Air Tour Operators in the State of Hawaii

SUMMARY: On September 26, 1994, the FAA issued an emergency final rule

as SFAR 71, which established certain procedural, operational, and

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

The final rule was effective October 26, 1994; the FAA invited public

comments on the rule until December 27, 1994. This document responds to

public comments and extends the expiration date for SFAR 71 until

October 26, 2000. This action will ensure that regulatory requirements

for the safe operation of air tours in the airspace over the State of

Hawaii remain in effect.

DATES: Comments must be received on or before December 29, 1997. This

interim rule is effective October 26, 1997.

ADDRESSES: Comments on this interim rule should be mailed in triplicate

to: Federal Aviation Administration, Office of the Chief Counsel,

Attention: Rules Docket (AGC-200), Docket No. 27919, 800 Independence

Ave., SW, Washington, DC 20591. Comments may also be sent

electronically to the Rules Docket by using the following Internet

address: [email protected] Comments must be marked as

Docket No. 27919. Comments may be examined in Room 915G on weekdays

between 9:00 a.m. and 5:00 p.m., except on federal holidays.

FOR FURTHER INFORMATION CONTACT: For a copy of this rule, contact the

Office of Rulemaking at (202) 267-9677. For technical questions,

contact David Metzbower, Air Transportation Division, AFS-200, Federal

Aviation Administration, 800 Independence Avenue, SW, Washington, DC

20591; Telephone (202) 267-3724.

SUPPLEMENTARY INFORMATION:

Availability of Interim Rule

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

request to the Federal Aviation Administration, Office of Rulemaking,

ARM-1, 800 Independence Avenue, SW, Washington, DC 20591, or by calling

(202) 267-9677. Requests should be identified by the docket number of

this proposal.

An electronic copy of this interim rule may be downloaded using a

modem and suitable communications software from the FAA regulations

section of the Fedworld electronic bulletin board service (703-321-

3339), or the Federal Register's electronic bulletin board service

(telephone 202-512-1661). Internet users may reach the FAA's web page

at http://www.faa.gov, or the Federal Register's page at http://

www.access.gpo.gov/su__docs, for access to recently published

rulemaking documents.

Small Entity Inquiries

The Small Business Regulatory Enforcement Fairness Act of 1996

(SBREFA) requires the FAA to report inquiries from small entities

concerning information on, and advice about, compliance with statutes

and regulations within the FAA's jurisdiction, including interpretation

and application of the law to specific sets of facts supplied by a

small entity.

The FAA's definitions of small entities may be accessed through the

FAA's web page (http://www/faa.gov/avr/arm/sbrefa.htm), by contacting a

local FAA official, or by contacting the FAA's Small Entity Contact

listed below.

If you are a small entity and have a question, contact your local

FAA official. If you do not know how to contact your local FAA

official, you may contact Charlene Brown, Program Analyst Staff, Office

of Rulemaking, ARM-27, Federal Aviation Administration, 800

Independence Avenue, SW, Washington, DC 20591, 1-888-551-1594. Internet

users can find additional information on SBREFA in the ``Quick Jump''

section of the FAA's web page at http://www.faa.gov and may send

electronic inquiries to the following Internet address: 9-AWA-

[email protected]

Background

The Air Tour Industry

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

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

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

inaccessibility of some areas of the islands has generated tremendous

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

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

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

helicopters and 18,000 for airplanes. Currently in Hawaii, the air tour

industry carries about 500,000 passengers annually. The Honolulu Flight

Standards District Office reports that currently twenty-six operators

conduct air tours under Part 135, using 77 aircraft of which 18 are

airplanes and 59 are helicopters. Approximately 9 operators conduct air

tours under Part 91 using approximately 16 aircraft, of which 9 are

airplanes and 7 are helicopters.

