this SFAR may be necessitated after a review of the

comments received from related regulatory proposals. Additionally, this

SFAR may be amended after consideration of the comments received on

this SFAR.

Paperwork Reduction Act

This rule contains no information collection requests requiring

approval of the Office of Management and Budget pursuant to the

Paperwork Reduction Act (44 U.S.C. 3507 et. seq.).

Regulatory Evaluation Summary

Introduction

Changes to Federal regulations are required to undergo several

economic analyses. First, Executive Order 12866 directs each Federal

agency to propose or adopt a regulation only upon a reasoned

determination that the benefits of the intended regulation justify its

costs. Second, the Regulatory Flexibility Act of 1980 requires agencies

to analyze the economic effect of regulatory changes on small entities.

Third, the Office of Management and Budget directs agencies to assess

the effect of regulatory changes on international trade. With respect

to this rule, the FAA has determined that it: (1) is ``a significant

regulatory action'' as defined in the Executive Order; (2) is

significant as defined in the DOT Regulatory Policies and Procedures

(44 FR 11034; February 26, 1979); (3) will have a significant impact on

a substantial number of small entities; and (4) will not constitute a

barrier to international trade. Therefore, a full regulatory analysis,

which includes the identification and evaluation of cost-reducing

alternatives to this rule, has been prepared. This regulatory

evaluation summary presents a concise analysis of the costs and

benefits associated with the final rule that amends the Federal

Aviation Regulations by establishing certain operational, procedural,

and equipment requirements for air tour operators in the State of

Hawaii.

Costs

The FAA estimates the total cost of the SFAR to be about $2.0

million, with a present value of $1.8 million (7 percent discount

rate), from 1995 to 1997. The FAA assumes that air tour operators will

elect to have lifevests on board the helicopter rather than installing

external flotation gear because the costs are dramatically lower. This

present value cost includes the cost of about $190,000 to provide

lifevests on the affected helicopters; the potential of $1.6 million in

lost revenue to air tour operators due to minimum flight altitudes; and

$10,000 for the development of a helicopter performance plan. Other

requirements of the rule--helicopter operating limitations and

passenger briefing--will impose little if any cost.

Benefits

Since 1982, Hawaiian air tour operators have experienced 15

accidents involving at least one serious injury or fatality where the

lack of flotation gear, flying into bad weather, or flying low has

played a role in the cause of the accident. These accidents have

resulted in 48 fatalities and 30 injuries (16 serious and 14 minor).

This evaluation divides these accidents into three categories: (1)

Inadvertent air tour helicopter water landings without flotation gear;

(2) air tour helicopter accidents related to flying into bad weather or

flying low; and, (3) air tour airplane accidents related to flying into

bad weather or flying low.

The potential benefits of preventing all potential sightseeing

accidents of a similar nature over the next 3 years totals $36.8

million, with a present value of about $32.2 million, of which $13.7

million would be for the prevention of helicopter accidents and $18.6

million would be for the prevention of airplane accidents.

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (RFA) helps to assure that

Federal regulations do not overly burden small businesses, small

nonprofit organizations, and airports located in small cities. The RFA

requires regulatory agencies to review rules that may have ``a

significant economic impact on a substantial number of small

entities.'' A substantial number of small entities, defined by FAA

Order 2100.14A, ``Regulatory Flexibility Criteria and Guidance,'' is

more than one-third, but not less than 11, of the small entities

subject to the existing rule. To determine if the rule will impose a

significant cost impact on these small entities, the annualized cost

must not exceed the annualized cost threshold established in FAA Order

2100.14A.

Small entities potentially affected by the final rule are small on-

demand air tour operators in Hawaii using helicopter and fixed-wing

aircraft. The FAA assumes that air tour operators will elect to have

lifevests on board the helicopter rather than installing external

flotation gear because the costs are dramatically lower. The FAA

estimates that the annualized cost associated with acquiring lifevests

for all helicopter occupants is about $127 per seat. This estimate

incorporates the cost of purchasing the lifevests, maintenance, and the

associated weight penalty. Also, the FAA estimates that the annualized

cost of the 1,500-foot minimum altitude requirement is about $989 per

seat. This cost incorporates the estimated lost profits for days when

tour operations are prohibited due to inclement weather.

FAA Order 2100.14A defines small on-demand operators as those

operating with a fleet of nine or fewer aircraft, which includes 37 (7

fixed-wing and 30 helicopter) of the 38 air tour operators in Hawaii.

The annualized cost threshold for small operators is $4,700 in 1994

dollars. The FAA has determined that the final rule will have a

significant economic effect on 6 of the 7 fixed-wing air tour operators

and 25 of the 30 affected helicopter air tour operators. The final rule

will impose costs greater than the annualized cost threshold of $4,700

for all affected operators except for six of the small air tour

operators.