History and Escalation of Accidents

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

associated with an escalation of accidents. During the 9-year period

between 1982 and 1991, there were 11 air tour accidents with 24

fatalities. The accident data shows an escalation of accidents in the

3-year period between 1991 and 1994, during which time there were 20

air tour accidents with 24 fatalities. The apparent causes of the

accidents ranged from engine power loss to encounters with adverse

weather. Contributing factors to the causes and seriousness of

accidents were: operation beyond the demonstrated performance envelope

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

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

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

power failure). Despite voluntary measures taken by some Hawaii air

tour operators and an increase in FAA's inspections, the escalation of

accidents occurred, indicating a need for additional measures to ensure

safe air tour operations in Hawaii.

On September 26, 1994, the FAA published an emergency final rule as

Special Federal Aviation Regulation (SFAR) No. 71 (59 FR 49138). This

action was taken because of the increase in the number of fatal

accidents involving air tour aircraft during the period 1991-1994 and

the causes of those accidents. The emergency regulatory action

established additional operating procedures, including minimum safe

altitudes (and associated increases in visual flight rules (VFR)

weather minimums), minimum equipment requirements, and operational

limitations for air tour aircraft in the state of Hawaii.

The comment period for the emergency rule closed on December 27,

1994.

[[Page 58855]]

Discussion of Comments

General

The FAA received more than 200 comments on the SFAR. Commenters

included the National Transportation Safety Board (NTSB), state and

local governments, air tour operators, helicopters associations,

tourism-related organizations, citizen and environmental groups, and

individuals. The most controversial provision of the SFAR was the

minimum altitude requirement.

The following discussion contains a summary of comments according

to the specific subject areas defined in the SFAR. It should be noted

that comments which were not relevant to these subject areas or were

considered to be speculative are not included in this discussion.

Because of the time that has expired since the publication of SFAR

71, some of these comments may not have the same relevance because of

subsequent events. In addition, air tour operators and the FAA have

worked together to mitigate concerns that the rule is overly

burdensome. The FAA's response to these comments is summarized at the

end of the comment discussion.

Safety Record

Several commenters, including the Hawaii Helicopter Operators

Association (HHOA) and the Helicopter Association International (HAI),

state that Hawaii's air tour operators have a good safety record that

exceeds that of helicopter operations in other parts of the United

States, and a safety record that exceeds the national average of

general aviation aircraft. Other commenters say that the accident rate

is low considering the number of flight hours and the number of

passengers flown. HHOA and others state that recent accidents were

caused by pilot error and mechanical failure, and not the altitude at

which the aircraft were operated.

Two comments were received from persons who were personally

involved in air tour accidents in Hawaii. In addition to asking that

all of the safety tools, such as flotation devices for aircraft and

passengers, be used, they also comment on the lack of rescue support,

which cost several lives in one accident. One of these individuals

suggests that the SFAR should apply everywhere, commenting that

``Water, helicopters, floats, and life jackets do not perform

differently from one state to another.''

Need for Emergency Rulemaking

Several commenters state that there is little supporting data to

justify the FAA's issuance of the SFAR under emergency rulemaking

provisions.

In a petition to the FAA to withdraw or stay the SFAR (which was

also submitted as a comment), HHOA states that, because there was no

true emergency, the FAA should not have used the ``good cause''

exception of the Administrative Procedures Act (APA) to avoid rule

issuance without notice and public comment. Some commenters believe

that the real reason for SFAR 71 is noise, not safety.

Applicability and Definitions

Some commenters, including HHOA, contend that states such as

Alaska, California, and Oregon have rugged coastlines and terrain that

pose the same hazards to air tours as Hawaii's terrain. These

commenters posit that the SFAR, which is being imposed only on Hawaii,

is discriminatory and puts the air tour industry in Hawaii at a

competitive disadvantage.

Flotation Devices

HHOA states that limiting the flotation requirement to helicopters

is arbitrary and capricious because the SFAR assumes that only

helicopters sink rapidly after forced landings on water.

Other commenters favor requiring both flotation equipment and the

wearing of personal flotation gear. The NTSB; the Department of

Transportation Airports Division for the State of Hawaii; and the

Sierra Club Legal Defense Fund point out that because helicopters sink

more quickly in water, the use of external flotation equipment would

provide the necessary time for passengers to exit the helicopter.

The NTSB states that at its public hearing on air tour safety, air

tour operators and helicopter manufacturers expressed concern about the

capabilities of airframe-mounted helicopter flotation systems. They

point out that a helicopter's emergency water entry may easily exceed

the certificated vertical speed values of current systems and result in

failure of this equipment to perform as expected. In its comment, the

NTSB recommends that SFAR No. 71 be modified to provide for two

redundant means of occupant survival: airframe-mounted flotation

equipment and the wearing of a life preserver by each person while on

board.

Helicopter Performance Plan

One operator contends that this requirement is not necessary

because Sec. 91.9 requires compliance with the operating limitations

specified in the approved rotorcraft flight manual (RFM). Also,

Sec. 135.345(b)(2) requires aircraft performance characteristics to be

part of an operator's required training program.

HHOA states that this requirement would, in effect, result in a

one-state certification program because the information requested in

the operators' certification performance plans would not be required

elsewhere in the United States.

Helicopter Operating Limitations

HAI states that the operating limitations could adversely affect

operations that are routinely performed in or near the curve, such as

external load lifting, and that operating within the height-velocity

curve should be left to the discretion of the operator.

Several commenters, including HHOA, contend that this requirement

already exists in 14 CFR section 91.9, which states that the shaded

areas or dead-man's curve area is to be avoided except under specific

circumstances.

The NTSB states that comments from operators and manufacturers at

its public hearing on air tour safety question whether helicopter

operating limitations should be placed solely on air tour operators in

Hawaii, while non-tour operations in Hawaii and operators in other

states remain unregulated in this area. The NTSB recommends that the

FAA conduct discussions with interested parties to resolve the issue of

helicopter height-velocity diagram performance.

Standoff Distance

HHOA states that under the 1,500 foot lateral clearance (standoff)

requirement, pilots would be forced to fly farther offshore than now

permitted, increasing the power-off glide distance to shore in the

event of an engine failure. HHOA adds that this requirement will cause

two-way air traffic congestion in and over scenic canyons by forcing

pilots to follow the midline of the canyon, thereby further decreasing

the pilot's ability to keep a close visual surface reference sufficient

to safely control the helicopter.

Minimum Flight Altitudes

A number of commenters point out that the 1,500 foot above ground

level (AGL) requirement does not take into account cloud cover and

weather conditions in Hawaii. Commenters say that the requirement will

increase the probability of flying into bad weather, and prevent

helicopters from flying below the clouds where they can maintain visual

reference to the ground.

[[Page 58856]]

The NTSB believes that the requirement may lead to increased operating

time over water, difficulties in regulatory enforcement, and possible

disregard of the FAA regulation.

Some commenters state that the SFAR's minimum altitude and standoff

requirements should not apply to fixed-wing aircraft. One operator says

that accidents cited in the SFAR were due to pilot error and disregard

for existing regulations which already prevent fixed-wing VFR flights

into IMC conditions. HHOA adds that requiring helicopters to fly at

1,500 feet forces pilots to operate helicopters as fixed-wing aircraft

which is contrary to the certification requirements of helicopters.

Many commenters, including the NTSB, HHOA, ALPA, and the Chamber of

Commerce of Hawaii, state that the minimum altitude requirement will

cause air tour traffic to be concentrated at the same altitude,

increasing the likelihood of midair collisions.

Several commenters, including HHOA, state that the minimum altitude

requirement will create additional hazards for emergency landings. At

low altitudes, pilots are better able to spot a suitable landing site;

at higher altitudes it takes longer to land and shut off the engine,

thereby increasing the risk of a fire and further mechanical failure.

One operator states that the minimum altitude requirement is not needed

because Sec. 91.119 says that no person may operate an aircraft below

an altitude that does not allow for an emergency landing without undue

hazard to persons or property on the surface.