Due to the significant economic impact of the final rule on a

substantial number of small entities, the FAA examined an alternative

minimum altitude requirement for the affected operators. The FAA

evaluated various minimum altitude requirements including 500, 800, and

1,000 feet so as to reduce the annualized cost of the final rule on

individual operators. The FAA has determined that a minimum altitude

requirement of 500 feet will be necessary to lower the annualized cost

of the final rule below the $4,700 threshold for most air tour

operators. (Under Sec. 91.155, pilots conducting VFR flights more than

1,200 feet above the surface in class G airspace must maintain a 500-

foot vertical clearance below the clouds. Pilots operating VFR in class

G airspace 1,200 feet or less above the surface must remain clear of

clouds.) The FAA estimates that the annualized cost of a 500-foot

minimum altitude requirement is about $81 per seat. Including the cost

of the lifevests, the FAA has determined that the combined cost of the

lifevests and the alternative requirement for a 500-foot minimum

altitude will lower the annualized cost below the $4,700 threshold for

all fixed-wing air tour operators and 26 of the 30 helicopter air tour

operators.

The FAA has evaluated the level of safety for the 1,500-foot

minimum altitude requirement in the final rule and that provided by a

500-foot minimum altitude requirement. Although the 1,500-foot minimum

altitude requirement has a significant economic impact on a substantial

number of small entities, it provides operational safety superior to

that provided by a 500-foot minimum altitude and is necessary in the

public interest. With the 1,500-foot minimum altitude, fixed-wing

aircraft and helicopters have a longer power off gliding time, and the

pilots are better able to select a suitable landing area in the event

of a power failure. Hawaii's unique topography often complicates access

to suitable emergency landing areas. The air tour accidents in Hawaii

have been characterized by insufficient time for pilots to locate

suitable landing areas after engine power loss or other problems

leading to accidents. Therefore, the additional safety margins at the

1,500-foot minimum altitude should be provided when conducting

passenger flights.

International Trade Impact Analysis

The SFAR will not have any impact on international trade because

the affected operators do not compete with foreign operators. The SFAR

will not constitute a barrier to international trade, including the

export of U.S. goods and services to foreign countries and the import

of foreign goods and services to the United States.

Good Cause for Immediate Adoption

The FAA is implementing this emergency final rule due to the recent

escalation of fatal air tour accidents. Despite voluntary measures, the

cooperation of the Hawaii air tour operators, and the FAA's

inspections, the accident data show that voluntary measures and

existing regulations are insufficient to ensure safe air tour

operations in Hawaii. The recent accidents discussed above indicate an

urgent safety problem that cannot be adequately addressed solely by

enforcement of existing regulations. For this reason, I find that

notice and public procedure are impracticable and contrary to the

public interest. However, interested persons are invited to submit such

comments as they desire regarding this SFAR. Communications should

identify the docket number and be submitted in triplicate to the Rules

Docket address noted above. All communications received on or before

the close of the comment period will be considered by the

Administrator, and this SFAR may be changed in light of the comments

received. All comments will be available, both before and after the

closing dates for comments, in the Rules Docket for examination by

interested parties.

International Civil Aviation Organization and Joint Aviation

Regulations

In keeping with U.S. obligations under the Convention on

International Civil Aviation, it is FAA policy to comply with the

Standards and Recommended Practices of the International Civil Aviation

Organization to the maximum extent practicable. The FAA is not aware of

any differences that this amendment will present.

Federalism Implications

The regulations adopted herein will not have substantial direct

effects on the States, on the relationship between the national

government and the States, or on the distribution of power and

responsibilities among the various levels of government. Therefore, in

accordance with Executive Order 12612, it is determined that this

regulation will not have sufficient federalism implications to warrant

the preparation of a Federalism Assessment.

Conclusion

For the reasons discussed in the preamble, and based on the

findings in the Regulatory Flexibility Determination and the

International Trade Impact Analysis, the FAA has determined that this

regulation is a significant regulatory action under Executive Order

12866. In addition, the FAA certifies that this regulation will have a

significant economic impact on a substantial number of small entities

under the criteria of the Regulatory Flexibility Act. This regulation

is considered significant under DOT Regulatory Policies and Procedures.

A final regulatory evaluation of the regulation, including a Regulatory

Flexibility Determination and Trade Impact Analysis, has been placed in

the docket. A copy may be obtained by contacting the person identified

under ``FOR FURTHER INFORMATION CONTACT.''

List of Subjects

14 CFR Part 91

Aircraft, Airmen, Aviation safety.

14 CFR Part 135

Air taxi, Aircraft, Airmen, Aviation safety.

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 follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

1. The authority citation for part 91 continues to read as follows:

Authority: 49 U.S.C. 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:

SFAR No. 71--Special Operating Rules for Air Tour Operators in the

State of Hawaii

Section 1. Applicability. This Special Federal Aviation 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 operator must complete

a performance plan before each helicopter air tour flight. The

performance plan must be based on the information in the Rotorcraft

Flight Manual (RFM), considering the maximum density altitude for which

the operation is planned for the flight to determine the following:

(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,

(c) Maximum combination of weight, altitude, and temperature for

which height-velocity information in the RFM. 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 current weight and

aircraft altitude.

Section 6. Minimum flight altitudes. Except when necessary for

takeoff and landing, or operating in compliance 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,

(c) Below any altitude prescribed by federal statute 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

(c) Emergency egress from the aircraft in event of a 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