Visibility and Cloud Clearance

Several commenters point out that the minimum altitude requirements

in the SFAR do not take into account changing cloud cover and weather

conditions in Hawaii which affect pilots' visibility and ability to

maintain required distances from clouds. NTSB notes that the 1,500 foot

altitude may cause encounters with cloud layers not found at lower

altitudes. Some commenters say that pilots would best avoid unforeseen

weather conditions and maintain sufficient visibility by flying below

the clouds and maintaining visual reference to the ground.

Briefing Passengers

Commenters on this issue express support for the requirement. HAI

states that although passenger briefing is already standard practice

for most operators, the requirement will ensure that passenger briefing

takes place.

Costs

Many commenters state that the SFAR will devastate Hawaii's

helicopter tourist industry and related businesses, many of which are

small businesses. Commenters say that over 650,000 visitors take

helicopter tours annually, and that the helicopter tour industry

contributes $100 million per year to Hawaii's economy. Several tourism

organizations say that since the SFAR took effect, bookings dropped 40

to 50 percent which is equivalent to an annual revenue loss of $35

million. Some of these commenters add that the SFAR will impact 1,000-

2,000 people employed by the helicopter tour industry and related

businesses. A pilot commented that the air tour industry raises $100

million annually, and noted that this represents a considerable tax

contribution to the State of Hawaii. Commenters on this issue included

hotel associations, a trade association, a visitors' bureau, a

publishing company, and a resort association. A number of form letters

were received expressing that Hawaii has an unemployment problem and

that this rule will be tantamount to taking away jobs. A different form

letter stated that the rule is excessive, that most tour operators are

``eco-friendly'', and that air tour operators perform valuable

community assistance in supporting disaster assistance.

Several operators cite revenue losses since the SFAR took effect

due to the necessity of grounding flight operations when cloud ceilings

were below 1,500 feet AGL. Several commenters, including HAI, contend

that the SFAR underestimates the number of no-fly days tour operators

experience because of low cloud ceilings.

HAI quotes from the SFAR, which states ``. . . although the 1,500

foot minimum altitude requirement has a significant economic impact on

a substantial number of small entities, it provides superior

operational safety.'' HAI says that this equates to the notion of

``overly burdening'' these same small entities.

Monitoring, Enforcement, and Voluntary Efforts

Some commenters, including HAI, point out that better enforcement

of existing regulations would help prevent air tour accidents and that

Hawaii's FSDO staff should be increased for this purpose. HHOA adds

that air safety would be improved if expanded weather operations were

provided by more than the one Flight Service Station in Honolulu.

Some commenters state that the helicopter air tour industry is

already using voluntary measures to ensure safety and reduce noise. An

operator, the Kauai County Council, and the Maui Air Traffic

Association say that HHOA's ``Fly Neighborly'' program, which

recommends a 1,500 foot minimum altitude, is a good means to ensure

voluntary compliance with existing regulations.

Environmental Impacts

A number of commenters state that the minimum altitude should be 2

miles, not 1,500 feet. These commenters cite the value of the

wilderness experience and the protection of wildlife as justification

for banning flights over national parks in Hawaii. They urge the FAA to

make the SFAR permanent.

One commenter who lives 14 miles from Kahului Airport expresses

concern that in an emergency, a helicopter with little altitude would

be forced to land near her house and urges enforcement of the 1,500

foot restriction. A major environmental association states that

deviations from the rule should only be allowed for reasons of safety.

Other commenters state that the air tour industry is growing so

rapidly in Hawaii that private heliports are springing up, allowing

even more uncontrolled growth. Therefore, more controls than are

provided by SFAR 71 may be needed.

The docket contains comments from several neighborhood associations

who comment that the SFAR is forcing tours to be rerouted over their

property, that the FAA is not enforcing the 1,500 foot restriction for

all operators, that all pilots conducting air tour operations should be

required to have Part 135 certificates, and that the FAA should

implement a system for tracking violators. One association suggests a

$2,000 fine, per violation, per day, for each offender.

FAA's Response

The FAA finds that the issuance of SFAR 71 is justified by the

accidents that occurred from 1982-1991. The Court of Appeals for the

Ninth Circuit supported the FAA's finding by holding that the FAA had

good cause for emergency rulemaking because of the increase in recent

fatal accidents (U.S. Court of Appeals for the Ninth Circuit, No. 94-

70703, March 29, 1995; Hawaii Helicopter Operators v. Federal Aviation

Administration, 51 F. 3d 212 (9th Cir. 1995). Moreover, the FAA finds

that the rule has been successful in accident prevention. Since its

issuance, there have been only three incidents--

[[Page 58857]]

all engine failures that landed safely with no injuries.

One of the most contentious aspects of the SFAR for operators was

the minimum operating altitude. The FAA, after working closely with air

tour operators, believes that this problem has been somewhat mitigated.

Since 1994, the FAA has allowed deviations from SFAR 71 for the

majority of air tour operators. Air tour operators of 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 conduct air tours at a minimum of 500

feet. The use of deviations has provided separation between the fixed-

wing aircraft and helicopters around the scenic areas where the traffic

is the most dense. The FAA has provided an equivalent level of safety

to that of the higher altitude by additional safety measures for those

air tour operators. Each air tour operator that is granted a deviation

from the higher altitude is evaluated on a case by case basis. Each

deviation is site-specific and allows operation only over areas of raw

terrain (areas devoid of any persons, vessels, vehicles or structure).

The altitude over populated areas and other than raw terrain remains at

1500 feet. The pilots for each respective operator must demonstrate

knowledge of the specific sites during FAA flight checks at each

specific site. Also during those flight checks, the pilots must

demonstrate the ability to successfully autorotate to an alternate

emergency landing area at each specific site.

In response to the comments on costs, the FAA believes that that

the SFAR has not had a direct impact on the viability of the air tour

industry in Hawaii. Because of the willingness of the air tour

operators to work with FAA, viable air tours have been created without

an adverse impact on safety. It is important to remember that these

comments on costs were made immediately following the issuance of the

SFAR and before the deviations were in place.

In response to comments suggesting that the purpose of SFAR 71 was

to mitigate noise, the FAA reiterates its strong statement made in the

emergency final rule that the purpose of that rulemaking was for

reasons of safety.

In response to comments on flotation devices and performance

flotation gear, the FAA has by operations specifications required each

helicopter operator to require passengers to wear personal flotation

gear when operating over water whether or not the helicopter is

equipped with exterior flotation devices.

The FAA has prepared a draft Environmental Assessment (EA) which

addresses the environmental comments previously submitted during the

emergency rulemaking and analyzes the environmental impacts of this

rule, the extension of SFAR 71.

With the rulemaking, the FAA will extend SFAR 71 for an additional

3 years. During this time the FAA intends to issue a notice of proposed

rulemaking which will apply to all air tour operators. This national

rule will be responsive to NTSB comments and those operators who

commented that the SFAR was discriminatory against operators in Hawaii.

The proposed rulemaking will consider some of the same issues that

commenters have noted in responding to SFAR 71; in this context, the

comments on SFAR 71 have been helpful to the FAA. Since the national

air tour rulemaking is not yet ripe, the FAA cannot divulge details of

the proposed rule, but does encourage those persons who commented on

SFAR 71 to submit comments to the proposed national rule when it is

published. The FAA anticipates that the national rule, when finalized,

will replace SFAR 71-1, which would then be rescinded.

Environmental Review

Because there were a considerable number of comments on the

environmental effects of the emergency final rule issued as SFAR 71,

the FAA has prepared a draft Environmental Assessment to assure

compliance with the National Environmental Policy Act of 1969 (NEPA)

and other applicable environmental laws, regulations and orders.

A copy of the draft EA may be obtained by calling Linda Williams,

Office of Rulemaking, FAA, 800 Independence Ave., SW, Washington, DC

20591, at (202) 267-9685. An electronic copy is available at http://

www.faa.gov. Comments on the draft EA should be mailed to the address

given or sent electronically to [email protected] and clearly

marked as ``Comments to the draft EA for Extension of SFAR 71.'' The

comment period for the draft EA is the same as for the interim rule, on

or before December 29, 1997.

Based upon the draft EA and comments received on the draft EA, the

FAA will determine whether to issue a final EA and a Finding of No

Significant Impact (FONSI) or to prepare an environmental impact

statement. If a final EA and FONSI are determined appropriate for the

final rule, these documents will be available in Docket No. 27919 and

on the Internet at http://www.faa.gov.

Regulatory Evaluation Summary

In accordance with SFAR 71, certain procedural, operational, and

equipment requirements were established for air tour operators

currently operating in the State of Hawaii. Compliance with SFAR 71 was

estimated to increase costs approximately $2.1 million, in current

dollars, over the three year period, 1994 to 1997. Most of the increase

in costs was associated with lost revenue that resulted from tour

cancellations when the new minimum flight altitudes could not be

achieved. Based on data identified during the promulgation of SFAR 71,

the FAA estimated that the cost associated with revenue loss totaled

approximately $1.9 million. Additional costs associated with SFAR 71

included $201,000 to provide lifevests on subject helicopters and

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

estimated potential safety benefits associated with SFAR 71 totaled

approximately $33.7 million over three years. All these dollar

estimates have been updated to current dollars from 1994 dollars. A

copy of the Final Regulatory Evaluation, Final Regulatory Flexibility

Determination, and Trade Impact Assessment completed for the original

SFAR have been placed in the docket.

The FAA has worked with the air tour operators to lessen the burden

of lost revenue from canceled tours. This has been accomplished by

allowing deviations from SFAR 71 for specific air tour operations

evaluated on a case by case basis. When deviations of 1,000 feet for

fixed-wing aircraft and 500 feet for single-engine helicopters are

granted, the estimated revenue loss may be overstated, because the

deviations allow a tour operation to take place that otherwise would

have been canceled under the minimum flight altitudes of SFAR 71.

Therefore, because of the FAA allowing deviations from SFAR 71 for the

majority of air tour operators in Hawaii, much of the estimated $1.9

million revenue loss did not occur. However, due to other safety

measures for air tour operators, such as separation between fixed-wing

and helicopter operations around scenic areas, deviations from flight

altitudes have not compromised safety. Since the issuance of SFAR 71,

there have been no fatalities or injuries as a result of the new

procedural, operational or equipment requirements. In view of the

foregoing, the FAA has determined that the extension to SFAR 71 is cost

beneficial.

This regulation is considered significant under DOT Regulatory

Policies and Procedures (44 FR 11034; February 26, 1979) because it was

[[Page 58858]]

issued originally as an emergency final rule. A final regulatory

evaluation of the regulation, including a Regulatory Flexibility

Determination and Trade Impact Analysis, has been placed in the docket.

A copy may be obtained by contacting the person identified under FOR

FURTHER INFORMATION CONTACT. The FAA has determined that this action is

a significant regulatory action under Executive Order 12866.

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (RFA) was enacted by

Congress to ensure that small entities are not unnecessarily and

disproportionately burdened by Federal regulations. The RFA requires a

Regulatory Flexibility Analysis if a proposed rule would have

``significant economic impact on a substantial number of small

entities.'' FAA Order No. 2100.14A outlines the FAA's procedures and

criteria for implementing the RFA. The FAA's criteria for ``a

significant impact'' is an annualized cost threshold of at least

$4,900.

The FAA's original regulatory flexibility analysis indicated that

the SFAR would impose a ``Significant economic impact on a substantial

number of small entities.'' (See copy of original Regulatory

Flexibility Determination included in the docket for this rulemaking.)

The FAA estimated the total annualized cost of the final rule was

approximately $712,000, in current dollars. The annualized cost of the

1,500 foot minimum altitude requirement for the air tour industry

(fixed-wing and helicopter) was approximately $635,700. After assessing

the annualized cost for individual operators on a per seat basis, the

FAA determined that the SFAR would impose costs greater than the

annualized cost threshold of $4,900 for 31 of 37 of the affected air

tour operators, most of whom are small entities. The FAA calculated the

annualized cost regarding alternative minimum altitude requirements of

500 feet, 800 feet, and 1,000 feet. Based on this figure, the FAA

determined that a minimum altitude requirement of 500 feet would be

necessary to lower the annualized cost below the $4,900 threshold for

all but four of the air tour operators. However, after analyzing the

safety implications of lowering the minimum altitude to 500 feet, the

FAA determined that to do so would result in a decline in safety

benefits.

Since the issuance of the SFAR, the FAA received requests from

several operators to fly at lower altitudes. Air tour operators

requested ``deviations'' from the rule to obviate the economic burden

imposed upon them by the SFAR. The FAA worked with the operators to

create individual exceptions under which air tours could occur at lower

altitudes but with other conditions imposed. The resulting exception,

referred to as a deviation, was designed to minimize the potential

adverse economic effects on the air tour operators while maintaining

the same level of safety as that afforded at 1,500 feet.

A deviation allows an operator to fly at lower altitudes with the

imposition of certain additional safety requirements. Operators must

individually request a deviation from the FAA. The FAA considers each

request on a case by case basis and, after close scrutiny of each air

tour operation, determines whether the issuance of a deviation from the

SFAR will achieve the desired goals. The imposition of additional

safety requirements varies from operator to operator. Requirements can

include safety equipment modifications and/or special operation

procedures, such as separation between fixed-wing and helicopter

operations around scenic areas. Currently, 16 of the 26 air tours

operating under part 135, and 2 of the 9 air tours operating under part

91, have sought and have received deviations from the SFAR. Those

operators who have not sought a deviation are operating under air

traffic control (ATC) positive control and are not, therefore, required

to comply with the provisions of the rule, or were already operating at

higher altitudes. The practical impact of FAA issued deviations,

considered along with ATC positive control, is that the majority of

small entities are currently operating at lower altitudes. The FAA

anticipates that it will continue to grant deviations as it has up to

this point, which will in effect work to mitigate the economic impact

of the SFAR on small entities.

The FAA is compelled to stand by the results of its original

regulatory flexibility analysis despite the reasonable conclusion that

can be drawn from these facts, namely, that those operators who

requested deviations did so because they believed it would be less

costly than complying with the SFAR. Although the agency believes that

costs of compliance are now lower than originally estimated, the agency

has no data to show the extent of any change in the economic impact on

small businesses as reported in the original regulatory flexibility

analysis. Accordingly, the FAA certifies that this extension has a

significant economic impact on a substantial number of small entities.

International Trade Impact Assessment

When the FAA promulgated SFAR 71, it found that SFAR would not have

an adverse impact on the international trade because the affected

operators do not compete with foreign operators. The FAA certifies that

this SFAR will not constitute a barrier to international trade,

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

and the import of foreign goods and services to the United States.

Paperwork Reduction Act

SFAR 71 contains information collection requirements, specifically

in Section 6. Minimum flight altitudes and Section 7. Passenger

briefing. As required by the Paperwork Reduction Act of 1995 (44 U.S.C.

3507(d)), the FAA submitted these requirements to OMB. As a result, an

emergency clearance of the information collection requirement (No.

2120-0620) has been approved through February 28, 1998.

SFAR 71, which became effective on October 26, 1994, applies to air

tour operators in the state of Hawaii. Under the SFAR, both Part 91 and

Part 135 operators are required to provide a passenger safety briefing

on water ditching procedures, use of required flotation equipment, and

emergency egress from the aircraft in event of a water landing. The FAA

estimates that 100,000 air tour operations are conducted annually by 35

operators, that each safety briefing takes 3-4 minutes, and that the

cost of the briefing is $10.00. Using these numbers, 400,000 minutes =

6,667 hours x $10.00 equals approximately $.70 per flight.

For the deviations collection, two calculations must be done since

operators first requested deviations to 1,000 feet, and then to 500

feet. 1,000 ft. deviations were granted to approximately 35 operators,

and it is estimated that the preparation took each operator 2 hours at

$15.00 an hour for a total of approximately $1,050.00. The cost for the

government to review the deviations is estimated to be 1 hour of review

and operations preparation using 35 hours of inspector time or

approximately $1,750.00 in costs. The deviation requests to 500 feet

cost the operators 35 x 1 hour at $15.00 per hour or $525.00. Cost of

an inspector's review is estimated at 35 x \1/2\ hour or $875.00. In

addition, it is necessary to include the costs for FAA inspectors

checking pilots on specific sites for the 500 feet deviation, and the

cost for operators' check pilots to check line pilots. The former is

estimated to be 35 x 3 hours at an operator/aircraft cost of $250.00

or $26,250.00. The cost to check line pilots

[[Page 58859]]

is estimated to be 100 x 1 hour x $250.00 or $25,000.00. The cost

to the government (inspectors' time) for all deviations is estimated to

be 35 x 3 hours x $50.00 or $5,250.00.

Organizations and individuals desiring to submit comments on the

information collection requirements of SFAR 71 should send them to the

FAA's Rules Docket, the address for which is given in the ADDRESSES

section of this interim rule.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (the Act),

enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal

agency, to the extent permitted by law, to prepare a written assessment

of the effects of any Federal mandate in a proposed or final agency

rule that may result in the expenditure by state, local, or tribal

governments, in the aggregate, or by the private sector, of $100

million or more (adjusted annually for inflation) in any one year.

Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal

agency to develop an effective process to permit timely input by

elected officers (or their designees) of State, local, and tribal

governments on a proposed ``significant intergovernmental mandate.'' A

``significant intergovernmental mandate'' under the Act is any

provision in a Federal agency regulation that would impose an

enforceable duty upon State, local, and tribal governments, in the

aggregate, of $100 million (adjusted annually for inflation) in any one

year. Section 203 of the Act, 2 U.S.C. 1533, which supplements section

204(a), provides that before establishing any regulatory requirements

that might significantly or uniquely affect small governments, the

agency shall have developed a plan that, among other things, provides

for notice to potentially affected small governments, if any, and for a

meaningful and timely opportunity to provide input in the development

of regulatory proposals.

The FAA has determined that this rule does not contain any Federal

intergovernmental mandates, but does contain a private sector mandate.

However, because expenditures by the private sector will not exceed

$100 million annually, the requirements of Title II of the Unfunded

Mandates Reform Act of 1995 do not apply.

Federalism Implications

The regulations herein will not have substantial direct effects on

the States, on the relationship between the national government and the

states, or on the distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, the FAA certifies that this regulation will not have

sufficient federalism implications to warrant the preparation of a

Federalism Assessment.

List of Subjects

14 CFR Part 91

Aircraft, Airmen, Aviation safety.

14 CFR Part 135

Air taxi, Aircraft, Airmen, Aviation safety.

The Amendment

The Federal Aviation Administration amends 14 CFR parts 91 and 135

as follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

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

Authority: 49 U.S.C. 106(g), 40103, 40113, 40120, 44101, 44111,

44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306,

46315, 46316, 46502, 46504, 46506-46507, 47122, 47508, 47528-47531.

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

2. The authority citation for part 135 continues to read as

follows:

Authority: 49 U.S.C. 106(G), 40113, 44701-44702, 44705, 44709,

44711-44713, 44715-44713, 44715-44717, 44722.

3. In SFAR NO. 71--Special Operating Rules For Air Tour Operators

In The State Of Hawaii, section 8 is revised to read as follows:

SFAR NO. 71-1--Special Operating Rules for Air Tour Operators in the

State of Hawaii

* * * * *

Section 8. Termination date. This Special Federal Aviation

Regulation expires on October 26, 2000.

Issued in Washington, DC, on October 23, 1997.

Jane F. Garvey,

Administrator.

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

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